Petition for Writ of Certiorari — Huang v. French

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SEEKERS REESE KEKE EKEKREEEEEEEEEKREREESE ES

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

SESE ERESESSEESE SERS ERE EREREKEEEESESE

Barney K. Huang,

Petitioner,

V.

Becky R. French, Thomas J. Ziko, Bruce R. Poulton,

Board of Governors of the University of North Carolina,

North Carolina State University,

Respondents.

SEESSSSESSESSESESSSKEKS SSS SESSEKRSEK EKER EKEKREEEEEESES

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Fourth Circuit

SHHESSSSSSSSESSHSESSSSKSSSSSSSSSSSEKSESSERSEEKSEKEEEEEKEESE

PETITION FOR A WRIT OF CERTIORARI

SESSESSSESSSSSSSSSSSESSSESSESSSSEKSSESSEKSESSESSESESESEEKHEEKEEES

COUNSEL OF RECORD FOR PETITIONER:

J. Matthew Martin J. Kirk Osborn

Martin & Martin, P.A. Counsel of Record

133 East King Street Suite 421, 100 Europa Drive

Hillsborough, NC 27278 Chapel Hill, NC 27514

(919) 732-6112 (919) 929-0987

Brief Printing Specialists, Inc., 1001 E. Main Street, Suite 210

Richmond, Virginia 23219, (804) 644-0700

i

QUESTION PRESENTED

What constitutes a sufficient forecast of the evidence for purposes of

F.R.Civ.P., Rule 56, when a tenured professor of a public university

alleges a violation of substantive due process because the university

counsel, administrators and a state attorney orchestrated his

termination with contrived documents and made arbitrary and

capricious findings to buttress it which were not supported by the

evidence?

ii

TABLE OF CONTENTS

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PPLPIME Oe PUASOIUGC TION o6 cc cccccce canoes 2

STATUTES INVOLVED IN THIS CASE ............ 2

Damameeees Gr rte CASE oo. c cece ese caves 3

REASONS FOR GRANTING WRIT ............... 18

EE ES 27

APPENDIX: OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE

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TABLE OF AUTHORITIES

Barnett v. Housing Authority of the City of Atlanta,

irk Me Bers Git, te 2 : ) Be eS ee. ee 23

Bignall v. North Idaho College,

ge re Le eo) re 19

Board of Regents of State Colleges v. Roth,

COE Ba SSR een rer keedePrereia ste vdeks 19

Brenna v. Southern Colorado State College,

Pe ee EE oie wa ba ee a kb aos oe 19

Bruno's Inc. v. United States, 624 F.2d 592

be 8 SB Re ee pe ee nee een eee 20

Crocker v. United States, 127 F. Supp. 568

Bae POEs be Ce eee ee a eK 6 oe 24

Drown vy. Portsmith School District,

OS5t 2G LIGR CISA Cae FPUSe beh i oi veer ees 20, 21, 22

Dynalectorn Corp. v. United States,

OOe Fe, OE CTD Skok cccescccece seven 20

Federal Deposit Ins. Corp. v. Mallen,

Se Re UI oe gd ve ee ar eee eseren 22

Fisher v. Snyder, 476 F.2d 375 (8th Cir. 1973) ........ 26

Harrah Independent School Dist. v. Martin,

Oe Re a ee aa ear sie edasuws 21

Hearn vy. City of Gainesville, 688 F.2d 1328

C1 ith Cle TR ech et ee A

Huang v. French, et al., 73 F.3d 357 (4th Cir. 1995) ....

Huang v. Board of Governors of University of North

Carolina, 902 F.2d 1134 (4th Cir. 1990) .........

Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966), cert.

denied, 385 U.S. 1003 (1967)

> 674 2 66 ee 0 + 0.6.42 8

Kelly v. Johnson, 425 U.S. 238 (1976)

Major v. Hampton, 413 F. Supp. 66 (E.D. La. 1976) ...

Morris v. Board of Educ. of the Laurel School Dist.,

401 P. Sead. IGRI. Toray ae ee eee eee

Morrison v. Board of Educ., \ Cal.3d 214, 461 P.2d 375,

82 Cal. Rptr. 175 (1969)

‘6.8 8 OS €¢ O48. 8°02 16.6 OO SO OR Be +

Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969) .

Roane v. Callisburg Indep. School Dist., 511 F.2d 633

(Sth Cir. 1975)

66208 8.6 286 6 2 86 £ a eS 2 8 3 Oe OO 2:8 2 6 O'S. 8 8-8 4 ee

Silverman v. Barry, 845 F.2d 1072 (D.C. Cir. 1988) ....

State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279, disc.

rev denied, 327 N.C. 639, 399 S.E.2d 127 (1990)

United States v. Carmack, 329 U.S. 230 (1946)

25

nN

23

21

21

V

Wieman v. Updegraff, 344 U.S. 183 (1952) ....... 20, 22

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SHES SESE ESSERE ES

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

SHEKESSSESSSSSSESESSESSSSSE SSS SESS SESE SEES EERSTE ES

Barney K. Huang,

Petitioner,

Becky R. French, Thomas J. Ziko, Bruce R. Poulton,

Board of Governors of the University of North Carolina,

North Carolina State University,

Respondents.

SEEKERS SESE SEES SESE SESE ESET ES

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

SESS ESSE SSESSESESSESSESESEEEESEEEAESEEETHE SETS

PETITION FOR WRIT OF CERTIORARI

SSSSSSSSESSESESSSES SSS EEE ES

The Petitioner, Barney K. Huang, respectfully petitions for a

Writ of Certiorari to review the Judgment of the United States Court

of Appeals for the Fourth Circuit in this case.

2

OPINION BELOW

Huang v. French, et al., 73 F.3d 357 (4th Cir. 1995) is

reprinted in the appendix hereto.

GROUNDS FOR JURISDICTION

The decision of the Court of Appeals for the Fourth Circuit

was issued on December 7, 1995.

No motion for rehearing was filed. There have been no

motions submitted to this Couri for extension of time within which

to file this Petition for a Writ of Certiorari.

Jurisdiction to conduct the requested review is conferred upon

this Honorable Court by 28 U.S.C. § 1254(1).

STATUTES INVOLVED IN THIS CASE

42 U.S.C. § 1983:

"Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

3

shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress."

STATEMENT OF THE CASE

This direct federal appeal involves the dismissal of Professor

Barney K. Huang, a permanently tenured full Professor, who served

productively for over twenty-seven years, from the faculty at North

Carolina State University (NCSU).' An academician, scientist,

researcher and teacher, Professor Huang joined the faculty at NCSU

in January, 1963, as an Assistant Professor in the Biological and

Agricultural Engineering Department (BAE), after completing his

Ph.D. at Purdue University. In 1967, the plaintiff was awarded

permanent tenure, made a full member of the graduate school faculty

and promoted to Associate Professor. Six years later, in 1973, Dr.

Huang was promoted to full Professor with permanent tenure.

At NCSU, his research duties included extensive work in the

areas of design and perfection of highly sophisticated mechanical

‘The District Court dismissed the Petitioner's claim for violation of substantive due

process with at footnote.

4

devices, environmental controls, and biophysical systems to aid in

agricultural productivity wherein he is recognized internationally as

an innovator, inventor, author and scholar. Professor Huang's

teaching responsibilities included the sole responsibility for the

instruction of BAE 661: Analysis of Function and Design of

Biological and Physical Systems, a course for graduate students. In

a career that has, to date, spanned more than twenty-seven years at

NCSU, Professor Huang could be characterized as prolific. A

naturalized U. S. citizen from Taiwan, the plaintiff was the only

minority Professor in the BAE. ra

Upon becoming a full Professor, Dr. Huang began to vocalize

his concerns regarding discriminatory treatment including disparities

between his salary vis-a-vis other, non-minority BAE faculty

members, including a number of whom were not full Professors nor

with permanent tenure. Despite repeated questions, the plaintiff's

pay, research and staff support irregularities were neither altered nor

explained with a lawful explanation. By the early 1980's, the

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plaintiff's persistent pursuit of proper compensation resulted in a

concerted efforts by the department head and other non-minority

faculty to dismiss him from the BAE faculty by regimenting

continued adverse documents against Dr. Huang to establish

incompetence, neglect of duty or misconduct, the only reasons for

discharging a permanent tenured faculty member specified in the

university code.

A series of incidents and actions on the part of the defendant

Poulton, the former Chancellor of NCSU who was forced to resign in

1989 due to his own misconduct, and others in the BAE faculty

followed, making the BAE an increasingly inhospitable environment

for Professor Huang: research proposals and offers of grant funds by

outside funding organizations were blocked by the defendant Poulton

and others in his administration. The plaintiffs lab space was

reassigned when Professor Dickens assaulted the plaintiff in 1989.

Ultimately plaintiff's solar curing greenhouse research along with its

federal and state funded facility were maliciously destroyed.

6

The defendant Poulton directed the set up of an "outside

review," designed on the surface to appear "unbiased." This “review”

was to be of Dr. Huang's scholastic work. However, it contained a

secret, pre-arranged agreement with outside reviewers to obtain

negative results to establish Professor Huang's incompetence. The

university counsel also implemented covert surveillance of the

plaintiff's movements by campus police and university staff to try to

establish any misconduct. Both schemes failed in the face of Dr.

Huang's outstanding academic performance and impeccable conduct.

In 1986 the defendant Poulton forcibly transferred Professor

Huang from the BAE to the Division of University Studies (DUS), in

the College of Humanities and Social Science, a department

completely out of Dr. Huang's field of expertise, robbing Dr. Huang

of his research facilities. This transfer was accomplished when the

head of DUS agreed to take Dr. Huang for a temporary two year

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period.’ The transfer purportedly resolved BAE problems alleged

against Dr. Huang, and according to defendant Poulton would provide

Dr. Huang with an improved opportunity to serve NCSU and advance

his career. His forced transfer was the key issue in Huang v. Board

of Governors of North Carolina, 902 F.2d 1134 (4th Cir. 1990).

In this previous case, the Court of Appeals held that Dr.

Huang had no constitutionally protected property interest in

remaining with the BAE as an administrative unit of NCSU, despite

its being Dr. Huang’s area of expertise. /d. at 1141-1142. So, despite

his resistance to the forced transfer and in spite of the fact that he had

no research facilities, equipment or support, Dr. Huang dutifully

began preparing DUS course and research proposals as requested. All

proposals were denied as planned by the defendants. On March 17,

1988, in accordance with the Defendants’ plan to terminate Plaintiff

in two years, the defendant Poulton initiated termination proceedings

*The documents procured in discovery show that this forced transfer was part of a

scheme cooked up by the defendants to terminate Dr. Huang at the end of this two

year period.

8

against Professor Huang for neglect of duty on the basis that he had

failed to obtain a sufficiently large research grant. However, this tack

was inherently flawed: it violated NCSU's own tenure rules

established by the faculty senate. Nevertheless, a Faculty Hearing

Committee was appointed to determine whether or not Dr. Huang

should be terminated for neglect of duty. On July 14, 1988, Dr.

Huang was informed of defendant Poulton's intent to dismiss Dr.

Huang on the grounds of misconduct involving the incidents that took

place in 1973, 1980, and 1985.

As luck or a curious combination of circumstances would

have it, a window of opportunity opened through which defendants

could rid themselves of ™r. Huang and his claims of racial

discrimination. Through the window came Grace Wang, the wife of

James Wang, a close associate and a former student of the plaintiff's

old nemesis on the acting BAE head, Frank Humenik, falsely accused

9

Dr. Huang of attempted second degree rape.’ The alleged assault did

not involve NCSU, but the defendants French, Poulton, and Ziko took

an active interest*. The defendants French, Poulton and Ziko attended

Professor Huang’s probable cause hearing in state court on July 14,

1988. The defendants tried to push Dr. Huang to accept a

misdemeanor plea; however, Petitioner rejected the "offer."

Immediately thereafter, the defendant Poulton suspended what few

duties or opportunities remained for Dr. Huang.

The Defendants then switched course in their efforts to

terminate Dr. Huang. The dismissal proceedings for neglect of duty

were dropped without explanation. This time defendant Poulton

notified Dr. Huang that he was now being terminated for misconduct;

i.e., assaultive conduct toward individuals associated with the

university. Furthermore, the defendant Ziko tried to use the alleged

*Dr. Huang sued Dr. Humenik earlier in Federal Court in Huang v. Board of

Governors of North Carolina, 902 F.2d 1134 (1990).

*The prosecutrix was neither a student nor faculty or staff member. The incident

was not alleged to have occurred on campus.

10

charge as leverage to try to force the plaintiff to retire in exchange for

the dismissal of the charge, as documented in a letter to Dr. Huang

from his attorney.

Dr. Huang resisted and entered a plea of not guilty to the

charges of Grace Wang. The jury acquitted him on the charge of

attempted second degree rape, but found him guilty of the

misdemeanor assault. The defendants arranged for four hostile BAE

faculty members to sandbag Professor Huang at the trial. Ultimately

the plaintiff prevailed on the misdemeanor when the North Carolina

Court of Appeals exonerated him by reversing his conviction. State

v. Huang, 99 N.C. App. 658, 394 S.E.2d 279, disc. rev denied, 327

N.C. 639, 399 S.E.2d 127 (1990). No retrial was ever heard, and the

case ultimately was dismissed.

Events then began to move much more swiftly than ever and

became increasingly Kafkaesque as the days passed. Dr. Huang was

consigned to the jail on the misdemeanor. The defendant Poulton

used this as the basis for suspending his pay and benefits in violation

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of the University Code.

Dramatically, over Professor Huang's attorney's objections and

while his client was absent, incarcerated on a conviction which would

ultimately be vacated, the Faculty Hearing Committee convened to

consider his dismissal. This procedure was in contravention of

NCSU's own policies regarding dismissal of professors. Upon

discharge on bond, Professor Huang prepared with the help of his

attorney, his wife, and J. C. Williamson, Jr., Professor Emeritus,

former Associate Dean and Director of the Agricultural Research

Service at NCSU, a complex and exhaustive compilation of his

achievements at NCSU, documentation of his salary irregularities,

and his recordation of the concerted and persistent efforts to remove

him. This 746 page compilation came to be known as the Huang

notebook.

The Huang notebook was organized into seven logical, tabbed

sections, and was indexed and integrated by use of Dr. Huang's thirty

page summary, euphemistically called "witness testimony." Copies

12

of the notebook were distributed to the hearing committee members.

The defendant Ziko, who prosecuted the matter, objected to the

"witness testimony,” summary and thereupon this vital index to the

Huang notebook was not accepted into the record or made available

to the FHC for use in studying the important evidence of the Huang

notebook.°

Although Dr. Huang was a full Professor with permanent

tenure, the FHC was composed of only three members of that status,

including the Chairmar, Chris Gould, who was handpicked at the

direction of defendant Poulton. The other two members were

Associate Professors, whose promotions and raises required

defendant Poulton's approval.

The committee heard testimony, live and, incredibly, in the

form of a transcript of some of Grace Wang's comments from the

witness stand in state court. In spite of the fact that defendant Ziko

*Professor Wood averred that in all of the Faculty Hearing Committees he had

attended at NCSU, never was a professor prohibited from submitting everything

he desired.

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claimed that Grace Wang was not available, she was never asked to

testify. The university code governing termination of tenured

professors provided Dr. Huang the right to confront his accuser. The

defendant Ziko singlehandedly rendered this provision meaningless.

The defendant French was present for the evidence hearing,

but all committee members were not. The inquisition continued even

after one committee member had to be excused for another

commitment during the plaintiff's testimony. Finally, the ainda

concluded and the deliberations commenced. The first vote, deemed

a "straw vote" was 3-2 in favor of Professor Huang. At a second,

"official" vote taken the next day, the tally was 3-2 against Professor

Huang.°

Professor Huang appealed to the NCSU Board of Trustees

(BOT) which affirmed the decision. He then petitioned the

University of North Carolina Board of Governors (BOG).

*Associate Professor Mary Waleck, the "keeper of the record,” changed her vote.

She, along with Gould and Bedair, characterized the first poll as a "straw vote."

14

Simultaneously, Dr. Huang was pursuing a grievance against

the defendants French and Ziko through the offices of the North

Carolina State Bar. At the State Bar, the plaintiff discovered that the

copy of the Huang notebook submitted to the BOT and pending

before the BOG was not an exact copy of the one prepared by him

(all original copies submitted to the faculty hearing committee were

ordered shredded by defendant French except for member Mary

Walek's (the Walek original), which was kept in the offices of the

defendants’ Poulton and French, although the defendant Poulton

testified there were no shredding machines in their offices.’

The defendant Ziko admitted that copies of the Huang

notebook submitted to the BOT and BOG were inaccurate.

Defendants Ziko and French explained by reporting "copier

misfeeds,”" although careful review of that version of the Huang

record suggests a pattern of deletion and substitution designed to

Interestingly enough, the defendant French disagrees with Mary Walek as to how

many copies of the Huang notebook Walek delivered. Associate Professor Walek

could only remember one.

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cause the material to appear adverse to Dr. Huang.

Indeed, a staggering 254 pages of key evidence in the Huang

notebook were either deleted, altered or moved. The alteration of the

Huang notebook completely changed its force, content and tenor.

Another original Huang notebook was kept by committee member Dr.

Arnold despite testimony by defendant French that all copies were

delivered to the offices of defendants French and Poulton and later

shredded. Dr. Arnold's notebook provided by the defendants in

discovery is not the complete notebook provided to him by Dr. Huang

during the FHC hearing. Dr. Arnold testified that he did not alter it

at all. Over two hundred pages were deleted before Dr. Arnold

testified. This discovery further illustrates the sinister prospect of

deliberate alteration.

Dr. Huang vigorously pursued all of his administrative

remedies to no avail. This case followed.

At the same time Dr. Huang pursued his appeals through the

administrative process to the Wake County North Carolina Superior

16

Court. In reviewing the termination of Professor Huang, the Wake

County Superior Court, and on appeal by the BOG, the North

Carolina Court of Appeals, found violations of Petitioner's

substantive due process rights.* Defendant Poulton notified Dr.

Huang that he intended to dismiss him from his tenured position as

a full Professor because he had engaged in verbal and physical

assaults on several individuals associated with the University, to wit:

Dr. Dallas Chen in 1973, Dr. Henry Y. R. Chen in 1980, Dr. Francis

Hassler in April 1980, Professor James W. Dickens in 1985 and Mrs.

Grace Wang in June of 1988. The North Carolina Court of Appeals,

like the Wake County Superior Court, found that at the time the

alleged incident occurred between Grace Wang and Dr. Huang, June

1988, she was not associated with the North Carolina State University

in any capacity. In consequence, the Court held this incident should

*The North Carolina Supreme Court reversed the Court of Appeals decision on

other grounds. Huang v. Board of Governors, 336 N.C. 67, 441 S.E.2d 696 (1994)

(deciding per curium that the dissenting opinion in the Court of Appeals was correct

in holding that the scope of review under the "whole record test" for a university

administrative appeal precluded the state trial court from premising a holding on

such findings, even though such facts could be found).

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17

not have been a consideration in the dismissal of Dr. Huang.

Additionally, the North Carolina Court of Appeals, like the

Wake County Superior Court, found that NCSU did not proceed

against Dr. Huang in regard to the 1973 Dallas Chen incident and

1980 Hassler and Henry Chen incidents until 1988. Further, it found

that in January 1985, defendant Poulton instigated an investigation of

the "Huang matter” after an altercation between Dr. Dickens and Dr.

Huang. This investigation apprised defendant Poulton of the Dallas

Chen, Henry Chen and Dr. Hassler incidents, and even after the secret

report was compiled by the university counsel to condemn Dr. Huang,

defendant Poulton did not initiate any discharge proceeding based

upon alleged assaultive conduct until three and one-half years later.

The Court found that defendant Poulton attempted to have Dr.

Huang transferred after the Huang matter was investigated, but Dr.

Huang resisted and filed a grievance with the Faculty Mediation

Committee (FMC). The FMC found that Dr. Huang's transfer was in

the best interest of both Dr. Huang and BAE. Dr. Huang was praised

18

as an innovative researcher and a proven effective teacher with great

potential to contribute to NCSU. Indeed, the FMC's report mentioned

nothing about Dr. Huang's alleged assaultive misconduct. Dr. Huang

was subsequently transferred to the DUS department by force as set

in the secret plan unknown to the FMC members or Dr. Huang.

REASONS FOR GRANTING WRIT

Overview

The Order of the District Court, affirmed by the Opinion of

the Fourth Circuit, makes all tenured professors in the University of

North Carolina system, employees at will, in the sense that their

terminations can be arbitrarily and capriciously manufactured by

those who wish to end their careers. Petitioner seeks only a jury to

determine the truth surrounding the circumstances of his firing. The

evidence shows that the individual defendants worked together to

place Dr. Huang in a position of employment vulnerability by

transferring him and to terminate him by dredging up old, and already

academically adjudicated events. The transfer and termination have

19

to be understood as coextensive parts of the same Strategy to

terminate a tenured professor at wi!l. This kind of arbitrary transfer

fcllowed by dismiss constitutes a dire threat to academic freedom and

higher public education.

Standard of Review

The petitioner has a property interest to which the protections

of due process attach: scholarly tenure. Brenna v. Southern Colorado

State College, 589 F.2d 475, 477 (1978). Such an interest must be

present to trigger the constitutional protections of substantive due

process. See generally, Board of Regents of State College v. Roth,

408 U.S. 564 (1972). Failure to follow an established tenure policy

can support a claim of substantive due process. Bignall v. North

Idaho College, 538 F.2d 243 (9th Cir. 1976). "Substantive due

process is triggered only if those rights are dealt with in an arbitrary

or Capricious manner." Brenna, 589 F.2d at 477.

"The [g]overnment's obligation to accord due process sets at

least nominal substantive limits on its prerogative to dismiss

20

its employees: it forbids all dismissals which are arbitrary

and capricious." Major v. Hampton, 413 F. Supp. 66, 69

(E.D. La. 1976) (quoting Norton v. Macy, 417 F.2d 1161,

1164 (D.C. Cir. 1969)).

"[C]onstitutional protection does extend to the public servant whose

exclusion pursuant to a statute is patently arbitrary or discriminatory."

Wieman v. Updegraff, 344 U.S. 183, 192 (1952). Courts have defined

arbitrary and capricious as "willful and unreasonable action without

consideration or in disregard of facts or without determining

principle."”

In Drown v. Portsmouth School District, 451 F.2d 1106 (1st

*BLACKS LAW DICTIONARY 96 (Sth ed. 1979). For additional definitions of

arbitrary and capricious see United States v. Carmack, 329 U.S. 230, 243 n.14

(1946). Arbitrary is defined as “without adequate determining principle . . . [or]

fixed or arrived at through an exercise of will or by caprice, without consideration

or adjustment with reference to principles, circumstances, or significance, . . .

decisive but unreasoned...." /d. Capricious is defined as “apt to change

suddenly, freakish; whimsical; humorsome". /d. See also Bruno's, Inc. v. United

States, 624 F.2d 592, 594 (Sth Cir. 1980)\arbitrary and capricious means either

“unwarranted in law" or "without justification in fact."); Dynalectron Corp. v.

United States, 659 F. Supp. 64, 68 (D.D.C. 1987) (one indicia of arbitrary and

capricious conduct is "subjective bad faith.").

21

Cir. 1971), the First Circuit followed the Fourth Circuit's rationale in

Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966), cert. denied, 385

U.S. 1003 (1967) and found a substantive due process violation

where the reasons for the discharge were "simply too insignificant to

justify the ultimate sanction of non-renewal." Drown, 451 F.2d at

1108; see generally, Kelly v. Johnson, 425 U.S. 238, 244, 247-48

(1976); Harrah Independent School Dist. v. Martin, 440 U.S. 194,

197 (1970); cf. Morris v. Board of Educ. of the Laurel School Dist.,

401 F. Supp. 188, 201 (D.Del. 1975). The court in Drown explained

that a reason may be arbitrary and capricious in any of three ways:

1) If the reason is unrelated to the particular process

involved or to the working relationships within the

institution;

2) If the reason is trivial; or

3) If "it is wholly unsupported by a basis in

uncontested fact either in the statement of reasons

itself or in the [employee's] file."

22

Drown, 451 F.2d at 1108. Drown allows employees to challenge the

factual significance of the reasons for the discharge. Thus, the

substantive basis of the discharge is directly in issue and its outcome

is generally determinative.

Professor Huang has alleged, and supported his allegations

with evidence, that these individuai defendants acted arbitrarily and

capriciously, with improper motive and based their actions upon

trivial reasons.

The Arbitrary and Capricious Standard

In Johnson v. Branch, 364 F.2d 177, 181 (4th Cir. 1966), cert.

denied, 385 U.S. 1003 (1967), the Fourth Circuit was one of the first

circuit courts to hold that reasons underlying an employee discharge

may be arbitrary, capricious, or trivial and may, therefore, violate the

employee's right to substantive due process.'’ In Johnson, the Fourth

‘The underpinnings of Johnson are traced to Wieman v. Updegraff, 344 U.S. 183,

192 (1952), where this Court explained that "constitutional protection does extend

to the public servant whose exclusion . . . is patently arbitrary or discriminatory."

In Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 240 (1988), the Court

reaffirmed this theory by holding that the government cannot arbitrarily interfere

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23

Circuit concluded that the termination of a public school teacher must

be based upon fact and supported by reasoned analysis." Johnson,

364 F.2d at 181. Thus a terminated public employee may attack the

subsiantive validity of the asserted grounds for the adverse

employment action. This is exactly what Dr. Huang has done, by

submitting genuine issues of material fact that the individual

defendants worked collectively together to orchestrate his

termination, not based upon his employment record, but rather on

their elaborate thought out plan to get rid of Dr. Huang within two

years.

The Improper Motive Standard

In Barnett v. Housing Authority of the Cit, of Atlanta, 707

F.2d 1571, 1577-78 (11th Cir. 1983), the Eleventh Circuit held that

a discharge for pretextual, improper reasons constitutes a substantive

with even a private sector employment relationship. Weiman and Mallen have thus

laid the fundamental groundwork for the lower courts applying substantive due

process in public employment cases. The time has come for elaboration as to what

kind of evidence will suffice to get to the jury.

24

due process violation. Accord Hearn v. City of Gainesville, 688 F.2d

1328, 1332-33 (11th Cir. 1982); see also, Roane v. Callisburg Indep.

School Dist., 511 F.2d 633, 639 (Sth Cir. 1975); Crocker v. United

States, 127 F. Supp. 568 (Ct. Cl. 1955); Morrison v. Board of Educ.,

1 Cal.3d 214, 461 P.2d 375, 82 Cal. Rptr. 175 (1969). Barnett, an

employee of the city housing authority, introduced substantial

evidence indicating that the alleged basis for his discharge,

insubordination and his superiors’ lack of confidence, were pretextual.

Barnett's evidence suggested that Board members were angered over

public pressure over the selection of a particular Maestied

attempted to make Barnett a scapegoat for the increasing public

pressure. The crux of Barnett's substantive due process claim was

that the actual motive for his discharge differed from the asserted

reasons and tiiat the actual reasons were improper. Unlike Dr. Huang,

Barnett got his day in court: the jury found in his favor.

Perhaps the leading case grounded upon the improper motive

standard of substantive due process protection is Hearn v. City of

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Gainesville, 688 F.2d 1328 (11th Cir. 1982); cf. Silverman v. Barry,

845 F.2d 1072, 1080 (D.C. Cir. 1988)(personal or group animus as

improper motive for substantive due process recognized). In Hearn,

the Eleventh Circuit upheld a $52,500 verdict for a discharge in

violation of substantive due process. Jd at 1336-37. There, the

employee was purportedly discharged due to a layoff. /d. at 1331.

However, the employee contended, and the jury found, that the

alleged layoff was a "phony arrangement" and that the employee was

discharged because of "animosity" by the personnel department head.

Id. at 1332. The discharge controverted substantive due process

because it was "for an improper motive and by means that were

pretextual, arbitrary and capricious .. ." /d. (citations

omitted).

Thus, these cases illustrate that a claim can be maintained

wherein the asserted reasons are not the real reasons for termination.

These methods of constitutionally improper decision making are

precisely what Professor Huang alleged, and on which he offered a

26

forecast of evidence. The defendants’ evidence, at a minimum, only

created an issue of fact for the jury.

The Triviality Test

An example of the triviality test at work is Fisher v. Snyder,

476 F.2d 375 (8th Cir. 1973), affirming, 346 F. Supp. 396 (D. Neb.

1972), where the employee was dismissed for "conduct unbecoming

a teacher." The alleged unbecoming conduct consisted of overnight

visits in the plaintiff's home by her son's friends. The defendant's

finding of "unbecoming conduct" was premised on the fact that the

plaintiff was a single woman and that the overnight visits were

therefore improper. However, the Eighth Circuit rejected that

rationale and found a violation of substantive due process reasoning

that the decision to discharge the plaintiff was improper as the

decision was not supported by a legitimate basis in fact. /d. at 377-78.

Fisher stands for the proposition that a trivial reason cannot

constitutionally support a termination of a public employee. Use of

the years-old incidents which had already been adjudicated in Dr.

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Huang’s transfer out of the BAE Department once again to terminate

him were trivial.

Summary

The time has come for this Court to give guidance to the

lower courts as to what constitutes a threshold showing of evidence

for purposes of summary judgment in the context of an allegation of

violation of substantive due process in the public employment arena.

Dr. Huang has made such a threshold showing and requests this Court

issue the Writ of Certiorari to clarify this important question of

federal law.

CONCLUSION

For the foregoing reasons this Petition for the Writ of

Certiorari should be granted.

Respectfully submitted,

J. Matthew Martin J. Kirk Osborn

Martin & Martin, P.A. Counsel of Record

133 East King Street Suite 421, 100 Europa Drive

Hilisborcugh, NC 27278 Chapel Hill, NC 27514

(919) 732-6112 (919) 929-0987

NO.

SHPSSCSHSSSSSSSSHSSSSESSSESSSHESEHESH ESE ESE EERE EEEES

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

SSSSSSSHSSHSSSSSSSSSSSESHESSSSSESSESHESESESE HEHEHE SEEEEEEEEES

Barney K. Huang,

Petitioner,

Vv.

Becky R. French, Thomas J. Ziko, Bruce R. Poulton,

Board of Governors of the University of North Carolina,

North Carolina State University,

Respondents.

SSSSSSSSSSSSSSSSSSSHSSESSSESSSESHSSSSSSESESS ES SSE ES HEEES

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Fourth Circuit

SSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSESSSSSHSSS SESE SE SESS

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

SSSSSSSSSSSSSSSSSSSSSSSSSSSSSESSSSSSESSESSSESE SHES EEESS

COUNSEL OF RECORD FOR PETITIONER:

J. Matthew Martin J. Kirk Osborn

Martin & Martin, P.A. Counsel of Record

133 East King Street Suite 421, 100 Europa Drive

Hillsborough, NC 27278 Chapel Hill, NC 27514

(919) 732-6112 (919) 929-0987

Brief Printing Specialists, Inc., 001 E. Main Street, Suite 210

Richmond, Virginia 23219, (804) 644-0700

A-l

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BARNEY K. HUANG,

Plaintiff-Appellant,

Vv.

BECKY R. FRENCH; THOMAS J. ZIKO

BRUCE R. POULTON; BOARD OF

GOVERNORS OF THE UNIVERSITY OF

NORTH CAROLINA; NORTH

CAROLINA STATE UNIVERSITY,

Defendants-Appellees,

No. 93-1314

and

TROY A. DOBY; JOHN N. GREGG,

Defendants.

tlt tl i i i

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, District Judge.

(CA-91-393-5-CIV-BR)

Argued: July 12, 1993

Decided: December 7, 1995

Before ERVIN, Chief Judge, and BUTZNER and PHILLIPS,

Senior Circuit Judges.

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Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: John Kirk Osborn, Chapel Hill, North Carolina; J.

Matthew Martin, MARTIN, MARTIN & MARTIN, P.A.,

Hillsborough, North Carolina, for Appellant. Tiare Bowe Smiley,

Special Deputy Attorney General NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for

Appellees. ON BRIEF: Michael F. Easley, Attorney General of

North Carolinas NORTH CAROLINA DEPARTMENT OF

JUSTICE, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit. See

1.0.P. 36.5 and 36.6.

OPINION

PER CURIAM:

Barney K. Huang, formerly a tenured professor at North

Carolina State University (NCSU) brought this employment

discrimination action in which he challenged his dismissal from the

University faculty on numerous statutory and constitutional grounds.

The district court granted summary judgment in favor of the

defendants on each of Huang's theories of recovery. Huang appealed

and we affirm the grant of summary judgment.

This is the latest in a series of civil and criminal actions

involving Huang as a result of an inter-departmental transfer, criminal

charges and finally his dismissal from the faculty of NCSU. The first

lawsuit is reported in Huang v. Board of Governors of University of

N.C., 902 F.2d 1134 (4th Cir. 1990), where this court held inter alia,

that Huang's inter-departmental transfer did not involve an

infringement of a constitutionally protected property interest.

In June of 1988, Huang was charged with attempted second

degree rape and assault on a female by Grace Li Wang. When he was

ultimately brought to trial, a jury acquitted him of the second-degree

rape charge by found him guilty of assault on a female. Huang

appealed his conviction to the North Carolina Court of Appeals,

which overturned his conviction and granted him a new trial based on

an improper allowance of expert testimony by the Superior Court.

See State v. Huang, 394 S.E.2d 279, 283-4 (N.C. App.), disc rev.

denied, 399 S.E.2d 127 (N.C. 1990). At oral argument, we were

informed by Huang's counsel that these criminal charges were

ultimately dismissed.

At about the time Huang filed the present suit, he also filed a

companion case in state court, challenging his dismissal under the

North Carolina Administrative Procedure Act, 150B N.C. Gen. Stat.

§§ 150B-1 to B-57 (1991 and Supp. 1992), and asserting claims of

breach of contract and intentional infliction of emotional distress.

The trial court granted Huang's motion for summary judgment on the

breach of contract claim and awarded summary judgment in favor of

the defendants on the emotional distress claim. On appeal, however,

the North Carolina Court of Appeals vacated the trial court's

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remedies. See Huang v. North Carolina State University, 421 S.E.2d

812, 815 (N.C. App. 1992). After he exhausted his administrative

remedies, the State trial court again heard the matter on Huang's

appeal from the final administrative decisions of the Board of

Governors of the University of North Carolina and North Carolina

State University. The trial court reversed those final administrative

decisions discharging Huang and ordered that Huang be reinstated to

his former position with full back pay and benefits. The respondents

then appealed to the North Carolina Court of Appeals, and a panel of

that court, by a vote of 2 to 1, affirmed the decision of the trial court

in favor of Huang. Dismissal Proceedings Against Huang, 431

S.E.2d 541 (N.C. App. 1993). A subsequent appeal to the North

Carolina Supreme Court resulted in an order reversing the decision of

the Court of Appeals and remanding the matter for the entry of an

order upholding the University's action. Matter of Dismissal

Proceeding's Against Huang, 441 S.E.2d 696 (N.C. 1994) (per

curiam).

B.

Barney K. Huang, a naturalized citizen from Taiwan,

instituted this action on June 21, 1991 challenging his dismissal as a

tenured professor from the faculty of North Carolina State University.

In his complaint, Huang asserted: (1) an equal protection claim under

42 USC § 1983 and Article I, Section 19 of the North Carolina

Constitution; (2) a discrimination and retaliation claim under Title

VII of the Civil Rights Act of 1964, 42 USC § 2000e-2(a) and 3(a);

(3) a due process claim under both the Fourteenth Amendment to the

Federal Constitution and Article I, Sections 1 and 19 of the North

Carolina Constitution; (4) a free speech claim under the First

Amendment to the Federal Constitution; and (5) an age

discrimination claim under the Age Discrimination in Employment

Act, 29 U.S.C. §§ 621 et seq ("ADEA"). The district court held: (1)

a

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that Huang had agreed to the entry of summary judgment as to

defendants Doby and Gregg: (2) that Huang's Title VII discrimination

claims were time-barred by the 180 day statute of limitations for

bringing a claim for administrative relief to the attention of the

EEOC; (3) that Huang's discrimination claim under 42 USC § 1983

should be dismissed because Huang had failed to prove

discriminatory motive on the defendants’ part; (4) that Huang's

retaliatory discharge claim should be dismissed because Huang had

failed to show a causal connection between his exercise of protected

rights (i.e., the filing of an EEOC claim) and his discharge; (5) that

Huang had failed to show how any of his rights to substantive and

procedural due process under the Fourteenth Amendment, as defined

respectively by the Federal Constitution and state law, had been

violated by the conduct of the hearings that resulted in the

recommendation of his discharge; and (6) that as a result of its rulings

on Huang's federal law claims, it no longer had jurisdiction to

entertain Huang’s supplemental state-law claims, and dismissed them

without prejudice. :

The district court then granted the defendants’ motion for

summary judgment in all respects. Huang appealed to this court. He

did not dispute that summary judgment was warranted as to his First

Amendment and ADEA claims. He also conceded that summary

judgment in favor of defendants Doby and Gregg was proper. Huang

assigned error to only one of the district court's rulings. He contended

that the district court erred in concluding that the conduct of the

Faculty Hearing Committee which led to his ultimate discharge from

the NCSU faculty did not deny him procedural and substantive due

process rights as guaranteed by the Fourteenth Amendment.

At oral argument on July 12, 1993 we were advised of the July

6, 1993 decision of the North Carolina Court of Appeals and that the

defendants would appeal from that ruling to the North Carolina

A-6

Supreme Court. As a consequence we on July 21 entered an order

placing this case in abeyance pending a decision by the Supreme

Court of North Carolina. That decision was rendered on April 8,

1994. 441 S.E.2d 696. We then permitted the parties to file

supplemental briefs addressing the preclusive effect of that Supreme

Court decision. '

IT.

We have given due consideration to the briefs, supplemental briefs

and arguments of the parties, and we affirm the judgment of the

district court for the reasons set forth in its opinion. Huang v.

French, et al., No. 91-393-CIV-5-BR. EDNC, January 11, 1993.

AFFIRMED.’

'It is likely that the decision by the North Carolina Supreme Court has no preclusive

effect on the federal claims, see Davenport v. North Carolina Dept. of Transp., 3

F.3d 89 (4th Cir. 1993); it may have some preclusive effect on an issue of fact, i.e.,

the issue of assault on Ms. Wang. We elect not to decide this appeal on that

ground.

>The appellant's motion to file a corrected appendix is granted.