     Case: 10-30894     Document: 00511564439         Page: 1     Date Filed: 08/08/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           August 8, 2011

                                       No. 10-30894                        Lyle W. Cayce
                                                                                Clerk

ARTHUR E. STALLWORTH,

                                                  Plaintiff–Appellant
v.

RALPH SLAUGHTER, President, Southern University & Agricultural &
Mechanical University; JOHNNY G. ANDERSON, Chairman of the Board of
Supervisors of Southern University; RICHARD J. CARLTON, JR.; WARREN
A. FORSTALL; DALE N. ATKINS; LEA D. MONTGOMERY; HERMAN LEE
HARTMAN, SR.; LOUIS MILLER; MURPHY NASH, JR.; E. JEAN WARE;
ACHILLES WILLIAMS; MYRON K. LAWSON; TONY M. CLAYTON;
REVEREND SAMUEL C. TOLBERT, JR.; MARY RIDEAU DOUCET;
REVEREND JESSE B. BILBERRY; AFI C. PATTERSON; FRED PITCHER,
Chancellor, Southern University Law Center; BOARD OF SUPERVISORS
OF SOUTHERN UNIVERSITY AND AGRICULTURAL AND MECHANICAL
COLLEGE,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 3:07-CV-886


Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                No. 10-30894

      Arthur E. Stallworth, a tenured professor and former Vice Chancellor at
Southern University Law Center (“SULC”), brought this § 1983 action against
the Board of Supervisors (the “Board”) of Southern University (“SU”); the
members of the Board; Ralph Slaughter, the President of SU; and Freddie
Pitcher, the Chancellor of SULC; for violating his substantive and procedural
due-process rights. In his complaint, Stallworth alleges that the defendants
(1) wrongfully deprived him of a salary increase that Pitcher had promised to
him, and (2) improperly reduced his salary after he left the post of Vice
Chancellor to return to a full-time teaching position. He asserts that both
deprivations were arbitrary and that he did not receive adequate notice or a
hearing before his salary was reduced. His complaint also contains several
related claims under Louisiana state law.
      The district court awarded summary judgment to the defendants. With
one modification, we affirm.
              I. FACTUAL AND PROCEDURAL HISTORY
      Stallworth joined the SULC faculty in 1991 as a nontenured Associate
Professor with a nine-month appointment. In 1993, he was promoted to Full
Professor, awarded tenure, and appointed to the administrative post of Vice
Chancellor of SULC.    Stallworth’s new joint position was a twelve-month
appointment with a starting salary of $88,007 per year. It is undisputed that
teaching positions are nine-month appointments and administrative positions
are twelve-month appointments at SULC.
      In January 2005, Stallworth advised Chancellor Pitcher that he was
considering leaving the post of Vice Chancellor and returning to a full-time
teaching position. In May 2005, however, Pitcher asked Stallworth to serve as


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                                      No. 10-30894

Vice Chancellor for at least one more year. Several weeks later, in June 2005,
Stallworth notified Pitcher that he would be willing to stay on as Vice
Chancellor, but only if he were to received a salary increase from $130,725 per
year (which was his base salary at the time) to over $159,000 per year. Later
that month, Pitcher informed Stallworth that President Slaughter “would not
approve” the requested salary, and Pitcher offered a 10% raise instead. After
some haggling over the exact amount, Stallworth and Pitcher agreed on a salary
of $143,797 per year in exchange for Stallworth continuing to serve as Vice
Chancellor for one more year.1
       Before Pitcher could submit the salary increase to Slaughter and the
Board for approval, Hurricane Katrina struck Louisiana, and the Governor of
Louisiana issued an executive order imposing a hiring and spending freeze on
all executive agencies, including SU and SULC. When the freeze was lifted in
spring 2006, Pitcher did not submit the salary increase for approval. Stallworth
never received the promised salary increase.
       Stallworth served as Vice Chancellor until the end of June 2006, when he
voluntarily resigned and moved to a full-time teaching position. Around this
time, Pitcher informed Stallworth that his total salary would be reduced by 20%
in accordance with an SU policy of reducing the salaries of administrators who
move from twelve-month administrative appointments to nine-month teaching
appointments. Stallworth protested, arguing to Pitcher that he had not been
told of such a policy when he had been appointed Vice Chancellor. In response,


       1
        In their brief on appeal, the defendants dispute that Pitcher ever agreed to increase
Stallworth’s salary. But, at summary judgment, “all fact questions are viewed in the light
most favorable to the nonmovant”—in this case, Stallworth. Tewari De-Ox Sys., Inc. v.
Mountain States/Rosen, L.L.C., 637 F.3d 604, 609 (5th Cir. 2011).

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Pitcher decided to reduce Stallworth’s salary by only 10%, telling Stallworth that
it was “the best that he could do.”              In August 2006, Pitcher formally
recommended to the Board that Stallworth’s salary be decreased from $130,725
per year (on a twelve-month basis) to $128,535 per year (on a nine-month basis).2
The Board approved the recommendation at its November 2006 meeting.
Stallworth alleges that he was not given adequate notice of this meeting.
       In December 2006, Stallworth availed himself of SU’s grievance
procedures. His grievance was denied by Pitcher and Slaughter. In January
2008, Stallworth appealed to the Board, which scheduled the grievance for
hearing at its February 29 meeting. On February 8, Stallworth’s attorney sent
a letter to the Board reiterating Stallworth’s complaints, requesting a hearing,
and stating that he and Stallworth would be unable to attend the February 29
meeting. At the meeting, which neither Stallworth nor his attorney attended,
the Board’s Executive Committee recommended that Stallworth’s request for a
hearing be denied, and the Board approved that recommendation.
       In November 2008, Stallworth brought this lawsuit against Pitcher,
Slaughter, the Board, and the individual members of the Board. According to
the complaint, the defendants are named “in their official capacities” only.
Stallworth seeks “recovery of all lost salary and benefits” and “reinstate[ment],”
i.e., the unwinding of the salary reduction and the approval of the promised
salary increase going forward. His complaint contains three sets of claims:



       2
         Stallworth’s post-reduction salary of $128,535 was calculated by deceasing his pre-
reduction salary of $130,725 by 10% (to $117,653) and then by adding a 5% across-the-board
increase approved by the Louisiana legislature (to $123,535) and a $5,000 merit increase
approved by the Board (to $128,535). Because Stallworth was eligible for those two increases
irrespective of his change in position, the amount of the reduction was about $13,700.

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                                      No. 10-30894

(1) § 1983 claims seeking declaratory and prospective injunctive relief for
violations of substantive and procedural due process under the Fourteenth
Amendment; (2) state-law claims seeking declaratory and prospective injunctive
relief for breach of contract and violations of due process under the Louisiana
Constitution; and (3) state-law claims seeking money damages for breach of
contract and the “improper reduction of the Plaintiff’s salary.”3 His theories of
liability on his due-process claims are that the defendants failed to give him
adequate notice of the November 2006 Board meeting at which the salary
reduction was approved, and that both the salary reduction and the denial of the
promised salary increase were arbitrary and not reasonably related to a
legitimate governmental interest.
       The defendants moved for summary judgment, arguing that Stallworth’s
claims were precluded by the Eleventh Amendment and qualified immunity.
The district court agreed with this argument, granted summary judgment in
favor of the defendants, and dismissed Stallworth’s case with prejudice.
Stallworth now appeals.
                           II. STANDARD OF REVIEW
       “We review a grant of summary judgment de novo and apply the same
legal standard as the district court.” Tewari De-Ox Sys., Inc. v. Mountain
States/Rosen, L.L.C., 637 F.3d 604, 609 (5th Cir. 2011) (citation omitted).
Summary judgment is proper when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). We may affirm a grant of summary


       3
        The Board (as an institution) is only a defendant with respect to Stallworth’s state-
law claims.

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judgment “on any basis supported by the record.” TIG Specialty Ins. Co. v.
Pinkmonkey.com Inc., 375 F.3d 365, 369 (5th Cir. 2004) (citation omitted).
                                III. ANALYSIS
A.      Section 1983 Claims
        The district court dismissed Stallworth’s § 1983 claims on the basis of
qualified immunity. Stallworth argues on appeal that the district court erred in
dismissing the claims on this basis because qualified immunity it not available
to defendants who have been sued in their official—rather than their
personal—capacities.
        Stallworth is correct that under Supreme Court case law, the personal
defense of qualified immunity does not apply to official-capacity claims. See
Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 483 (5th Cir.
2000) (citing Kentucky v. Graham, 473 U.S. 159, 166–67 (1985), and Hafer v.
Melo, 502 U.S. 21, 25 (1991), as holding that qualified immunity is “inapplicable
in § 1983 suits against government officials in their ‘official capacity’”).
Stallworth’s complaint expressly names the defendants “in their official
capacities” only. Further, the relief he seeks involves compensation decisions
that fall squarely within the official decision-making authority of the Board
members, President Slaughter, and Chancellor Pitcher. Therefore, Stallworth’s
§ 1983 claims are official-capacity claims that may not be dismissed on the basis
of qualified immunity.
        Nonetheless, we may affirm the judgment of the district court on any
ground supported by the record. TIG Specialty, 375 F.3d at 368. We do so today
on the ground that Stallworth has failed to create a genuine dispute of material




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                                 No. 10-30894

fact as to whether he had a constitutionally protected “property interest” in
either the promised salary increase or the part of his salary that was cut.
      To prevail on his § 1983 claims for the denial of procedural or substantive
due process, Stallworth must show that he has been denied a constitutionally
protected property interest. See Lollar v. Baker, 196 F.3d 603, 607 (5th Cir.
1999) (“To show a due process violation in the public employment context, the
plaintiff must first show that [he] had a legally recognized property interest at
stake.”). To enjoy a property interest in employment, an employee must have
“a legitimate claim of entitlement,” created and defined by “existing rules or
understandings that stem from an independent source such as state law.” Bd.
of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). “An expectation of
employment carries with it some protected expectations as to a salary.”
Williams v. Tex. Tech Univ. Health Scis. Ctr., 6 F.3d 290, 293 (5th Cir. 1993).
“But the more detailed and conditional the understanding becomes between
employer and employee, the weaker the linkage becomes between those
understandings and the Due Process Clause.” Id. at 293 (citing Mangaroo v.
Nelson, 864 F.2d 1202, 1206–08 (5th Cir. 1989)).
      Regarding his claim for the denial of the promised salary increase,
Stallworth asserts a property interest based on the handshake deal he made
with Pitcher in June 2005. We disagree that this informal and incomplete
agreement created a legitimate claim of entitlement in the promised salary
increase. Stallworth’s salary increase was never approved by the SU Board, and
such approval is expressly mandated by several “independent sources” of law.
For example, § 17:3305(A) of the Louisiana Revised Statutes states:
      The head of each college and university shall appoint and fix the
      salaries and the duties of the members of the faculty and

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      administrative and professional staff for the college or university he
      heads, subject to the recommendation of the president or chief
      administrative officer of the system and approval of the appropriate
      management board.
LA. REV. STAT. ANN. § 17:3305(A) (emphasis added). Likewise, the Board’s
bylaws and SULC’s 2005–2006 Faculty Guide both provide that the SULC
Chancellor has the duty to “fix the salaries and duties” of SULC faculty and
administrators, but that such responsibility is “subject to the recommendation
of the President and the approval of the Board.” In his deposition, Stallworth
admitted that he knew that the establishment of a particular salary for the
position of Vice Chancellor had to be submitted to the Board for individual
approval. He also testified that he understood that his salary increase would not
be complete until the Board approved it.
      In other words, both Louisiana state law and SU’s own regulations
imposed an explicit condition—Board approval—on the salary increase. This
condition was known to Stallworth, and, for whatever reason, it did not occur.
We thus find that Stallworth did not have a legitimate claim of entitlement in
the promised salary increase because it had not been approved by the Board.
See Hoffmans v. Univ. of Tex. at El Paso, 22 F.3d 1093, 1994 WL 198869, *2 (5th
Cir. 1994) (per curiam) (unpublished) (holding that a university professor did not
have a cognizable property interest in an expected pay raise because her
expectations were conditioned by the fact that her appointment had to approved
every year by the Board of Regents).
      As for the salary reduction, Stallworth contends that because he has
tenure as an SULC faculty member, he has a heightened expectation—and thus
a protected property interest—in the whole of his salary. Putting aside the


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question of whether the fact of tenure alone creates a property interest in the
whole of one’s salary, we find that Stallworth has failed to present sufficient
evidence showing that he had tenure in his continued employment as Vice
Chancellor. Other than his own unsubstantiated, conclusory assertion to the
contrary, the record does not contain any evidence showing that Stallworth had
tenure in his administrative post. Indeed, the only relevant evidence in the
record—the Personnel Action Form from 1993 that memorializes Stallworth’s
promotion to Full Professor, receipt of tenure, and appointment as Vice
Chancellor—indicates that Stallworth did not have tenure in his administrative
post: the notation of the award of tenure directly follows the notation of the
status change to Full Professor. By contrast, the notation of his appointment to
the Vice Chancellor position is on a different line and is not linked to any
reference to tenure.
      Nor is there any other record evidence that suggests that Stallworth had
a heightened expectation in his employment as Vice Chancellor (and therefore
in the portion of his salary that was attributable to his employment as Vice
Chancellor).   Rather, common sense dictates that Stallworth should have
expected that SU would likely reduce the salary of an administrator who
relinquishes his administrative duties and, in doing so, exchanges a twelve-
month appointment for a nine-month appointment. While in this case it is
difficult to isolate the portion of Stallworth’s salary that is attributable to his
work as Vice Chancellor (because he was paid in one lump sum), we have no
difficulty finding on the basis of the record before us that the 10% decrease that
Stallworth suffered as a result of his voluntarily relinquishing the Vice




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Chancellor position did not impinge on any constitutionally protected property
interest in his salary as a tenured professor.4
B.      State-Law Claims
        The district court dismissed Stallworth’s state-law claims for money
damages on the basis of Eleventh Amendment immunity, and it declined to
exercise supplemental jurisdiction over his remaining state-law claims for
declaratory and injunctive relief. Stallworth abandoned his challenge to the first
ruling at oral argument, and he has not appealed the second. Thus, the only
issue that remains alive on appeal is whether the district court erred in
dismissing the state-law claims with prejudice rather than without prejudice.
        We agree with Stallworth that the district court erred in doing so. For
both grounds on which the district court relied, our precedent is clear that a
dismissal must be without prejudice. See Bass v. Parkland Hosp., 180 F.3d 234,
146 (5th Cir. 1999) (“[T]he dismissal of . . . pendent claims [under 28 U.S.C.
§ 1367(c)] should be without prejudice so that the plaintiff may refile his claims
in the appropriate state court.”); Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343
(5th Cir. 1996) (“Because [Eleventh Amendment] sovereign immunity deprives
a court of jurisdiction, the claims barred by sovereign immunity can be dismissed
only under Rule 12(b)(1) and not with prejudice.” (emphasis added)).
                                 IV. CONCLUSION
        Accordingly, we modify the judgment to be without prejudice as to the
state-law claims, and we affirm the judgment as modified.
        AFFIRMED AS MODIFIED.


        4
        Because we find that Stallworth did not have a protected property interest, we need
not decide whether the defendants’ actions were violative of due process.

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