Thornquest v. King , 61 F.3d 837 ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-2278.
Alan THORNQUEST; Marion Brady; Thomas S. Ward, Plaintiffs-
Appellants,
v.
Maxwell C. KING, individually and in his official capacity as
Administrative Employee of Brevard Community College; Robert E.
Lawton, individually and in his official capacity as Administrative
Employee of Brevard Community College; Tace T. Crouse,
individually and in his official capacity as Administrative
Employee of Brevard Community College, et al., Defendants-
Appellees.
May 9, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 92-709-Civ-Orl-18), G. Kendall Sharp,
Judge.
ON PETITION FOR REHEARING
Before BLACK and BARKETT, Circuit Judges, and RONEY, Senior Circuit
Judge.
BARKETT, Circuit Judge:
Professors Marion Brady, Thomas Ward and Alan Thornquest
appeal judgments entered in favor of Brevard Community College
administrators, College President Maxwell King and the College
Board of Trustees (collectively "defendants") in this 42 U.S.C. §
1983 suit. 1 The professors, who were involved in union activity
and publicly critical of the College and the Board of Trustees,
claimed that they were transferred, fired and/or denied benefits in
violation of their federal and state rights to free expression,
petition, assembly and substantive due process. Brady further
1
Our prior opinion in this case is reported at 61 F.3d 837(11th Cir.1995). Rehearing is granted, and this opinion replaces
the prior opinion.
alleged that he was fired and denied benefits in violation of
federal and state procedural due process. Finally, Brady and
Thornquest claimed that the College's "dissent" policy violated
their rights to free expression, petition and assembly. The
district court granted summary judgment for defendants on all
claims.
We affirm the district court's judgment as to all claims
except Brady's claims that the College transferred him and the
Board discharged him in retaliation for his free speech, and Brady
and Thornquest's first amendment claims against the "dissent"
policy. We reverse the judgment as to those claims and remand the
case for further proceedings.
I. BACKGROUND
Marion Brady, a sociology professor at the College since 1976,
became a vocal critic of the College administration and Board in
1988. In letters to the editor, public officials and the Board,
Brady criticized the administration and Board for, among other
things, expending funds to build the King Performing Arts Center,
emphasizing public relations at the expense of education and
failing to act on his complaints of improprieties.
In March 1992, Brady was informed by the College that he was
being transferred to a different campus. Thereafter, in May 1992,
President King recommended to the Board, pursuant to Rule 6A-
14.0411(6), Florida Administrative Code, that Brady be discharged
on the grounds that he was guilty of misconduct, gross
insubordination and willful neglect of duty. Brady responded that
President King's recommendation was filed to retaliate against him
for exercising his rights to free speech, petition, assemble and
work and to engage in union activity.
Believing the Board to be biased against him, Brady requested
that it permit President King's petition to be heard by a Hearing
Officer of the Florida Division of Administrative Hearings. The
Board denied this request. Brady then filed a lawsuit in state
court, asserting under both state law and § 1983 that his transfer
by the College, and subsequent threatened termination as
recommended by President King's petition, violated his statutory
and constitutional rights. In addition to damages, Brady
unsuccessfully sought an injunction prohibiting the Board from
hearing the discharge petition. By letter, Brady also asked the
Board to disqualify itself from hearing the petition because all of
its members were biased against him. After only two of the five
Trustees disqualified themselves, Brady filed a formal Suggestion
for Disqualification of the remaining Trustees, pursuant to Section
120.071, Florida Statutes, which the Trustees denied.
Over Brady's objections, the Board ultimately held a hearing
on President King's recommendation of discharge. The three
Trustees who had not recused themselves heard from the
administrators regarding the allegations of misconduct and gross
insubordination, rejected Brady's charges that President King's
recommendation and the Board's prospective action were motivated by
unconstitutional retaliation, and discharged Brady. The Board also
denied Brady accumulated sick leave.
Meanwhile, defendants removed Brady's pending state suit to
federal district court. In his Amended Complaint, Brady changed
his initial claim alleging that his threatened discharge based upon
President King's petition was unconstitutional to one alleging that
his actual discharge by the Board was in retaliation for exercising
his first amendment rights. See Count II. In addition, Brady
repeated in the Amended Complaint his transfer claim contained in
the Initial Complaint. Id. Brady and Thornquest further alleged
that the College's policy on "dissent" was unconstitutional, both
facially and as applied.2 See Counts VIII and IX. The lawsuit
requested damages, declaratory relief and an injunction requiring
immediate reinstatement and prohibiting enforcement of the
"dissent" policy.
Following discovery, the district court granted summary
judgment against Brady, determining that he was barred from
2
Brady also alleged in the Amended Complaint that the
transfer, discharge and denial of benefits violated his
substantive due process rights because they were based on
arbitrary and capricious reasons. See Count I. Brady further
alleged that the discharge and denial of benefits violated his
procedural due process rights. See Count VII. We conclude that
Brady's due process claims must be dismissed in light of McKinney
v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert. denied, --
- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). In McKinney,
appellant McKinney was a state employee challenging his
termination rendered by a state administrative body. McKinney,
20 F.3d at 1554-55. He claimed that his substantive due process
rights were violated because he was terminated by a biased board.
Id. at 1562. Rejecting McKinney's claim, this court held that
substantive due process claims arising from non-legislative
violations of non-fundamental, state-created property rights
(such as employment rights) are no longer cognizable in this
circuit. Id. at 1560. Brady's substantive due process claim
similarly arises from defendants' alleged violation of his
state-created, non-fundamental property right in his employment.
Accordingly, like McKinney, Brady does not state a cognizable
substantive due process claim. See id. at 1561. Nor does he
state a cognizable procedural due process claim, as conceded by
his counsel. See id. at 1564. The Amended Complaint also
alleged several violations of state law which are irrelevant to
the present appeal.
relitigating factual issues the Board had considered. The court
did not address the challenges to Brady's transfer or the College's
"dissent" policy, but entered final judgment in favor of defendants
on all claims.
II. STANDARD OF REVIEW
Our review of Brady and Thornquest's first amendment claims
is de novo. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 609
(11th Cir.1991).
III. DISCUSSION
In § 1983 actions, federal courts must afford the same
preclusive effect to unreviewed state administrative agency
factfinding to which it would be entitled in the state's courts,
provided the state agency was "acting in a judicial capacity," and
"resolve[d] disputed issues of fact properly before it which the
parties ... had an adequate opportunity to litigate." University
of Tennessee v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 3226,
92 L.Ed.2d 635 (1986) (quotations & citations omitted); see also
Gjellum v. City of Birmingham, 829 F.2d 1056, 1070 (11th Cir.1987).
In this case, the Board could not have been "acting in a
judicial capacity" because it was acting as Brady's employer when
it discharged Brady.3 See Fla.Stat. § 240.319(3)(l )1 (providing
3
Unlike Brady's § 1983 substantive due process claim,
arising from a state-created, non-fundamental property right in
his employment which is not cognizable in this circuit, see
McKinney, 20 F.3d at 1560, his § 1983 retaliatory discharge claim
derives from a specific, fundamental constitutional provision.
As we have explained, "although a retaliatory discharge claim by
a state employee involves the denial of the state-created benefit
of employment, the right upon which a retaliatory government
employment decision infringes is the [fundamental] right to free
speech, not the right to a job." Beckwith v. City of Daytona
Beach Shores, 58 F.3d 1554, 1563 (11th Cir.1995). Accordingly,
that "board of trustees shall provide for the ... removal of
personnel") (emphasis added); Fla.Admin.Code Rule 6A-14.0411(6)
(providing that employee under continuing contract "may be ...
dismissed by the board upon recommendation of the president")
(emphasis added); Burney v. Polk Community College, 728 F.2d 1374,
1376 (11th Cir.1984) (recognizing employer-employee relationship
between board of trustees and tenured guidance counselor); see
also Perkins v. School Bd. of Pinellas County, 902 F.Supp. 1503,
1506 (M.D.Fla.1995) (recognizing employer-employee relationship
between county school board and teacher); Weaver v. School Bd. of
Leon County, 661 So.2d 333, 333 (Fla.Dist.Ct.App.1995) (same).
Moreover, the issue of whether Brady's actual discharge was in
retaliation for exercising his first amendment rights could not
have been "properly before" the Board, nor could the parties have
had "an adequate opportunity to litigate" this issue before the
Board, because it was the Board which in fact discharged Brady.
Thus, the issue of whether the Board's action to discharge Brady
was motivated by unconstitutional retaliation still remains to be
considered.
Unlike Brady's actual discharge which was accomplished by the
Board, his earlier transfer was ordered by the College. Any
findings of fact made by the Board relevant to Brady's transfer
claim must be afforded preclusive effect by the district court in
determining whether the College transferred Brady in retaliation
for his speech.
The district court must further consider Brady and
"McKinney has no impact on such claims." Id.Thornquest's challenges to the College's "dissent" policy, which
gave President King the authority to manage dissent and
demonstrations, including the authority to "delineate types of
acceptable and unacceptable dissent." In furtherance of that
policy, the College administration created what was known as a
"designated demonstration area" located in a corner of campus
removed from the King Performing Arts Center. While this policy
was in place, Brady, Thornquest and a dozen other protesters sought
to conduct a peaceful demonstration in front of the King Performing
Arts Center, rather than in the designated area, resulting in the
arrest of two demonstrators.
Brady and Thornquest claim that the policy was
unconstitutional on its face and as applied to them. According to
defendants, the propriety of summary judgment is demonstrated by
evidence that the College is not a public forum and the "dissent"
policy reasonably regulates the time, place and manner of
demonstrations. From the record before us, we cannot determine
that there is no genuine issue of material fact on relevant
questions such as whether the performance center is a public forum;
if it is a public forum, whether the regulations are narrowly drawn
to effectuate a compelling state interest; if it is not a public
forum, whether the regulations are reasonable; and whether Brady
and Thornquest have standing to challenge the policy. Thus, we
remand these claims for consideration by the district court.
IV. CONCLUSION
For the foregoing reasons, we reverse the judgment of the
district court as to Brady's first amendment claims that the
College transferred him and the Board discharged him in retaliation
for his speech; and as to Brady and Thornquest's claims against
the "dissent" policy. In all other respects we affirm the district
court's judgment in favor of defendants. Accordingly, we remand
the case for further proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part; and REMANDED.