Kathleen Benison v. George Ross

765 F.3d 649, 2014 FED App. 0219P, 2014 U.S. App. LEXIS 16978, 2014 WL 4337379
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 3, 2014
Docket13-2554
StatusPublished
Cited by100 cases

This text of 765 F.3d 649 (Kathleen Benison v. George Ross) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kathleen Benison v. George Ross, 765 F.3d 649, 2014 FED App. 0219P, 2014 U.S. App. LEXIS 16978, 2014 WL 4337379 (6th Cir. 2014).

Opinions

MOORE, J., delivered the opinion of the court, in which SUTTON, J., joined. ALARCÓN, J. (pp. 665-66), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Kathleen Benison was a tenured professor of geology at Central Michigan University (“CMU”). In 2011, Kathleen’s husband Christopher Benison, an undergraduate student at CMU, sponsored a vote of no confidence in the president and provost of the university. Shortly after the vote, in accordance with the collective bargaining agreement negotiated by the CMU faculty, Kathleen took a semester of sabbatical leave for Spring 2012. She agreed that, as a condition of her leave, she would return to CMU for at least one full year following sabbatical or return any compensation received during her leave. While Kathleen was on sabbatical, she became eligible for and requested a promotional pay supplement. Kathleen’s department recommended denying her application for a salary supplement, and the reviewing dean agreed. Kathleen appealed their recommendations to the provost, but she resigned before he could render a final decision. Pursuant to the sabbatical agreement, CMU requested that Kathleen return any compensation she received during her sabbatical semester, including salary and benefits. When Kathleen refused, the university filed a lawsuit in state court based on breach of contract. Because Christopher’s tuition had been remitted for the Spring 2012 semester as part of Kathleen’s benefits and Kathleen was contractually obligated to repay her salary and benefits for the semester, CMU determined that Christopher had an outstanding tuition balance and placed a hold on his academic transcript.

The Benisons filed suit in federal court alleging that the president of CMU, in his individual and official capacities, and the provost and dean, in their individual capacities only, retaliated against them because of Christopher’s sponsorship of the no-confidence resolution against the provost and the president. We find sufficient evidence to create a genuine dispute of material fact regarding whether CMU filed a lawsuit against Kathleen Benison and placed a hold on Christopher Benison’s transcript in retaliation for Christopher’s exercise of his First Amendment rights. We also conclude that CMU, as represented by President Ross in his official capacity, cannot shield itself from liability by invoking qualified immunity. Therefore, we AFFIRM in part and REVERSE in part the judgment of the district court and REMAND for further proceedings.

I. BACKGROUND

In 1997, Central Michigan University hired Dr. Kathleen Benison as an assistant [654]*654professor of geology. Over the next fourteen years of her employment at CMU, Kathleen received five reappointments and three promotions. During each of the eight assessments, she received only positive recommendations from the other members of her department, the Earth and Atmospheric Sciences Department (the “EAS Department” or “Department”). Kathleen also received recognition for her outstanding research and teaching record during her time at CMU. In 2008, Kathleen was granted tenure as a full professor.

In September 2010, Kathleen requested permission to take sabbatical leave during the Spring 2012 semester. On December 7, Provost E. Gary Shapiro sent Kathleen a letter detailing her obligations while on sabbatical. The letter stated that one of those obligations was “[t]o return to CMU for at least one academic year following the leave or to refund the salary and benefits paid by CMU during the leave.” R. 20-2 (Sabbatical Ltr.) (Page ID # 728). On January 13, 2011, Kathleen signed a sabbatical contract including the following term: “I agree to return to the University in my regular assignment for one full contractual period following the termination of my leave or to refund the compensation paid to me by CMU for the period of my leave.” R. 20-2 (Sabbatical Agreement) (Page ID # 738).1

In the Fall 2011 semester, Kathleen requested to be relieved from teaching assignments so that she could focus on her research. CMU granted Kathleen a release from teaching obligations, but she remained obligated to fulfill the other duties of her position, including her service duties. Sven Morgan, the Chair of the EAS Department, felt that Kathleen was not fulfilling her service obligations during the semester based on at least two incidents. On one occasion, Morgan assumed the credit for completing a department prioritization project that Kathleen claims she had completed with another professor. On another occasion, Kathleen inquired about missing a department retreat because she had already scheduled a meeting and site visit with grant collaborators. Morgan replied that her question was “frustrating” and that missing such meetings was akin to avoiding service. R. 20-4 (Retreat Email) (Page ID # 850). This was not the first time that Morgan had found Kathleen’s service to the department lacking: In 2010, when Morgan asked Kathleen to complete an assessment for the Department, she explained that she could not complete the assessment by the deadline because she was overburdened with commitments. Morgan interpreted her response as a refusal and warned her that “he would vote [her] down for future promotion” because she was not providing enough service to the Department. R. 20-4 (Benison Dep. at 174) (Page ID #819). After Morgan complained to the Dean of the College of Science and Technology, Ian R. Davison, that Kathleen was shirking her responsibilities, Dean Davison sent Kathleen an email dated August 11, 2011 reminding her of her service obligations.

In December 2011, Kathleen’s husband Christopher Benison, who was then an undergraduate student at CMU, sponsored a resolution of no confidence in Provost Shapiro and CMU President George Ross. [655]*655The Academic Senate, which is composed of students, administrators, and faculty-members, passed the resolution on December 6, 2011. The no-confidence resolution was widely endorsed by CMU’s academic departments and chairs, but the CMU Board of Trustees, of which Dean Davison is a member, drafted a letter in support of Ross and Shapiro. After the vote, Leigh Orf, a member of the EAS Department, mentioned the Benisons when discussing his opposition to the resolution with other faculty members. On several occasions, Kathleen overheard him say, during conversations regarding the Benisons’ support of the resolution, “that he was going to teach [Kathleen] a lesson when it came time for [her] promotion.” R. 20-4 (Beni-son Dep. at 39) (Page ID # 813).

In Spring 2012, Kathleen began her semester of sabbatical leave. She also became eligible for a promotional pay increase, and on January 16, 2012, she submitted an application setting forth her qualifications for the promotion. The Faculty Agreement provides for a three-step review process of applications for promotion: First, the faculty member’s department makes a recommendation based on “the extent to which departmental members have fulfilled the criteria and standards established in compliance with this Agreement.” R. 20-2 (Faculty Agreement at 32) (Page ID # 707). Second, the Department forwards its recommendation to the dean, who “considers the recommendations and renders an independent judgment on the bargaining unit member’s achievements as indicated by the documentation, giving due weight to the department’s recommendation including the rationale and documentation.” Id. at 33. After the dean makes a recommendation, a faculty member may “initiate a request for review by the Provost.” Id. at 34.

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765 F.3d 649, 2014 FED App. 0219P, 2014 U.S. App. LEXIS 16978, 2014 WL 4337379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kathleen-benison-v-george-ross-ca6-2014.