The opinion
Richard C. SPULER, Plaintiff–Appellant,
v.
Gertrud B. PICKAR, James H. Pickering, A. Benton Cocanougher,
Richard L. Van Horn, and the Board of Trustees of the University of
Houston, Defendants–Appellees.
No. 90–2408.
United States Court of Appeals,
Fifth Circuit.
April 14, 1992.
Appeal from the United States District Court for the Southern
District of Texas.
Before DAVIS, JONES, and EMILIO M. GARZA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Plaintiff Richard Spuler brought suit against the University
of Houston, alleging that he was denied due process of law in being
refused tenure and terminated. A jury awarded damages, after
finding that Spuler had a reasonable expectation of continued
employment and that the defendants acted arbitrarily and
capriciously in denying tenure and in discharging him. The court
granted defendants' motion for judgment notwithstanding the
verdict. Spuler appeals from that ruling. We affirm.
FACTS
In 1980, Spuler was appointed an assistant professor in the
German Department at University of Houston. He was subsequently
re-appointed each year. In August 1985, at the end of Spuler's
fifth year at the University, Dr. Gertrud Pickar, the German
Department chairwoman, notified Spuler that his contract would not
be renewed after the 1985–86 school year. Financial reasons were
offered as the basis for the decision.
Understandably unhappy with the decision, Spuler asked that he
undergo the tenure approval process so that he might represent to
potential employers that he was being considered for tenure. The
respective departmental and college tenure committees obliged and
found that Spuler had complied with tenure requirements and was
eligible for tenure consideration. Tenure decisions are evaluated
according to performance in the areas of teaching, research,
professional scholarship, and institutional service. The
University's faculty handbook states "tenure is granted to faculty
members upon the successful completion of a probationary period
[at] the university...." Initial screening and evaluation is
conducted by the respective department and college, with a
recommendation transmitted to the university Provost and President.
The ultimate decision to grant or deny tenure is made by the Board
of Regents, upon recommendation of the President.
The jury found that the University's rules and regulations
created a reasonable expectation of continued employment for
Spuler. The jury also found that the department chairwoman and the
other defendants acted arbitrarily and capriciously in not
recommending tenure and in discharging Spuler. They awarded
$13,279 in damages against the department chairwoman and $39,837 in
damages against Dr. James H. Pickering, dean of the College of
Humanities and Fine Arts. The jury also assessed $542 in damages
against both the University Provost, A. Benton Cocanougher, and the
University President, Richard L. Van Horn, both of whom concurred
in the recommendation to deny tenure to Spuler.
Shortly after Spuler left the University, a tenured professor
resigned from the German Department. Spuler was not offered the
position, and the vacant position remained unfunded for two
successive years. However, two months after Spuler departed, the
University advertised nationally for a German professor. The
University explained that Spuler was a linguistics expert and
taught elementary courses, while the professor who resigned was a
professor of German literature. Although the basic language
acquisition courses could be taught by any German Department
faculty member, specialized knowledge—which Spuler lacked—was
needed to teach the literature classes.
In ruling on defendants' motion for judgment notwithstanding
the verdict, the trial court held that Spuler enjoyed no property
interest in continued employment at the University, since Spuler
was employed on a year-to-year contract. The court further held
that the University was entitled to deny Spuler tenure. The court
also held that the tenure denial decision was reasonable, and not
arbitrary and capricious, being based on legitimate financial
considerations.
STANDARD OF REVIEW
A judgment notwithstanding the verdict (JNOV) should be
granted by the trial court
only when the facts and inferences point so strongly and
overwhelmingly in favor of the moving party that reasonable
jurors could not arrive at a contrary verdict, viewing the
facts in the light most favorable to the party against whom
the motion is made, and giving that party the advantage of
every fair and reasonable inference which the evidence
justifies.
Harwood & Assoc., Inc. v. Texas Bank & Trust, 654 F.2d 1073, 1076
(5th Cir. Unit A, September 1981) (citing Boeing v. Shipman, 411
F.2d 365, 374–75 (5th Cir.1969) (en banc)). On appeal, we apply an
identical legal standard, viewing the evidence in the fashion most
favorable to the party opposing the motion. Ellison v. Conoco,
Inc., 950 F.2d 1196, 1203 (5th Cir.1992). Thus, we may affirm the
district court only if we find that no reasonable jury could have
determined that Spuler was entitled to a reasonable expectation of
continued employment, or that he was discharged arbitrarily and
capriciously.
PROPERTY INTEREST
The threshold issue is whether Spuler held any
constitutionally-protected property right. Baker v. McCollan, 443
U.S. 137, 146–47, 99 S.Ct. 2689, 2695–96, 61 L.Ed.2d 433 (1979).
The nature of Spuler's claim of property right must be determined
by reference to Texas law. Board of Regents v. Roth, 408 U.S. 564,
568, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1976). If there is no
protected property interest, there is no process due, i.e., the
status is employment at will, modified by annual contracts. Roth,
408 U.S. at 569, 92 S.Ct. at 2704.
Public employees must demonstrate a property right founded on
a "legitimate claim of entitlement" based on "mutually explicit
understandings." Roth, 408 U.S. at 577, 92 S.Ct. at 2708; Perry
v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d
570 (1972). Spuler claims that he had a reasonable expectation of
achieving tenure if he was qualified, and that alone constitutes a
legitimate property interest. He bases his claim on the faculty
handbook provision. The University counters that the handbook,
under ample Texas precedent, cannot give rise to an employment
contract where the handbook is not accompanied by an express
agreement regarding discipline and discharge.
Spuler premises his assertions that the faculty manual
contractually creates enforceable property rights on Aiello v.
United Airlines, Inc., 818 F.2d 1196 (5th Cir.1987). In Aiello, a
long-term employee with a stellar record was discharged for
falsifying an expense voucher. Aiello must be understood as a case
in which all parties to the suit treated the employment manual as
giving certain contract rights, including the right to be
discharged only for specific, enumerated reasons. The court relied
on Texas cases in which express oral promises were offered and
later construed as implied contract provisions. See, e.g., Union
v. Brown, 694 S.W.2d 630 (Tex.App.—Texarkana 1985, writ ref'd
n.r.e.); Johnson v. Ford Motor Co., 690 S.W.2d 90
(Tex.App.—Eastland, writ ref'd n.r.e.). Texas state courts, whose
decisions must inform our determination of Spuler's claimed
property right, Roth, 408 U.S. at 568, 92 S.Ct. at 2704, uniformly
embrace the notion that employee handbooks or manuals, standing
alone, "constitute no more than general guidelines," absent express
reciprocal agreements addressing discharge protocols. Reynolds
Mfg. Co. v. Mendoza, 644 S.W.2d 536, 539 (Tex.App.—Corpus Christi
1982 no writ). See also Ryan v. Superior Oil Co., 813 S.W.2d 594,
596 (Tex.App.—Houston [14th Dist.] 1991, writ denied); Hicks v.
Baylor Medical Univ. Med. Center, 789 S.W.2d 299, 302
(Tex.App.—Dallas 1990, writ denied); Benoit v. Polysar Gulf Coast,
Inc., 728 S.W.2d 403, 406 (Tex.App.—Beaumont 1987, writ ref'd
n.r.e.); Vallone v. Agip Petroleum Co., 705 S.W.2d 757, 759
(Tex.App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.); Totman v.
Control Data Corp., 707 S.W.2d 739, 744 (Tex.App.—Ft. Worth, no
writ); Molder v. Southwestern Bell Tel. Co., 665 S.W.2d 175
(Tex.App.—Houston [1st Dist.] 1983, writ ref'd n.r.e.).
The foregoing cases all illustrate the consistency with which
Texas courts have adhered to the employment-at-will doctrine first
enunciated in Eastline & R.R.R. Co. v. Scott, 72 Tex. 70, 75, 10
S.W. 99, 102 (1888). This doctrine has borne the test of time,
being eroded by only a few narrow statutory and judicially created
exceptions not present in this case. The ineluctable conclusion
that under Texas law employment manuals generally do not create
contract rights guides our resolution of Spuler's property interest
claim.
We now turn to the specific language upon which Spuler
premises his claim to a constitutionally-protected property right.
The faculty manual provides, in pertinent part:
Faculty members are on probationary appointments until they
have been granted tenure. During the probationary period,
decisions to renew or terminate appointments or to deny tenure
shall be made at the campus level in accordance with the
principals and procedures set forth in this Handbook. Tenure
is awarded only at the specific campus of the university.
Tenure is granted to faculty members upon the successful
completion of a probationary period on the University Park
campus. The service of tenured faculty shall be terminated
only for adequate cause, except in cases of financial
exigency, discontinuance of programs, or retirement because of
age.
The decision to terminate the services of a non-tenured
faculty member is not a form of dismissal for cause.
Non-reappointment of a faculty member without tenure does not
require charges or demonstration of professional unfitness.
The faculty handbook's preface states that it is intended "to be
only a guide for faculty of the University of Houston–University
Park. It does not purport to be a comprehensive, self-contained
policy document...."
The unadorned language regarding tenure, as quoted above, is
indicative rather than imperative. In harmony with
well-established Texas law, we hold that the University's faculty
handbook did not create a property right in continued employment or
an assurance of tenure. The handbook was not a written employment
agreement, and was not supplemented or supplanted by any express
agreement or written representation regarding termination
procedures. Because the faculty handbook bestowed no contractual
rights on Spuler and no concomitant obligations on the University,
and because Spuler points to no other source of entitlement to
tenure, Spuler enjoyed no property interest the deprivation of
which merited procedural or substantive due process protection.
Establishment of a formal tenure process generally "precludes a
reasonable expectation of continued employment" for non-tenured
faculty. Edinger v. Board of Regents of Morehead State Univ., 906
F.2d 1136, 1140 (6th Cir.1990), accord Lovelace v. Southeastern
Mass. Univ., 793 F.2d 419, 423 (1st Cir.1986); Eichman v. Indiana
State Univ. Bd. of Trustees, 597 F.2d 1104, 1109 (7th Cir.1979).
See also Dube v. The State Univ. of New York, 900 F.2d 587 (2d
Cir.1990), cert. denied, ––– U.S. ––––, 111 S.Ct. 2814, 115 L.Ed.2d
986 (1991); Goodisman v. Lytle, 724 F.2d 818 (9th Cir.1984);
Beitzell v. Jeffrey, 643 F.2d 870 (1st Cir.1981).
Spuler nonetheless asserts that he was entitled to a
non-arbitrary and capricious decision on tenure. In Honore v.
Douglas, 833 F.2d 565, 568 (5th Cir.1987), this court acknowledged
the possibility of a substantive due process claim to tenure if
Honore also proved that he had a property interest in obtaining
tenure. Even if the latter condition were satisfied, we disagree
that Spuler's evidence fulfilled the demanding standard for a
substantive due process violation. The tenure process—from the
initial recommendations of the candidates by the professoriat to
the ultimate review by university administrators and members of the
Board of Regents—is intrinsically subjective. Such a determination
is not readily scrutinized in the adversarial judicial forum. "The
judicial inquiry is properly only whether the decision was made,
wisely or not, by a specific exercise of professional judgment and
on the basis of factors clearly bearing on the appropriateness of
conferring academic tenure." Siu v. Johnson, 748 F.2d 238, 245
(4th Cir.1984). The only substantive process due Spuler, assuming
he had a property interest, was the exercise of professional
judgment, in a non-arbitrary and non-capricious fashion.
Spuler asserts that the University administrators,
particularly the head of the German Department and the dean of the
College of Humanities and Fine Arts, acted arbitrarily and
capriciously in recommending against tenure. Spuler notes that at
about the time he was terminated, a tenured professor left the
German Department and the University launched a nationwide
replacement search. He raises this point as evidence countering
the University's assertion that declining enrollment in the German
Department and the corresponding budgetary restrictions were the
reasons that Spuler was not offered tenure. The department chair,
the college dean, and the University Provost each testified that
Spuler was not granted tenure because of financial reasons. The
department chairwoman testified that the department's financial
circumstances necessitated a decision between approving Spuler for
tenure or continuing the graduate program in German studies. She
stated that elimination of the graduate program would have resulted
in even more austere funding for the German Department, and would
have critically injured the German program. Although the
University sought to replace the professor who departed shortly
after Spuler, the open position required a scholar with the ability
to teach the more specialized literature courses, a qualification
Spuler lacked. Given the overwhelming evidence of a rational basis
to support the decision to deny tenure to Spuler, we sustain the
district court's determination that no reasonable juror could find
that the University officials acted arbitrarily and capriciously in
denying tenure to Spuler.1
QUALIFIED IMMUNITY
We review de novo the legal conclusion that the University
defendants were entitled to qualified immunity from suit. Because
we hold that Spuler had no constitutionally protected property
interest, and that he was not dismissed arbitrarily and
capriciously, we need not determine whether the trial court erred
in granting qualified immunity to the defendants. Notwithstanding,
court challenges associated with denial of tenure persist; and the
affirmative qualified immunity defense rests on whether public
officials have violated a clearly-established right. To that end,
we note that, in future challenges, officials formulating tenure
decisions in circumstances similar to the instant case will likely
benefit from qualified immunity.
That Spuler cites no legal authority in his challenge to the
trial court's grant of qualified immunity presages the merits of
this argument. To succeed in his challenge to the defendants'
qualified immunity, Spuler must show that at the time the
University determined to terminate his contract, a reasonable
university official would have known that termination under like
1
Spuler also argues that the University could not deny him
tenure unless University officials had declared a financial
exigency. However the evidence at trial unequivocally
established that the University policy required a declaration of
financial exigency to terminate an already tenured professor,
absent good cause, and not to deny tenure to a candidate.
circumstances would have violated Spuler's due process rights. In
sum, Spuler would have to show that a non-tenured professor had a
clearly-established, constitutionally-protected interest in
continued University employment, and that denying him tenure for
financial reasons was arbitrary and capricious. Anderson v.
Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523
(1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct.
2727, 2738, 73 L.Ed.2d 396 (1982)), see also Dube, 900 F.2d at 597.
As has been shown, Spuler had no constitutionally-protected
interest at the time of his termination. We agree with the
district court that the University defendants were entitled to
qualified immunity.
CONCLUSION
As a matter of law, Spuler failed to prove the existence of
any constitutionally-protected interest in achieving tenure. The
district court properly granted judgment notwithstanding the
verdict in favor of the defendants. The defendants did not violate
any clearly established constitutional rights and were thus
entitled to qualified immunity. The decision of the district court
is AFFIRMED in all respects.