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Satcher v. U. of Arkansas Bd. of Trustees: 11th AMENDMENT | EDUCATION | CIVIL PROCEDURE - 11th Amendment immunity issue was pled, not waived; OK basis for summary judgment

1 The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1990
___________
Buford T. Satcher, *
*
Appellant, *
* On Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas
University of Arkansas at Pine *
Bluff Board of Trustees, *
Lawrence A. Davis, Jr., Mary *
Benjamin, William Willingham, *
Ebo Tei, Betty Griffith, Clifton Orr, *
*
Appellees. *
___________
Submitted: December 11, 2008
Filed: March 3, 2009
___________
Before MELLOY and BENTON, Circuit Judges, and MAGNUSON,1 District Judge.
___________
MAGNUSON, District Judge.
2 The Honorable James M. Moody., United States District Court for the Eastern
District of Arkansas.
-2-
Appellant Dr. Buford Satcher appeals from the District Courts2 grant of
summary judgment in favor of Appellee Board of Trustees of the University of
Arkansas, Pine Bluff (UAPB). We affirm.
BACKGROUND
Satcher began teaching in the History Department at UAPB in 1981. He was
given tenure in 1987. In 1999, he brought suit against UAPB, alleging that his
removal as chairman of his department violated his constitutional rights. The parties
agreed to settle the matter early in the discovery process. Defendants in that lawsuit
(many of whom were also named as Defendants in this lawsuit) paid Satcher a
nominal sum and, along with Satcher, agreed to use their best efforts to foster and
promote a spirit of harmony within the Department of Social and Behavioral
Sciences. (J.A. at 261.)
Appellee Dr. Ebo Tei was named chairman of the Department of Social and
Behavioral Sciences at UAPB in 1999. His ascension to this position gave rise to
Satchers first lawsuit. Satcher blames Tei for all of the problems within the
department and essentially contends that Tei had a personal vendetta against him.
Not long after the first lawsuit was settled, things began to unravel. According
to Satcher, Tei consistently worked behind the scenes to place Satcher in the worst
light possible to UAPB Administration and characterized Satcher as a troublemaker
. . . . (Appts Supp. Mem. at 9-10.) Appellees take a different view, cataloging
Satchers refusal to comply with or even acknowledge requests from Tei and other
UAPB administrators. For example, Satcher was required to file a report after his
sabbatical in the fall of 1999. Satcher refused to file the required report and
-3-
eventually was asked to pay UAPB back the salary he received during his sabbatical.
Satcher also refused to provide his curriculum vitae to, or meet with, members of the
accrediting team responsible for UAPBs accreditation from the National Council for
Accreditation of Teachers Education.
From 2000 to 2003, Satchers relationship with Tei and with the UAPB
administration grew more and more strained. Apparently believing that Tei was out
to get him, Satcher began filming his own classes, those of other professors, and even
student registration. He refused to attend faculty meetings. Satcher was repeatedly
reprimanded for his behavior. In response, he sent letters to Tei and to the
administration, accusing them of breaching the settlement agreement. These letters
threatened another lawsuit and contained vituperative and insubordinate language.
For example, in one letter he called Dr. Tei a charlatan and a hypocrite. (J.A. at
142-46.)
The tension came to a head in the summer of 2003. After Satcher once again
refused to provide Tei and the Dean with information they requested, Tei told Satcher
that he would not be allowed to teach any classes in the 2003 summer session.
Satcher claims that he got complaints from students that no one was teaching the class
he was originally scheduled to teach. He then went to the class and started filming the
apparent lack of an instructor. UAPB security officers removed Satcher from the
classroom. After this incident, Satcher received a letter from the Dean warning him
that further class disruptions would result in Satchers termination. In August,
however, Satcher began filming students registering for classes. Once again, UAPB
security removed him from the area.
In response to Satchers behavior, UAPBs Chancellor summoned Satcher to
a meeting on August 25, 2003. Satcher did not show up at this meeting. Thereafter,
the Dean decided to terminate Satchers employment. He scheduled a meeting with
Satcher for September 12, 2003, and sent Satcher notice of the meeting via certified
3 The Dean, Appellee William Willingham, died in the fall of 2006. He was
not deposed prior to his death.
-4-
mail, regular U.S. mail, and hand delivery. The notice informed Satcher that the
purpose of the meeting was to discuss the future of [Satchers] employment at
UAPB. (J.A. at 70, 104-105, 130, 184.) Satcher failed to show up for this meeting.
According to UAPBs employment policy, the first step in terminating the
employment of an employee with tenure is an informal meeting. The next step is
notice to the Vice Chancellor for Academic Affairs of the grounds for dismissal.
Because of Satchers failure to attend the informal meeting, the Dean proceeded to
prepare the statement of grounds for his dismissal. He sent this statement to the Vice
Chancellor and to Satcher. Satcher refused delivery of the statement. The Vice
Chancellor then forwarded the Deans termination recommendation to the Chancellor.
The Chancellor accepted the recommendation and sent notice to Satcher that his
employment was being terminated for his unwillingness to perform his duties and
fulfill his responsibilities to UAPB. The notice advised Satcher that he was entitled
to a hearing on his termination. The termination was effective one year from the date
of the Chancellors notice, or October 31, 2004. Rather than seeking a hearing
pursuant to UAPB policy, Satcher instead filed this lawsuit.
His Complaint initially claimed violations of the 1st and 14th Amendments,
Title VII, 42 U.S.C. 1981 and 1983, and state-law claims of breach of contract,
outrage, false arrest, and battery. He named as Defendants the Board of Trustees of
UAPB, Tei, the Chancellor, Vice Chancellor, and Dean,3 and another individual
whose role in the preceding events is less than clear. After motions to dismiss, the
only remaining claims were claims against the Board and Tei of 1st Amendment
retaliation, procedural and substantive due process violations, 1981 race
discrimination, and state-law claims of breach of contract and outrage. The Board and
Tei moved for summary judgment, which the District Court granted as to all of the
-5-
federal claims. The court then declined to exercise supplemental jurisdiction over the
state claims and dismissed them without prejudice.
DISCUSSION
A. Standard of Review
This Court reviews the district courts grant of summary judgment de novo.
Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 867 (8th Cir. 2008). In doing
so, we apply the same standards the district court applied, viewing the evidence in the
light most favorable to the non-moving party and giving the non-moving party the
benefit of all reasonable inferences. Id. Summary judgment is proper only when no
genuine issues of material fact remain for resolution and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c).
B. Immunity
Appellees first argue that Satcher waived any argument that they are immune
from suit under the 11th Amendment because he did not raise the argument in
opposition to the motion for summary judgment. Satcher responds that failure to
contest a point on summary judgment does not automatically entitle the moving party
to summary judgment. He offers no citation for this proposition. It was his
responsibility to show that there were genuine issues of material fact in the record that
precluded the summary judgment Appellees sought below. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986) ([A] party opposing a properly supported
motion for summary judgment may not rest upon mere allegation or denials . . ., but
must set forth specific facts showing that there is a genuine issue for trial.). It was
not the District Courts responsibility to sift through the record to see if, perhaps, there
was an issue of fact. See Rodgers v. City of Des Moines, 435 F.3d 904, 908 (8th Cir.
2006) (Without some guidance, we will not mine a summary judgment record
-6-
searching for nuggets of factual disputes to gild a partys arguments.). Contrary to
Satchers argument, failure to oppose a basis for summary judgment constitutes
waiver of that argument.
Regardless of whether Satcher waived the argument below, however, his
assertions with respect to immunity have no merit. He contends that Appellees
waived their sovereign immunity because (1) they did not raise the issue of immunity
until their motion for summary judgment, and (2) the settlement agreement in the first
lawsuit provided that Satcher could return to court to enforce that agreement.
Appellees pled sovereign immunity in their Answer to Satchers Complaint, and did
not thereafter waive it. See, e.g., Harmon Indus. v. Browner, 191 F.3d 894, 903 (8th
Cir. 1999) (finding that sovereign immunity is a jurisdictional issue that may be raised
for the first time on appeal). Satcher cites no authority for the proposition that
sovereign immunity is waived if it is not raised in a motion to dismiss. Further,
merely because the settlement agreement allowed the court to continue to exercise
jurisdiction over that agreement does not constitute a clear and unequivocal waiver of
all arguments about the courts jurisdiction in any other case Satcher might bring. See
Burk v. Beene, 948 F.2d 489, 493 (8th Cir. 1991).
Satcher has failed to establish that the district courts conclusion about
immunity was incorrect.
B. Retaliation
As with the immunity argument, Appellees contend that Satcher did not contest
their motion for summary judgment as it related to his retaliation claims, and that he
therefore waived those claims. Once again, he asserts that the District Court should
have looked through the record and should have determined that there were genuine
issues of material fact on his retaliation claims. As noted above, however, it was his
responsibility, not the District Courts, to come forward with evidence showing that
-7-
factual issues existed. His failure to do that warranted the entry of summary
judgment.
In addition, Satchers retaliation claims fail on the merits. In his Complaint,
Satcher contends that he was terminated for speaking out on matters raised in his
previous lawsuit and for his filing of a lawsuit which . . . exposed [Defendants]
illegal and discriminatory employment and hiring practices . . . . (J.A. at 43 (Compl.
20).) He attempts to expand his claims in his brief, arguing that he was terminated
for speaking in the summer session class in May 2003. Having not raised this fact in
his Complaint, he cannot rely on it now. Moreover, he cannot show a causal
connection between his allegedly protected speech and his termination. Jackson v.
United Parcel Serv., 548 F.3d 1137, 1142 (8th Cir. 2008) (to prevail on retaliation
claim, plaintiff must show causal connection between protected activity and adverse
employment action).
Even if a causal connection existed, however, Appellees have succeeded in
establishing that there was a legitimate, non-discriminatory reason for terminating
Satchers employment. See id. (applying McDonnell Douglas burden-shifting to
retaliation claims). He was insubordinate on multiple occasions, refused to attend
meetings or address the complaints about his behavior, and generally acted in a very
unprofessional manner. UAPB had many legitimate reasons for firing him; therefore
Satchers retaliation claim fails.
C. Due Process
Similarly, Satchers procedural due process claim fails. He chose not to avail
himself of the procedures UAPB had in place for pre- and post-termination hearings.
He cannot now complain that he did not receive the process he was due.
-8-
Likewise, his substantive due process claim lacks merit. To prevail on this
claim, Satcher must show that UAPB administrators acted arbitrarily and capriciously,
or in a way that shocks the conscience. Herts v. Smith, 345 F.3d 581, 587 (8th Cir.
2003). In Herts, the court found no substantive due process violation where the
evidence showed that the plaintiff was fired in part for speaking at a public hearing
on desegregation. Id. at 588. Satchers contentions with regard to his termination do
not rise to the level of a substantive due process violation.
CONCLUSION
For all of the above reasons, we conclude that the District Courts decision to
grant summary judgment to UAPB was correct.
Accordingly, we affirm.
______________________________
 

 
 
 

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