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Lyons v. Vaught

United States Court of Appeals, Eighth Circuit

November 22, 2017

Henry E. Lyons Plaintiff- Appellee
v.
F. Wayne Vaught; Reginald Bassa Defendants - Appellants

          Submitted: June 8, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before LOKEN, MURPHY, and MELLOY, Circuit Judges.

          LOKEN, Circuit Judge.

         Henry 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.

         I.

         Lyons's 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.

         In late 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.

         Lyons 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.

         On 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.[1] 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 athletes."

         Defendants 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 960.

         II.

         Qualified 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.

         The 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 ...


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