Jimenez v. Almodovar, 80-1542
| Decision Date | 09 June 1981 |
| Docket Number | No. 80-1542,80-1542 |
| Citation | 650 F.2d 363 |
| Parties | Raul Medina JIMENEZ, et al., Plaintiffs, Appellants v. Ismael ALMODOVAR, et al., Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Carlos V. Garcia Gutierrez, Hato Rey, P. R., for plaintiffs, appellants.
Jose A. Andreu-Garcia, with whom Manuel E. Andreu-Garcia, Hato Rey, P. R. and Victor E. Baez, Mayaguez, P. R., were on brief, for defendants, appellees.
Before BOWNES and BREYER, Circuit Judges, and WYZANSKI, Senior District Judge. *
Two professors, whose employment a public university had terminated solely because it eliminated their positions as unnecessary because of a bona fide change of its academic program, brought this 42 U.S.C. § 1983 action against the university, its president, and others on the ground that they, in terminating the plaintiffs' employment, deprived them of their property without the due process of law guaranteed by the Fifth or the Fourteenth Amendment 1 to the United States Constitution. The plaintiffs appeal from a judgment for the defendants. The essential facts are undisputed.
The University of Puerto Rico is a public instrumentality created by Act No. 1 of January 20, 1966, as amended. 18 LPRA §§ 601-614. It operates a number of separate institutional units each having a substantial degree of academic and administrative autonomy. 18 LPRA §§ 603, 606. The Council on Higher Education is the governing board of the university system. 18 LPRA § 602(f)(1). Among the Council's duties is to pass on appeals taken against decisions of the president of the university. 18 LPRA § 602(e)(6).
Humacao University College until 1975 was a Regional College. Act No. 1 of January 20, 1966, 18 LPRA § 611(d), gave the University of Puerto Rico general jurisdiction of Humacao, but Humacao retained its separate academic faculty.
On January 14, 1972 the Council on Higher Education approved for the then Humacao Regional College a program for an associate degree in physical education and recreation to be conducted as a pilot program (hereafter called "the pilot program"), the duration of which was made dependent upon a subsequent evaluation.
The university on September 1, 1970 employed Maria L. Garcia-Feliciano as a temporary instructor and two years later assigned her to the pilot program. On August 15, 1972, the university gave the plaintiffs Raul E. Medina Jimenez and Jorge H. Garofalo Pastrana temporary appointments in the pilot program. On July 1, 1977 the then president of the University wrote to each of the three persons just named identical letters having the following text:
In accordance with the powers granted me by the Law of the University of Puerto Rico, approved on 20 January 1966 in its Article 5C(8), I appoint you a permanent member of the University teaching staff by virtue of the dispositions of the said law in its Article 14B.
This permanent appointment is effective as of 1 July 1977 and by the same you are incorporated in the group of regular collaborators which integrate the Institution.
In the pre-trial agreement in this case it has been stipulated that the foregoing July 1, 1977 letters appointed each of the plaintiffs "a tenured professor of the University of Puerto Rico."
On July 19, 1978 the current president of the university the defendant Ismael Almodovar wrote to each of the aforesaid three persons identical letters having the following text:
At a meeting held on 11 July 1978, the Council on Higher Education decided to inactivate the Associate Degree Program in Physical Education of the Humacao University College. This decision results from a series of factors, among them, the slight enrollment which has been benefiting from the program, the evaluation of the program recently carried out and the recommendations of the Department's Director and of the College, Dr. Federico Matheu. As a result of the recent action, it is necessary to eliminate three of the five teaching positions of the Physical Education Department at the Humacao College, since the teaching activity in that Department will be reduced to one of services to the other teaching programs of the College.
I am sorry to inform you that, after taking various objective factors into consideration, one of the positions to be eliminated will be the one currently occupied by you. As a result of this programmatic reduction we must do without your services as part of our College's teaching staff as of 15 August 1978.
As was determined by the Council on Higher Education itself, we have communicated with the chancellors and directors of other institutional units with offerings in the field of physical education to explore the possibility of relocating in one of the units of the University System, with reference to those programs' needs, the professors harmed by this action. Should any such possibility turn up, we will communicate with you immediately. With the purpose of allowing us to offer the directors and chancellors information about you I would be obliged, if you think it convenient, that you send us your "curriculum vitae."
Each of the two teaching positions of the Physical Education Department which were not eliminated was held by a professor senior to the three recipients of the aforesaid letter.
The plaintiffs do not question that the university in reducing the number of professors in the Physical Education Department acted in good faith, exclusively for the reasons stated in the July 19, 1978 letter, and without any motive or intention to dismiss the plaintiffs on "personal grounds" a term here used to include not only dismissals for cause, or for fault, or for deficiency of any kind, but also to include dismissals reflecting any superior's personal attitude toward a plaintiff or any other individual.
Nor do the plaintiffs question that if eliminations were justified, the university, in selecting for elimination the plaintiffs rather than the two professors who were not eliminated, acted in good faith, on the basis of an appropriate standard of seniority of service and not on "personal grounds," as above defined.
On July 26, 1978, the plaintiffs were given an informal hearing by Mr. Pedro Juan Barbosa, assistant to President Almodovar, whom the president, being ill, had designated as his representative for the hearing. Mr. Barbosa informed the plaintiffs that seniority was the only criterion on which the president had based his decision. He also invited them to set forth any grievances or challenges they might make against the decision under which their employment would terminate on August 15, 1978. None was raised by the plaintiffs at that time.
The plaintiffs have never appealed from the president's July 19, 1978 decision effective August 15, 1978 eliminating their positions and terminating their employment. It is inferable that they knew that such an appeal was available because, to the knowledge of plaintiff's counsel, their colleague Maria L. Garcia-Feliciano appealed, pursuant to 18 LPRA § 602(e)(6), the decision against her to the Council on Higher Education. The Council has ordered a full evidentiary hearing of her appeal before a hearing examiner, pursuant to Articles 6, 10, 11 and 12 of Chapter IX of its by-laws, but, in accordance with a stipulation of the parties, the Council stayed the hearing pending the outcome of the present action.
Meanwhile, President Almodovar had been seeking to secure positions within the university for the plaintiffs. On July 19, 1978, the very day he transmitted to the plaintiffs and Maria L. Garcia-Feliciano the termination letters, the president directed to each of the chancellors and directors of the other university colleges within the university an inquiry as to whether any position was available for any of the three professors being eliminated. The president pursued these inquiries by telegrams sent at a later date.
On August 2, 1978, the Aguadilla College of the University of Puerto Rico employed Maria L. Garcia-Feliciano, who was senior to the plaintiffs, at the same rank and salary she had enjoyed at Humacao University College.
On September 6, 1978, the president offered both the plaintiffs the only teaching position then available at the Carolina Regional College of the University of Puerto Rico. At the same time, the president offered to the plaintiff Medina Jimenez, and later offered to the other plaintiff, Garofalo, an administrative position at Humacao University College. Medina Jimenez accepted effective October 2, 1978 the teaching position at Carolina Regional College, with the same rank and salary he enjoyed at Humacao University College. He still holds that position. He has also received retroactively to August 15, 1978 his salary. The other plaintiff, Garofalo, did not accept any position then or later.
On April 5, 1979, the president of the university offered plaintiff Medina Jimenez a teaching position in Humacao University College a position which was in every respect similar to the one he had previously held in that college, including tenure and rank, plus an administrative, tenured position as the administrator of the new sports facilities in said college. The president offered plaintiff Garofalo the position occupied by plaintiff Medina Jimenez in the Carolina Regional College "that will be left vacant by the latter in case he accepts the offer made to him." Both positions were to be occupied immediately, retroactively as of April 1, 1979. On August 11, 1979, Medina Jimenez declined the offer made to him, so the Carolina position did not become available to Garofalo.
On July 28, 1978, the plaintiffs filed in the district court a complaint alleging that the defendants had taken their property without due process of law and had denied them the equal protection of the laws, 2 and seeking an injunction ordering the defendants "to continue the plaintiffs in their posts as tenured teaching staff...
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