Richard JACKSON, Appellant, v. ST. JOSEPH STATE HOSPITAL, Et Al., Appellees , 840 F.2d 1387 ( 1988 )

FLOYD R. GIBSON, Senior Circuit Judge.

Richard Jackson appeals from an order of the district court¹ entering judgment in favor of defendants in this Title VII case. The district court found that Jackson’s reverse sex discrimination claim was untimely and that his retaliatory discharge and due process claims were not supported by the evidence. On appeal Jackson challenges the district court’s order pertaining to retaliatory discharge and due process. We affirm.

I. BACKGROUND

In May 1975 Jackson was hired by St. Joseph State Hospital as its chief accountant to correct problems which had developed in the preparation of medicare cost reports. As early as 1977 the hospital administration began receiving complaints about Jackson and the low morale in the accounting department. Jackson’s subordinates complained that he would discuss one employee’s private life with other employees. One employee filed a grievance claiming that Jackson was disruptive, agitated one employee against another, and created a stressful work environment. Complaints about Jackson were also made to state legislators.

In May 1978 a meeting was held to discuss changes to be made in the accounting department. The key supervisors in the department were present, but Jackson declined to attend. Hospital superintendent Dr. Nicholas Bartulica continued to receive complaints about Jackson, so a second meeting was held in late May. Jackson preferred not to attend and stated that further complaints should be put in writing. Jackson's request was communicated to his subordinates, but no written complaints were received by the administration.

In July 1978 the accounting department was audited by the Department of Mental Health. The chief auditor found that Jackson’s managerial style was causing morale problems in the accounting department. Jackson was informed that disciplinary actions would be taken if he did not correct the problems in his department.

In October 1978 Jackson’s secretary filed a grievance against him stating that he frequently discussed employees’ personal lives, that he had problems communicating, and that he frequently called her into his office on Friday afternoons to criticize and demean her. At a meeting between Jackson, the secretary, and Dave Farrar, the assistant superintendent for administration, Jackson became angry and stated that he would run the secretary out of his department. As a result of Jackson’s conduct Farrar informed him that if he did not change his ways he would risk losing his position as department head.

Complaints about Jackson abated until January 1982 when Roxanne Kuhn filed an internal complaint against him alleging harassment. Several months before the complaint was filed Jackson had begun inquiring into Kuhn’s personal life. He told Kuhn that he did not approve of her black boyfriend and that she should not expect any promotions while the relationship continued. Also, Jackson stated that he disapproved of the fact that Kuhn’s children lived with her ex-husband. Kuhn’s complaint also stated that Jackson frequently touched or grabbed her.

On the same day that Kuhn filed her complaint Jackson requested that she be suspended for one day with pay for failing to complete certain reports. Dr. Bartulica met individually with Kuhn and Jackson to discuss a compromise. Kuhn agreed to withdraw her complaint subject to reinstatement if the harassment continued and Jackson agreed to withdraw his request for suspension after being told that the request would not be supported by the hospital administration.

On June 4, 1982 Jackson went to Kuhn’s office to discuss work related matters, but she was not there. He eventually found her sitting in Rhonda Mahoney’s office with her back to the door. Jackson approached Kuhn from behind and placed his hands on her shoulders and did not remove them until she stood up and left the room. On June 9 Jackson called Kuhn into his office to discuss her drinking habits.

On June 10 Kuhn filed another complaint against Jackson citing the June 4 and June 9 incidents. On July 14 Jackson was issued a reprimand and directed not to place his hands on female employees, make inquiries into or discuss employees’ private lives, or counsel or discipline female employees without a witness present. In response, Jackson filed an internal complaint alleging sexual discrimination. The division director found against him on October 1, 1982 and on November 17 Jackson filed complaints with the Equal Employment Opportunity Commission (EEOC) and the Missouri Commission on Human Rights. Jackson was advised by the hospital administration that suspension was being considered if he did not cooperate and shortly thereafter he was suspended for three days without pay.

On January 10, 1983 Jackson was notified by the EEOC that a fact finding conference had been scheduled for January 27. In preparation for the conference, Jackson approached Rhonda Mahoney regarding the June 4 incident in her office. Jackson wanted proof that his touching of Roxanne Kuhn was not sexual in nature. During a forty-five minute conversation Mahoney repeatedly told Jackson that she had already given a statement and that she did not think it was proper to discuss the incident further. Later that day Jackson again approached Mahoney and requested a statement. Mahoney became so upset that she left work for the remainder of the day.

On January 26, two days later, Jackson gave Mahoney a prepared statement and asked her to review it, make any changes necessary, and sign it. It stated that Ma-honey did not remember what happened in her office on June 4. Mahoney refused to sign the statement and complained to Jackson’s supervisor that if Jackson did not leave her alone she would lodge a formal complaint of harassment. Later that day Jackson was put on administrative leave with pay pending investigation of the incident with Mahoney.

On February 17, 1983 Jackson was issued a dismissal letter which read, in part, as follows:

For the reasons indicated herein, you are hereby notified of your dismissal from employment with St. Joseph State Hospital, effective February 28, 1983 at the close of business. This action is being taken subject to your right to show reasons why this dismissal shall not be effected. You may answer in person at my office between the hours of 8:00 a.m. and 4:30 p.m. on or before February 25, 1983 or you may present your case in writing delivered to my office on or before the same date. The specific reasons for your dismissal are your inadequacy and inefficiency in the performance of the duties of your position, in that you have willfully exhibited behavior which is disruptive to the working activities of other employees. On Monday, January 24, 1983 you approached Rhonda Mahoney at work attempting for approximately 45 minutes to get her to change the statement she made concerning an event she observed involving you and another employee on June 4, 1982. On Wednesday, January 26, 1983 you presented a handwritten memo to Ms. Mahoney, which was written as if in her own words and stated that her memory was unclear as to the events that transpired on June 4, 1982 and you wanted Ms. Mahoney to sign the memo. You told Ms. Mahoney you would use the statement at a future hearing. Such acts constitute harrassment [sic] of an employee, and are willfully disruptive of the work activities of the employee and others.

Jackson’s written response was rejected by the hospital and his dismissal was affirmed by the Personnel Advisory Board. He filed this lawsuit on October 9, 1984 alleging sexual discrimination, retaliatory discharge, and a due process violation. The district court found for the hospital on all three claims.

II. DISCUSSION

Title YII protects an employee pursuing an EEOC complaint from retaliatory actions by his employer. 42 U.S.C. § 2000e-3(a). In order to establish a prima facie case of retaliatory discharge Jackson must prove that 1) he was engaged in statutorily protected activity, 2) he suffered adverse employment action, and 3) a causal connection between the two exists. Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981).

The district court found that Jackson failed to establish a prima facie case because his conduct in pursuing a statement from Mahoney was not protected activity as it was “bizarre.” Jackson argues that the cases cited by the district court, Garrett v. Mobil Oil Corp., 531 F.2d 892 (8th Cir.), cert. denied, 429 U.S. 848, 97 S.Ct. 135, 50 L.Ed.2d 121 (1976), and E.E.O.C. v. Shoney’s, Inc., 536 F.Supp. 875 (N.D.Ala.1982), are inapplicable because the conduct of the plaintiffs in those cases was unreasonable whereas his own conduct was reasonable.

In Garrett an employee pursuing an EEOC complaint refused direct orders, left her work station, and barged in on meetings of managerial personnel. In Shoney’s an employee neglected his job for three days while pursuing an EEOC complaint. Jackson argues that the time he spent pursuing a statement is reasonable when compared to Shoney’s and his “polite efforts” can not be compared to those in Garrett. This argument, however, overlooks several important facts.

First, although Jackson’s own efforts did not take more than a few hours, additional work time was lost when he had his secretary typing and copying documents for him on hospital time and when he disturbed Mahoney so greatly that she left work early on January 24, 1983. Second, Jackson’s pursuit of a statement can not be characterized as polite. Once Mahoney stated that she did not want to make a statement to him, Jackson should have left her alone. Mahoney had already given a statement to EEOC. Furthermore, since the EEOC has subpoena power, Jackson had other less objectionable and disruptive avenues open for obtaining Mahoney’s testimony. Also, Jackson’s repeated assertions to Mahoney that her memory of the June 4 incident was incorrect was entirely out of line and was aptly perceived by the district court to be “bizarre”, and was an abusive attempt to have Mahoney change her views of the incident in her office.

Further, Jackson had a long string of complaints and reprimands preceding his termination. The mere act of filing an EEOC complaint does not render illegal all subsequent disciplinary actions taken by the hospital. As the district court noted, Jackson’s conduct in pursuing a statement from Mahoney was the “last straw.” He was fired for pursuing a statement in a highly offensive and disruptive manner after repeated warnings that he needed to change the way in which he dealt with subordinates. To require the hospital to overlook Jackson’s past simply because he filed an EEOC complaint would unduly hamper the hospital’s right to make employment decisions. Likewise, it would be unreasonable to hold that while on the state payroll Jackson had a federally protected right to harass Mahoney to the point that she had to leave work. See Hochstadt v. Worcester Foundation, 545 F.2d 222, 230-34 (1st Cir.1976) (plaintiffs conduct exceeded scope of protection offered by Title VII).

The dissent states that Jackson’s conduct fell far short of that exhibited by the plaintiffs in Garrett and Shoney’s. Whether Jackson’s actions were as egregious as in these cases is, of course, subject to differing opinions. However, merely stating that Garrett and Shoney’s have more compelling facts does not decide the issue whether Jackson’s conduct is protected. Garrett and Shoney’s do not represent the minimum degree of “bizarreness” which must be shown before a Title VII plaintiff will be stripped of his statutory protection. They are only examples of conduct which resulted in such a loss.

Title VII protection from retaliation for filing a complaint does not clothe the complainant with immunity for past and present inadequacies, unsatisfactory performance, and uncivil conduct in dealing with subordinates and with his peers. The public and the state should not have to suffer waste of public funds in countenancing the arrogant and bizarre conduct exhibited by Jackson. Department heads should strive to create harmonious relationships amongst subordinates and working personnel rather than discord, personal humiliations, and chaos. Jackson’s record of performance was not only inferior but atrocious in making unreasonable demands on subordinates, creating inefficiency in department operations, wasting state resources, and in his personal harassment of Mahoney. The aforementioned conduct is not protected nor should it be countenanced by the salutory purposes set forth in Title VII.

Jackson also argues that due process was violated because his termination letter indicated that the decision to terminate had already been made. All he was given was an opportunity to convince Dr. Bartulica to change his mind and rescind the termination. Jackson argues that his hearing should have preceded the decision to terminate rather than the effective date of termination.

Due process, however, does not require predecision hearings. It only requires an opportunity to be heard prior to the termination of benefits. In the present case, Jackson was given written notice of his termination on February 17, 1983. The reasons for termination were clearly set forth in this letter. Accompanying the notice were statements made by hospital employees explaining Jackson’s inadequacies. And, more significantly, the notice stated that Jackson’s termination was not effective until February 28, 1983 and until then he would continue to receive full pay.

These facts closely resemble those in Bignall v. North Idaho College, 538 F.2d 243 (9th Cir.1976), where a part-time college instructor brought suit challenging the college’s decision not to renew her employment contract. Bignall argued that due process required that she be given a hearing before the decision was made not to renew her contract. The Ninth Circuit disagreed and held that “a pre-termination hearing is not a hearing held prior to any decision to terminate, * * * but rather a hearing held prior to a termination of benefits ...” Id. at 246 (quoting Chung v. Park, 514 F.2d 382, 386 n. 7 (3rd Cir.), cert. denied, 423 U.S. 948, 96 S.Ct. 364, 46 L.Ed.2d 282 (1975)). See also Vance v. Chester County Bd. of School Trustees, 504 F.2d 820, 824-26 (4th Cir.1974) (due process requires hearing prior to termination of benefits rather than decision not to renew contract).

In the present case Jackson’s benefits— his salary — were not terminated until February 28, 1983. From February 17 until February 28 he had the opportunity to present his case and on February 23, 1983 he made a written response to the dismissal letter. Because Jackson was given the opportunity to be heard prior to the termination of his salary, his due process rights were not violated.

III. CONCLUSION

Because we hold that Jackson established neither a prima facie case of retaliatory discharge nor a due process violation, the order of the district court entering judgment in favor of the defendants is affirmed.

1 . The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri.