Thornquest v. King ( 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.
Aug. 17, 1995.
Appeal from the United States District Court for the Middle
District of Florida. (No. 92-709-Civ-Orl-18), G. Kendall Sharp,
Judge.
Before BLACK and BARKETT, Circuit Judges, and RONEY, Senior Circuit
Judge.
BARKETT, Circuit Judge:
Professors Marion Brady, Thomas Ward and Alan Thornquest
appeal from summary judgments entered in favor of Brevard Community
College administrators, College President Maxwell King, and the
individuals comprising the College Board of Trustees (collectively
"defendants").1 The professors claimed that defendants fired them
to retaliate for their union activity and criticism of the
administration in violation of their federal and state rights to
free expression, petition, assembly and due process; and that the
College's policy on "dissent" violated their first amendment
1
The administrative employees were Robert Lawton, Tace
Crouse, Everett Whitehead and Stevan McCrory; the Trustees were
Patrick Healy, John Jones, Rachel Moehle, Bernard Simpkins and
Frank Williams.
rights; in addition, Brady claimed that the Board of Trustees
deprived him of federal and state procedural due process.
Upon review, we conclude that the district court correctly
found insufficient admissible evidence of unlawful motivation to
support Ward's and Thornquest's unlawful discharge claims and
affirm as to those claims without further discussion. See 11th
Cir.Rule 36-1. However, for the reasons discussed below, we
reverse the judgment as to Brady's claims and as to the challenge
to the dissent policy.
BACKGROUND
Marion Brady began teaching at the College as a sociology
professor in 1976. Between 1988 and 1992, he was a vocal critic of
the College administration and Board. In letters to the editor,
public officials and the Board, Brady criticized the administration
for, among other things, its expenditure of funds to build the King
Performing Arts Center, its emphasis on public relations at the
expense of education, and its budget process. He criticized the
Board for, among other things, its inaction on his complaints of
improprieties.
In 1992, the administration notified Brady that he would be
transferred away from the main campus. President King then filed
a petition with the Board for Brady's dismissal, pursuant to Rule
6A-14.0411(6), Florida Administrative Code, alleging that he was
guilty of misconduct, gross insubordination and willful neglect of
duty.2 Brady responded that the petition was filed to retaliate
2
The allegations against Brady included his failures to
attend meetings with his dean, prepare proper course syllabi, and
observe required office hours; his improper use of class time to
against him for exercising his federal and state rights to petition
and engage in union activity, free speech, assembly and work.
Believing the Board to be biased against him, Brady requested
that the Board permit the petition to be heard by a Hearing Officer
of the Florida Division of Administrative Hearings; the Board
denied his request. Brady (along with Ward and Thornquest) then
filed a lawsuit in state court, asserting claims, under both state
law and 42 U.S.C. § 1983, that his transfer and impending discharge
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 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 public
hearing at which Brady was represented by counsel. The three
Trustees who had not recused themselves sustained the petition's
allegations of misconduct and gross insubordination, rejected
Brady's charges of unconstitutional retaliation, and discharged
Brady. The Board also voted to deny Brady accumulated sick leave.
Brady did not appeal the Board's decision in state court.
Meanwhile, defendants removed Brady's pending state suit to
criticize the administration; his recommendation that the entire
administration be replaced in response to an official request for
suggestions; and his refusal to observe the established chain of
administrative authority in presenting job-related complaints.
federal district court. As amended, the section 1983 suit made the
following claims: that defendants, in transferring and discharging
Brady, as well as denying him accumulated sick leave, violated his
federal and state constitutional rights to free speech, petition,
assembly and due process; that the College's policy on "dissent"
was unconstitutional; and that the Board deprived Brady of
procedural due process because it failed to give him notice and an
opportunity to be heard on the recommended denial of his sick
leave, and because the Board and its legal adviser were biased
against him due to the fact that they were defending against his
section 1983 lawsuit. The lawsuit requested damages, a declaration
that defendants had violated Brady's rights, 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 principles of res judicata
precluded federal review of all his claims because the Board
already had considered them. The court did not address the
challenge to the College's policy on "dissent," but entered final
judgment in favor of defendants on all claims.
DISCUSSION
We review de novo the trial court's determination that it was
precluded by the Board's action from considering Brady's claims and
its failure to address the challenge to the dissent policy. See
Clark v. Coats & Clark, Inc., 929 F.2d 604, 609 (11th Cir.1991).
Preclusion of Brady's Claims
In section 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).
Thus, before a federal court may look to state law to determine if
agency factfinding is entitled to preclusive effect, the court must
determine (1) that the agency was performing a judicial function;
(2) that the parties had an adequate opportunity to litigate the
issues; and (3) that the issues were properly before the agency.
Brady argues that the district court erred in finding his
claims precluded by the Board's review for three reasons. First,
he argues that his appearance before the Board did not constitute
an adequate and fair opportunity to be heard because the Trustees
were biased against him and had prejudged the case. Thus, the
Board's review cannot be given any preclusive effect whatsoever.
Second, Brady asserts that only administrative factfinding is
entitled to preclusive effect. Therefore, the district court was
not precluded from reviewing the Board's legal conclusions as to
his constitutional claims. Finally, Brady contends that the Board
proceedings cannot preclude his claims against the Board itself
because the actions underlying these claims, to wit, his actual
termination and the Board proceedings, were not complete at the
time of the hearing and thus were not "before" the Board. Brady
also contends that due process concerns prohibit the Board from
resolving his claims against the Board for its own wrongdoing.3
Bias on the Part of the Board
Before a federal court may look to state law to determine if
agency factfinding is entitled to preclusive effect, the court must
determine, among other things, that the parties had an "adequate
opportunity" to litigate the issues before the administrative
agency. Elliott, 478 U.S. at 799, 106 S.Ct. at 3226. An adequate
opportunity means a "full and fair opportunity," Kremer v. Chemical
Constr. Corp., 456 U.S. 461, 480-81, 102 S.Ct. 1883, 1896-98, 72
L.Ed.2d 262 (1982) (quotation omitted). An administrative hearing
cannot be deemed fair if there was "actual bias" on the part of the
administrative decisionmaker. Burney v. Polk Community College,
728 F.2d 1374, 1378 n. 11 (11th Cir.1984); see Hall v. Marion
School Dist. No. 2, 31 F.3d 183, 191 (4th Cir.1994).
Thus, when an adequate claim alleging a biased factfinder or
decisionmaker has been made, the district court must determine
whether bias existed on the part of the factfinder or decisionmaker
before any preclusive effect can be accorded. See id. Obviously,
3
We initially reject defendants' arguments that Brady waived
his claims by failing to appeal the Board's decision in state
court and by appearing before the Board. First, a section 1983
claim cannot be barred by a plaintiff's failure to exhaust state
remedies with respect to an unreviewed administrative action.
See Patsy v. Board of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557,
2568, 73 L.Ed.2d 172 (1982); Gjellum, 829 F.2d at 1070. Second,
Brady alleged bias and took legal action to avoid appearing
before the Board from the outset, and had he not appeared, the
Board could have considered the petition in his absence. The
record contains no suggestion of the "sandbagging" found in
Duffield v. Charleston Area Med. Cent., Inc., 503 F.2d 512, 515
(4th Cir.1974), cited by defendants, where plaintiff alleged bias
only after losing at the administrative level.
if the tribunal is found to have been biased, the person appearing
before it would not have had an adequate opportunity to be heard
and the tribunal's findings would be entitled to no preclusive
effect at all. As the Supreme Court has explained, "even when
issues have been raised, argued, and decided in a prior proceeding,
and are therefore preclusive under state law, redetermination of
the issues may nevertheless be warranted if there is reason to
doubt the quality, extensiveness, or fairness of procedures
followed in prior litigation." Haring v. Prosise, 462 U.S. 306,
317-18, 103 S.Ct. 2368, 2375-76, 76 L.Ed.2d 595 (1983) (quotation
& citation omitted).
We find that Brady presented an adequate claim of bias to the
district court, as the record on summary judgment contained
numerous allegations from which a court could find actual bias on
the part of the three Trustees who heard the discharge
petition—Simpkins, Moehle and Healy. This evidence, in summary,
reflects the following: that Brady had publicly criticized not
only President King and the administration, but the Board itself at
times when one or all of the three Trustees were serving;4 that
President King had excoriated Brady before the Board on more than
4
For example, in response to a Board request for specific
incidents of faculty harassment and intimidation, Brady submitted
a letter listing 22 instances in which he felt he had been
harassed, "to suggest the possibility that a pattern exists."
The letter criticized the Trustees for their inaction on past
allegations of administrative misconduct and for threats and
harassment he had received for past attempts to bring misconduct
to the Board's attention. The letter also declared that he had
received information concerning improper conduct by the College
administration, but that he had not informed the Board because of
the harassment that had resulted from his past criticism.
one occasion;5 that several Board members, including Simpkins and
Healy, had criticized Brady during Board meetings;6 that the Board
was considering discharging Brady even before President King filed
the petition for his dismissal;7 and that Brady's lawsuit against
President King, the administration and the Board was pending during
the hearing. See Burney, 728 F.2d at 1378 n. 11 (noting
materiality of evidence showing Board in "adversarial posture" to
plaintiff); see also Hall, 31 F.3d at 191-92.
Accordingly, we reverse and remand for a resolution of the
bias issue by the district court. If the court finds that the
Board was biased against Brady, the Board's actions are not
entitled to any preclusive effect.
5
At a Board meeting attended by Trustees Moehle, Simpkins
and Healy, President King expressed outrage at Brady's letter to
the Board. Labelling Brady's charges of mismanagement as
"innuendoes," "wild allegations," and "lie[s]," King complained
that the criticism came at a time "when we're working so hard to
have a positive image ... in the legislature." Explaining that
he wanted to "use this board meeting" to present various
administrators to refute Brady's charges, King expressed hope
that the Trustees "already know in their own mind[s]" that
Brady's criticisms were unfounded; if so, he said, "[t]hen the
administration's job has been done."
6
Addressing Brady's critical letter to President King,
Moehle declared that "something needs to be done to put a stop"
to Brady's complaints; and Simpkins, referring to Brady's
absence, stated that "that speaks for itself, the fact that he's
not here."
7
During a Board meeting, in response to King's repudiation
of Brady's charges, the Board's attorney, Joe Matheny, cautioned
Board members that they would be "prejudice[d] legally" and could
not adjudicate a discharge case against Brady if King had
convinced them that Brady's charges were false. In response to
one Trustee's query about whether Brady could be dismissed or
sued, Matheny advised the Trustees and King that Brady's letter
was not a "sufficient basis to dismiss a disruptive faculty
member." Matheny also said it would not be "proper for this
board to take it upon itself to terminate anybody, except based
on the recommendation of the college president."
Scope of Preclusion
If the trial court determines that the claim of bias is
unfounded, it must then review Brady's claims, affording whatever
preclusive effect Florida courts would afford to the Board's
factfinding. In Elliott, the Supreme Court held that "[w]hen a
state agency acting in a judicial capacity ... resolves disputed
issues of fact properly before it which the parties have had an
adequate opportunity to litigate, federal courts must give the
agency's factfinding the same preclusive effect to which it would
be entitled in the State's courts." Elliott, 478 U.S. at 799, 106
S.Ct. at 3226. (emphasis added). In Gjellum v. City of
Birmingham, 829 F.2d 1056 (11th Cir.1987), this court made clear
that under Elliott, only factual issues, not legal issues, may be
precluded from relitigation by a prior administrative decision.
See Gjellum, 829 F.2d at 1068 (emphasizing that "Elliott carefully
limited its holding to state agency factfinding ") (emphasis in
original).
The Board's consideration of the petition to dismiss Brady
involved both matters of fact and matters of law. For example, the
Board's determination of whether Brady was guilty of misconduct,
gross insubordination and willful neglect of duty "as alleged in
the petition," required factual determinations of the veracity of
the allegations, e.g., whether Brady criticized the administration
during class time, whether he suggested that the administration be
replaced, and whether he refused to abide by the chain of command
in presenting job-related complaints.
Additional inquiries by the Board, however, necessarily
implicated matters of law. For example, the Board's determination
of whether the petition was filed to retaliate against Brady for
publicly criticizing President King, the administration and the
Board required the Board to make two legal determinations: first,
whether Brady's speech "address[ed] a matter of public concern";
and if so, whether "the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through
its employees," outweighed Brady's interest, "as a citizen, in
commenting upon matters of public concern." Rankin v. McPherson,
483 U.S. 378, 384, 107 S.Ct. 2891, 2896-97, 97 L.Ed.2d 315 (1987)
(quotation & citation omitted); Kurtz v. Vickrey, 855 F.2d 723,
726 (11th Cir.1988).8
Although the Board may appear to have found as a factual
matter that the petition was not filed for an improper purpose, in
doing so the Board necessarily resolved, at least implicitly, the
critical legal issue of the nature and extent of the first
amendment protection due Brady's public criticism. Cf. Edmundson
v. Borough of Kennett Square, 4 F.3d 186, 191-93 (3d Cir.1993)
(finding that agency necessarily resolved this legal issue in
finding that plaintiff was not suspended in retaliation for
exercising first amendment rights). Although the Board may have
8
We remind the district court that first amendment
retaliatory discharge cases are generally analyzed under the
following four-part test: (1) whether the employee's speech
involved a matter of public concern; (2) whether the employee's
interest in the speech outweighed the government's legitimate
interest in promoting efficient public service; (3) whether the
speech played a substantial part in the challenged employment
decision; and (4) whether the employer would have made the same
employment decision regardless of the protected speech. Tindal
v. Montgomery County Comm'n, 32 F.3d 1535, 1539-40 (11th
Cir.1994).
believed that Brady's speech was unprotected because it was
insubordinate or harmful to the College, or because Brady had
bypassed the chain of command, such a determination involved
precisely the balancing process that "is a question of law for the
court, not a question of fact for resolution by a fact finder,"
Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir.), cert. denied, 484
U.S. 830, 108 S.Ct. 102, 98 L.Ed.2d 62 (1987).
It was the responsibility of the district court, not the
Board, to resolve the legal question of whether Brady's discharge
violated his rights. As the Third Circuit has observed,
We see a profound difference in the ability of a
Commission composed of lay citizens to resolve matters of
credibility and fact—e.g., whether plaintiff actually made the
statements in the circumstances alleged despite his
denials—and the ability to determine the more complex question
of whether the statements are constitutionally protected in
accordance with the considerations articulated in [Supreme
Court caselaw].... The Commission simply does not have the
background or experience to finally decide issues that give
pause even to federal courts despite their familiarity with
that area of the law.
Edmundson, 4 F.3d at 192-93 (citations omitted).
The district court erred by finding Brady's constitutional
claims wholly precluded. On remand, if the court finds that
Brady's bias argument fails, it may then accord the Board's
factfinding the same preclusive effect to which it would be
entitled in Florida courts, except as discussed below.
Claims Against the Board Itself
Finally, intertwined with the question of bias is whether the
Board's actions are entitled to any preclusive effect as to Brady's
claims against the Board itself. Brady argues that these claims
could not have been "before" the Board during its consideration of
the petition as required by Elliott because the actions underlying
the claims—his actual firing and the Board's proceedings—were not
complete at the time of the hearing. In addition, Brady contends
that due process concerns prohibit the Board from resolving any
questions of the constitutionality of its own actions.9
We find that even if Brady's claims against the Board were
"before" the Board as required by Elliott, the Board would be
patently unable to render a binding judgment on a claim against
itself, as "no man can be a judge in his own case," In re
Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942(1955). Thus, the Board proceedings do not preclude any aspect of
Brady's claims against the Board for the Board's alleged
wrongdoing, and the district court therefore must resolve even the
factual issues underlying these claims.10
DISSENT POLICY
Finally, we consider the court's failure to address the
challenge to the College's policy on dissent. The challenged
policy gave President King authority to manage dissent and
demonstrations, including the authority to "delineate types of
acceptable and unacceptable dissent." In furtherance of that
9
These allegations in large part are the same as the
allegations of bias.
10
Although not argued by the defendants, we note that
Brady's procedural due process claim appears to be barred by
McKinney v. Pate, 20 F.3d 1550, 1563 (11th Cir.1994) (en banc),
cert. denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783(1995) (stating that "even if McKinney suffered a procedural
deprivation at the hands of a biased Board at his termination
hearing, he has not suffered a violation of his procedural due
process rights unless and until the State of Florida refuses to
make available a means to remedy the deprivation") (emphasis in
original).
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. When this policy was
in place, Brady, Thornquest and a dozen other protesters sought to
conduct a peaceful demonstration in front of the Performing Arts
Center, rather than in the designated area, which resulted in the
arrest of two of the demonstrators.
In the amended complaint, the professors claimed that the
policy was unconstitutional on its face and as applied to them.
Although the district court did not address these claims in its
summary judgment order, it dismissed them upon entry of the final
judgment. On appeal, the professors argue that remand is necessary
due to the existence of genuine issues of material fact regarding
the constitutionality of the policy. The defendants respond that
remand is unnecessary because the record clearly indicates that
summary judgment was appropriate. According to defendants, the
propriety of summary judgment is demonstrated by evidence that the
College is not a public forum and that 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; and if it is not a public
forum, whether the regulations are reasonable. Thus, we remand to
the district court for consideration of the claims against the
dissent policy.
CONCLUSION
For the foregoing reasons, we affirm the district court's
judgment as to Ward's and Thornquest's unlawful discharge claims;
reverse the judgment as to Brady's claims and the claims against
the dissent policy; and remand for further proceedings consistent
with this opinion.
AFFIRMED in part; REVERSED in part; and REMANDED.
BLACK, Circuit Judge, concurring in part and dissenting in
part:
I agree with the majority's decision to remand this case as to
Brady's as-applied first amendment claim with respect to his
discharge and as to Appellants' facial first amendment claim with
respect to the dissent policy. I respectfully disagree, however,
with the majority's decision to entertain Brady's claim that his
procedural due process rights were violated because the individual
Trustees and the Board were biased against him.
It is undisputed that Brady failed to appeal the Board's
decision in state court. His procedural due process claim is
therefore squarely barred, as a matter of law, by this court's en
banc holding in 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).1 In that case, Appellant Millard McKinney was also a state
1
Although the majority opinion briefly addresses McKinney in
footnote 10 as an issue to be considered on remand, the issue
should be disposed of by this court. First, the fact that the
plaintiffs did not discuss McKinney in their briefs does not
vitiate this court's ability to base its holding on that case.
See Ford v. United States, 989 F.2d 450, 453 (11th Cir.1993)
(stating that "[w]e have the discretion to consider a new theory
if the issue is a pure question of law and the court's failure to
consider it would result in a miscarriage of justice"). Second,
employee challenging his termination, which was rendered by a state
administrative body. Id. at 1554-1555. Like Brady, McKinney's
procedural due process claim was not that he did not receive a
hearing, but that the hearing was before a biased decision maker.
Id. at 1562. Like Brady, McKinney did not appeal his termination
in the state court system, but instead filed a § 1983 suit. Id. at
1555.
The court held that McKinney did not state a procedural due
process claim because "due process is satisfied when the challenger
has an opportunity to present his allegations and to demonstrate
the alleged bias." Id. at 1562. The court reasoned that "even if
McKinney suffered a procedural deprivation at the hands of a biased
Board at his termination hearing, he has not suffered a violation
of his procedural due process rights unless and until the State of
Florida refuses to make available a means to remedy the
deprivation." Id. at 1563 (emphasis in original). Addressing
whether McKinney had remedies available, the court concluded that
"[e]ven if McKinney's bias allegations are true, the presence of a
satisfactory state remedy mandates that we find that no procedural
due process violation occurred." Id. at 1564.
Thus, pursuant to the holding of McKinney, even if Brady's
allegations of bias are true, he has not suffered a procedural due
process violation because state court remedies were available to
our constitutional inquiry in procedural due process questions
focuses on the state's ability to provide either pre- or
post-deprivation process. See Parratt v. Taylor, 451 U.S. 527,
538, 101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981). Such an
inquiry can be answered as a matter of law by an appellate court.
See Hudson v. Palmer, 468 U.S. 517, 533-537, 104 S.Ct. 3194,
3204-3205, 82 L.Ed.2d 393 (1984).
him after the Board rendered its decision. To clarify this point,
I agree with the majority's statement at footnote 3 that a § 1983
claim cannot be barred by a plaintiff's failure to exhaust state
remedies with respect to an unreviewed administrative action. It
should be noted, however, that neither this dissent nor the holding
in McKinney intends to create an exhaustion requirement. Instead,
these holdings go directly to the existence of a constitutional
violation in the first instance. See id. at 1564 n. 20. Brady,
like McKinney, had a state remedy to challenge the Board's
deprivation of his property rights. He simply does not have a
procedural due process claim unless and until the Florida courts
fail to provide him with that remedy.
For these reasons, I respectfully dissent from the majority's
decision to remand the case to determine whether Brady's procedural
due process rights were violated.