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April 11, 1988

Patricia House, Plaintiff
University Of Central Arkansas By and Through the Board Of Trustees Of the University Of Central Arkansas, Defendants

The opinion of the court was delivered by: WATERS

 H. Franklin Waters, United States District Judge.


 This is an action brought pursuant to 42 U.S.C. § 1983 by plaintiff, Patricia House, to redress an alleged deprivation of Constitutional rights in connection with her position as an instructor in the nursing department at the University of Central Arkansas (hereinafter "the University" or "UCA"). The defendant is captioned as the University of Central Arkansas by and through the Board of Trustees of the University of Central Arkansas.

 Plaintiff filed a complaint on August 17, 1987, alleging UCA officials deprived her of liberty and property without due process in violation of the First and Fourteenth Amendments. Specifically, Ms. House contends she was discharged after being granted tenure without notice of the reasons for the Board of Trustees' (hereinafter "Trustees") action and without an opportunity for either a pre-termination hearing or a post-termination hearing. Further, Ms. House claims UCA officials made stigmatizing statements to the press implying wrongdoing on her part in the initial grant of tenure. Plaintiff seeks injunctive and declaratory relief in addition to monetary damages.

 In response to the allegations in the complaint, the Attorney General filed a motion to dismiss contending UCA was an entity so closely aligned with the State of Arkansas that it was immune from suit under the Eleventh Amendment. The damage claim against the University was dismissed on this ground by order of the court on December 31, 1987. The remaining claims for injunctive and declaratory relief against UCA and the Trustees in their official capacities were allowed to proceed. Plaintiff was also allowed to continue to seek damages against the Trustees in their individual capacities.

 On January 27, 1988, defendants filed a motion for summary judgment on the Fourteenth Amendment claim and a motion to dismiss the First Amendment claim. Plaintiff agreed to dismiss her allegations of a First Amendment violation but contested the summary judgment motion. Both parties have provided the court with substantial documentation in accordance with Federal Rule of Civil Procedure 56.

 It is the court's duty to review these documents and determine whether there is a genuine issue of material fact in dispute or whether the matter is one that can be decided on purely legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987). Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions to the file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Flittie v. Solem, 827 F.2d 276 (8th Cir. 1987).

 After reviewing the materials submitted by the parties, the court has determined this case is one in which there is not sufficient disagreement on the material facts to require submission to a jury. The documents submitted by the parties also demonstrate the defendants are entitled to judgment as a matter of law. Accordingly, a summary judgment is appropriate.


 Plaintiff accepted employment as an instructor of nursing at the University on August 15, 1980. The Department of Nursing is a part of the College of Fine and Applied Arts and Sciences. Ms. House accepted tenure track appointments at the rank of instructor for the following school years: August, 1980, to May, 1981; August, 1981, to May, 1982; August, 1982, to May, 1983; August, 1983, to May, 1984; August, 1984, to May, 1985; and January, 1986, to May, 1986. Ms. House was on academic leave from August to December, 1985.

 The scope of a tenure track appointment is limited by the UCA Faculty Handbook which provides:

The total number of years which a faculty member appointed in the tenure track may serve without tenure shall not exceed seven. If a person has received initial appointment at the rank of instructor or assistant professor and has served for six years in the tenure track, tenure must be awarded or service must be terminated with the expiration of the next one-year term appointment.

 [Plaintiff's Ex. A].

 Dr. Betty L. Martin, Chairperson of the Nursing Department, notified plaintiff on September 25, 1985, that she should apply for promotion or tenure or both during the 1985-86 school year. [Defendants' Ex. B]. Ms. House satisfied all the criteria to be eligible to apply for tenure with one exception; she had not achieved the appropriate rank to be tenured. Under the provisions in the handbook:

Tenurial academic ranks are those of Assistant Professor, Associate Professor, and Professor. In certain cases of institutional, programmatic, or departmental need and exceptional individual merit, however, the Vice President for Academic Affairs may, at his discretion, approve special consideration of an Instructor for tenure status.

 [Plaintiff's Ex. A]. Ms. House applied for both a promotion to Assistant Professor and for tenure. The application process is diagrammed on page 51 of the UCA Faculty Handbook. [Plaintiff's Ex. A].

 In accordance with this procedure, plaintiff presented her application with supporting materials to her Department Tenure Committee. This Committee was made up of tenured faculty members in the Department of Nursing. The Committee reviewed the file and unanimously recommended to Dr. Martin that Ms. House be denied tenure. Dr. Martin informed Ms. House of the Committee's decision on January 17, 1986. [Defendants' Attachment No. 2]. Ms. House requested that her application be allowed to proceed to the College Tenure Committee. [Defendants' Ex. B]. This Committee was made up of seven tenured faculty members of the College of Fine and Applied Arts and Sciences. The Committee reviewed the application and sent a negative recommendation to the Dean of the College, Dr. Neil Hattlestad. The College Tenure Committee based its recommendation on an "absence of research, inadequate material in support of tenure, and the fact that tenure was denied by the tenure committee of the Department of Nursing and the applicant's department chair." [Defendants' Attachment No. 3]. Based upon an independent review of the file, Dr. Hattlestad also gave plaintiff a negative recommendation. [Defendants' Attachment No. 3]. Dr. Hattlestad informed plaintiff and Dr. Martin of the negative recommendation on February 12, 1986. Ms. House elected not to withdraw her application and asked to have it forwarded to the Vice-President for Academic Affairs, Dr. Robert McChesney. Dr. McChesney decided not to recommend Ms. House for tenure or promotion and notified her and her husband of their options on February 24, 1986. Dr. McChesney told Mr. and Mrs. House that if the application were withdrawn no evidence of the negative recommendations would appear in her employment record with UCA.

 On February 25, 1986, Ms. House sent Dr. McChesney the following handwritten note:

This is written to inform you that I have decided to withdraw my application for promotion and my application for tenure for the 1985-1986 school year from consideration.

 [Defendants' Ex. B].

 Whether or not Dr. Martin, Dr. Hattlestad and/or Dr. McChesney told Ms. House she would be terminated after the 1986-87 school year if tenure were denied or the application were withdrawn, is in dispute. This fact, however, is immaterial to plaintiff's property interest claim because lack of notice of termination could not have given Ms. House a legitimate expectation of continued employment under the circumstances. It is undisputed that the Faculty Handbook, which plaintiff had access to and was familiar with, provides for termination in either case. Therefore, Ms. House's only legitimate expectation after she withdrew the application for ...

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