Spuler v. Pickar

• Decision Date: 14 April 1992
• Docket Number: No. 90-2408,90-2408
• Citation: 958 F.2d 103
• Parties: 73 Ed. Law Rep. 434 Richard C. SPULER, Plaintiff-Appellant, v. Gertrud B. PICKAR, James H. Pickering, A. Benton Cocanougher, Richard L. Van Horn, and the Board of Trustees of the University of Houston, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 103

958 F.2d 103

73 Ed. Law Rep. 434

Richard C. SPULER, Plaintiff-Appellant, v. Gertrud B. PICKAR, James H. Pickering, A. Benton Cocanougher, Richard L. Van Horn, and the Board of Trustees of the University of Houston Defendants-Appellees.

No. 90-2408.

United States Court of Appeals Fifth Circuit.

April 14, 1992.

Rehearing Denied May 15, 1992.

David T. Lopez, Houston, Tex., for plaintiff-appellant.

David W. Williams, Lou Bright, Asst. Attys. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, JONES, and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Plaintiff Richard Spuler brought suit against the University of Houston, alleging that he was denied due process of law in being refused tenure and terminated. A jury awarded damages, after finding that Spuler had a reasonable expectation of continued employment and that the defendants acted arbitrarily and capriciously in denying tenure and in discharging him. The court granted defendants' motion for judgment notwithstanding the verdict. Spuler appeals from that ruling. We affirm.

FACTS

In 1980, Spuler was appointed an assistant professor in the German Department at University of Houston. He was subsequently re-appointed each year. In August 1985, at the end of Spuler's fifth year at the University, Dr. Gertrud Pickar, the German Department chairwoman, notified Spuler that his contract would not be renewed Understandably unhappy with the decision, Spuler asked that he undergo the tenure approval process so that he might represent to potential employers that he was being considered for tenure. The respective departmental and college tenure committees obliged and found that Spuler had complied with tenure requirements and was eligible for tenure consideration. Tenure decisions are evaluated according to performance in the areas of teaching, research, professional scholarship, and institutional service. The University's faculty handbook states "tenure is granted to faculty members upon the successful completion of a probationary period [at] the university...." Initial screening and evaluation is conducted by the respective department and college, with a recommendation transmitted to the university Provost and President. The ultimate decision to grant or deny tenure is made by the Board of Regents, upon recommendation of the President.

                after the 1985-86 school year.   Financial reasons were offered as the basis for the decision
                

The jury found that the University's rules and regulations created a reasonable expectation of continued employment for Spuler. The jury also found that the department chairwoman and the other defendants acted arbitrarily and capriciously in not recommending tenure and in discharging Spuler. They awarded $13,279 in damages against the department chairwoman and $39,837 in damages against Dr. James H. Pickering, dean of the College of Humanities and Fine Arts. The jury also assessed $542 in damages against both the University Provost, A. Benton Cocanougher, and the University President, Richard L. Van Horn, both of whom concurred in the recommendation to deny tenure to Spuler.

Shortly after Spuler left the University, a tenured professor resigned from the German Department. Spuler was not offered the position, and the vacant position remained unfunded for two successive years. However, two months after Spuler departed, the University advertised nationally for a German professor. The University explained that Spuler was a linguistics expert and taught elementary courses, while the professor who resigned was a professor of German literature. Although the basic language acquisition courses could be taught by any German Department faculty member, specialized knowledge--which Spuler lacked--was needed to teach the literature classes.

In ruling on defendants' motion for judgment notwithstanding the verdict, the trial court held that Spuler enjoyed no property interest in continued employment at the University, since Spuler was employed on a year-to-year contract. The court further held that the University was entitled to deny Spuler tenure. The court also held that the tenure denial decision was reasonable, and not arbitrary and capricious, being based on legitimate financial considerations.

STANDARD OF REVIEW

A judgment notwithstanding the verdict (JNOV) should be granted by the trial court

only when the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable jurors could not arrive at a contrary verdict, viewing the facts in the light most favorable to the party against whom the motion is made, and giving that party the advantage of every fair and reasonable inference which the evidence justifies.

Harwood & Assoc., Inc. v. Texas Bank & Trust, 654 F.2d 1073, 1076 (5th Cir. Unit A, September 1981) (citing Boeing v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc)). On appeal, we apply an identical legal standard, viewing the evidence in the fashion most favorable to the party opposing the motion. Ellison v. Conoco, Inc., 950 F.2d 1196, 1203 (5th Cir.1992). Thus, we may affirm the district court only if we find that no reasonable jury could have determined that Spuler was entitled to a reasonable expectation of continued employment, or that he was discharged arbitrarily and capriciously.

PROPERTY INTEREST

The threshold issue is whether Spuler held any constitutionally-protected property right. Baker v. McCollan, 443 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-96, 61 L.Ed.2d 433 (1979). The nature of Spuler's claim of property right must be determined by reference to Texas law. Board of Regents v. Roth, 408 U.S. 564, 568, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1976). If there is no protected property interest, there is no process due, i.e., the status is employment at will, modified by annual contracts. Roth, 408 U.S. at 569, 92 S.Ct. at 2704.

Public employees must demonstrate a property right founded on a "legitimate claim of entitlement" based on "mutually explicit understandings." Roth, 408 U.S. at 577, 92 S.Ct. at 2708; Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Spuler claims that he had a reasonable expectation of achieving tenure if he was qualified, and that alone constitutes a legitimate property interest. He bases his claim on the faculty handbook provision. The University counters that the handbook, under ample Texas precedent, cannot give rise to an employment contract where the handbook is not accompanied by an express agreement regarding discipline and discharge.

Spuler premises his assertions that the faculty manual contractually creates enforceable property rights on Aiello v. United Airlines, Inc., 818 F.2d 1196 (5th Cir.1987). In Aiello, a long-term employee with a stellar record was discharged for falsifying an expense voucher. Aiello must be understood as a case in which all parties to the suit treated the employment manual as giving certain contract rights, including the right to be discharged only for specific, enumerated reasons. The court relied on Texas cases in which express oral promises were offered and later construed as implied contract provisions. See, e.g., Union v. Brown, 694 S.W.2d 630 (Tex.App.--Texarkana 1985, writ ref'd n.r.e.); Johnson v. Ford Motor Co., 690 S.W.2d 90 (Tex.App.--Eastland, writ ref'd n.r.e.). Texas state courts, whose decisions must inform our determination of Spuler's claimed property right, Roth, 408 U.S. at 568, 92 S.Ct. at 2704, uniformly embrace the notion that employee handbooks or manuals, standing alone, "constitute no more than general guidelines," absent express reciprocal agreements addressing discharge protocols. Reynolds Mfg. Co. v. Mendoza, 644 S.W.2d 536, 539 (Tex.App.--Corpus Christi 1982 no writ). See also Ryan v. Superior Oil Co., 813 S.W.2d 594, 596 (Tex.App.--Houston [14th Dist.] 1991, writ denied); Hicks v. Baylor Medical Univ. Med. Center, 789 S.W.2d 299, 302 (Tex.App.--Dallas 1990, writ denied); Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403, 406 (Tex.App.--Beaumont 1987, writ ref'd n.r.e.); Vallone v. Agip Petroleum Co., 705 S.W.2d 757, 759 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.); Totman v. Control Data Corp., 707 S.W.2d 739, 744 (Tex.App.--Ft. Worth, no writ); Molder v. Southwestern Bell Tel. Co., 665 S.W.2d 175 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.).

The foregoing cases all illustrate the consistency with which Texas courts have adhered to the employment-at-will doctrine first enunciated in Eastline & R.R.R. Co. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888). This doctrine has borne the test of time, being eroded by only a few narrow statutory and judicially created exceptions not present in this case. The ineluctable conclusion that under Texas law employment manuals generally do not create contract rights guides our resolution of Spuler's property interest claim.

We now turn to the specific language upon which Spuler premises his claim to a constitutionally-protected property right. The faculty manual provides, in pertinent part:

Faculty members are on probationary appointments until they have been granted tenure. During the probationary period, decisions to renew or terminate appointments or to deny tenure shall be made at the campus level in accordance with the principals and procedures set forth in this Handbook. Tenure is awarded only at the specific campus of the university.

Tenure is granted to faculty members upon the successful completion of a probationary period on the University Park campus. The service of tenured faculty shall be terminated only for adequate cause, except in cases of financial exigency, discontinuance of programs, or retirement because of age.

The decision to terminate the services of a...