McDowell v. State of Texas

• Decision Date: 29 August 1972
• Docket Number: No. 30363.,30363.
• Parties: Floyd E. McDOWELL, Plaintiff-Appellant, v. The STATE OF TEXAS, Texas Board of Mental Health and Mental Retardation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 1342 (1971)

Floyd E. McDOWELL, Plaintiff-Appellant, v. The STATE OF TEXAS, Texas Board of Mental Health and Mental Retardation, et al., Defendants-Appellees.

No. 30363.

United States Court of Appeals, Fifth Circuit.

May 6, 1971.

On Rehearing August 29, 1972.

David R. Richards, Clinton & Richards, Austin, Tex., for plaintiff-appellant.

David Rubin, Richard J. Medalie, Epstein, Friedman & Duncan, Washington, D. C., for amicus curiae Nat'l Educ. Ass'n.

Crawford C. Martin, Atty. Gen. of Texas, Jack Sparks, Asst. Atty. Gen., Austin, Tex., Jack B. Manning, Houston, Tex., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., J. C. Davis, Asst. Atty. Gen., Austin, Tex., for defendants-appellees; Bean & Manning, Houston, Tex., of counsel.

Before SKELTON^*, Judge, and MORGAN and CLARK, Circuit Judges.

On Rehearing En Banc August 29, 1972.

CLARK, Circuit Judge:

Dr. Floyd E. McDowell filed this action, based upon 42 U.S.C.A. § 1983 (1970).¹ Jurisdiction was allegedly based upon 28 U.S.C.A. § 1343(3) (1962).² The defendants were the State of Texas, the Texas Board of Mental Health and Mental Retardation (Board), and certain Board officials. Plaintiff alleged that he was denied substantive and procedural due process by virtue of his discharge from the position of Superintendent of the Richmond State School, an institution operated by the Board. In addition to the asserted federal claim, McDowell sued two Board officials and a private party, David Sloane, under a pendent State claim of slander. At the conclusion of McDowell's evidence, the district court granted motions by all defendants for directed verdicts against McDowell on both the federal and State counts. McDowell appeals, contending he established his claims as a matter of law or, in the alternative, presented sufficient evidence to create jury issues.

Dr. McDowell, who enjoys a substantial national reputation in the field of mental health and mental retardation, was employed by the Board as Superintendent in 1966. Approximately 22 months later he was discharged summarily for reasons never made altogether certain. The Board said his discharge eventuated from generally unsatisfactory services. In the trial court it particularized 11 specific grounds for his discharge in its answer. In general, the Board now contends that Dr. McDowell's discharge resulted from inefficiency, incompetency and insubordination. The Board further contends that because Dr. McDowell had no tenure or contractual term of employment, they were at liberty to terminate his services with or without cause at will under applicable Texas law.³ Despite the present specifications and despite admitted advice given to Dr. McDowell at the time of his discharge that he was being dismissed for cursing his superiors, Dr. McDowell asserts that the real reason for his discharge was his refusal to follow orders of his superior, Dr. Charles Barnett, the Deputy Commissioner, to admit the mongoloid son of a State senator. Dr. McDowell contends that the admission of this child would have been contrary to Texas law⁴ and the established program of the Richmond State School. Dr. McDowell requested a hearing before the Board at which he could contest his discharge, and even offered to bear the cost of such a procedure, but this request was denied.

SLANDER

There is no dispute in the evidence that Sloane reported to Board officials that Dr. McDowell had imputed a canine status to the mothers of both the Commissioner and Deputy Commissioner of the Board at a public meeting. Dr. McDowell offered proof that Sloane's report that he had spoken these words was false. Both the Commissioner and the Deputy Commissioner were charged with giving this statement currency at a meeting of the Board without investigation or authentication. The slander charges against these Board officers have been dropped and only the charge against Sloane is pressed on this appeal.

Dr. McDowell admitted during oral argument before this court that the decision to fire him had already been made when Sloane tendered his report to the Commissioner and the deputy. Sloane argues from this admission that since Dr. McDowell could have suffered no damages by reason of Sloane's utterances, the words are not actionable. This argument would have validity if Sloane's statements were not slanderous per se. However, when statements are shown to be slanderous per se, it is unnecessary for a plaintiff to plead and prove special damages. Bell Publishing Co. v. Garrett Engineering Co., 141 Tex. 51, 170 S.W.2d 197 (1943); Buck v. Savage, 323 S.W.2d 363 (Tex.Civ.App.—Houston, 1959, writ ref'd n. r. e.); Texas Plastics, Inc. v. Roto-Lith, Limited, 250 F.2d 844 (5th Cir. 1958). Utterances are slanderous per se if they are false, made without privilege and ascribe to another conduct, characteristics or a condition incompatible with the proper conduct of his lawful profession or office. Restatement of Torts, § 573 (1938); Bell Publishing Co. v. Garrett Engineering Co., supra; Mayo v. Goldman, 57 Tex.Civ. App. 475, 122 S.W. 449 (1909); Texas Plastics v. Roto-Lith, supra. It would appear that Sloane's description of Dr. McDowell's verbal conduct would fall into this category since the description tended to lower Dr. McDowell's professional reputation and to affect the financial gains he received from his profession. See Restatement of Torts, supra, Comment b at page 178.

But even assuming arguendo that Sloane's statements were slanderous per se, we have determined from the record that they were qualifiedly privileged. A qualified privilege attaches to statements which occur under circumstances wherein any one of several persons having a common interest in a particular subject matter may reasonably believe that facts exist which another, sharing that common interest, is entitled to know. Restatement of Torts, supra, at § 596; Perry Bros. Variety Stores, Inc. v. Layton, 119 Tex. 130, 25 S.W.2d 310 (Tex.Comm'n App.1930, opinion adopted); Gulf Construction Co. v. George E. Mott Const. Co., 442 S.W.2d 778 (Tex.Civ.App.—Houston 14th Dist. 1969, no writ); Buck v. Savage, supra. Sloane was Executive Director of the Texas Association for Retarded Children, Inc., an eleemosynary group whose purpose is to foster the treatment, care and rehabilitation of retarded children. His statements were made to executive personnel of the Board, whose official duties were to act in furtherance of the purpose of Sloane's charitable group. Thus, both parties to the communication had a common interest in mentally retarded children and a common interest in the harmony and competency of the staff employed by the Board to work with such children. Obviously these parties shared a vital common interest in any act of openly voiced antipathy within the staff.

Dr. McDowell could have shown that the protection accorded by this qualified privilege was unavailable had he been able to prove malice toward him on the part of Sloane, Gulf Construction Co. v. George E. Mott Const. Co., supra; Buck v. Savage, supra; however the record is barren of any such evidence. Thus the district judge was correct in directing a verdict in favor of the defendant Sloane on the slander count.

SUBSTANTIVE DUE PROCESS

Dr. McDowell argues that the child Dr. Barnett ordered him to admit to the Richmond School was not eligible for admittance under State law⁵ or school policy. The defendants dispute this contention, but for purposes of our review of the directed verdict on the substantive due process ground, we accept as correct Dr. McDowell's claims that the admittance would have been improper and that the pressures brought to bear on him to admit this child were due solely to the vagaries and vicissitudes of Texas politics, and thus credit Dr. McDowell's claim that his discharge eventuated from an invalid order.

This raises the question neatly. Under the facts we assume to be true, was a federal statutory or Constitutional right involved when a State Board fired a State employee contrary to State law for local political consideration? Insofar as substantive due process is concerned, our answer is no.

Before detailing the reasoning which leads us to this conclusion, it is appropriate to expressly note what is not involved in the case at bar. There is no claim that Dr. McDowell has been denied First Amendment rights, nor that he has suffered any deprivation on account of race or color, nor that any explicit federal Constitutional or statutory prohibition has been transgressed. Dr. McDowell makes no assertion that just State forums are not readily available to him and capable of affording complete relief. Moreover, the uncontradicted evidence demonstrates that, rather than the actions of the defendant depriving him of the means of livelihood, within 11 days after his discharge by the Board Dr. McDowell had received 20 job offers and accepted one of these jobs offers at a higher salary than he was receiving when he was fired.

The termination of Dr. McDowell's status as a State employee rests solely on a claim that his employers violated State statutes and local policies in effecting his termination. The right to employment by a State, in itself, is not a right secured by the Constitution or by the Laws of the United States; thus, even an invalid or an improper discharge from such an office, unaccompanied by some more precise claim of federal right than a general claim of lack of due process,⁶ is not the sort of deprivation of a right, privilege or immunity which is secured by the Constitution of the United States or an Act of Congress providing for equal rights of citizens within the meaning of 28 U.S.C.A. § 1343(3). Cf. Johnson v. Hood, 430 F.2d 610 (5th Cir. 1970). Cases of this genre constitute uniquely State causes of action. As such they are peculiarly within the realm of State courts. "A right to have state (or city) laws obeyed is a state, not a federal right." Love v. Navarro, ...