Huang v. Board of Governors of University of North Carolina

• Decision Date: 12 June 1990
• Docket Number: No. 88-1374,88-1374
• Citation: 902 F.2d 1134
• Parties: Barney K. HUANG, Plaintiff-Appellant, v. The BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA and Its Constituent Institution, North Carolina State University; Bruce R. Poulton; F.J. Humenik, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1134

902 F.2d 1134

Barney K. HUANG, Plaintiff-Appellant, v. The BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA and Its Constituent Institution, North Carolina

State University; Bruce R. Poulton;

F.J. Humenik, Defendants-Appellees.

No. 88-1374.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 5, 1990.

Decided May 4, 1990.

As Amended May 8, 1990.

Rehearing and Rehearing In Banc Denied June 12, 1990.

Dean A. Shangler, Berman & Shangler, Durham, N.C., for plaintiff-appellant.

Thomas J. Ziko, Asst. Atty. Gen., Raleigh, N.C., for defendants-appellees.

Lacy H. Thornburg, Atty. Gen., Raleigh, N.C., on the brief, for defendants-appellees.

Before HALL and WILKINSON, Circuit Judges, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

ELLIS, District Judge:

Dr. Barney K. Huang, a tenured full professor at North Carolina State University ("NCSU"), was a member of the Department of Biological and Agricultural Engineering ("BAE") from 1963 until 1986. In 1986, he was involuntarily transferred from BAE to the Division of University Studies ("DUS") in the School of Humanities and Social Sciences. University Chancellor Bruce R. Poulton concluded the transfer was in the best interests of Dr. Huang and BAE. He reached this conclusion only after (i) requesting and receiving a report concerning Dr. Huang's performance and productivity in BAE; (ii) receiving a recommendation to terminate Dr. Huang from BAE's 21 full professors; (iii) engaging in substantial conciliation efforts with Dr. Huang; and (iv) providing Dr. Huang with an opportunity to present his grievances to the Faculty Mediation Committee, which, after a nine-day hearing, concluded that Dr. Huang's grievances were not substantiated and that the transfer was in the parties' best interests.

Aggrieved by the transfer, Dr. Huang filed suit pursuant to 42 U.S.C. Secs. 1981 and 1983, alleging that his rights to due process and free speech were violated by appellees' ¹ conspiracy to transfer or dismiss him and that he was discriminated against in salary on the basis of his national origin (Chinese). In addition, Dr. Huang's suit included pendent state claims against appellees for intentional infliction of mental distress, defamation, and interference with contractual relations. The district court granted summary judgment for appellees on all claims except the Sec. 1981 salary discrimination claim and the claims against the acting head of BAE in his personal capacity. ² Those claims were tried to a jury, which rendered verdicts in favor of appellees. Dr. Huang now appeals certain aspects of the district court's summary judgment rulings. Finding no reversible error in those rulings, we affirm.

I

NCSU hired Dr. Huang as an assistant professor in 1963. In 1967, he received tenure, and in 1973 he was promoted to full professor. Throughout this period, and until 1986, he was a member of BAE. Sometime circa 1976, relations between Dr. Huang and BAE soured. In Dr. Huang's view, certain BAE members created obstacles to the discharge of his duties, attempted to block his merit raise and research funding, and generally sought to make his life difficult. BAE members saw matters differently. In their view, Dr. Huang's discharge of his professional duties was unsatisfactory in certain important respects. In January 1985, the situation had deteriorated to the point that Dr. Huang was involved in a physical confrontation with another BAE faculty member.

At about this time, Chancellor Poulton learned about the BAE faculty members' concerns regarding Dr. Huang's professional performance. As a result, the Chancellor requested and received a report from the Dean of the School of Agriculture and Life Sciences ("SALS") on the physical confrontation incident and Dr. Huang's performance and problems in BAE. The report recommended an outside, independent review of Dr. Huang's work. Dr. Huang rejected NCSU's proposal for such a review. Thereafter seventeen of the twenty-one BAE full professors met to consider the situation and, as a result, recommended to the SALS Dean "that procedures be initiated for the dismissal of [Dr. Huang] ... because of neglect of duty and improper conduct with departmental faculty, graduate students and staff." The four BAE full professors absent from the meeting later added their endorsements to this recommendation. Following receipt of this recommendation, Chancellor Poulton met first with the BAE professors and then with Dr. Huang. In the latter meeting, Dr. Huang suggested that his transfer to another NCSU department might resolve the matter. Seizing on this suggestion, the Chancellor sought an academic home for Dr. Huang in another NCSU department. When the success of this effort appeared in doubt, the Chancellor advised Dr. Huang that, unless he agreed to an independent review of his professional work, the Chancellor would be compelled to initiate his discharge. Dr. Huang at first agreed to, but ultimately rejected, the Chancellor's proposal. Further efforts to negotiate a mutually satisfactory solution failed.

Shortly thereafter, the Division of University Studies, a department devoted to interdisciplinary research and teaching, agreed to accept Dr. Huang. Chancellor Poulton, after determining that Dr. Huang's expertise in biological and agricultural engineering would be effectively employed in DUS, decided to transfer Dr. Huang to DUS. Dr. Huang, despite having initially suggested a transfer, resisted the Chancellor's decision. Chancellor Poulton then postponed the effective date of the transfer in order to grant Dr. Huang's request for an opportunity to present his grievances to the Faculty Mediation Committee, a faculty-elected standing committee designated to hear faculty grievances not involving discharges, suspensions or reductions in grade. The Committee heard Dr. Huang's case over a nine-day period involving approximately forty hours of testimony from eighteen witnesses. Dr. Huang appeared, was represented by counsel, and was permitted to present evidence and witnesses to support his grievances. The Committee also heard Chancellor Poulton, various NCSU administrators, and BAE members. After hearing all the witnesses and evidence, the Committee gave Dr. Huang and his counsel an opportunity to present closing arguments.

In the report it filed following the hearing, the Committee concluded that the evidence did not substantiate Dr. Huang's claims that NCSU officials had "obstruct[ed] his normal University duties and professional development, [and] ... [engaged in] unethical means to accomplish his dismissal or resignation." Beyond this, the Committee concluded that Dr. Huang's transfer from BAE was in the interests of Dr. Huang and the department. Consistent with this conclusion, the Committee proposed terms of transfer and recommended the appointment of a committee to explore negotiated resolutions. Chancellor Poulton accepted this recommendation, appointed a three-member negotiating committee, and charged it with negotiating a mutually agreeable resolution with Dr. Huang. This effort failed. Therefore, in September 1986, Chancellor Poulton transferred Dr. Huang to DUS. ³ Coincident with the transfer, NCSU reduced Dr. Huang's contractual obligation to the university from twelve months to nine months without a corresponding pay reduction.

II

The district court dismissed Dr. Huang's monetary damage claims against the state defendants as barred by the Eleventh Amendment. As Dr. Huang correctly concedes, it is well settled that the Eleventh Amendment bars a suit by private parties to recover money damages from the state or its alter egos acting in their official capacities. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). Dr. Huang also properly concedes that the Eleventh Amendment bars the pendent state monetary damage claims as well as the Sec. 1981 and Sec. 1983 damage claims. See Papasan v. Allain, 478 U.S. 265, 277, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 120-21, 104 S.Ct. 900, 911, 918-19, 79 L.Ed.2d 67 (1984); see also Actmedia, Inc. v. Stroh, 830 F.2d 957, 964 (9th Cir.1986) (Eleventh Amendment protection applies even where state officials alleged to have acted in excess of their authority). Seeking to avoid this result, Dr. Huang contends that North Carolina's enactment of N.C.Gen.Stat. Sec. 116-3 operates as a waiver of the state's Eleventh Amendment immunity. ⁴ The district court correctly ruled to the contrary.

While it is clear that a state may waive the Amendment's protection, it is equally clear that courts may find a waiver "only where stated 'by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.' " Edelman, 415 U.S. at 673, 94 S.Ct. at 1361 (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909)); see also Welch v. Texas Dept. of Highways & Pub. Transp., 483 U.S. 468, 473, 107 S.Ct. 2941, 2945-46, 97 L.Ed.2d 389 (1987); Pennhurst State School & Hosp., 465 U.S. at 99, 104 S.Ct. at 907. And it is settled that a statute waiving a state's sovereign immunity in its own courts is insufficient to waive its Eleventh Amendment immunity; the statute must specify the state's intention to be sued in federal court. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 3146, 87 L.Ed.2d 171 (1985).

N.C.Gen.Stat. Sec. 116-3 does not meet these rigorous standards. It contains no express language waiving North Carolina's constitutional immunity, nor does its language justify any inference of a waiver. Moreover, even if this provision could be construed as a waiver of North Carolina's sovereign immunity in its own courts, it lacks any indication that North Carolina has consented to suit in federal court. As the ...