Ortwein v. Mackey
| Decision Date | 21 April 1975 |
| Docket Number | No. 73--2437,73--2437 |
| Citation | 511 F.2d 696 |
| Parties | Phillip G. ORTWEIN et al., Plaintiffs-Appellees, v. Cecil MACKEY, Individually and as President of the University of South Florida, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lawrence J. Robinson, Sarasota, Fla., Steven G. Wenzel. Gen. Counsel, Univ. of South Florida, Tampa, Fla., for defendants-appellants.
Richard H. Frank, P.A., Tampa, Fla., Michael H. Gottesman, Washington, D.C., for plaintiffs-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.
On this appeal we review a district court order granting to the plaintiff-appellee, Phillip Ortwein, an injunction restraining the defendant-appellant Mackey, President of the University of South Florida, located at Tampa, Florida, from refusing to renew Ortwein's employment contract on grounds of 'non-performance' without (i) according plaintiff a pre-termination hearing in accordance with principles of due process, and (ii) allowing plaintiff's counsel to participate actively in the conduct of that hearing. Ortwein v. Mackey, M.D.Fla.1973, 358 F.Supp. 705, 715. Since the facts are detailed in the district court opinion, a brief recital of them suffices here.
The appellee was a non-tenured member of the faculty at the University of South Florida. He was served notice by letter on March 3, 1969, that he was not being considered for a permanent position at the University. This letter was the result of a 4--3 vote against recommending tenure by the Tenure Committee of the University's Physical Education Division, in which the plaintiff was employed as a tennis instructor. 1 The plaintiff asked Dr. Bowers, the Director of the Physical Education Division, for an explanation of the denial of an offer to renew his contract of employment. Dr. Bowers in a memorandum of December 10, 1970 to Dr. Harris W. Dean, the then acting president of the University, listed the following reasons:
(1) Mr. Ortwein was employed to teach in the areas of functional physical education and the activity program. He was taken out of the functional program owing to lack of performance.
(2) Over the years Mr. Ortwein's contribution has been limited to the area of tennis. His performance in this activity appears to be adequate; however, the staffing of division programs cannot afford such a specific contribution.
(3) When Mr. Ortwein was employed in 1966 he had been out of the main stream of physical education for several years. His awareness of advances in the profession is unknown. There is no indication evidenced or suggested by him concerning his contributions to the profession outside the realm of tennis classes.
(4) The entire Physical Education Division faculty was recently given the opportunity to vote on retaining or terminating Mr. Ortwein. The vote was three for and nine against his continued employment. Three faculty members abstained.
In the course of further discussions with University officials, the plaintiff was informed that the reasons for the decision not to renew his contract were that plaintiff's performance had been 'inadequate' and 'incompetent'.
Plaintiff denied the substance of reasons (1), (2) and (3) given by Dr. Bowers to Dr. Dean for the refusal to renew his contract, and sought review of the decision of the Tenure Committee by the Academic Relations Committee, whose function was to oversee intra-faculty and faculty-administration relations. A group of faculty members from this committee was empanelled to hear the plaintiff's complaint. Shortly before the scheduled hearing date of November 17, 1971, disagreement arose over the question whether plaintiff's counsel or personal representative would be entitled under the applicable procedural rules to participate actively in the hearing. 2 When this issue was resolved against active participation in accordance with the extant rules, plaintiff refused to proceed before the Committee. He abandoned further pursuit of administrative remedies and filed suit in the court below for injunctive relief. The requested relief was granted and, as far as the record reflects, plaintiff continues in the employ of the University under the terms of that injunction.
On appeal the University argues inter alia that the court below erred in two significant respects: (i) in finding that the University's decision not to renew the plaintiff's contract infringed the plaintiff's liberty interest, Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, thereby calling into play the requirement for a hearing; and (ii) in requiring that plaintiff's counsel be allowed to participate actively at the required hearing.
The case was orally argued before this panel on March 20, 1974. We withheld determination on the merits pending the decision by this court on rehearing en banc of Sims v. Fox, 5 Cir. 1974, 492 F.2d 1088. The court en banc on December 30, 1974, reversed the panel opinion, Sims v. Fox, 5 Cir. 1974, 505 F.2d 857. We thereafter invited and received from the parties supplemental briefs concerning the impact of Sims v. Fox on the instant appeal. We proceed with its disposition as taught by the holding of that case.
In Sims we held 'as basic propositions' applying to cases where infringement of a liberty interest is asserted:
(1) that liberty is not infringed by the mere presence of derogatory information in confidential files and (2) the government has not infringed 'liberty' unless it perpetuates untrue charges. 505 F.2d at 864.
We found that Sims' liberty interest had not been infringed by his honorable discharge from the Air Force as a result of his pleading nolo contendere to charges of indecent exposure in the Georgia state courts. In reaching this result, we emphasized two factors: (i) Sims' failure to contest the indecent exposure allegations which ultimately were the basis for his discharge, and (ii) the fact that Air Force regulations specifically proscribe dissemination of information regarding the reasons for Sims' discharge to anyone other than Sims himself. Id. at 860.
Viewed against this backdrop the instant case while in part distinguishable is also in part indistinguishable. Here. the plaintiff has steadfastly asserted the falsity of the charges of non-performance and incompetence made the basis of the decision not to offer him tenure, as distinguished from Sims' failure to contest the Georgia charges. But as to whether there has been or is likely to be communication to the public of the reasons underlying the plaintiff's termination, Ortwein's case closely parallels the situation in Sims.
The clear holding of Sims is that 'the mere presence of derogatory information in confidential files' does not infringe an individual's liberty interest. A corollary of this holding is the principle that infringement of one's liberty interest can be found only where the governmental agency has made or is likely to make the allegedly stigmatizing charges public 'in any official or intentional manner, other than in connection with the defense of (related legal) action.' Kaprelian v....
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...infringement of his interest in liberty if those allegations are not disclosed to other prospective employers. Compare Ortwein v. Mackey, 511 F.2d 696, 699 (5th Cir. 1975); Buhr v. Buffalo Public School District No. 38, 509 F.2d 1196, 1199 (8th Cir. 1974) with Velger v. Cawley, supra. Nor i......
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Douglas v. Evans, Civil A. No. 94-D-327-N.
...liberty unless it perpetuates untrue charges), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 678 (1975); Ortwein v. Mackey, 511 F.2d 696, 698 (5th Cir.1975); Estes v. Tuscaloosa County, 696 F.2d 898, 900 (11th Cir. 1983) ("A liberty interest is infringed only when the government's ......