Jackson v. Griffith, 71-1277.

• Citation: 480 F.2d 261
• Decision Date: 14 June 1973
• Docket Number: No. 71-1277.,71-1277.
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Gary D. JACKSON, Plaintiff-Appellant, v. P. J. GRIFFITH et al., Defendants-Appellees.

480 F.2d 261 (1973)

Gary D. JACKSON, Plaintiff-Appellant, v. P. J. GRIFFITH et al., Defendants-Appellees.

No. 71-1277.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted April 11, 1973.

Decided June 14, 1973.

Michael Lerner, Kansas City, Kan. (Robert H. Waters, Kansas City, Kan., on the brief), for plaintiff-appellant.

Edward G. Collister, Jr., Sp. Asst. Atty. Gen., State of Kan. (Vern Miller, Atty. Gen., State of Kan., on the brief), for defendants-appellees.

Before PHILLIPS, SETH and DOYLE, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge.

Gary Dean Jackson brought this action against the above-named State Board of Regents of the University of Kansas and E. L. Chalmers, Jr., Chancellor of the University of Kansas, hereinafter referred to collectively as the defendants. From a summary judgment in favor of the defendants and a judgment against Jackson and in favor of the defendants, Jackson has appealed.

It is alleged in the complaint that jurisdiction is based upon allegations that the action arises under 42 U.S.C.A. § 1983 et seq., and Amendments 1, 5, and 14 of the Constitution of the United States.

The complaint, which was duly verified, alleged the following facts:

That the above-named defendants, other than E. L. Chalmers, Jr., are members of the State Board of Regents of the University of Kansas, and as such make and enforce the policies and regulations of the University.

That E. L. Chalmers, Jr., is the Chancellor of the University of Kansas, and as such has general administrative authority over the policies of the operations of the University.

That Gary Dean Jackson received his A.B. degree from the University of Kansas in June 1970. He enrolled for the summer session, commencing in early June at the College of Law of the University.

Jackson received an appointment as Graduate Assistant, Department of Black Studies, for the summer session, beginning June 1, 1970, and ending July 30, 1970. In addition, he received an appointment as Assistant to the Dean of Men for Black Students for the period beginning July 1, 1970, and ending June 30, 1971. His duties under the academic appointment consisted of teaching courses in the Black Studies Department. His duties under the administrative appointment consisted of working with and relating to the black student community. At all times, Jackson fulfilled the duties incident to his academic and administrative appointments in a superior manner.

Jackson was informed that his academic appointment as an instructor in the Department of Black Studies and his position as Assistant Dean of Men for Black Students would be renewed for the 1970-1971 academic year.

On July 27, 1970, in compliance with the directive of the State Board of Regents to Chancellor E. L. Chalmers, Jr., Jackson's employment was terminated in all capacities.

On December 3, 1970, the defendants filed and served on Jackson certain requests for admissions, numbered 1 to 8, inclusive. On January 13, 1971, Jackson filed and served his answers to such requests. We set out each request and the answer thereto, as follows:

"Q. 1. You graduated from undergraduate school at the University of Kansas in the spring term of 1970 and on or about June 1, 1970, received an appointment at the University of Kansas as a graduate teaching assistant, Department of Black Studies, for the summer session beginning June 1, 1970, and ending Friday, July 31, 1970.

"A. 1. Plaintiff admits no. 1.

"Q. 2. On Monday, July 27, 1970, you were notified by officials at the University of Kansas that your employment by the University of Kansas was terminated.

"A. 2. Plaintiff cannot truthfully admit or deny request no. 2 for the reason that his only notification was to receive, without comment, a copy of the memorandum of July 27, 1970 from Chancellor Chalmers to Vice Chancellor Keith Nitcher. Said copy was directed to Plaintiff as indicated (photocopy of memorandum attached).

The photocopy read:

`MEMO TO: Vice Chancellor Keith Nitcher

FROM: E.L.C. /s/ E.L. Chalmers Jr.

`In compliance with the directive (attached) of the Board of Regents please terminate the employment of Mr. Gary Dean Jackson immediately.

* * * * * *

`It was moved by Mr. Danenberger and seconded by Mr. Cromb that the Chancellor of the University of Kansas be directed to immediately remove Gary Dean Jackson from employment.\'

"Q. 3. You know that the act of terminating your employment was taken due to the fact that during the turmoil in Lawrence, Kansas, in July of 1970 you, on July 17, the day after Rick Dowdell\'s shooting death, purchased approximately 27 boxes of ammunition and took them back to Lawrence, Kansas, to be dispersed among various individuals.

"A. 3. Plaintiff denies request no. 3.

"Q. 4. When your employment as a graduate teaching assistant, Department of Black Studies, was terminated on Monday, July 27, 1970, you had five days remaining on your summer school teaching contract.

"A. 4. Plaintiff admits request no. 4.

"Q. 5. You were notified that on or about September 18, 1970, that the Kansas State Board of Regents met at Topeka, Kansas and determined that you should be reinstated in your position as a graduate teaching assistant, Department of Black Studies, for the remainder of your contract which was from Monday, July 27, 1970, through Friday July 21, sic 1970, and further directed that you be paid for the remaining five days on your teaching contract in the amount of $42.90.

"A. 5. Plaintiff denies request no. 5.

"Q. 6. You were paid $42.90 after being reinstated for the remaining five days on your summer school teaching contract.

"A. 6. Plaintiff denies request no. 6.

"Q. 7. That attached hereto as Exhibit `A\' is a copy of the state warrant issued to you in the amount of $42.90 covering wages due for the five day period from July 27 through July 31, 1970, upon your contract as a graduate teaching assistant, Department of Black Studies.

"A. 7. Plaintiff cannot truthfully admit or deny defendant\'s request no. 7 for the following reasons:

Plaintiff never saw the actual warrant referred to as Exhibit `A\'. On November 5, 1970, he was advised that a deposit in the amount of Forty-two Dollars and Ninety Cents ($42.90) had been credited to his account at the Capital Federal Savings and Loan Assn. The source or reason for the deposit was not made known to the plaintiff, by Capital Federal or anyone else.

"Q. 8. That you have been fully paid for your services as a graduate teaching assistant, Department of Black Studies.

"A. 8. Plaintiff cannot truthfully admit or deny request no. 8 in view of the information available to him as indicated in his response to request nos. 6 and 7."

On July 30, 1970, Jackson made a written request to the State Board of Regents and Chancellor E. L. Chalmers, Jr., that he be given:

"a. an enumeration of the charges on which the termination was based;

"b. a hearing before the Board of Regents on these charges with the opportunity to be heard and to present evidence;

"c. a review of the prior decision to terminate based upon the hearing results;

"d. an answer to the request of August 5, 1970 setting out charges and a hearing date."

Up to October 26, 1970, the date of the filing of the complaint, Jackson's request, as outlined in the communication of July 30, 1970, to the defendants, had gone unanswered.

At all times during his employment, both in his capacity as Assistant Dean of Men and as instructor in the Black Studies Department, Jackson was active in black student organizations, and in his capacity as instructor in the Black Studies Program, he was active in the development of a black studies curriculum.

In his complaint, Jackson alleged that the reason for the decision to terminate his employment under his academic and administrative appointments, and not to offer him an academic or administrative appointment for 1970-1971 was to retaliate against him for his expressions of opinion, in the exercise of his freedom guaranteed by the First and Fourteenth Amendments of the Constitution of the United States;

That the decision was not made under ascertainable and definite standards governing the defendants in making such decision;

That the decision had caused and would cause damage to Jackson's professional reputation and standing;

That Jackson's rights under the First, Fifth and Fourteenth Amendments to the Constitution of the United States had been violated by:

1. The defendants' decision not to reemploy Jackson;

2. By failure of the defendants to provide a hearing as to the merits of the decision, with the opportunity to be heard and to present evidence thereon;

3. By failure of the defendants to provide an enumeration of the charges on which the termination was based;

4. By defendants' failure to make such a decision under ascertainable and definite standards.

Jackson stated in the complaint that he suffered irreparable injury and was threatened with irreparable harm in the future by reason of the acts complained of.

On November 30, 1970, defendants filed a motion to dismiss the complaint on the ground of failure to state facts upon which any relief could be granted, and filed in support thereof a memorandum signed by Ray L. Borth, Assistant Attorney General, State of Kansas, which in part read:

"At page 4 of plaintiff\'s complaint, he states that the reason for the decision to terminate his employment under his academic and administrative appointments and not to offer him said academic and administrative appointments for 1970-71 was to retaliate against him for his expressions of opinion and the exercise of his freedom guaranteed by the first and fourteenth amendments of the United States Constitution. It is defendants\' contention that plaintiff\'s employment was terminated because during the turmoil in Lawrence, Kansas, in July of 1970 when Rick Dowdell was shot to death, plaintiff on July 27, 1970, subsequent to such shooting, came to Topeka, Kansas, bought 27 boxes of

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