Morris v. Clifford

• Decision Date: 16 May 1990
• Docket Number: No. 89-5165,89-5165
• Citation: 903 F.2d 574
• Parties: 60 Ed. Law Rep. 722 Dr. Clyde M. MORRIS, Appellee, v. Thomas J. CLIFFORD, Dr. Alice T. Clark, Dr. Vito Perrone, Dr. Cecelia Traugh, Dr. Donald Piper, Dr. Donald K. Lemon, Dr. Larry L. Smiley and Dr. Richard Hill, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 574

903 F.2d 574

60 Ed. Law Rep. 722

Dr. Clyde M. MORRIS, Appellee, v. Thomas J. CLIFFORD, Dr. Alice T. Clark, Dr. Vito Perrone,

Dr. Cecelia Traugh, Dr. Donald Piper, Dr. Donald

K. Lemon, Dr. Larry L. Smiley and Dr.

Richard Hill, Appellants.

No. 89-5165.

United States Court of Appeals,

Eighth Circuit.

Submitted March 12, 1990.

Decided May 16, 1990.

Gary R. Thune, Bismarck, N.D., for appellants.

David C. Thompson, Fargo, N.D., for appellee.

Before BEAM, Circuit Judge, and HEANEY, Senior Circuit Judge, and LARSON, ^* Senior District Judge.

LARSON, Senior District Judge.

Defendants appeal from the district court's ¹ denial of their motion for summary judgment on qualified immunity grounds. Because we agree with the district court's conclusion that genuine issues of material fact exist concerning whether qualified immunity shields defendants from liability for actions taken to cause the discharge of plaintiff, a tenured faculty member at the University of North Dakota, we affirm.

I.

Plaintiff Clyde Morris became a tenured faculty member in the field of educational administration at the University of North Dakota (UND) in 1966. He served as chair of the Department of Education in 1968 and 1969, until the Department was merged into a "New School of Behavioral Studies" in 1970. Morris and his colleagues in the Department of Education opposed the merger, and Morris cast the lone dissenting vote against defendant Vito Perrone, who was elected Dean of the New School. Morris claims his opposition to the merger and to Perrone's candidacy created an antagonism between himself and Perrone, which ultimately caused his termination.

Morris alleges that prior to the events leading to his discharge, he had never received a negative evaluation of his performance as a professor nor had any negative material been placed in his personnel file during his fifteen years at the University. Pursuant to a policy adopted in 1975, he received his first written review in 1977, which cited both "strengths" and "areas needing improvement." His next scheduled review took place in 1980.

After this review, on July 9, 1980, defendant Perrone sent Morris a letter informing him that unless his performance in eight "problem areas" improved, Morris would receive a terminal contract for the 1981-82 school year. Morris responded in writing, indicating his view that the criticisms made were "overstated if not totally unfounded." ² In November, 1980, defendant Cecelia Traugh, who was acting as dean while Perrone was on sabbatical, sent Morris a letter almost identical to that sent by Perrone in July. Traugh's letter was placed in Morris' personnel file.

The next month, the educational administration faculty met to conduct the review of Morris' performance suggested by Perrone. Although this review was to determine whether Morris would be discharged from the University, Morris alleges he was not presented with any written materials relating to his allegedly deficient performance until this meeting and was given no legitimate opportunity to respond to any specific material. After the meeting, Acting Dean Traugh again recommended Morris be issued a terminal contract. Defendant Thomas Clifford, President of the University, accepted this recommendation and informed Morris on April 13, 1981, that he would receive a terminal contract for the 1981-82 school year.

In a letter dated May 29, 1981, the President explained the basis for his decision was Morris' "substantial and manifest neglect of duty." Morris appealed this decision, and the President assembled a special review committee on June 21, 1981, to review the procedures which led to the decision to terminate Morris. The special committee held a meeting in mid-July. Defendant Perrone and others named in plaintiff's complaint submitted a "black notebook" full of materials they had assembled to support Morris' termination. Morris objected to the use of these materials, which were never a part of his personnel file and which he received only twenty four hours prior to the meeting. Several days later, the special committee issued findings which adopted the views of defendant Perrone that Morris should be terminated.

Morris then appealed to the Standing Committee on Faculty Rights, which held a hearing in November, 1981. On January 26, 1982, three of the five members of the committee issued recommendations to the President which concluded that Morris' termination was not justified. On February 8, 1982, President Clifford nonetheless confirmed his previous decision not to renew Morris' contract for the 1982-83 school year.

Morris is now sixty-seven years of age. Unable to find employment in his field since his termination, Morris sued the University, the President, Dean Perrone, and several others involved in the decision to fire him, alleging he had been denied procedural and substantive due process. Defendants moved for summary judgment. The magistrate ³ recommended dismissal of Morris' claims against the University and the individual defendants in their official capacities on the ground that the suit was barred by the Eleventh Amendment, since the state had not waived its sovereign immunity. See Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974); Mitchell v. Los Angeles Community College District, 861 F.2d 198, 201-02 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2102, 104 L.Ed.2d 663 (1989); Harden v. Adams, 760 F.2d 1158, 1163-64 (11th Cir.), cert. denied, 474 U.S. 1007, 106 S.Ct. 530, 88 L.Ed.2d 462 (1985). The magistrate recommended that summary judgment be denied on plaintiff's claims against the defendants in their individual capacities on the ground that genuine issues of fact precluded summary judgment.

The district court accepted the magistrate's recommendation on the issue of sovereign immunity and granted summary judgment in favor of the University and the defendants in their official capacities. The court also granted summary judgment in favor of the individual defendants on plaintiff's procedural due process claim, concluding that while earlier proceedings may not have fulfilled all due process requirements, the final hearing before the Standing Committee on Faculty Rights did meet these requirements. See Agarwal v. Regents of the University of Minnesota, 788 F.2d 504, 508 (8th Cir.1986). The district court agreed with the magistrate that summary judgment should be denied on Morris' substantive due process claim, holding the record reflected a genuine issue of material fact regarding whether Morris' discharge was the result of "arbitrary and capricious treatment at the hands of defendants who acted in concert to ratify and substantiate after the fact a pretextual and vindictive decision" made by Perrone in July, 1980, to terminate Morris.

II.

Defendants have appealed. The sole issue before us is whether defendants are entitled to qualified immunity from individual liability as a matter of law. Defendants may not invoke the defense if their conduct violates "clearly established constitutional or statutory rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A right is "clearly established" if the contours of the right are such that a reasonable official would understand that what he or she is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). See Holloway v. Conger, 896 F.2d 1131, 1136-37 (8th Cir.1990).

Plaintiff contends that defendants' actions amounted to a violation of his clearly established right to be free from vindictive, arbitrary, and capricious discharge. Plaintiff cites as a basis for this right the regulations on Academic Freedom, Tenure, and Due Process contained in the Faculty Handbook and referenced by the President in informing plaintiff of his termination. These regulations provide that a tenured faculty member can be dismissed only for "adequate cause." ⁴

Defendants agree these provisions give plaintiff, as a tenured faculty member, a constitutionally protected property interest in continued employment. See Moore v. Warwick Public School District, 794 F.2d 322, 328-30 (8th Cir.1986); Agarwal v. Regents of the University of Minnesota, 788 F.2d 504, 507-08 & n. 2 (8th Cir.1986); Stermetz v. Harper, 763 F.2d 366, 367 (8th Cir.1985); O'Neal v. City of Hot Springs Nat'l Park, 756 F.2d 61, 62-63 (8th Cir.1985); Miller v. Dean, 552 F.2d 266, 268 (8th Cir.1977); Fisher v. Snyder, 476 F.2d 375, 376-77 (8th Cir.1973). See generally Harrah Independent School District v. Martin, 440 U.S. 194, 197-99, 99 S.Ct. 1062, 1063-65, 59 L.Ed.2d 248 (1979); Slochower v. Board of Education, 350 U.S. 551, 554-55, 559, 76 S.Ct. 637, 638-40, 641-42, 100 L.Ed. 692, modified on denial of rehearing, 351 U.S. 944, 945, 76 S.Ct. 843 100 L.Ed. 1470 (1956). ⁵

Defendants further concede that in addition to procedural due process rights, ⁶ plaintiff has a substantive due process right to be free from discharge for reasons that are "arbitrary and capricious," or in other words, for reasons that are trivial, unrelated to the education process, or wholly unsupported by a basis in fact. E.g., Fisher, 476 F.2d at 377-78. See Honore v. Douglas, 833 F.2d 565, 568-69 (5th Cir.1987); Gargiul v. Tompkins, 704 F.2d 661, 667-69 (2d Cir.1983), vacated on other grounds, 465 U.S. 1016, 104 S.Ct. 1263, 79 L.Ed.2d 670 (1984). Under these circumstances, we conclude plaintiff's right as a tenured faculty member to be discharged only for "adequate cause" was clearly established at the time defendants acted. See Newman v. Commonwealth of Massachusetts, 884 F.2d 19, 24-26 (1st Cir.1989); Miller, 552 F.2d at 268; Fisher, 476 F.2d at 376-78. See generally, T. Lovain, Grounds for Dismissing Tenured Postsecondary Faculty for Cause, 10 J. of C. & U.L. 419, 421-22 (1983).

This, of course, does not end our inquiry. Becau...