Joyce E. Holtzman v. Thomas P. Mullon ( 1996 )

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No. 95-3677
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Joyce E. Holtzman, *
*
Appellant, *
*
v. *
*
Thomas P. Mullon, as Director * Appeal from the United States
of Veterans Medical Center; * District Court for the
Gene D. Mickelson, as EEO * District of Minnesota
Counselor; The Regents of the *
University of Minnesota; Jesse * [UNPUBLISHED]
Brown, as Secretary of Veterans *
Affairs, *
*
Appellees. *
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Submitted: October 25, 1996
Filed: November 15, 1996
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Before McMILLIAN, FAGG and BEAM, Circuit Judges.
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PER CURIAM.
Joyce E. Holtzman appeals from a final order entered in the District
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Court for the District of Minnesota granting summary judgment in favor of
the University of Minnesota (hereinafter the university) and several
federal defendants in her employment discrimination and civil rights
action. Holtzman v. Mullon, No. Civil 4-92-597 (D. Minn. Sept. 5, 1995)
(granting summary judgment in favor of the university and federal
defendants); id. (Mar. 22, 1994) (dismissing state civil rights claim
against the university and denying petition for writ of mandamus). For
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The Honorable David S. Doty, United States District Judge for
the District of Minnesota.
reversal appellant argues the district court erred in (1) dismissing her
federal and state civil rights claims against the university on the ground
of eleventh amendment immunity, (2) dismissing her employment
discrimination claims against the university because the university was not
her employer, (3) granting summary judgment in favor of the federal
defendants because she did not have a protected property or liberty
interest and failed to make a prima facie case of unlawful employment
discrimination on the basis of sex and marital status, and (4) denying her
motion for partial summary judgment and petition for writ of mandamus
against federal defendant Mickelson. For the reasons discussed below, we
affirm the order of the district court.
The background facts are set forth in the district court orders. We
agree with the district court’s well-reasoned analysis. The university is
a state instrumentality and thus protected by eleventh amendment immunity.
Treleven v. University of Minnesota, 73 F.3d 816, 819 (8th Cir. 1996)
(holding University of Minnesota is an arm of the state, citing prior
circuit decisions). The university was not appellant’s employer for
purposes of Title VII. Wilde v. County of Kandiyohi, 15 F.3d 103, 105-06
(8th Cir. 1994) (noting no significant difference between this circuit’s
hybrid test and common law test of employer-employee status). Appellant
failed to make a prima facie case that she had been discharged on the basis
of sex or marital status in violation of Title VII or the equal protection
clause. Appellant did not have a constitutionally protected property
interest in her employment as a "without compensation" employee under
federal law, state law or the terms of the Department of Veterans Affairs
appointment agreement. Cf. Woods v. Milner, 955 F.2d 436, 440 (6th Cir.
1992) (no protected property rights in position of temporary full-time
employment where termination may occur at will). In the absence of any
evidence of publication of the allegations of misconduct made against her
in connection with her discharge, appellant failed to establish a
constitutionally protected liberty interest in her reputation.
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Appellant failed to establish that her discharge was arbitrary or
capricious in violation of substantive due process.
Finally, the district court did not abuse its discretion in denying
appellant’s motion for partial summary judgment and petition for writ of
mandamus even though federal defendant Mickelson did not file a
cross-motion for summary judgment. See generally 10A Charles A. Wright et
al., Federal Practice and Procedure § 2720, at 29-30 (2d ed. 1983 & Supp.
1996) (summary judgment may be rendered in favor of opposing party even
though no formal cross-motion made).
Accordingly, we affirm the order of the district court. See 8th Cir.
R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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