JIMENEZ v. ALMODOVAR

Rehearing and Rehearing En Banc Denied July 21, 1981.

WYZANSKI, Senior District Judge.

Two professors, whose employment a public university had terminated solely because it eliminated their positions as unnecessary because of a bona fide change of its academic program, brought this 42 U.S.C. § 1983 action against the university, its president, and others on the ground that they, in terminating the plaintiffs' employment, deprived them of their property without the due process of law guaranteed by the Fifth or the Fourteenth Amendment1 to the United States Constitution. The plaintiffs appeal from a judgment for the defendants. The essential facts are undisputed.

The University of Puerto Rico is a public instrumentality created by Act No. 1 of January 20, 1966, as amended. 18 LPRA §§ 601-614. It operates a number of separate institutional units each having a substantial degree of academic and administrative autonomy. 18 LPRA §§ 603, 606. The Council on Higher Education is the governing board of the university system. 18 LPRA § 602(f)(1). Among the Council's duties is to pass on appeals taken against decisions of the president of the university. 18 LPRA § 602(e)(6).

Humacao University College until 1975 was a Regional College. Act No. 1 of January 20, 1966, 18 LPRA § 611(d), gave the University of Puerto Rico general jurisdiction of Humacao, but Humacao retained its separate academic faculty.

On January 14, 1972 the Council on Higher Education approved for the then Humacao Regional College a program for an associate degree in physical education and recreation to be conducted as a pilot program (hereafter called "the pilot program"), the duration of which was made dependent upon a subsequent evaluation.

The university on September 1, 1970 employed Maria L. Garcia-Feliciano as a temporary instructor and two years later assigned her to the pilot program. On August 15, 1972, the university gave the plaintiffs — Raul E. Medina Jimenez and Jorge H. Garofalo Pastrana — temporary appointments in the pilot program. On July 1, 1977 the then president of the University wrote to each of the three persons just named identical letters having the following text:

In the pre-trial agreement in this case it has been stipulated that the foregoing July 1, 1977 letters appointed each of the plaintiffs "a tenured professor of the University of Puerto Rico."

On July 19, 1978 the current president of the university — the defendant Ismael Almodovar — wrote to each of the aforesaid three persons identical letters having the following text:

Each of the two teaching positions of the Physical Education Department which were not eliminated was held by a professor senior to the three recipients of the aforesaid letter.

The plaintiffs do not question that the university in reducing the number of professors in the Physical Education Department acted in good faith, exclusively for the reasons stated in the July 19, 1978 letter, and without any motive or intention to dismiss the plaintiffs on "personal grounds" — a term here used to include not only dismissals for cause, or for fault, or for deficiency of any kind, but also to include dismissals reflecting any superior's personal attitude toward a plaintiff or any other individual.

Nor do the plaintiffs question that if eliminations were justified, the university, in selecting for elimination the plaintiffs rather than the two professors who were not eliminated, acted in good faith, on the basis of an appropriate standard of seniority of service and not on "personal grounds," as above defined.

On July 26, 1978, the plaintiffs were given an informal hearing by Mr. Pedro Juan Barbosa, assistant to President Almodovar, whom the president, being ill, had designated as his representative for the hearing. Mr. Barbosa informed the plaintiffs that seniority was the only criterion on which the president had based his decision. He also invited them to set forth any grievances or challenges they might make against the decision under which their employment would terminate on August 15, 1978. None was raised by the plaintiffs at that time.

The plaintiffs have never appealed from the president's July 19, 1978 decision effective August 15, 1978 eliminating their positions and terminating their employment. It is inferable that they knew that such an appeal was available because, to the knowledge of plaintiff's counsel, their colleague Maria L. Garcia-Feliciano appealed, pursuant to 18 LPRA § 602(e)(6), the decision against her to the Council on Higher Education. The Council has ordered a full evidentiary hearing of her appeal before a hearing examiner, pursuant to Articles 6, 10, 11 and 12 of Chapter IX of its by-laws, but, in accordance with a stipulation of the parties, the Council stayed the hearing pending the outcome of the present action.

Meanwhile, President Almodovar had been seeking to secure positions within the university for the plaintiffs. On July 19, 1978, the very day he transmitted to the plaintiffs and Maria L. Garcia-Feliciano the termination letters, the president directed to each of the chancellors and directors of the other university colleges within the university an inquiry as to whether any position was available for any of the three professors being eliminated. The president pursued these inquiries by telegrams sent at a later date.

On August 2, 1978, the Aguadilla College of the University of Puerto Rico employed Maria L. Garcia-Feliciano, who was senior to the plaintiffs, at the same rank and salary she had enjoyed at Humacao University College.

On September 6, 1978, the president offered both the plaintiffs the only teaching position then available at the Carolina Regional College of the University of Puerto Rico. At the same time, the president offered to the plaintiff Medina Jimenez, and later offered to the other plaintiff, Garofalo, an administrative position at Humacao University College. Medina Jimenez accepted effective October 2, 1978 the teaching position at Carolina Regional College, with the same rank and salary he enjoyed at Humacao University College. He still holds that position. He has also received retroactively to August 15, 1978 his salary. The other plaintiff, Garofalo, did not accept any position then or later.

On April 5, 1979, the president of the university offered plaintiff Medina Jimenez a teaching position in Humacao University College — a position which was in every respect similar to the one he had previously held in that college, including tenure and rank, plus an administrative, tenured position as the administrator of the new sports facilities in said college. The president offered plaintiff Garofalo the position occupied by plaintiff Medina Jimenez in the Carolina Regional College "that will be left vacant by the latter in case he accepts the offer made to him." Both positions were to be occupied immediately, retroactively as of April 1, 1979. On August 11, 1979, Medina Jimenez declined the offer made to him, so the Carolina position did not become available to Garofalo.

On July 28, 1978, the plaintiffs filed in the district court a complaint alleging that the defendants had taken their property without due process of law and had denied them the equal protection of the laws,2 and seeking an injunction ordering the defendants "to continue the plaintiffs in their posts as tenured teaching staff of the University of Puerto Rico" and a payment of "their back salaries in full." Without a jury, the district judge heard the evidence, made findings, and, dismissing the complaint, entered judgment for the defendants.

The plaintiffs appealed. Inasmuch as there is no significant difference in the status of the plaintiff Medina Jimenez and the plaintiff Garofalo, we shall, for convenience, hereafter address the opinion principally to Medina Jimenez's case and to his claim that the defendants deprived him of his property and his liberty without due process of law.3

Medina Jimenez's principal contention is that the defendants deprived him of his property rights under Puerto Rican law, including his right under 18 LPRA § 613(c) not to be deprived of his position without a hearing in which charges are preferred and he has an opportunity to defend himself. We do best to reach that contention against a broad background.

Such property rights as Medina Jimenez has were created by the law of Puerto Rico, not by the United States Constitution. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). It having been stipulated that he is a "tenured professor of the University of Puerto Rico," we shall assume that he had property rights4 of which he cannot be deprived without due process of law. Perry v. Sindermann, supra. But those property rights were only sketchily outlined by the express terms of the July 1, 1977 contract letter: the letter written by the president of the University of Puerto Rico [not by the head of Humacao University College] made Medina Jimenez "a permanent member of the University [not merely of Humacao University College] teaching staff" and "incorporated [him] in the group of regular collaborators which integrate the Institution." No reference was made to his salary, exact title, relationship to any discipline, program, department, or college, or to any university regulations, or to the university's right to terminate his employment. There is an obvious need to fill in this outline with implied terms and conditions of employment.

In filling in the implied terms and in interpreting the contract, the most important sources are any relevant university regulations, such as those adopted pursuant to 18 LPRA § 602(e)(12), or § 608(b), or § 613(b) and (c), or local statutes, such as 18 LPRA § 613(c). Cf. Browzin v. Catholic University of America, 527 F.2d 843, 845, 848 (D.C.Cir.1975).

In performing those functions, we are bound by relevant decisions of the Puerto Rico courts or, in their absence, by principles of American law, not of civil law. Belaval v. Secretary of the Treasury, 83 PRR 244, 247 (1961).

We have not found any Puerto Rican authorities which govern this case.

American courts5 and secondary authorities6 uniformly recognize that, unless otherwise provided in the agreement of the parties, or in the regulations of the institution, or in a statute, an institution of higher education has an implied contractual right to make in good faith an unavoidable termination of right to the employment of a tenured member of the faculty when his position is being eliminated as part of a change in academic program. The American court decisions are consistent with the 1940 Statement of Principles on Academic Freedom and Tenure widely adopted by institutions of higher education and professional organizations of faculty members. 60 AAUP Bulletin 269-272 (1974). See Bignall v. North Idaho College, Browzin v. American Catholic University, and Scheuer v. Creighton University, supra. That the institution has an implied right of bona fide unavoidable termination due to changes in academic program is wholly different from its right of termination for cause or on other personal grounds is plainly recognized in the following definition of tenure of the Commission on Academic Tenure in Higher Education, Faculty Tenure: A Report and Recommendations (1973):

The foregoing authorities lead to the conclusion that, unless a Puerto Rican statute or a university regulation otherwise provides, the instant contracts should be interpreted as giving the University of Puerto Rico an implied right of bona fide unavoidable termination on the ground of change of academic program.

There are no preclusive Puerto Rican statutes. The plaintiffs' reliance on 18 LPRA § 613(c) is misplaced. Section 613(c) provides that:

The text and the underlying purpose of § 613(c) make it evident that, like comparable state statutes governing the removal of faculty members for cause, § 613(c) is limited to removals based on ad hominem or personal grounds which "touch the qualifications or performance of the professor's duties, showing that he is not a fit or proper person to hold the position." State ex rel Richardson v. Board of Regents, 70 Nev. 144, 261 P.2d 515 (1953); Ziegler v. City Manager, 115 N.J.L. 328, 180 A. 225, 226 (1925). See Brown, Tenure Rights in Contractual and Constitutional Context, 6 J. Law & Ed. 280, 281-282 (1977). By itself, the use of the word "removed" strongly suggests that the statute is addressed to a movement of a person out of a position rather than to the elimination of a position. Of greater significance is the fact that the procedure prescribed by § 613(c) with its reference to the "preferment of charges" and the "opportunity to defend" is tailored to the removal of a person on account of his personal fault or deficiency and is unsuitable for the resolution of a controversy as to the authenticity of the reasons asserted by an institution for the termination of a faculty member's position and as to the reasonableness of the standards employed to single out his position for elimination. See Browzin v. Catholic University of America, 527 F.2d 843, 847 (D.C.Cir.1975); Finkin, The Limits of Majority Rule in Collective Bargaining, 64 Minn.L.Rev. 183, 244 (1980). Moreover, it is a reasonable inference that when the Puerto Rican legislature enacted § 16 of Act No. 135, Laws of Puerto Rico, 1942, and Act No. 334, Laws of Puerto Rico, 1949 which are the source of § 613 of 18 LPRA, the legislature, being aware of and intending to preserve the distinction drawn by the 1940 Statement of Principles on Academic Freedom and Tenure between a dismissal for cause or other personal grounds and a dismissal for impersonal institutional reasons, had a purpose to limit what is now § 613(c) to ad hominem dismissals for cause, or other personal grounds.7

So far as we know, there are no relevant regulations. The only University of Puerto Rico regulation cited to us has no bearing upon the issues in this case. It does not impose any duty upon the university, nor give a faculty member any right; on the contrary, it gives the university a right to impose upon a faculty member a duty to do a full week's work for a full week's pay.8

Having concluded that the university had an implied right of bona fide unavoidable termination of the contracts of the tenured members of the faculty on the ground of change of academic program, and that such right could be exercised by a procedure different from the one set forth in 18 LPRA § 613(c), we now consider what procedure the university did afford the plaintiffs and examine it in the light of the procedural aspects of the due process clause. The plaintiffs, as they presumably knew, had the right to a hearing by an intramural administrative tribunal9 which was empowered to receive evidence, to direct that the university give the plaintiffs employment substantially equivalent to their last employment, and probably to award damages, 18 LPRA § 602(e)(6). The decision of the tribunal was subject to review by a Puerto Rican court which had even greater powers. Gonzalez Saldana v. Superior Court, 92 P.R.R. 462, 471-473 (1965). See Gonzalez Saldana v. Superior Court, 96 P.R.R. 119 (1968); Rivera v. Chancellor of the University of Puerto Rico, 73 P.R.R. 361 (1952); Nunez v. Chancellor, 65 P.R.R. 812 (1946).

That procedure fully satisfied the procedural requirements of the due process clause. Bignall v. North Idaho College; Johnson v. Board of Regents, supra; Needleman v. Bohlen, 602 F.2d 1, 5 (1st Cir. 1979). Indeed, the plaintiffs have not pointed to any alleged shortcoming of the procedure other than its failure to comply with 18 LPRA § 613(c).

It seems that the plaintiffs also contend that they were deprived of their property without substantive due process of law.

Perhaps the plaintiffs mean merely that they were deprived by the university of substantive due process because it did not follow its own regulations and 18 LPRA § 613(c). Violations of a university's own procedural regulations have been held, on the ground that they were violations of the university's own contracts, to be a deprivation of substantive due process. Brenna v. Southern Colorado State College, 589 F.2d 475, 477 (10th Cir. 1978); Bignall v. North Idaho College, supra, 248-249. We are not required to express agreement or disagreement with that doctrine of substantive due process inasmuch as here the university did not violate its own regulations or any Puerto Rican statute impliedly included in the contract.

However, it may be that the plaintiffs are contending that they were deprived of substantive due process on one or more of the following grounds: that if the contract implied that the university had a right of bona fide unavoidable termination of the plaintiff's employment on account of change of academic program, then (1) the university in the instant case has not borne the burden of showing that its termination was "unavoidable" (cf. Bignall v. North Idaho College, supra, 249), or (2) the contract includes an implied obligation that the university shall not make the termination of a tenured faculty member's employment effective (a) until a reasonable time after the university informs him of his impending dismissal and (b) until the university has for a reasonable time exercised its best efforts to place him in another suitable position equivalent to the one eliminated. We emphatically state that we express no opinion on the merits of those possible contentions; they raise questions of state contractual law, and, in addition, at least the first and perhaps all of those contentions raise a problem as to exhaustion of available state administrative remedies. Cf. Bignall v. North Idaho College, 246. We are not here exercising pendent or other jurisdiction over a purely local cause of action. We decide only such state contractual questions as are necessary to determine whether the plaintiffs have been deprived of their procedural rights of due process under the United States Constitution. If the university by terminating the plaintiffs' contracts failed to accord them only their substantive contractual rights, we are not concerned. A mere breach of contractual right is not a deprivation of property without constitutional due process of law. Bishop v. Wood, 426 U.S. 341, 349-350, 96 S.Ct. 2074, 2079-80, 48 L.Ed.2d 684 (1976). Otherwise, virtually every controversy involving an alleged breach of contract by a government or a governmental institution or agency or instrumentality would be a constitutional case.10

There being no proof that the university's dismissal of the plaintiffs involved a stigma or reflection on their reputation, they were not deprived of their "liberty" in violation of the due process clause. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405; Beitzell v. Jeffrey, 643 F.2d 870, (1st Cir. 1981); Zimmer v. Spencer, 485 F.2d 176, 179 (5th Cir. 1973).

Inasmuch as on the undisputed facts the plaintiffs did not have a valid cause of action based on the alleged deprivation by the defendants of their due process rights, it is a moot question whether the trial judge erred in accepting verbatim the defendants' proposed findings. Likewise, it is a moot question whether the trial judge erred in considering without a jury the plaintiffs' equitable claim before a jury could find the facts in connection with the plaintiffs' legal claim.

Affirmed.