                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2009

Wendell Gorum v. Allen Sesoms
Precedential or Non-Precedential: Precedential

Docket No. 08-1741




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                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                No. 08-1741


        WENDELL GORUM, Ph.D.,

                                 Appellant

                      v.

ALLEN L. SESSOMS, Ph.D., Board of Trustees
       of Delaware State University



 Appeal from the United States District Court
          for the District of Delaware
   (D.C. Civil Action No. 1-06-cv-00565)
 District Judge: Honorable Gregory M. Sleet


  Submitted Under Third Circuit LAR 34.1(a)
              January 30, 2009

  Before: SCIRICA, Chief Judge, AMBRO,
         and SMITH, Circuit Judges

       (Opinion filed: March 27, 2009)
Gregg L. Zeff, Esquire
Niev E. Lindbloom, Esquire
Frost & Zeff
7 North Christopher Columbus Boulevard
Pier 5 at Penn’s Landing, 2nd Floor
Philadelphia, PA 19106-0000

      Counsel for Appellant

Robert L. Duston, Esquire
Saul Ewing
2600 Virginia Avenue, N.W.
Suite 1000 – The Watergate
Washington, DC 20037-0000

      Counsel for Appellees



                 OPINION OF THE COURT


AMBRO, Circuit Judge

       Wendell Gorum, Ph.D., appeals the District Court’s grant
of summary judgment in favor of Allen Sessoms, Ph.D.,
President of Delaware State University (“DSU”), and the DSU



                              2
Board of Trustees (the “Board”).1 Gorum alleged that Sessoms
retaliated against him for engaging in speech and association
protected by the First Amendment to the United States
Constitution.2 For the reasons that follow, we affirm the
judgment of the District Court.

I.           Factual and Procedural Background

       DSU is a public institution governed by the Board.
Sessoms served as its President from 2003 until 2008. Gorum
was a tenured professor at DSU from 1989 until his dismissal in
2005. He chaired the Mass Communications Department from
1997 until 2004. As a DSU professor, Gorum sat on various
administrative committees, including the Faculty Senate and
Student Affairs Committee, and served as an advisor to the DSU
chapter of the Alpha Phi Alpha fraternity.

       In January 2004, the DSU registrar began an audit of
recently submitted grade changes after learning of a grade


         1
       For procedural convenience, the parties stipulated to
naming and serving the Board in lieu of each Board member.
See Gorum v. Sessoms, No. 06-565, 2008 WL 399641, at *1 n.1
(D. Del. Feb. 12, 2008).
     2
       Gorum did not allege that any action by the Board was
retaliatory. Rather, he brought suit against each Board member
in his or her individual capacity solely for prospective injunctive
relief. See id.

                                 3
irregularity in the transcript of a student athlete. Through this
audit, the registrar determined that Gorum, without the
professor-of-record’s permission, had changed withdrawals,
incompletes, and failing grades to passing grades for 48 students
in the Mass Communications Department. When confronted
with these findings, Gorum admitted his actions, but asserted
that he had received sufficient authorization to make the
changes. He also claimed that grade alterations by department
chairs were common at DSU. Unconvinced, Sessoms, in
consultation with other administrators at DSU, began dismissal
proceedings and suspended Gorum.

       Gorum responded by exercising his right under the
Collective Bargaining Agreement between DSU and its faculty
to request a hearing before an Ad Hoc Disciplinary Committee.
The Committee’s review included pre-hearing discovery,
extensive hearings, and post-hearing briefing with attorney
representation. The Committee detailed its findings in a report,
which concluded that “DSU has proven by clear and convincing
evidence” that Gorum violated the Collective Bargaining
Agreement. The report specifically noted that Gorum

       [1] misrepresented information on [change-of-
       grade forms] by signing as instructor for courses
       that he did not actually teach . . . [; 2] did not
       obtain the permission or approval of the
       instructor-of-record to execute modification[s] of
       grade[s] . . . [; 3] knew that DSU practices and


                               4
       procedures did not include signing for an
       instructor-of-record without indicating this fact
       . . . [; 4] arbitrarily assigned grades to students for
       courses they were not registered in . . . [; 5]
       retroactively registered and assigned grades to
       students for classes taught by other instructors . . .
       [; 6] awarded grades to some students in classes
       that the students had never attended . . . [; and 7]
       practiced favoritism, whereby selected students,
       especially athletes[,] obtained grades in core
       courses in their major, without necessarily
       completing required course material.

The report also remarked that “Dr. Gorum’s actions undermine
the very tenets of the educational profession and rise to a level
deserving condemnation by the academic community.”

       Despite the damning nature of these findings, the
Committee did not recommend terminating Gorum because of
what it labeled “an atmosphere of pervasive laxity, lack of rule
enforcement, and the absence of accountability at all levels [of
DSU] that perpetuated and encouraged random and uncontrolled
manipulations of student grades.” Within this atmosphere, the
Committee believed that “Dr. Gorum’s case is the tip of the
iceberg, and he is, in fact, the scapegoat (albeit a blamable
scapegoat).” The Committee therefore recommended that
Gorum face only a two-year unpaid suspension, loss of his chair
position, and a probationary period thereafter.


                                 5
        Taking note of the Committee’s views, President
Sessoms nevertheless proceeded with a dismissal action against
Gorum. Writing to the Board, he opined that terminating
Gorum’s employment was “the only appropriate sanction” for
his “unprofessional” and “highly reprehensible” conduct.
Sessoms addressed the Committee’s concern that Gorum was a
scapegoat by stating: “If there are other professors who have
engaged in similar conduct, those cases will be addressed. But
nothing in the allegations of past practice comes anywhere close
to the reprehensible actions of Dr. Gorum.”

       The Board, exercising its authority under § 10.4.14 of the
Collective Bargaining Agreement, unanimously agreed with
Sessoms and voted to dismiss Gorum. Before making its
decision, the Board reviewed the report of the Committee, the
parties’ post-hearing briefs, and had access to the transcript and
exhibits from the hearings. Gorum was also given an
opportunity to address the Board, which he did not accept.

       Nearly two years after his dismissal, Gorum filed suit in
the United States District Court for the District of Delaware. He
claimed that Sessoms’s decision to recommend dismissing
him—and not merely suspending him as the Committee had
advised—was a retaliatory action intended to punish him for
engaging in speech and association protected by the First
Amendment.       Gorum specifically alleged that Sessoms
recommended terminating his employment because of views he
expressed in three instances.


                                6
       First, Gorum stated that his dismissal was retaliation for
his objection to the selection of Sessoms as University President
in 2003. Gorum explained that he had voiced opposition before
the Faculty Senate to selecting Sessoms and ending the search
for University President, and he suggested that Sessoms was
aware of his position.

        Second, Gorum claimed that Sessoms had punished him
for acting as an advisor to DaShaun Morris, an NCAA All-
American Division I-AA football player who violated DSU’s
zero-tolerance policy against weapons possession in 2002.
Gorum stated that his authorship of the DSU disciplinary code
had made him “the de facto advisor to all DSU students with
disciplinary problems,” including Morris. Gorum’s Op. Br. at
4. He noted that he helped Morris draft an appeal letter, retained
an attorney for Morris, and served as an advisor at Morris’s
disciplinary hearing. He also used his position as department
chair to intercede on Morris’s behalf with the then-President of
the University, William DeLauder, Ph.D. Gorum argued that
these acts placed him out of favor with University
administrators, including Sessoms.

       Third, Gorum contended that the decision to dismiss him
resulted from his recission of an invitation to Sessoms to speak
at the 2004 Alpha Phi Alpha Martin Luther King, Jr. Prayer
Breakfast. According to his complaint, Gorum served as chair
of the event’s speakers committee and instructed a member of
the committee to revoke an invitation to speak that the


                                7
committee member mistakenly made to Sessoms after the
committee already had selected another speaker. Gorum noted
that he later heard from several people that Sessoms “was upset
about the cancellation.” Gorum’s Op. Br. at 6.

        The District Court rejected Gorum’s claims and granted
summary judgment in favor of Sessoms and the Board. The
Court, after concluding that Gorum’s allegations were timely
and properly pleaded, held that Gorum failed to “adduce
sufficient record evidence to raise a genuine issue that: (1) his
activities were protected by the First Amendment, and (2) the
protected activity was a substantial factor in the alleged
retaliatory action.” Gorum, 2008 WL 399641, at *3 (citing Hill
v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006)). In
particular, the Court determined that the three speech-related
instances presented by Gorum occurred within the scope of his
“official duties” and were not protected by the First
Amendment. It also ruled that Gorum had failed to create a
genuine issue that Sessoms knew of his speech during the
presidential selection process or his involvement with Morris’s
appeal. See id. at *3–6. The Court held as well that Sessoms
and the Board had shown that “Sessoms would have
recommended Gorum’s termination to the Board even if Gorum
had not engaged in any activity protected under the First
Amendment.” Id. at *6. This appeal followed.




                               8
II.    Jurisdiction and Standard of Review

      The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343. We have jurisdiction under 28 U.S.C.
§ 1291.

       When the District Court grants a motion for summary
judgment, our review is plenary. See Elsmere Park Club, L.P.
v. Town of Elsmere, 542 F.3d 412, 416 (3d Cir. 2008).
Summary judgment is appropriate when no genuine issues of
material fact exist and the moving party is entitled to judgment
as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). We resolve all factual doubts and draw all
reasonable inferences in favor of the nonmoving party. See DL
Res., Inc. v. FirstEngergy Solutions Corp., 506 F.3d 209, 216
(3d Cir. 2007). We may affirm or vacate the District Court’s
judgment on any grounds supported by the record. In re
Teleglobe Commc’ns Corp., 493 F.3d 345, 385 (3d Cir. 2007).

III.   Discussion

        To state a First Amendment retaliation claim, a public
employee plaintiff must allege that his activity is protected by
the First Amendment, and that the protected activity was a
substantial factor in the alleged retaliatory action. See Hill, 455
F.3d at 241. “The first factor is a question of law; the second
factor is a question of fact.” Id. If these two elements are
satisfied, the burden shifts to the defendants to demonstrate that


                                9
the same action would occur if the speech had not occurred. See
Green v. Phila. Hous. Auth., 105 F.3d 882, 885 (3d Cir. 1997).

        Reflecting the three-part nature of this test, Gorum argues
that the District Court erred by holding that: (1) his assistance to
Morris and chairmanship of the speakers committee for the
Alpha Phi Alpha Martin Luther King, Jr. Prayer Breakfast were
not activities protected by the First Amendment; (2) his claimed
protected activities were not substantial factors behind
Sessoms’s recommendation to terminate his employment; and
(3) Sessoms would have recommended dismissing him even
absent his alleged protected activities.3 We disagree.

       A.      Gorum’s Speech Was Not Protected by the
               First Amendment

        A public employee’s statement is protected by the First
Amendment when, “(1) in making it, the employee spoke as a
citizen, (2) the statement involved a matter of public concern,
and (3) the government employer did not have ‘an adequate
justification for treating the employee differently from any other

  3
   Gorum does not contest the District Court’s holding that his
speech concerning the selection of a new University President
was neither protected under the First Amendment nor a
substantial factor in, or but for cause of, his termination. See
Gorum, 2008 WL 399641, at *5; Gorum’s Op. Br. at 29–31,
34–38. Abandonment of these issues waives them on appeal.
See Kopec v. Tate, 361 F.3d 772, 775 n.5 (3d Cir. 2004).

                                10
member of the general public’ as a result of the statement he
made.” Hill, 455 F.3d at 241 (quoting Garcetti v. Ceballos, 547
U.S. 410, 418 (2006)). Gorum cannot satisfy this test. He
particularly is unable to prove that he conducted his allegedly
protected activities as a citizen or that he spoke on a matter of
public concern.

              i.     Gorum Did Not Speak as a Citizen

       The Supreme Court held in Garcetti that a public
employee does not “speak as a citizen” when he makes a
statement pursuant to his “official duties.” 547 U.S. at 421.
“Restricting speech that owes its existence to a public
employee’s professional responsibilities,” the Court reasoned,
“does not infringe any liberties the employee might have
enjoyed as a private citizen.” Id. Put another way, the First
Amendment does not shield the consequences of “expressions
employees make pursuant to their professional duties.” Id. at
426.

       Gorum asserts that the assistance he provided to Morris
was protected citizen speech because it went beyond his
specified responsibilities in the Collective Bargaining
Agreement.4 This assertion is misguided. As the Supreme


    4
       Gorum’s Amended Complaint referred to some of his
activities to assist Morris as protected “association.” The
District Court considered the association claim, but declined to

                               11
Court has stated, the “proper inquiry” into what are an
individual’s official duties “is a practical one.” Garcetti, 547
U.S. at 424. “Formal job descriptions often bear little
resemblance to the duties an employee actually is expected to
perform . . . .” Id. We have held as well that a claimant’s
speech might be considered part of his official duties if it relates
to “special knowledge” or “experience” acquired through his
job. See Foraker v. Chaffinch, 501 F.3d 231, 240 (3d Cir.
2007).

     Under these prescriptions, Gorum’s assistance of Morris
came within the scope of his official duties. It was Gorum’s



address whether it was protected activity. See Gorum, 2008 WL
399641, at *6. On appeal, Gorum makes only a passing
reference to the speech/association distinction. See Gorum’s
Op. Br. at 34. This waives the issue. See Laborers’ Intern.
Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26
F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a party
raises it in its opening brief, and for those purposes ‘a passing
reference to an issue . . . will not suffice to bring that issue
before this court.’” (quoting Simmons v. City of Phila., 947 F.2d
1042, 1066 (3d Cir. 1991) (plurality opinion) (Becker, J.), cert.
denied, 503 U.S. 985 (1992))). Even had Gorum not waived the
issue, we note that his associational claim is linked closely
enough with his free-speech claim to justify application of the
citizen-speech and public-concern requirements. See Sanguigni
v. Pittsburgh Bd. of Public Educ., 968 F.2d 393, 400 (3d Cir.
1992).

                                12
special knowledge of, and experience with, the DSU
disciplinary code that made him “de facto advisor to all DSU
students with disciplinary problems.” Gorum’s Op. Br. at 4. It
was through his position as a professor and department chair,
moreover, that Gorum was able to aid Morris and serve as his
advisor at a disciplinary hearing. See App. at A173 (noting that,
according to the DSU Student Handbook, only a “member of the
faculty, staff or student body of the University can serve as an
advisor” at a disciplinary hearing). Gorum used University
resources to assist Morris, see id. at A305, and emphasized the
responsibility that he felt as author of the disciplinary code to
help students facing punishment. See id.5

         Gorum’s revocation of Sessoms’s invitation to speak at


   5
       When asked why he opted to assist Morris, Gorum stated:

         A: I have always done that. Students with
         difficult cases always came to me for assistance.
         Q: Is that something that you felt important to do
         as a chair and tenured professor?
         A: Yeah, I chaired the Student Affairs Committee,
         which was responsible for the drafting [of] the
         judiciary procedures. And from that perspective,
         I did it because I had been chair of the committee
         that drafted it and I knew it. And if I didn’t assist
         students, then how could I encourage other
         faculty members to do the same?


                                  13
the Alpha Phi Alpha fraternity’s Martin Luther King, Jr. Prayer
Breakfast likewise is not protected citizen speech. The Faculty
Senate Bylaws include within the responsibilities of professors
aiding “faculty and alumni involvement with student
organizations and clubs as mentors and advisors.” Gorum’s
chairmanship of the speakers committee for the fraternity’s
Prayer Breakfast fits within these responsibilities. His
withdrawal of Sessoms’s invitation to speak was not therefore
made as a citizen benefitting from the protection of the First
Amendment. It was made as a public employee engaging in his
official duties.

        In determining that Gorum did not speak as a citizen
when engaging in his claimed protected activities, we are aware
that the Supreme Court did not answer in Garcetti whether the
“official duty” analysis “would apply in the same manner to a
case involving speech related to scholarship or teaching.” 547
U.S. at 425. We recognize as well that “[t]here is some
argument that expression related to academic scholarship or
classroom instruction implicates additional constitutional
interests that are not fully accounted for by . . . customary
employee-speech jurisprudence.” Id. But here we apply the
official duty test because Gorum’s actions so clearly were not
“speech related to scholarship or teaching,” id., and because we
believe that such a determination here does not “imperil First
Amendment protection of academic freedom in public colleges




                              14
and universities.” Id. at 438 (Souter, J. dissenting).6

   6
     The full implications of the Supreme Court’s statements in
Garcetti regarding “speech related to scholarship or teaching”
are not clear. See Emergency Coal. to Defend Educ. Travel v.
United States Dep’t of the Treasury, 545 F.3d 4, 16–18 (D.C.
Cir. 2008) (Edwards, J. concurring); Judith Areen, Government
as Educator: A New Understanding of First Amendment
Protection of Academic Freedom and Governance, 97 Geo. L.J.
___ (forthcoming Apr. 2009). As a result, federal circuit courts
differ over whether (and, if so, when) to apply Garcetti’s
official-duty test to academic instructors. Compare Renken v.
Gregory, 541 F.3d 769, 773–75 (7th Cir. 2008) (granting
summary judgment to a public university because a professor’s
complaints regarding “the proper administration of an
educational grant fell within the scope of [his] teaching duties”),
with Lee v. York County Sch. Div., 484 F.3d 687, 695 (4th Cir.
2007) (declining to apply Garcetti in determining whether a
high school teacher’s bulletin board postings constituted
protected speech under the First Amendment).
         Where Garcetti’s official duty test does not apply to a
public instructor’s speech “related to scholarship or teaching,”
courts apply the traditional First Amendment protected speech
analysis established in Pickering v. Bd. of Educ., 391 U.S. 563,
569 (1968), and Connick v. Myers, 461 U.S. 138, 143–44
(1983). See Borden v. Sch. Dist. of the Twp. of East Brunswick,
523 F.3d 153, 167–71 (3d Cir. 2008). This is a two-step
analysis. The first considers whether the employee’s speech
was on a matter of public concern. Connick, 461 U.S. at 146.
If so, the second requires balancing “between the interests of the
[employee], as a citizen, in commenting upon matters of public

                                15
              ii.    Gorum’s Speech Was Not on a Matter
                     of Public Concern

        “Whether an employee’s speech addresses a matter of
public concern must be determined by the content, form, and
context of a given statement, as revealed by the whole record.”
Connick v. Myers, 461 U.S. 138, 147–48 (1983); see also Miller
v. Clinton County, 544 F.3d 542, 548 (3d Cir. 2008). “The
content of speech on a matter of public concern generally
addresses a social or political concern of the community,” thus
implicating significant First Amendment concerns. Borden v.
Sch. Dist. of the Twp. of East Brunswick, 523 F.3d 153, 169–70
(3d Cir. 2008); see also id. at 170 (providing examples of cases
involving speech that addressed matters of public concern). “In
contrast, speech on matters of purely private concern is of less
First Amendment concern” because “[t]here is no threat to the
free and robust debate of public issues; there is no potential
interference with a meaningful dialogue of ideas concerning
self-government; and there is no threat of liability causing a
reaction of self-censorship by the press.” Dun & Bradstreet,
Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759–60 (1985)
(internal quotations omitted).

       Gorum’s assistance of Morris did not involve a matter of


concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees.” Pickering, 391 U.S. at 568.

                              16
public concern. Instead, his “speech” during Morris’s
disciplinary hearing related to the personal grievance of one
student. There is no evidence in the record that Gorum even
made a public statement. There is no proof that he thought any
public policy issues were at stake. And assuming that Gorum
even raised matters of public concern in assisting Morris, “[w]e
cannot ‘cherry pick’ something that may impact the public while
ignoring the manner and context in which that statement was
made or that public concern expressed.” Miller, 544 F.3d at
550. Morris’s appeal, as Gorum stated, “was about his future as
a professional athlete.” App. at A307. It did not pertain to a
public concern.

       Gorum’s revocation of President Sessoms’s invitation
was also not a matter of public concern protected by the First
Amendment because it did not touch on “broad social or policy
issues” or “implicate[] the discharge of public responsibilities by
an important government office, agency, or institution.”
Sanguigni v. Pittsburgh Bd. of Pub. Educ., 968 F.2d 393, 397
(3d Cir. 1992). The errant invitation was made in private, as
was its recission. The only message we conjure the revocation
conveyed was that the speakers committee for the Prayer
Breakfast was unorganized.

       B.     Gorum’s Speech Was Not a Substantial Factor
              Behind Sessoms’s Allegedly Retaliatory
              Decision



                                17
       Setting aside Gorum’s inability to prove the protected
nature of his speech, he also cannot show that his remarks and
actions were substantial factors behind President Sessoms’s
alleged retaliatory decision. As the District Court found, no
evidence exists that Sessoms had any knowledge of Gorum’s
involvement in Morris’s disciplinary proceeding when he made
his recommendation. See Gorum, 2008 WL 399641, at *6.
Indeed, Gorum admitted that he could only infer that Sessoms
knew of his involvement with Morris. See App. at A304.7



   7
        The specific line of questions and answers on this point
read:

         Q: . . . Has anybody told you the president knows
         that you were involved in Mr. Morris’ lawsuit?
         ....
         A: Not that I can remember, no.
         Q: Have you ever spoken to the president . . .
         about Mr. Morris?
         A: No.
         Q: Have you seen anything in writing suggesting
         that the president knew of your involvement in
         Mr. Morris’ lawsuit?
         ....
         A: No.
         Q: Was your name ever publicly connected with
         Mr. Morris’ lawsuit . . . ?
         A: No, not directly. . . .


                                18
      The same is true of the Prayer Breakfast invitation.
Sessoms testified that he was not aware of its revocation by
Gorum, see id. at A248, and the latter offered no reliable
evidence to rebut that assertion. See id. at A481.

       In this context, Gorum’s claimed protected activities
hardly seem substantial factors in Sessoms’s recommendation.
See Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir.
2002) (“It is only intuitive that for protected conduct to be a
substantial or motivating factor in a decision, the
decisionmakers must be aware of the protected conduct.”).

      C.     Sessoms Would Have Recommended
             Terminating Gorum Irrespective of His Speech

         As a final matter, we agree with the District Court’s
conclusion that Sessoms “would have recommended Gorum’s
termination to the Board even if [he] had not engaged in any
activity protected under the First Amendment.” Gorum, 2008
WL 399641, at *6. Gorum’s disregard for the academic
integrity of DSU and his violation of students’ rights to an
impartial educational experience was “highly reprehensible, and
warrant[ed] the condemnation of the academic community at
large.” App. at A112. Acknowledging this fact, Sessoms never
wavered from his position that Gorum deserved dismissal. See
id. at A252, A256, A372–73. Sessoms’s view was shared by the
unanimous Board, as well as other professors and
administrators, and there is no evidence that he would have


                              19
recommended a lesser reprimand had Gorum not assisted Morris
or rescinded Sessoms’s invitation to speak at the Prayer
Breakfast. Thus, even absent the findings in the sections above,
Gorum’s claims fail.

IV.    Conclusion

       Gorum’s arguments are, we deem, makeweight attempts
to counter his dismissal for doctoring student grades. Gorum
violated a key part of the academic code, and this justified his
termination notwithstanding the normal protections of tenure.
We thus affirm the District Court’s grant of summary judgment
in favor of Sessoms and the Board.




                              20
