Davis v. Alabama State University, Civ. A. No. 84-T-1090-N.

• Decision Date: 25 June 1985
• Docket Number: Civ. A. No. 84-T-1090-N.
• Citation: 613 F. Supp. 134
• Parties: Nelson J. DAVIS, Plaintiff, v. ALABAMA STATE UNIVERSITY, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

613 F. Supp. 134

Nelson J. DAVIS, Plaintiff, v. ALABAMA STATE UNIVERSITY, et al., Defendants.

Civ. A. No. 84-T-1090-N.

United States District Court, M.D. Alabama, N.D.

June 25, 1985.

COPYRIGHT MATERIAL OMITTED

Kenneth L. Thomas, Massey, Means & Thomas, Montgomery, Ala., for plaintiff.

Solomon S. Seay, Jr., Montgomery, Ala., for defendants.

MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

Plaintiff Nelson J. Davis has brought this lawsuit pursuant to 42 U.S.C.A. § 1983 against defendants Alabama State University, its president and its Board of Trustees, claiming that the university discharged him in violation of "procedural" due process guaranteed by the fourteenth amendment to the U.S. Constitution. Based on the evidence presented at a non-jury trial, the court finds that Davis's complaint has merit in part and that appropriate relief is warranted.

I.

In 1979, Davis began working at Alabama State University as an academic advisor at the university's Academic Advisement Center. Since Davis's duties did not involve teaching, the university designated him a "nonacademic" employee with rights and responsibilities set forth in the Nonacademic Staff Handbook.

In early 1984, several university officials, including Davis's supervisor at the center, recommended that Davis be dismissed for alleged acts of insubordination occurring in January 1984. In response, the university initiated discharge proceedings against Davis pursuant to the Nonacademic Staff Handbook, which sets forth the procedures for dismissal. Employing these procedures, Davis requested and received a hearing before the Committee for Nonacademic Personnel, over which the university's personnel director presided. Throughout the proceedings, Davis was represented by retained counsel.

Before the hearing, the university informed Davis of witnesses it expected to testify, and granted his request that witnesses be subpoenaed in his behalf. However, the personnel director informed counsel for both Davis and the university that the committee would consider testimony from only those witnesses who had knowledge regarding the alleged acts occurring in January 1984, and would not consider evidence of events prior to these acts.

The committee found Davis guilty of the alleged acts; however, it recommended that he not receive the maximum sanction, presumably dismissal, since it had considered "only a small portion of what seems to be a larger problem." According to the procedures, the committee's findings as to the offenses charged and nonbinding recommendation for sanction went to the university's president, defendant Leon Howard, for his decision.

Besides the committee's report, Howard received the recommendation from the personnel director that Davis be dismissed. Howard also considered information in Davis's personnel file, including reports of past allegations of insubordination by Davis. Howard dismissed Davis.

Davis appealed his dismissal to the Board of Trustees. While the president has the authority to dismiss employees, the handbook provides for appeal to the Board. The Board has neglected or refused to respond to Davis's appeal.

II.

As recently reaffirmed by the U.S. Supreme Court, the due process clause of the fourteenth amendment guarantees persons with a property interest in their employment certain procedures before they may be dismissed. Cleveland Board of Education v. Loudermill, ___ U.S. ___, ___, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985). Here, all parties agree that Davis had a property interest in his employment guaranteeing such procedures. They differ, however, on whether Davis received all the procedures required by the due process clause.

Davis contends as follows: first, that he should have been allowed to present testimony from the witnesses subpoenaed for him for the hearing; second, that President Howard should not have considered information in Davis's personnel file or, if he did, that Davis should have had a chance to respond to such information; and third, that the Board of Trustees should have acted on his appeal. The court considers these contentions in turn.

A.

The essence of due process is "notice and an opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-657, 94 L.Ed. 865 (1950). Here, Davis received notice of allegations of insubordination occurring in January 1984. Davis contends that he was nevertheless denied due process because he was prohibited from presenting testimony from the witnesses he had subpoenaed concerning his past performance. This evidence apparently was intended to address what sanction the university might impose on Davis, not whether he committed the acts alleged. As already stated, Davis was not allowed to present the evidence because the presiding officer limited the committee's consideration to evidence regarding the present allegations of insubordination.

"Ordinarily, the right to present evidence is basic to a fair hearing." Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974). Indeed, the right to present witnesses and documentary evidence is "chief among the Due Process minima." Ponte v. Real, ___ U.S. ___, 105 S.Ct. 2192, 2195, 85 L.Ed.2d 553 (1985). However, this right is not unbridled, but is circumscribed by "the necessary discretion to keep the hearing within reasonable limits." Wolff, 418 U.S. at 566, 94 S.Ct. at 2980. Furthermore, in nonjudicial, administrative settings, broad discretion must be afforded.

Here, the personnel director, who presided over Davis's hearing, determined that the hearing committee's findings as to the charges and recommendation for punishment would be based solely on evidence from the period of the alleged acts of insubordination. Both Davis and the university were subject to this limitation. This court cannot say that this limitation was unreasonable and that the personnel director abused his broad discretion. Thus, the limitation did not violate Davis's right to procedural due process.

B.

Davis's second contention is that Howard should not have considered information in Davis's personnel file in deciding to dismiss him, unless Howard gave Davis an opportunity to respond to such information. This contention has merit.

In Cleveland Board of Education v. Loudermill, the Court said that "the opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement." ___ U.S. at ___, 105 S.Ct. at 1495. This is so whether the issue is if discipline is appropriate or what discipline is appropriate. ___ U.S. at ___, 105 S.Ct. at 1494. Here, the evidence reflects and the court finds that, in deciding to dismiss Davis, Howard considered information in Davis's personnel file relating to past allegations of insubordination. It is undisputed that Davis had no opportunity to respond to the information. Furthermore, he had no notice that Howard would consider it.

The past allegations of insubordination were, in part, what Davis had wanted the committee to consider, although it refused to do so. It is ironic that Howard then considered the allegations. It was also improper. While the committee could permissibly restrict the evidence, as it did, and Howard could then permissibly broaden it, once Howard did so, he had to notify Davis and give him a chance to respond. Howard did not afford Davis due process simply by considering the past allegations. What Davis wanted was not just that Howard consider them but that Davis have "an opportunity to present his side of the story." ___ U.S. at ___, 105 S.Ct. at 1495. Howard denied Davis this opportunity.

Howard testified at trial that he would have dismissed Davis even had he not considered information in his personnel file. Howard would thus appear to contend that any violation of due process was harmless. This is not so. The court has not found that Howard should not have considered the information in the personnel file. Although Howard could have chosen to rely only on the evidence presented at the hearing, once he decided to consider other evidence, he had to notify Davis and allow him to respond.

Indeed, Davis's employment record appears most relevant to what sanction Davis might receive. Such evidence would put Davis's acts of January 1984 in the context of, among other things, his overall job performance and his relations with fellow employees and other supervisors. As of yet, university officials have not had an opportunity to consider Davis's sanction in light of such factors, as presented from all perspectives. Davis is entitled to appropriate relief in light of this violation of his right to procedural due process.

C.

Davis's third contention is that the Board of Trustees should have acted on his appeal. Thus, the question for the court is whether the Board's failure to act on Davis's appeal violated the procedures guaranteed by the due process clause. Davis does not contend that such an appeal is constitutionally required under any circumstances, nor would such a contention appear tenable. Rather, he contends that appeal to the Board is constitutionally required here merely because the handbook provides for it.

Clearly, not all violations of state statutory or regulatory procedure "rise to the level of a constitutional deprivation." Thompson v. Bass, 616 F.2d 1259, 1266 (5th Cir.), cert. denied sub nom. Thompson v. Turner, 449 U.S. 983, 101 S.Ct. 399, 66 L.Ed.2d 245 (1980). "When a statute only provides that certain procedural guidelines be followed in arriving at a decision, then there is no creation of a substantive interest protected by the Constitution." Jean...