When a college cited a professor’s “noncollegial” behavior for deciding to let him go, the professor responded with allegations of anti-Asian bias. A new appellate opinion delved into qualified immunity protections and the “cat’s paw theory” of liability to sort out the dispute.
On Aug. 28, the 10th Circuit Court Appeals ruled that Emporia State University officials didn’t discriminate or retaliate against a nontenured professor when they chose not to renew his position. The plaintiff, Rajesh Singh, alleged the officials used complaints that he was noncollegial as pretext for terminating his position, when a dean’s bias against his race and national origin drove the decision to let him go, as he argued.
The 10th Circuit upheld the district court’s summary judgment ruling, however, that Singh showed insufficient evidence that the university’s given reasons for not renewing him were pretextual. It also reversed the lower court on one issue, holding that qualified immunity shielded a provost who’d punished the plaintiff after he received the plaintiff’s binder filled with allegations against the university. The provost could have reasonably believed the binder’s contents weren’t protected speech on a matter of public concern, the panel determined.
The opinion in Singh v. Shonrock gives the latest example of how, at least in the 10th Circuit, public managers might avoid liability through qualified immunity and how a grievance process might inoculate employers from cat’s paw liability.
Singh taught at Emporia State University’s School of Library and Information Management from 2009 to 2014. Through most of that time, he received generally positive performance reviews that consistently noted, however, that he was noncollegial toward colleagues. Singh, who was born in India, claimed those accusations came from the dean, Gwen Alexander, having an anti-Asian bias. He would later provide ample support from other witnesses saying the dean made off-color remarks about Asians and treated nonwhite faculty unfairly, according to the 10th Circuit opinion.
When the school’s faculty promotion committee recommended Singh’s nonrenewal in 2013, it noted not only noncollegial behavior but also deficient performance. That decision went to the dean, who agreed, and then to provost Dean Cordle. Around that time, Singh sent an ombudsman a 100-page binder of documents challenging his nonrenewal, and the ombudsman delivered that binder to Cordle. Singh then formally challenged the nonrenewal recommendation using the school’s grievance process.
Cordle sent a letter to Singh in 2014 informing the professor he’d accepted the recommendation to nonrenew him because of his “failure to work as a positive member” of the school’s team. Singh then had one year left to teach at the school. But the school changed the locks and stripped him of his teaching duties before that year was up, which Singh claimed was retaliation for having made a formal complaint.
The school’s grievance committee affirmed the decision not to renew Singh, and the school’s president upheld the committee’s decision. Singh then sued ESU, the dean, the ombudsman, the provost and the president for discrimination and retaliation under state and federal statutes.
The district court granted summary judgment for the defendant on all claims except the retaliation claim against the provost. Singh claimed Cordle retaliated against him after he had received Singh’s binder of documents alleging discrimination. Cordle appealed, arguing he was protected by qualified immunity because he didn’t know the binder constituted protected speech on a matter of public concern.
In the panel’s sole reversal, the 10th Circuit sided with the provost. He was entitled to qualified immunity because a “reasonable administrator could have believed that [Singh] was motivated primarily by personal grievance,” according to the opinion penned by Judge Harris Hartz and joined by judges Carlos Lucero and Joel Carson. “This belief may have been wrong, but so long as the error was reasonable, he is immune.”
The opinion shows public employers that 10th Circuit precedent can favor officials in instances where the line between a personal grievance and a public concern is blurry. According to the panel, the provost reasonably could have assumed Singh’s binder was addressing a personal dispute that was irrelevant to the public interest. “[I]n light of our precedents it was not contrary to clearly established law to punish [Singh] for such speech, even though the binder also addressed an issue of public concern,” according to the opinion.
But for both public and private employers, the case illustrates the value of having a multitiered grievance process to isolate the allegedly biased decision-making of a manager. Singh didn’t argue that the higher-up decisionmakers — the provost and the president — had anti-Asian bias, but that they proceeded from the dean’s bias and were the proximate cause of his termination.
Under the cat’s paw theory, a decision maker who didn’t have an unlawful motive can still be liable if they acted based on the discriminatory action of a subordinate who intended to have the employee fired. Singh had to show that reasonable jury could find that the provost and the grievance committee “relied on the allegedly biased recommendations from the [faculty committee] and Alexander instead of independently determining that nonreappointment was justified,” according to the opinion.
But what broke the causation chain in the school’s case was that the grievance committee members — some of whom were selected by Singh — reviewed 1,000 pages of evidence he submitted.
Also the provost “expressly stated that his decision was not based on the alleged inadequacies in [Singh’s] teaching and research reported by the [faculty panel] and Dean Alexander,” the panel said. “So he clearly was not following recommendations that he believed to be unsupported.”
— Doug Chartier