                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2018-CA-00408-SCT

DR. SANDRA LEAL

v.

UNIVERSITY OF SOUTHERN MISSISSIPPI AND
BOARD OF TRUSTEES OF STATE
INSTITUTIONS OF HIGHER LEARNING


DATE OF JUDGMENT:                         11/06/2017
TRIAL JUDGE:                              HON. ROBERT B. HELFRICH
TRIAL COURT ATTORNEYS:                    KIM T. CHAZE
                                          RICHARD D. NORTON
                                          KRISTOPHER ALAN POWELL
                                          MATTHEW D. MILLER
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   KIM T. CHAZE
ATTORNEY FOR APPELLEES:                   RICHARD D. NORTON
NATURE OF THE CASE:                       CIVIL - TORTS-OTHER THAN PERSONAL
                                          INJURY & PROPERTY DAMAGE
DISPOSITION:                              AFFIRMED - 04/02/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.

       RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

¶1.    Dr. Sandra Leal appeals the Forrest County Circuit Court’s grant of summary judgment

to the University of Southern Mississippi (USM) and the Board of Trustees of the State

Institutions of Higher Learning (IHL). Leal had brought suit against USM and the IHL for

breach of contract and disability discrimination. Because Leal has failed to demonstrate any

genuine issue of material fact and has failed to demonstrate that USM and the IHL are not
entitled to judgment as a matter of law, we affirm the decision of the Forrest County Circuit

Court.

                         FACTS AND PROCEDURAL HISTORY

¶2.      Dr. Sandra Leal was a junior faculty member at USM. After spending several years at

USM, Leal applied for tenure and promotion in 2012, but, at the recommendation of faculty

members, she deferred her application for one year. In September of 2013, she resubmitted

her application and materials. On October 4, 2013, her department voted not to recommend

her application. Leal was notified of this on October 7, 2013.

¶3.      After the departmental review, Shiao Wang, the then-chair of the department, reviewed

Leal’s application and also determined that she failed to meet the requirements for promotion

and tenure. Leal was notified of Wang’s decision on October 25, 2013. On November 8,

2013, the College Advisory Committee met and voted not to recommend her application. Leal

was notified of this on November 23, 2013. After the College Advisory Committee’s review,

the then-dean of Leal’s college, Patricia Biesiot, reviewed her application and similarly found

it deficient. Leal was notified of Biesiot’s determination on January 8, 2014. On February 5,

2014, the University Advisory Council voted not to recommend her application. Leal was

notified of that decision on February 21, 2014. Each review of her application cited an

insufficient number of publications as the primary reason for not recommending Leal’s

application.

¶4.      Following these reviews, in March of 2014, Leal wrote USM’s then-provost, Denis

Wiesenburg. Leal had suffered from rheumatoid arthritis throughout her time at USM, but,



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for the first time, she claimed it as a disability. She requested an additional year to remedy her

insufficient number of publications. Both Wiesenburg and USM’s president, Rodney Bennett,

recommended that Leal’s application be denied. Leal was notified of these determinations on

March 24, 2014, and April 30, 2014, respectively. Leal sought review of her application by

the IHL, and the IHL considered her request and ultimately rejected her application as well.

¶5.    Leal filed two lawsuits against USM and the IHL in Forrest County, Mississippi. These

suits were consolidated and alleged breach of contract and disability discrimination by USM

and the IHL. After discovery, USM and the IHL moved for partial summary judgment on

Leal’s claims made in her first complaint. The Forrest County Circuit Court granted partial

summary judgment on certain claims. Later, USM and the IHL moved for summary judgment

on Leal’s remaining claims, and the circuit court granted this motion as well. Leal now

appeals.

                                 STANDARD OF REVIEW

¶6.    This Court reviews challenges to summary judgment de novo, and we view the

evidence in the light most favorable to the nonmovant. Johnson v. Goodson, 267 So. 3d 774,

776 (Miss. 2019) (quoting Maness v. K & A Enters. of Miss., LLC, 250 So. 3d 402, 409

(Miss. 2018)). We apply Mississippi Rule of Civil Procedure 56 and review “the pleadings,

depositions, answers to interrogatories and admission on file, together with affidavits, if any,”

to determine whether there is any genuine issue of material fact and if not, whether the

movant is entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c).




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¶7.    We must determine if there are any issues of material fact: facts that “matter[] in an

outcome determinative sense.” Simmons v. Thompson Mach. of Miss., Inc., 631 So. 2d 798,

801 (Miss. 1994) (emphasis removed) (quoting Shaw v. Burchfield, 481 So. 2d 247, 252

(Miss. 1985)). Summary judgment is appropriate “where the respondent has failed ‘to make

a showing sufficient to establish the existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at trial.’” Smith ex rel. Smith v. Gilmore

Mem’l Hosp., Inc., 952 So. 2d 177, 180 (Miss. 2007) (quoting Wilbourn v. Stennett,

Wilkinson & Ward, 687 So. 2d 1205, 1214 (Miss. 1996)). When a motion for summary

judgment is made and properly supported, the party opposing summary judgment cannot “rest

upon the mere allegations or denials of his pleadings, but the response, by affidavits or as

otherwise provided in this rule, must set forth specific facts showing that there is a genuine

issue for trial.” Miss. R. Civ. P. 56(e).

                                    ISSUES ON APPEAL

¶8.    The issues on appeal are outlined below:

       I.     Were material facts in dispute regarding Leal’s claims under the
              Rehabilitation Act and, if not, were the IHL and USM entitled to
              judgment as a matter of law on her disability-related claims?

       II.    Were material facts disputed regarding Leal’s claim that her
              employment contracts were breached and, if not, were the IHL and
              USM entitled to judgment as a matter of law on her contractual
              claims?

       III.   Were material facts disputed regarding Leal’s claims that she was
              equitably entitled to employment and promotion and, if not, are the
              IHL and USM entitled to judgment as a matter of law on her
              contractual claims?



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Because Leal has failed to provide evidentiary support for any of her claims, we do not

address the IHL’s and USM’s claims of discretionary-function immunity.

                                        ANALYSIS

       I.     Were material facts in dispute regarding Leal’s claims under the
              Rehabilitation Act and, if not, were the IHL and USM entitled to
              judgment as a matter of law on her disability-related claims?

¶9.    Leal alleges throughout her brief varying iterations of claims related to discriminatory

and retaliatory treatment by the IHL and USM. She makes these claims under the federal

Rehabilitation Act, 29 U.S.C. §§ 701–18 (2012). The Rehabilitation Act “prohibits

discrimination against the disabled by recipients of federal funding, including private

organization[s].” Barnes v. Gorman, 536 U.S. 181, 185, 122 S. Ct. 2097, 153 L. Ed. 2d 230

(2002). The Rehabilitation Act also prohibits retaliation against individuals engaged in

protected activities. 28 C.F.R. § 42.503 (current through Mar.                    12,   2020),

https://gov.ecfr.io/cgi-bin/text-idx?SID=c8b50b2a7db0f45824c0d9d5f667d0aa&mc=true

&node=se28.1.42_1503&rgn=div8. Claims arising from federal law related to disparate

treatment are subject to the burden-shifting framework articulated by the United States

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.

Ed. 2d 668 (1973). Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3, 124 S. Ct. 513, 157 L.

Ed. 2d. 357 (2003). Therefore, to survive summary judgment, Leal would have to have

proffered sufficient evidence to demonstrate a prima facie case of a violation of the

Rehabilitation Act. Id. at 50.

              A.     Leal’s Discrimination Claim



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¶10.   To make a prima facie case of discrimination, Leal needed to establish facts showing

(1) that she had a disability; (2) that other than the disability she was qualified for the position

she sought; (3) that she worked for a program receiving federal financial assistance; and (4)

that she was discriminated against solely because of her disability. 29 U.S.C. § 794 (2012);

see also Cohen v. Univ. of Tex. Health Sci. Cent., 557 F. App’x 273, 277 (5th Cir. 2014)

(quoting Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007)).

¶11.   First, Leal must show that she had a disability. For purposes of determining a violation,

the Rehabilitation Act incorporates the substantive standards of the Americans with

Disabilities Act (ADA), 29 U.S.C. § 794 (2012). Under the ADA, “disability” is defined as

“a physical or mental impairment that substantially limits one or more major life activities”

or “ a record of such an impairment” or “being regarded as having such an impairment.” 42

U.S.C. § 12102 (2012).

¶12.   Leal identified rheumatoid arthritis as her alleged disability. Leal represents that USM

and the IHL have agreed in depositions and before the Equal Employment Opportunity

Commission, that Leal suffers from this disability. This is a dubious assertion, given that,

while USM and the IHL did agree that Leal suffers from rheumatoid arthritis, both

strenuously contend that she has failed to adduce any evidence that the rheumatoid arthritis

rose to the level of a disability under the Rehabilitation Act and the ADA.1




        1
         Leal represents several times in her brief that the IHL and USM agree or never
disagree that she is disabled. Her record citations following those statements demonstrate
their lack of veracity.

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¶13.   Leal’s medical records reveal that she has limited joint mobility in her arms and

shoulders and suffers from fatigue. The medical records fail to establish that she has been

“substantially limit[ed in] one or major life activities.” 42 U.S.C. § 12102 (2012). These

medical records do not disclose her condition resulted in an inability to perform any life

activities, let alone major life activities.

¶14.   Another medical record contradicts her assertions. Dr. Imad Bitar, a rheumatologist,

documented Leal’s joint immobility while opining that her condition could cause her to miss

work periodically but that she could perform all essential job functions and did not need to

work a reduced or partial schedule.

¶15.   We agree with the trial court that there is no evidence to support her claim of an ADA

disability. Thus she has failed to make a prima facie case under the Rehabilitation Act.

Because Leal did not meet the elements for a prima facie case, we affirm the trial judge’s

decision that USM and the IHL were entitled to judgment as a matter of law on her

Rehabilitation Act disability claims.

               B.      Leal’s Retaliation Claim

¶16.   To establish a prima facie case of retaliation, Leal had to adduce evidence

demonstrating that “(1) she engaged in a protected activity, (2) she suffered an adverse

employment action, and (3) a causal connection existed between the protected act and the

adverse action.” Cohen, 557 F. App’x at 277–78 (footnote omitted); see also 28 C.F.R. §

42.503    (current    through     March        12,   2020),   https://gov.ecfr.io/cgi-bin/text-idx?

SID=c8b50b2a7db0f45824c0d9d5f667d0aa&mc=true&node=se28.1.42_1503&rgn=div8.



                                                     7
¶17.   Leal alleges that the adverse employment action was the denial of her application for

tenure and promotion. Yet that denial preceded Leal’s engagement in a claimed protected

activity, i.e., asking for accommodation for her rheumatoid arthritis. There is no evidence that

Leal requested accommodation before the claim in her letter dated March 14, 2014. Leal

freely admits she never asked for accommodations before March 14, 2014. By March 2014,

Leal had already been notified that her department had voted not to recommend her for tenure

and promotion on October 4, 2013. Similarly, the College Advisory Committee met and voted

not to recommend her for tenure and promotion on November 8, 2013. This information was

forwarded to the provost and president of USM for review on January 8, 2014, and the

University Advisory Council voted not to recommend her for tenure and promotion on

February 5, 2014.

¶18.   Leal is correct that, as stated above, final employment decisions are reserved to the

IHL. But Leal failed to provide the trial court with evidence of a causal connection between

her request for accommodation and the denials of her application for tenure and promotion.

The evidence in the record clearly demonstrates the opposite. Thus, we affirm the trial court’s

grant of summary judgment in favor of USM and the IHL on Leal’s retaliation claims.

       II.    Were material facts disputed regarding Leal’s claim that her
              employment contracts were breached and, if not, were the IHL and
              USM entitled to judgment as a matter of law on her contractual
              claims?

¶19.   Leal next alleges that the IHL and USM breached her employment contract by

discriminating against her, retaliating against her, and denying her application for promotion

and tenure. To prove a breach-of-contract claim, Leal would have had to prove by a


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preponderance of the evidence that “(1) a valid and binding contract exist[ed] and (2) that [the

IHL and/or USM] has broken it or breached it without regard to the remedy sought or the

actual damage sustained.” Norman v. Anderson Reg’l Med. Ctr., 262 So. 3d 520, 527 (Miss.

2019) (citing Bus. Commc’ns, Inc. v. Banks, 90 So. 3d 1221, 1225 (Miss. 2012)). Any

material facts are facts related to these elements, and the IHL and USM were entitled to

judgment as a matter of law if those elements were not met. Gulf Coast Hospice LLC v. LHC

Grp., Inc., 273 So. 3d 721, 736 (Miss. 2019) (“[U]nless the party challenging summary

judgment produces sufficient evidence demonstrating that a disputed material fact exists,

summary judgment remains proper.”).

¶20.   The parties do not dispute that Leal entered into several employment contracts over a

seven year period with the IHL. USM was never a party to any of the contracts with Leal. The

authority to enter into those contracts is expressly provided to the IHL, not USM. Miss. Code

Ann. § 37–101–15(f) (Supp. 2019). Thus, all Leal’s contractual claims against USM fail as

a matter of law.

¶21.   Leal’s employment contracts with the IHL are single-page documents. There is no

mention of guarantees of promotion, tenure, disability accommodation, or nonretaliation for

requests of accommodation. Leal claims that the USM Employee and Faculty Handbooks

were subsumed into her contracts with the IHL and provide these assurances. This Court has

held that employee handbooks can become part of the contract of employment. See generally

Bobbitt v. Orchard, Ltd., 603 So. 2d 356 (Miss. 1992). But, when the handbook expressly

disclaims the existence of a contract, no contractual obligations arise between employers and



                                               9
employees. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 848 (Miss.

2001); Byrd v. Imperial Palace of Miss., 807 So. 2d 433, 438 (Miss. 2001).

¶22.   There are explicit disclaimers against guarantee of any contractual right associated with

promotion in academic rank, tenure, or employment in general in the handbooks. Leal does

not contest the existence of these disclaimers. As it is undisputed that the handbooks contain

these disclaimers, the IHL was entitled to judgment as a matter of law on any claims arising

from the handbooks.

¶23.   Separately, Leal claims that the policies and bylaws of the IHL are incorporated into

her contracts through the handbooks and that these guarantee accommodation of disabilities.

This is erroneous. Her employment contracts, apart from the handbooks, were made explicitly

subject to the policies and bylaws of the IHL. The policies of the IHL, as provided in the

record, incorporate the standards of the Rehabilitation Act and state that “[n]o otherwise

qualified individual with a disability as defined in [29 USCS Section 706(8)], shall, solely by

reason of his\her disability, be excluded from the participation in, be denied the benefits of,

or be subjected to discrimination under any program or activity receiving Federal financial

assistance.” (second alteration in original) (emphasis added).

¶24.   Leal notes correctly that her employment contract provided a guarantee against

discrimination as defined in the Rehabilitation Act. But Leal has failed to present evidence

supporting her contention that her condition was a disability under the Rehabilitation Act. As

such, she has failed to offer evidence to support the second prong of her breach of contract

claim, an actual breach of contract. Therefore, as the trial court held, the IHL was entitled to



                                              10
judgment as a matter of law on her claims arising from her employment contracts. The IHL

was appropriately granted summary judgment on Leal’s breach-of-contract claims.

       III.   Were material facts disputed regarding Leal’s claims that she was
              equitably entitled to employment and promotion and, if not, are the
              IHL and USM entitled to judgment as a matter of law on her
              contractual claims?

¶25.   Leal next argues that the IHL and USM are estopped from denying her tenure and from

firing her. She claims that her annual reviews and her Third Year Review assured her she was

completing the criteria necessary for tenure and that these assurances were guarantees of

tenure and promotion.

              A.      Leal’s Equitable-Estoppel Claim

¶26.   Equitable estoppel requires (1) “proof of a belief,” (2) “reliance on some

representation,” (3) “a change of position as a result of the representation,” and (4) “detriment

or prejudice caused by the change of position.” Gulf Ins. Co. v. Neel-Schaffer, Inc., 904 So.

2d 1036, 1048 (Miss. 2004) (citing Mound Bayou Sch. Dist. v. Cleveland Sch. Dist., 817 So.

2d 578, 583 (Miss. 2002)). Leal argues that her Third Year Review provided “proof of a

belief” that she was satisfying the criteria for tenure and promotion. The letter accompanying

her Third Year Review only reads that she was “making progress toward meeting tenure

requirements at The University of Southern Mississippi.” The same letter reads that “a

favorable Third Year Review does not insure [sic] tenure and that you must persevere to attain

excellence in scholarship.”

¶27.   Leal fails to provide any evidentiary support that this review, or any other statements,

were made by USM or the IHL regarding successful completion of the criteria for tenure and


                                               11
promotion. Her argument asserts only that she “believed” she was in the “process of

satisfying” the criteria for tenure, not that she already had. The evidence in the record

demonstrates instead that Leal received communications from the IHL and USM detailing

necessary progress and suggestions for improvement, including “publishing more than one

paper a year.”

¶28.   Leal has provided no evidence of a representation that she would receive promotion

or that tenure was automatic or guaranteed. Therefore, Leal has failed to articulate any change

in her position based on this nebulous belief. As such, the trial court’s grant of summary

judgment on her claim of equitable estoppel is affirmed.

                 B.   Leal’s Promissory-Estoppel Claims

¶29.   Leal also alleges promissory-estoppel claims. Promissory estoppel arises when (1) a

promise is made, (2) the promisor intended that the promise would be relied on, (3) the

promise was in fact relied upon, (4) and a refusal to enforce the promise would contradict

basic equitable principles. Miss. Dep’t of Envtl. Quality v. Pac. Chlorine, Inc., 100 So. 3d

432, 442 (Miss. 2012) (quoting C.E. Frazier Constr. Co. v. Campbell Roofing & Metal

Works, Inc., 373 So. 2d 1036, 1038 (Miss. 1979)). Again though, Leal has failed to identify

a promise. We find no error in the trial court’s grant of summary judgment regarding the

claims of promissory estoppel.

                                      CONCLUSION




                                              12
¶30.   Summary judgment was appropriately granted on all of Leal’s claims because the

record failed to support any of her claims. Therefore, we affirm the judgment of the Forrest

County Circuit Court.

¶31.   AFFIRMED.

    KITCHENS AND KING, P.JJ., COLEMAN,                            MAXWELL,         BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




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