Robison v. Wichita Falls & North Texas Community Action Corp., 73-3466

• Decision Date: 15 January 1975
• Docket Number: No. 73-3466,73-3466
• Citation: 507 F.2d 245
• Parties: Robert E. ROBISON, Plaintiff-Appellant, v. WICHITA FALLS AND NORTH TEXAS COMMUNITY ACTION CORPORATION et al., etc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 245

507 F.2d 245

Robert E. ROBISON, Plaintiff-Appellant,

v.

WICHITA FALLS AND NORTH TEXAS COMMUNITY ACTION CORPORATION

et al., etc., Defendants-Appellees.

No. 73-3466.

United States Court of Appeals, Fifth Circuit.

Jan. 15, 1975.

Larry Watts, Houston, Tex., Tom Huckaby, Wichita Falls, Tex., for plaintiff-appellant.

Ray Farabee, Roger A. Lee, H. P. Hodge, Jr., Wichita Falls, Tex., for defendants-appellees.

Before TUTTLE, WISDOM and GEE, Circuit Judges.

WISDOM, Circuit Judge:

Robert Robison, the plaintiff-appellant in this employment termination case, raises two issues on appeal. First, he challenges the constitutionality of the procedures employed by the Wichita Falls and North Texas Community Action Corporation ('Wichita') in terminating his employment as a program director because of his having allegedly misappropriated corporate funds. Second, he challenges the refusal of the United States District Court to hear evidence that his termination was in retaliation for the exercise of his First Amendment rights. We find no merit to these arguments. We arrirm.

I.

Wichita is a nonprofit corporation organized under Texas law as an anti-poverty organization to qualify for Federal government funding under the Economic Opportunity Act of 1964, 42 U.S.C. 2781 et seq. It is part of a national network of local community action groups designed by Congress to provide 'a better focusing of all available local, State, private, and Federal resources upon the goal of enabling low-income families, and low-income individuals of all ages . . . to attain the skills, knowledge, and motivations and secure the opportunities needed for them to become fully self-sufficient.' 42 U.S.C. 2781(a). These local community action groups may take the form of either (1) an agency of a state or political subdivision, administering its program through a community action board or (2) a public or private non-profit agency administered by its own governing board. 42 U.S.C. 2791(a). See also PAAC v. Rizzo, E.D.Pa.1973, 363 F.Supp. 503, 507.

Wichita is a Texas non-profit corporation governed by a board of directors divided into three classes, each representing an interest group or constituency in the community. One-third of the directors are public officials of the political subdivisions comprising Wichita's service area. The second third of the directors are chosen from the poor in the group's service area. The final third represent various interest groups in the community, such as business, labor, education, medicine, and religion.

Robert Robison went to work for Wichita in July 1966. He was the second employee to be hired by the corporation and was initially employed as its field representative in Archer City, one of the towns within its service area. Robison later became project director of Operation Mainstream, a training program supervised by the United States Department of Labor that places the unemployed in training positions with local government agencies and non-profit organizations. As director of Operation Mainstream, Robison travelled extensively through the service area by automobile. He used his own vehicle and was reimbursed by Wichita on the basis of his mileage.

On July 23, 1970, the corporation placed Robison on probation for sixty days because of an alleged lack of leadership and direction in his program. Thereafter, on July 31, Wichita's executive director notified Robison in writing that his employment was being terminated because he had submitted fraudulent travel vouchers. The director also informed Robison of his rights, under the Wichita by-laws, to submit a formal written appeal to the corporation's grievance committee and, if necessary, to make a further formal appeal to its executive committee.

Robison appealed to the grievance committee within the permitted time. On August 6, the executive director transmitted to the grievance committee a detailed written explanation of his reasons for terminating Robison's employment and statements of witnesses in support of the director's action. Robison was furnished with copies of this material. On August 10 he submitted to the grievance committee a detailed written answer along with statements by his supporting wirnesses. The grievance committee affirmed the director's decision on August 12 and advised Robison of his further right to appeal to the executive committee.

On August 20, eight members of the twelve-member executive committee met to consider Robison's appeal. Robison presented his side of the dispute at this hearing and he was examined by members of the committee. On August 21 the executive committee affirmed the decisions of the director and the grievance committee and removed Robison from the payroll.

Almost two years later, on July 28, 1972, Robison brought this civil rights action against Wichita and various individual directors and employees of the corporation. He alleges that he was deprived of rights secured by the First and Fourteenth Amendments to the United States Constitution because he was not afforded a trial-type hearing before an impartial panel and because the termination of his employment was in retaliation for the exercise of his right of free speech. Robison's action is brought under Section One of the Civil Rights Act of 1871, 42 U.S.C. 1983. Jurisdiction is alleged to exist under 28 U.S.C. 1343(3), 1343(4) and 1331. Robison seeks relief that includes an order of re-instatement in the same or a similar position, compensatory and exemplary damages totalling $150,000, reasonable and necessary attorneys' fees, and a declaratory judgment under 28 U.S.C. 2201 and 2202 that the acts of the defendants were in violation of the Constitution and laws of the United States.

The cause was tried to the court sitting without a jury and judgment was entered in favor of the defendants.

II.

The first question we must consider is whether Robison has stated a claim over which federal courts have jurisdiction. Although the question was not briefed counsel for the parties extensively discussed the issue of federal jurisdiction in oral argument.

In considering jurisdiction, we are met at the outset with this Court's decision in Hines v. Cenla Community Action Committee, Inc., 5 Cir. 1973, 474 F.2d 1052. In that case, Erma Hines was discharged from her position as Executive Director of the Cenla Community Action Committee. She brought a federal action alleging that she was arbitrarily and capriciously terminated without cause in violation of her rights under the Economic Opportunity Act, 42 U.S.C. 2796(a). She alleged federal jurisdiction under 28 U.S.C. 1331.

Section 2796(a) of Title 42 requires that each local community action agency observe administrative standards and personnel policies consistent with 'the objective of providing assistance effectively, efficiently, and free of any taint of partisan political bias or personal or family favoritism'. Each agency is required to promulgate rules with respect to employee benefits, salaries, and promotion policies.

The purpose of Section 2796(a) is to state uniform standards of administrative practice that must be met by local community action groups in order to qualify for federal support. In Hines, the court held that Section 2796(a) merely outlines the responsibility of local groups to the federal government; it confers no benefits directly on individual employees of local groups. Thus an injury resulting from a local group's noncompliance with the standards required by Section 2796(a) will not give rise to a cause of action based exclusively on that section.

In order to assert federal jurisdiction under 28 U.S.C. 1331, the plaintiff's claim must be founded directly upon federal law. 'To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action.' Gully v. First National Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70. The Hines Court held that there was no Section 1331 jurisdiction because 'the statute which the plaintiff seeks to invoke creates no explicit right of action to enforce her right to employment.' 474 F.2d 1052, 1056. In light of Hines, Robert Robison's assertion of federal jurisdiction under 28 U.S.C. 1331 is misguided.

Unlike Erma Hines, however, Robert Robison does not attempt to extract a cause of action from the Economic Opportunity Act itself and he does not rely solely on Section 1331 as a jurisdictional basis. Robison alleges that his claim states a cause of action under 42 U.S.C. 1983 and alleges jurisdiction under 28 U.S.C. 1343(a) and 1343(4) as well as under 1331.

Section 1983 provides a cause of action for persons deprived of their federal civil rights. To state a claim under Section 1983, the deprivation must be accomplished under color of state 'statute, ordinance, regulation, custom, or usage'. 42 U.S.C. 1983. Violations of federal civil rights by federal officers, for instance, will not give rise to a cause of action under Section 1983. See District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). An essential element in a section 1983 action is that the injury underlying the claim be the product, in some sense, of activity by state officials.

Nowhere in his complaint does Robert Robison specifically allege that Wichita or its employees or directors acted under color of state law. Indeed, his allegation that Wichita is a 'federally financed and funded corporation' would suggest, if anything, that Wichita's governmental nexus is with the federal government rather than the state. On the other hand, Robison does assert a cause of action under Section 1983, and that cause of action requires state rather than federal action as an essential element. Moreover, the trial court found that Wichita did act under color of state law when it terminated Robison.

Noting that Robison sued under Section 1983,...