Harrington v. Harris
| Decision Date | 21 July 1997 |
| Docket Number | No. 95-20751,95-20751 |
| Citation | 118 F.3d 359 |
| Parties | 75 Fair Empl.Prac.Cas. (BNA) 1303, 119 Ed. Law Rep. 817 Eugene M. HARRINGTON; Martin Levy; Thomas Kleven, Plaintiffs-Appellees, v. William H. HARRIS, et al., Defendants, James M. Douglas; Caliph Johnson; Texas Southern University, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Beatrice A. Mladenka-Fowler, Barbara Brady Gupta, Mladenka-Fowler, Adams & Associates, Houston, TX, for Plaintiffs-Appellees.
Renaldo L. Stowers, Austin, TX, for Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Texas.
Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.
REVISED OPINION
The opinion issued in this case under date of March 14, 1997, is withdrawn and the following is issued in place thereof.
In this proceeding tried by consent before a magistrate judge, the jury found that three white law school professors, Plaintiffs Eugene M. Harrington, Martin Levy, and Thomas Kleven, of state-supported Texas Southern University's Thurgood Marshall School of Law in Houston, Texas, had been discriminated against by the law school's dean, Defendant James M. Douglas, on the basis of protected speech, and by the school's associate dean, Defendant Caliph Johnson, on the basis of their race. The jury also found that Defendants Douglas and Johnson violated Plaintiffs' substantive due process rights. The jury awarded compensatory and punitive damages and judgment was entered. Holding that judgment as a matter of law should have been entered against Plaintiffs' as to their claims under § 1983 for First Amendment free speech retaliation, we reverse as to that issue, but affirm as to the issues of § 1981 race discrimination and Fourteenth Amendment substantive due process.
Appellees/Plaintiffs Eugene M. Harrington ("Harrington"), Martin Levy ("Levy"), and Thomas Kleven ("Kleven") are tenured faculty members of the Texas Southern University Thurgood Marshall School of Law ("the law school") in Houston, Texas. They have been on the law school's faculty since 1966, 1972, and 1974, respectively. The parties do not dispute that the law school is a public university with a historically black majority enrollment.
In 1981, Appellant/Defendant James Douglas ("Douglas") was named dean of the law school. Appellant/Defendant Caliph Johnson ("Johnson") had been on the law school faculty since 1975 and served as associate dean from 1990 to 1992.
During Douglas' first semester as dean, Harrington and Levy approached Douglas concerning a Student Bar Association ("SBA") recommendation to appoint only black students to representative positions on various law school committees. Harrington and Levy believed that non-black student representation was important and they solicited Douglas to disregard the SBA recommendation and appoint non-black students. 1 It is unclear how Douglas reacted to their suggestions. Ultimately, the university president and a Texas state senator became involved and non-black students were subsequently appointed to the committees. Levy claims that the following year he received the lowest salary recommendation of any member on the faculty.
In May 1983, thirteen law school professors, including Levy and Kleven, signed a document entitled, "Bill of Particulars." In this document, the signatories complained that Dean Douglas discriminated against certain professors as to salaries, that he failed to adhere to law school policies, and that he mishandled various administrative duties. The Bill of Particulars addressed:
the professors' concerns regarding American Bar Association (ABA) mandates, extreme insensitivity to the role of the Chicano students in the Law School, unilateral reduction of courses resulting in harm to students, reversing a long-standing policy on Senior Priority exams, unilateral increase in enrollment at the Law School, and such administrative matters as jeopardizing the status of the Law School by failing to develop a plan for the clinical program, and failing to properly certify Law School graduates for the July 1982 Bar exam.
This Bill of Particulars also addressed the signatories' concern that certain professors had received arbitrary or unfair performance evaluations or salary increases. Appellee Harrington did not sign this document.
One month later, another letter was sent to Douglas, further detailing the professors' concerns. Douglas sent no written response. In July 1983, eight faculty members, including Levy and Kleven, wrote to the university's Vice-President for Academic Affairs requesting that the university dismiss Douglas as dean of the law school. Harrington did not sign this letter.
In early 1984, eighteen of the twenty-three full-time members of the law school faculty, including Harrington, Levy, and Kleven, participated in a vote of "confidence/no confidence" concerning Douglas. Twelve members of the faculty voted "no confidence" and six members abstained.
Approximately six months later, fifteen members of the law school faculty, including all three Plaintiffs, wrote a letter to the president of the university requesting that Douglas be removed as dean. The university president denied their request.
Several months later, eight members of the law school faculty wrote a letter to the President of the American Bar Association complaining that the university's refusal to remove Douglas violated ABA guidelines. Following an investigation, the ABA dismissed the complaint.
Beginning in 1985, Levy and Kleven, along with several of their black colleagues, complained to both the university president and vice-president about discriminatory treatment in their salaries. In 1986, then vice-president William Moore allegedly made salary adjustments for some of the professors, including Levy and Kleven; however, Plaintiffs contend that they never received these salary increases.
In 1988-89, Levy and Kleven again complained to the university vice-president about unfair treatment in salaries and raises, and were subsequently "awarded a partial adjustment for that year."
In 1990, Levy and Kleven complained to then university vice-president Bobby Wilson about Dean Douglas' unfair treatment regarding their salaries and raises. Levy subsequently received a salary adjustment.
Later in 1990, vice-president Wilson developed a comprehensive merit evaluation system. 2 The merit evaluation system required the individual faculty members to evaluate themselves on a point basis, and then submit their self-evaluations to another appointed faculty member for further review. Johnson, as associate dean of the law school, was chosen to assess law school faculty's self-evaluations and recommend overall point totals to the dean. The merit evaluations performed by Johnson formed the basis for the salary increases to be awarded by Dean Douglas.
Plaintiffs state that Johnson failed to notify Harrington about the newly implemented self evaluation form, even though Johnson allegedly knew that Harrington was on sabbatical when the form was adopted. Harrington never submitted a self-evaluation form for the 1990-91 academic year. His failure to do so was considered when salary increase determinations were made.
Plaintiffs state that, for the 1990-91 academic year, "Johnson also lowered the points requested for all the white professors ... and raised the points requested for every Black professor who used the identical form."
In 1991-92, Harrington was awarded "professor of the year" by all three student bar associations on campus. This same year, Harrington was allegedly awarded the lowest percentage salary increase of all full professors--1%.
In 1991-92, Kleven received the "outstanding teacher of the year award" from Texas Southern University and was asked to be a speaker at the law school graduation. This same year, Johnson allegedly lowered Kleven's self-evaluation points because of insufficient scholarship. Johnson, however, admitted to never having read the scholarly work of Kleven.
Plaintiffs alleged that, by 1993, the disparity in salaries between the average white full professors and average African American full At the time of trial, Harrington's nine month salary was $102,046, Levy's nine-month salary was $98,297, and Kleven's nine month salary was $97,332. Harrington, Levy, and Kleven were among the ten highest paid faculty at the law school.
professors had grown to approximately $3,000 per year even though, on average, the white professors had allegedly eight years more longevity than the African American professors. Plaintiffs allege that Harrington, who had been a professor longer than any other, was ranked seventh in salary; Levy, who ranked third in years, ranked ninth in salary; and Kleven, who tied Dean Douglas in years as a professor, ranked tenth in salary.
After filing a complaint with the Equal Employment Opportunity Commission, in 1993, Plaintiffs brought suit in federal court alleging violations of their due process rights under the Fifth and Fourteenth Amendments to the Constitution; violations of their civil rights under the Civil Rights Act of 1871, 42 U.S.C. § 1983; conspiracy to interfere with their civil rights under the Klu Klux Klan Act, 42 U.S.C. § 1985; racial discrimination in violation of equal protection under the Civil Rights Act of 1966, 42 U.S.C. § 1981; and violation of their right to free expression under the First, Fifth, and Fourteenth Amendments to the Constitution, as well as pendent state claims for breach of contract and intentional infliction of emotional distress.
At trial, the following issues were submitted to the jury: a § 1983 claim for retaliation in violation of Plaintiffs' right to free expression under the First Amendment; claims under § 1981 and Title VII for race discrimination; and a claim for violation of Plaintiffs' substantive...
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