Davis v. Oregon State University

• Decision Date: 13 November 1978
• Docket Number: No. 77-1095,77-1095
• Citation: 591 F.2d 493
• Parties: Diane DAVIS, personal representative of the Estate of Howard Fred Davis, Deceased, Plaintiff-Appellant, v. OREGON STATE UNIVERSITY, Oregon State Board of Higher Education, Jane H. Carpenter, George H. Corey, Elizabeth H. Johnson, Philip A. Joss, George H. Layman, Marc F. Maden, Valerie L. McIntyre, W. Philip McLauren, John D. Mosser, Louis B. Perry and Loran L. Stewart, each of the foregoing Individuals and in his or her capacity as a member of the Oregon State Board of Higher Education, Roy E. Lieuallen, in his Individual capacity and in his official capacity as Chancellor of the Oregon State Board of Higher Education, Robert W. MacVicar, in his Individual capacity and in his official capacity as President of Oregon State University, David B. Nicodemus, in his Individual capacity and his official capacity as Dean of Faculty of the Oregon State University, Robert W. Krauss, in his official capacity as Dean of the College of Science of Oregon State University, James J. Brady, in his Individual capacity and in his official capacity as Acting Chairperson of the Department of Physics of Oregon State University, and Larry Schecter, in his Individual capacity and in his official capacity as Chairperson of the Department of Physics of Oregon State University, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 493

591 F.2d 493

Diane DAVIS, personal representative of the Estate of Howard

Fred Davis, Deceased, Plaintiff-Appellant, v. OREGON STATE UNIVERSITY, Oregon State Board of Higher

Education, Jane H. Carpenter, George H. Corey, Elizabeth H.

Johnson, Philip A. Joss, George H. Layman, Marc F. Maden,

Valerie L. McIntyre, W. Philip McLauren, John D. Mosser,

Louis B. Perry and Loran L. Stewart, each of the foregoing

Individuals and in his or her capacity as a member of the

Oregon State Board of Higher Education, Roy E. Lieuallen, in

his Individual capacity and in his official capacity as

Chancellor of the Oregon State Board of Higher Education,

Robert W. MacVicar, in his Individual capacity and in his

official capacity as President of Oregon State University,

David B. Nicodemus, in his Individual capacity and his

official capacity as Dean of Faculty of the Oregon State

University, Robert W. Krauss, in his official capacity as

Dean of the College of Science of Oregon State University,

James J. Brady, in his Individual capacity and in his

official capacity as Acting Chairperson of the Department of

Physics of Oregon State University, and Larry Schecter, in

his Individual capacity and in his official capacity as

Chairperson of the Department of Physics of Oregon State

University, Defendants-Appellees.

No. 77-1095.

United States Court of Appeals, Ninth Circuit.

Nov. 13, 1978.

Rehearing Denied Feb. 28, 1979.

Don S. Willner (argued), of Willner, Bennett, Riggs & Skarstad, Portland, Or., for plaintiff-appellant.

Al J. Laue, Asst. Atty. Gen. (argued), Salem, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon

Before VAN DUSEN, ^* WRIGHT and GOODWIN, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Davis brought suit against Oregon State University (OSU), the Oregon State Board of Higher Education, and individually-named OSU administrators requesting injunctive relief and damages for the nonrenewal of his employment contract and the denial of tenure. Davis claimed that his termination without a hearing infringed upon his liberty and property interests and was a violation of his right to procedural due process.

He appealed from a summary judgment for defendants. He died pending appeal and his widow has been substituted in her capacity as personal representative of the estate. Of the issues raised on appeal, only the question of damages for back pay remains.

FACTS:

Davis was employed in 1968 as an associate professor in physics at OSU after teaching several years at the University of Washington. He was hired on an annual, nontenured basis by then Department Chairman MacAllister Hull, Jr. Davis alleged that Hull told him he would be granted tenure "as a matter of course" if he performed his duties "according to the professional standards of the Department of Physics." There was some evidence that Davis' expectation of probable tenure from this oral agreement with Hull conformed to the customary practice at OSU and at other institutions that hired faculty as associate professors.

Davis continued to receive annual appointments through the 1972-73 academic year. In the fall of 1972, the Physics Department Promotion and Tenure Committee considered his case, but failed to reach the required number of votes either for or against recommending tenure. Summaries of portions of Davis' personnel file were then given to him at his request.

The committee met again in May 1973 to hear material presented by Davis and again failed to muster sufficient votes to recommend either for or against tenure. Also in May, the new Department Chairman notified Davis by letter, with the approval of OSU President MacVicar, that Davis would be terminated at the end of the 1973-74 academic year. The University Review and Appeals Committee met with Davis, reviewed the case, and found no irregularity.

After this suit was filed in 1975, Davis discovered that OSU had not disclosed confidential portions of his personnel file. ¹ The "secret file" contained reports of unethical conduct in the pursuit of proposals and research goals, accusations of abuse of students, and charges that he was "a hazard to other people's professional work."

Davis argued that maintenance of this "secret file" was in violation of Or.Rev.Stat. § 351.065 and Regulations of the Oregon State Board of Higher Education §§ 42.710-42.775 which require state universities to promulgate regulations permitting access to personal records. OSU did not comply until early in 1975.

Nothing in the record indicates that OSU officially stated the reasons for his termination or charged him with the actions described in the confidential file. Although Davis testified that he had made over 100 unsuccessful professional contacts to secure other employment, nothing in the record shows that OSU or any of its faculty had made derogatory comments about him, either with or without reliance on the accusations in the file.

DISCUSSION:

Since the remedy for a violation of a liberty interest, such as Davis alleged here, is to "accord (the individual) an opportunity to refute the charge before University officials" in a proper hearing, Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972), the claim of a liberty interest violation does not survive his death. As the Court also noted in Roth, "(o)nce a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons." Id. at n.12.

Davis' claim of a property interest in continued employment does survive his death. If it could be established that Davis had a property interest in his position at OSU, his personal representative would have the right to demand a hearing to determine if he was terminated properly. If the hearing revealed he was improperly terminated, the possible remedy would be back pay until the time of his death.

Davis alleged that the "de facto tenure" rationale in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and an oral contract between himself and then Department Chairman Hull gave him a property interest in continued employment. Because there is a dispute as to the agreement with Hull, Davis urged that the trial court improperly disposed of the issue by summary judgment.

The plaintiff in Perry was a college professor who was dismissed without a hearing after teaching in the Texas Public Higher Education System for ten years through a series of one year contracts. Sindermann alleged that, although the college had no formal tenure system, it had a "de facto tenure program" on which faculty members relied. The Supreme Court remanded for a hearing.

The fundamental distinction here from Perry is that OSU has an established system with published standards for granting tenure. Davis was aware of it. This court recently recognized this distinction from the Perry rationale in refusing to find a property interest in plaintiff's claim of "de facto tenure" when the college had a written tenure system of which plaintiff was aware. Haimowitz v. Univ. of Nevada, 579 F.2d 526 (9th Cir. 1978).

OSU's written tenure policies are also dispositive of Davis' claim of an oral contract with Chairman Hull. Even if Davis had been correct that Hull had promised him tenure "as a matter of course" if his performance continued to meet the standards of the department, he had no property interest in continued employment.

Sections of the OSU Faculty Handbook dealing with promotions, terminations, and recommendations for tenure emphasize that "(a)pproval (for tenure) is not routine or automatic at any stage of the review process." The written procedures provide that the university president makes final decisions to grant tenure. No authority to make tenure decisions is vested in a department chairman at OSU. The conversation with Hull did not establish a binding contract guaranteeing Davis tenure, nor could Davis reasonably have expected it to do so.

In a similar factual situation, this court found that assurances of tenure given to a new professor by faculty members in a position to influence the tenure decision did not create a sufficient expectation of continued employment to constitute a property interest. Seitz v. Clark, 524 F.2d 876 (9th Cir. 1975).

Seitz also cites with approval Papadopoulos v. Oregon State Bd. of Higher Educ., 14 Or.App. 130, 511 P.2d 854 (1973), Cert. denied, 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 224 (1974), in which the nontenured plaintiff had much stronger facts to challenge OSU's denial of tenure decision than had Davis. In Papadopoulos, the Mathematics Department Chairman, at the time of hiring, "did at least imply, and petitioner was led to believe, that the granting of indefinite tenure would be little more than a formality in his case." 511 P.2d at 857. The permanent faculty members in the department voted overwhelmingly in favor of recommending tenure. The Dean of Science The Oregon Court of Appeals held that Papadopoulos as an untenured professor, had no constitutionally protected property interest beyond the duration of each one-year appointment because "under the Board's regulations petitioner could have been discharged at the end of any of those years for any reason or no reason, and he would have no right to a hearing on the grounds for his discharge." Id. at 872.

however, made active misrepresentations about Papadopoulos to his Advisory Committee which recommended...