Thomas v. BD. OF TRUSTEES, ETC.

Decision Date16 April 1981
Docket NumberCiv. A. No. G-78-31.
PartiesManuel T. THOMAS, Plaintiff, v. BOARD OF TRUSTEES OF GALVESTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants.
CourtU.S. District Court — Southern District of Texas

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

David A. Livingston, Wycoff, Russell, Dunn & Frazier, Houston, Tex., Edward H. Schwab, III, Galveston, Tex., for defendant Vollert.

John S. McEldowney, Mills, Shirley, McMicken & Eckel, Galveston, Tex., for defendant Board of Trustees.

MEMORANDUM AND ORDER

HUGH GIBSON, District Judge.

The plaintiff commenced this action in federal court in February 1978, complaining that the actions of the Board of Trustees of the Galveston Independent School District (Board) and Frank J. Vollert, former superintendent of the District, deprived him of rights secured by the Constitution and laws of the United States. The plaintiff has asserted causes of action arising under 42 U.S.C. §§ 1983 and 1988 (1966), 42 U.S.C. § 2000e, et seq. (1976), and 42 U.S.C. § 1981 (1976). The Court has jurisdiction over the subject matter and parties to this lawsuit pursuant to 28 U.S.C. §§ 1331, 1343, 2201, and 2202 (1976), and 42 U.S.C. § 2000e-5 (1976).

The gravamen of the plaintiff's complaint is his midterm reassignment from assistant principal at Stephen F. Austin Middle School to a non-administrative position in December of 1976. The Board ordered that reassignment upon the recommendation of defendant Vollert, who was then serving as superintendent of the district. The plaintiff asserts that, by virtue of the terms of his contract of employment with GISD, the reassignment deprived him of a protected property interest without due process of law. Additionally, the plaintiff contends that unsubstantiated reasons were urged as a basis for his reassignment and that the action was given widespread publicity, prejudicially foreclosing his freedom to seek similar employment opportunities. This, plaintiff maintains, deprived him of a liberty interest protected by the Fourteenth Amendment of the United States Constitution. Finally, plaintiff asserts that his reassignment was motivated by impermissible racial considerations and was violative of the equal protection rights secured to him by the Constitution and laws of the United States.

This action was set on the Court's docket for trial before a jury on February 19, 1980. On that day, however, the parties in open court advised the Court that they would waive trial by jury and submit the case to the Court for consideration on an agreed record, accompanied by evidentiary exhibits, depositions, and stipulations of the parties. The case is submitted to the Court for a determination of the issues of liability only, reserving the questions of damages and attorneys fees for a subsequent hearing. Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court now enters this memorandum and order reflecting its findings of fact and conclusions of law on the issues of liability.

I. THE FACTUAL CONTEXT

The plaintiff is a black adult male citizen of the United States and at all times material to this action was employed by GISD. At the time of his reassignment, the plaintiff had been an employee of the district for 19 years, 16 years as a classroom teacher, and 3 years as an assistant principal of a middle school. After having served an initial term as assistant principal, the plaintiff on or about July 28, 1976, entered into a contract of employment with GISD wherein he would serve as assistant principal of the Austin Middle School for a term ending June 15, 1977. Under the terms of the contract, plaintiff agreed to abide by and adhere to the rules and regulations of the district and to perform his duties as an assistant principal in accordance with "acceptable professional standards for the same or similar positions."

However, on December 3, 1976, defendant Vollert by letter informed the plaintiff that his duties as assistant principal at the middle school would terminate at the close of that school day.1 Vollert recommended, and the Board approved, the plaintiff's reassignment to a classroom teaching position in art when one became available. In the interim, plaintiff was temporarily reassigned to work involving truancy and disciplinary problems, and he continued to receive the salary designated in his employment contract throughout the 1976-77 school year.

Plaintiff objected to his reassignment, and sought a hearing before the school board to challenge the action. The Board scheduled the matter for a hearing on the evening of January 3, 1977. The plaintiff elected to retain David Lopez as an attorney to represent him at the hearing. Prior to the scheduled hearing, Lopez advised Ed Schwab, counsel for the District, that he would object to the constitutional sufficiency of the notice given to plaintiff of the reasons for his reassignment, which at that time amounted to little more than the explanation given by the superintendent in his letter reassigning the plaintiff. In view of this, Schwab requested that the Board postpone the hearing until January 10 so that adequate notice might be given to the plaintiff. Lopez objected, however, to any continuance unless the plaintiff was returned to his assistant principal's position in the interim. The Board determined to postpone the hearing until January 10 so that specific reasons for the superintendent's recommendation could be furnished to the plaintiff, but declined to reinstate the plaintiff in the interim.

Subsequently, Schwab interviewed various faculty members at Austin Middle School in the course of developing a slate of reasons for plaintiff's reassignment. On January 6, 1976, Lopez was presented with a letter advising of some 21 incidents involving the plaintiff which were described as illustrative of the reason for the plaintiff's reassignment — to wit, superintendent Vollert's professional opinion that the plaintiff had failed to discharge his administrative responsibilities in accordance with accepted professional standards for the same or similar positions. Attached to the slate of incidents were the names of various witnesses which the District expected to call, with indication made as the events to which each witness would testify. Also attached was a job description of the assistant principal's position.

Lopez immediately notified Schwab of his objections to the timeliness and contents of the charges. The plaintiff, however, did not request a postponement of the January 10 hearing, which, at the request of the plaintiff, was open to the public.2 Testimony not being concluded at the close of the January 10 session, the hearing was continued on January 19. Plaintiff was afforded a full opportunity to cross-examine the witnesses presented by the District and to offer testimony and witnesses in his own behalf. At the conclusion of the evidentiary hearing, the Board deliberated in closed session, and then, in a public vote, affirmed the plaintiff's reassignment by a 6-to-1 margin.3

II. CLAIMS PRESENTED
A. Plaintiff's Pre-Deprivation Procedural Due Process Claim

It is undisputed that the plaintiff was reassigned from the position of assistant principal to a non-administrative position prior to the expiration of the employment period provided in his contract with GISD. Plaintiff contends that his employment contract, fairly construed, provided that he would not be relieved of his duties as assistant principal at Austin Middle School prior to the expiration of the contractual term except for cause, thus giving rise to the procedural due process requirement of notice and a prior opportunity for a hearing.

In order to demonstrate that he was entitled to procedural due process before any reassignment, however, the plaintiff must prove that he had a constitutionally protected property interest in continued employment as an assistant principal. Property interests are not created by the Constitution; rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source — such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

The right to employment by a state, in itself, is not a right secured by the Constitution or by the laws of the United States. McDowell v. State of Texas, 465 F.2d 1342, 1345 (5th Cir. 1971), cert. denied, 410 U.S. 943, 93 S.Ct. 1371, 35 L.Ed.2d 610 (1973). Nevertheless, property interests may be created and their dimensions defined by a contract of employment with a state. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); United Steel Workers of America, AFL-CIO v. University of Alabama, 599 F.2d 56, 60 (5th Cir. 1979); Johnson v. San Jacinto Junior College, 498 F.Supp. 555, 568 (S.D.Tex. 1980). A contract of employment can secure certain benefits to an employee, and may be an independent source that supports claims of entitlement to those benefits. Perry v. Sindermann, supra.

Whether the plaintiff's contract of employment engendered a legitimate claim of entitlement to continued employment as an assistant principal, as opposed to a mere unilateral expectation of it, is an issue which must be decided by reference to state law. Bishop v. Wood, supra; United Steelworkers of America v. University of Alabama, supra; Johnson v. San Jacinto Junior College, supra. The contract itself made no provision for any reassignment of the plaintiff during the...

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