UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-20751
EUGENE M. HARRINGTON; MARTIN LEVY; THOMAS KLEVEN,
Plaintiffs-Appellees,
VERSUS
WILLIAM H. HARRIS, ET AL.,
Defendants,
JAMES M. DOUGLAS; CALIPH JOHNSON;
TEXAS SOUTHERN UNIVERSITY,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
July 21, 1997
REVISED OPINION
Before REYNALDO G. GARZA, DeMOSS, and PARKER, Circuit Judges.
DeMOSS, Circuit Judge:
The opinion issued in this case under date of March 14, 1997,
is withdrawn and the following is issued in place thereof.
In this proceeding tried by consent before a magistrate judge,
the jury found that three white law school professors, Plaintiffs
Eugene M. Harrington, Martin Levy, and Thomas Kleven, of state-
1
supported Texas Southern University’s Thurgood Marshall School of
Law in Houston, Texas, had been discriminated against by the law
school’s dean, Defendant James M. Douglas, on the basis of
protected speech, and by the school’s associate dean, Defendant
Caliph Johnson, on the basis of their race. The jury also found
that Defendants Douglas and Johnson violated Plaintiffs’
substantive due process rights. The jury awarded compensatory and
punitive damages and judgment was entered. Holding that judgment
as a matter of law should have been entered against Plaintiffs’ as
to their claims under § 1983 for First Amendment free speech
retaliation, we reverse as to that issue, but affirm as to the
issues of § 1981 race discrimination and Fourteenth Amendment
substantive due process.
BACKGROUND
Appellees/Plaintiffs Eugene M. Harrington (“Harrington”),
Martin Levy (“Levy”), and Thomas Kleven (“Kleven”) are tenured
faculty members of the Texas Southern University Thurgood Marshall
School of Law (“the law school”) in Houston, Texas. They have been
on the law school’s faculty since 1966, 1972, and 1974,
respectively. The parties do not dispute that the law school is a
public university with a historically black majority enrollment.
In 1981, Appellant/Defendant James Douglas (“Douglas”) was
named dean of the law school. Appellant/Defendant Caliph Johnson
(“Johnson”) had been on the law school faculty since 1975 and
served as associate dean from 1990 to 1992.
2
During Douglas’ first semester as dean, Harrington and Levy
approached Douglas concerning a Student Bar Association (“SBA”)
recommendation to appoint only black students to representative
positions on various law school committees. Harrington and Levy
believed that non-black student representation was important and
they solicited Douglas to disregard the SBA recommendation and
appoint non-black students.1 It is unclear how Douglas reacted to
their suggestions. Ultimately, the university president and a
Texas state senator became involved and non-black students were
subsequently appointed to the committees. Levy claims that the
following year he received the lowest salary recommendation of any
member on the faculty.
In May 1983, thirteen law school professors, including Levy
and Kleven, signed a document entitled, “Bill of Particulars.” In
this document, the signatories complained that Dean Douglas
discriminated against certain professors as to salaries, that he
failed to adhere to law school policies, and that he mishandled
various administrative duties. The Bill of Particulars addressed:
the professors’ concerns regarding American
Bar Association (ABA) mandates, extreme
insensitivity to the role of the Chicano
students in the Law School, unilateral
reduction of courses resulting in harm to
students, reversing a long-standing policy on
Senior Priority exams, unilateral increase in
enrollment at the Law School, and such
administrative matters as jeopardizing the
status of the Law School by failing to develop
1
The law school constitution allowed the Dean to appoint faculty
representatives to the law school committees. Student representa-
tives were chosen by the SBA.
3
a plan for the clinical program, and failing
to properly certify Law School graduates for
the July 1982 Bar exam.
This Bill of Particulars also addressed the signatories’ concern
that certain professors had received arbitrary or unfair
performance evaluations or salary increases. Appellee Harrington
did not sign this document.
One month later, another letter was sent to Douglas, further
detailing the professors’ concerns. Douglas sent no written
response. In July 1983, eight faculty members, including Levy and
Kleven, wrote to the university’s Vice-President for Academic
Affairs requesting that the university dismiss Douglas as dean of
the law school. Harrington did not sign this letter.
In early 1984, eighteen of the twenty-three full-time members
of the law school faculty, including Harrington, Levy, and Kleven,
participated in a vote of “confidence/no confidence” concerning
Douglas. Twelve members of the faculty voted “no confidence” and
six members abstained.
Approximately six months later, fifteen members of the law
school faculty, including all three Plaintiffs, wrote a letter to
the president of the university requesting that Douglas be removed
as dean. The university president denied their request.
Several months later, eight members of the law school faculty
wrote a letter to the President of the American Bar Association
complaining that the university’s refusal to remove Douglas
violated ABA guidelines. Following an investigation, the ABA
dismissed the complaint.
4
Beginning in 1985, Levy and Kleven, along with several of
their black colleagues, complained to both the university president
and vice-president about discriminatory treatment in their
salaries. In 1986, then vice-president William Moore allegedly
made salary adjustments for some of the professors, including Levy
and Kleven; however, Plaintiffs contend that they never received
these salary increases.
In 1988-89, Levy and Kleven again complained to the university
vice-president about unfair treatment in salaries and raises, and
were subsequently “awarded a partial adjustment for that year.”
In 1990, Levy and Kleven complained to then university vice-
president Bobby Wilson about Dean Douglas’ unfair treatment
regarding their salaries and raises. Levy subsequently received a
salary adjustment.
Later in 1990, vice-president Wilson developed a comprehensive
merit evaluation system.2 The merit evaluation system required the
individual faculty members to evaluate themselves on a point basis,
and then submit their self-evaluations to another appointed faculty
member for further review. Johnson, as associate dean of the law
school, was chosen to assess law school faculty’s self-evaluations
and recommend overall point totals to the dean. The merit
evaluations performed by Johnson formed the basis for the salary
increases to be awarded by Dean Douglas.
Plaintiffs state that Johnson failed to notify Harrington
2
Prior to the implementation of this system, the university did
not have a uniform faculty evaluation system.
5
about the newly implemented self evaluation form, even though
Johnson allegedly knew that Harrington was on sabbatical when the
form was adopted. Harrington never submitted a self-evaluation
form for the 1990-91 academic year. His failure to do so was
considered when salary increase determinations were made.
Plaintiffs state that, for the 1990-91 academic year, “Johnson
also lowered the points requested for all the white
professors...and raised the points requested for every Black
professor who used the identical form.”
In 1991-92, Harrington was awarded “professor of the year” by
all three student bar associations on campus. This same year,
Harrington was allegedly awarded the lowest percentage salary
increase of all full professors - 1%.
In 1991-92, Kleven received the “outstanding teacher of the
year award” from Texas Southern University and was asked to be a
speaker at the law school graduation. This same year, Johnson
allegedly lowered Kleven’s self-evaluation points because of
insufficient scholarship. Johnson, however, admitted to never
having read the scholarly work of Kleven.
Plaintiffs alleged that, by 1993, the disparity in salaries
between the average white full professors and average African
American full professors had grown to approximately $3,000 per year
even though, on average, the white professors had allegedly eight
years more longevity than the African American professors.
Plaintiffs allege that Harrington, who had been a professor longer
than any other, was ranked seventh in salary; Levy, who ranked
6
third in years, ranked ninth in salary; and Kleven, who tied Dean
Douglas in years as a professor, ranked tenth in salary.
At the time of trial, Harrington’s nine month salary was
$102,046, Levy’s nine-month salary was $98,297, and Kleven’s nine
month salary was $97,332. Harrington, Levy, and Kleven were among
the ten highest paid faculty at the law school.
After filing a complaint with the Equal Employment Opportunity
Commission, in 1993, Plaintiffs brought suit in federal court
alleging violations of their due process rights under the Fifth and
Fourteenth Amendments to the Constitution; violations of their
civil rights under the Civil Rights Act of 1871, 42 U.S.C. § 1983;
conspiracy to interfere with their civil rights under the Klu Klux
Klan Act, 42 U.S.C. § 1985; racial discrimination in violation of
equal protection under the Civil Rights Act of 1966, 42 U.S.C. §
1981; and violation of their right to free expression under the
First, Fifth, and Fourteenth Amendments to the Constitution, as
well as pendent state claims for breach of contract and intentional
infliction of emotional distress.
At trial, the following issues were submitted to the jury: a
§ 1983 claim for retaliation in violation of Plaintiffs’ right to
free expression under the First Amendment; claims under § 1981 and
Title VII for race discrimination; and a claim for violation of
Plaintiffs’ substantive due process rights.3 The jury returned
3
Prior to trial, the magistrate judge ruled, inter alia, that
Texas Southern University enjoys Eleventh Amendment immunity from
suit as to Plaintiffs’ § 1981 race discrimination and § 1983 free
speech retaliation claims. The magistrate judge also held that
Defendants are not liable in their individual capacities on
7
verdicts against Dean Douglas as to the § 1983 First Amendment
claim, and against Johnson as to the § 1981 race discrimination
claim. The jury also returned verdicts against both Dean Douglas
and Johnson as to Plaintiffs’ substantive due process claims.
Defendants timely filed a renewed motion for judgment as a matter
of law, which was denied by the magistrate judge.4 The magistrate
judge entered final judgment as follows:
1. Harrington was awarded $12,362 in compensatory damages
and $27,000 in punitive damages from Dean Douglas, plus $4,301 in
compensatory damages and $5,000 in punitive damages from Johnson.
2. Levy was awarded $20,320 in compensatory damages and
$27,000 in punitive damages from Dean Douglas, plus $6,201 in
compensatory damages and $5,000 in punitive damages from Johnson.
3. Kleven was awarded $23,285 in compensatory damages and
$27,000 in punitive damages from Dean Douglas, plus $7,501 in
compensatory damages and $5,000 in punitive damages from Johnson.
The magistrate judge additionally found, by a preponderance of
the evidence, that “Plaintiffs are currently underpaid with respect
to certain colleagues with comparable experience and
qualifications.” The magistrate judge found that “the underpayment
is a result of illegal discrimination based on race, retaliation
for the exercise of their first amendment rights and the arbitrary
Plaintiffs’ Title VII claim. The parties do not appeal these
rulings, hence, we will not address them.
4
Defendants had previously filed a motion for judgment as a
matter of law prior to submission of the issues to the jury, as is
required by FED. R. CIV. P. 50. The magistrate judge denied this
motion, as well.
8
and capricious manner in which performance evaluations were made.”
The court ordered the following injunctive relief: (1) that
Harrington’s salary for the 1994-95 academic year be raised to
$105,382 “in order to bring him into parity with Professor Otis
King,”5 and (2) that the salaries for Levy and Kleven be raised to
$102,767 for the 1994-95 academic year to bring them into parity
with the salary of Johnson. The magistrate judge awarded
attorneys’ fees and costs to Plaintiffs.
The Defendants timely filed the instant appeal.
DISCUSSION
On appeal, Defendants challenge the jury’s verdict as to Dean
Douglas on the § 1983 First Amendment claim; Johnson on the § 1981
race discrimination claim; and both Dean Douglas and Johnson on
Plaintiffs’ substantive due process claims. We will address each
issue in turn.
I. Section 1983 - First Amendment
Defendants first argue that Plaintiffs have not suffered a
constitutional deprivation under the First Amendment because
Plaintiffs’ speech did not involve matters of public concern, nor
did Douglas’ actions constitute an adverse employment decision.
For the following reasons, we hold that Plaintiffs have failed to
establish a § 1983 claim for free speech retaliation, and we
5
Otis King is a professor with seniority status.
9
reverse the jury’s verdict as to this issue.
Section 1983 provides that any person who, under color of
state law, deprives another of "any rights, privileges or
immunities secured by the Constitution and laws shall be liable to
the party injured in an action at law, suit in equity, or other
proper proceeding for redress...." 42 U.S.C. § 1983. “Rather than
creating substantive rights, § 1983 simply provides a remedy for
the rights that it designates.” Johnston v. Harris County Flood
Control Dist., 869 F.2d 1565, 1573 (5th Cir. 1989). “Thus, an
underlying constitutional or statutory violation is a predicate to
liability under § 1983.” Id. In this case, Plaintiffs claim that
the free speech provision of the First Amendment provides the
underlying constitutional violation.
To establish a § 1983 claim of retaliation for the exercise
free speech, Plaintiffs must prove that: (1) Defendants were acting
under color of state law; (2) Plaintiffs’ speech activities were
protected under the First Amendment; and (3) Plaintiffs’ exercise
of their protected right was a substantial or motivating factor in
Defendants' actions. Pierce v. Texas Dep’t. of Crim. Justice Inst.
Div., 37 F.3d 1146, 1149 (5th Cir. 1994); Mt. Healthy City School
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576,
50 L.Ed. 2d 471 (1977). We review de novo the legal question of
whether Plaintiffs’ allegations state a valid claim of retaliation.
Shultea v. Wood, 27 F.3d 1112, 1118 (5th Cir. 1994).
10
The parties do not dispute on appeal that Defendant Douglas
was acting under color of state law. Therefore, we must ask
whether Plaintiffs’ speech was protected under the First Amendment.
To assert a retaliation claim cognizable under the First Amendment,
a public employee must allege facts demonstrating that his speech
involved a matter of public concern, Shultea, 27 F.3d at 1118, and
that he “has suffered an adverse employment action for exercising
[his] right to free speech.” Pierce, 37 F.3d at 1149.
Assuming, without deciding, that the issues raised by
Plaintiffs are matters of public concern, the critical questions
are: (1) did Plaintiffs suffer an adverse employment action and, if
so, (2) was such adverse employment action taken in retaliation for
Plaintiffs’ exercise of free speech. For the following reasons, we
hold that Plaintiffs have failed to show that they suffered an
adverse employment action.
“Adverse employment actions are discharges, demotions,
refusals to hire, refusals to promote, and reprimands.” Id. Many
actions which merely have a chilling effect upon protected speech
are not actionable. Id. Actions such as “decisions concerning
teaching assignments, pay increases, administrative matters, and
departmental procedures,” while extremely important to the person
who has dedicated his or her life to teaching, do not rise to the
level of a constitutional deprivation. Dorsett v. Bd. of Trustees
for State Colleges & Universities, 940 F.2d 121, 123 (5th Cir.
1991).
11
On appeal, Plaintiffs argue that they experienced the
following adverse employment actions: Douglas evaluated Kleven’s
law school participation as being “counterproductive” and Douglas
perennially discriminated against Plaintiffs when making merit-
based salary increase determinations. For the following reasons,
we hold that neither of these actions rise to the level of a
constitutional deprivation.
First, assuming that Douglas did, in fact, criticize Kleven’s
participation as being counterproductive, Plaintiffs point to no
case law (nor do we find any) which holds that an employer’s
criticism of an employee, without more, constitutes an actionable
adverse employment action. In this case, the evidence is clear
that no Plaintiff has been discharged or threatened with discharge;
no Plaintiff has been demoted; no Plaintiff has been denied a
promotion; and no Plaintiff suffered a reduction in pay. In fact,
all Plaintiffs are tenured professors of law, having achieved the
highest rank available at the law school. All Plaintiffs still
teach at the law school and all Plaintiffs are among the law
school’s top earners. Regardless of the arguable merits behind
this, or any criticism, mere criticisms do not give rise to a
constitutional deprivation for purposes of the First Amendment.
Accordingly, Plaintiffs did not suffer an actionable adverse
employment action when Douglas criticized Kleven as being
counterproductive.
Next, Plaintiffs argue that they experienced an adverse
employment action when Douglas failed to award them certain merit
12
pay increases. For the purpose of this analysis, we assume,
without deciding, that Plaintiffs actually qualified for a merit
pay increase in some amount. The record is undisputed, however,
that each Plaintiff did in fact receive, during each school year
for which free speech retaliation is claimed, a merit pay increase;
and that their claim is more precisely stated as "we were not
awarded merit pay increases in the same amount as others or in the
amount to which we think we were entitled." We find nothing in
this record upon which a determination could be made that Douglas
was obligated to give the same dollar amount or the same percentage
increase to each professor to whom merit pay increases would be
awarded; and the variations in the amounts or percentages of merit
pay increases which he actually awarded were not significant. If
Plaintiffs had received no merit pay increase at all or if the
amount of such increase were so small as to be simply a token
increase which was out of proportion to the merit pay increases
granted to others, we might reach a different conclusion. But
under the facts of this case we are persuaded that the merit pay
increases actually awarded to Plaintiffs cannot be considered as an
adverse employment action. As this Court has previously stated in
Dorsett, any harm resulting from decisions concerning "pay
increases" does not rise to the level of a constitutional
deprivation.6 Dorsett, 940 F.2d at 124. After carefully reviewing
6
In Dorsett, we stated:
The continuing retaliatory actions alleged by
Dorsett appear to be nothing more than
decisions concerning teaching assignments, pay
13
the record and the case law, we hold that Plaintiffs’ proof of
adverse employment action in this case amounts to nothing more than
a dispute over the quantum of pay increases. Accordingly, the
Plaintiffs have not proved an actionable adverse employment
activity.
Having failed to establish a First Amendment violation,
Plaintiffs failed to prove a case for a § 1983 claim of retaliation
for the exercise of free speech. For these reasons, the magistrate
judge erred in failing to grant Defendants’ motion for judgment as
a matter of law, and the judgment of the magistrate court is
reversed as to this issue.
II. Sufficiency of the Evidence
Standard of Review
Defendants next challenge the sufficiency of the evidence as
to Plaintiffs’ claims that Johnson discriminated against them on
increases, administrative matters, and
departmental procedures....
In public schools and universities across
this nation, interfaculty disputes arise daily
over teaching assignments, room assignments,
administrative duties, classroom equipment,
teacher recognition, and a host of other
relatively trivial matters. A federal court
is simply not the appropriate forum in which
to seek redress for such harms.
We have neither the competency nor the
resources to undertake to micro manage the
administration of thousands of state
educational institutions.
Dorsett, 940 F.2d at 123-24 (emphasis added) (internal citations
omitted).
14
the basis of their race in violation of § 1981, and that Johnson
and Douglas arbitrarily and capriciously deprived them of merit pay
increases in violation of the Fourteenth Amendment.7 “A motion for
judgment as a matter of law ... in an action tried by jury is a
challenge to the legal sufficiency of the evidence supporting the
jury's verdict.” Hiltgen v. Sumral, 47 F.3d 695, 699 (5th Cir.
1995). “On review of the district court's denial of such a motion,
the appellate court uses the same standard to review the verdict
that the district court used in first passing on the motion.” Id.
A jury verdict must be upheld unless "there is no legally
sufficient evidentiary basis for a reasonable jury to find" as the
jury did. FED. R. CIV. P. 50(a)(1). “This court has consistently
applied this standard to show appropriate deference for the jury's
determination.” Hiltgen, 47 F.3d at 700. “A jury may draw
reasonable inferences from the evidence, and those inferences may
constitute sufficient proof to support a verdict.” Id. “On appeal
we are bound to view the evidence and all reasonable inferences in
the light most favorable to the jury's determination.” Id. “Even
though we might have reached a different conclusion if we had been
the trier of fact, we are not free to reweigh the evidence or to
re-evaluate credibility of witnesses.” Id. Within this broad
standard of deference, we “must focus on whether a reasonable trier
7
The parties do not dispute on appeal that Defendants properly
preserved these issues for appeal by asserting a timely motion for
judgment as a matter of law at the close of the case.
15
of fact could have concluded as the jury did.” Armendariz v.
Pinkerton Tobacco Co., 58 F.3d 144, 149 (5th Cir. 1995), cert.
denied, 116 S. Ct. 709 (1996).
Section 1981 Race Discrimination
Section 1981 provides that all persons in the United States
shall have the same contractual rights as white citizens.8 42
U.S.C. § 1981(a); LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448
n.2 (5th Cir. 1996). “Claims of racial discrimination brought
under § 1981 are governed by the same evidentiary framework
applicable to claims of employment discrimination brought under
Title VII.” LaPierre, 86 F.3d at 448 n.2. Thus, “to succeed on a
claim of intentional discrimination under Title VII ... or Section
1981, a plaintiff must first prove a prima facie case of
discrimination.” Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047
(5th Cir. 1996). However, “when a case has been tried on the
merits, a reviewing appellate court need not address the
sufficiency of plaintiff's prima facie case, and may instead
proceed directly to the ultimate question of whether plaintiff has
8
In the Civil Rights Act of 1991, enacted November 21, 1991,
Congress legislatively reversed the Supreme Court case of Patterson
v. McLean Credit Union, 109 S. Ct. 2363 (1989), which held that
section 1981's guarantee of the right to make contracts did not
extend to conduct occurring after the employer-employee contract
was formed. Section 1981 now specifically states that, "[f]or
purposes of this section, the term 'make and enforce contracts'
includes the making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.” 42 U.S.C. §
1981(b); National Ass’n. of Gov’t Employees, Et Al. v. City
Public Serv. Bd. of San Antonio, Et Al., 40 F.3d 698, 712 (5th Cir.
1994).
16
produced sufficient evidence for a jury to find that discrimination
has occurred.” Walther v. Lone Star Gas Co., 952 F.2d 119, 122
(5th Cir. 1992). In other words, the focus “then shifts to the
ultimate question of whether the defendant intentionally
discriminated against the plaintiff.” LaPierre, 86 F.3d at 448.
In showing intentional employment discrimination, a plaintiff
need not come forward with direct evidence of discriminatory
intent. LaPierre, 86 F.3d at 449; Rhodes v. Guiberson Oil Tools,
75 F.3d 989, 993 (5th Cir. 1996) (en banc). Direct evidence of an
employer's discriminatory intent is rare; therefore, plaintiffs
must ordinarily prove their claims through circumstantial evidence.
Id. A plaintiff may establish circumstantial evidence of
intentional discrimination by demonstrating that a defendant's
articulated nondiscriminatory rationale was pretextual. McDonnell
Douglas Corp. v. Green, 93 S. Ct. 1817, 1825 (1973); Texas Dept.
of Community Affairs v. Burdine, 101 S. Ct. 1089, 1093 (1981). A
plaintiff may demonstrate pretext either by showing that a
discriminatory motive more likely motivated the employer, or that
the employer's explanation is unworthy of credence. Amburgey v.
Corhart Refractories Corp. Inc., 936 F.2d 805, 813 (5th Cir. 1991).
At trial, Plaintiffs offered evidence showing that Johnson
intentionally or recklessly failed to give white professors equal
credit and consideration for their scholarship, research, community
service, and publications. Plaintiffs offered evidence showing
that this discriminatory policy caused black professors to receive
higher merit pay increases than those received by their white
17
counterparts. Plaintiffs also offered the testimony of faculty
members who stated that a racially discriminatory environment
existed at the law school and that Johnson’s treatment of the
Plaintiffs could only be attributed to such discrimination.
After thoroughly reviewing the relevant portions of the
record, as well as the arguments of the parties, we hold that
Plaintiffs offered sufficient evidence to allow a reasonable jury
to conclude that Johnson intentionally discriminated against
Plaintiffs on the basis of race when he evaluated them for merit
pay increases. While the evidence offered by Plaintiffs is purely
circumstantial, such evidence, if believed by the jury, can give
rise to a claim for intentional race discrimination under § 1981.
For these reasons, we find no reversible error and the judgment of
the magistrate judge on this issue is affirmed.
Substantive Due Process
Finally, Defendants argue that the evidence presented at trial
does not support the jury’s finding that Johnson and Douglas
violated Defendants’ substantive due process rights under the
Fourteenth Amendment. “To succeed with a claim based on
substantive due process in the public employment context, the
plaintiff must show two things: (1) that he had a property
interest/right in his employment, and (2) that the public
employer's termination of that interest was arbitrary or
capricious.” Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th
Cir. 1993). “If state action is so arbitrary and capricious as to
18
be irrational, its infringement on a constitutionally protected
interest may violate substantive due process rights.” Neuwirth v.
Louisiana State Bd. of Dentistry, 845 F.2d 553, 558 (5th Cir.
1988).
On appeal, Defendants do not dispute that Plaintiffs had a
property interest in a rational application of the university’s
merit pay policy. Accordingly, we need not address this issue.
Assuming, arguendo, that Plaintiffs did have a property interest in
merit pay increases, we must ask whether Johnson and Douglas
awarded such pay increases in an arbitrary and capricious manner.
See Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir. 1992) (Assuming
plaintiff had a property interest, the only substantive process due
was the exercise of professional judgment, in a non-arbitrary and
non-capricious fashion). After thoroughly and carefully reviewing
the briefs of the parties and the relevant portions of the record,
we hold that a jury could reasonably conclude that Johnson and
Douglas acted in an arbitrary and capricious manner in their merit
pay evaluations. Thus, the judgment of the magistrate judge as to
this issue is affirmed.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
magistrate judge as to the issue of § 1983 retaliatory discharge
under the First Amendment; affirm the judgment of the magistrate
judge as to the issue of § 1981 race discrimination; and affirm the
judgment of the magistrate judge as to the issue of substantive due
19
process under the Fourteenth Amendment. To the extent that the
final judgment of the magistrate judge is not modified by this
order, it is, in all things, affirmed.9
This case is remanded to the magistrate judge for modification
of the final judgment in accordance with this opinion.
9
Defendants have not appealed the propriety of the injunctive
relief awarded by the magistrate judge, or the punitive damages
awarded by the jury on the issue of race discrimination.
Accordingly, we express no opinion as to these aspects of the
judgment. The issue of attorneys’ fees shall be determined by the
magistrate judge in a manner consistent with this opinion.
20