Barrington v. Texas Southern Univ ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________________
No. 97-20405
____________________________
EUGENE L. BARRINGTON,
Plaintiff-Appellee,
versus
TEXAS SOUTHERN UNIVERSITY, ET AL.,
Defendants,
GEORGE YORKE,
Defendant-Appellant.
________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(95-CV-4574)
_________________________________________________________________
July 22, 1998
Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:1
For this interlocutory appeal concerning qualified immunity,
the linchpin is whether the following alleges the violation of a
clearly established constitutional right, the first prong of the
bifurcated test for qualified immunity: that a violation of an
asserted due process property interest in promotion to the position
of associate professor at a college occurs if, after the college
board approves such a promotion for an assistant professor, the
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
dean of that professor’s department intentionally misinforms him,
because of personal animus, that the promotion has instead been
denied, when the college board, not the dean, is the decision-maker
and the dean’s role is merely to relay the board’s decision to the
assistant professor.
The district court denied summary judgment for George Yorke on
qualified immunity grounds, Yorke having allegedly intentionally
misinformed Eugene Barrington, because of personal animus, about
his promotion to associate professor. In so doing, the district
court held, by implication, that the alleged intentional
misinformation about the promotion could be a violation of a
clearly established constitutional right — specifically, the denial
of Barrington’s due process property interest in the promotion to
the position of associate professor. Because Barrington failed
to make the requisite allegation of the violation of a clearly
established constitutional right, Yorke is entitled to qualified
immunity. Therefore, concerning the due process property interest
claim against Yorke, we REVERSE and RENDER.
I.
The factual background is viewed, of course, in the light most
favorable to Barrington. E.g., Abbott v. Equity Group, Inc., 2
F.3d 613, 618-19 (5th Cir. 1993). In 1977, he was hired by Texas
Southern University (TSU) as an assistant professor in its School
of Public Affairs, and was awarded tenure in 1984. Later that same
year, the School of Public Affairs became the Department of Public
2
Affairs, part of the School of Management. During the 1984-85
academic year, Yorke was serving as Dean of that School.
By letter of 28 February 1985, the Rank, Tenure, Salary, and
Promotion Committee of the Department of Public Affairs advised
Yorke that it recommended Barrington for promotion to associate
professor. Yorke opposed the recommendation but, pursuant to TSU
rules, forwarded it to the TSU Board of Regents (the Board).
On 18 April 1985, Barrington was advised by a letter from
Yorke that, “[o]n recommendation of the Administration, the
[Board], at its April 12, 1985 meeting, did not approve
[Barrington’s] application for promotion to the rank of Associate
Professor”. The letter also suggested that Yorke would meet with
Barrington on 9 May 1985 “to discuss the reasons why the
Administration did not recommend [his] application”.
But, Barrington never followed up on the suggested meeting
with Yorke; Barrington now maintains that the meeting “was not
possible nor relevant”. Barrington points to Yorke’s deposition
testimony, which indicates that Yorke may have been hospitalized at
some point during the Spring of 1985. Also, around this same time
period, the Department of Public Affairs was moved from the School
of Management to the School of Arts and Sciences; therefore, Yorke
no longer served as Dean of Barrington’s department.
More than eight years later, in October 1993, another TSU
professor advised Barrington that the minutes of the April 1985
Board meeting reflect that Barrington’s promotion to associate
professor had been approved.
3
Barrington filed this action in September 1995. He presented
claims against the TSU Board and ten individuals in their official
capacity, including the TSU President and Chairman of the TSU
Board, for prospective injunctive relief. Barrington sued Yorke in
his individual capacity, seeking injunctive relief and damages.
Barrington claimed: (1) that, violative of due process, all
defendants deprived him of a property and liberty interest; (2)
that all defendants violated his equal protection rights; and (3)
that, in addition, Yorke was liable under Texas law for intentional
infliction of emotional distress and mental anguish.
The defendants moved under Rule 12(b)(6) to dismiss. The
district court granted the motion in part, dismissing the due
process deprivation-of-liberty claim and the equal protection
claim. The court also dismissed two of the official capacity
defendants. But, the court denied Yorke’s qualified immunity
claim.
In the defendants’ subsequent motion for summary judgment,
Yorke again asserted qualified immunity. In his supporting
affidavit, he stated that his denial-of-promotion letter to
Barrington was the result of a hand-written notation Yorke received
in April 1985 from the TSU Vice-President of Academic Affairs,
Llayron Clarkson, indicating that the Board, during the April
meeting, had decided not to approve Barrington’s promotion. This
chain of events was in accordance with the TSU policy for
communications regarding promotions, which required that the Board
notify Clarkson, who then was to notify Yorke, who, in turn, was to
4
inform the applicant. Clarkson’s affidavit supported Yorke’s
assertions. (Clarkson’s affidavit states also that the designation
in the minutes that Barrington was promoted is the result of a
typographical error. Yorke, however, does not raise this
contention on appeal.)
As part of his opposition to summary judgment, Barrington
presented a certified copy of the minutes, showing that he was
promoted to associate professor. And, Barrington submitted the
affidavit of Winston Webster, a Board member on 12 April 1985,
stating that, “[b]y an unanimous vote, the TSU Board promoted
Eugene Barrington to the rank of Associate Professor on 4/12/85.
Such promotion is binding as TSU Board policy”. Barrington also
moved for summary judgment on liability.
The district court denied summary judgment for Barrington. As
for Yorke, the court granted him summary judgment against the
intentional infliction of emotional distress claim, but denied him
summary judgment on the remaining due process (property interest)
claim, concluding that he was not entitled to qualified immunity.
II.
Yorke filed this interlocutory appeal from the denial of
qualified immunity as to the due process claim. The sole issue
presented is whether he is entitled to that immunity.
A.
The denial of summary judgment as to a qualified immunity
claim is immediately appealable, even if certain fact issues exist,
when the ruling determines a question of law. E.g., Wren v. Towe,
5
130 F.3d 1154, 1157 (5th Cir. 1997) (“A district court’s denial of
summary judgment is not immune from interlocutory appeal simply
because the denial rested on the fact that a dispute over material
issues of fact exists.”) (citation omitted); Coleman v. Houston
Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir. 1997) (discussing
Behrens v. Pelletier, 516 U.S. 299 (1996)). In order to entertain
jurisdiction in this case, we must “take, as given, the facts that
the District Court assumed when it denied summary judgment”.
Coleman, 113 F.3d at 531 (internal quotation omitted).
Accordingly, we have jurisdiction to determine the following
question of law: whether, assuming as correct the facts relied upon
by the district court, Yorke is entitled to qualified immunity
against Barrington’s due process property interest claim.
B.
Of course, we review a summary judgment de novo, viewing the
evidence in the light most favorable to Barrington. Abbott, 2 F.3d
at 618-19. In so doing, we focus on “‘whether there is any
[evidence] upon which a jury could properly proceed to find a
verdict for the party producing it, upon whom the onus of proof is
imposed’”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251
(1986) (citation omitted). “The mere existence of a scintilla of
evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Id. at 252. In this regard,
for the denial of
summary judgment based on qualified immunity,
we review the evidence in the light most
6
favorable to the nonmovant, but the plaintiff
has the burden to come forward with summary
judgment evidence sufficient to create a
genuine fact issue as to whether the
defendant’s conduct was objectively reasonable
in light of clearly established law.
Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990).
Along this line, the bifurcated test for Yorke’s qualified
immunity defense to Barrington’s due process claim is more than
well-established: (1) whether, under currently applicable
constitutional standards, Barrington alleged the violation of a
clearly established constitutional right; and (2) if so, whether,
under the clearly established law at the time of the incident,
Yorke’s conduct was objectively unreasonable. E.g., Siegert v.
Gilley, 500 U.S. 226, 231 (1991); Hare v. City of Corinth, 135 F.3d
320, 325 (5th Cir. 1998); Rankin v. Klevenhagen, 5 F.3d 103, 105
(5th Cir. 1993).
Barrington’s claim under 42 U.S.C. § 1983 is for violation of
the Due Process Clause of the Fourteenth Amendment and the Fifth
Amendment. His first amended complaint states this claim, in
pertinent part, as follows:
The acts and omissions of Yorke violated
Barrington’s constitutional right of due
process.... The arbitrary and capricious
outrageous actions by Yorke are shocking to
the conscience....
....
Barrington will never be able to regain the
ten years lost because of Yorke’s intentional
wrongful act denying Barrington’s promotion.
In his second amended complaint, Barrington expanded on his
allegedly violated property interest:
7
By virtue of tenure granted to Barrington
by TSU in May 1984, Barrington had a property
interest in his job. In intentional violation
of the Fifth and Fourteenth Amendments to the
Constitution ..., Yorke acted arbitrarily and
capriciously under color of law and
proximately deprived Barrington of his
constitutional right of procedural and
substantive due process.... Yorke’s wanton
acts were oppressively done with malice.
And, in his summary judgment motion, Barrington claimed in
part:
Yorke intentionally, wrongfully and
outrageously advised Barrington on April 18,
1985, that the promotion was denied. ... Yorke
acted out of the long existing animus stemming
from Barrington’s insistence on following the
wishes of Barrington’s colleagues and refusing
in 1984 to decline to serve as Department
Chair as Yorke wanted.
Yorke’s motion for summary judgment on qualified immunity
grounds asserted that Barrington’s allegations did not constitute
a violation of a clearly established constitutional right. In
denying the motion, the district court stated:
Defendants assert that [Barrington]
fails to establish the violation of any
clearly established constitutional right. The
Court previously denied Defendants’ dismissal
motion on this issue, noting that [Barrington]
was entitled to pursue a claim for deprivation
of his due process rights, assuming that
[Barrington] could establish a property
interest in his alleged right to an associate
professor position in April of 1985.
Upon review of the evidence submitted,
the Court finds that a genuine issue exists as
to whether [Barrington] had a property right
to an associate professor position as a result
of the TSU Board meeting of April 12, 1985.
(Citation to record omitted; emphasis added.)
8
Thus, the district court held implicitly that a promotion to
associate professor is a clearly established constitutional right,
presumably as a property interest under the Due Process Clause;
but, that a fact issue remains whether Barrington possessed such a
right and whether that right was violated. The district court did
not cite any authority in assuming or holding, by implication, that
the alleged intentional misinformation by Yorke regarding the
promotion could constitute the violation of a clearly established
constitutional right.
But, our court has cautioned against such an approach for
ruling on qualified immunity claims.
It is a common failing in qualified
immunity decisions that courts avoid deciding
exactly what constitutional violation might
have occurred if the facts are as a plaintiff
alleged. We have previously required a
plaintiff to allege the facts underlying his
claimed violation of constitutional rights
with sufficient specificity to demonstrate
that defendants’ qualified immunity should be
revoked. ... [T]he court must be able to
characterize the plaintiff’s claim precisely
as a matter of constitutional law before
ruling upon an immunity defense. It is not
enough that the court concludes that a
violation arguably occurred. Rather, the
court must be certain that if the facts
alleged by plaintiff are true, notwithstanding
any credibility disputes with defendants, then
a violation has clearly occurred. The purpose
of requiring careful characterization of
plaintiff’s claim at the outset of a qualified
immunity analysis is to effectuate the goal of
that defense, which is immunity from suit, not
just from trial.
Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1212 (5th
Cir. 1989) (citation omitted) (emphasis in original); Hare, 135
F.3d at 325-26.
9
The holding in Connelly, grounded in Supreme Court precedent
such as Anderson v. Creighton, 483 U.S. 635, 639-40 (1987), was
reemphasized by the Supreme Court in Siegert, 500 U.S. at 231,
which held it improper to assume, without deciding, the preliminary
issue of whether the plaintiff alleged the violation of a clearly
established constitutional right.
A necessary concomitant to the determination
of whether the constitutional right asserted
by a plaintiff is “clearly established” at the
time the defendant acted is the determination
of whether the plaintiff has asserted a
violation of a constitutional right at all.
Decision of this purely legal question permits
courts expeditiously to weed out suits which
fail the test without requiring a defendant
who rightly claims qualified immunity to
engage in expensive and time consuming
preparation to defend the suit on its merits.
One of the purposes of immunity, absolute or
qualified, is to spare a defendant not only
unwarranted liability, but unwarranted demands
customarily imposed upon those defending a
long drawn out lawsuit.
Id. at 232 (emphasis added).
Accordingly, the first prong of our qualified immunity test —
whether Barrington alleged the violation of a clearly established
constitutional right — should be determined as a question of law.
See also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); White v.
Taylor, 959 F.2d 539, 544 (5th Cir. 1992). Barrington’s due
process allegation raises two questions relevant to our analysis
under this first prong: (1) whether he alleged the possession of a
clearly established property right; and (2) if so, whether he
alleged that Yorke violated that right.
10
1.
First, Barrington contends that the district court found a
genuine issue of material fact as to whether he established a
property interest in his promotion to associate professor, and
that, therefore, we do not have jurisdiction to review it in this
interlocutory appeal. See Baulch v. Johns, 70 F.3d 813, 815 (5th
Cir. 1995). On the other hand, as we stated in Connelly, in which
the district court likewise found that the plaintiff “arguably” had
a constitutionally protected property interest,
with respect to the immunity defense, the
court seems to have assumed that the existence
of an “arguable” right to property ...
triggered due process protections.... Due
process analysis requires first a finding of a
property or liberty interest and then an
assessment of what process must attend a
particular deprivation. We must disagree with
the court’s implicit assumption that the
existence of an “arguable” property or liberty
interest may thwart an immunity defense.
876 F.2d at 1212.
But, we do not reach this property-right issue because, as
noted by Barrington, Yorke does not specifically contest on appeal
that Barrington has a property interest in his promotion by TSU to
associate professor. Yorke’s failure to do so is somewhat
perplexing, given that he raised it in district court and that the
district court, in denying his motion for Rule 12(b)(6) dismissal,
invited him “to urge this issue on summary judgment”, at which time
Barrington “will have the burden of establishing a genuine issue of
material fact as to the existence of a property interest”.
11
In any event, Yorke’s assertion on appeal that Barrington
failed to allege that Yorke violated any federal right, discussed
infra, could be viewed to contest Barrington’s property interest in
the promotion. But, it is incumbent upon the appellant to
explicitly state the issues on appeal. See FED. R. APP. P.
28(a)(6). Because Yorke has not adequately raised the issue of
whether there is a clearly established property right in the
promotion, we will not address it. See Hileman v. City of Dallas,
115 F.3d 352, 355 (5th Cir. 1997) (citing Cavallini v. State Farm
Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995)).
2.
The other subpart for the first prong of the qualified
immunity test is whether Barrington alleged that Yorke violated
this putative clearly established constitutional right. Yorke
sufficiently raises this issue on appeal, contending that
Barrington failed to allege that Yorke violated any constitutional
right. Yorke contends that Barrington alleged only that Yorke
falsely informed Barrington that his promotion was denied; which,
Yorke maintains, is not a violation of a constitutional right.
“Property interests, of course, are not created by the
Constitution. Rather they are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source, such as state law....” See Board of Regents of
State Colleges v. Roth, 408 U.S. 564, 576 (1972). The Court has
found due process property interests violated when, without a fair
hearing, public college professors are dismissed from contractual
12
or tenured employment or even after only being promised continuing
employment. Connell v. Higginbotham, 403 U.S. 207, 208 (1971);
Slochower v. Board of Higher Ed., 350 U.S. 551 (1956); Wieman v.
Updegraff, 344 U.S. 183 (1952).
But, this appeal presents a situation different from these
well-established violations of due process property interests.
Barrington does not allege that Yorke somehow rescinded the
promotion or made it invalid. In fact, quite the opposite is true:
Barrington consistently urges that the promotion was valid, and
that Yorke was completely without power or authority to rescind it.
Barrington cites little authority for the proposition that
intentionally and falsely stating that a promotion was denied
violates clearly established constitutional law. Roth, 408 U.S. at
576-78, which was cited by the district court in its denial of
Yorke’s motion to dismiss, held that a nontenured, state university
professor, who was not rehired at the end of his contractual
employment period, absent any university rules or policies, did not
have a constitutionally-protected property interest in reemployment
requiring a hearing on the decision not to rehire.
Barrington cites also Ferguson v. Thomas, 430 F.2d 852 (5th
Cir. 1970), in which our court held that a nontenured college
instructor, whose employment contract was not renewed, was not
entitled to a rehearing before the college board to present
witnesses who would only enhance the board’s decision to terminate
his employment. Finally, Barrington cites Perry v. Sindermann, 408
U.S. 593 (1972), which held that a state junior college professor,
13
whose employment contract was not renewed, was entitled to
procedural due process if he had tenure under the junior college’s
de facto tenure program.
Needless to say, the above cases concern the procedural due
process involved when employment is terminated. Barrington does
not explain their applicability, instead string-citing to Forsyth
v. City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996) (violation of
property right when individuals transferred to less desirable job
in retaliation for exercise of First Amendment rights); Fyfe v.
Curlee, 902 F.2d 401, 404 (5th Cir.) (transfer of teacher to less
desirable job in retaliation for placing her child in all-white
school violated First and Fourteenth Amendments), cert. denied, 408
U.S. 940 (1990); Bickel v. Burkhart, 632 F.2d 1251 (5th Cir. 1980)
(fireman must be made whole because denial of his promotion was in
retaliation for exercise of protected speech); and Click v.
Copeland, 970 F.2d 106 (5th Cir. 1992) (property interest violated
when sheriff’s deputy transferred to less desirable job in
retaliation for conduct protected by First Amendment). Apparently,
these cases are cited as analogous support for the proposition that
misinforming an individual about a promotion, because of personal
animus, is a violation of a clearly established due process
property right in the position.
We are far from persuaded by this analogy. Obviously, there
is a meaningful difference between the instant case and one in
which a defendant affirmatively exercises vested authority to
terminate a plaintiff’s employment position, replacing it with a
14
less desirable position, in response to the plaintiff’s
constitutionally protected actions. Barrington has alleged only
that Yorke, out of personal animus, misinformed him about his
promotion, which had been approved by the Board. The sole act of
writing a letter of misinformation about the promotion, which also
asked Barrington to meet with Yorke on 9 May 1985 “to discuss the
reasons why the Administration did not recommend [his]
application”, had no effect on the promotion qua promotion to
associate professor (the putative clearly established property
interest). Moreover, despite the invitation to meet with Yorke,
Barrington never inquired into the notice of his promotion-denial.
Accordingly, we find no support for Barrington’s allegation
that Yorke violated the putative due process right to his property
interest in a promotion to associate professor. Again, Yorke did
not, and indeed could not, rescind this putative property interest;
merely sending a letter that misinformed Barrington, out of
personal animus, about the status of the promotion did not rescind,
and hence did not violate, any property interest. See Siegert, 500
U.S. at 232-35 (holding that, although plaintiff’s allegation “may
be recoverable under State tort law”, it does not constitute the
violation of a constitutional right); Paul v. Davis, 424 U.S. 693,
712 (1976) (finding no due process violation and noting that “the
State may protect against [plaintiff’s alleged] injury by virtue of
its tort law....”).2
2
Along this line, Barrington had the opportunity to state
his claims in district court. His tort-claim against Yorke for
intentional infliction of emotional distress was dismissed on the
15
In short, because Barrington has not alleged the violation by
Yorke of a clearly established constitutional right, our qualified
immunity analysis need proceed no further. E.g., Baker v. Putnal,
75 F.3d 190, 198 (5th Cir. 1996); see also Connelly, 876 F.2d at
1212 (“A conclusion that the facts alleged by [plaintiff] could not
establish a violation of law or constitutional right will also
require judgment in the defendant[’s] favor.”).
III.
With respect to Yorke’s qualified immunity defense, and for
the foregoing reasons, we REVERSE the denial of summary judgment
against Barrington’s due process property interest claim, and
RENDER judgment for Yorke on that claim. This case is REMANDED for
further proceedings consistent with this opinion.
REVERSED and RENDERED and REMANDED
merits by the district court by summary judgment. Of course, that
decision is not a subject for this qualified immunity,
interlocutory appeal.
16
DENNIS, Circuit Judge, specially concurring:
I do not believe that this case presents any dispute as to a
material issue of fact. On the summary judgment evidence
presented, a reasonable trier of fact must conclude that the TSU
Board either did not grant Barrington an associate professorship at
all or that it tentatively voted to do so but either intentionally
or negligently failed to implement its initial vote. Under each of
these scenarios, no reasonable trier of fact could find that
Barrington ever received a property interest in an associate
professorship from the Board. Consequently, Barrington has not
stated a claim that his constitutional right safeguarding his
protected property interests was violated.
17
BENAVIDES, Circuit Judge, specially concurring:
I concur in the result reached by Judges Barksdale and Dennis in their separate opinions. We
have jurisdiction over this appeal and Yo rke is entitled to qualified immunity. I write separately,
however, to explain why I believe these conclusions are correct.
Yorke appeals from the district court’s order denying his motion for summary judgment on
the basis of qualified immunity. The district court found that a “genuine issue [of material fact] exists
as to whether [Barrington] had a property right to an associate professor position as a result of the
TSU Board meeting of April 12, 1985.” Accordingly, we have jurisdiction to consider whether the
existence of this property right is material to a determination of Yorke’s entitlement to qualified
immunity.
Whether Barrington has a property interest in his position as an associate professor as well
as his increased salary is immaterial to a finding of qualified immunity in this case Insofar as
Barrington’s complaint states a claim for the violation of his substantive due process right to be free
from the arbitrary deprivation of his employment-related property interests, Yorke is entitled to
qualified immunity on this claim because this right was not clearly established on April 18, 1985. The
Fifth Circuit did not recognize a substantive due process right to be free from arbitrary deprivations
of state-employment-related property interests until 1987. See Honore v. Douglas, 833 F.2d 565,
568-69 (5th Cir. 1987). Further, the aut hority cited by the panel in Honore had not clearly
established this right before April 18, 1985. Thus, the decisions of this circuit do not indicate that
Yorke should have known that his conduct violated Barrington’s substantive due process, as opposed
to state-law, rights. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Barrington also contends that Yorke violated his rights to procedural due process. In the
context of public higher education, procedural due process requires onl y that a professor not be
deprived of a property interest without notice and an opportunity to respond. Williams v. Texas Tech
Univ., 6 F.3d 290, 293 (5th Cir. 1993); Honore, 833 F.2d at 568. Yorke’s letter to Barrington met
these requirements because it provided Barrington with notice of the deprivation by informing him
18
that he had been denied the desired promotion and provided him with an opportunity to respond by
inviting Barrington to meet with Yorke on May 9th “to discuss the reasons why the Administration
did not recommend his application.” Barrington, however, chose not to avail himself of this
opportunity for an informal hearing. Even if Yorke was not available at the appo inted time, the
Mathews v. Eldridge balancing test clearly indicates that Barrington should have sought a meeting
with someone other than Yorke who could have also explained why he was denied the promotion.3
Barrington, however, abandoned the process that was available to him. Thus, Yorke is entitled to
qualified immunity on Barrington’s procedural due process claims because he has not stated a claim
for the violation of his constitutional rights.
For the foregoing reasons, I concur in the judgment.
3
In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court stated that the
determination of how much process a property interest deserves is based on a balancing of three
factors: 1) the significance of the individual’s property interest; 2) “the risk of an erroneous
deprivation of such interest through the procedures used;” and 3) “the Government’s interest,
including the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” Id. at 335.
19