Prebble v. Brodrick
| Decision Date | 10 May 1976 |
| Docket Number | No. 74-1664,74-1664 |
| Citation | 535 F.2d 605 |
| Parties | Billy R. PREBBLE, Plaintiff-Appellant, v. Gordon BRODRICK et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Philip P. Whynott, Cheyenne, Wyo. (DeHerrera & Whynott, Cheyenne, Wyo., on the brief), for plaintiff-appellant.
Jerome F. Statkus, Asst. Atty. Gen., Cheyenne, Wyo. (David B. Kennedy, Atty. Gen. of Wyoming, Cheyenne, Wyo., and Joseph R. Geraud, Sp. Asst. Atty. Gen., Laramie, Wyo., on the brief), for defendants-appellees.
Before HILL, SETH and HOLLOWAY, Circuit Judges.
Plaintiff, Dr. Billy R. Prebble, brought this civil rights suit against the University of Wyoming, the Trustees and President of the University, the Dean of the College of Commerce and the Head of the Economics Department, alleging that the defendants violated his constitutional rights in discharging him from his position as an assistant professor of economics at the University.
Essentially the plaintiff claimed that the termination procedures followed in his case did not comport with procedural due process as guaranteed by the Fourteenth Amendment and that the defendants acted for constitutionally impermissible reasons in effecting the discharge, in violation of his First Amendment rights. The plaintiff averred that the defendants acted arbitrarily and maliciously, deprived him of property interests in his employment, injured his professional reputation and character, and held him up to public ridicule and scorn. His complaint pled only for damages.
The case was tried to a jury which returned a verdict for the remaining defendants after the trial court dismissed as to the University and directed a verdict for the members of the Board of Trustees. The plaintiff appeals from the judgment entered on the jury verdict, claiming error in several rulings by the trial court and arguing that the verdict was clearly contrary to the evidence.
The background of plaintiff's employment and discharge
Prebble commenced teaching at the University at the beginning of the 1969-70 academic year. In April, 1972, during his third year at the University, he was notified that he had not been awarded tenure. Under University policy, faculty members denied tenure are granted a so-called "terminal year" a final year during which they could continue teaching while seeking new employment.
Prebble began his final year in the Fall of 1972 at the onset of the 1972-73 academic year. He was scheduled to teach three economics sections during the Fall semester. Apparently on some eight days during that semester he did not conduct the scheduled classes in each course he was assigned, and he gave early final examinations near the end of the semester. On January 17, 1973, Prebble was conditionally relieved of all teaching responsibilities for the Spring semester. Effective March 3, Prebble was dismissed for neglect of duty on the basis of charges of failure to conduct scheduled classes during the Fall semester. Plaintiff's complaint concerns only this discharge which occurred during his terminal year.
The facts leading up to Prebble's discharge are generally as follows. Sometime in November, 1972, Prebble's absences came to the attention of defendant Dr. William Morgan, the acting Head of the Economics Department. Dr. Morgan discussed the situation with defendant Jakubauskas, the Dean of the College of Commerce and Industry, with Mr. Ranz, the Vice-President for Academic Affairs and with Mr. Geraud, the University's legal counsel. As a result of these consultations and after obtaining written statements from some of Prebble's students, Dr. Morgan recommended plaintiff's immediate termination to Dean Jakubauskas. In a letter to Dean Jakubauskas dated January 10, 1973, Dr. Morgan noted that the plaintiff "had been extremely delinquent regarding his teaching duties." (Defts. Ex. A). Dean Jakubauskas wrote to the plaintiff informing him of these allegations and requesting him to provide a justification as to why he should not be terminated for "gross neglect of duty." (Defts. Ex. B). The plaintiff replied that he was not grossly negligent in his teaching duties and demanded a hearing (Defts. Ex. D).
Shortly thereafter, Dean Jakubauskas recommended to the defendant President Carlson that the plaintiff be terminated effective January 31, 1973 (Defts. Ex. E). Defendant Carlson instructed the Tenure and Promotion Committee to conduct a hearing on the matter and requested the committee to answer two specified questions: (1) Did Dr. Prebble fail to conduct class sessions as charged? and (2) If so, does such conduct constitute neglect of duty? (Defts. Ex. J).
A hearing was held on February 21, 1973, before the Tenure and Promotion Committee. There is dispute over the hearing procedures followed and the evidence on this point will be detailed later. At the hearing, Prebble said it seemed correct to him that he did not conduct any of his three classes on eight different dates or on the regularly scheduled final exam dates. Prebble said some absences occurred while he was interviewing for a new position and some while he was elk hunting. In each instance the students were notified in advance and instructed to study certain material. At the court trial, Prebble said he did not know the number of absences, since he did not keep records; but that he never missed teaching. He contended he taught every class, although he was physically absent from some sessions during job interviews, and twice while hunting.
The committee found that, by his own admission, Prebble did not conduct any of his three classes on at least eight given dates or on the final examination date of the semester. The committee by a vote of 13-0, with one member abstaining, found that this conduct constituted neglect of duty. It recommended that plaintiff be allowed to resign by a vote of 10 to 3, with one member abstaining (Defts. Ex. P, cover page).
President Carlson accepted the committee's recommendation and requested Prebble to submit his resignation by February 28, 1973 (Defts. Ex. R). The plaintiff refused to resign (Defts. Ex. S). On March 2, 1973, President Carlson wrote a long letter to Prebble summarizing all prior correspondence and communications and informing Prebble that as of March 3, 1973, he was dismissed from the faculty of the University. The letter explained that the regulations of the University provide for the termination of non-tenured faculty members for cause; that the responsibility for such dismissals had been delegated to the University President; that cause, namely neglect of duty, had been found in Prebble's case; and that he, President Carlson, was now exercising his responsibility (Defts. Ex. T).
The plaintiff argues that the discharge for alleged neglect of duty was merely a pretext for the dismissal. He contends that the termination occurred because plaintiff "did not conform to the Senior faculty's patterns and molds, all of which were personal and subjective." (Brief of Appellant, 31). Prebble insists that he was dismissed because he spoke out in faculty meetings, because he aligned himself with a department head who was about to be replaced and because he had a different philosophy of teaching than the concepts held by senior faculty members and department head Morgan. Id.
Plaintiff attempted to prove that the discharge amounted to a deprivation of his rights of expression and association as protected by the First Amendment. He also sought to show that the conduct of the hearing deprived him of procedural due process to which he claims entitlement.
A pre-trial motion to dismiss as to the University was granted; a motion to dismiss as to the other defendants denied. At trial, however, the court directed a verdict in favor of the Trustees on the ground that the plaintiff had failed to sustain his burden of proof as to their liability. The case went to the jury only as to the three remaining defendants President Carlson, Dean Jakubauskas and Dr. Morgan.
The trial court submitted three interrogatories to the jury. First, the jury was asked: "Did the defendants, William Carlson, Edward Jakubauskas and William E. Morgan act in good faith in terminating his contract?" The jury replied "yes." Second, the jury was asked "Did the defendants (the same names appear) act with malice to the plaintiff in terminating his contract?" The jury answered "No." Finally, the jury was asked: "Did plaintiff neglect his duties as a Professor in the Economics Department?" The jury did not answer this question. The jury also returned a general verdict in favor of defendants Carlson, Jakubauskas and Morgan. Judgment was entered on this verdict and a motion for a new trial was denied.
On appeal the plaintiff argues that the trial court erred (1) in dismissing the case against the University; (2) in directing a verdict for the Trustees; (3) in submitting the interrogatory on "neglect of duty" to the jury because this prejudicially interjected an issue into the case; (4) in instructing the jury on the University regulations; (5) in instructing the jury on the good faith and malice issues and in placing the burden of proof on the plaintiff, instead of treating them as an affirmative defense; (6) in selecting the verdict form used because it was prejudicial to the plaintiff. In addition, the plaintiff argues that the proof clearly shows that he was denied a due process hearing and was terminated for constitutionally impermissible reasons, so that the verdict was plainly contrary to the evidence and should have been directed in his favor.
By pre-trial motion the defendants moved to dismiss as to the University of Wyoming on the ground that sovereign immunity as interpreted in Williams v. Eaton, 443 F.2d 422 (10th Cir.) precluded an action against the University. The trial court sustained the motion.
In Williams, we...
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