Henry E. Lyons Plaintiff- Appellee
F. Wayne Vaught; Reginald Bassa Defendants - Appellants
Submitted: June 8, 2017
from United States District Court for the Western District of
Missouri - Kansas City
LOKEN, MURPHY, and MELLOY, Circuit Judges.
Lyons worked as a part-time lecturer at the University of
Missouri Kansas City ("UMKC") for seven semesters,
teaching a self-developed Career and Life Development course.
He was not asked to return for the Spring 2012 semester. In
this 42 U.S.C. § 1983 action, Lyons alleges that
defendants' decision not to renew his contract was
retaliation for his criticism of UMKC's preferential
treatment of student athletes and therefore a violation of
his free speech rights as a public employee. The individual
defendants appeal the district court order denying their
motion to dismiss Lyons's damage claims because they are
entitled to qualified immunity. Reviewing the denial of
qualified immunity de novo, we reverse.
First Amended Complaint ("FAC") alleged that in
Fall 2010 he gave a student athlete an "F" grade in
Lyons's course. The student challenged his grade through
UMKC's appeal process; Lyons submitted a "formal
written response" defending his grade. The "Grade
Appeal Committee, " comprised of Reginald Bassa,
Director of UMKC's Program for Adult Education, and the
Department Chair, determined the student should be allowed to
submit a second midterm paper. Lyons appealed this decision
and complained to F. Wayne Vaught, Interim Dean of the
College of Arts and Sciences. Vaught referred the
student's appeal to the Academic Standards Committee in
September 2011. The Committee determined the student should
be allowed to submit a second paper. Lyons again complained
to Vaught, who upheld the Committee's decision. A
committee appointed to grade the student's second paper
gave it a 75% grade, and Vaught instructed the registrar to
change the student's grade to D in November 2011.
November, Lyons arranged a meeting with UMKC Chancellor Leo
E. Morton and invited three others to attend: UMKC's
former Deputy Chancellor for Diversity, Access, and Equity; a
past Chairman of the Minority & Cultural Affairs
Committee and past Vice President of UMKC's Alumni
Association Board; and the President of the local NAACP
chapter. Lyons expressed concerns about preferential
treatment of student athletes at UMKC, summarized other
professors' complaints about the problem, and noted that
such treatment could lead to adverse publicity and sanctions.
Lyons requested that Morton "undertake a comprehensive
investigation into the preferential treatment afforded to
student athletes." Morton said he declined to get
involved with student-faculty matters on campus. Lyons never
heard back regarding his complaints. He was not offered a
part-time lecturer contract for the following semester,
contracts that "are offered based on the recommendation
and approval" of Vaught and Bassa.
initially sued Morton, Vaught, and Bassa in state court,
alleging unlawful First Amendment retaliation. He voluntarily
dismissed Chancellor Morton after defendants removed the case
to federal court. Vaught and Bassa moved to dismiss on
grounds of qualified immunity and failure to state a claim.
The district court denied the motion, and defendants
appealed. We agreed with the court that dismissal for failure
to state a claim was properly denied because, while
Lyons's speech during the grade-appeal process was not
protected against public-employer retaliation, it was not
clear from the ambiguous FAC whether his speech at the
meeting with Chancellor Morton was connected to the appeal
process, or whether Lyons spoke at the meeting as a citizen
on a matter of public concern. However, our review of the FAC
found no allegation that Vaught and Bassa were ever apprised
of Lyons's speech at the meeting with Morton, which they
did not attend. A First Amendment retaliation claim requires
proof of a causal connection between the protected activity
and the adverse employment action, so we concluded that
Vaught and Bassa were entitled to qualified immunity because
the only speech that could have prompted their adverse action
was Lyons's unprotected speech during the appeal process.
Lyons v. Vaught, 781 F.3d 958, 962-63 (8th Cir.
2015) ("Lyons I"). We reversed the denial
of qualified immunity and remanded for further proceedings.
remand, rather than grant defendants' qualified immunity,
the district court permitted Lyons, over defendants'
objection, to file a Second Amended Complaint
("SAC") to cure the FAC's fatal
defects. The SAC again alleged that Lyons's
First Amendment claim "stems from the preferential
academic treatment afforded student athletes . . . one of
which [sic] challenged a grade received in [Lyons's
class]." It alleged that the student's grade was
changed from "F" to "D" in the appeal
process but excised extensive factual allegations in the FAC
describing that process. Unlike the FAC, the SAC specifically
alleged that "Lyons told Bassa and Vaught what he had
discussed" at the meeting with Chancellor Morton -- that
student athletes "were receiving preferential treatment,
" that it was unfair "to let student athletes take
advantage of the grading system, " that this could lead
to adverse publicity and sanctions, and that "he asked
Chancellor Morton to undertake a comprehensive investigation
into the preferential academic treatment afforded to student
moved to dismiss the SAC, arguing they are entitled to
qualified immunity because at the time of the alleged
retaliation, "it was not clearly established that a
teacher complaining about academic favoritism towards student
athletes (which included one of Plaintiff's own students)
was engaged in constitutionally protected speech." The
district court denied the motion, concluding it was clearly
established "that a public employee had a First
Amendment right to speak on matters of a public concern so
long as that speech was not part of the employee's job
duties." Defendants appeal. We have jurisdiction to
determine whether Lyons sufficiently alleged a clearly
established violation of law, accepting as true the facts
alleged in Lyons's SAC. Lyons I, 781 F.3d at
immunity from personal damage liability "gives
government officials breathing room to make reasonable but
mistaken judgments about open legal questions."
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
"Qualified immunity attaches when an official's
conduct does not violate clearly established . . .
constitutional rights of which a reasonable person would have
known." White v. Pauly, 137 S.Ct. 548, 551
(2017) (quotation omitted). It "protects all but the
plainly incompetent or those who knowingly violate the
law." Mullenix v. Luna, 136 S.Ct. 305, 308
(2015) (quotation omitted). For purposes of their motion to
dismiss, Defendants assume that Lyons's SAC alleged the
violation of a constitutional right -- retaliation for his
First Amendment protected speech at the meeting with
Chancellor Morton. They argue the alleged right was not
clearly established at the time of the alleged violation.
See al-Kidd, 563 U.S. at 735.
Supreme Court has repeatedly warned that "clearly
established law should not be defined at a high level of
generality . . . [but] must be particularized to the facts of
the case." White, 137 S.Ct. at 552 (citing
prior cases). Absent controlling authority, Lyons must show
"a robust consensus of cases of persuasive
authority." De La Rosa v. White, 852 F.3d 740,
746 (8th Cir. 2017) (quotation omitted). Although the Supreme
Court "does not require a case directly on point for a
right to be clearly established, existing precedent must have
placed the . . . constitutional question beyond debate"
at the time Vaught and Bassa acted. White, 137 S.Ct.
at 551 (quotation omitted); see Mullenix, 136 S.Ct.
at 308; Reichle v. Howards, 132 S.Ct. 2088, 2094
(2012) ("[T]he right in question is not the ...