83 F.3d 1075 (9th Cir. 1996), 94-15187, Nelson v. Pima Community College

Docket Nº:94-15187.
Citation:83 F.3d 1075
Party Name:96 Daily Journal D.A.R. 5269 Elinor S. NELSON, Ph.D., a Single Person, Plaintiff-Appellant, v. PIMA COMMUNITY COLLEGE, Pima Community College District, a Public Entity; Johnas Hockaday, Dixie Lee Hockaday, Husband & Wife and Brenda Marshall Beckman, a Single Person, Defendants-Appellees.
Case Date:May 07, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1075

83 F.3d 1075 (9th Cir. 1996)

96 Daily Journal D.A.R. 5269

Elinor S. NELSON, Ph.D., a Single Person, Plaintiff-Appellant,

v.

PIMA COMMUNITY COLLEGE, Pima Community College District, a

Public Entity; Johnas Hockaday, Dixie Lee

Hockaday, Husband & Wife and Brenda

Marshall Beckman, a Single

Person, Defendants-Appellees.

No. 94-15187.

United States Court of Appeals, Ninth Circuit

May 7, 1996

Argued and Submitted June 12, 1995.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Carol Korhonen, Tucson, Arizona, for plaintiff-appellant.

Darwin J. Nelson (argued) and Michael E. Medina, Jr. (on the briefs), Kimble, Gothreau & Nelson, Tucson, Arizona, for defendant-appellee.

Appeal from the United States District Court for the District of Arizona; Alfredo C. Marquez, District Judge, Presiding. No. CV-90-00590-ACM.

Before: GOODWIN, FARRIS and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

A college Affirmative Action Officer sued on numerous state and federal grounds, when the college did not renew her contract after it expired. We affirm the summary judgment against her.

FACTS

The acting President of Pima Community College, Brenda Beckman, hired Elinor Nelson as Assistant to the President for Affirmative Action and Equal Employment Opportunity. The job description said that the position "reports to the President," provides "staff assistance to the college President," and "receives administrative direction from the College President." Two employment contracts were executed shortly after Nelson was hired. One ran to the end of June 1990, the second from July 1, 1990 to June 30, 1991. Both contracts said that the employment was "to terminate" at the end of the contract. Both contracts provided that "assignment or reassignment of duties ... shall be and shall remain the prerogative of the Chief Administrative Officer...."

Dr. Nelson's employment became problematic immediately. A new Chancellor and President, Jeff Hockaday, was in the process of being selected for the college. Dr. Nelson wrote to him in April, before his selection was final and before he commenced his duties, making three recommendations. First, she wanted her title changed to "Director of Affirmative Action/Equal Employment Opportunity," with a salary commensurate with the Director of Institutional Research and Planning. Second, she said "it is imperative that I be a member of the Chancellor's cabinet." Third, she wanted the title changed for a staff position under her. To support her demands, Dr. Nelson described the "tremendous responsibilities" she would have with respect to the entire functioning of the college.

Dr. Hockaday wrote back that he had a great deal of experience in the business of affirmative action himself, and it was a major concern of his. "You need to expend your energy assisting me in carrying out the function." Dr. Hockaday said that he had looked at the job description for Dr. Nelson's position, found that it did not resemble what she described, and wrote "your job description will not be as universal as you have described it to be. What you describe approximates the responsibilities of the Chancellor." He wrote her that she was "employed as an Assistant to the President and will remain so in the organization I plan. Your position will not be included in the Chancellor's cabinet."

In addition to offending the incoming President, Dr. Nelson quickly developed a hostile relationship with the acting President who had hired her. On May 11, President Beckman sent Dr. Nelson a written reprimand, stating that her "demeanor has been so much at variance with the expectations of a senior administrator of this college as to be absolutely unacceptable." The problems to which Ms. Beckman referred involved "a series of recent interactions" with other employees which caused "serious harm to the working atmosphere of the college."

Dr. Hockaday sent Dr. Nelson a written reprimand shortly after he began his duties. In the reprimand, he was very explicit in giving "instructions" and "clarifications" making it crystal clear that Dr. Nelson was to work for him as staff, and did not have any independent authority to act on her own. He wrote that failure to adhere to the "directives" in the letter would be considered "insubordination." He reiterated what he had told her in April, "the primary responsibility for EEO/AA is mine."

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After she left the college's employ, Dr. Nelson filed a complaint with the Office of Civil Rights, United States Department of Education, alleging sex discrimination and retaliatory discharge. OCR investigated, and ruled that there were no violations. An investigative report, findings, and conclusions by the Office of Civil Rights, Department of Education was among the evidentiary submissions considered by the district court.

The Office for Civil Rights had concluded that the reason why Nelson was constructively discharged was not her sex or retaliation for protected activity. OCR found that Nelson's approach to her duties "created too much conflict and was contrary to the approach desired by her supervisor."

As an example of Dr. Nelson's claims that her office had been deprived of needed resources in retaliation for expression of her opinion, OCR discussed the "telephone dispute." Dr. Nelson claimed that she had not been provided with adequate telephone resources. "She requested a six-line telephone and a direct line to the President. In response the President indicated that he only had a two-line phone and that no one in the college had a direct line to him except his secretaries. Thus, although she was denied the request, there was no evidence that she was being treated differently than other employees at PCC."

Dr. Nelson had claimed that the administration did not support her in two instances where she believed there were affirmative action violations. OCR found that she had demanded various documents from the college police chief. When he refused, she ordered all hiring be stopped. She wrote the police chief what purported to be an "immediate temporary remedial affirmative action order," and sent another order to the college's Assistant Vice President of Human Resources, telling them that they could not hire anyone without her approval, until what she perceived as imbalances in job categories were remedied. OCR determined that President Hockaday had not given Dr. Nelson any authority to issue such orders, and concluded he would not have provided her with the authority if she had requested it.

OCR found that Dr. Nelson had also gone beyond her authority with respect to hiring a faculty biologist position. She felt that the hiring process did not conform to proper affirmative action practices, so she ordered the relevant dean not to use the process, to stop the selection process, and not to hire the person who had been selected. The evaluation process included "a teaching module which may favor more experienced teachers," but OCR found no evidence that the evaluation method was invalid or had an adverse impact on a protected group. OCR found that Dr. Nelson had again gone beyond her authority without justification.

OCR also found that employees were often intimidated by Dr. Nelson, because of her "demands for materials which they could not or were not authorized to provide unless [Nelson] went through the proper channels." She also gave orders for which she had no authority to managers of various departments. OCR assumed without deciding that there was a constructive termination, and decided that the reasons for it "were not connected to protected activities per se, but rather were connected to [Nelson's] professional behavior which OCR found was outside the framework of protected conduct. OCR found that [Nelson] acted in a manner which was inconsistent with the requirements that Dr. Hockaday had prescribed."

On July 26, Dr. Hockaday wrote another reprimand to Dr. Nelson, telling her again that there was a "problem of procedure" between them, because she was supposed to be "staff" to him and his office, not hers, was to be "the power office." On July 30, Dr. Hockaday met with Dr. Nelson, and told her that her employment at the college could not continue. She was put on paid administrative leave and told to stay away from the building. Dr. Hockaday had the locks on her office changed, "because it had been reported to me that Dr. Nelson was removing Pima Community College property from her office." Dr. Nelson did not return to work, but she was paid nevertheless. She received all of the compensation and benefits to which she was entitled under her employment contract, until it automatically terminated nearly a year later, on June 30, 1991.

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ANALYSIS

We review the grant of summary judgment de novo, Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994), denial of leave to amend for abuse of discretion, Fuller v. Vines, 36 F.3d 65, 67 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1361, 131 L.Ed.2d 218 (1995), and the attorney's fees award for abuse of discretion, In re Washington Public Power Sys. Lit., 19 F.3d 1291, 1296-97 (9th Cir.1994).

I. FIRST AMENDMENT CLAIMS

Dr. Nelson argues that she established a genuine issue of fact about whether she was constructively discharged because she criticized the college's affirmative action program. For purposes of this discussion, we assume without deciding that her criticism of the college's affirmative action plan was protected speech, and that locking her out of her office a year before her contract ended was constructive discharge, even though she was paid to the end of her contract.

Nelson appears to be arguing on appeal that the district court gave preclusive effect to the OCR report, but it did not. Both sides agree that the district court may properly use the OCR report and...

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