Professional Ass'n of College Educators, TSTA/NEA v. El Paso County Community College Dist.

• Decision Date: 20 April 1984
• Docket Number: No. 82-1102,82-1102
• Parties: 116 L.R.R.M. (BNA) 2150, 116 L.R.R.M. (BNA) 3454, 16 Ed. Law Rep. 1049 PROFESSIONAL ASSOCIATION OF COLLEGE EDUCATORS, TSTA/NEA, et al., Plaintiffs- Appellants Cross-Appellees, v. EL PASO COUNTY COMMUNITY COLLEGE DISTRICT, et al., Defendants-Appellees, El Paso County Community College District & Robert Shepack, Defendants- Appellees Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 258

730 F.2d 258

116 L.R.R.M. (BNA) 2150, 116 L.R.R.M. (BNA) 3454,

16 Ed. Law Rep. 1049

PROFESSIONAL ASSOCIATION OF COLLEGE EDUCATORS, TSTA/NEA, et al., Plaintiffs- Appellants Cross-Appellees, v. EL PASO COUNTY COMMUNITY COLLEGE DISTRICT, et al Defendants-Appellees El Paso County Community College District & Robert Shepack Defendants- Appellees Cross-Appellants.

No. 82-1102.

United States Court of Appeals Fifth Circuit.

April 20, 1984.

Robert E. Hall, Houston, Tex., Julia Penny Clark, Washington, D.C., for plaintiffs-appellants cross-appellees.

Christie, Berry & Dunbar, Mark Berry, Edward W. Dunbar, El Paso, Tex., for El Paso and Shepeck.

Charles R. Jones, El Paso, Tex., for defendants-appellees cross-appellants.

Appeals from the United States District Court for the Western District of Texas.

Before RUBIN, GARWOOD and JOLLY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

An association of college faculty members and five individual educators seek vindication of their first amendment rights, which they contend were infringed by the action of a state college in attempting to destroy the association, in discharging one faculty member, and in discriminating against others. Having won partial relief as a result of the verdict of a jury that decided some issues in their favor, the educators seek additional relief and additional attorneys' fees. The association seeks a hearing on its claims, which the district court dismissed before trial. After full consideration of these and other issues, we reverse the order dismissing the association's claim; affirm the award of damages to George Marchelos; reinstate the jury verdict in favor of another educator, Isela Castanon; order the district court to modify the injunction it has issued; and vacate the award of attorneys' fees, remanding this issue for redetermination. In Part IIIB of this opinion, we deny reinstatement to Marchelos, Judge Rubin dissenting from that part only.

I.

The Professional Association of College Educators (PACE) is an unincorporated association of faculty members of El Paso Community College which is operated by an agency of the State of Texas called the El Paso County Community College District ("The College"). Invoking 42 U.S.C. Sec. 1983, PACE and five individual faculty members sued The College, its president, and the members of its Board of Trustees, alleging that these defendants had tried to destroy PACE and a sister organization, the El Paso Community College District Association of Administrators, by threatening and intimidating their members and officers and by denying them privileges enjoyed by other faculty members. The plaintiffs attached to their complaint a "bill of particulars" that specified several instances of allegedly wrongful conduct. PACE and the individual plaintiffs sought damages and injunctive relief against future retaliatory and discriminatory acts. George Marchelos, who had been Dean of Curriculum and Instruction before being discharged, sought damages and reinstatement. Isela Castanon, an instructor in the child development program, sought damages for retaliatory actions and for reassignment to an undesirable schedule.

The plaintiffs focused their claims against Robert E. Shepack, the president of The College. They presented evidence that he was hostile to unions generally and wanted to destroy both PACE and the Association of Administrators, which he considered union-type organizations. Marchelos was president of the Association of Administrators and the moving force behind its formation. Castanon was active in PACE and in a faculty investigation of Shepack's hiring practices. She also assisted individual faculty members in filing and processing grievances.

The jury returned a verdict on special interrogatories for two of the five plaintiffs, awarding George Marchelos $7,500 for his discharge in violation of the first amendment, and Isela Castanon $2,500 for actions taken against her by The College in retaliation for filing grievances. It found, however, that Castanon would have been reassigned even if she had not undertaken protected activities. (The jury's verdict unfavorable to the other three individual plaintiffs has not been appealed.) ¹

The district court entered judgment awarding Marchelos the compensatory damages assessed by the jury against Shepack but denying him reinstatement. The court denied any award to Castanon on the basis that the jury's finding that she would have been reassigned even absent her protected activities precluded the recovery of damages for retaliation. In response to the plaintiffs' claim of attorneys' fees in the amount of $83,000 and $15,000 in costs, the court awarded only fees of $5,000.

II.

Because the dismissal of PACE's claim occurred before trial, it was proper only if it appeared "beyond doubt" that PACE could prove "no set of facts in support of [its] claim which would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). As Professor Charles Alan Wright aptly sums up the rule, it "precludes final dismissal for insufficiency of the complaint except in the extraordinary case where the pleader makes allegations that show on the face of the complaint some insuperable bar to relief." C. Wright, Federal Courts 442 (4th ed. 1983).

The complaint alleged that The College had engaged in a deliberate program to retaliate against PACE's members and officers for the purpose of "destroy[ing] the effectiveness and proper functioning of PACE as an agent for its members." It alleged that the defendants sought to achieve this goal by "intimidat[ing] and harass[ing] present members of PACE or the Association of Administrators, [in order to] discourage them from continuing their membership in PACE and to frighten faculty employees not affiliated with PACE or the Association of Administrators to prevent them from joining or supporting the efforts of those organizations." It alleged also that the defendants had acted against each of the individual plaintiffs as part of this campaign to destroy PACE. These actions, according to the complaint, violated the plaintiffs' rights under the first and fourteenth amendments to associate for the advancement of their common interests in dealings with The College. The complaint also alleged that The College discriminated against PACE by denying it access to the campus mail service while granting that service to similar organizations in order to stifle PACE's exercise of first amendment rights. The relief sought for PACE included an injunction protecting the organization and its present and future members as well as an award of damages to the organization.

The first amendment protects the right of all persons to associate together in groups to further their lawful interests. ² This right of association encompasses the right of public employees to join unions and the right of their unions to engage in advocacy and to petition government in their behalf. Thus, the first amendment is violated by state action whose purpose is either to intimidate public employees from joining a union or from taking an active part in its affairs or to retaliate against those who do. ³ Such "protected First Amendment rights flow to unions as well as to their members and organizers." Allee v. Medrano, 416 U.S. 802, 819 n. 13, 94 S.Ct. 2191, 2202 n. 13, 40 L.Ed.2d 566, 582 n. 13 (1974).

The issue is not, as the defendants appear to argue, whether a public employer is required to deal with a union or other employee association but whether, assuming the correctness of the allegations of the complaint, the state may set out to injure or destroy an association of public employees for the purpose of preventing the exercise of their first amendment rights. Although some of the acts alleged caused only insubstantial injury, the PACE claims are not trifling when viewed in their totality. ⁴ PACE need not show that it and its members are entitled to all relief claimed but only that they are entitled to some relief if their claims are proved. If the organization is entitled to relief, the redress might encompass claims that, standing alone, would not support an action.

The College also challenges PACE's contention that its constitutional rights were violated by the denial of campus mail services. There is, of course, no substantive first amendment right to use a state organization's facilities. ⁵ But even if The College has not made a public forum of campus mails, the first amendment forbids it to discriminatorily grant or deny parties other than the college access to the service as a means for advancing or discouraging particular points of view. ⁶ As we have noted, the complaint alleges that The College permitted organizations similar to PACE to use the campus mail service but denied PACE use of the service in order to stifle PACE's associative and expressive activities. The complaint on its face, therefore, states a basis on which relief could be granted if its allegations are proved.

Similar principles apply to PACE's claim that The College retaliated against PACE members when deciding formal college grievances. The Constitution does not require a public employer either to establish a grievance procedure or to respond to grievances lodged by its employees or their union. Smith v. Arkansas State Highway Employees, 441 U.S. 463, 465, 99 S.Ct. 1826, 1828, 60 L.Ed.2d 360, 363 (1979). Nevertheless, if a public employer voluntarily establishes a grievance procedure, then discriminates or retaliates against union members in administering that process, it violates the first amendment. ⁷ In Smith the Supreme Court denied relief because the plaintiff had made "no claim of retaliation or discrimination proscribed by the First Amendment," and the employer had not "tak[en] steps to ... discourage union membership or association." 441 U.S. at 465-66, 99 S.Ct. at 1828, 60 L.Ed.2d at 363. Here that very claim is asserted:...