Thacker v. Whitehead, Civ. No. 3-75-376.
| Decision Date | 23 January 1976 |
| Docket Number | Civ. No. 3-75-376. |
| Citation | 407 F. Supp. 1111 |
| Parties | Jack THACKER v. Colonel Tom WHITEHEAD. |
| Court | U.S. District Court — Eastern District of Tennessee |
Roger O. Hooban, Knoxville, Tenn., for plaintiff.
Beauchamp Brogan, Gen. Counsel, University of Tenn., Knoxville, Tenn., for defendant.
This is a civil rights action based on 42 U.S.C. §§ 1983, 1985, 1986 and 28 U.S.C. § 1343 against Colonel Tom Whitehead in his capacity as Director of Safety and Security at the University of Tennessee at Knoxville. Before the Court is the motion to dismiss of the defendant in which he contends that the Court lacks subject-matter jurisdiction and that the complaint fails to state a claim upon which relief can be granted. Defendant has moved in the alternative for summary judgment and has submitted in support thereof the affidavit of Jack E. Reese, Chancellor of the University of Tennessee at Knoxville, and the report of a University panel appointed by Chancellor Reese to consider the matter complained of in this action.
Plaintiff is an employee of the security force at the University of Tennessee. He seeks compensatory and punitive damages on the ground that his civil rights were violated when he was discharged from the position of sergeant on the University security patrol and reinstated as a patrolman. The crux of plaintiff's claim is that he was not afforded due process of law during the course of the disciplinary procedures. We disagree and hold that summary judgment must be entered in defendant's favor for the following reasons, each of which, in itself, is a sufficient basis for denying relief: (1) the merits of plaintiff's discharge are not subject to judicial review, and (2) the procedures followed in disciplining plaintiff exceeded the requirements of the due process clause of the Fourteenth Amendment.
The facts, as established by the pleadings and the affidavit of Chancellor Reese, may be summarized as follows. In the fall of 1974, an investigation was conducted by The University of Tennessee regarding allegations that plaintiff and certain other security officers had made an unauthorized entry into the University's personnel office to examine pay scale material. Following the results of an investigation by a three-member panel and the University's legal office, defendant advised plaintiff that his employment with the University would be terminated effective January 2, 1975, for the following reasons: "Unauthorized examination of University pay scale material." (Affidavit of Reese at 2). Plaintiff was then a sergeant. He was advised however that: "Due to your length of service and prior record, you will be reinstated in the position of Class A police officer." (Id.)
Plaintiff was also advised of his right to file a grievance protesting such disciplinary action against him. Plaintiff then filed a grievance protesting his reduction from sergeant to patrolman in accordance with the grievance procedure then in effect at the University. Having been unable to resolve his grievance at Step 2 of the grievance procedure with his department head, defendant Whitehead, plaintiff appealed to a grievance committee composed of four people (Step 3 of the grievance procedure).
The grievance committee conducted a hearing, at which plaintiff testified and was given full opportunity to present any evidence and testimony he deemed necessary. After the hearing, the committee filed a report and notified plaintiff as follows:
"The grievance committee unanimously agree sic that disciplinary action imposed in this instance by your department head was correct." (Exhibit F, page 1; Affidavit of Reese).
The committee, however, recommended that plaintiff suffer no loss of pay as a result of the action against him.
Thereafter, plaintiff appealed the action of the grievance committee to Chancellor Reese (Step 4 of the grievance procedure), who appointed a three-member advisory committee to again review plaintiff's complaint and report its findings to him. The advisory committee itself interviewed plaintiff and others, and reported its findings, without any recommendation, to Chancellor Reese.
Chancellor Reese, after reviewing the entire record concerning plaintiff's grievance, modified plaintiff's punishment by ordering him reinstated to the rank of sergeant without back pay, effective April 1, 1975. It was Chancellor Reese's opinion that although defendant's action toward plaintiff was proper, a loss of pay as a sergeant for the three-month period involved — January 2, 1975 to April 1, 1975 — "was sufficient discipline for the nature of the offense committed by plaintiff." (Affidavit of Reese, at 4). Plaintiff's only monetary loss was thus the difference between the pay of a sergeant and police officer for three months, or $181.52.
Plaintiff could have appealed Chancellor Reese's decision restoring him to the rank of sergeant without back pay to the President of the University, and, if necessary, the Board of Trustees, but he did not do so. He accepted Chancellor Reese's decision and was reinstated as a sergeant on April 1, 1975. For this reason, defendant contends that plaintiff failed to exhaust his administrative remedies and the Court lacks subject matter jurisdiction.
It is well settled that when a plaintiff fails to exhaust his administrative remedies, the Court is without jurisdiction to consider his claim. See, e. g. Robinson v. Dow, 522 F.2d 855 (6th Cir. 1975); Dill v. Greyhound Corp., 435 F.2d 231 (6th Cir. 1970), cert. den. 402 U.S. 952, 91 S.Ct. 1622, 29 L.Ed.2d 122 (1971). The University of Tennessee by-laws provide that:
"Officers, Faculty and Staff Members, students, employees, alumni and all others who feel that they may have a grievance against the University shall have the right of appeal through the appropriate Chancellor and the President to the Board of Trustees." (Affidavit of Reese, Ex. K).
The complaint, however, could be construed as a specific attack on the grievance procedure followed by the University. Under these circumstances, plaintiff would not be required to exhaust his administrative remedies before bringing an action based on 42 U.S.C. § 1983. E. g., Hayes v. Board of Regents, 495 F.2d 1326 (6th Cir. 1974).
The additional grounds raised by defendant, however, require that the ...
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Thacker v. Whitehead, 76-1492
...and punitive damages. District Judge Robert L. Taylor granted summary judgment in favor of the defendant. Thacker v. Whitehead, 407 F.Supp. 1111 (D.C.Tenn.1976). Reference is made to the reported decision of Judge Taylor for a recitation of pertinent The case has been assigned to a panel pu......