Levitt v. University of Texas at El Paso, 87-1182
| Decision Date | 16 June 1988 |
| Docket Number | No. 87-1182,87-1182 |
| Citation | 847 F.2d 221 |
| Parties | 47 Fair Empl.Prac.Cas. 90, 46 Empl. Prac. Dec. P 38,045, 46 Ed. Law Rep. 1128 Barbara W. LEVITT, Plaintiff-Appellant, v. UNIVERSITY OF TEXAS AT EL PASO, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elwyn Lee, Houston, Tex., for plaintiff-appellant.
Barbara W. Levitt, pro se.
Don Branson, Olivia B. Ruiz, Asst. Attys. Gen., Austin, Tex., for defendants-appellees.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, JOHNSON, and HIGGINBOTHAM, Circuit Judges.
Barbara Levitt is the widow of Dr. Leonard Levitt. 1 Dr. Levitt was dismissed from employment as a tenured professor of chemistry at the University of Texas at El Paso (UTEP) for misconduct consisting of alleged advances toward one or more of his female students at the university. 2
Dr. Levitt brought suit against UTEP and two of its employees in the District Court on March 28, 1983 Levitt I. Judgment was entered in favor of UTEP and both individual defendants on July 17, 1984. 590 F.Supp. 902. We affirmed. 759 F.2d 1224 (5th Cir.1985), cert. denied, 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985). On March 18, 1985, while his appeal from Levitt I was pending, Dr. Levitt brought the instant suit Levitt II against UTEP and 22 individual defendants, also arising from the termination of his employment at UTEP. The District Court granted defendants' motion to dismiss with respect to only the individual defendants on grounds of res judicata, or claim preclusion. The court later granted UTEP's motion to dismiss the case against it on grounds of collateral estoppel, or issue preclusion, in light of Hirst v. State of California, 770 F.2d 776 (9th Cir.1985). From that order, Levitt appeals. We affirm.
In February 1982, a nursing student enrolled in one of Dr. Levitt's chemistry classes complained that he had made offensive advances toward her. 3 Dr. Olander 4 received that complaint and--after consultation with the University president, Dr. Monroe--decided to offer Dr. Levitt the opportunity to resign. Dr. Levitt refused. The University then began formal proceedings to terminate his employment.
In accordance with UTEP's rules, Dr. Monroe selected a five-member tribunal of other UTEP faculty members. That tribunal held a hearing during August and September of 1982, during the course of which Dr. Levitt testified under oath that certain University administrators had brought false charges against him, and that these administrators were actually motivated by bias and prejudice against Levitt because he was Jewish.
The tribunal considered Dr. Levitt's testimony and all the other evidence before it, and concluded that Dr. Levitt had indeed made improper advances toward female students enrolled in his classes on several occasions. The tribunal rejected Dr. Levitt's contention and made a unanimous finding that good cause existed for the termination of his employment. In accordance with its recommendation, he was dismissed on December 3, 1982.
Subsequently, Dr. Levitt filed suit in the Western District of Texas on March 28, 1983 Levitt I. In his complaint--filed with the assistance of counsel--Dr. Levitt asserted that his termination from employment at UTEP was "contrary to law." The only ground upon which he based that assertion was that the procedures followed by the university deprived him of his right to due process. He pleaded a cause of action under 42 U.S.C. Secs. 1983, 1985, and 1988, and the Fourteenth Amendment.
Dr. Levitt claimed in Levitt I that he had been denied due process in five respects: (i) he was not given adequate notice of the cause of his termination; (ii) he was denied the right to confront the witnesses against him; (iii) he was denied the opportunity to be heard; (iv) the special tribunal appointed to hear the charges and evidence against him did not give to him a statement of the reasons for termination found by the special tribunal; and (v) two members of the tribunal, Dr. Harris and Dr. Fuller, were prejudiced against him and he was thereby denied the right to a hearing before an impartial tribunal. 5 On December 29, 1983, the District Court granted UTEP summary judgment with respect to the first four of these contentions. 6 A trial was held on the fifth claim on July 2, 1984. On that claim, judgment was entered in favor of UTEP and both Dr. Harris and Dr. Fuller, on July 17, 1984. 590 F.Supp. 902. This court affirmed. 759 F.2d 1224 (5th Cir.1985), cert. denied, 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985).
While the appeal from Levitt I was still pending before this court, Dr. Levitt filed the instant suit Levitt II--on March 18, 1985--under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Dr. Levitt's complaint in Levitt II was filed pro se. 7 Such a complaint must be read liberally. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652, 654 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). The District Court did so, and treated Levitt's complaint as "an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq., with additional claims asserted under 42 U.S.C. Secs. 1981, 1983, and 1985, and the Thirteenth and Fourteenth Amendments to the Constitution of the United States." However, even a liberally-construed pro se civil rights complaint must set forth facts giving rise to a claim on which relief may be granted. Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 1496-97, 52 L.Ed.2d 72, 81 (1977). In Levitt II, Dr. Levitt again sought review of the very same transaction, his dismissal from employment at UTEP. The particular wrong Dr. Levitt alleges in his original, unamended pro se complaint in Levitt II is that he was terminated from employment with UTEP because of bias or prejudice against him because he is Jewish. Specifically, he directs the court to transactions between himself and Drs. Olander 8 and Hatch. 9
UTEP and the individual defendants moved to dismiss Levitt II, asserting that the claim of racial or religious discrimination that Dr. Levitt brought in Levitt II under Title VII could have been brought in Levitt I under 42 U.S.C. Sec. 1983. The District Court granted defendants' motion to dismiss with respect to all the individual defendants on grounds of res judicata, or claim preclusion. The court denied the motion to dismiss with respect to the Title VII claim against UTEP, however, because at the time that Dr. Levitt instituted Levitt II, he had not been issued a right-to-sue letter by the EEOC. Such a letter is, under 42 U.S.C. Sec. 2000e-5(f)(1), a prerequisite to bringing suit under Title VII. Dr. Levitt received that right-to-sue letter in December 1984. 10 The District Court later granted UTEP's motion to dismiss the complaint against it on grounds of collateral estoppel, or issue preclusion, in light of Hirst v. State of California, 770 F.2d 776 (9th Cir.1985).
On appeal, Mrs. Levitt contends that (i) the District Court erred in dismissing the Title VII claim against UTEP in Levitt II on grounds of collateral estoppel, or issue preclusion, and (ii) the District Judge should have recused himself in Levitt II. 11
Under 28 U.S.C. Sec. 455(a), a justice, judge, or magistrate of the United States is required to recuse himself "in any proceeding in which his impartiality might reasonably be questioned." Subsection (b) of that same section further requires that he recuse himself in other specified circumstances, none of which applies in this case. 12 The several circumstances which Mrs. Levitt contends triggered a duty for Judge Hudspeth to recuse himself under Sec. 455(a) are set forth in the margin. 13
In Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir.1986), we observed that [t]he goal of the disqualification statute is to promote public confidence in the judicial system by avoiding even the appearance of partiality. Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1165 (5th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). In particular, section 455(a) was intended to establish an objective test so that "disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality." Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980). See also Hall v. Small Business Administration, 695 F.2d 175 (5th Cir.1983); United States v. Holland, 655 F.2d 44 (5th Cir.1981); Whitehurst v. Wright, 592 F.2d 834 (5th Cir.1979). The judge can himself decide whether the claim asserted is within Sec. 455. If he decides that it is, then a disinterested judge must decide what the facts are. See 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3550 (1984) and the cases cited there.
None of the circumstances to which Mrs. Levitt directs this court's attention rises to the threshold standard of raising a doubt in the mind of a reasonable observer as to Judge Hudspeth's impartiality. There was no duty on the judge's part to recuse himself.
The District Court correctly ruled that Dr. Levitt's Title VII suit against UTEP was barred by issue preclusion.
The UTEP tribunal considered Dr. Levitt's testimony and all the other evidence before it, and concluded that Dr. Levitt had indeed made improper advances toward female students enrolled in his classes on several occasions. The tribunal rejected Dr. Levitt's contention and made a unanimous finding that good cause existed for the termination of his employment.
The findings of the university tribunal were not given preclusive effect in Levitt I. Under Kremer v. Chemical Construction Corp., 456 U.S. 461, ...
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