Seibert v. State of Okl., ex rel. University of Oklahoma Health Sciences Center

• Decision Date: 10 February 1989
• Docket Number: No. 87-1376,87-1376
• Citation: 867 F.2d 591
• Parties: 51 Ed. Law Rep. 800, 4 Indiv.Empl.Rts.Cas. 459 Milan C. SEIBERT, Plaintiff-Appellant, v. STATE OF OKLAHOMA, ex rel. the UNIVERSITY OF OKLAHOMA HEALTH SCIENCES CENTER; Charles York, individually and in his official capacity of Director of Site Support, Site Support Div., HSC, State of Oklahoma; Toni Starin, individually and in her official capacity as Assistant Director of Site Support, Site Support Div., HSC, State of Oklahoma; Theo Custer, individually and in his official capacity as Mechanical Supervisor Site Support, Site Support Div., HSC, State of Oklahoma; Bob Paris, individually and in his official capacity as Plumbing Foreman, Site Support Div., HSC, State of Oklahoma; Bill Chenoweth, individually and in his official capacity as Engineer, Site Support Div., HSC, State of Oklahoma; Frank Rose, individually and in his official capacity as Director of Office of Personnel Services, HSC, State of Oklahoma; and Gary Smith, individually and in his official capacity as Vice Provost for Administration and Finance, HSC, State of Oklahoma, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 591

867 F.2d 591

51 Ed. Law Rep. 800, 4 Indiv.Empl.Rts.Cas. 459

Milan C. SEIBERT, Plaintiff-Appellant, v. STATE OF OKLAHOMA, ex rel. the UNIVERSITY OF OKLAHOMA HEALTH

SCIENCES CENTER; Charles York, individually and in his

official capacity of Director of Site Support, Site Support

Div., HSC, State of Oklahoma; Toni Starin, individually and

in her official capacity as Assistant Director of Site

Support, Site Support Div., HSC, State of Oklahoma; Theo

Custer, individually and in his official capacity as

Mechanical Supervisor Site Support, Site Support Div., HSC,

State of Oklahoma; Bob Paris, individually and in his

official capacity as Plumbing Foreman, Site Support Div.,

HSC, State of Oklahoma; Bill Chenoweth, individually and in

his official capacity as Engineer, Site Support Div., HSC,

State of Oklahoma; Frank Rose, individually and in his

official capacity as Director of Office of Personnel

Services, HSC, State of Oklahoma; and Gary Smith,

individually and in his official capacity as Vice Provost

for Administration and Finance, HSC, State of Oklahoma,

Defendants-Appellees.

No. 87-1376.

United States Court of Appeals, Tenth Circuit.

Feb. 10, 1989.

James D. Jordan of Unruh & Jordan, P.C., Oklahoma City, Okl., for plaintiff-appellant.

Susan Gail Seamans, Kurt F. Ockershauser, and Lawrence E. Naifeh of the University of Oklahoma, Norman, Okl., and Michael Mannes of Manners and Burke, Oklahoma City, Okl., for defendants-appellees.

Before McKAY, SEYMOUR and EBEL, Circuit Judges.

EBEL, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. Therefore, the cause is ordered submitted without oral argument.

The principal issues in this case are whether the University of Oklahoma Health Sciences Center provided plaintiff with satisfactory procedures before terminating his employment and whether the termination violated plaintiff's first amendment rights under the United States Constitution. We conclude that the University's pre-termination procedures were constitutionally adequate and that the termination did not violate plaintiff's first amendment rights. Accordingly, we affirm.

Plaintiff is a journeyman plumber certified to perform welding on high-pressure steam lines. He worked in the University's plumbing department for eleven years. About six months before his termination, plaintiff began voicing a series of complaints concerning the University's policies toward constructing and maintaining steam pipes and boilers. Many of plaintiff's complaints related to his views about the safety of those fixtures. Plaintiff repeatedly discussed his concerns with his superiors. On a few occasions, his superiors accepted his suggestions and made appropriate corrections. In the majority of instances, his superiors (many of whom were trained engineers) disagreed with plaintiff's views and told him so.

Plaintiff persisted in his complaints, raising the same concerns over and over. His relationship with his direct foreman deteriorated because plaintiff often refused to accept the decisions of the foreman and plaintiff's other superiors. Plaintiff's foreman had repeated discussions with plaintiff about the disruptive nature of plaintiff's complaints. On December 2, 1981, the foreman gave plaintiff an oral and written reprimand. As part of the reprimand, the foreman placed plaintiff on "probation" for six months and warned him he must accept the decisions of his superiors or face termination. (Dec. 2, 1981 letter, R. 82 Exh. 10; March 2, 1987 Tr. at 57-58.)

In the weeks following the reprimand, plaintiff's complaints continued. He complained to his state senator and the Oklahoma State Department of Labor. The state agency thereafter inspected the University's steam pipes and largely disagreed with plaintiff's concerns. He also expressed his views to other University workers, such as electricians, causing some of them to fear working in service tunnels near steam pipes.

The last straw occurred on February 24, 1982 when plaintiff contacted a supervisor in another department about his concerns. Without permission from his foreman, plaintiff left his job for an hour and fifteen minutes in order to take the other supervisor on an inspection tour of the items that plaintiff insisted were wrong with the University's steam pipes and boilers. Those were the same items that plaintiff had been raising and re-raising with his direct superiors for months.

When plaintiff returned from the unauthorized tour, his foreman summoned him to the foreman's office to explain his absence and to discuss the situation. At the meeting, plaintiff was less than candid. Plaintiff stated that the other supervisor requested that he "go look at something," failing to disclose that it was plaintiff who initiated the contact and the tour. On the next day, February 25, 1982, after consulting with other supervisory personnel, the foreman and another supervisor met with plaintiff and gave him the opportunity to resign. Plaintiff refused to resign, and the foreman fired him "[b]ecause of insubordination." (Paris Dep. at 42-43.) ¹

Under the University's policy manuals, the termination of an employee is not final for at least ten working days after the employee is notified of the termination. During those ten days, the employee has the right to initiate a series of grievance procedures. Here, although plaintiff consulted and retained an attorney during the ten-day period and gave the attorney a copy of the University's policy manuals within the period, plaintiff never invoked the procedures. At the end of the period, the University sent a letter to plaintiff stating that his termination was final.

Plaintiff then filed suit in the district court under 42 U.S.C. Secs. 1983, 1985, 1986, and 1988. ² He also raised various pendent claims under state law. He named as defendants the State of Oklahoma, the University, and various University supervisors and officials involved in the dispute.

In a series of rulings, the district court (1) granted defendants judgment on the pleadings to the extent that plaintiff's complaint sought damages from the State, the University, or the individual defendants acting in their official capacities, holding that recovery of those damages was barred by the eleventh amendment to the United States Constitution (April 9, 1985 Order at 1-2); (2) awarded summary judgment to the defendants on plaintiff's first amendment claim and on his claim that he had been deprived of a liberty interest without due process of law (February 9, 1987 Order at 6); (3) directed a verdict in favor of defendants on plaintiff's claim that he was deprived of a property interest in continued employment without due process of law, holding that plaintiff waived his right to a pre-termination hearing (March 4, 1987 Judgment); and (4) dismissed plaintiff's pendent state-law claims (March 4, 1987 Judgment).

On appeal, plaintiff raises five issues: (1) whether the eleventh amendment barred plaintiff's damage claims against the State of Oklahoma, its entities, and its agents acting in their official capacities; (2) whether defendants violated plaintiff's first amendment rights; (3) whether plaintiff waived any right that he had to a pre-termination hearing by failing to invoke the University's grievance procedures; (4) whether the district court erred in dismissing the pendent state-law claims; and (5) whether the district court erred in failing to award summary judgment to plaintiff.

I. Immunity Under Eleventh Amendment

Plaintiff asserts that his claims under 42 U.S.C. Secs. 1983, 1985, 1986, and 1988 against the State, the University, and the individual defendants acting in their official capacities are not barred by the eleventh amendment. ³ We disagree.

The Supreme Court expressly has held that the eleventh amendment prohibits damage suits against states under section 1983. Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). We see no reason why the Supreme Court's reasoning and holding should not apply with equal force to plaintiff's civil rights claims under section 1985 (conspiracy) and section 1986 (failure to prevent conspiracy violations). See, e.g., Williams v. Bennett, 689 F.2d 1370, 1376-77 (11th Cir.1982) (state board of corrections immune from damage suits brought under sections 1983, 1985, and 1986), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). ⁴

Nor do we agree with plaintiff's contention that the University or its Board of Regents is separate from the State for eleventh amendment purposes. The relationship between a public entity and a state is determined by state law. Korgich v. Regents of New Mexico School of Mines, 582 F.2d 549, 551 (10th Cir.1978); Unified School Dist. No. 480 v. Epperson, 583 F.2d 1118, 1121 (10th Cir.1978). Under Oklahoma's constitutional and statutory scheme, the Board of Regents, which supervises the University and in whose name all suits against the University must be brought, is an arm of the State. Okla. Const. arts. XIII, XIII-A, XIII-B; Okla.Stat.Ann. tit. 70 Secs. 3201-3310 (1981). See Gay Activists Alliance v. Board of Regents, 638 P.2d 1116, 1123 (Okla.1981) ("For the purpose of monetary damages, as an administrative agency, in essence an arm of the State, the Board [of Regents of the University] enjoys the privilege of Eleventh Amendment ... immunity granted to the State").

It seems obvious that a judgment against the University or the individual defendants in their official capacities "must be paid from public funds in the state treasury," and hence "is barred by the Eleventh Amendment." Quern, 440 U.S. at 337, 99 S.Ct. at 1143. As we have stated previously, "a suit in a federal...