Two officials at Arkansas State University’s Mountain Home campus cannot be sued for firing a newly hired funeral science program director who joked on Facebook that he had “cheated through mortuary school,” a federal appeals court said Monday.
The opinion released by a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis reversed a January ruling by U.S. District Judge Leon Holmes that allowed Toby Sutton’s lawsuit to proceed against officials Patricia Bailey and Kellie Thomas.
Holmes found that Bailey, the vice chancellor of academic and student af-fairs, and Thomas, the director of instruction, weren’t entitled to the protections of “qualified immunity” because, as supervising faculty members at a state university, they “should be familiar with the due process requirements” that Sutton claimed they violated.
Qualified immunity shields defendants from legal liability only if their conduct “did not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” according to a 1982 U.S. Supreme Court opinion that Holmes cited.
In addition to dismissing the officials’ claims to immunity, Holmes found that Sutton had demonstrated a viable dispute about whether the women had provided him the procedural due process to which he was entitled.
The 8th Circuit panel seemed to agree that it was “possible” that the posttermination procedures were unconstitutional. But the panel said “reasonableschool officials would not have known that [their] conduct violated Sutton’s clearly established due-process rights” and declared that consequently, the officials cannot be held accountable.
Jonesboro attorneys Donn Mixon and Rebecca Worsham, who represented Sutton before the panel during oral arguments in Little Rock on Oct. 3, couldn’t be reached Monday afternoon about whether they plan to pursue the matter further.
The panel included Chief U.S. Circuit Judge William Riley of Omaha, Neb., James Loken of Minneapolis and Duane Benton of Kansas City, Mo.
The case wasn’t scheduled for trial because the university’s appeal of Holmes’ ruling to the 8th Circuit took the case temporarily out of the district court’s jurisdiction. Meanwhile, the case was reassigned to the district’s newest judge, Kristine Baker, in an effort to equalize caseloads.
If the case was reinstated, it would be heard in Baker’s court.
Sutton was hired in the spring of 2010 to direct thecampus’s funeral science program for the 2010-11 academic year. He was fired in November over a comment he had posted on Facebook in June saying he “hopes this teaching gig works out. Guess I shouldn’t have cheated through mortuary school and faked people out. Crap!”
The nine-month employment contract Sutton signed provided that he could be terminated at any time “for adequate cause.”
Sutton told Bailey at the November meeting at which he was fired without advance notice that he was only joking and that he posted the statement before he began teaching. But according to court documents, she told him it didn’t matter and handed him a form that stated he was being fired for a June incident of “academic fraud and unprofessionalconduct.”
Under the heading “supervisor statement,” someone wrote on the form: “Mr. Sutton posted material on Facebook indicating he had ‘cheated’ his way through mortuary school. There are multiple other class relatedissues.”
The 8th Circuit ruling noted that Bailey offered Sutton the opportunity to “make a statement” before signing the form, but that he declined and signed the form.
The ruling noted that the university has a six-step faculty grievance procedure that includes taking testimony and allows a party who is dissatisfied with the faculty grievance committee’s decision to appeal to the university chancellor.
“Sutton knew the grievance procedure existed, but chose not to use it, opting instead to file this lawsuit,” the 8th Circuit opinion said.
The university argued that by failing to invoke the grievance procedure, Sutton waived his right to challenge the adequacy of the process.
Sutton contended he was actually fired for being a “whistle-blower” over compliance lapses he discovered that he said could cause the funeral science program to lose its accreditation.
He was seeking monetary damages and possible reinstatement.
Northwest Arkansas, Pages 7 on 12/04/2012