                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-CA-01807-SCT

MELISSA WHITING

v.

UNIVERSITY OF SOUTHERN MISSISSIPPI, DR.
SHELBY THAMES OFFICIALLY AND
INDIVIDUALLY, DR. DANA THAMES
OFFICIALLY AND INDIVIDUALLY, AND DR.
CARL MARTRAY OFFICIALLY AND
INDIVIDUALLY, BOARD OF TRUSTEES FOR
INSTITUTIONS OF HIGHER LEARNING


DATE OF JUDGMENT:                         09/17/2008
TRIAL JUDGE:                              HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   KIM T. CHAZE
ATTORNEYS FOR APPELLEES:                  JOHN SIMEON HOOKS
                                          LEE P. GORE
NATURE OF THE CASE:                       CIVIL - TORTS - OTHER THAN PERSONAL
                                          INJURY & PROPERTY DAMAGE
DISPOSITION:                              AFFIRMED - 03/31/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE WALLER, C.J., DICKINSON, P.J., AND KITCHENS, J.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    Melissa Whiting appeals the Circuit Court of Forrest County’s grant of summary

judgment dismissing all claims against the Mississippi Board of Trustees of Institutions of

Higher Learning, the University of Southern Mississippi, Dr. Shelby Thames, Dr. Dana

Thames, and Dr. Carl Martray. For the reasons that follow, we affirm.
                                           Facts

¶2.   The following facts are taken verbatim from the Federal Court of Appeals’ decision

in Whiting v. University of Southern Mississippi, 451 F.3d 339, 341-43 (5th Cir. 2004).1

      In September 1996, Dr. Melissa Whiting became an assistant professor in the
      Department of Curriculum, Instruction, and Special Education in the College
      of Education and Psychology at USM. In May 1997, the Board of Trustees of
      the State Institutions of Higher Learning approved her for tenure-track status.
      From 1996-2002, Dr. Whiting and the Board executed nine-month
      employment contracts for each of the six academic years that fell during that
      period. Those contracts state that they are subject to the “laws of the State of
      Mississippi and the policies and bylaws of the Board.”

      As a member of the USM faculty, Dr. Whiting received the Faculty Handbook
      and the College of Education and Psychology Policy and Procedures for
      Tenure and Promotion. These handbooks contain language that notes “these
      procedures collectively constitute contractual due process – the sum total of
      the procedural guarantees explicit and implicit [in the tenure process].” The
      Faculty Handbook further provides for annual evaluations and, for tenure-track
      faculty, a third year review. The Handbook also states that successful tenure
      reviews neither promise nor guarantee eventual tenure, which is only obtained
      by discretionary grant of the Board of Trustees. The Faculty Handbook also
      states that decisions regarding tenure are normally communicated to the
      applicant by May 1.

      During her time at USM, Dr. Whiting received five annual evaluations, and in
      each received the highest marks in the categories of teaching, research, and
      service. These same categories are used as criteria in evaluating suitability for
      tenure and promotion. Defendants Dr. Dana Thames and Dr. Carl Martray
      prepared, reviewed, and/or signed each annual evaluation. Dr. Whiting also
      underwent a third year review, based on the same criteria, and again received
      top marks in the above categories.




      1
      After her complaint was filed in state court, the case was removed to federal court.
None of Whiting's federal claims survived the defendants' joint motion for summary
judgment in federal court, after which the case was remanded.

                                             2
At the beginning of her sixth year of employment, Dr. Whiting submitted
herself for consideration for both tenure and promotion (to associate
professor). As part of the process, she submitted a dossier documenting her
suitability for tenure and promotion. The dossier focused on the three major
areas highlighted in her prior evaluations: teaching, scholarship and
publication (research), and service. Dr. Whiting alleges that her department
chair, Dr. Thames, intentionally provided Dr. Whiting with flawed advice,
ordering her not to include certain research materials in her dossier. Dr.
Whiting further alleges that during the tenure process Dr. Thames and another
faculty member, Dr. Reeves, “began a quest to scuttle [her] career,” by
intimating that Dr. Whiting had committed academic fraud. Dr. Whiting
further alleges that Dr. Thames sought to isolate Dr. Whiting through
departmental cliques and by placing her in a separate building from the rest of
the faculty. She also alleges that Dr. Thames was displeased by Dr. Whiting’s
remarks about student rights that reflected poorly on Dr. Thames’s
administration of the department.

USM’s review of Dr. Whiting’s application began with a committee of faculty
from her department. At their meeting, questions arose over certain articles
listed in the publication section of her dossier. The committee chair and Dr.
Thames met with Dr. Whiting and requested a written response to these
questions. Dr. Whiting submitted her response, including an explanation of
the methodology and analysis used to write several of her published articles.
After the committee reconvened and considered her response, it voted to award
promotion, with six in favor, three against, and two abstentions. The
committee voted against awarding tenure, however, with six against, four in
favor, and one abstention. The committee’s summary report notes a general
agreement that Dr. Whiting wait to request tenure until she had completed her
sixth year of teaching (a tenure candidate may request deferral of the tenure
process until the seventh year of employment).

Both the committee chair and Dr. Thames notified Dr. Whiting by separate
letter of the committee’s conclusions and suggested that she consider
withdrawing her request for early tenure. Dr. Thames prepared a written
recommendation to the Dean of the College of Education and Psychology, Dr.
Carl Martray, regarding the committee’s decisions. In that report, Dr. Thames
expressed her agreement with the committee’s concerns, but informed him that
Dr. Whiting still wished to move forward with both the tenure and promotion
processes.

Dr. Whiting’s dossier, as well as the recommendation to Dean Martray and a
rebuttal letter from Dr. Whiting, came before the College Advisory Committee
(“CAC”), a group of representatives from each department in her College. The


                                      3
CAC noted the disparity between Dr. Whiting’s high marks in her annual
evaluations and the “more negative” report of the tenure and promotion
committee. After undertaking its own review of Dr. Whiting’s credentials, the
CAC concluded “that it appeared that the annual evaluations of the chairs in
the past were more optimistic than the credentials justified during many of the
years.” The CAC’s report noted concerns that Dr. Whiting’s body of work at
that time “was not adequate and did not meet college research standards.” The
CAC voted to deny tenure and promotion, each vote tallying to four against
and two in favor, with no abstentions. Dean Martray reviewed the CAC
recommendations and Dr. Whiting’s dossier, concluding that he had “no
compelling reason to recommend against the CAC’s determination.” He
transmitted Dr. Whiting’s materials to the Provost, without recommendation
for either promotion or tenure. Dean Martray notified Dr. Whiting of his
decision and included the copies of the CAC’s reports, reminding her that she
retained the option to withdraw her application and request deferral to her
seventh year.

Dr. Whiting chose to continue with the promotion and tenure process.
Accordingly, her dossier came before the University Advisory Council
(“UAC”). The UAC met twice to review her materials. On the advice of her
attorney, Dr. Whiting declined invitations to attend these meetings, and
presented UAC members with a letter alleging failures of due process and
violation of her due process rights under the Fourteenth Amendment.
Ultimately, the UAC voted to award tenure (five voted in favor, three against,
and one recusal), but did not reach a conclusion as to promotion (four in favor,
four against, and one recusal). Those votes, in addition to another
supplementary letter from Dr. Whiting, were then submitted to the Provost,
who concurred with the UAC’s recommendation as to tenure, and further
recommended promotion. He notified Dr. Whiting of his recommendation by
letter on May 17, 2002.

Dr. Whiting’s dossier thus came before University President Shelby Thames,
father of Dr. Dana Thames, who had taken that office on May 1, 2002. On
August 23, 2002, President Thames wrote to request a meeting with Dr.
Whiting to discuss concerns about her application. Dr. Whiting chose not to
meet with President Thames. On August 30, 2002, President Thames wrote
to Dr. Whiting to inform her that he would not recommend her to the USM
Board of Trustees for tenure or promotion. That letter further gave notice that
Dr. Whiting’s employment at USM would not be renewed after the academic
year ending May 2003.

Dr. Whiting appealed to the Board of Trustees on September 16, 2002. In
forwarding her request to the Board, the Commissioner of Education


                                       4
       recommended that the Board decline to consider the appeal. The Board did so
       unanimously, because Dr. Whiting had already filed suit, and notified Dr.
       Whiting of its decision by letter to her attorney on November 21, 2002.

                                    Procedural History

¶3.    On August 6, 2002, Whiting filed her complaint in the Forrest County Circuit Court,

complaining of the state law claims discussed below, and federal claims alleging deprivation

of substantive and procedural due process pursuant to Section 1983 of the Civil Rights Act

of 1964. The defendants filed their notice of removal to federal court on August 19, 2002.

The United States District Court for the Southern District of Mississippi granted summary

judgment to the defendants on all federal claims, and remanded the state claims to the Circuit

Court of Forrest County.

¶4.    Dr. Whiting appealed that decision to the Fifth Circuit Court of Appeals, which

affirmed the district court. Whiting, 451 F. 3d 339 (5th Cir. 2006). In that decision, the

Court of Appeals ruled that, pursuant to Mississippi law, the subjective expectation of the

grant of tenure did not create a protected property interest, and, as such, Dr. Whiting’s

federal claims regarding both procedural and substantive due process failed insofar as they

were based on deprivation of a property interest. Id. at 346. The federal appeals court

further found that Dr. Whiting had failed to meet her burden of production with respect to

a deprivation of a liberty interest. Id. at 348. That court also affirmed the district court’s

dismissal of Dr. Whiting’s claims regarding discrimination as a “class of one” and her claim

that she was denied tenure in retaliation for her exercise of her First Amendment rights. Id.

at 350. Ruling that the only questions left were those of state law, the federal appeals court




                                              5
affirmed the district court’s order remanding the case to the Circuit Court of Forrest County.

Id. at 352.

¶5.    Upon remand, the defendants moved for summary judgment on the remaining state

law claims, which the circuit court granted. In its Opinion and Order, the trial court, noting

a lack of clarity with respect to the claims in the complaint submitted by Dr. Whiting, ruled

first that any claim related to breach of contract was precluded as a matter of Mississippi law,

citing in a footnote the Fifth Circuit’s holding that there is no legitimate expectation of

continued employment on the part of a nontenured faculty member. See Whiting, 451 F.3d

at 344-345. The court further ruled that Dr. Whiting’s claims relating to a deprivation or

violation of her right to due process were subject to the Mississippi Tort Claims Act. The

court found that, in filing suit prior to a final decision by the Board of Trustees, Dr. Whiting

had failed to exhaust all administrative remedies.

¶6.    In addition, the trial court ruled that guarantees of due process under the Mississippi

Constitution depend on the showing of a protected property interest. The court found that

Dr. Whiting had failed to establish an issue of material fact regarding the deprivation of any

property interest. The court ruled that summary judgment was therefore proper, thereby

disposing of all claims founded upon a theory of violation of due process.

¶7.    Dr. Whiting filed her motion for reconsideration on September 25, 2008, which the

trial court denied on October 6, 2009. Dr. Whiting timely perfected this appeal from the trial

court’s grant of summary judgment to the defendants.




                                               6
                                    Standards of Review

¶8.    A trial court’s denial of a motion for reconsideration under Rule 59 or Rule 60 of the

Mississippi Rules of Civil Procedure is reviewed for an abuse of discretion. City of Jackson

v. Internal Engine Parts Group, Inc., 903 So. 2d 60, 66 (Miss. 2005); Stringfellow v.

Stringfellow, 451 So. 2d 219, 221 (Miss. 1990).

¶9.     A trial court’s grant of summary judgment is reviewed de novo. Hubbard v.

Wansley, 954 So. 2d 951, 956 (Miss. 2007). Summary judgment will be granted only when

there is no genuine issue of material fact to be decided and the moving party is therefore

entitled to judgment as a matter of law. Mink v. Andrew Jackson Cas. Ins. Co., 537 So. 2d

431, 432-33 (Miss. 1988). “A material fact is one which resolves any ‘of the issues, properly

raised by the parties.’” Strantz ex rel. Minga v. Pinion, 652 So. 2d 738, 741 (Miss. 1995)

(quoting Stegall v. WTWV, Inc., 609 So. 2d 348, 351 (Miss. 1992)). To withstand summary

judgment, the party opposing the motion must present sufficient proof to establish each

element of each claim. Galloway v. Travelers Ins. Co., 515 So. 2d 678, 684 (Miss. 1987).

Further, he must present more than a mere scintilla of colorable evidence to support his

claims. Luvene v. Waldrup, 903 So. 2d 745, 748 (Miss. 2005). Additionally, the party

opposing summary judgment “may not rest upon the mere allegations or denials of his

pleadings, but his response . . . must set forth specific facts showing that there is a genuine

issue for trial.” M.R.C.P. 56(e). The evidence must be sufficient that a fair-minded jury could

return a favorable verdict. Id. The mere allegation of material fact is insufficient to generate

a triable issue of fact and avoid summary judgment. Palmer v. Biloxi Reg'l Med. Ctr., 564

So. 2d 1346, 1356 (Miss.1990). Specifically, “the plaintiff may not rely solely upon the

                                               7
unsworn allegations in the pleadings or ‘arguments and assertions in briefs or legal

memoranda.’” Id. (quoting Magee v. Transcon. Gas Pipe Line Corp., 551 So. 2d 182, 186

(Miss. 1989)). In summary, if a genuine issue of material fact is found, the trial court shall

deny summary judgment; otherwise, the trial court shall grant the motion where the movant

is entitled to judgment as a matter of law. M.R.C.P. 56(e); Miller v. Meeks, 762 So. 2d 302,

304 (Miss. 2000) (citing Brown v. Credit Center, Inc., 444 So. 2d 358, 362 (Miss. 1983)).

                                            Analysis

¶10.   Dr. Whiting’s argument may be summarized as follows: First, her claim is based upon

a breach of contract theory and therefore is not procedurally barred by the requirement of the

MTCA that all administrative remedies must be exhausted. Second, she argues that the

faculty handbook, taken as an integral part of her contract with the Board, guarantees

procedural and substantive due process with respect to her application for tenure. She argues

further that the defendants – specifically Dr. Shelby Thames, then president of the university,

and Dr. Dana Thames – acted in bad faith, and were motivated by bias or animus against her,

in sabotaging her qualifications, refusing to recommend tenure, and refusing to rule on her

tenure application once it had reached the president’s office. She argues that her claim is not

based on an expectation of future employment but upon a contractually guaranteed right to

due process. Finally, she argues that this Court should grant injunctive relief and should order

a fair hearing on her tenure application.

¶11.   The defendants contend in turn that the trial court did not err in ruling that the MTCA

erected a procedural bar to Dr. Whiting’s filing suit prior to an appealable ruling from the

Board. Further, they argue that injunctive relief is not appropriate because Dr. Whiting

                                               8
cannot show any imminent threat of irreparable harm that is not otherwise addressed and is

without an adequate legal remedy.

¶12.   Briefly restated for clarity, Dr. Whiting concedes that she had no legitimate

expectation of tenure as a result of her prior tenure-track employment contracts, but argues

instead that the actions of then-President Thames and the Board in refusing to rule timely on

her application, and by implication, grant her tenure, constituted a violation of her rights to

procedural and substantive due process. She further argues that the Circuit Court of Forrest

County erred in ruling that the MTCA’s requirement that all administrative remedies be

exhausted prior to her bringing suit against the State or its agency meant that her claim was

procedurally barred. Specifically, she alleges that the MTCA does not apply to claims based

upon an alleged breach of contract.

¶13.   To the extent that Dr. Whiting’s claims are based purely upon a breach of contract

theory, we find that, as a matter of law, that no contract was formed between Dr. Whiting and

the Board with respect to an offer of tenure. Further, the Fifth Circuit Court of Appeals’s

ruling that Dr. Whiting had no protected property interest that entitled her to due process

considerations is applicable here, as the analysis of due process considerations under the

Mississippi Constitution is coextensive with federal law on this point.

¶14.   It is, of course, a basic principle of the law of contracts that a contract is not formed

between the parties absent the essential elements of offer, acceptance, and consideration.

Gatlin v. Methodist Med. Ctr., Inc., 772 So. 2d 1023, 1029 n.3 (Miss. 2000) (citing Putt v.

City of Corinth, 579 So. 2d 534, 538 (Miss. 1991)). Insofar as Dr. Whiting’s claim relates

to a guarantee of tenure, that argument is without merit in that the Board, the only entity

                                               9
capable of forming a valid employment contract with her, never made to Dr. Whiting an offer

of a tenured position. It is settled law in this state that the subjective expectation of tenure

does not create a property interest that is guaranteed by the right to substantive and

procedural due process. Wicks v. Miss. Valley State Univ., 536 So. 2d 20 (Miss. 1988).

¶15.   At the core, Dr. Whiting’s argument, to the extent that it makes out a specific claim

for relief, is that her contract with the Board, as memorialized in the handbook, guaranteed

a fair and impartial hearing with respect to her tenure application, and the defendants denied

her that opportunity. While she attempts to characterize these claims as breach of contract,

a fair reading of the facts of this case and the manner in which Dr. Whiting lays out her

argument establish that if there were a claim to be made, it would be for tortious breach of

contract and tortious interference with contract. As such, the claims made against the Board

or the university are governed by the provisions of the MTCA.

¶16.   The MTCA provides, in relevant part, that the state, and by extension the Board, is

       immune from suit at law or in equity on account of any wrongful or tortious
       act or omission or breach of implied term or condition of any warranty or
       contract, including but not limited to libel, slander or defamation, by the state
       or its political subdivisions, or any such act, omission or breach by any
       employee of the state or its political subdivisions, notwithstanding that any
       such act, omission or breach constitutes or may be considered as the exercise
       or failure to exercise any duty, obligation or function of a governmental,
       proprietary, discretionary or ministerial nature and notwithstanding that such
       act, omission or breach may or may not arise out of any activity, transaction
       or service for which any fee, charge, cost or other consideration was received
       or expected to be received in exchange therefor.

Miss. Code Ann. § 11-46-3(1) (Rev. 2002). We have interpreted the phrase “any wrongful

or tortious act or omission or breach of implied term or condition of any warranty or

contract” to mean that the MTCA covers both tortious breaches of contract and breaches of

                                              10
implied terms and warranties of a contract. City of Jackson v. Estate of Stewart ex rel.

Womack, 908 So. 2d 703, 710 (Miss. 2005). The MTCA, of course, provides a limited

waiver of immunity for claims arising from tortious acts of governmental agencies and their

employees. Miss. Code Ann. § 11-46-5(1) (Rev. 2002). Recovery is limited by statute to

$500,000. Miss. Code Ann. 11-46-15(1)(c) (Rev. 2002).

¶17.   The MTCA further provides that notice of a claim must be brought only after all

administrative remedies have been exhausted. Miss. Code Ann. § 11-46-11 (Rev. 2002).

This Court previously has held that, with respect to a contract for employment with an entity

governed by the Board of Trustees of State Institutions of Higher Learning, failure to

complete the internal grievance process for an alleged wrongful termination does not satisfy

the requirement that administrative appeals be exhausted for purposes of the MTCA. Harris

v. Miss. Valley State Univ., 873 So. 2d at 988 (Miss. 2004).

¶18.   The Mississippi Constitution provides that responsibility for the management and

control of the institutions of higher learning of this state is vested in the Board of Trustees

of State Institutions of Higher Learning (“the Board”). Miss. Const. art. 8, § 213A. That

section provides, in relevant part:

       [The] board shall have the power and authority to elect the heads of the various
       institutions of higher learning, and contract with all deans, professors and other
       members of the teaching staff, . . . for a term not exceeding four (4) years; but
       the board may terminate any such contract at any time for malfeasance,
       inefficiency or contumacious conduct, but never for political reasons.

Miss. Const. art. 8, § 213A. In addition, Mississippi Code Section 37-101-15(f) (Rev. 2007)

states, in relevant part, “[t]he Board shall have the power and authority to . . . contract with




                                              11
all deans, professors, and other members of the teaching staff . . . for a term of not exceeding

four (4) years.”

¶19.   A valid employment contract with the University of Southern Mississippi cannot exist

unless and until the Board of Trustees of State Institutions of Higher Learning approves a

nomination by the university’s president. As a matter of statute, this is the only valid avenue

for the creation of a valid contract for employment. Bruner v. Univ. of S. Miss., 501 So. 2d

1113, 1115 (Miss. 1987). All contracts, therefore, entered into with instructors or professors

at the university properly are construed as contractual agreements with the Board and not

with the several institutions it supervises or their respective employees. The university and

its officers, notwithstanding the fact that they act as agents of the Board, are not parties to

any contract formed between the Board and Dr. Whiting. The university and the other

defendants named in their individual capacities therefore are free of liability with respect to

whatever contractual obligations the Board may have undertaken with respect to Dr. Whiting.

¶20.   With respect to contracts of employment, contractual obligations may arise from, and

the provisions of a contract may be modified by, employee manuals. Bobbitt v. The

Orchard, Ltd., 603 So. 2d 356 (Miss. 1992). The Board, in general, outlines general policies

regarding faculty promotion and tenure that are supplemented by more specific policies at

the university level. To determine what rights to procedural due process arose as a result of

Dr. Whiting’s contractual relations with the Board, it is necessary to examine the university’s

provisions regarding the grant of tenure and the application process as outlined in the

handbook that was provided to Dr. Whiting. The substantive policy of the university is




                                              12
outlined in Chapter X of the handbook, and the procedure is outlined in Chapter XI, entitled

“Faculty Personnel Actions: Procedure and Contractual Due Process.”

¶21.   The faculty handbook that is part of the record on appeal defines contractual due

process as “the sum total of the procedural guarantees, explicit and implicit, afforded by a

contracting employer to a contracting employee for the regulation and enforcement of the

substantive terms of employment.” These guarantees refer, with respect to the grant or denial

of tenure, to the internal review process that culminates in a recommendation by the president

to the Board and the candidate’s ability to appeal an adverse decision.

¶22.   Speaking directly to the substantive rights regarding a tenure-track position, the

handbook defines academic tenure as “a qualified expectation of continuing employment.”

It further states: “. . . academic tenure is a privilege granted on a basis of professional

promise and value within the structure of goals and objectives pursued by academic units of

appointment by schools, divisions, and colleges of which academic units of appointment

might be component parts; by the University; and by the Board of Trustees.” The handbook

also provides that the process by which application for tenure is reviewed resides primarily

at the departmental level. A tenured faculty member may be removed only for cause, and

the dismissal of a tenured faculty member is subject to its own procedural guarantees.

Tenured faculty are “protected against involuntary suspension or termination of employment

except upon stipulated grounds and in accordance with specified procedures.” In summary,

once a faculty member has been granted tenure, she has a legitimate qualified expectation of

continued employment, the statutory bar to appointments longer than four years’ length

notwithstanding.


                                             13
¶23.   According to the handbook, the president is delegated exclusive authority over all

personnel nominations and recommendations to the Board, which in turn retains sole

authority to execute those nominations and recommendations.           The president’s legal

responsibility in this regard is explicitly nondelegable.         That nondelegable legal

responsibility notwithstanding, the Board Policies and Bylaws, as cited in the handbook,

require the “University President to establish institutional bodies and to define and follow

contractual due process in all institutional deliberations involving tenure and dismissal.”

¶24.   In the College of Education and Psychology, the application process begins, after the

applicant’s notice to the departmental chair, with a recommendation by secret ballot of a

representative tenure and promotion committee of the applicant’s department.             The

recommendation of that committee is passed on to the College Advisory Committee for

Promotion and Tenure, composed of elected, tenured members of the faculty. After a full

and confidential review of the applicant’s dossier, evaluations, service record, and any other

materials that are deemed relevant, the College Advisory Committee votes on whether to

recommend or deny tenure, and that recommendation is forwarded to the dean of the College.

If the recommendation is negative, the candidate may withdraw her dossier from further

consideration by notifying the dean within five working days of the dean’s receipt of the

dossier from the College Advisory Committee. The dean conducts further de novo review

of all personnel recommendations.

¶25.   Assuming the dossier is not withdrawn, the dean then will forward the dossier to the

University Advisory Committee (“UAC”). The UAC is composed of the chairs of the

College Advisory Committees, and serves as an advisory body to the provost of the


                                             14
University, the chief academic officer for the University. One of the functions of the UAC

is “to review the merits of faculty members recommended for promotion in rank and for

academic tenure, assuring general uniformity of standards within the University, and

submitting favorable or unfavorable judgments to the Provost.” To promote the neutral

character of the review process, the handbook provides that members of the University

Advisory Committee must recuse themselves from any personnel matter concerning a faculty

member of the college they represent. Further de novo review is conducted by the provost

(the chief academic officer for the University), who then transmits his recommendation to

the president. The president then is responsible for a further level of de novo review prior

to submitting his recommendations to the Board. To summarize, five levels of independent

and de novo review occur prior to the application to the Board of a candidate for tenure, and

the Board has exclusive authority to grant tenure and form contracts for employment.

¶26.   The handbook provides a separate vehicle for appeals by aggrieved personnel. A

faculty member may appeal any recommendations or other personnel actions, including

termination and denials of tenure, at any point and from any body making the

recommendation, to the person or committee having oversight of the deciding body, as

outlined above. More specifically, an aggrieved faculty member may appeal any action

directly to the Board of Trustees. The handbook, citing the Board Policies and Bylaws, states

that upon receiving appeals, the Board reviews all relevant documentation and “determines

1) if established substantive and procedural employment policies and procedures were

followed within the University, and 2) if the personnel decision was arbitrary and

capricious.”


                                             15
¶27.   Here, Dr. Whiting does not dispute that she did not wait for a final decision from the

Board regarding her tenure application, and neither does she dispute that the president has

substantial discretion over final recommendations regarding tenure decisions, or that the

Board has final discretionary authority over all personnel matters. She alleges merely that

the president refused to give her application a fair hearing because his familial relationship

with her departmental chair biased him against her application. She makes this allegation

without any evidentiary support beyond her suspicion as articulated in her deposition and in

the pleadings and motions incorporated in the record.

¶28.   Dr. Whiting consistently overlooks that the tenure review process involves several

layers of functionally independent review. At no point during the review process, prior to

the provost’s recommendation, was there anything that resembled a broad consensus, much

less unanimity, among the review committees, even after Dr. Whiting had sent letters

attempting to rebut allegations that her research dossier, at that point, was not strong enough

to warrant a grant of tenure. Dr. Whiting’s failure to meet with the president, which she said

was on the advice of her attorney, does nothing to support her contention that she was

deprived of a fair hearing. As she cannot show that either President Thames or the Board

acted outside their duly-authorized discretion in denying her application for tenure, her

contention that they breached an obligation to provide due process to her is without merit.

¶29.   To the extent that her claims are based on an alleged violation by the Board of her

rights to due process as guaranteed by the Mississippi Constitution, this argument also is

without merit. It is clear that there is no legitimate expectation of employment for a

nontenured faculty member that creates a protected interest. Wicks, 536 So. 2d at 23 (Miss.


                                              16
1988). Written tenure policies do not, of themselves, create or confer an expectation of

continued employment. Id. Dr. Whiting, contrary to the explicit statements of the handbook,

asserts that the policies as outlined created a legitimate expectation of the grant of tenure.

As this argument is in plain conflict with the facts that the grant of tenure is within the sole

discretion of the Board and the sole power to transmit recommendations rests with the

university president, it is without merit.

¶30.   Dr. Whiting further attempts to escape her obligation to exhaust her administrative

remedies by arguing that injunctive relief is categorically unaffected by the MTCA. Citing

Greyhound Welfare Foundation v. Mississippi State University, 736 So. 2d 1048 (Miss.

1999), she argues that the MTCA does not extend sovereign immunity to claims asking for

injunctive relief. That exception does not apply here. Generally, mandatory injunctive relief

is applicable only when there is an imminent threat of irreparable harm and there is no

adequate remedy at law. Punzo, 861 So. 2d at 348. Relief should be granted only where it

is reasonably practicable. Id. The injunctive relief for which Dr. Whiting is asking is, in

essence, for a judicial mandate that the University provide her a tenured position. As it is

clear that the procedural guarantees, as crafted by Board and university policy and as

outlined in the handbook, do not create an automatic right to tenure, injunctive relief is not

appropriate, and this request is without merit.

                                         Conclusion

¶31.   Dr. Whiting failed to wait for a final decision by the Board regarding approval of her

application for tenure prior to filing suit. Her claims based on tortious conduct in general,

tortious breach of contract in particular, and breach of an implied contractual term or

                                              17
warranty are foreclosed by her failure to adhere to the requirement of the Mississippi Tort

Claims Act that all administrative remedies be exhausted prior to filing suit. Further, Dr.

Whiting failed to meet her burden of production in response to the defendants’ summary

judgment motion to show that there was a genuine issue of material fact that would prevent

the trial court’s concluding that the defendants were entitled to judgment as a matter of law.

This Court therefore affirms the Circuit Court of Forrest County’s grant of summary

judgment.

¶32.   AFFIRMED.

    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR,
CHANDLER, PIERCE AND KING, JJ., CONCUR.




                                             18
