Moore v. Mississippi Valley State University

Decision Date01 May 1989
Docket NumberNo. 87-4830,87-4830
Citation871 F.2d 545
Parties52 Ed. Law Rep. 928, 27 Fed. R. Evid. Serv. 1411 Rachel MOORE, et al., Plaintiffs-Appellants, v. MISSISSIPPI VALLEY STATE UNIVERSITY, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Willie J. Perkins, Sr., Greenwood, Miss., Leonard McClellan, Oxford, Miss., for plaintiffs-appellants.

Rickey T. Moore, Sp. Asst. Atty. Gen., Gail W. Lowery, Jackson, Miss., John Hensen, Greenwood, Miss., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before CLARK, Chief Judge, BROWN, and JOLLY, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Four former employees of Threadgill Day Care Center in Greenwood, Mississippi filed suit under 42 U.S.C. Sec. 1983, against Mississippi State Valley University, the sponsor of the Center, and against the Center's Board of Directors. The employees alleged that they lost their jobs in violation of their First and Fourteenth Amendment rights and that the University and Board are not shielded by the Eleventh Amendment. We are not persuaded by their argument and affirm the decision of the trial court below.

I. Background

Threadgill Day Care Center of Greenwood, Mississippi, (Threadgill) employed, among others, Mrs. Rachel Moore, Aide (Moore), Mrs. Ferrydine Peoples, Aide (Peoples), Mrs. Leola Porter, Aide (Porter), and Mrs. Dorothy Williams-Anthony, Teacher (Williams-Anthony). This case is a dispute between these four employees of Threadgill and Threadgill's director and supervisory board.

For purposes of funding under Title XX, 42 U.S.C. Sec. 1397 et seq., Threadgill operated under the sponsorship of the Greenwood Housing Authority (Greenwood) during the 1982-83 school year. The four employees were each employed on yearly contracts. Each of the 1982-83 contracts expired on September 30, 1983.

In May or June of 1983, Greenwood decided to relinquish its sponsorship of Threadgill. Threadgill approached Mississippi Valley State University (MVSU) in July 1983 for sponsorship. MVSU agreed to assume sponsorship for one fiscal year starting October 1, 1983.

In August 1983, a new governing board (the Board) was appointed comprising three faculty members from MVSU and two persons from the Greenwood Community at large. 1

At its first meeting, August 3, 1983, the new Board prepared for the changeover from Greenwood sponsorship. The Board decided to give current Threadgill employees "first choice" of open positions. These employees submitted applications, resumes and references for review by the Board.

On September 15, 1983, all applicants, including plaintiffs, appeared before the Board for brief interviews. At that same meeting the Director, Jeanette Coleman (Coleman), made employment recommendations to the Board. Later that evening, the Board made its final decisions.

The meeting minutes show that Moore and Peoples were not recommended for re-employment as Aides. Porter was retained as an Aide but was put on 30 days probation for, among other things, insubordination and refusal to follow orders. Williams-Anthony was reduced from Teacher to Aide due to a lack of qualifications.

Each of the four were notified by mail of the Board's decision. The reasons for the Board's decision were not stated nor did the letters apprise plaintiffs of any opportunity for a hearing. The four employees subsequently made a formal request for a hearing and an explanation of the Board decisions. The request was not granted.

On November 20, 1983, the four employees filed a Sec. 1983 suit against MVSU, the Board, Greenwood, Coleman and certain other named individuals claiming that their employment status was terminated or changed in violation of the Fourteenth Amendment 2 and in retaliation for a valid exercise of their First Amendment rights. 3

The trial court on April 16, 1985, granted summary judgment on behalf of MVSU, the Board and Coleman in regards to the appellants' liberty interest claims and dismissed with prejudice the claim against Greenwood and the members of the Greenwood-sponsored board. A non-jury trial was conducted on August 13-14, 1987 regarding the remaining claims.

At trial, Moore, representing the four employees collectively, offered into evidence the deposition of Patrick Lewis (Lewis). Lewis, executive director of Greenwood while it sponsored Threadgill, had been a defendant in the case along with MVSU until the April 16, 1986 dismissal by the trial court. Lewis was deposed by Moore's attorney on March 7, 1984. 4

Moore listed Lewis as one of her witnesses in the pre-trial order filed on September 23, 1985, but he was never called by Moore. Instead, during the trial on August 13, 1987, while Williams-Anthony was testifying, Moore's attorney sought to have her read the contents of the Lewis deposition into the record. MVSU objected and Moore's attorney responded that the document was offered to refresh Williams-Anthony's memory. Moore's attorney also claimed, without elaborating the details, that an attempt had been made to subpoena Lewis. The trial court subsequently allowed the document to be used to refresh Williams-Anthony's memory but ordered that it not be read into evidence. 5

On August 31, 1987, the trial court found in favor of MVSU and dismissed the complaint. The four employees appealed.

Answering the collective contentions of the four, we must consider (i) whether each was deprived of either a valid liberty interest or a deprivation of property interest under the Fourteenth Amendment, (ii) whether Moore and Peoples were discharged, whether Williams-Anthony was demoted and whether Porter was put on probation in retaliation for the valid exercise of their First Amendment rights, and (iii) whether the trial court erred in excluding the Lewis deposition.

II. The Fourteenth Amendment Claims

In alleging an unconstitutional denial of public employment in a Sec. 1983 action after an employee has been fired, a threshold requirement is that the plaintiff demonstrate either a liberty or a property interest in her public employment. Without such an interest in public employment, no right to due process accrues.

a. Give Me Liberty or ...

Moore appeals the summary judgment granted by the trial court on the liberty interest claim. We find no error in the trial court's decision. 6

In reviewing a grant of summary judgment by a trial court, we examine the record under the same standards as used by the trial court. Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th Cir.1987); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). Affirmance of a summary judgment ruling requires that "we [be] convinced, after an independent review of the record, that 'there is no genuine issue as to any material fact' and the movant is 'entitled to a judgment as a matter of law.' " Brooks, 832 F.2d at 1364 (quoting Fed.R.Civ.P. 56(c)). Consequently, we must "review the facts drawing all inferences most favorable to the party opposing the motion." Reid, 784 F.2d at 578, and decide all questions of law outside the summary judgment context by de novo review. Brooks, 832 F.2d at 1364. Finally, we are bound in our review of the granting of summary judgment by the record as it existed at the time summary judgment was granted. Gulf Union Industries, Inc. v. Formation Sec., Inc., 842 F.2d 762, 765 (5th Cir.1988); DeBardeleben v. Cummings, 453 F.2d 320 (5th Cir.1972).

In inquiring whether Moore was deprived of a protected liberty interest without due process, in the context of public employment, we recognize that a public employee has the right to be free from charges by the state that publicly compromise her good name, reputation, honor or integrity, unless she is afforded notice and an opportunity to refute those charges. Board of Regents v. Roth, 408 U.S. 564, 572-75, 92 S.Ct. 2701, 2706-08, 33 L.Ed.2d 548, 558-59 (1972). In order to establish the deprivation of a liberty interest, the employee may show either that she was terminated without notice and an opportunity to be heard for a reason which was (i) false, (ii) stigmatizing and (iii) published, Huffstutler v. Bergland, 607 F.2d 1090, 1092 (5th Cir.1979), or that she was denied other employment opportunities by the state as a result of a stigmatizing termination, for which she did not receive prior notice and a name clearing hearing. Board of Regents v. Roth, 408 U.S. at 573-74, 92 S.Ct. at 2707.

When the trial court granted summary judgment on the liberty interest claim in April 1985 it found that such judgment was appropriate because Moore failed to meet the Huffstutler standard. The trial court found that no representations of dishonesty or immorality were made against any of the plaintiffs nor were there any other charges that could be stigmatizing to any of the plaintiffs. The trial court also found that the changes and terminations of employment status had not been made "public" by any of the defendants and that the decision had only been made known in the workplace. This absence of "publication" must mean, consequently, that Moore could not have been denied subsequent employment opportunities due to the dissemination by the Board or Coleman of information about her discharge at Threadgill.

On review, we conclude for these reasons that Moore's liberty interest claim properly failed on summary judgment. Also we find that Moore failed to state that she was denied a subsequent employment opportunity because of her termination at Threadgill.

Moore did not state in a supporting affidavit offered in opposition to summary judgment on the liberty interest claim that she had been fired from a subsequent teaching position. The most she stated was that her new employer had had an opportunity for contact with Threadgill staff. 7 There were no statements from which the fact-finder could reasonably infer that she was fired from the second teaching...

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