761 F.2d 1079 (5th Cir. 1985), 83-1871, Kelleher v. Flawn

Docket Nº:83-1871.
Citation:761 F.2d 1079
Party Name:Kathleen KELLEHER, Plaintiff-Appellant, v. Peter FLAWN, Gerhard Fonken, Robert King, Joseph Horn, and Charles Cnudde, Defendants-Appellees.
Case Date:June 03, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1079

761 F.2d 1079 (5th Cir. 1985)

Kathleen KELLEHER, Plaintiff-Appellant,


Peter FLAWN, Gerhard Fonken, Robert King, Joseph Horn, and

Charles Cnudde, Defendants-Appellees.

No. 83-1871.

United States Court of Appeals, Fifth Circuit

June 3, 1985

Page 1080

[Copyrighted Material Omitted]

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Sarah Scott, Brooklyn, N.Y., James Simons, Austin, Tex., for plaintiff-appellant.

Jim Mattox, Atty. Gen., Scott McCown, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.

Suzan T. Cardwell, Houston, Tex., for Peter T. Flawn.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, WILLIAMS, and HILL, Circuit Judges.


Under 42 U.S.C. Sec. 1983, Kathleen Kelleher, a graduate student and assistant instructor in the Government Department of the University of Texas at Austin, brought this action against various officials of the University. She claims she was denied rights guaranteed her under the First and Fourteenth Amendments of the Constitution when she was reassigned from a teaching position to a position in which she was not primarily responsible for the teaching of a course. We affirm the district court's judgment in favor of all defendants.


Kelleher held the position of assistant instructor (AI) in the Government Department of the University of Texas (the University) during the 1979-80 term. At the University, an AI is a graduate student in the last phase of a Ph.D. program. The position is not tenured nor is it considered a stage in the advancement towards tenure. AI's are heavily supervised by the faculty. The University's "Handbook of Operating Procedures," Sec. 8.03(2), provides that "instructional service [rendered by AI's] is to be rendered in accordance with a syllabus and/or other specific guidelines and criteria which have been prepared and approved by the departmental faculty."

In the summer of 1980 two students complained of the method and content of Kelleher's teaching of American Government 312. She was scheduled to teach Government 310, the introductory course in the 310-312 sequence, in the fall of 1980. At this time, mid-August 1980, the Department of Government was awaiting the arrival of a new department chairman, Charles Cnudde. Cnudde was brought to the University as part of an ongoing attempt to restructure the department's teaching of the 310-312 course sequence to comply with the legislative mandate in that regard. The outgoing chairman was Karl Schmitt and the acting chairman was Robert Hardgrave.

The complaints came to the attention of Dean Joseph Horn, Associate Dean of the College of Liberal Arts. In a letter, Dean Horn requested Hardgrave to investigate the complaints. Copies of Dean Horn's letter were sent to Gerhard Fonken, the Vice President for Academic Affairs, and Robert King, the Dean of the College of Liberal Arts. The President of the University, Peter Flawn, was also notified of the complaints and the investigation. Hardgrave,

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in response to Dean Horn's inquiry, wrote a convincing 3-page letter that concluded that all complaints against Kelleher were "without substance."

At Fonken's insistence, Dean Horn continued to investigate the complaints against Kelleher. As a peripheral result of this investigation, Dean Horn concluded that the department's use of AI's was not in compliance with Sec. 8.03 of the Handbook. President Flawn had meanwhile instructed that Kelleher's reappointment to the AI position be held pending the outcome of the investigation and that if the investigation revealed a "sufficient basis" Kelleher would "be removed from the classroom."

AI's are generally appointed to their positions by "memoranda of appointment" which issue from the dean's office of the particular department in which the AI is enrolled. The memoranda are subject to the final approval of the Vice President of Academic Affairs after intermediate approval by the College Dean. The Government Department memoranda for the fall of 1980 had been dispatched to the Office of the Dean of the Liberal Arts College where Dean Horn reviewed them. The memoranda were subsequently returned to the Government Department by Dean Horn for failure to comply with Sec. 8.03: the memoranda permitted the AI's to prepare their own course syllabi rather than requiring that they be prepared by full faculty members or pursuant to specific guidelines prepared by the faculty.

Thus, when Cnudde, the new Chairman of the Government Department, began his term on August 12, he was confronted with three problems: (1) the adequacy of the 310-312 classes with respect to content and form; (2) the extent of compliance with Sec. 8.03 in using AI's; and (3) the Kelleher controversy.

On August 21 Cnudde met with Kelleher to discuss the complaints. Their versions of the meeting diverge sharply, Kelleher characterizing it as amicable and calm, Cnudde characterizing it as a confrontation pitting her belligerence against his attempts at reassurance and conciliation. Both, however, agree that Cnudde first reassured Kelleher that she remained in good standing in the department. They also agree that they discussed: (1) the fact that the cancellation of the August memoranda of appointment had no connection with the controversy surrounding her; and (2) Kelleher's own syllabus, specifically, her failure to use a Texas government text and readings in Texas politics, which Cnudde considered requisite. At this point Kelleher stated, "I am not sure I want to teach the course if [I have to use a textbook in Texas politics]." Kelleher claims she explained her unwillingness to use a Texas text by saying she did not believe the relevant legislation mandated it. Cnudde denies that Kelleher offered this explanation and claims Kelleher went on to object to any review of her syllabus and called the meeting an "inquisition."

Kelleher claims the meeting ended cordially. Cnudde claims that Kelleher was shouting and cursing at him by the end of the meeting and that he told her firmly that she would not teach Government 310 in the fall, his reasoning being that her actions indicated an unwillingness to comply with his authority and that of the regulations.

In any event, it is conceded that Cnudde had decided to reassign Kelleher by the close of the meeting. Cnudde testified at trial that his decision to change Kelleher's duties was not influenced by the complaints concerning the summer class or by an earlier letter from Dean Horn to Vice President Fonken expressing the opinion that Kelleher had "clearly exceeded her authority" in her conduct of the summer course. Cnudde also claims he knew nothing of the correspondence between President Flawn and Fonken concerning Kelleher's reappointment. In fact, Cnudde believed that Hardgrave's letter had completely exonerated Kelleher of any wrongdoing in connection with her teaching practices. He also testified that he shares with Kelleher a common political perspective. Flawn, Fonken, King, and Horn all claim they had

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no influence on Cnudde's reassignment of Kelleher.

On August 25 Kelleher was definitely told that she would not be teaching Government 310 in the fall. On August 27 she received a memorandum of appointment as an AI but without teaching responsibility; she would be permitted "to assist a faculty member ... by grading [and] leading discussion sections." On September 10 Kelleher accepted the reassignment "under duress." On September 19 she withdrew her acceptance. On December 1 she initiated a formal grievance proceeding, contesting the propriety of what she termed a "demotion."

The Grievance Committee that considered her complaints did not find a First Amendment violation but ruled that Kelleher was denied due process and recommended that she be paid for the fall 1980 semester. When the Committee's recommendations were sent to the President's office, Flawn rejected the due process finding because he believed graduate students not to be entitled to a hearing contesting their assignments. Flawn stated, however, that Kelleher had been inadequately supervised by the department and that no blame attached to her conduct.

Kelleher then filed this civil rights action against Flawn, Fonken, King, Horn, and Cnudde. After a bench trial, the district court dismissed Kelleher's suit without written findings. The court, however, stated on the record that it found no First Amendment violation because Kelleher was "put ... to a constitutional choice" when she was reassigned, her decision to reject reassignment being "a failure to mitigate damages." The court also found that the reassignment was not a "constructive termination." Finally, the court found no due process violation.


Kelleher claims her First Amendment rights were violated in that she was reassigned in retaliation for expressing political opinions in her Government course. To prove a retaliation claim cognizable under the First Amendment, the plaintiff must show that her speech was constitutionally protected and that it was a "substantial" or "motivating" factor in the defendant's decision. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). If this burden is discharged, the burden of proof then shifts to the defendant to show that the same decision would have been made even in the absence of the protected speech. Id. The district court apparently 1 held that Kelleher's exercise of protected First Amendment rights was not a motivating factor in the decision to reassign her. We are thus called upon to decide what aspects of Kelleher's speech or conduct, if any, were protected and whether any such protected activity motivated Cnudde's reassignment of Kelleher.

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