Brown v. Texas A & M University

• Decision Date: 17 November 1986
• Docket Number: No. 85-2710,85-2710
• Citation: 804 F.2d 327
• Parties: 42 Empl. Prac. Dec. P 36,873, 6 Fed.R.Serv.3d 86, 35 Ed. Law Rep. 938 Robert B. BROWN, Plaintiff-Appellee, v. TEXAS A & M UNIVERSITY, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 327

804 F.2d 327

42 Empl. Prac. Dec. P 36,873, 6 Fed.R.Serv.3d 86,

35 Ed. Law Rep. 938

Robert B. BROWN, Plaintiff-Appellee, v. TEXAS A & M UNIVERSITY, et al., Defendants-Appellants.

No. 85-2710.

United States Court of Appeals, Fifth Circuit.

Nov. 17, 1986.

James C. Todd, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for defendants-appellants.

Robert M. Wood, Kingwood, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, GOLDBERG and GARWOOD, Circuit Judges.

GOLDBERG, Circuit Judge:

Plaintiff-Appellee Robert B. Brown is a former employee of Defendant-Appellant Texas A & M University (University). Following his separation, Brown filed claims in federal district court under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq., and the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, against both the University and one of his superiors, James R. Reynolds. Brown alleges, inter alia, that during the course of his separation, Reynolds and the University failed to adhere to the dictates of the Due Process Clause of the Fourteenth Amendment. The district court denied a summary judgment motion filed by Reynolds and the University, holding that Brown's amended complaint was pleaded with sufficient particularity under the standards set out in Elliott v. Perez, 751 F.2d 1472 (5th Cir.1985), and that Brown's allegations had overcome Reynolds' right to qualified immunity. Reynolds appeals.

As more fully set forth below, we reverse the district court's finding that Brown has pled his complaint with sufficient particularity to state a claim under Elliott. We hold that Brown's Sec. 1983 claim alleges facts that are insufficient to present a cognizable violation of Procedural Due Process. We thus hold that Brown failed to plead his complaint with sufficient particularity to state a claim under Elliott. We also find that the University accorded Brown all the process that he was due. Alternatively, if the actions of which Brown complains were the result of random, unauthorized conduct by an individual official, Brown was afforded constitutionally adequate postdeprivation remedies. Thus, allowing Brown to replead his Procedural Due Process claim would serve no useful purpose. We, therefore, remand for an order dismissing this aspect of his complaint.

We further find, however, that Brown may be able to replead his complaint to allege a Substantive Due Process claim for retaliation in violation of his rights under the First and Fourteenth Amendments. Although insufficiently elucidated by Brown in either his complaint or his brief before this court, the record before us reveals facts that may be sufficient to support an adequate pleading under Elliott. We therefore remand to the district court, so that Brown may have an opportunity to replead his complaint with regard to this one aspect.

I. Factual Background

From June 1980 until his separation in September of 1983, Brown was an accountant at the Memorial Student Center (MSC) of the University. At the time of Brown's separation Reynolds was, and continues to be, the Director of the MSC. Brown was hired by Reynolds to establish an accounting system at the MSC.

Judged by Brown's payraises and performance evaluations, Reynolds and Brown's immediate supervisor, James Randolph, were delighted with Brown's initial performance; Brown received one of the highest payraises of the MSC employees both in 1981 and in 1982. But the tide of events quickly turned. Beneath the calm surface of Reynolds' and Randolph's apparent satisfaction with Brown's performance, a contentious undercurrent developed.

In September of 1982, Brown found what he thought to be a possible impropriety in the way a faculty member was handling funds. Specifically, Brown discovered that the faculty adviser for the Student Flying Club was leasing airplanes to the club and signing the checks made payable to himself to cover the monthly lease payments, which the adviser received.

Concerned with the potential for abuse, Brown blew the whistle. On several occasions, he informed both Randolph and Reynolds of the possible self-dealing by a faculty member. From that point forward, the tenor of Brown's employment relationship allegedly took on a different pitch. Randolph immediately became "unfriendly, caustic, super-critical, [and] aloof." Rec.Ex. at 173. It is undisputed that Brown originally received his work assignments orally and informally. But subsequent to his whistleblowing, he received numerous "condescending" written memoranda from Randolph, outlining the tasks that Brown was to perform and setting deadlines for their completion.

In May 1983, Brown received only the minimum, legislatively mandated payraise. On June 10, 1983, Reynolds held a meeting with Brown, at which Reynolds expressed considerable dissatisfaction with Brown's performance. On June 21, Reynolds wrote a rather lengthy memorandum to Brown, detailing the criticisms that he had levelled against Brown at the June 10 meeting. These charges were mainly attitudinal in nature.

Brown subsequently requested another meeting, which was held on June 28. Brown, Reynolds, Randolph and three of Brown's coworkers were present, and Brown read from a prepared statement:

[I] [p]ut this all together--with considerable thought and no small amount of anguish--[the] latter part of last week. [I] [r]ethought it over the weekend--and changed my mind yesterday--I am going to leave.... I plan to stay with the University somewhere in a higher level position, an equivalent position or a lower level position, but somewhere I can fit in, make a contribution, and not bother people.

Rec.Ex. at 28. On June 30, Brown submitted the following written statement to Reynolds:

I do believe I have a contribution to make to Texas A & M University. Barring unforseen happenings I have ten years before I reach retirement age. I have a wealth of work experience in a number of areas. I would like to continue with the University in some capacity and I solicit your help in that direction.

Rec.Ex. at 29.

Reynolds and the University contend that Brown's statements of June 28 and June 30 constitute a "voluntary resignation" by Brown. Following the June 30 memo, Brown had a number of meetings with Reynolds and Randolph, at which they discussed when Brown would leave the MSC. Once again "Brown ... expressed his desire to find employment elsewhere at Texas A & M." Brief for Reynolds at 8. It is not clear to what extent Reynolds agreed to assist Brown in his effort to seek another position within the University. The record is also unclear as to whether Reynolds played any part in Brown's inability to secure another job at the University. In any event, Brown wrote another memorandum to Reynolds on July 20, 1983, in which he stated that he was resigning "under protest and without prejudice to any rights I may have to seek relief or damages for violations of my civil rights." Rec.Ex. at 35.

Reynolds responded to Brown's memorandum on July 21 stating:

I do not understand your letter of July 20, 1983 announcing your resignation "under protest" and your allegations of discrimination....

....

I will accept this resignation. However, the innuendos included in your July 20 memorandum leave me no alternative but to clearly indicate herein that you would have been terminated had you not elected to resign. The termination would have been premised on your inability to maintain a satisfactory relationship with your supervisor ...

Rec.Ex. at 36 (emphasis added). Brown left the MSC and the University on September 1, 1983.

Following his departure, Brown invoked the University's formal grievance procedure. Sometime later in September, Brown had a meeting with a University Vice-President. Unable to obtain satisfaction, Brown next sought relief under the University arbitration procedure. A mutually agreed-upon, neutral arbitrator heard Brown's grievance on December 12, 1983, and issued an award on February 7, 1984. The arbiter determined that "Mr. Brown was not terminated; he voluntarily resigned." Rec.Ex. at 102.

On July 13, 1984, Brown filed this action against Reynolds and the University in federal district court, asserting actions under the ADEA and Sec. 1983. On September 21, Brown moved for partial summary judgment on his Sec. 1983 claim, asserting that his Due Process rights had been violated by the University's failure to abide by its formal termination procedures. Reynolds and the University cross-filed, asserting the affirmative defenses of qualified and sovereign immunity. The district court dismissed Brown's motion for summary judgment, denied Reynolds' claim of qualified immunity, and dismissed the University as a defendant on the basis of sovereign immunity. Discovery ensued, and Brown and Reynolds were subsequently deposed. Reynolds again moved for summary judgment, reasserting that he was immune from suit under the doctrine of qualified immunity. The district court, however, entered an order reinstating the University as a defendant in the ADEA claim and ordering Brown to replead his complaint in order to conform to the pleading standards established in Elliott v. Perez.

Following Brown's amended complaint, Reynolds again filed a summary judgment motion, suggesting that Brown's pleadings continued to be deficient under Elliott, and that Reynolds had violated no clearly established constitutional law when Brown's employment relationship was severed such as to present a Sec. 1983 claim against Reynolds. The district court denied Reynolds' motion, and he takes this appeal.

II. Jurisdiction

Brown asserts, without elaboration or authority, that "[t]his interlocutory appeal does not deal with a 'final order' in any true sense." Appellee's Brief at 1. Thus, Brown would apparently argue, we do not have jurisdiction under 28 U.S.C. Sec. 1291. This case, however, is within...