Pressman v. University of North Carolina at Charlotte

• Decision Date: 17 December 1985
• Docket Number: No. 8526SC173,8526SC173
• Citation: 78 N.C.App. 296,337 S.E.2d 644
• Court: North Carolina Court of Appeals
• Parties: Edward PRESSMAN and Maurice Herman v. The UNIVERSITY OF NORTH CAROLINA AT CHARLOTTE, and C.C. Hight as an individual and as Dean of the College of Architecture of the University of North Carolina at Charlotte.

Page 644

337 S.E.2d 644

78 N.C.App. 296

Edward PRESSMAN and Maurice Herman v. The UNIVERSITY OF NORTH CAROLINA AT CHARLOTTE, and C.C Hight as an individual and as Dean of the College of Architecture of the University of North Carolina at Charlotte.

No. 8526SC173.

Court of Appeals of North Carolina.

Dec. 17, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Thomas J. Ziko, Dept. of Justice, Raleigh, for defendants-appellees.

Shelley Blum and Deborah Blum, Charlotte, for plaintiffs-appellants.

COZORT, Judge.

Plaintiffs brought an action seeking damages and reappointment to teaching positions at the College of Architecture of the University of North Carolina at Charlotte. Plaintiff Herman was employed from August 1980 until May 1982 as a visiting professor under a fixed term contract which provided that his position was exempt from permanent tenure consideration. At the end of that two-year term, Herman was denied reappointment. Plaintiff Pressman was an Assistant Professor from August 1978 until May 1982. At the conclusion of that initial four-year appointment, he was denied reappointment. In the complaint, plaintiff Herman alleges deprivation of his First Amendment right to free speech and his Fourteenth Amendment right to due process, while plaintiff Pressman alleges discrimination because he was handicapped, breach of contract, and a violation of his right to due process. The trial court granted summary judgment for the defendants on all claims and denied plaintiffs' motion to amend the complaint to add a claim based on ethnic discrimination. We affirm.

The evidentiary forecast for plaintiff Herman is as follows:

From August 1980 until May 1982, Maurice Herman was a visiting professor of Architecture at the University of North Carolina at Charlotte's College of Architecture. His appointment was made subject to the provisions of The Code of the Board of Governors of the University of North Carolina and the Tenure Policies, Regulations, and Procedures of the University of North Carolina at Charlotte. Herman's contract explicitly stated that his position was exempt from permanent tenure consideration. The Code provides that the appointment of visiting faculty is for a specified term, and expiration of the term shall be deemed to constitute full and timely notice of nonreappointment.

In February of 1982, Herman informed the Dean of the College of Architecture, Charles Hight, a defendant in this action, that he would like to be considered for a tenure track position at the College. Pursuant to his request, Herman submitted his resume to the Faculty Review Committee, the Committee responsible for reviewing faculty applications, and was allowed to make a presentation before the committee. Although the Faculty Review Committee recommended that Herman receive an additional two-year appointment, Dean Hight, after a review of Herman's qualifications, denied Herman reappointment in June of 1982. Herman then appealed Dean Hight's decision to Dr. James H. Werntz, Vice Chancellor of the University of North Carolina at Charlotte, and was again denied reappointment.

In May of 1982 while Dean Hight was considering his reappointment, Herman attended a faculty meeting where the faculty discussed Dean Hight's lack of administrative competence. At the meeting, Herman expressed his concern over the lack of opportunity for personal development because of a heavy workload, lack of guidance for grading, failure to develop a master's program, failure to recruit quality students and faculty, and inadequate or inappropriate educational direction for the College of Architecture. As a result of this meeting, the majority of the faculty, including Herman, gave Dean Hight a vote of no confidence. Although the vote was by secret ballot, Dean Hight later learned the results of the vote.

The evidentiary forecast for plaintiff Pressman is as follows:

From August 1978 until May 1982, Edward Pressman was appointed an Assistant Professor of Architecture at the University of North Carolina at Charlotte's College of Architecture. Pressman's appointment was made subject to The Code of the Board of Governors of the University of North Carolina and the Tenure Policies, Regulations, and Procedures of the University of North Carolina at Charlotte. The Tenure Policies provide that before the end of the third year of the initial appointment as assistant professor, the faculty member shall be reviewed for reappointment, promotion, and/or permanent tenure and shall receive written notice of the review.

The Faculty Review Committee, the faulty committee responsible for reappointment recommendations, after reviewing Pressman's performance, recommended nonreappointment. On 5 January 1981, Pressman was notified by Dean Hight that his appointment as Assistant Professor of Architecture would not be renewed. Pressman appealed this decision to the College Review Committee, the committee responsible for reviewing appeals. On 26 January 1981 the College Review Committee recommended reappointment. On 11 February 1981, Dean Hight informed Pressman that after reviewing the advice from the Faculty Review Committee and the College Review Committee he would not recommend reappointment of Pressman.

Pressman stated in his deposition that Dean Hight on several occasions in 1981 promised him a final review during the fourth and final year of his appointment. He stated that this review was to be by the Faculty Review Committee and Dean Hight and was to be similar to a final review recently given another professor. On 28 May 1982, Dr. Werntz informed Pressman that his request for additional review was denied because he was not entitled to any further review under the review procedures of the College of Architecture.

During his employment at the College of Architecture, Pressman suffered from stress, depression and mental exhaustion which required him to be hospitalized for two weeks in the summer of 1980 and an additional two weeks in October and November of the 1980-81 academic year. Dean Hight took over Pressman's class during his absence in October and November. According to Mr. Pressman, his illness has been cured and he is now able to function normally in society. Pressman's illness was taken into consideration by Dean Hight and the Faculty Review Committee during Pressman's evaluation for reappointment.

The plaintiffs alleged several causes of action in their complaint. As to Herman, the complaint alleges that he was deprived of his First Amendment right to freedom of speech because he was fired for his criticism of Dean Hight and deprived of his due process rights guaranteed by the Fourteenth Amendment because the defendants failed to follow their procedures for reappointment. As to Pressman, the complaint alleges that Pressman was denied employment because of his mental health handicap; denied a final review which resulted in a breach of contract; and deprived of his due process rights guaranteed by the Fourteenth Amendment because the defendants failed to follow their procedures for reappointment. The trial court granted summary judgment for the defendants on all of plaintiffs' causes of action. In addition, the trial court denied plaintiffs' motion to amend their complaint to add an additional cause of action against the defendants and allowed severance of the actions filed by Pressman and Herman, ordering each to proceed separately to trial.

The standard for reviewing a summary judgment motion is:

[W]hether the pleadings, depositions, answers to interrogatories, and admissions ... together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. [Citations omitted]. The burden upon the moving party is to establish that there is no genuine issue as to any material fact remaining to be determined.... The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. [Citations omitted].

Gregory v. Perdue, Inc., 47 N.C.App. 655, 656-57, 267 S.E.2d 584, 586 (1980).

We first consider Herman's claim under the First Amendment to the United States Constitution. Public employment may not be conditioned on criteria that infringes the employees' protected interest in freedom of expression. Keyishian v. Board of Regents of New York, 385 U.S. 589, 605-06, 642, 87 S.Ct. 675, 684-85, 17 L.Ed.2d 629 (1967). An employee may not be discharged for expression of ideas on a matter of public concern. Jones v. Dodson, 727 F.2d 1329, 1333-34 (4th Cir.1984). The expression need not be public but may be made in a private conversation. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979).

To make out a claim under the First Amendment, the employee must show that his speech is concerning a matter of public concern. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). A matter is of public concern if when fairly considered it relates "to any matter of political, social, or other concern to the community." Id. at 146, 103 S.Ct. at 1690, 75 L.Ed.2d at 719. The context, form, and content of the employee's speech as revealed by the whole record are used to determine the nature of the speech. Id. at 147-48, 103 S.Ct. at 1690, 75 L.Ed.2d at 720. Whether speech is a matter of public concern is a question of law for the courts to decide. Id. at n. 7, 103 S.Ct. 1690, n. 7, 75 L.Ed.2d at 720, n. 7.

If the speech is upon a matter of public concern, there must be a " 'balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its...