Wu v. Thomas

• Citation: 996 F.2d 271
• Decision Date: 27 July 1993
• Docket Number: No. 91-7538,91-7538
• Parties: 62 Fair Empl.Prac.Cas. (BNA) 951, 62 Empl. Prac. Dec. P 42,542, 84 Ed. Law Rep. 40 Dr. Kathleen Johnson WU, Dr. Hsiu-Kwang Wu, Plaintiffs-Appellants, v. Joab THOMAS, University of Alabama Board of Trustees, a body corporate, Roger E. Sayers, individually and in his official capacity as President of the University of Alabama, Dr. Richard Peck, individually, Max Hocutt, individually and in his official capacity as chairperson of the Department of Philosophy of the University of Alabama, Dr. John Formby, individually, Dr. James Yarbrough, in his official capacity as Dean of the College of Arts and Sciences of the University of Alabama, Dr. James G. Taaffe, in his official capacity as Academic Vice President of the University of Alabama, Dr. Billy Helms, in his official capacity as head of the Department of Finance, Economics and Legal Studies of the University of Alabama, Defendants-Appellants, John Bickley, Michael Putnam, Movants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 271

996 F.2d 271

62 Fair Empl.Prac.Cas. (BNA) 951,

62 Empl. Prac. Dec. P 42,542, 84 Ed. Law Rep. 40

Dr. Kathleen Johnson WU, Dr. Hsiu-Kwang Wu, Plaintiffs-Appellants, v. Joab THOMAS, University of Alabama Board of Trustees, a body

corporate, Roger E. Sayers, individually and in his official

capacity as President of the University of Alabama, Dr.

Richard Peck, individually, Max Hocutt, individually and in

his official capacity as chairperson of the Department of

Philosophy of the University of Alabama, Dr. John Formby,

individually, Dr. James Yarbrough, in his official capacity

as Dean of the College of Arts and Sciences of the

University of Alabama, Dr. James G. Taaffe, in his official

capacity as Academic Vice President of the University of

Alabama, Dr. Billy Helms, in his official capacity as head

of the Department of Finance, Economics and Legal Studies of

the University of Alabama, Defendants-Appellants,

John Bickley, Michael Putnam, Movants.

No. 91-7538.

United States Court of Appeals, Eleventh Circuit.

July 27, 1993.

Susan Williams Reeves, Birmingham, AL, for plaintiffs-appellants.

Paul E. Skidmore, Office of Counsel, The University of Alabama System, Stanley J. Murphy, Hattie E. Kaufman, Office of Counsel, The University of Alabama System, Tuscaloosa, AL, for defendants-appellants.

Appeal from the United States District Court for the Northern District of Alabama.

Before EDMONDSON and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.

PER CURIAM:

This case involves a Title VII retaliation claim. We affirm the grant of judgment notwithstanding the verdict ("JNOV").

Plaintiffs H.K. Wu and Kathleen Johnson Wu are professors at the University of Alabama ("University"). In 1984, Kathleen Wu sued the University and certain individuals for sex discrimination. District Judge Guin held a bench trial and found for the defendants on the merits. We affirmed. Wu v. Thomas, No. 84-2159 (N.D.Ala. Oct. 24, 1986), aff'd, 847 F.2d 1480 (11th Cir.1988) ("Wu I "), cert. denied, 490 U.S. 1006, 109 S.Ct. 1641, 104 L.Ed.2d 156 (1989).

In 1987, plaintiffs filed this suit, alleging that defendants violated 42 U.S.C. § 2000-e, 42 U.S.C. § 1983, and the first and fourteenth amendments by retaliating against the Wus for bringing Wu I. Judge Guin granted defendants summary judgment, but we reversed and remanded for trial. Wu v. Thomas, 863 F.2d 1543 (11th Cir.1989) ("Wu II "). On remand, the jury ruled for each defendant except Hocutt, against whom they awarded $20,000 in compensatory damages and $60,000 in punitive damages to Kathleen Wu. The district court granted Hocutt's motion for JNOV or, alternatively, a new trial. Plaintiffs appeal.

I. JNOV

The first question is whether the district court properly granted JNOV to Hocutt. Over plaintiffs' objection, the district court made the jury fill out written interrogatories. Asked to list the ways, if any, that Hocutt retaliated against Kathleen Wu, the jury listed seven acts. ¹ The district court granted JNOV on the basis that these acts involved no constitutionally protected interests and were contrary to no established law.

To obtain damages under section 1983 for a due process violation, a plaintiff must show the denial of a protected property or liberty interest. Absent discharge, or loss of income or rank, injury to reputation is no protected interest. Oladeinde v. Birmingham, 963 F.2d 1481, 1486 (11th Cir.1992). The district court properly concluded that none of the jury's findings involved the denial of constitutionally protected interests.

But plaintiffs relied on more than the fourteenth amendment. They also sought damages under section 1983 for a Title VII violation. 42 U.S.C. § 2000e-3(a) prohibits discriminating against an employee for pursuing Title VII claims. ² Earlier in this case, we held that plaintiffs might recover under section 1983 if they proved a violation of this Title VII provision. See Wu II, 863 F.2d at 1549 & n. 9.

Defendants argue that, even if plaintiffs could recover for a Title VII violation, JNOV was still proper because Hocutt was entitled to qualified immunity. Qualified immunity is no defense to a Title VII action. But defendants could assert qualified immunity once plaintiffs tried to recover damages under section 1983 for the alleged Title VII violation. See generally Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

To defeat a qualified immunity defense, plaintiffs bear a burden that cannot be met by relying on sweeping legal propositions. See Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir.1989). "General propositions have little to do with the concept of qualified immunity." Muhammad v. Wainwright, 839 F.2d 1422, 1424 (11th Cir.1987). Plaintiffs must show the law establishes the contours of a right clearly enough that a "reasonable official would understand that what he is doing" is unlawful. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

When Hocutt acted, it was clearly established that harassment based on an employee's race or gender could violate Title VII, even if the harassment involved no loss of money or position. See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Rogers v. EEOC, 454 F.2d 234 (5th Cir.1971). Our cases also clearly established that no employer could fire, demote, refuse to hire, or otherwise tangibly injure an employee for pursuing a Title VII action. See, e.g., Whatley v. Metropolitan Atlanta Rapid Transit Auth., 632 F.2d 1325 (5th Cir.1980) (retaliatory discharge); Bickel v. Burkhart, 632 F.2d 1251 (5th Cir.1980) (retaliatory refusal to promote); East v. Romine, Inc., 518 F.2d 332 (5th Cir.1975) (retaliatory refusal to hire), overruled on other grounds, Burdine v. Texas Dep't of Community Affairs, 647 F.2d 513 (5th Cir.1981)

But plaintiffs do not cite and we cannot find any case that clearly established that retaliatory harassment--as opposed to sexual or racial harassment--could violate Title VII where the employer caused the employee no tangible harm, such as loss of salary, benefits, or position. ³ The statute itself says that an employer cannot "discriminate" against a protected employee. That all hostile acts are wrongful is not plain from this language. Although we have interpreted Title VII to mean that an employer cannot retaliate by taking an "adverse employment action" against an employee, see, e.g., Whatley, 632 F.2d at 1328, we have never defined what this general phrase means. So, when Hocutt acted, a reasonable employer could not have known for certain whether acts short of firing, demoting, or refusing to hire an employee could violate Title VII. ⁴

We hold only that, when Hocutt acted, it was not clearly established that acts like his would violate Title VII. We do not hold that Hocutt's acts were lawful under Title VII; because of qualified immunity, we do not reach this second issue. The district court properly granted JNOV to Hocutt. ⁵

II. Recusal

Plaintiffs argue Judge Guin should have recused himself under 28 U.S.C. § 455 ⁶ because he has ties to the University, and because he allegedly prejudged plaintiffs' claims. ⁷ We review for abuse of discretion. See Davis v. Board of School Comm'rs, 517 F.2d 1044, 1052 (5th Cir.1975).

Judge Guin's closest ties to the University are his status as an adjunct professor and his past contributions to the University. In denying plaintiffs' recusal motion, Judge Guin noted that he receives no salary as an adjunct professor and that his duties are limited to letting law students intern in federal court and judicial chambers for one semester. He also wrote that he has not donated money to the University for many years.

On these facts (which are uncontested), no reasonable observer would assume that Judge Guin had extra-judicial knowledge of this case or otherwise question Judge Guin's impartiality. So, none of Judge Guin's University connections disqualified him under section 455(a). See United States v. Alabama, 828 F.2d 1532, 1543 (11th Cir.1987) (judge's "background and associations" do not justify recusal); Levitt v. University of Texas, 847 F.2d 221 (5th Cir.1988) (school ties insufficient to disqualify judge); McCann v. Communications Design Corp., 775 F.Supp. 1535, 1543-44 (D.Conn.1991) (same); cf. Easley v. University of Michigan, 853 F.2d 1351, 1356-68 (6th Cir.1988) (recusal required where reasonable observer might believe judge learned about case through extensive school ties); Liljeberg v. Health Svcs. Acquisition Corp., 486 U.S. 847, 864-68, 108 S.Ct. 2194, 2205-06, 100 L.Ed.2d 855 (1988) (recusal required where judge was school trustee). And, plaintiffs point to no financial or other substantially affected interests that would disqualify Judge Guin under section 455(b)(4).

Bias under section 455 must be extrajudicial. United States v. Meester, 762 F.2d 867, 884-85 (11th Cir.1985). Taken in context, none of the statements and rulings cited by plaintiffs reflect extra-judicial bias. At most, plaintiffs' claims of personal bias rest on "unsupported, irrational, or tenuous allegations" about Judge Guin's views of plaintiffs. Giles v. Garwood, 853 F.2d 876, 878 (11th Cir.1988). The district court did not abuse its discretion in denying plaintiffs' motion for recusal.

III. H.K. Wu's Claims

Plaintiffs argue the district court improperly refused to let H.K. Wu testify that, in 1981, he spoke to the University president about foreign-born faculty. They claim the 1981 speech was another reason why defendants retaliated against them. We review the district court's evidentiary decisions for abuse of discretion. United States v. Russell, 703 F.2d 1243, 1249 (11th Cir.1983).

Plaintiffs' complaint, as amended, alleged defendants retaliated against the Wus because of Wu I. Plaintiffs did not introduce the 1981 speech as a basis for retaliation until they clarified their claims for a pretrial order. In that...