Orr v. Crowder

• Decision Date: 16 December 1983
• Docket Number: No. 15477,15477
• Court: West Virginia Supreme Court
• Parties: , 17 Ed. Law Rep. 679 E. Jean ORR v. Daniel B. CROWDER, etc., et al.

Page 593

315 S.E.2d 593

173 W.Va. 335, 17 Ed. Law Rep. 679

E. Jean ORR v. Daniel B. CROWDER, etc., et al.

No. 15477.

Supreme Court of Appeals of West Virginia.

Dec. 16, 1983.

Dissenting Opinion Jan. 25, 1984.

Rehearing Denied Jan. 31, 1984.

Syllabus by the Court

1. "A teacher who has satisfied the objective eligibility standards for tenure adopted by a State college has a sufficient entitlement so that he cannot be denied tenure on the issue of his competency without some procedural due process." Syllabus Point 3, State ex rel. McLendon v. Morton, W.Va., 249 S.E.2d 919 (1978).

2. Before a protected property interest, such as a right to tenure, can be found, something more than a unilateral expectation must be shown. It must be demonstrated that there existed some rules or understandings governing tenure eligibility fostered by the college upon which the college employees relied.

3. Under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), public employees are entitled to be protected from firings, demotions and other adverse employment consequences resulting from the exercise of their free speech rights, as well as other First Amendment rights. However, Pickering recognized that the State, as an employer, also has an interest in the efficient and orderly operation of its affairs that must be balanced with the public employees' right to free speech, which is not absolute.

4. In a suit under 42 U.S.C. § 1983, where the plaintiff claims that he was discharged for exercising his First Amendment right of free speech, the burden is initially upon the plaintiff to show: (1) that his conduct was constitutionally protected; and (2) that his conduct was a substantial or motivating factor for his discharge. His employer may defeat the claim by showing that the same decision would have been reached even in the absence of the protected conduct.

5. In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.

6. Where a jury returns a general verdict in a case involving two or more liability issues and its verdict is supported by the evidence on at least one issue, the verdict will not be reversed, unless the defendant has requested and been refused the right to have the jury make special findings as to his liability on each of the issues.

7. "Unless a wrongful discharge is malicious, the wrongfully discharged employee has a duty to mitigate damages by accepting similar employment to that contemplated by his or her contract if it is available in the local area, and the actual wages received, or the wages the employee could have received at comparable employment where it is locally available, will be deducted from any back pay award; however, the burden of raising the issue of mitigation is on the employer." Syllabus Point 2, Mason County Board of Education v. State Superintendent of Schools, W.Va., 295 S.E.2d 719 (1982).

8. "The collateral source rule normally operates to preclude the offsetting of payments made by health and accident insurance companies or other collateral sources as against the damages claimed by the injured party." Syllabus Point 7, Ratlief v. Yokum, W.Va., 280 S.E.2d 584 (1981).

9. " 'Ordinarily where objections to questions or evidence by a party are sustained by the trial court during the trial and the jury instructed not to consider such matter, it will not constitute reversible error.' " Syllabus Point 5, State v. Gwinn, W.Va., 288 S.E.2d 533 (1982), quoting Syllabus Point 7, State v. Arnold, W.Va., 219 S.E.2d 922 (1975), overruled on other grounds, State v. Demastus, W.Va., 270 S.E.2d 649 (1980), and Syllabus Point 18, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

Chauncey H. Browning, Atty. Gen., and David P. Cleek, Deputy Atty. Gen., Charleston, for appellants.

O'Brien, Cassidy & Gallagher and Patrick S. Cassidy, Wheeling, for appellee.

MILLER, Justice.

The defendants, Daniel Crowder, president of the West Virginia Northern Community College (hereinafter the College), and Gregory Adkins, the College's dean of academic affairs, are appealing the judgment entered against them in an action brought under 42 U.S.C. § 1983 ¹ in the Circuit Court of Kanawha County. The plaintiff, E. Jean Orr, who was formerly a librarian at the College, was awarded damages totaling $26,400 against Drs. Crowder and Adkins, as well as attorney's fees in the amount of $10,405.75 against the West Virginia Board of Regents. ²

Although additional errors are asserted, the primary contention of the defendants is that Mrs. Orr was not entitled to any relief as a matter of law. Therefore, the defendants argue, the trial court erred in refusing to grant the defendants' motions for a directed verdict. We disagree with the defendants and affirm the judgment.

After the defendants had given Mrs. Orr a one-year terminal contract for the 1976-77 school year, she filed this civil action alleging that the defendants had violated her procedural due process and her free speech rights under the First Amendment to the United States Constitution. Her procedural due process claim was based on her contention that she had acquired tenure rights, arising from agreements made with the defendants, and therefore, was entitled to the procedural protections afforded to dismissed tenured faculty members. The First Amendment cause of action was grounded in the plaintiff's argument that she was given the terminal contract as a result of her criticizing proposed plans for the remodeling of the College's Learning Resources Center.

The facts surrounding Mrs. Orr's status with the College may be briefly summarized. Additional facts to illuminate her two causes of action will be discussed separately. Mrs. Orr was hired initially in 1971 as a librarian at the Wheeling campus of West Liberty State College, which was later reorganized as the West Virginia Northern Community College. Her employment continued for five years under one-year contracts until the spring of 1976, when she was given the terminal contract.

During her employment, she was promoted from librarian to director of library services, which involved supervising and administering the personnel, libraries, and related services not only at the Wheeling campus but also the Weirton and New Martinsville divisions of the College. Her title was changed to director of learning resources in 1975.

During the critical period, i.e. the 1975-76 school year, when Mrs. Orr contends the events occurred that led to her being given a terminal contract, the president of the College was Dr. Crowder and her immediate superior was Dr. Adkins. It was Dr. Adkins who recommended the terminal contract, which recommendation was concurred in by Dr. Crowder.

I. PROCEDURAL DUE PROCESS CLAIM

Mrs. Orr's procedural due process claim is based, in large part, on the fact that in 1973, the West Virginia Board of Regents gave college presidents the authority to grant faculty status to librarians. The plaintiff contends that in conversations with Drs. Adkins and Crowder in the fall of 1975 she was promised faculty status and that such faculty status would be made retroactive to July, 1971, the date on which she was first hired. Drs. Adkins and Crowder, while admitting faculty status was offered to Mrs. Orr, testified that they agreed to extend it back to July, 1974, not July, 1971.

Mrs. Orr relies heavily on State ex rel. McLendon v. Morton, W.Va., 249 S.E.2d 919 (1978), where we provided some procedural due process rights to an assistant professor at a community college who had met the eligibility standards for tenure. In Syllabus Point 3 of McLendon we said:

"A teacher who has satisfied the objective eligibility standards for tenure adopted by a State college has a sufficient entitlement so that he cannot be denied tenure on the issue of his competency without some procedural due process."

McLendon in turn relied on Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), where the United States Supreme Court recognized that property interests could not be withdrawn by governmental action without appropriate due process procedures. In Roth, the United States Supreme Court indicated that protected property interests were not limited to the traditional concepts of real and personal property. It pointed out that a benefit which merits protection as a property interest is one to which there is more than a "unilateral expectation," and there must exist rules or understandings which can be characterized as giving the claimant "a legitimate claim of entitlement to [the benefit]." 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.

Roth involved an assistant professor at a state university who had been hired on a one-year contract that was not renewed. A state statute granted tenure after four years of continuous service. The United States Supreme Court held that since he did not have the requisite years of service, he did not have a protected property interest that would be afforded constitutional procedural due process protection.

In Perry, a professor had been employed for four years at a junior college. He claimed that the college had a de facto tenure program under which he qualified. The United States Supreme Court concluded that his claim had been improperly dismissed since he was not given the opportunity to prove the existence of and his eligibility for the de facto tenure program. It concluded that if the professor could establish these facts,...