Zimmerer v. Spencer, 72-2709.

• Decision Date: 12 November 1973
• Docket Number: No. 72-2709.,72-2709.
• Parties: Ann M. ZIMMERER, Ph.D., etc., Plaintiff-Appellant-Cross Appellee, v. Thomas M. SPENCER, Individually, etc., and San Jacinto Junior College District, et al., Defendants-Appellees-Cross Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

485 F.2d 176 (1973)

Ann M. ZIMMERER, Ph.D., etc., Plaintiff-Appellant-Cross Appellee, v. Thomas M. SPENCER, Individually, etc., and San Jacinto Junior College District, et al., Defendants-Appellees-Cross Appellants.

No. 72-2709.

United States Court of Appeals, Fifth Circuit.

August 28, 1973.

Rehearing and Rehearing Denied November 12, 1973.

Larry Watts, Houston, Tex., W. Michael Gottesman, Washington, D. C., for appellant.

Jeff Crane, Houston, Tex., Stanley Baskin, Pasadena, Tex., for appellees.

Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 12, 1973.

GODBOLD, Circuit Judge:

This is a teacher discharge case. The District Court found that Dr. Zimmerer, a teacher at San Jacinto Junior College, in Texas, was entitled to procedural due process because, though non-tenured, she had "an expectancy of reemployment under the policies and practices of the institution" (emphasis added). It found that the college Board of Regents had deprived her of procedural due process by refusing to renew her contract without sufficient notice of charges against her and without a sufficient hearing. Relief was granted in the form of the pay (and salary raise) that she would have received during the following year, plus attorney fees. Both sides have appealed. We are of the opinion that the District Judge correctly resolved the matter, and affirm.

The record adequately supports the finding that Dr. Zimmerer was not accorded procedural due process, and we agree with that finding. The Board insists, however, that the Supreme Court decision in Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), which was handed down after the District Court's decision in the present case, requires that this case be reversed. The argument misconceives both Perry and the trial court decision in the case before us. In Perry the Supreme Court held that a merely subjective expectancy of reemployment by a non-tenured teacher was not such an interest that the threatened loss of it was protected by the due process clause of the fourteenth amendment. It is at least arguable whether the prior "expectancy of employment" cases were ever wholly subjective. Certainly many of them embrared objective facts concerning prior actions and usages. Perry does not reject but rather requires analysis of such objective facts, discarding only the "mere subjective expectancy" of the teacher as the predicate for procedural due process. The Supreme Court recognized that the absence of an explicit written contractual provision did not always foreclose the possibility that the teacher had the necessary "property" interest in reemployment, arising from the employer's words and actions whose meaning would be found in the usage of the past. 408 U.S. at 601, 92 S.Ct. at 2699, 33 L.Ed.2d at 580.

A teacher, like the respondent, who has held his position for a number of years, might be able to show from the circumstances of this service — and from other relevant facts — that he has a legitimate claim of entitlement to job tenure. Just as this Court has found there to be a "common law of a particular industry or of a particular plant" that may supplement a collective-bargaining agreement, United Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 579, 80 S.Ct. 1347, 1351, 4 L.Ed.2d 1409, 1415, so there may be an unwritten "common law" in a particular university that certain employees shall have the equivalent of tenure. This is particularly likely in a college or university, like Odessa Junior College, that has no explicit tenure system even for senior members of its faculty, but that nonetheless may have created such a system in practice. See Byse & Joughin, Tenure in American Higher Education 17-28.

408 U.S. at 602, 92 S.Ct. at 2700, 33 L.Ed.2d at 580. This concept of unwritten "property" interests is fleshed out by language in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), decided the same day. There the Court pointed out the necessity for giving meaning to the term "property" as used in the due process clause and noted that it had eschewed rigid or formalistic limitations on the protection of procedural due process. More specifically the Court said:

The Fourteenth Amendment\'s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests — property interests — may take many forms.

408 U.S. at 576, 92 S.Ct. at 2708, 33 L.Ed.2d at 560. And, after describing various situations in which one may have a protectible interest in a benefit,¹ the Court continued:

Certain attributes of "property" interests protected by procedural due process emerge from these decisions. 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. . . . It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

Id. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.

Dr. Zimmerer's case clearly falls within the "common law of the institution." Indeed, that is substantially what the District Judge said by his statement that Dr. Zimmerer's had an expectancy of reemployment "under the policies and practices of the institution." If at that time the Supreme Court's decision had been available the findings of fact might have been more precisely targeted, but the statement quoted, appearing after a description of the objective facts of institutional policies and practices, is more of a precursor of the Supreme Court in Perry than inconsistent with it.

Like the college in Perry, Dr. Zimmerer's college had no explicit tenure system even for its senior members. She had taught in the college for six years and had been department chairman for five. She was the senior member of the Psychology Department. Although faculty contracts were issued for only one year at the time, the Faculty Handbook contained a...