Jacobs v. Meister, 9093

Citation108 N.M. 488, 775 P.2d 254, 1989 NMCA 33
Case DateApril 21, 1989
CourtCourt of Appeals of New Mexico


Plaintiff Henry M. Jacobs, Jr. (Jacobs), a nontenured assistant professor at Eastern New Mexico University from 1970 to 1975, brought this civil rights action under 42 U.S.C. Section 1983 (1970), contending the original defendants violated his constitutional rights in failing to renew his contract for 1975-76. As defendants, he named members of the university administration, individual members of the Board of Regents (regents), and the board itself. The board and its members, except Stratton, were dismissed by summary judgment prior to the first trial. After the first trial, defendants Meister, Shannon and Bulls (defendants), and Stratton appealed a judgment on the jury verdict for Jacobs. The supreme court remanded for a new trial. Jacobs v. Stratton, 94 N.M. 665, 615 P.2d 982 (1980) (Jacobs I ). The facts of this case are set out fully in that opinion and we refer only to those facts necessary to disposition of this appeal.

After a second, nonjury trial, the trial court found Stratton not liable, but entered judgment in favor of Jacobs against defendants. The trial court awarded damages for emotional distress, based upon its determination that Jacobs had been deprived of his rights under the first and fourteenth amendments to the United States Constitution in his termination. Defendants appeal this judgment, arguing the evidence adduced at trial does not support the trial court's judgment that Jacobs' constitutional rights were violated or the award of damages. We disagree and affirm the trial court.

First Amendment

During his five years at the university, Jacobs published articles and engaged in other speech activities, frequently voicing his criticism of the university administration. He was also involved in organizational activities for the purpose of expressing faculty opinion of the administration. The reasons given by the administration for nonrenewal were Jacobs' failure to make satisfactory progress toward securing his doctorate and teaching techniques "inimical to the high standards sought by" the university. After review, the board repeated these reasons for affirming the administrative decision not to renew Jacobs' teaching contract. Jacobs contends the reasons given were pretextual and that the real reason for nonrenewal was his speech activity.

In Jacobs I, the supreme court previously remanded this case for litigation under the burden of proof allocation described in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Mt. Healthy set forth a definitive procedure for determining whether a governmental agency's adverse job decision violated the employee's first amendment rights. First, the employee must carry the burden of showing his conduct was constitutionally protected. Second, the employee is required to show the protected conduct was a substantial or motivating factor in the agency's adverse employment decision. If these burdens are met, the burden then shifts to the agency to show that it would have reached the same decision absent the protected conduct.

Under Mt. Healthy, Jacobs had the initial dual burden of showing his conduct was constitutionally protected and was a motivating factor in the decision not to renew. Id. The burden then shifted to defendants to show they would have reached the same decision in the absence of protected conduct. Id. The trial court essentially concluded Jacobs carried his burden under Mt. Healthy and defendants failed to do so.

The first element that Jacobs was required to prove--that his conduct was constitutionally protected--is partly factual and partly a matter of legal doctrine. Not all speech by a public employee is entitled to first amendment protection.

In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), Myers, an assistant district attorney, was upset about her transfer to another division of the office. For this reason, she prepared a questionnaire soliciting the opinions of co-workers regarding the office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressure to work in political campaigns. Myers was terminated on the ground that she had created a "mini-insurrection" within the office. The Supreme Court upheld the termination stating that when an employee speaks upon matters only of personal interest, rather than of public concern, disciplinary action taken because of such speech is not ordinarily prohibited by the first amendment. The Court recognized that Myers' question concerning pressure on employees to work on political campaigns touched on a matter of public concern. But taking the question in context, and recognizing that close working relationships are essential to fulfilling public responsibilities, the Court held that the discharge did not offend the first amendment.

Thus, the Supreme Court adopted a balancing approach, weighing the needs of the government as an employer against the public interest in an employee's speech, to determine whether the speech is protected by the first amendment. See Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See also L. Tribe, American Constitutional Law, Sec. 12-18 at 930-31 n. 15 (2d ed. 1988).

With this background in mind, we review the findings and conclusions of the trial court.

Neither party disputes that during Jacobs' employment as a professor of business administration at the university, he made a number of public statements critical of the university administration. He criticized the university administration in newspaper articles; in a report to the North Central Association, the association that accredits the university; in communications with legislators; and in the courses he taught.

Defendants, however, argued below, and continue to argue on appeal, that their decision not to rehire Jacobs resulted from Jacobs' inadequate teaching techniques and his failure to make progress toward a doctoral degree.

The trial court found that Jacobs' criticism of the university "was a substantial or motivating factor" in defendants' decision to terminate his employment, that defendants would not have terminated Jacobs "absent his conduct in criticizing" the university administration, and that defendants' stated reasons for terminating Jacobs were pretextual in nature. Although those issues were hotly contested at trial, we believe the trial court's findings are supported by substantial evidence. We have no right to reject them. See Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985) (appellate court may not reweigh the evidence or substitute its judgment for that of the trier of fact); Anaconda Co. v. Property Tax Dep't, 94 N.M. 202, 608 P.2d 514 (Ct.App.1979) (facts found by trial court shall not be disturbed by appellate court so long as they are supported by substantial evidence).

Defendants contend, however, that even if Jacobs' criticism of the university was the motivation for the decision not to rehire him, his first amendment rights were not violated. They argue that, under Connick, Jacobs' criticism was not protected by the first amendment because it undermined close working relationships and disrupted the proper functioning of the university. As support for this argument, they point to three findings of fact by the trial court:

33. The decision not to rehire Mr. Jacobs was related to the educational process and his working relationship with the University and was supported by a reasonable basis in fact.


46. Plaintiff's statements were derived [directed] at persons he would normally be in day-to-day contact so as to interfere with a close working relationship and the defendants had an interest in promoting the efficiency of public service performed through its employees.

47. Jacobs['] conduct in criticizing the administration did interfere with promoting the efficiency of rendering public services at ENMU.

With respect to findings 46 and 47, we note these findings establish factors considered by Connick as arguing against a first amendment right. Yet, those factors are not dispositive of the issue. In Connick, the Supreme Court held that the overriding concern in Myers' conduct was her own employment situation, not matters of public interest. Here, Jacobs' statements had very little to do with his individual employment situation and addressed matters of great public interest. Even if his criticism of such matters disrupted university activities and affected his working relationships with his superiors and colleagues, the public interest in his comments could provide a first amendment protection to him. A university may have the right to require its employees to channel their criticism in a way that minimizes disruption to the university, but defendants have not contended that Jacobs was terminated for failure to follow appropriate channels. In summary, we conclude that, despite findings 46 and 47, the record and the trial court's other findings amply support the trial court's conclusion that Jacobs' criticism of the university was protected by the first amendment.

With respect to finding 33, we believe the "decision not to rehire" referred to in that finding is the decision made by the regents after defendants had decided not to rehire him. The finding is a verbatim adoption of one proposed by defendants that...

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