Victor v. Brickley

• Decision Date: 05 September 1979
• Docket Number: No. 8-70548.,8-70548.
• Parties: Gary M. VICTOR v. James H. BRICKLEY et al.
• Court: U.S. District Court — Western District of Michigan

476 F. Supp. 888

Gary M. VICTOR v. James H. BRICKLEY et al.

No. 8-70548.

United States District Court, E. D. Michigan, S. D.

September 5, 1979.

COPYRIGHT MATERIAL OMITTED

Joel S. Welber, Goldstein, Welber & Florey, Ann Arbor, Mich., for plaintiff.

Joseph A. Ritok, Jr., James D. Tracy, Detroit, Mich., David Y. Klein, Klein, Bloom & Gale, Southfield, Mich., for defendants.

OPINION

FEIKENS, District Judge.

This civil rights action against several individual and institutional defendants arises from the summary suspension of the Plaintiff from his untenured teaching position at Eastern Michigan University. All Defendants move for summary judgment. Except for the subjective motivations of some of the principal Defendants, the parties agree on the facts of this case.

Facts

Plaintiff holds an untenured faculty position at Eastern Michigan University (EMU) in the Administrative Services and Business Education Department. The Defendants are as follows: Gary Hawks is EMU's Vice President for Employee Relations; Donald Drummond was then acting Academic Affairs Vice President; James Green is EMU's Manager of Employee Relations; Earl Roth is the Dean of the Business College; Robert Ristau is the Head of the Administrative Services and Business Education Department; James Brickley was then President of EMU. Also named as Defendants are the EMU Board of Regents, the EMU Chapter of the American Association of University Professors (AAUP) and Judy Johnson, then EMU Chapter President.

In early January of 1978 one of Plaintiff's former students wrote a letter to Roth and Ristau alleging that Plaintiff had both attempted and accomplished sexual liaisons with some of his female students. Ristau thereupon commenced an investigation into the charges. Plaintiff learned of the investigation on January 16 and demanded that Ristau provide him with any documentary evidence the investigation had produced. When this request was refused, he filed a grievance under the provisions of the collective bargaining agreement then in effect between EMU and the AAUP.

On January 31, President Brickley notified Plaintiff by letter that he was suspended without pay, effective immediately. Brickley set forth the reasons for his action, advised Plaintiff to forward any information he might have in his defense, and recommended that he avail himself of the remedies provided by the collective bargaining agreement then in effect. Brickley's actions were taken pursuant to Article XII B.4. of that agreement:

A faculty member may be suspended for reasonable and just cause. Suspension of a faculty member shall be done only by the President. The issue of with or without pay shall be determined by the circumstances of the suspension.

Upon receipt of this letter, Plaintiff filed another grievance, under Subsection B.5. of Article XII which provides that subsection B.4. suspensions may be taken immediately to Step 3 of the contract's grievance procedure. Under the terms thereof, a six-member Review Board consisting of three faculty and three administration representatives are required to meet within ten (10) days of the request to attempt an adjustment of the grievance. If the grievance is not adjusted at Step 3, the dispute may be submitted to binding arbitration.

In this case, the ten (10)-day time limit on the Review Board meeting was extended for seven (7) days by agreement of Hawks and Johnson. On February 17 the meeting was held. Plaintiff was represented by two lawyers, his own and the AAUP's. Although Plaintiff was permitted to see two letters detailing the allegations against him, at least some of the evidence being gathered by EMU administrators was not disclosed. The meeting resulted in a union-administration deadlock on whether to continue the Plaintiff's suspension, the effect of which was to advance the grievance to Step 4 arbitration.

On March 6 Drummond informed Plaintiff that EMU intended to transform his suspension into a termination, and that he had a right to a hearing before a committee of three tenured faculty members to be chosen by the procedure in Section B. of Article XII. On March 10 this lawsuit was filed. In early April the Hearing Committee convened, and after deliberation recommended Plaintiff be reinstated with full back pay. On April 25 this was done.

The hearing was similar to a trial. Plaintiff had the opportunity to publicly confront and cross-examine witnesses before an unbiased tribunal whose proceedings were recorded. He was allowed to call witnesses of his own, make a statement on his own behalf, and to be represented by counsel.

The Complaint

As originally drafted, the Complaint contained four counts. The first was directed mainly toward securing an adversary hearing at which Plaintiff would be allowed to refute the allegations against him and secure reinstatement and back pay. It also requested a declaration that the contract's suspension and grievance procedures are constitutionally infirm on vagueness and overbreadth grounds. It also seeks an order directing the Defendants to delete all references to the suspension from his personnel file and cease any actions that might be construed as an invasion of his privacy.

Count II is essentially a challenge to the procedure by which the Hearing Committee is selected and the hearing conducted on due process and equal protection grounds. It seeks a declaration that portions of Article XII of the contract are unconstitutional and an injunction against the proceedings specified therein. Count III is merely an enumeration of the elements of damages Plaintiff claims. Count IV is a libel claim under the common law of Michigan based on a memorandum written and allegedly circulated by Defendants Ristau and Roth.

The theoretical underpinning of Counts I, II and III is the claim that the Defendants jointly and severally deprived Plaintiff of a property interest in his employment and a liberty interest in his reputation without adequate procedural safeguards. Plaintiff seeks damages in addition to the declaratory and injunctive relief already discussed. Jurisdiction over Counts I, II and III is founded on 28 U.S.C. § 1331, 28 U.S.C. § 1343; Count IV is here on principles of pendent-claim jurisdiction.

Defendants' Motions

Before considering the motions, I must first identify what parts of the complaint are moot because of occurrences postdating it. I conclude that the following are moot: (1) ¶ 38.B—requests declaration that Plaintiffs (then) continued suspension deprived him of due process; (2) ¶ 38.E—requests reinstatement, back pay and a hearing; (3) ¶ 38.E.5.—requests injunction against the continuing investigation of Plaintiff; (4) all of Count II—that Count being essentially a challenge to the constitution and composition of the Review Board and to the President's power to overrule its determination.¹

The claims that remain are as follows: (1) Plaintiff seeks damages for the deprivation of liberty and property which he has suffered; (2) damages for the Defendants' violation of his right to privacy; (3) a declaratory judgment that the actions of the Defendants violated his constitutional rights; (4) a declaration that Article XII B.4. violates the 14th Amendment; (5) a permanent injunction against future suspensions or terminations pursuant to XII B.4.; (6) expungement of references to the suspension from Plaintiff's personnel file.

Defendants' Arguments

Defendants Johnson and the AAUP argue their actions are not "state action" and that they did not conspire or join with any of what might be called the "EMU Defendants" in any of the actions complained of. Alternatively, they claim that the requirements of procedural due process were complied with here. Finally, they allege there are no allegations of any bad motive or purpose on Johnson's part and that she and the AAUP should be protected by a qualified good-faith immunity.

The EMU Defendants argue: (1) Plaintiff received "all the process that was constitutionally due" in the instant circumstances; (2) Plaintiff lacks standing to challenge Article XII B.4. on either vagueness or overbreadth grounds; (3) the entire dispute is moot; (4) Plaintiff had no property interest in continued employment; (5) Plaintiff waived his rights to pre-suspension notice and hearing by the collective agreement; (6) Plaintiff has asserted no cognizable liberty interest; (7) the individual defendants enjoy qualified immunity.

The AAUP and Johnson

The complaint fails to reveal exactly what these Defendants are alleged to have done to wrong the Plaintiff. Presumably, he complains of Johnson's agreement to adjourn the Review Board meeting for one week without his consent. As to the AAUP, Plaintiff says that it was "acting in concert with other proper defendants acting under color of state law to violate the Plaintiff's due process" rights. (Plaintiff's Supplemental Brief at p. 5) It could perhaps be concluded that the AAUP is alleged to have been at fault in either negotiating or acting in compliance with the contract provisions complained of. However, there is no allegation of any hostile motive in negotiating the contract, nor is it alleged that the AAUP cooperated with the EMU Defendants in the actions complained of. There is likewise no claim of a conspiracy between the AAUP, Johnson and the EMU Defendants. I conclude there are no facts to support the conclusion that the AAUP and Johnson acted "in concert" with the EMU Defendants in the occurrences complained of. Thus, the complaint must be dismissed as to the AAUP.

Yet another reason to dismiss the AAUP applies also to Johnson. For a defendant to be liable under § 1983 he must have taken some action "under color of law." Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 27 L.Ed. 835 (1883); White v. Scrivener...