Wheeler v. Mental Health and Mental Retardation Authority of Harris County, Tex.

• Decision Date: 11 February 1985
• Docket Number: No. 83-2586,83-2586
• Citation: 752 F.2d 1063
• Parties: Linda WHEELER, Plaintiff-Appellee, Cross-Appellant, v. MENTAL HEALTH AND MENTAL RETARDATION AUTHORITY OF HARRIS COUNTY, TEXAS, etc., et al., Defendants, Mental Health and Mental Retardation Authority of Harris County, Texas, etc., Eugene Williams, etc. and Bill Powers, etc., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1063

752 F.2d 1063

Linda WHEELER, Plaintiff-Appellee, Cross-Appellant, v. MENTAL HEALTH AND MENTAL RETARDATION AUTHORITY OF HARRIS COUNTY, TEXAS, etc., et al., Defendants Mental Health and Mental Retardation Authority of Harris County, Texas, etc., Eugene Williams, etc. and Bill Powers, etc Defendants-Appellants, Cross-Appellees.

No. 83-2586.

United States Court of Appeals Fifth Circuit.

Feb. 11, 1985.

Reynolds, Allen & Cook, Inc., P.J. Murphey Harmon, Houston, Tex., for defendants-appellants, cross-appellees.

David T. Lopez & Associates, David T. Lopez, Houston, Tex., for plaintiff-appellee, cross-appellant.

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

Before JOHNSON, JOLLY and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal is from a jury verdict awarding nearly $100,000 in damages and attorney's fees to the plaintiff, Linda Wheeler, on the grounds that some of the defendants violated her right to procedural due process when she was fired from her job with Mental Health and Mental Retardation Authority of Harris County, Texas (MHMRA). We affirm in part, reverse in part, and remand.

I.

Wheeler was Unit Director of the Bayshore Unit of MHMRA which operated as a day hospital providing mental health services when her employment was terminated. According to Wheeler, the events leading to her dismissal began in about February of 1977, when she criticized the recently hired Personnel Director, Bill Powers, at a meeting with other unit directors. Later that same year, she opposed a contract with the Baylor College of Medicine for the provision of psychiatric services, considering it wasteful. In March of 1978, she complained that the compensation plan of a particular department head was not proper. She later complained to Robert Navarro, a MHMRA director, asserting that the compensation plan violated certain rules of the Texas Commissioner of Mental Health. She also complained about the plan in an anonymous letter to the Chairman of the Board of Directors, T.S. Hancock.

It seems, however, that all things were not going well in Wheeler's own unit. Three former employees complained that Wheeler had been engaging in unfair employment practices, and on July 13 Powers began an investigation of her unit. On July 27, pending further investigation, he suspended her, which Wheeler contends was in retaliation for her outspokenness.

After completing the investigation, Powers called a meeting of Wheeler and other employees in her unit. Before the meeting began, a union representative, whom Wheeler had asked to attend, raised procedural questions and the meeting was adjourned until the following day. The next day, August 4, the meeting was reconvened and Powers announced that he wished to discuss with Wheeler alone certain allegations that had been raised during his investigation. The union representative advised Wheeler that she did not have to respond to questions unless they were in writing. After the representative left the room, Powers stated the allegations while Wheeler wrote them down on paper. When Wheeler refused to respond to them, Powers discharged her.

On August 16, Wheeler received a three-page letter dated August 11, from MHMRA Executive Director, Eugene Williams, stating the reasons why she had been dismissed. One of the allegations contained in the letter was that Wheeler had removed a controlled substance, Tranxene, from her workplace without authorization, and in violation of law and MHMRA policies. No such charge had been made on August 4 apparently because the meeting ended abruptly. Wheeler appealed pursuant to agency rules and met with Williams; each was accompanied by an attorney. Williams affirmed his prior decision to dismiss Wheeler.

Wheeler then appealed her dismissal to the Board of Directors as provided by agency rules. The parties agreed that only the charge of the drug theft would be considered on this appeal because it was the most serious. At this appeal, heard on September 27, 1978 before three Board members (T.S. Hancock, Robert Navarro, and Joseph L. Bart), Wheeler was represented by an attorney and was given the opportunity to testify, present witnesses, and cross-examine adverse witnesses. Although the hearing was supposed to be limited to the drug-theft charge, Wheeler argued to the Board that Powers and Williams had dismissed her for exercising her freedom of expression. Wheeler also insisted that she intended no harm but took the Tranxene from MHMRA for her mother's use. She explained that her sick mother had a prescription for the drug but could not afford to purchase it and that she took only outdated drugs, which were marked for disposal. The Board members, unpersuaded, upheld the prior decision of dismissal.

Having failed in her efforts to gain reinstatement from MHMRA directors, Wheeler brought suit in district court under 42 U.S.C. Secs. 1983, 1985, 1986, and 1988, alleging that her dismissal violated her first amendment rights and her right to substantive and procedural due process under the fifth and fourteenth amendments. ¹ Wheeler named MHMRA and Williams, Powers, Hancock, Navarro, and Bart in their individual and official capacities as defendants in the suit. At the close of the defendant's case, the district court directed a verdict against Wheeler on her claims under sections 1985 and 1986. On the issues submitted to it, the jury returned a verdict finding that Powers and Williams had deprived Wheeler of the procedural safeguards set forth in the MHMRA handbook, and had it not been for that deprivation, she would not have been dismissed. The jury found, however, that the Board Members did not violate the MHMRA handbook provisions and that none of the defendants violated either Wheeler's first amendment rights or her right to procedural due process guaranteed by the Constitution.

Actual damages were assessed against MHMRA, Powers and Williams in the amount of $65,000. The jury also assessed $4,000 and $1,000 in punitive damages against Powers and Williams respectively. The district court entered final judgment and awarded Wheeler attorney's fees of $25,937.50 with interest to be recovered from MHMRA. All parties appeal the jury verdict.

II.

The questions raised on this appeal primarily involve an examination of the jury's answers to several special interrogatories. We are specifically concerned with three of the interrogatories posing whether procedural due process was violated and whether such violation led to Wheeler's dismissal. Interrogatory number one concerned procedural due process guaranteed by the Constitution while interrogatories four and five concerned procedures guaranteed by the MHMRA handbook. The relevant interrogatories and answers are:

Special Interrogatory No. 1

Do you find from a preponderance of the evidence that defendants failed to afford plaintiff the procedures required by due process in their decision to terminate plaintiff's employment?

Answer: No as to all defendants.

Special Interrogatory No. 4

Do you find from a preponderance of the evidence that defendants failed to comply with the applicable policies and procedures for dismissal when they decided to terminate plaintiff's employment?

Answer: Yes as to Powers and Williams; No as to the Board members.

If you have answered "yes" to Special Interrogatory No. 4 as to any defendant, proceed to answer Special Interrogatory No. 5.

Special Interrogatory No. 5

With regard to plaintiff's claim that she had a protectable property interest in applicable policies and procedures, do you find from a preponderance of the evidence that plaintiff would have been terminated from her employment if defendants had followed the applicable policies and procedures?

Answer: No.

III.

A.

The first issue we address is whether the district court erred in denying Wheeler's motion for judgment notwithstanding the verdict on the issue of procedural due process guaranteed by the fourteenth amendment. Wheeler asserts that since she was a nonprobationary employee who may be dismissed only for good cause, she was constitutionally entitled to notice of the charges against her and an opportunity to be heard prior to dismissal. Wheeler notes that the jury was orally instructed to find whether she had been granted due process before she was "finally terminated," and asserts that the phrase "final termination" relieved the defendants from showing that risk-reducing procedures had been taken before her dismissal. Additionally, Wheeler argues that the district court erred by not requiring the jury to determine whether procedural due process was followed prior to her discharge. We agree that the district court did not properly instruct the jury on the law of procedural due process in this circuit.

In Thurston v. Dekle, 531 F.2d 1264, 1273 (5th Cir.1976), vacated on other grounds, 438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978), this court defined the minimum pre-termination procedural elements required by the due process clause of the fourteenth amendment. We stated:

Where a governmental employer chooses to postpone the opportunity of a nonprobationary employee to secure a full-evidentiary hearing until after the dismissal, risk reducing procedures must be accorded. These must include, prior to termination, written notice of the reasons for termination and an effective opportunity to rebut those reasons. Effective rebuttal must give the employee the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decisions.

531 F.2d at 1273 (footnotes omitted). More recently we reaffirmed the general rule that to establish a denial of due process the plaintiff must show that prior to his discharge he did not receive written notice of the reasons for dismissal and an opportunity to respond in writing to those reasons. Bueno v. City of Donna, 714 F.2d 484, 493 (5th...