Steven Jacob MaHaffey v. William Carey University , 180 So. 3d 846 ( 2015 )


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  •         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
    NO. 2014-CA-00585-COA
    STEVEN JACOB MAHAFFEY                                                   APPELLANT
    v.
    WILLIAM CAREY UNIVERSITY                                                  APPELLEE
    DATE OF JUDGMENT:                          03/25/2014
    TRIAL JUDGE:                               HON. M. RONALD DOLEAC
    COURT FROM WHICH APPEALED:                 FORREST COUNTY CHANCERY COURT
    ATTORNEYS FOR APPELLANT:                   THOMAS HENRY FREELAND IV
    JOYCE MARIE FREELAND
    ATTORNEYS FOR APPELLEE:                    HEBER S. SIMMONS III
    DORRANCE AULTMAN
    SETH CHRISTOPHER HALL
    NATURE OF THE CASE:                        CIVIL - OTHER
    TRIAL COURT DISPOSITION:                   GRANTED SUMMARY JUDGMENT IN
    FAVOR OF DEFENDANT/APPELLEE
    DISPOSITION:                               AFFIRMED: 12/08/2015
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    EN BANC.
    GRIFFIS, P.J., FOR THE COURT:
    ¶1.   Steven Jacob Mahaffey appeals the Forrest County Chancery Court’s decision
    granting summary judgment in favor of William Carey University. This case stems from
    William Carey’s dismissal of Mahaffey as a student of the College of Osteopathic Medicine
    (COM). The chancellor found William Carey’s dismissal of Mahaffey was not arbitrary or
    capricious. We find no error and affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2.   Mahaffey enrolled in the first class at William Carey’s COM in August 2010.
    ¶3.    In September 2010, Mahaffey received his first verbal warning from Dr. Jim Weir,
    the associate dean for academic affairs, for inappropriate comments. In November 2010, Dr.
    Weir again verbally admonished Mahaffey, this time for sending improper emails to Dr.
    Darrell Lovins, the dean of the COM at the time, failing to perform his work in anatomy labs,
    and attempting to get professors to change his grades. At this time, Dr. Weir told Mahaffey
    he had two strikes and a third strike would result in a review by the Promotion and
    Matriculation Committee (Committee).
    ¶4.    Despite this warning, Mahaffey attempted to schedule his own rotations in
    contradiction to the COM’s policies. Dr. Michael Murphy, on January 9, 2011, told
    Mahaffey to cease any attempts to schedule his own rotations and to email Dean Lovins with
    any contacts and questions about rotations. Mahaffey, however, continued to try to schedule
    his own rotations.
    ¶5.    Also around this time, Mahaffey tried to solicit private access to textbooks and
    materials from the COM’s e-book vendor. These two incidents were brought to the
    Committee’s attention on September 29, 2011. The Committee, however, chose not to take
    disciplinary action at that time, but asked Dr. Weir to advise Mahaffey of the Committee’s
    proceedings about him.
    ¶6.    In November 2011, Mahaffey again tried to schedule his own rotation, this time with
    the Hattiesburg Clinic (Clinic). Then, on December 20, 2011, an incident occurred at the
    Clinic involving Mahaffey. Karen Smith, the director of nursing at the Clinic, reported that
    Mahaffey attempted to scrub into a surgery despite not having proper training in the
    2
    scrubbing procedures or malpractice-insurance coverage. Smith rebuffed Mahaffey’s
    attempts to go into the surgery several times, until Mahaffey allegedly went into the surgical
    suite and broke the sterile field. Mahaffey was then removed from the premises, and Jaime
    Hill, the rotations coordinator at the COM, was notified.
    ¶7.    After receiving the report from the Clinic, Hill advised Dean Lovins and Dr. James
    Turner of the situation. As a result, Dr. Weir informed the Committee and told Mahaffey a
    hearing on the incident would occur. On January 5, 2012, the Committee requested that
    Mahaffey attend the next Committee meeting. On January 6, 2012, Mahaffey met with Dr.
    Johnny Porter, chair of the Committee, to discuss his behavior and the pending Committee
    proceedings.
    ¶8.    The Committee then met on January 10, 2012, with Mahaffey in attendance, and
    considered Mahaffey’s conduct.       Mahaffey responded to the Committee and sent a
    subsequent letter to the Committee. At the conclusion of the meeting, the Committee chose
    to place Mahaffey on probation.
    ¶9.    On January 23, 2012, Dean Lovins met with Mahaffey to discuss the Committee’s
    findings and its recommendations. Dean Lovins sent a letter to Mahaffey on February 16,
    2012, which stated he was on “probation with conditions” based on his unprofessional
    conduct and set out the four conditions of his probation. The conditions dictated that: (1)
    Mahaffey see a professional counselor to address authority issues and working within the
    medical team environment; (2) Dr. Turner would schedule all rotations for him; (3) he
    address any concerns regarding other institutions and his education at the COM with Dr.
    3
    Turner; and (4) he meet with Dr. Weir monthly until August 2012 and thereafter with Dr.
    Turner. The letter further stated that the “[f]ailure to comply with any of these conditions
    will result in referral to the [Committee] for further discussion and recommendations.”
    ¶10.   Notwithstanding these warnings and his probation, Mahaffey again attempted to
    schedule his own rotations. Further, in July 2012, the director of a medical boards
    preparation vendor reported to Dr. Turner that she received several harassing and
    inappropriate emails from Mahaffey. An additional incident occurred in August 2012 when
    Mahaffey attended an orientation at South Central Regional Medical Center during which
    he parked in the incorrect parking area and improperly used his cell phone during the
    orientation. On August 8, 2012, Dean Lovins referred these incidences to the Committee for
    review.
    ¶11.   On August 22, 2012, the Committee informed Mahaffey that, on August 29, the
    Committee intended to address his recent conduct. This meeting was cancelled due to a
    hurricane and to allow Mahaffey to take his boards. The Committee did not reschedule this
    meeting. At the March 26, 2013 meeting, the Committee reviewed Mahaffey’s status and
    decided to keep him on probation.
    ¶12.   Also in March 2013, Mahaffey completed a pediatrics rotation with Dr. Christine
    Chard. At the conclusion of the rotation, Mahaffey turned in his logs to Dr. Chard for
    grading and an evaluation. Dr. Chard determined that his logs were inaccurate and believed
    they were falsified. Subsequently, Dr. Chard failed Mahaffey for the rotation based on his
    incorrect logs, Mahaffey’s interactions with the staff and herself, and one occasion when
    4
    Mahaffey was told to wait in the doctor’s lounge before a procedure, but left the clinic
    instead.
    ¶13.   The Committee once again evaluated Mahaffey’s conduct during these incidents at
    the April 17, 2013 meeting. The Committee recommended Mahaffey’s dismissal from the
    COM. On May 13, 2013, Dr. Porter forwarded the Committee’s recommendation including
    an affidavit from Dr. Chard addressing the log discrepancies to Dr. Turner, who at that time
    was the dean of the COM.
    ¶14.   On May 16, 2013, Dr. Turner sent Mahaffey a letter notifying him of his dismissal
    from school based on “repeated acts of unprofessional behavior, and failure of the Pediatrics
    Rotation.” This letter stated he failed to meet the requirements of his probation and he could
    not appeal the decision. However, on May 23, 2013, Dr. Turner sent a second letter to
    Mahaffey stating that the “dismissal can be appealed in accordance with the appropriate
    sections of the Student Handbook for 2012-2013 within 10 days[.]”
    ¶15.   Mahaffey appealed the decision to Dr. Turner. Mahaffey submitted a seventy-two-
    page appeal letter to Dr. Turner and the Committee. A hearing was held before the
    Committee on June 25, 2013. Mahaffey appeared, addressed the Committee, and answered
    questions.
    ¶16.   On July 1, 2013, Dr. Turner sent Mahaffey a letter notifying him that he had denied
    his appeal and upheld the Committee’s dismissal recommendation. Dr. Turner’s letter stated
    that the dismissal was based on “disciplinary issues.” The letter provided that “[a]fter due
    consideration and weighing all the issue[s] I find a pattern of unprofessional behavior that
    5
    is not consistent with that expected of a graduate[.]”
    ¶17.   Mahaffey appealed the decision to Tommy King, the president of William Carey.
    Mahaffey submitted a letter in support of his appeal to President King. President King
    subsequently sent a letter to Mahaffey, which stated: “After hearing your appeal and
    reviewing all information provided by you and the [COM], I do not find egregious errors on
    the part of the [the Committee] nor [Dr. Turner] that would warrant overturning their
    decision.”
    ¶18.   After this final dismissal decision, Mahaffey, on August 28, 2013, filed a lawsuit
    against William Carey in Forrest County Chancery Court challenging his expulsion as a
    breach of contract and seeking injunctive relief.
    ¶19.   On March 3, 2014, William Carey filed a motion for summary judgment. Thereafter,
    Mahaffey filed a cross-motion for summary judgment. A hearing was held on March 21,
    2014. The chancellor granted summary judgment in favor of William Carey from the bench
    after hearing the arguments of the parties. In a written order issued on March 25, 2014, the
    chancellor found Mahaffey’s dismissal was neither arbitrary nor capricious. It is from this
    order that Mahaffey appeals.
    STANDARD OF REVIEW
    ¶20.   The Mississippi Supreme Court has held that:
    Our appellate standard for reviewing the grant or denial of summary judgment
    is the same standard as that of the trial court under Rule 56(c) of the
    Mississippi Rules of Civil Procedure. This Court employs a de novo standard
    of review of a lower court’s grant or denial of summary judgment and
    examines all the evidentiary matters before it – admissions in pleadings,
    answers to interrogatories, depositions, affidavits, etc. The evidence must be
    6
    viewed in the light most favorable to the party against whom the motion has
    been made. If, in this view, there is no genuine issue of material fact and[] the
    moving party is entitled to judgment as a matter of law, summary judgment
    should forthwith be entered in his favor. Otherwise, the motion should be
    denied. Issues of fact sufficient to require denial of a motion for summary
    judgment obviously are present where one party swears to one version of the
    matter in issue and another says the opposite. In addition, the burden of
    demonstrating that no genuine issue of fact exists is on the moving party. That
    is, the non-movant should be given the benefit of the doubt.
    Buchanan v. Ameristar Casino Vicksburg Inc., 
    852 So. 2d 25
    , 26 (¶3) (Miss. 2003) (quoting
    Williamson ex rel. Williamson v. Keith, 
    786 So. 2d 390
    , 393 (¶10) (Miss. 2001)).
    ANALYSIS
    ¶21.   Mahaffey asserted claims for a breach of contract and injunctive relief against William
    Carey. The chancellor granted summary judgment in favor of William Carey. Mahaffey
    claims the chancellor erred because there are disputes of material facts and the chancellor
    applied the wrong legal standard to find William Carey’s actions were not arbitrary or
    capricious.
    I.     Whether Mahaffey proved a genuine issue of material fact existed to
    overcome William Carey’s motion for summary judgment.
    ¶22.   Mahaffey first argues that the chancellor erred in granting summary judgment because
    genuine issues of material facts existed. William Carey contends, however, that Mahaffey
    is judicially estopped from presenting this argument because he previously asserted a list of
    undisputed facts in his cross-motion for summary judgment.
    ¶23.   “A material fact is one which resolves any ‘of the issues, properly raised by the
    parties.’” Suddith v. Univ. of S. Miss., 
    977 So. 2d 1158
    , 1166 (¶9) (Miss. Ct. App. 2007)
    (quoting Strantz ex rel. Minga v. Pinion, 
    652 So. 2d 738
    , 741 (Miss. 1995)). “Summary
    7
    judgment may not be a substitute for trying disputed factual issues.” 
    Id. (citation omitted).
    “A fact is neither material nor genuinely contested, however, merely because one party
    proclaims it so.” 
    Id. at 1167
    (¶10).
    ¶24.   Mahaffey presented several instances of disputed facts in both his opposition to
    William Carey’s motion for summary judgment and his appellate briefs. The facts Mahaffey
    disputes, however, involve the incidents that William Carey deemed unprofessional.
    Mahaffey offered alternative explanations for each event William Carey considered in its
    disciplinary actions. But Mahaffey fails to prove any dispute as to any material facts.
    ¶25.   The basis of Mahaffey’s lawsuit is that William Carey acted in an arbitrary and
    capricious manner when the school dismissed Mahaffey. Thus, the action implicates the
    disciplinary actions taken by William Carey, not Mahaffey’s unprofessional conduct. As
    such, Mahaffey failed to demonstrate any disputed facts of William Carey’s disciplinary
    actions.
    ¶26.   William Carey presented affidavits from several staff members involved in the
    disciplinary process. Dr. Weir’s affidavit stated he counseled Mahaffey on September 14,
    2010, November 1, 2010, and January 14, 2011, at the request of the Committee. Further,
    on October 20, 2011, the Committee warned Mahaffey of future action if his unprofessional
    conduct continued.
    ¶27.   Dr. Turner, also through his affidavit, substantiated Dr. Weir’s meetings and further
    attested to the proceedings of the Committee. Drs. Weir and Turner also detail that the
    Committee met with Mahaffey on January 23, 2012, after which the COM placed Mahaffey
    8
    on probation. Though Mahaffey disputes the warnings attested to by Drs. Weir and Turner,
    he does not challenge that the meeting occurred or that he was placed on probation.
    ¶28.   Mahaffey also failed to show disputed facts about the proceedings through his
    probation or that he was dismissed while he remained on probation. Mahaffey does argue
    that he did not violate the conditions of his probation, and even if he did, his probation did
    not mandate a dismissal for any violation. However, none of the facts Mahaffey calls into
    dispute resolve the question of whether William Carey’s decision was arbitrary or capricious.
    ¶29.   Mahaffey does not dispute that the Committee met on April 17, 2013, and voted to
    dismiss him from the COM, that the Committee allowed for an appeal to Dr. Turner, or that
    Mahaffey submitted a seventy-two-page appeal letter. Further, Mahaffey does not dispute
    that Dr. Turner and Dr. King both affirmed the Committee’s decision to dismiss him.
    Therefore, we find that Mahaffey failed to show a genuine issue of material fact in dispute
    as to William Carey’s disciplinary actions that defeats summary judgment.
    ¶30.   Because we find that Mahaffey failed to show a genuine issue of material fact in
    dispute as to William Carey’s disciplinary actions, we also find William Carey’s judicial-
    estoppel argument is moot. This issue is without merit.
    II.    Whether William Carey’s decision to dismiss Mahaffey for
    unprofessional conduct was arbitrary or capricious.
    ¶31.   The only issue that remains is whether William Carey’s decision was arbitrary or
    capricious. Mahaffey contends that William Carey failed to comply with its guidelines
    prescribed in the student handbook during its proceedings against him. Due to this deviation
    from procedures, Mahaffey argues William Carey deprived him of a fundamentally fair
    9
    hearing, which renders the decision arbitrary or capricious.
    ¶32.   “Courts have exercised reluctance in interfering with the disciplinary procedures and
    decisions of educational institutions, even where constitutional due process rights are
    guaranteed.” Beauchene v. Miss. Coll., 
    986 F. Supp. 2d 755
    , 768 (S.D. Miss. 2013).
    Because William Carey is a private institution, “causes of actions against [it] are usually
    limited to only breach of contract claims” rather than claims based on the protections
    afforded under the Fourteenth Amendment for students of public universities. 
    Id. at 767-68.
    As such, “courts have given considerable discretion to private schools’ decisions.” 
    Id. at 768.
    ¶33.   Further, “[c]ourts have invoked different protections for disciplinary and academic
    expulsions.” Univ. of Miss. Med. Ctr. v. Hughes, 
    765 So. 2d 528
    , 540 (¶41) (Miss. 2000).
    “A disciplinary dismissal requires that the student be given oral or written notice of the
    charges and evidence against him and the opportunity to present his side of the story. In
    contrast, an academic dismissal calls for far less stringent procedural requirements.” 
    Id. (internal citations
    and citations omitted).
    ¶34.   Mahaffey contends that the chancellor applied the wrong standard when he found that
    William Carey did not have to follow its handbook guidelines so long as an “informal give-
    and-take” occurred. “[A] student dismissed for academic reasons is not entitled to any type
    of due process hearing, and all that is required for disciplinary actions is an ‘informal give-
    and-take’ between the student and the administrative body dismissing him that would, at
    least, give the student ‘the opportunity to characterize his conduct and put it in what he
    10
    deems the proper context.’” 
    Beauchene, 986 F. Supp. 2d at 769
    (quoting Senu-Oke v.
    Jackson State Univ., 
    521 F. Supp. 2d 551
    , 559 (S.D. Miss. 2007)).
    ¶35.   Mahaffey is incorrect in his assertion that the “informal give-and-take” standard in
    Beauchene applies to academic dismissals rather than dismissals for unprofessional conduct.
    Beauchene quotes Senu-Oke for the “informal give-and-take” proposition. 
    Id. In turn,
    the
    Senu-Oke court quoted the Fifth Circuit in Shaboon v. Duncan, 
    252 F.3d 722
    , 731 (5th Cir.
    2001). 
    Senu-Oke, 521 F. Supp. 2d at 559
    . Though Senu-Oke and Shaboon involved
    academic dismissals, both courts used the “informal give-and-take” language in the context
    of solely disciplinary actions. 
    Senu-Oke, 521 F. Supp. 2d at 559
    ; 
    Shaboon, 252 F.3d at 731
    .
    Therefore, the chancellor did not apply an incorrect standard.
    ¶36.   Further, as previously stated, Beauchene, in citing Hughes, also indicated that only
    “oral or written notice of the charges and evidence against [the student] and the opportunity
    to present his side of the story” was required for a dismissal based on nonacademic
    misconduct. 
    Beauchene, 986 F. Supp. 2d at 768
    (quoting 
    Hughes, 765 So. 2d at 540
    (¶41)).
    Therefore, we must look to William Carey’s conduct to determine if it complied with these
    basic requirements so that the decision was neither arbitrary nor capricious.
    ¶37.   In Beauchene, the trial court reviewed a student’s academic dismissal by a private law
    school to “determine whether [Mississippi College School of Law’s (MC Law)] procedures
    were carried out with fundamental fairness so as to ensure that the decisions rendered were
    not arbitrary and capricious.” 
    Id. at 769.
    The trial court then defined the arbitrary and
    capricious standard as it applies to a private institution – “the [c]ourt may look to the degree
    11
    in which MC Law deviated from its established procedures and whether there was substantial
    evidence to support its decisions.” 
    Id. ¶38. Mahaffey
    contends that William Carey deviated from its set of disciplinary procedures
    in the student handbook, which rendered the decision arbitrary and capricious. The student
    handbook outlines the procedures for handling instances of student misconduct. The
    guidelines dictate that a complaint “should be filed with the chairperson of the [Committee,]”
    which the Committee reviews and decides whether to conduct a meeting or not. The
    guidelines then hold that if the Committee chooses to meet, the student shall be notified to
    appear and will be afforded the opportunity to address the allegations. Then the Committee
    can issue one of four decisions: no action, probation, probation with conditions, or dismissal.
    Mahaffey contends William Carey failed to comply with these specific procedures.
    ¶39.   Mahaffey argues that no formal complaint was filed with the Committee and that he
    did not receive a notice or an opportunity to be heard at every meeting where the Committee
    discussed his actions. However, Mahaffey did receive notice of and did attend the
    Committee meeting on January 23, 2012, where he presented his version of events. After this
    meeting, the Committee placed Mahaffey on probation with conditions, which the Committee
    detailed in a February 16, 2012 letter. Further, when the Committee voted to dismiss
    Mahaffey on April 17, 2013, Mahaffey was allowed to appeal to Dr. Turner and to Dr. King.
    As part of his appeal, Mahaffey submitted a seventy-two-page letter detailing his version of
    events. All of these actions illustrate Williams Carey’s compliance with the handbook.
    ¶40.   Despite this compliance, Mahaffey contends that he did not receive notice of either
    12
    the April 17, 2013 meeting or that his probation with conditions could lead to his dismissal.
    The record, however, shows that Mahaffey knew that dismissal was a consequence for a
    violation of his probation. Though Mahaffey’s probation letter did not indicate dismissal was
    a possibility, the student handbook, on which Mahaffey heavily relies, states that “[p]robation
    is defined as a warning in that any future behavior/situations inconsistent with the
    professional behavior outlined in the WCU Student Handbook or deemed inappropriate by
    the [Committee] may result in [the student’s] immediate expulsion[.]” The handbook further
    states that probation with conditions “includes all of the sanctions of probation[.]”
    Therefore, Mahaffey cannot claim he was not on notice that dismissal was a possibility for
    any probation violations.
    ¶41.   As for the notice of the April 17, 2013 meeting, the record does not indicate that
    Mahaffey received a notice or attended the Committee meeting. However, the Beauchene
    court found that MC Law took some actions that deviated from its handbook, but that “the
    meetings and other communications between Beauchene and MC Law officials more than
    compensate[d] for their minor deviations from the Student Honor Code’s written
    procedures.” 
    Beauchene, 986 F. Supp. 2d at 771
    . We find the same applies here.
    ¶42.   The record indicates there were numerous emails, meetings, and conversations
    between Mahaffey and William Carey officials over the course of three years. William Carey
    placed Mahaffey on notice of his unprofessional conduct several times, and Mahaffey
    enjoyed several opportunities to defend himself. Therefore, we find William Carey carried
    out its procedures with fundamental fairness to Mahaffey.
    13
    ¶43.   Accordingly, we find William Carey’s slight deviation from the handbook guidelines
    to be inconsequential, and the substantial evidence supported William Carey’s decision.
    Based on these findings, William Carey’s decision was neither arbitrary nor capricious.
    Thus, we affirm the chancellor’s decision.
    ¶44. THE JUDGMENT OF THE FORREST COUNTY CHANCERY COURT IS
    AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
    APPELLANT.
    IRVING, P.J., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ.,
    CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT
    SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITH SEPARATE
    WRITTEN OPINION. LEE, C.J., NOT PARTICIPATING.
    JAMES, J., DISSENTING:
    ¶45.   Mahaffey was dismissed from William Carey University’s College of Osteopathic
    Medicine (COM) for what was ultimately deemed “disciplinary issues” based on a “pattern
    of unprofessional behavior.” Because I find that the chancellor erred, I would reverse the
    grant of summary judgment and remand this case to the chancery court.
    DISCUSSION
    I.     Whether there are genuine issues of material fact that preclude
    summary judgment.
    ¶46.   At the outset, I find that there are genuine issues of material fact that preclude the
    grant of summary judgment. The supreme court's decision in University of Mississippi
    Medical Center v. Hughes, 
    765 So. 2d 528
    , 532 (¶13) (Miss. 2000), which is the guiding case
    for university dismissals, involved no disputed facts. Here, however, several instances of
    misconduct used as grounds to place Mahaffey on probation and that also subsequently
    14
    formed the basis of his dismissal were disputed.
    ¶47.   In December 2011, an incident occurred at the Hattiesburg Clinic surrounding a
    surgery performed by Dr. William Thomas III, whom Mahaffey shadowed after expressing
    an interest in plastic surgery. There was a dispute about whether Mahaffey was allowed to
    scrub-in that surgery. A nurse alleged that Mahaffey scrubbed-in, broke the sterile field, and
    forced the surgeons to re-scrub. The surgeon, however, signed an affidavit stating that he
    did not have to re-scrub and was unaware of Mahaffey breaking the sterile field.
    ¶48.   On August 1, 2012, Mahaffey began rotations at South Central Regional Medical
    Center in Laurel, Mississippi. William Carey claims that during orientation, Mahaffey
    improperly parked his car in the hospital parking lot after being specifically told not to do so.
    Mahaffey contended that he was unaware that he improperly parked his car and moved his
    vehicle when he was asked to move. William Carey claimed he was using Facebook and
    sending text messages at orientation. Mahffey denied this allegation. Mahaffey contended
    that his phone did not even have internet access, so it would be impossible to log in to
    Facebook. Mahaffey also explained he only sent text messages during breaks and merely
    took notes on his phone.
    ¶49.   There was also a dispute of material fact regarding whether Mahaffey was in
    compliance with the express conditions of his probation. It is undisputed, however, that the
    Committee's minutes reflecting a meeting on April 17, 2013, state that Mahaffey “seemed
    to be doing acceptabl[y] on probation well enough that the Dean asked the Committee if he
    could be taken off.” The minutes also state that at the meeting of March 26, 2013, the
    15
    Committee did not recommend that he be taken off probation despite the dean's report.
    ¶50.   There was also a dispute of material fact regarding whether the “zero tolerance”
    probation also encompassed reasons other than those conditions enumerated in the probation
    letter. The chancellor found that Mahaffey understood the conditions of his probation and
    the ramifications of any future violation of his probation. However, Mahaffey claimed that
    based on his communications with William Carey personnel, he understood “zero tolerance”
    for future violations to be limited to the specific conditions of his probation according to his
    own interpretation of the student handbook.
    ¶51.   There is no undisputed evidence that Mahaffey violated any of the four conditions of
    his probation. William Carey claimed that Mahaffey used a different name to schedule an
    appointment with a counselor other than the one assigned to him by the school. Mahaffey
    explained that he used his full legal name rather than Jacob because his medical records were
    maintained under his full legal name. The parties dispute whether setting up additional
    counseling by a different counselor would constitute a breach of a condition of his probation
    when he also maintained his counseling sessions with the counselor assigned by the COM.
    ¶52.   William Carey also claimed that Mahaffey was asking too many questions constituting
    harassment of the staff of the Boards Boot Camp program. However, an email from the
    Boards Boot Camp personnel to Mahaffey is at conflict with this allegation because it
    unequivocally encourages students to ask questions.
    ¶53.   There was a genuine issue of material fact regarding the discrepancy in the logs for
    Mahaffey's pediatrics rotation, which served as the basis for the failure of his pediatrics
    16
    rotation. Mahaffey explained the coding system he used was the system used by William
    Carey, which only had around a hundred or so codes identifying medical procedures as
    opposed to the 10,000 codes used by Dr. Chard at South Central Regional Medical Center
    for procedures. Mahaffey's account of the logs directly opposed the position taken by
    William Carey that his logs were intentionally falsified.
    ¶54.   When viewing the evidence in the light most favorable to Mahaffey, summary
    judgment should not have been granted in favor of William Carey. Where doubt exists as
    to whether there is a genuine issue of material fact, the trial judge should err on the side of
    denying the motion and permitting a full trial on the merits. Ellis v. Powe, 
    645 So. 2d 947
    ,
    950 (Miss. 1994). Accordingly, I would find that there are genuine issues of material fact
    that preclude the grant of summary judgment.
    II.    Whether the chancellor reviewed the decision to dismiss Mahaffey
    using the appropriate standard.
    ¶55.   William Carey is a private institution. The distinction between a public university and
    a private institution is crucial. Beauchene v. Miss. Coll, 
    986 F. Supp. 2d 755
    , 767 (S.D.
    Miss. 2013). Policies and procedures of public universities regarding forms of academic
    dishonesty must comport with due-process requirements of the Fourteenth Amendment
    because a student's continued enrollment is deemed a protected property right. 
    Id. However, these
    same protections are not available to students enrolled in private colleges and
    universities. 
    Id. As such,
    “causes of actions against private colleges are usually limited to
    only breach of contract claims.” 
    Id. at 768.
    ¶56.   The district court in Beauchene summarized the discretion afforded to institutions
    17
    when addressing dismissals based on academics as opposed to disciplinary dismissals.
    When reviewing dismissals that are academic in nature (such as plagiarism),
    as opposed to disciplinary dismissals, academic institutions are given even
    more discretion. See 
    Hughes, 765 So. 2d at 534
    (“A disciplinary dismissal
    requires that the student be given oral or written notice of the charges and
    evidence against him and the opportunity to present his side of the story. . . .
    In contrast, an academic dismissal calls for far less stringent procedural
    requirements.” (citations omitted)); Salcido v. Univ. of S. Miss., 2:11cv173,
    
    2013 WL 2367877
    , at *4 n.2 (S.D. Miss. May 29, 2013) (university faculties
    must have the widest range of discretion in making judgment as to the
    academic performance of students and their entitlement to promotion or
    graduation because a graduate or professional school is the best judge of its
    students' academic performance and their ability to master the required
    curriculum).
    
    Beauchene, 986 F. Supp. 2d at 768
    .
    ¶57.   “Misconduct and failure to attain a standard of scholarship cannot be equated.” 
    Id. at 768-69
    (quoting Mahavongsanan v. Hall, 
    529 F.2d 448
    , 450 (5th Cir. 1976)).
    To be clear, a student dismissed for academic reasons is not entitled to any
    type of due process hearing, and all that is required for disciplinary actions is
    an informal give-and-take between the student and the administrative body
    dismissing him that would, at least, give the student the opportunity to
    characterize his conduct and put it in what he deems the proper context.
    
    Id. at 769
    (citations and quotation marks omitted).
    ¶58.   Unlike the less stringent procedural requirements of an academic dismissal, different
    protections exist for disciplinary expulsions. 
    Hughes, 765 So. 2d at 540
    (¶41). “A
    disciplinary dismissal requires that the student be given oral or written notice of the charges
    and evidence against him and the opportunity to present his side of the story.” 
    Id. (citing Goss
    v. Lopez, 
    419 U.S. 565
    , 581 (1975)). The dismissal in Beauchene was based on
    academic misconduct, but Mahaffey's dismissal was based solely on professional misconduct
    18
    according to William Carey. Although the trial court classified the dismissal as a mixed
    basis of disciplinary and academic grounds, the final dismissal letter omitted the previously
    cited academic ground. The final dismissal letter limited the basis of Mahaffey's dismissal
    to “disciplinary issues” based on a “pattern of unprofessional behavior.”
    ¶59.   I would find that the trial court incorrectly used the more deferential standard
    applicable to academic dismissals when evaluating Mahaffey's dismissal. Because William
    Carey explicitly removed the academic portion of the grounds for dismissal, I cannot say the
    “informal give and take” was sufficient in this case. The informal give and take exhibited
    in Beauchene was not provided to Mahaffey. Beauchene involved a student dismissed based
    on plagiarism on two separate occasions. 
    Beauchene, 986 F. Supp. 2d at 762
    . The student
    was given multiple opportunities to explain the plagiarism, and he eventually confessed to
    his wrongdoing. 
    Id. at 772.
    To the contrary, Mahaffey offered explanations for his alleged
    professional misconduct. Thus, a full trial on the merits is necessary in this case to resolve
    these disputed facts.
    III.   Whether the procedures were carried out with fundamental
    fairness so as to ensure that the decision to dismiss Mahaffey was
    not arbitrary and capricious.
    ¶60.   It must be determined whether William Carey's procedures were carried out with
    fundamental fairness so as to ensure that the decisions rendered were not arbitrary and
    capricious. 
    Id. at 769
    (citing 
    Hughes, 765 So. 2d at 535
    ). Moreover, “[i]n balancing the
    Court's interest in safeguarding students from unfair procedures that result in arbitrary or
    capricious decisions, with the importance of giving judicial deference to an academic
    19
    institution's decision-making process, the Court may look to the degree in which [the
    institution] deviated from its established procedures and whether there was substantial
    evidence to support its decisions.” 
    Id. (citations omitted).
    ¶61.   On February 16, 2012, Dean Lovins sent a letter to Mahaffey informing him that he
    had been placed on “probation with conditions” based on conduct and specifically excluded
    academics as a basis. The letter set out four conditions of probation and stated that the
    “[f]ailure to comply with any of these conditions will result in referral to the Committee for
    further discussion and recommendations.” The conditions placed on Mahaffey were as
    follows: (1) that he see a professional counselor to address recognizing appropriate lines of
    authority and working within the medical team environment; (2) that only Dr. Turner would
    dictate all rotations for him; (3) that he address any concerns regarding any outside entity and
    his education at the COM with Dr. Turner; and (4) that he meet with Dr. Weir monthly until
    August 2012 and thereafter with Dr. Turner.
    ¶62.   On April 17, 2013, the Committee voted unanimously to recommend that Mahaffey
    be dismissed for unprofessional conduct as well as for failing the pediatrics rotation. The
    minutes noted: “After multiple instances of unprofessional conduct, and an F in his rotation,
    Jacob Mahaffey should be dismissed.” The minutes of the meeting erroneously noted that
    Mahaffey had failed twice. The Committee concluded that Mahaffey had “outright falsified
    his clinical logs.”
    ¶63.   On May 13, 2013, Dr. Porter forwarded the Committee's recommendation, including
    an affidavit from Dr. Chard addressing the log discrepancies to Dr. Turner. On May 16,
    20
    2013, Dean Turner sent Mahaffey a letter notifying him of his dismissal from the COM based
    on “repeated acts of unprofessional behavior, and failure of the Pediatrics Rotation.” The
    letter stated that he “failed to meet the requirements of . . . probation,” and that the decision
    “cannot be appealed.” The letter referred to the dismissal procedure “in the appropriate
    sections of the student handbook for 2012-2013.” However, on May 23, 2013, Dean Turner
    sent a second letter to Mahaffey stating that the “dismissal can be appealed in accordance
    with the appropriate sections of the Student Handbook for 2012-2013 within 10 days[.]” If
    he decided to appeal, Mahaffey was urged to consult with the associate dean for clinical
    affairs, Dr. Beth Longenecker, so she could inform him of the circumstances related to his
    clinical rotations, which led to their decision.
    ¶64.   Mahaffey appealed the decision to Dr. Turner. A hearing was held in front of Dr.
    Tuner and the Committee on June 25, 2013. Mahaffey appeared, addressed the Committee
    orally, and answered questions. However, Mahaffey was not given an opportunity to present
    testimony of witnesses at the hearing. On July 1, 2013, the dean sent Mahaffey a letter
    notifying him that he had denied his appeal and upheld the Committee's dismissal
    recommendation, but stated that the dismissal was based on “disciplinary issues.” The letter
    provided that “[a]fter due consideration and weighing all the issue[s] I find a pattern of
    unprofessional behavior that is not consistent with that expected of a graduate[.]”
    ¶65.   Mahaffey was allowed to appeal the decision to the president of William Carey
    University, which he did. He was not allowed to be present at the appeal. Again, Mahaffey
    was not allowed to present testimony of witnesses at this appeal. The president, Tommy
    21
    King, sent a letter to Mahaffey stating that “after hearing your appeal and reviewing all
    information provided by you and the [COM], I do not find egregious errors on the part of the
    Committee nor the dean of the [COM] that would warrant overturning their decision.” The
    letter concluded that the decision of the Committee would stand.
    ¶66.   There is an implied contractual relationship between a university and its students.
    
    Hughes, 765 So. 2d at 535
    (¶23). The chancellor determined that William Carey could
    deviate from the student handbook as long as there was informal give and take between the
    student and the university. I disagree. “[T]he student-university relationship is contractual
    in nature[,] and . . . the terms of the contract may be derived from a student handbook,
    catalog, or other statement of university policy.” 
    Id. at 534
    (¶20). Based on the record
    before us, I would find that William Carey deviated from its handbook. William Carey
    deviated from its own procedures by first not allowing an appeal, citing the student handbook
    as authority. Days later, William Carey changed its position and informed Mahaffey that he
    was entitled to an appeal, again citing the same student handbook. William Carey also
    changed its position on the grounds for Mahaeffey’s dismissal. Initially, Mahaffey’s
    dismissal was based on disciplinary and academic grounds. However, William Carey
    ultimately characterized his dismissal as based solely on disciplinary grounds.
    ¶67.   Due to William Carey’s changes in its position as to its appeal process and grounds
    for dismissal, I cannot say that the decisions were not arbitrary and capricious. It does not
    appear based on the record before us that the decisions of William Carey were carried out
    with fundamental fairness in light of the email from Dean Turner on December 23, 2011,
    22
    stating, “I think it is time for Jacob to go home.” Also, it does not appear fundamentally fair
    that Mahaffey was not allowed to be present at the final appeal to the president, undoubtedly
    the most important appeal. The circumstances surrounding this dismissal decision should be
    given the benefit of a full trial on the merits to determine whether or not Mahaffey was
    afforded fundamental fairness.
    ¶68.   William Carey contends that a clause in the handbook disclaims any contractual
    relationship created by the handbook. I find that this self-serving disclaimer was not binding
    on Mahaffey. This argument is at odds with the holding of Hughes, which found that the
    terms of a student-university relationship may be derived from a student handbook. Here,
    William Carey deviated from its policy in not allowing Mahaffey to retake his pediatrics
    rotations after receiving a failing grade. It was the policy to allow a student to retake a
    course with a failing grade, while dismissal was recommended after failing three or more
    times. I would find that William Carey's deviations, based on the record before us, should
    have at least precluded summary judgment.
    IV.    Whether judicial estoppel applies.
    ¶69.   William Carey argues that Mahaffey should be judicially estopped from arguing
    against the grant of summary judgment in favor of William Carey because he filed a
    cross-motion for summary judgment. I disagree.
    ¶70.   “Because of judicial estoppel, a party cannot assume a position at one stage of a
    proceeding and then take a contrary stand later in the same litigation.” Pursue Energy Corp.
    v. Miss. State Tax Comm'n, 
    968 So. 2d 368
    , 377 (¶19) (Miss. 2007). Here, Mahaffey's
    23
    position has consistently been that there was a breach of an implied contract because William
    Carey deviated from its standard procedures and handbook, and did not act with fundamental
    fairness in dismissing him. I do not find that Mahaffey's position in his cross-motion for
    summary judgment is inconsistent or “at odds” with his current position taken on appeal. See
    In re Estate of McLemore, 
    63 So. 3d 468
    , 491 (¶71) (Miss. 2011). Thus, William Carey's
    argument is without merit.
    CONCLUSION
    ¶71.   For these reasons, I would reverse summary judgment granted in favor of William
    Carey and remand the case for further proceedings.
    24