Hillis v. Stephen F. Austin State University

• Citation: 665 F.2d 547
• Decision Date: 11 January 1982
• Docket Number: No. 80-1570,80-1570
• Parties: 1 Ed. Law Rep. 1097 Richard K. HILLIS, Plaintiff-Appellee Cross-Appellant, v. STEPHEN F. AUSTIN STATE UNIVERSITY, et al., Defendants-Appellants Cross-Appellees. . Unit A *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 547

665 F.2d 547

1 Ed. Law Rep. 1097

Richard K. HILLIS, Plaintiff-Appellee Cross-Appellant, v. STEPHEN F. AUSTIN STATE UNIVERSITY, et al.,

Defendants-Appellants Cross-Appellees.

No. 80-1570.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Jan. 11, 1982.

Gregory Wilson, Richard Arnett, Asst. Attys. Gen., Austin, Tex., Robert Provan, Gen. Counsel, Nacogdoches, Tex., for defendants-appellants cross-appellees.

Martha McCabe, Tyler, Tex., Thomas J. Griffith, Lubbock, Tex., for plaintiff-appellee cross-appellant.

Appeals from the United States District Court for the Eastern District of Texas.

Before CHARLES CLARK, TATE and SAM D. JOHNSON, Circuit Judges.

CHARLES CLARK, Circuit Judge:

The defendants in this section 1983 action, Stephen F. Austin University (SFA) and Dr. Creighton Delaney, appeal the district court's decision, 486 F.Supp. 663 (E.D.Tex.1980), concerning the non-renewal of employment of Richard Hillis, a nontenured art professor. The district court found that Hillis' nonrenewal was constitutionally impermissible and ordered reinstatement with backpay against SFA and Delaney jointly and severally. Because the court was clearly erroneous in its factual first amendment findings under Mt. Healthy City School District v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977) we reverse. ¹

Dr. Hillis began teaching at SFA in the fall of 1974. Shortly after the term began he received a note from the head of the Art Department, Dr. Creighton Delaney, instructing him to carry a student, Kelly Perkins, for advanced placement on his class roll in Art 300, and to give her a "B" for the course. Despite Hillis' reservations concerning this matter there was no discussion of it between him and Delaney until sometime in December.

SFA had no specific written policy which authorized Delaney to give an advance placement grade for Art 300. Delaney insists he was acting pursuant to established SFA policy in acting as he did. Hillis states he knew of no such policy and thought it a violation of his academic freedom for Delaney to insist he give a grade to a student whose work he had not reviewed. Our resolution of this case does not hinge on resolving the parties' dispute over whether an advanced placement policy existed at SFA, because the record demonstrates Hillis' claim of academic freedom based on the grading incident lacks merit. The district court found that the December discussion became a heated debate, which solidified a rift between the two educators. Whatever might have been the true substance of this meeting, in its aftermath Hillis gave Ms. Perkins a "grade withheld," and not a "B". Several weeks later, Hillis returned from a conference in Washington to find that Delaney had reassigned him for the spring semester from a graduate research course to a freshman design course. Hillis protested the reassignment in a February 4, 1975 meeting with Delaney at which Dr. Rodewald, an American Association of University Professors (AAUP) member was present. At this meeting, Delaney cited the earlier grading incident as an example of Hillis' lack of cooperation. The mention of the grade incident prompted Hillis to discover at the registrar's office that Delaney had changed the "grade withheld" to a "B". The next day, Hillis received a letter informing him his contract would not be renewed. Various forms of further protests by Hillis ensued, but are irrelevant in the sense that they could not have formed the basis for Hillis' nonrenewal.

The district court found that Hillis engaged in a number of protected activities, first and foremost being his meeting with Delaney concerning the Perkins grade, and his criticism of the directive. Also found to be among his protected activities was an appeal to the AAUP for representation and relief in the matter of the reassignment, the grading incident, and his protests about these matters. The district court correctly stated the pertinent law: a teacher does not surrender constitutionally protected rights of freedom of expression as a condition of public employment, Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). It is also correct that Hillis' alleged criticism of Delaney did not per se lose its protection merely because it was private expression directed at his superior. Givhan v. Western Line Consolidated Independent School District, 439 U.S. 410, 415-16, 99 S.Ct. 693, 696-97 58 L.Ed.2d 619 (1979). However, the record does not support the court's findings of fact under Mt. Healthy, 429 U.S. at 285-87, 97 S.Ct. at 575-76, concerning whether, when, and how Hillis engaged in these "protected activities," whether this motivated his nonrenewal, and whether he would not have been renewed regardless of them.

The district court found that Hillis' nonrenewal was substantially motivated by his exercise of first amendment rights. According to the court, this finding was based largely on "Delaney's testimony" that the "Perkins incident was not 'insubstantial' in his decision to recommend nonrenewal." In fact, Delaney did not testify to that effect, rather, the statement was attributed to him by Dean Turner. More significantly, testimony that the "incident" was a factor was translated by the court into a finding that Hillis' criticism of Delaney's action and SFA policy was a substantial factor in his nonrenewal. This mistake in assessing the proof led to reversible error.

The Perkins incident unquestionably involved plain insubordination as one component, and arguably included Hillis' first amendment-protected criticism as another. However, the plaintiff's own testimony undercuts the court's finding that the Perkins incident involved the type of criticism which could have been a substantial factor in his nonrenewal. Neither Hillis nor Delaney testified that the December discussion of the grading matter became a heated debate. Rather, Hillis testified that the discussion culminated in an agreement on how to resolve the situation. ²

Hillis testified that he did not protest the grading incident until after the February 4th meeting concerning his reassignment, ³ and therefore the only fair reading of his testimony is that he did not engage in substantial first amendment activity until the February protests. Thus, the testimony by Delaney and Turner that the Perkins "incident" played a substantial part in Hillis' nonrenewal discussion could refer only to the lack of cooperation displayed by Hillis with regard to Delaney's instructions and what Delaney thought was a violation of SFA policy. The timing of relevant events as well as their content demonstrate the testimony could not have referred to Hillis' exercise of any constitutionally protected right to protest or criticize. This did not occur until later.

The district court rejected Delaney's testimony that the decision to not renew Hillis had been made in December, and had been based only on Hillis' lack of cooperation and abrasiveness. The court rejected the testimony as uncorroborated, and possibly fabricated. However, Delaney's testimony about the timing of the decision to not renew Hillis and the reasons therefor, was corroborated in full by the Dean of the Fine Arts School, Dr. Turner. ⁴ A review of the record leaves us with the definite and firm conviction that the district court made a mistake in finding that any exercise of Hillis' first amendment rights was a substantial motivating factor in the nonrenewal decision. In re Multiponics, Inc., 622 F.2d 709, 723 (5th Cir. 1980). The trial court's findings, based on statements attributed to the wrong persons and on obvious oversights of important corroborating testimony, are not supported by the record. This is not a case where the reviewing court would have found otherwise. Rather, it is a case where the trial court could not permissibly have found as it did. Movible Offshore, Inc. v. The M/V Wilken A. Falgout, 471 F.2d 268, 271 (5th Cir. 1973).

Even if we were to assume that Hillis did exercise his first amendment rights and that his nonrenewal was predicated on that activity, the district court was clearly erroneous in its factual findings under the second prong of Mt. Healthy. The defendants did show by a clear preponderance of the evidence that Hillis would not have been renewed in any event.

The district court stated that other than the grading incident the only evidence with respect to Dr. Hillis' conduct concerned his acquisition of a projector light bulb in a manner contrary to university procedures. The court found that nonrenewal would not have occurred as a result of this one incident. Hillis brought a projector bulb from a local store for use in his own projector, and presented the bill to the secretary of the art department. Delaney testified that Hillis had been instructed to follow normal university requisition procedures, and that this method was not in accord with those procedures. Assuming this to be so, Hillis' actions in flaunting proper procedures furnished another example of his lack of cooperation. More important, however, is the related testimony of Ann Turner, art department secretary, that Hillis flew into a rage as she attempted to explain proper requisition procedures to him. Ms. Turner testified that Hillis' manner was abusive and that he used filthy language in her presence. Moreover, Ms. Turner stated that Hillis behaved toward her in this manner not just during the "light bulb" incident, but several other times as well. Hillis' abusive, ill-mannered behavior towards a staff member was made known to Dr. Delaney and Dean Turner. This record simply will not permit a facile conclusion that the "light bulb" incident with its explanatory testimony could not establish that Hillis' employment would not have been renewed regardless of his alleged first amendment activities.

The district court was also clearly erroneous in finding this to be the only other proof of...