Garrett v. Mathews

• Decision Date: 01 June 1979
• Docket Number: Civ. A. No. 78-G-0723-W.
• Citation: 474 F. Supp. 594
• Parties: Bert D. GARRETT, Plaintiff, v. David MATHEWS, Individually and as President of the University of Alabama at Tuscaloosa, the University of Alabama, John A. Caddell, Winton M. Blount, Ehney A. Camp, Jr., Samuel Earle G. Hobbs, Daniel T. McCall, Jr., John T. Oliver, Jr., Yetta G. Samford, Jr., Ernest G. Williams, Individually and as members of the University of Alabama Board of Trustees, Defendants.
• Court: U.S. District Court — Northern District of Alabama

474 F. Supp. 594

Bert D. GARRETT, Plaintiff, v. David MATHEWS, Individually and as President of the University of Alabama at Tuscaloosa, the University of Alabama, John A. Caddell, Winton M. Blount, Ehney A. Camp, Jr., Samuel Earle G. Hobbs, Daniel T. McCall, Jr., John T. Oliver, Jr., Yetta G. Samford, Jr., Ernest G. Williams, Individually and as members of the University of Alabama Board of Trustees, Defendants.

Civ. A. No. 78-G-0723-W.

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

June 1, 1979.

COPYRIGHT MATERIAL OMITTED

Jack Drake, Drake & Pierce, University, Ala., for plaintiff.

Paul E. Skidmore, University, Ala., for defendants.

MEMORANDUM OPINION

GUIN, District Judge.

This action was brought by a tenured assistant professor against the University of Alabama at Tuscaloosa, its president, and its board of trustees. Plaintiff alleges that the procedures resulting in his dismissal from the University denied him due process of law and violated his employment contract. The parties filed a stipulation of facts, eliminating the need for a trial on the merits. Jurisdiction is properly laid under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and (4).

Plaintiff has a Ph.D. degree in mathematics from the University of Texas. He was hired by the University of Alabama for its mathematics department in 1968 and was awarded tenure in 1971.

In 1973, Dr. Charles Hobby became chairman of the mathematics department and plaintiff's boss. Shortly thereafter, friction developed between plaintiff and Hobby. Hobby is alleged to have launched a campaign to fire Garrett, and the record reveals that Dr. Hobby did several things and made several statements that would be consistent with such a plan. The court, however, deems it unnecessary to make a finding on that issue.

On September 27, 1974, Garrett, Hobby, Professor Robert Plunkett, and Professor Jack Clarke met in Hobby's office. Hobby and Garrett agreed that if Garrett would do certain things by certain dates, then Hobby would treat Garrett in a professional manner and would not pursue charges of alleged misconduct occurring prior to the meeting. Hobby and Garrett each accuse the other of breaching the agreement. The court, again, deems it unnecessary to make a finding on that issue.

On March 21, 1975, Academic Vice-President Howard Gundy directed Dean Douglas Jones to assemble a hearing committee and give Dr. Hobby permission to file charges against Dr. Garrett. Hobby then charged plaintiff with failing to cover required course material, refusing to assign proper grades, refusing to comply timely with Hobby's instructions, failing to supply a list of publications as Hobby requested, ignoring and failing to open mail from Hobby, telling Hobby over the telephone that he had nothing to say to Hobby, failing to attend meetings and failing to post and keep office hours.

Hobby charged that these activities constituted insubordination and dereliction of duty, and sought plaintiff's termination under Section 9 of the 1972 Faculty Handbook, at page 30. That section provides that a tenured teacher may be discharged for cause after a hearing.

After about 40 hours of testimony, the hearing committee found proven the charges of failing to supply a list of publications, failing to open mail from Dr. Hobby, and failing to post and keep office hours. Though it found that these actions constituted insubordination and dereliction of duty, the committee found that plaintiff's offenses were not serious enough to warrant dismissal. The committee recommended revocation of plaintiff's tenure, deeming such a recommendation to be within its inherent power. The committee recommended that plaintiff be considered for tenure once more after a year.

Dean Jones considered the committee's findings and recommendations and, in turn, recommended to Academic Vice-President Gundy that they be followed. Gundy, in turn, recommended to Dr. Richard Thigpen, who was Acting Chief Executive Officer in the president's absence, that the committee's recommendation be followed. Dr. Thigpen approved the recommendation, and Dr. Gundy wrote plaintiff a letter revoking his tenure and informing him that he could appeal that final institutional decision to the Board of Trustees.

Plaintiff appealed to the Board of Trustees, alleging that the president, under the 1972 Faculty Handbook, could decide either to fire or not to fire him, but could not merely revoke his tenure. The Board of Trustees, agreeing with plaintiff, held that the University did not have the power to revoke plaintiff's tenure, stating, however, that it would not oppose plaintiff's being dismissed and rehired without tenure. The Board remanded the matter to the University administration for it to take appropriate action under the 1972 Faculty Handbook.

On remand, Dr. David Mathews, President of the University, reconvened the hearing committee, told them of the Board's decision, and asked for their recommendation. The committee found that the Board of Trustees ruled erroneously, and reiterated its original recommendation of tenure revocation. Dean Jones then recommended to Academic Vice-President Gundy that plaintiff be terminated. Associate Academic Vice-President Charley Scott, in turn, recommended to Dr. Mathews that plaintiff be terminated. Dr. Mathews approved that recommendation, and Dean Jones wrote plaintiff a letter terminating his employment at the end of the 1978-79 academic year. The Board, thereafter, notified plaintiff's lawyer that no further appeal was necessary to exhaust plaintiff's administrative remedies. Plaintiff then brought the present action.

Plaintiff seeks reinstatement of his rights to continued employment with tenure under several theories. His first theory is that the agreement between plaintiff and Hobby arising out of the September 27, 1974, meeting constituted a contract whereby if plaintiff would do certain things, then Hobby would not proceed against him. Under this theory, Hobby's pressing charges against Garrett would constitute a breach by the University of that contract. Even assuming pendent jurisdiction and Garrett's compliance with the agreement, however, the agreement was plainly without consideration and so not enforceable as a contract. Under the agreement, plaintiff was required to do no more than were other faculty members. Since plaintiff was to do no more than he was already obligated to do under his employment contract, he promised merely to perform pre-existing duties. That such duties are not consideration for a contract is basic hornbook law. Johnson v. Sellers, 33 Ala. 265 (1858); Mobile Turnkey Housing, Inc. v. Ceafco, Inc., 294 Ala. 707, 321 So.2d 186 (1975). This theory is, therefore, unavailing.

Propounding his other theories, plaintiff asserts that the hearing procedure violated his rights under the due process clause of the fourteenth amendment and, therefore, his employment contract as well. Plaintiff argues that Dean Jones, who convened the hearing committee, was biased against him and that his bias violated the requirement that a tribunal in this type of proceeding have apparent impartiality. Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). This argument fails in two respects. First, Dean Jones was not on the hearing committee itself and did not cast a vote on that body's findings of fact or recommendations. He was not, therefore, a "decision maker" or part of a "tribunal" within the meanings of the line of cases requiring apparent impartiality. Second, even if Dean Jones were a decision maker or part of the tribunal, plaintiff has not demonstrated his partiality. Standards for determining whether a decision maker is unconstitutionally biased are found in Hortonville District v. Hortonville Education Association, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976), and Robison v. Wichita Falls and North Texas Com. Act. Corp., 507 F.2d 245 (5th Cir. 1975). Plaintiff has not shown that those standards were abridged.

Plaintiff contends, further, that the committee relied upon a finding that plaintiff neglected his responsibility to the public by not responding to a parent's letter in reaching its decision to recommend tenure revocation. Since plaintiff was not charged with neglect of responsibility to the public, plaintiff argues that the committee used an improper standard to reach its decision. Plaintiff has not shown, however, that the committee relied upon neglect of responsibility to the public to reach its decision, and the court finds, conversely, that the committee did not so rely. The committee found affirmatively that not responding to the parent's letter did not constitute insubordination. That finding shows that the committee was aware of the issues and of its responsibility. The committee's comment that plaintiff's behavior constituted neglect of responsibility to the public is more accurately interpreted as a mere note in passing than a finding supporting the recommendation.

Plaintiff next charges that the committee failed to find facts specifically as required by Goldberg v. Kelly, supra. That case requires an administrative body to reach its decision on the basis of legal rules and evidence adduced at a hearing. The Supreme Court held that the decision maker should state the reasons for its determination and the evidence relied upon to demonstrate compliance with that mandate. Jarecha v. Immigration and Naturalization Service, 417 F.2d 220 (5th Cir. 1969), indicates that the requirement of factual findings is met if the written decision of the hearing panel or the record of the hearing sets out clearly the grounds for its action so that appellate bodies and reviewing courts are able to ascertain whether the decision is arbitrary, capricious, or not supported by the reasonable, substantial, and probative evidence on the record considered as a whole. Aberdeen and Rockfish Railroad Company v. United...