Olson v. Regents of University of Minnesota, 5-69 Civ. 28.

• Decision Date: 25 July 1969
• Docket Number: No. 5-69 Civ. 28.,5-69 Civ. 28.
• Citation: 301 F. Supp. 1356
• Parties: Harold G. OLSON, Plaintiff, v. REGENTS OF the UNIVERSITY OF MINNESOTA, a corporate body, Defendants.
• Court: U.S. District Court — District of Minnesota

301 F. Supp. 1356

Harold G. OLSON, Plaintiff, v. REGENTS OF the UNIVERSITY OF MINNESOTA, a corporate body, Defendants.

No. 5-69 Civ. 28.

United States District Court D. Minnesota, Fifth Division.

July 25, 1969.

John Scherer, Andrew Larson, Newton S. Friedman, Duluth, Minn., for plaintiff.

R. Joel Tierney, Minneapolis, Minn., for defendants.

NEVILLE, District Judge.

This is a civil action commenced under the Federal Civil Rights Act challenging on constitutional grounds the Civil Service Rules of the University of Minnesota and the dismissal thereunder of plaintiff, a University employee. The amended complaint seeks a declaration that the procedures of these Civil Service Rules are violative of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. The amended complaint further prays for injunctive and mandatory relief and requests that plaintiff be reinstated as a University employee.¹ Jurisdiction is present under 28 U.S.C. §§ 1343 and 2201 and 42 U.S.C. § 1983. See Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969).

At the hearing on plaintiff's motion for a temporary injunction by stipulation the Regents of the University of Minnesota as a corporate body was substituted as party defendant instead and in lieu of the sixteen named individual defendants. A dismissal in their favor is hereby entered. Though at the close of the argument both parties agreed that the trial of the action on the merits should be advanced and consolidated with the hearing on the application for preliminary injunction pursuant to Rule 65(a) (2) of the Federal Rules of Civil Procedure, the use of the term "merits" does not imply that the court is asked to, nor will it, determine whether just cause existed to terminate plaintiff's employment but rather whether there is a constitutional question involved affecting the University's Civil Service Rules and plaintiff's employment termination.

The facts are not in dispute. Plaintiff is 59 years of age and has been a permanent civil service employee of the University of Minnesota, Duluth Campus for the past 14 years. During 1968 plaintiff was reclassified to the position of Maintenance and Operations Mechanic and he continued in that position until January 23, 1969 when he was dismissed summarily by his supervisor. Plaintiff was separated from his employment by his supervisor orally and without any prior notice or hearing. On February 13, 1969, some 21 days later, the supervisor directed a letter to plaintiff confirming his dismissal. This letter reads in part:

"This is to confirm your dismissal on January 23, 1969. You were terminated for the following reasons:

1. Repeated threats of physical harm to other employees, which you had been warned about several times, including a warning that you would be terminated if you laid a hand on any employee.

2. Physical attack upon your supervisor on January 22, 1969.

3. Physical attack upon the Superintendent of Plant Services on January 23, 1969.

Your rights of appeal are governed by University of Minnesota Civil Service Rule 17. A copy of these rules is enclosed."²

The Civil Service Rules of the University of Minnesota cover various employment relations such as employee training, hours of work, attendance and holidays, health and safety, collective bargaining, leaves of absence, seniority, separation, reinstatement and reemployment, problem prevention, problem solving, discipline and dismissal, and grievance procedures. Plaintiff was dismissed under Rule 16.4 which states:

"16.4 Dismissal

16.41 An employee who has passed his probationary period may be dismissed from his position for just cause.

16.42 A written statement of reasons for dismissal sufficient under the circumstances shall be given to the employee by the supervisor or department head with a copy to the Director and the formal (authorized sole bargaining) representative, if any. The date on which the dismissal is to be effective shall be named in this statement.

16.43 The employee may appeal a dismissal or the sufficiency of the statement of reasons for dismissal in accordance with Rule 17. The appeal of the sufficiency of a statement of reasons for dismissal shall not affect the effective date of the dismissal." emphasis added

Rule 17 allows an appeal to the Director of the Department of Civil Service Personnel who may grant a hearing and allow both parties to submit factual information and argument. Rule 17.331. If the Director's decision is unsatisfactory to the employee, he may appeal to the Civil Service Committee or to arbitration. Rule 17.42. If the appeal is to the Committee, the Chairman of the Committee may appoint a panel of three to hear the appeal. This appeal is to be by "written stipulation" which "shall state the issue or issues which were submitted in writing to the Director and the Director's disposition or failure to dispose of these issues within the time limits set." Rule 17.511. Within 15 days from the receipt of this stipulation, the Chairman of the Committee is required to schedule a hearing at a time not more than 30 days after the date of the receipt of the stipulation. At this hearing both parties have the opportunity to present evidence and such oral or written arguments as they desire. The Rules also permit supplemental briefs to be submitted. Rule 17.531. Within 20 days after the hearing is concluded, the Committee or panel is required to render a written decision. If the employee is still not satisfied, he may appeal to a board of arbitrators again by written stipulation. Each side appoints one arbitrator and the two chosen arbitrators agree on a third. Another hearing is held and a written decision rendered. The decision of the arbitrators is final and binding on both parties. Rule 17.77.

The court was informed at the oral argument that plaintiff has perfected a timely appeal under Rule 17 but that those proceedings by agreement and without prejudice have been stayed pending a determination in this action as to whether plaintiff's original dismissal on January 23, 1969 (whether or not for good cause) was contrary to plaintiff's guaranteed constitutional rights.

For this court to have jurisdiction under the Civil Rights Act, 42 U.S.C. § 1983 and other companion statutes, plaintiff must establish that a State or an agency thereof—here the University of Minnesota—acted in deprivation of "any rights, privileges, or immunities secured by the Constitution and laws." Plaintiff thus must establish a constitutional violation or else pursue his remedies if any in the Minnesota State Courts. If his rights under the due process clauses of the United States Constitution have not been protected, however, he has stated a cause of action in the Federal Court. Due process is today equated with the terms of "fair treatment" and "reasonable action" in the premises.

It was once held that a citizen has no "constitutional right to be a policeman" and that governmental employment was an unprotected privilege and not a right. See the opinion by Mr. Justice Holmes, as a member of the Massachusetts Supreme Judicial Court, in McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892). More recently, however, this right-privilege distinction as a limitation on substantive or procedural due process affecting employment in the public sector has been seriously eroded if not virtually rejected. See e. g., Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L. Ed.2d 811 (1968); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1958); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961); and Kelly v. Wyman, 294 F.Supp. 893 (S.D.N.Y.1968) (three-judge court); W. W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L.Rev. 1439 (1968). "The focus of inquiry has shifted from identification of individual rights to an examination of the reasonableness of governmental action." Note, Dismissal of Federal Employees— The Emerging Judicial Role, 66 Colum.L. Rev. 719, 734 (1966). Thus in Wieman v. Updegraff, supra 344 at 192, 73 S.Ct. at 219 the Supreme Court stated:

"We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory."

In the court's view, the issue of substantive due process is not before the court in this case. Though the University in its brief attempts to place itself in the position of a private industrial employer who can hire or discharge an employee at will and with or without cause or for any reason, such an argument cannot seriously be brooked here in view of the University's own Civil Service Rule 16.41, quoted above, which permits the dismissal of an employee (when beyond his probationary period) "for just cause". This as a negative pregnant clearly prohibits dismissal without just cause. The University has thus on its own initiative and effectively, as least for purposes of this lawsuit, recognized by its Rules 16 and 17 that an employee in plaintiff's position does have a substantive due process right to continue his employment without termination unless and until just cause has been shown at a hearing to exist. The University relies on Kierk v. City of Thief River Falls, 255 Minn. 141, 96 N.W.2d 28 (1959); Oikari v. Independent School District #40, 170 Minn. 301, 212 N.W. 598 (1927) and State ex rel. Early v. Wunderlich, 144 Minn. 368, 175 N.W. 677 (1920). These cases stand for the proposition:

"`* * * The authorities all agree that the power to appoint officers or employes sic of a municipal corporation carries

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