663 F.2d 502 (4th Cir. 1981), 79-1204, Mayberry v. Dees

Docket Nº:79-1204, 79-1205.
Citation:663 F.2d 502
Party Name:Robert J. MAYBERRY, Appellee, v. William DEES, Chairman, Board of Governors, University of North Carolina, individually and in his official capacity, William Friday, President,University of North Carolina, individually and in his official capacity; RobertMorgan, Chairman,Board of Trustees, East Carolina University, individually and in his officialc
Case Date:November 05, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 502

663 F.2d 502 (4th Cir. 1981)

Robert J. MAYBERRY, Appellee,

v.

William DEES, Chairman, Board of Governors, University of

North Carolina, individually and in his official capacity,

William Friday, President,University of North Carolina,

individually and in his official capacity; RobertMorgan,

Chairman,Board of Trustees, East Carolina University,

individually and in his officialcapacity; Leo W. Jenkins,

Chancellor, East Carolina University, individuallyand in his

official capacity; Robert L. Holt, Vice-Chancellor, East

CarolinaUniversity,individually and in his official

capacity; Robert W. Williams, Provost, EastCarolina

University, individually and in his official capacity;

RichardCapwell, Dean Arts and Sciences East Carolina

University, individually and inhis official capacity;Joseph

Fernandez, Chairman of Romance Languages, East Carolina

University,individually and in his official capacity, Appellants.

National Education Association, Amicus Curiae.

Robert J. MAYBERRY, Appellant,

v.

William DEES, Chairman, Board of Governors, University of

North Carolina, individually and in his official capacity;

William Friday, President,University of North Carolina,

individually and in his official capacity; RobertMorgan,

Chairman,Board of Trustees, East Carolina University,

individually and in his officialcapacity; Leo W. Jenkins,

Chancellor, East Carolina University, individuallyand in his

official capacity; Robert L. Holt, Vice-Chancellor, East

CarolinaUniversity,individually and in his official

capacity; Robert W. Williams, Provost, EastCarolina

University, individually and in his official capacity;

RichardCapwell, Dean, Arts and Sciences, East Carolina

University, individually and inhis officialcapacity; Joseph

Fernandez, Chairman of Romance Languages, East

CarolinaUniversity, individually and in his official

capacity, Appellees.

National Education Association, Amicus Curiae.

Nos. 79-1204, 79-1205.

United States Court of Appeals, Fourth Circuit

November 5, 1981

Argued June 3, 1981.

Page 503

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Page 504

Jim D. Cooley, Winston-Salem, N. C. (William G. Pfefferkorn, Pfefferkorn & Cooley, P. A., Winston-Salem, N. C., on brief) for appellants.

Julia Penny Clark, Washington, D. C. (Michael H. Gottesman, David M. Silberman, Bredhoff, Gottesman, Cohen & Weinberg, David Rubin, Nat. Ed. Ass'n, Washington, D. C., on brief) for amicus curiae.

Marvin Schiller, Asst. Atty. Gen., Edwin M. Speas, Jr., Sp. Deputy Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen., Raleigh, N. C., on brief) for appellees.

Before HAYNSWORTH, Senior Circuit Judge, HALL and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

I.

The Factual Setting

  1. The parties and prior developments.

    East Carolina University (the University) is a constituent institution of the University of North Carolina, and, as such, is a state agency. MacDonald v. University of North Carolina at Chapel Hill, 299 N.C. 457, 263 S.E.2d 578 (1980). The University employed Robert J. Mayberry, the holder of a Ph.D. degree, 1 as an assistant professor of romance languages 2 commencing in the fall of 1967. His was a probationary status, the initial appointment being for a period of one year, 3 with successive automatic renewals for one year in the absence of notice of termination given no less than one full academic year prior to the commencement of any school year. 4

    As was the customary approach in the case of full time academic faculty members at the University, it was expected that, during the fifth year in probationary status, i. e., during 1971-72, Mayberry would be considered for tenure. If tenure were granted, Mayberry would achieve essentially permanent status, to last until retirement unless interrupted by his death, incapacity or resignation. If tenure should not be conferred following consideration in the fifth year, upon expiration of the sixth year, allowed in compliance with the one-year notice provision, his employment by the University would be without possibility of renewal or extension and would inevitably terminate. 5

    During the fifth year, tenure was not granted to Mayberry. 6 On September 13, 1973, he sued, pursuant to 42 U.S.C. § 1983, claiming that the denial of tenure was retaliatory, to punish him for exercise of protected rights of free expression guaranteed to him by the First Amendment. 7 The defendants included an academic, administrators and governors or trustees.

    Page 505

    We have held in a prior opinion, Mayberry v. Dees, 638 F.2d 690 (4th Cir. 1981), 8 reheard, and now reconsidered, by a reconstituted panel, that no defendant, save Dr. Joseph F. Fernandez, was liable, officially or individually, because of Eleventh Amendment immunity, on the one hand, and because of the defense of good faith immunity, on the other. 9 For the additional considerations which we here elaborate, we approve those holdings of non-liability. 10 Moreover, we have decided that the judgment in favor of Mayberry, against Fernandez, should be reversed, the claim of retaliation as punishment for First Amendment exercise not having been established. The reasons applicable to the case of Fernandez apply a fortiori to all other defendants. In view of those conclusions, there is no basis for granting reinstatement. The district court had denied relief of that nature, and we now affirm that aspect of the decision.

  2. The operative facts.

    1. Mayberry's tenure prospects before exercise by him of the protected speech.

    The actual course of Mayberry's career at the University, insofar as the record discloses, progressed, if not altogether without incident, still essentially quietly until sometime in the fall or winter of the 1971-72 academic year (the fifth year of employment, and, consequently, the year in which Mayberry was to be considered for tenure).

    Nevertheless, the record compiled by Mayberry anterior to the asserted violation of his First Amendment rights did not justify a conclusion that, with a large measure of probability (let alone certainty), he would, during the critical fifth year, be recommended for tenure. 11 It was during that fifth year, 1971-72, that the utterances for which Mayberry has claimed First Amendment protection against retaliation were made.

    As early as July 16, 1970, well before there existed any basis for claiming retaliation as punishment for free speech exercise, Fernandez, the chairman of the romance languages department, in the Annual Evaluation for Mayberry, prepared as part of the regular practice, 12 expressed "doubts about tenure", pointing out that he "(c)ontinues to conduct classes in English" "and refuses to follow" "my views concerning use of the language (Spanish) in class," being "so opposed to my objectives for the Department." He further observed that Mayberry was "given to complaining" and "not willing to compromise." There was evidence, independent of the Annual Evaluations, that Mayberry insisted that it should be done Mayberry's way, not the Department's way, insofar as instruction through the medium of English rather than Spanish was concerned. 13

    Another faculty member's 1970 Annual Evaluation stated:

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    I suspect that if there is a conflict between departmental program and personal desires, however, he will opt for personal desires. He is adolescent in his insistence on "my personal freedom...." He is, however, lazy.

    That academic evaluator concluded that he would recommend tenure only as a means of keeping the services of Mrs. Mayberry for the department.

    The November 1971 Annual Evaluations are mixed. 14 One stated:

    (D)oes not give impression that he works very enthusiastically or derives great satisfaction from teaching.... Potential probably limited, especially until he gains greater conviction concerning teaching profession.... He lacks a kind of strength that would make me recommend him for tenure with confidence that I was getting the best man possible for the position.

    There were also evaluations in November, 1971, that recommended tenure for Mayberry.

    Fernandez, in a May 26, 1971 Evaluation, unquestionably before the fall and winter 1971 utterances for which First Amendment protection is claimed, noted that Mayberry "now says he agrees with my objectives," and concluded: "If reduction in staff is forced upon us, would hesitate to give him tenure. Otherwise, would not object."

    Under the administrative procedures of the University, Fernandez, as chairman of the department of romance languages, was delegated the responsibility, after such consultation with other faculty members of the department, and the dean, as he deemed appropriate or possible, of forming, and forwarding, through the dean, to the University provost, a recommendation as to whether tenure should, or should not be granted. 15 Responsibility for the final decision reposed in the chancellor, but, as a practical matter, it was unlikely that tenure would be granted in the face of a negative recommendation from the department chairman. Cf. Clark v. Whiting, 607 F.2d 634, 637 (4th Cir. 1979).

    Page 507

    2. Circumstances leading up to Mayberry's exercise of free speech and free press.

    In the fall of 1971, the University was looking ahead to an upcoming decennial reaccreditation, a matter of considerable importance to an educational institution. Loss of accreditation would call into question the capability of the University to perform creditably its educational mission. Lacking accreditation, it would find its ability to attract competent teachers and qualified students substantially diminished.

    The University established...

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