Levitt v. Monroe

• Decision Date: 17 July 1984
• Docket Number: No. EP-83-CA-86.,EP-83-CA-86.
• Citation: 590 F. Supp. 902
• Parties: Leonard LEVITT, Plaintiff, v. Haskell MONROE, Individually and as Representative of the University of Texas at El Paso; Arthur Harris; and Wayne Fuller, Defendants.
• Court: U.S. District Court — Western District of Texas

590 F. Supp. 902

Leonard LEVITT, Plaintiff, v. Haskell MONROE, Individually and as Representative of the University of Texas at El Paso; Arthur Harris; and Wayne Fuller, Defendants.

No. EP-83-CA-86.

United States District Court, W.D. Texas, El Paso Division.

July 17, 1984.

H. Tom Peterson, El Paso, Tex., for plaintiff.

Michael H. Patterson, Asst. Atty. Gen., State and County Div., San Antonio, Tex., for defendants.

MEMORANDUM OPINION AND ORDER

HUDSPETH, District Judge.

This is a suit for damages and other relief pursuant to 42 U.S.C. § 1983. The Plaintiff was a tenured Professor of Chemistry at the University of Texas at El Paso from 1966 until December 1982, when the Board of Regents of the University of Texas System terminated his employment. In his complaint, the Plaintiff contends that he was denied procedural due process in connection with his termination in the following respects:

(1) That he was not given timely and adequate notice of the cause for his termination;

(2) That he was denied the right to confront the witnesses against him;

(3) That he was denied the opportunity to be heard;

(4) That he was not given a statement of the reasons for termination found by the special tribunal appointed by the President of the University to hear evidence in connection with the charges, and

(5) That two members of the tribunal (Defendants Fuller and Harris) were prejudiced against him, denying him the right to a hearing before an impartial tribunal.

The Court previously entered partial summary judgment in favor of the Defendants in connection with four of the Plaintiff's five claims. Since it was impossible to rule upon the Plaintiff's fifth claim without a trial on the merits, such a trial was held on July 2, 1984. The Court's findings of fact and conclusions of law are incorporated in this opinion.

The story began in February 1982, when a nursing student named Linda Scott who was enrolled in one of the Plaintiff's chemistry classes complained that he had made offensive sexual advances toward her. The Vice President for Academic Affairs, Dr. Olander, received the complaint from Ms. Scott, and, after consultation with the University President (Defendant Haskell Monroe), decided to offer Dr. Levitt the opportunity to resign. The Plaintiff refused the offer. On May 21, 1982, Dr. Monroe gave the Plaintiff formal written notice that proceedings would be instituted to terminate his employment (Plaintiff's Exhibit 3).

The procedure for terminating the employment of a tenured faculty member at any institution in the University of Texas System is established by Section 6.3 of the Rules and Regulations of the Board of Regents of the University of Texas System (Defendants' Exhibit C). These rules provide that employment may be terminated only for good cause shown. If the faculty member opposes the termination action, the rules require that he be informed in writing of the charges against him, and that on reasonable notice, the charges be heard by a special hearing tribunal appointed by the President of the University, and whose members possess academic rank at least equal to that of the accused faculty member (Regents' Rule 6.33). In compliance with these rules, Dr. Monroe, on May 21, 1982, appointed a five-member tribunal consisting of the following full professors: Dr. Judith Goggin, Professor of Psychology; Dr. J.L. Klingstedt, Professor of Education; Dr. Juan Lawson, Professor of Physics; Dr. Howard Neighbor, Professor of Political Science; and Dr. Stephen Riter, Professor of Electrical Engineering. Two other faculty members, Defendant Wayne Fuller, a history professor, and Dr. James Devine, a psychology professor, were appointed as alternates. Dr. Monroe's letter of May 21 also scheduled the hearing for June 14, 1982. From the very beginning, problems arose in getting the Plaintiff, the tribunal members, and the witnesses all together at the same place and the same time. The University administration asked for the first change in the hearing date (from June 14 to June 24, 1982) due to the unavailability of an essential witness. The Plaintiff was notified of this change by a letter dated June 7, 1982 (Defendants' Exhibit E). On June 16, 1982, the Plaintiff's attorney, H. Davidson Smith, III, informed Dr. Monroe that he was not available on June 24, and he asked for a continuance (Defendants' Exhibit F). The hearing was rescheduled for July 16, 1982. Because of the rescheduling, two of the original panel members (J.L. Klingstedt and Howard Neighbor) had to be excused, and they were replaced by the alternates, Fuller and Devine. Defendant Arthur Harris was then named as an alternate (Defendants' Exhibit G). On July 15, 1982, the Plaintiff's attorney notified Dr. Monroe that the Plaintiff had been admitted to the hospital, and was unavailable to attend a hearing on July 16 (Defendants' Exhibit H). The hearing was rescheduled for August 25, 1982 (Defendants' Exhibit I). This new continuance caused Dr. Judith Goggin to become unavailable as a member of the hearing tribunal, and she was replaced by the alternate, Dr. Harris (Defendants' Exhibit L).

Between May 21, 1982, when the Plaintiff was first notified of the special tribunal hearing, and August 25, 1982, when the hearing actually commenced, an unexpected development occurred. The Plaintiff was interviewed by a reporter for the University's student newspaper, and he denied the allegations made against him by Linda Scott. When the story appeared in print, three other former students (Jane Jenkins, Delores Kurita, and Elaine Chavez) came forward to report that the Plaintiff had made offensive sexual advances toward them also. The Plaintiff was informed that these three young ladies were being added to the witness list, and that they would also testify at the hearing conducted by the special tribunal (Defendants' Exhibit I).

When the hearing began on August 25, the Plaintiff's attorney made a formal motion that Defendants Fuller and Harris recuse themselves from serving on the special hearing tribunal, asserting that each was biased and prejudiced against the Plaintiff. Both Fuller and Harris insisted that they were not biased, and the motion to recuse was denied. The tribunal proceeded to hear testimony on August 25 and 26 and September 9 and 16, 1982. On September 30, the tribunal announced its unanimous finding that good cause existed for the termination of Dr. Levitt's employment, and it recommended to the Board of Regents that he be terminated. In view of Dr. Levitt's years of service on the University faculty, however, the tribunal recommended that his employment be continued through the spring semester of 1983 (Defendants' Exhibit Q). The Board of Regents approved the tribunal's finding that good cause existed for termination, but declined to continue his employment through the spring semester of 1983. His employment was terminated on December 3, 1982 (Defendants' Exhibit R).

Dr. Arthur Harris, a professor of biological sciences, has been a member of the UTEP faculty since 1965. He became a member of the special hearing tribunal in this case through the process of attrition, and as the direct and proximate result of the continuances requested by the Plaintiff's attorney. Plaintiff's claim that Dr. Harris was prejudiced against him traces back to an incident that occurred in 1966 or 1967. At that time, the Plaintiff was serving as Chairman of the Membership Committee of the Graduate Faculty.¹ Dr. Harris presented his application for membership in the graduate faculty to Dr. Levitt as the Chairman of the Committee. The Committee did not approve Dr. Harris' application that year. The Plaintiff contends that this incident aroused Dr. Harris' hostility toward him, and that they had remained enemies throughout the intervening years. The Plaintiff supports his claim by evidence that in 1981, Dr. Harris recused himself from serving on a faculty committee appointed to review the Plaintiff's claim of entitlement to a merit pay raise on the ground that he did not consider himself an unbiased party with regard to that matter (Plaintiff's Exhibit 2).

Dr. Harris testified in the trial of this case that he declined to recuse himself from membership on the special hearing tribunal because he was not biased with respect to the charges of sexual misconduct brought against Dr. Levitt, and that he had no preconceived notion as to the truth or falsity of such charges. Furthermore, Dr. Harris specifically denied that he held any animosity toward the Plaintiff arising out of his failure to be selected as a member of the graduate faculty in 1966. On the contrary, Dr. Harris testified he was well aware that this decision was made by the entire graduate faculty, not by the Plaintiff alone. Furthermore, he was admitted to membership in the graduate faculty a year or two later, and was perfectly satisfied with that outcome. He explained his decision not to serve on the faculty committee investigating the matter of the Plaintiff's merit pay raise in 1981 by stating that he did not believe the Plaintiff was entitled to a merit pay raise for the following reasons:

(1) He felt that professors in the Chemistry Department in general were overpaid in comparison with faculty members of equivalent rank in the Biology Department;

(2) Dr. Levitt had lost or misplaced some of the attachments² to Dr. Harris' original application for admission to the graduate faculty, and this suggested to the witness that the Plaintiff was somewhat irresponsible;

(3) Dr. Harris was in the building where Dr. Levitt's office was located on a daily basis, and he had observed that Dr. Levitt was rarely in his office;

(4) He felt that Dr. Levitt's publications in scientific journals fell short of the standard that would be expected of a full professor of

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