author: WARREN, District Judge.

text:
    LOCAL IV-302 INTERNATIONAL WOODWORKERS UNION OF AMERICA, and William M. Waubanascum, Jr., as a member of a class, Plaintiff, v. MENOMINEE TRIBAL ENTERPRISES, A Tribal Enterprise of the Menominee Indian Tribe of Wisconsin, Defendant.
    No. 84-C-0686.
    United States District Court, E.D. Wisconsin.
    Oct. 11, 1984.

      Richard J. Stadelman, Aschenbrener, Koenig, Woods, Lamia, Stadelman & Schmid, S.C., Shawano, Wis., for plaintiff.
    Joseph F. Preloznik, Preloznik & Associates, S.C., Madison, Wis., for defendant.
   ORDER

WARREN, District Judge.

The defendant, Menominee Tribal Enterprises (“MTE”), has filed a motion to dismiss the complaint in the above-captioned case. Defendant offers four arguments in support of its motion: (1) that the plaintiffs have failed to state a claim upon which relief can be granted; (2) that this Court lacks subject matter jurisdiction in this action; (3) that this Court lacks personal jurisdiction over the defendant; and (4) that the plaintiffs have failed to exhaust remedies available to them under the Constitution and Bylaws of the Menominee Tribe of Wisconsin. Since the Court is persuaded by defendant’s first and third arguments, it need not consider the remaining arguments in granting defendant’s motion to dismiss.

BACKGROUND

On December 22, 1973, the Menominee Restoration Act, 25 U.S.C. § 903, was signed into law. The purpose of the Act was to restore the Menominee Indian Tribe of Wisconsin to the status of a federally recognized Indian tribe. Federal supervision over the Menominee Tribe of Wisconsin had been terminated in 1954, and a state corporation called Menominee Enterprises, Inc., was created to oversee management of tribal land and the tribal sawmill.

On April 22, 1975, the Secretary of the Interior approved a transfer plan under which assets previously transferred to Menominee Enterprises, Inc. would be transferred to and assumed by the tribe and the Secretary of the Interior. Included among the transfer plan documents was a document entitled “Management Plan of Menominee Enterprises, a Tribal Enterprise of Menominee Tribe of Wisconsin” (hereinafter “Management Plan”). Section 3 of the Management Plan provides as follows:

The Tribal Enterprise shall be the principle business arm of the tribe. The Tribal Enterprise is authorized to act on behalf of the tribe in regard to the business dealings of the tribe, as set forth in the Management Plan, and is authorized to act on behalf of the tribe under the name of “Menominee Enterprises”. The Tribal Enterprise shall manage and operate the subject property in order to conduct the business operations of the tribe. The primary obligation of the Tribal Enterprise shall be to manage and operate the subject property in a businesslike manner which will best promote the interest of the tribe and the tribal members.

As a result of this provision of the Management Plan, Menominee Tribal Enterprises, defendant herein, was established to act on behalf of the tribe in its business dealings or, as the Management Plan states, to be “the principle business arm of the tribe.”

For several years plaintiff, Local IV-302 of the International Woodworkers Union of America, had operated under a Collective Bargaining Agreement with defendant, the current agreement dated June 30, 1983. Article II, Section I of that Agreement provides as follows:

All employees covered by this Agreement, shall, as a condition of employment by the Company, become members of the Union on or after the 30th calendar day following the beginning of their employment or the effective date of this Agreement, whichever date is later, and shall continue such Union membership during the term of the Agreement. An employee shall be considered as having maintained membership in good standing if he tenders the periodic dues and initiation fees required by Article XIX of this Agreement.

On September 17, 1981, John R. Lawe petitioned the Menominee Tribal Court for a declaratory judgment holding that Lawe did not have to comply with the terms of this Agreement. In particular, Mr. Lawe sought an order prohibiting MTE from deducting money for union dues from his paycheck and prohibiting MTE from firing him for refusing to pay such dues. The Tribal Court entered a temporary restraining order on October 1, 1981, restraining MTE from deducting said dues from Mr. Lawe’s paycheck and from compelling him to join the union. On February 2, 1982, default judgment was granted in favor of the plaintiff.

A similar action was later commenced by two other MTE employees, Alex Askinette and Warren Kakwitch. Local IV-302 International Woodworkers of America filed a motion to intervene, which was granted by Judge Wilmar J. Peters. On January 22, 1982, Judge Peters entered an order for a preliminary injunction enjoining MTE from deducting money for union dues from these plaintiffs’ paychecks and prohibiting MTE from compelling the plaintiffs to become members of the union. On February 9, 1983, the Menominee Tribal Court entered a final order in that case making the prohibitions contained in the preliminary injunction order permanent.

Local IV-302 International Woodworkers of America did not file a direct appeal of the final order of the Menominee Tribal Court. Instead, the plaintiffs herein filed the complaint in this action on May 21, 1984. On July 9, 1984, defendants filed their motion to dismiss, to which plaintiffs have filed no responsive brief.

I. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Plaintiffs’ prayer for relief in their complaint requests that the Court enjoin MTE from failing to honor the terms of the Collective Bargaining Agreement dated June 30, 1983. Defendant contends that such relief, if granted, would place defendant in the unenviable position of having to choose which court’s order to disobey, that of this Court or that of the Menominee Tribal Court.

It is apparent to the Court from a review of the complaint that nowhere in that document do the plaintiffs allege any wrongdoing on behalf of the defendant. The only accusation made regarding the defendant is that MTE obeyed the orders of the Menominee Tribal Court in complying with the aforementioned prohibitions.

The wrongdoings alleged in the complaint are said to have been committed by the Menominee Tribal Court. Plaintiffs argue that the January 22, 1982 preliminary injunction order and the February 9, 1983 final order entered by Judge Peters are contrary to the United States Constitution and the laws of the United States. Specifically, plaintiffs claim that the actions of the Tribal Court have deprived them of property without due process of law and have denied the plaintiffs’ rights pursuant to 42 U.S.C. § 1983.

Since no wrongdoing is alleged on behalf of the named defendant in this action, the complaint is hereby dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.

II. PERSONAL JURISDICTION

As the Court has previously stated, the defendant in this action is a tribal enterprise charged with conducting the business affairs of the Menominee Indian Tribe of Wisconsin. In its brief in support of its motion to dismiss, defendant refers to a case involving MTE versus the acting Deputy Commissioner of Indian Affairs. The following language was quoted from the decision of the Interior Board of Indian Appeals:

Were Menominee Tribal Enterprises a corporation or other legal entity, whether established by Tribal or State law, having a separate and independent existence from the Menominee Tribe, the Board recognized that section 476 would have no application to Menominee Tribal Enterprises. However, because Menominee Tribal Enterprises is a Tribal Enterprise, specifically created by Article XII of the Tribal Constitution it is made a part of the Menominee Tribe as the “principal business arm of the tribe” (emphasis defendant’s), the Board holds that section 476 does apply to attorney contracts made by MTE.

While the Court has been unable to find a federal appeals court or district court opinion which addresses this issue, the Court finds merit to defendant’s argument that an action against a tribal enterprise is, in essence, an action against the tribe itself. Since Indian tribes are immune from suit in either state or federal courts, without congressional authorization, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); U.S. v. U.S. Fidelity and Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940), and the Menominee Indian Tribe of Wisconsin has not waived its right of sovereign immunity in this case, this Court lacks personal jurisdiction over the defendant in this action.

For the foregoing reasons, the Court Grants defendant’s motion to dismiss the complaint in this action.


source: Caselaw Access Project

author: BENJAMIN F. GIBSON, District Judge.

license: Public Domain

text:
    Carol HUTCHINS, et al., Plaintiffs, v. BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, et al., Defendants.
    No. G79-87 CA.
    United States District Court, W.D. Michigan, S.D.
    Oct. 11, 1984.

      Jean L. King, Ann Arbor, Mich., for plaintiffs.
    Byron Higgins, Mich. State University, East Lansing, Mich., Leland W. Carr, Jr., Anderson, Carr & Street, Lansing, Mich., for defendants.
   OPINION

BENJAMIN F. GIBSON, District Judge.

In 1979, a group of women who played on the Michigan State University (MSU) basketball team instituted this action against Michigan State University, its Board of Trustees, and the individual members of that Board. Plaintiffs alleged sex discrimination and pointed specifically to the difference between the funds provided the male and female basketball teams for lodging and meal allowances while on the road.

A preliminary injunction was entered on April 1, 1981 and continues in effect. That order enjoins the University from discriminating against women basketball players with respect to meal and lodging allowances.

The case was certified as a class action in February of 1982. Three subclasses were created: 1) future members of the varsity women’s basketball team; 2) team members from February 5, 1979, when the suit was initiated, until the date of class certification; and 3) team members from February 5, 1976 through February 5, 1979.

Plaintiffs seek both injunctive and monetary relief. For the members of the second and third subclasses, plaintiffs seek compensation in the amount that the University allegedly should have provided for meals and lodging. For members of the first subclass, plaintiffs seek both monetary damages and a permanent injunction requiring the University to provide the same funding for meals and lodging for female basketball players that it provides for male basketball players.

Plaintiffs assert three grounds for relief. Count I advances a claim based on an implied cause of action under the Fourteenth Amendment. Count III implies a cause of action based on a Ninth Amendment right to privacy. Count II is a 42 U.S.C. § 1983 claim based on the constitutional violations alleged in Counts I and III.

Defendants have filed a motion to dismiss claiming that this Court lacks jurisdiction over claims for monetary relief and that plaintiffs have failed to state a claim upon which relief may be granted. In support of their jurisdictional defense, defendants argue that the Eleventh Amendment deprives this Court of jurisdiction to award any monetary relief.

I. Eleventh Amendment Jurisdictional Bar

A suit by a private party which seeks to impose legal or equitable liability payable from state funds is barred in a federal court by the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Thus, if MSU is an “arm” or “alter ego” of the state of Michigan, the Eleventh Amendment bars this Court from awarding monetary relief. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977).

Because of what appeared from the pleadings and briefs to be unique factual circumstances, this Court held an evidentiary hearing on the Eleventh Amendment issue. The Court now rules that defendants are protected by the Eleventh Amendment from any monetary judgment in this action.

A. The Arguments

In Weisbord v. Michigan State University, 495 F.Supp. 1347 (W.D.Mich.1980), this Court held that MSU was entitled to Eleventh Amendment immunity. That case arose in a context similar to that now before the Court, a civil rights action alleging discrimination based on sex and race. After analyzing the relation of MSU to the State of Michigan, this Court concluded that “[njothing in the charter of Michigan State University states or implies that it is anything other than a state institution entitled to the privileges and immunities of the state or that an assessment against it would come from any source other than the treasury of the State of Michigan.” Id. at 1357.

Plaintiffs have sought to distinguish this case from Weisbord by suggesting that a monetary award in plaintiffs’ favor would in fact come from a source other than the treasury of the State of Michigan. At the evidentiary hearing, plaintiffs offered proof that the MSU athletic department has a discretionary, unbudgeted account that could be used to satisfy an award in this case. That account contains funds from private donations and from investment earnings. It does not contain any funds appropriated by the State legislature to MSU.

The question before the Court is whether the existence of this independent athletic department account removes the Eleventh Amendment bar against monetary relief. Without disclaiming the possibility that a factual situation might arise in which MSU would not be entitled to Eleventh Amendment immunity, the Court does not find that the facts presented in this case warranted a departure from the conclusion reached in Weisbord. In deciding that MSU is entitled to Eleventh Amendment protection, the Court relies on the guidance provided by the Sixth Circuit’s recent opinion in Hall v. Medical College of Ohio, 742 F.2d 299 (6th Cir.1984).

B. Application of the Hall test

In Hall, the Sixth Circuit adopted a nine-point analysis to determine whether a public college or university is entitled to Eleventh Amendment immunity:

[L]ocal law and decisions defining the status and nature of the agency involved in its relation to the sovereign are factors to be considered, but only one of a number that are of significance. Among the other factors, no one of which is conclusive, perhaps the most important is whether, in the event plaintiff prevails, the payment of the judgment will have to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency’s operations.

Hall, supra, at 302, quoting Blake v. Kline, 612 F.2d 718 (3d Cir.1979), cert. denied 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980).

As the following discussion reveals, the Court has found that only one factor clearly weighs in favor of plaintiffs’ position. Several factors, although initially appearing to favor plaintiffs’ position, are, at best, ambiguous. The majority of factors, as well as the most important factors, weigh in favor of defendants’ invocation of Eleventh Amendment immunity.

1. Factor in favor of plaintiffs’ position

Michigan State University has the power to sue and be sued and to enter into contracts. See Sprik v. Regents of the University of Michigan, 43 Mich.App. 178, 204 N.W.2d 62 (1972), affd, 390 Mich. 84, 210 N.W.2d 332 (1973); Branum v. Board of Regents of University of Michigan, 5 Mich.App. 134, 145 N.W.2d 860 (1966). To the extent that this factor is controlling, plaintiffs can argue that MSU should not fall under the state’s protective umbrella.

2. Ambiguous factors

MSU is a separately incorporated state institution. MICH. CONST. art. VIII, § 5. Without further clarification by state law, this fact would suggest that MSU should not be treated as an arm of the state. See Hall, supra, at 305. The Michigan Supreme Court, however, has emphasized that the legislature’s provision for autonomy should not be interpreted as an indication that the University is free of legislative control. In a case involving the University of Michigan, the state supreme court noted that the constitutional corporate status was necessary to keep the state universities above political flux and controversy, adding that “it was not the intention of the framers of the constitution to take away from the people the government of [these] institutions[s]. On the contrary, they designed to, and did, provide for [their] management and control by [bodies] of eight men elected by the people at large.” Sterling v. Regents of University of Michigan, 110 Mich. 369, 379, 63 N.W. 253 (1896).

Although the University has some autonomy over its operations, see MICH.COMP. LAWS ANN. §§ 390.106-.123 (1976), it is subject to the control of the state legislature. All departments in the university are governed by policies established by the Board of Trustees, a body elected by the voters of the state. MICH. CONST. art. VIII, § 5. The University itself reports annually to the legislature and is subject to audit by the state. MICH. CONST. art. VIII, § 4.

Property of the University is immune from state taxation. Auditor General v. The Regents of the University of Michigan, 83 Mich. 467 (1890) (establishing that the University of Michigan, with statutory origins similar to those of MSU, was immune from taxation). Because tax exemptions are so broadly granted under Michigan law, see MICH.COMP.LAWS ANN. § 211.7 (1967), however, that factor is not persuasive in either direction. See, Hall, supra, at 307.

3. Factors in favor of defendants’position

Michigan law establishes a close relationship between Michigan State University and the State of Michigan. MSU is a body corporate created by the Michigan Legislature pursuant to Article VIII, section 5, of the Michigan constitution. See MICH. COMP.LAWS ANN. §§ 390.101-.225 (1976). Under Article VIII, section 4, the Legislature is required to maintain the University. Evidence submitted at the hearing established that, in the 1982-83 fiscal year, state appropriations accounted for thirty-six percent of MSU’s total funds. MICHIGAN STATE UNIVERSITY, FINANCIAL REPORT 1982-83 3. Article VIII, section 4, of the constitution also provides that MSU must make a financial accounting to the Legislature. MSU complies with this provision by submitting an annual financial report. The University is governed by a Board of Trustees, whose members are elected by the voters of the state and serve without compensation. MICH. CONST, art. VIII, § 5; MICH.COMP.LAWS ANN. § 390.103 (1976).

Under Michigan statutes, the state universities are accorded sovereign immunity in state courts to the same extent that the state itself is. For example, MSU, like the state, is immune from tort actions arising out of any acts undertaken in furtherance of its governmental functions. MICH. COMP.LAWS ANN. § 691.1407 (1968 & Supp.1983); see also MICH.COMP.LAWS ANN. § 691.1401-.1415 (1968 & Supp. 1983).

Thus, it appears that Michigan law treats MSU as an arm of the state. Of course, the question of the University’s Eleventh Amendment status is a matter of federal, not state, law. Yet, to the extent that local law is one factor to be considered, the status given to MSU under Michigan law suggests that MSU should be accorded Eleventh Amendment immunity.

MSU is pursuing a traditional governmental function by providing for higher education. See Hall, supra, at 305. Its physical education program is a part of the overall educational program of the University. Plaintiffs have not argued that, by sponsoring a program of intercollegiate athletic competition, MSU has undertaken a proprietary activity. Although it is clear that the University makes money from the ticket receipts of basketball, football and baseball, Assistant Vice-President Terry testified that the revenues from these sports are used to support a program of “non-revenue” intercollegiate sports for men and women. Thus, the Court does not find that the University is pursuing a proprietary function in this case.

The parties presented no evidence relating to the question of whether the state has immunized itself from responsibility for MSU’s operations. In Ewing v. Board of Regents of the University of Michigan, 552 F.Supp. 881, 883 & n. 5 (E.D.Mich. 1982), Judge Feikens apparently concluded that it has not, noting that state statute provides that a judgment against a state university must be executed against the state itself. See MICH.COMP LAWS ANN. §§ 600.6021, 600.6095 (1968).

Of the nine factors considered in Hall, the Sixth Circuit described the second and third as most important. These factors require the Court to consider whether the MSU Board of Trustees would have the power to satisfy a judgment awarded in this case and whether such a judgment would be ultimately paid out of the state treasury.

Plaintiffs have argued that, although in most cases a judgment against MSU would be a judgment against the state treasury, the possibility that an award in this case could be satisfied out of an unbudgeted athletic department account makes this case different. Plaintiffs’ argument rests on three assertions: first, that a discretionary athletic fund exists; second, that the Board of Trustees has the power to satisfy a judgment out of that fund; and, finally, that the athletic department discretionary account is not made up of “state funds.” See Hall, supra, at 304. The Court finds that, although the first and second assertions are valid, the third is not.

Testimony at the evidentiary hearing established that several unbudgeted accounts exist for the use of the athletic department. The Court gathers from the testimony that an account is “unbudgeted” if the Board of Trustees does not allocate funds for that account from the general University fund.

Stephen Terry, the Assistant Vice-President for Finance, testified that the intercollegiate athletic program currently receives no state appropriated funds. Instead, it supports itself with independent sources of revenue, including revenues from ticket sales, broadcasting agreements, and private donations. See also MICHIGAN STATE UNIVERSITY, FINANCIAL REPORT 1982-83 SUPPLEMENT: OTHER FINANCIAL INFORMATION 31.

Several witnesses testified specifically regarding the “Ralph Young Current Gift Fund,” one of the athletic department’s four unbudgeted accounts. Unrestricted private donations made to the athletic department, as well as investment earnings from a separate endowment account, are channeled into the Current Gift account. Assistant Vice-President Terry characterized the account as “the athletic director’s discretionary account.”

It appears to this Court that the Board of Trustees has the requisite statutory authority to make expenditures from this unbudgeted account, without any prior approval of the state legislature. State statute provides that the Board “shall direct the disposition of any moneys appropriated by the legislature or by congress for [MSU] ... and of any moneys otherwise received for the above purposes.” MICH.COMP. LAWS ANN. § 309.109 (1976) (emphasis supplied). See also MICH. CONST. art. VIII, § 5.

Plaintiffs elicited testimony that, in at least one past instance, MSU has in fact settled a legal dispute by making a settlement payment out of an unbudgeted athletic department account. That previous dispute began when George Perles left the Philadelphia Stars professional football team to become MSU’s head football coach. The Stars brought suit against MSU for “stealing” Perles.

The testimony at the hearing regarding the Perles dispute established that the settlement payment was ultimately debited from an unbudgeted athletic department account. Leland Carr, the attorney who negotiated the settlement of that dispute, testified that the settlement was initially paid by means of a cashier’s check drawn on his law firm’s account. Assistant Vice-President Terry testified that Carr’s law firm was reimbursed from the University’s general fund account. The settlement amount was then charged to the athletic department unbudgeted account.

In sum, the evidence clearly established that funds in the athletic director’s discretionary account come from sources other than state appropriations and that the Board has the power to spend money from that account. The Court is not convinced, however, by plaintiffs’ argument that the account is not made up of “state funds.”

Although the athletic director has the power to spend money from the Current Gift account without prior authorization of the Board of Trustees, he is accountable for those expenditures. The testimony of Stephen Terry, the Assistant Vice-President for Finance, and Robert Wenner, the University auditor, established that the athletic director has to report all expenditures made from the Current Gift account to the University’s central accounting department. Terry identified himself as the custodian of the Current Gift account and noted that the athletic director is accountable to the Vice-President for Finance. Auditor Wenner testified that, if the director spent funds in a way that was not in accordance with University policy, that University would ask for restitution. Although each expenditure from the fund is not reported to the Board of Trustees, a report of the status of the fund is made annually to the Board. Finally, Assistant Vice-President Terry pointed out that the Michigan Auditor General has the power to audit the unbudgeted, as well as the budgeted, accounts of the University.

Factors that led the Sixth Circuit, in Hall, to conclude that funds of the Medical College of Ohio were state funds operate in this case as well. The plaintiffs in that case contended that the Medical College could avail itself of self-generated income from hospital charges, tuition and the like. The Court dismissed that argument by noting that, although the Ohio legislature permitted the state colleges and universities to retain such funds, rather than require them to be paid into the state treasury and appropriated back to the schools, the legislature, could have just as easily required the converse. Thus, the self-generated income was as much state money as was income directly appropriated by the legislature. Hall, supra, at 304-305.

A similar state of affairs exists under Michigan law, which permits the Board of Trustees to retain and expend moneys that come to the University from sources other than the state. MICH.COMP.LAWS ANN. § 390.109 (1976). There is no question, however, but that these funds are state funds. The legislature provided that:

Money due to the institution or received in its behalf shall be collected and received by the business manager and shall be deposited with the treasurer of the board of trustees. The funds deposited shall be subject to warrants signed by the president of the university and the business manager or their authorized agents. The business manager shall render monthly a full and complete account of money received and the warrants drawn on the treasurer, as the business manager of the university, and shall file and preserve vouchers, receipts, correspondence, or other papers relating to the warrants. The business manager shall keep in the business manager’s office a complete record of the financial transactions, in a manner which may be approved by the board and the auditor general, and which shall be made available to the public in compliance with Act No. 442 of the Public Acts of 1976. At the close of each fiscal year, the business manager shall make a full and detailed report of the financial affairs of the institution, together with statistical matter as may be of interest.
MICH.COMP.LAWS ANN. § 390.120 (Supp.1983).

Other factors reinforce the conclusion that the funds in the unbudgeted accounts are state funds for the purposes of the Eleventh Amendment. The Michigan constitution requires the Michigan legislature to support MSU. MICH. CONST. art. VIII, § 4. See Hall, supra, at 304. There was testimony at the hearing that, if the unbudgeted accounts were depleted, the University would rely on the general fund, supported in part by state appropriations, to replenish those accounts. Further, money that comes into the unbudgeted accounts is commingled with that in the general University fund. See Hall, supra, at 305.

For these reasons, this Court concludes that the funds within the Current Gift account are state funds for Eleventh Amendment purposes and that any judgment against that fund would create a liability payable from the state treasury. As the Sixth Circuit concluded in Hall, “[c]reating any distinction between [MSU’s] appropriated and self-generated revenues in the context of Eleventh Amendment immunity would be a pure exercise in elevating form over substance.” Hall, supra, at 305.

Based on the above analysis, the Court dismisses those claims asserted by the plaintiffs calling for monetary relief. Specifically, all claims on behalf of subclasses two and three are dismissed. The claims of subclass one remain only to the extent that they seek injunctive relief.

Defendants’ motion to dismiss also argues that plaintiffs have failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Because the Court has focused its inquiry on the Eleventh Amendment issues raised at the evidentiary hearing, it has not addressed that issue. To the extent the argument applies to plaintiffs’ claims for injunctive relief, defendants remain free to raise it at a later time.

II. Dismissal of Counts I and III

Counts I and III of plaintiffs’ complaint are claims based on implied rights of action under the Fourteenth and Ninth Amendments. Neither the Supreme Court nor the Sixth Circuit have decided whether an implied cause of action may be derived from the Fourteenth Amendment or the Ninth Amendment. See Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 571, 50 L.Ed.2d 471 (1977); Harris v. City of Canton, 725 F.2d 371, 374 n. 3 (6th Cir. 1984).

Because the Court finds that the parameters of the plaintiffs’ § 1983 claim are coextensive with the implied constitutional claims, it need not decide whether such claims should be recognized. Whatever relief would be available to plaintiffs under Counts I and III is available under Count II. Therefore, Counts I and III are dismissed. See Weisbord v. Michigan State University, 495 F.Supp. 1347, 1354 (W.D. Mich.1980); see also Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (courts should avoid unnecessary decisions on constitutional issues); Rogin v. Bensalem Township, 616 F.2d 680, 685 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981).

      . Terry did testify, however, that indirect support by the University, such as provision of facilities, custodial services, and accounting services, is "probably significant.”

      . Apparently, the money was first transferred from the Ralph Young Current Gift Account into the "Athletic Equity" account. That account was then debited for the amount that had previously been paid out of the University's general fund. The important point, for the purposes of this discussion, is that payment was ultimately made out of an unbudgeted athletic department account.


author: DORSEY, District Judge.

text:
    Albert MASARJIAN, et al. v. MARK LIGHTING FIXTURES CO., INC.
    Civ. No. B-81-438 (PCD)
    United States District Court, D. Connecticut.
    Oct. 11, 1984.

      Eric N. Wellman, Jones, Damia, Well-man, Kaufman & Borofsky, Danbury, Conn., for plaintiffs.
    Clifford J. Grandjean, Rosenberg, Barnett, Sattin & Kardon, Hartford, Conn., for defendant.
   RULING ON MOTION FOR SUMMARY JUDGMENT

DORSEY, District Judge.

In this action, plaintiffs seek commissions allegedly due under a sales representative contract. Defendant has moved for summary judgment, Rule 56(b), Fed.R. Civ.P.

Background

The uncontroverted facts follow. On or about January 10, 1978, plaintiffs, Albert Masarjian and Fred Merrill, doing business as Meridian Enterprises (Meridian), entered into a sales representative agreement with defendant, Mark Lighting Fixtures Co., Inc. (Mark). Meridian was to solicit orders for commercial lighting fixtures manufactured by defendant. The agreement authorized plaintiffs’ efforts in western Massachusetts and all of Connecticut. The agreement contained specifics of the process by which commissions were to become due and be paid, a non-competition clause and a promise by defendant to provide samples and advertising. The agreement was of indefinite duration, but was terminable by either party upon thirty days’ written notice to the other.

On April 30, 1979, Mark gave plaintiffs written notice of termination of the agreement, effective June 1, 1979. Prior to the notice plaintiffs had initiated efforts to sell Mark products, through Grand Light & Supply Co., to J.A. Valenti, Inc., an electrical contractor that expected to receive a contract to install light fixtures at Union Carbide headquarters in Danbury, Connecticut. No order for such equipment had been obtained by plaintiffs nor placed with defendant on or before June 1, 1979.

Plaintiffs claim a commission on an order placed with Mark by Valenti after June 1, 1979. Plaintiffs contend that defendant acted in bad faith in terminating the agreement in order to deny plaintiffs a commission on the Valenti order. In addition, plaintiffs claim to have been the procuring cause of the Valenti order and thus entitled to a commission as provided by the agreement as if the order was placed prior to the termination of the agreement.

Defendant argues that the termination of the agreement was in accordance with its terms and no commission is owed as no order was placed before the termination. Defendant moved for summary judgment on this basis.

Discussion

Summary judgment may be appropriate in a contract case. Harrison Western Corp. v. Gulf Oil Co., 662 F.2d 690, 691-92 (10th Cir.1981). Where the issue is covered in the contract, and no genuine issue of material fact remains to be decided, the motion may be determined as a matter of law. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir.1980); Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1319 (2d Cir. 1975).

Connecticut courts look to the law of place of the execution of the contract, but if the operative effect or performance is other than where the contract was executed, the court will look to the law of the state of the operative effect or performance. Grand Sheet Metal Prod. Co. v. Aetna Cas. & Sur. Co., 500 F.Supp. 904 (D.Conn.1980); see Whitfield v. Empire Mut. Ins. Co., 167 Conn. 499, 505-06, 356 A.2d 139 (1975). It is unclear where the contract was executed. Since the contract was to be performed and had its operative effect substantially in Connecticut, Connecticut law would apply.

Plaintiffs’ major contention is that defendant cannot arbitrarily cut off their entitlement to commissions by invoking the termination clause. No claim is made that defendant did not follow the procedure described in the contract for terminating the agreement. Nonetheless plaintiffs claim that defendant may not cut off plaintiffs’ entitlement to a commission arising from an order placed after the termination date but in the seminal stage on that date as a result of plaintiffs’ solicitation. Put another way, plaintiffs claim defendant may not terminate the agreement for the purpose of defeating plaintiffs’ right to bring an incipient order to fruition and thereby earn a commission. Plaintiffs argue that their efforts to obtain an order from Valenti were unfairly thwarted by the termination and they should have been permitted to bring their sales efforts to a conclusion, thereby earning a commission. Plaintiffs’ position is not supported by any language in the contract and is dependent on an implied condition of good faith before the right to terminate may be exercised.

Defendant relies on the assertedly unambiguous language of the agreement which provides for commissions on orders placed before the effective termination date. The agreement provides:

5. This agreement shall be of an indefinite term and may be terminated by either party thereto upon thirty (30) days written notice to the other____

Motion for Summary Judgment, Exhibit G. Thus, the contract was terminable at will by either party with no requirement of cause nor good faith being set forth. There is no indication nor claim that the contract did not embody all of the terms of the parties’ agreement. Where the parties have expressed their intent, the court cannot rewrite the agreement because one party is unhappy with the contract terms in a particular fact situation. See Collins v. Sears, Roebuck & Co., 164 Conn. 369, 321 A.2d 444 (1973). No Connecticut case appears to have imposed a condition of good faith upon a termination-at-will clause. In a similar case, this court has construed a termination clause under the law of Michigan where the courts of that state also had not ruled on the claim that a condition of good faith should be implied, Biever Motor Car Co. v. Chrysler Corp., 108 F.Supp. 948 (D.Conn.), aff'd, 199 F.2d 758 (2d Cir.1952), cert. denied, 345 U.S. 942, 73 S.Ct. 834, 97 L.Ed. 1368 (1953); see also, Rubinger v. IT&T Corp., 193 F.Supp. 711 (S.D.N.Y. 1961), aff'd, 310 F.2d 552 (2d Cir.1962), and held that the exercise of a right to terminate at will is not conditioned upon a showing of good cause or good faith. In Biever the clause at issue allowed termination after the occurrence of specified events or upon the occurrence of “certain other conditions” with ten-days written notice. A good faith requirement would more likely be implied in Biever where the contract listed occurrences and “certain other conditions” that could arguably constitute specifications of a good faith termination. Yet a good faith requirement was held not to be implied.

In Parks v. Baldwin Piano & Organ Co., 262 F.Supp. 515 (D.Conn.), aff'd, 386 F.2d 828 (2d Cir.1967), the law of Ohio was also held not to require good faith in termination. See Green Bay Auto Distrib. v. Willys-Overland Motors, 102 F.Supp. 151 (N.D.Ohio 1951) (defendant’s “right to terminate it was subject to no conditions as to good or bad faith, motive, intent or results” (quoting Martin v. Ford Motor Co., 93 F.Supp. 920, 921 (E.D.Mich.1950)). In Parks the relationship in question was held to be properly terminated simply by giving proper notice, thereby relieving defendant of all further liability. Parks, 262 F.Supp. at 519. In affirming, our Circuit Court of Appeals held that the contract’s “unambiguous terms also left Parks vulnerable to the summary termination of his dealership by Baldwin and it is beyond the province of this court to imply limitation or conditions on the exercise of a power to terminate, so unmistakably expressed.” Parks, 386 F.2d at 829. In support of its refusal to imply a good faith limitation, the court cited Bushwick, which held:

With a power of termination at will here so unmistakably expressed, we certainly cannot assert that a limitation of good faith was anything the parties had in mind. Such a limitation can be read into the agreement only as an overriding requirement of public policy. This seems an extreme step for judges to take.

Bushwick, 116 F.2d at 677.

As there is no ambiguity to be construed, and no language suggesting other than a right of termination at will, under the rule that contracts shall be enforced according to their terms, a view adhered to by Connecticut’s courts, neither cause nor good faith is required before the agreement may be terminated. When presented with the question Connecticut courts would probably hold likewise. Thus the question of good faith is not a genuine issue in this case.

Plaintiffs claim, alternatively, without reliance other than on the contract, a commission on the ground that the sale to Valenti was procured by their efforts. They cite authorities which hold that an agent is entitled to a commission on sales which the agent procured. Those cases did not involve an unambiguous and controlling contract clause. Here, the contract clearly specifies the conditions under which plaintiffs’ right to commissions accrue upon termination. “[T]he company’s liability to the sales representative shall be limited solely to commissions for the sales orders placed by the sales representative prior to such termination.” Defendant’s Memorandum in Support of Motion for Summary Judgment, Exhibit G.

The parties thus stated their intent clearly and unambiguously with respect to commissions owed upon termination. Under the termination provision, plaintiffs are not entitled to the commission which they seek. After notice of termination, plaintiffs had thirty days to place sales orders with defendant in order to accrue commissions. To sustain plaintiffs’ claim, the terms of the contract would necessarily be disregarded and new terms inserted to extend the thirty day period for the effective termination date, at least for the cut off of commissions accrued. Courts must give effect to unambiguous contract terms to promote stability, certainty, and fairness in contract enforcement. What the parties expressed as their intent in the contract, the court will not rewrite. The parties did not provide for accrual of commissions where plaintiffs were the procuring factor of orders placed after termination. It is not for the court to add such a provision. Neither may the court determine the reasonableness or fairness of the terms upon which the parties unambiguously agreed. See Collins, 164 Conn. 369, 321 A.2d 444.- Thus, the claim that plaintiffs were the procuring cause of the sale does not present a genuine issue of material fact.

Plaintiffs’ final claim to a commission is on the ground that they were exclusive agents for Mark in Connecticut and should, therefore, receive a commission on the sale to Valenti. The exclusive territory clause is co-extensive in duration to the remainder of the contract. It adds nothing to the clauses controlling commission accrual, particularly upon termination. This claim is controlled by the fact that the contract was validly terminated as discussed above and, after the effective termination date, the contract no longer exists and thus cannot thereafter give rise to any rights.

In sum, there is no genuine issue of material fact in this case.

Defendant’s motion for summary judgment is granted.

SO ORDERED.

      . There is a split in the decisions dealing with the good faith requirement. There are a number of cases that have imposed a good faith requirement where there was clear support in applicable state law. See Randolph v. New England Mut. Life Ins. Co., 526 F.2d 1383 (6th Cir. 1975) (Ohio law requires good faith in termination of a contract for a fixed term); de Treville v. Outboard Marine Corp., 439 F.2d 1099 (4th Cir. 1971) (South Carolina law clearly required good faith); Tele-Controls, Inc. v. Ford Indust., Inc., 388 F.2d 48 (7th Cir.1967) (Oregon statute imposed a good faith requirement).
      Other courts have ruled that no good faith requirement should be implied. See Bushwick-Decatur Motors, Inc. v. Ford Motor Co., 116 F.2d 675 (2d Cir.1941) (Michigan law imposes no good faith requirement in termination-at-will clause); Corenswet, Inc. v. Amana Refrigeration, Inc., 594 F.2d 129 (5th Cir.), reh’g denied, 597 F.2d 772 (5th Cir.), cert. denied, 444 U.S. 938, 100 S.Ct. 288, 62 L.Ed.2d 198 (1979) (good faith not implied where contract term specified manner of termination); Rockwell Eng'g Co. v. Automatic Timing & Controls Co., 559 F.2d 460 (7th Cir.1977) (Indiana laws did not require good faith); Niagara Mohawk Power v. Graver Tank & Mfg. Co., 470 F.Supp. 1308, 1317 (N.D.N.Y. 1979) (New York would probably not impose a good faith requirement).

      . The parties never submitted depositions to the court as they had indicated that they would do, but, in any event, little reference to the depositions has been made. The depositions seemingly have no effect on the resolution of this motion.


author: MARSH, District Judge.

text:
    RANDUSTRIAL CORPORATION, formerly known as Raneo Industrial Products Corporation, Plaintiffs, v. Edward B. DUNLAP, United Industrial Maintenance, Inc., Robert F. Klein and Bernard J. Berry, Defendants.
    Civ. A. No. 66-479.
    United States District Court, W.D. Pennsylvania.
    Oct. 11, 1984.

      Howard D. Schwartz, Pittsburgh, Pa., for plaintiffs.
    James A. Lewis, Pittsburgh, Pa., for defendant, Edward B. Dunlap.
   OPINION

MARSH, District Judge.

This case is before us on the plaintiff’s motion to punish for contempt. A hearing on said motion was held on September 10, 1985. Upon conclusion of said hearing, the court ordered both parties to file proposed findings of fact and conclusions of law. Also before the court is the defendant’s motion to rescind or modify the court order dated May 19, 1966 which is the subject of plaintiff’s motion to punish for contempt.

This litigation began with a complaint and motion for preliminary injunction filed on April 20, 1966 alleging a violation by Edward B. Dunlap (hereinafter Dunlap) of his sales representative agreement with Raneo Industrial Products Corporation now Randustrial Corporation (hereinafter Randustrial) and further alleging that Dunlap and others induced or attempted to induce employees of Randustrial to violate their sales representative agreements or employment agreements. A third count of the complaint involved an infringement of a copyright which is not an issue in the present case.

The original complaint and motion for preliminary injunction was not adjudicated on the merits. Instead, the parties settled the case by an agreement dated May 11, 1966 and presented a consent order which was signed by the court on May 19, 1966.

Motion to Rescind or Modify Consent Order

We shall first address the defendant’s motion to rescind or modify the consent order which shall be treated as a motion for relief from final judgment pursuant to Rule 60(b), Fed.R.Civ.P. The only grounds applicable to said relief are encompassed in Sections (5) and (6) of said rule.

This portion of the rule provides as follows:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: ... (5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it has been based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”

We note that the standards for reopening a consent judgment are strict. Philadelphia Welfare Rights Org’n v. Shapp, 602 F.2d 1114, 1119 (3rd Cir.1979). For example, in Mayberry v. Maroney, 558 F.2d 1159, 1163 (3rd Cir.1977), the Third Circuit Court of Appeals reversed the decision of a district court which vacated a consent judgment. In so doing the court stated:

“it is settled that such relief is extraordinary and may be granted only upon a showing of ‘exceptional circumstances.’ (Citations omitted.) ... Thus a party seeking such relief must bear a heavy burden of showing circumstances so changed that ‘dangers once substantial, have become attenuated to a shadow,’ United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932), and that, absent such relief an ‘extreme’ and ‘unexpected’ hardship will result.”

Similarly, in United States Steel Corp. v. Fraternal Ass’n, Etc., 601 F.2d 1269, 1274 (3rd Cir.1979), the Court of Appeals vacated a district court decision modifying a consent injunction. In so doing the Court stated:

“And when, as in this ease, the appellants made a free, calculated and deliberate choice to submit to an agreed upon decree rather than seek a more favorable litigated judgment, their burden under Rule 60(b) is perhaps even more formidable than had they litigated and lost.”

We further note that this matter has been discussed by Professor Wright who comments:

“It is clear that a strong showing is required before an injunction or other prospective judgment will be modified. Mere passage of time is not enough.” (Citations omitted; emphasis supplied.) Wright, & Miller, Federal Practice and Procedure: Civil § 2863.

A review of the record does not reveal that defendant has sustained his burden to show “exceptional circumstances” for relief from this court’s consent order of May 19, 1966. The record reflects that at the time of the original complaint, defendant’s company, United Industrial Maintenance (hereinafter United), was competitive with Randustrial with respect to twenty-five percent (25%) of its business; that is, in the sale of industrial maintenance supplies. Presently, Dunlap’s new company, Consolidated Enterprises, is competitive with Randustrial with respect to twenty percent (20%) of its business. Although the consent order allowed Dunlap to compete with Randustrial after a period of three years, we use these facts merely to illustrate that there was little change from 1966 to the present in the percentage of competition between the two companies.

Since the requisite of showing “exceptional circumstances” to justify a modification of the consent order was not shown, defendant’s motion to rescind or modify will be denied.

Motion to Punish for Contempt

We turn next to the plaintiff’s motion to punish for contempt to determine if the record reflects evidence to justify plaintiff’s allegations that Paragraph 4(a) of the consent order has been violated by defendant.

Paragraph 4(a) of the consent order permanently enjoined Dunlap from:

“(a) Inducing or attempting to induce, either directly or indirectly, any present or former employee or employees of Raneo to break his, her or their contracts with Raneo, or to induce, direct or employ said persons in violation of his, her or their contracts with Raneo, to solicit customers or attempt to solicit customers of Raneo, or to act as sales agents or brokers or advisors or consultants to Dunlap, ... or to induce, employ or direct any such persons to divulge to Dunlap ... or any other persons any confidential information of Raneo, including customer lists, sales methods and inquiries from customers.”

Edward Dunlap began work with Randustrial, formerly known as Raneo Industrial Products Corporation, in 1961 as a sales trainee. He subsequently became a sales representative with Randustrial and entered into a sales representative agreement which included a covenant not to compete with Randustrial for a period equivalent to the time he was employed by Randustrial but not more than three (3) years from the date he left Randustrial’s employ. After he left Randustrial’s employ in 1965, he formed United Industrial Maintenance Company with two other individuals. Both Randustrial and United were in the business of industrial maintenance and supplies. Twenty-five percent (25%) of United’s business was in direct competition with Randustrial (sale of supplies) while seventy-five percent (75%) involved contract work involving hiring laborers to do the maintenance work for customers.

Subsequent to the formation of United, Randustrial filed suit against Dunlap, his business partner and United for, inter alia, violation of his sales representative agreement with respect to the covenant not to compete. As was stated above, that lawsuit was resolved by the consent order which has allegedly been violated some eighteen years after its issuance.

Dunlap complied with the provisions of the consent order prohibiting him from competing with Raneo for a period of three (3) years, and disbanded his company, United Industrial Maintenance. However, Randustrial now contends that Dunlap has violated the permanent conditions of that order and should, therefore, be found in contempt of said order. This contention arises out of the fact that Dunlap recently became associated in business with the former national sales manager of Randustrial, Thomas Zeller. The circumstances leading to this association will now be reviewed.

After the three-year period subsequent to the consent order of May 19, 1966 had passed, Dunlap formed Northern Chemical Company (hereinafter Northern) whose principal business was janitorial supplies. Northern was not competitive in any product lines with Randustrial. Dunlap was the president and principal stockholder of Northern. In the mid-1970’s, Northern changed its name to Consolidated Enterprises, Inc. (hereinafter Consolidated), a company which did become competitive with products sold by Randustrial with respect to twenty percent (20%) of its business. Dunlap is president of Consolidated and owns ninety percent (90%) of its stock.

Dunlap first met Thomas Zeller when he started working for Randustrial in 1961. Dunlap’s next contact with Zeller was in 1983 when Zeller contacted him by phone concerning employment with Consolidated. Dunlap knew at the time of said phone conversation that Zeller had been employed by Randustrial for twenty-four (24) years, that he was a former sales representative, and that he had recently been promoted to the position of national sales manager for Randustrial. As a result of the phone conversation, Dunlap and Zeller had a face-to-face meeting in Pittsburgh, Pennsylvania. Dunlap’s initial response to Zeller’s calls was to remind Zeller that he had a sales representative agreement with Randustrial which included a non-competition clause. Dunlap reviewed this agreement with Zeller since he (Dunlap) was concerned about the non-competition clause being familiar with its provisions. The terms of the non-competition clause in Zeller’s contract with Randustrial provide, inter alia, as follows:

“Section 7.2/Non-Competition — (a) During the period described in Paragraph (c) of this Section 7.2, Sales Representative: (1) will not sell for, be employed by, be a representative of or be associated with, directly or indirectly, any person, firm, or entity manufacturing, distributing, selling, advertising or otherwise dealing in products competitive with Randustrial.”

A “Specific Non-Competition” clause in Zeller’s contract prohibited Zeller from being associated with, either directly or indirectly any firm or entity employing Edward R. Dunlap, and also prohibited association with Northern Chemical Company or any affiliate, successor or subsidiary of Northern for a period of three years from the date of his termination of employment with Randustrial.

Dunlap felt the prohibitions in Zeller’s contract and in particular the prohibition against employment with a competitor anywhere in the continental United States were unreasonable and too restrictive. Therefore, Dunlap proceeded to arrange employment for Zeller based on the assumption that a court would agree with his interpretation of the contract.

This was done by establishing Union Rubber Company (hereinafter Union), an Ohio Corporation, as a wholly-owned subsidiary of Consolidated. Zeller was made president of Union which had one other employee. Union was formed on June 17, 1983, two weeks after Zeller left the employ of Randustrial. Union sells products which are competitive with Randustrial and Consolidated. Zeller was directed not to sell in five states where he had recently represented Randustrial and was directed not to sell to any customer that he had business with or knowledge of as an employee of Randustrial. Nevertheless, approximately twelve (12) sales were made to Randustrial customers with a total value of $1,000.00 to $1,500.00.

Reviewing the above set of facts and circumstances, in light of our decision that the consent order should not be rescinded or modified at this time, we find ample evidence to conclude that Dunlap has violated the consent order. The violation has occurred by Dunlap’s indirect inducement of Zeller to breach his sales representative agreement with Randustrial. In making the decision, we are not ruling that Zeller has violated his contract with Randustrial. Although the contract is before us for review, Mr. Zeller is not a party to this lawsuit. We are simply deciding that Dunlap, by forming a corporation to allow Zeller to compete with Randustrial, has violated Paragraph 4(a) of the consent order in that he (Dunlap) has indirectly induced a former employee of Randustrial to act as a sales agent to Dunlap. Although Zeller may be the president of Union, it is undisputed that he sells products in direct competition with Randustrial and has done so within one (1) year of his termination of employment with Randustrial.

Remedy for Contempt of Consent Order

We now must decide what damages and/or further relief inures to Randustrial as a result of the violation by Dunlap of this court’s consent order.

The plaintiff seeks compensatory damages, attorneys’ fees and an order that defendant come into compliance with the court’s order of May 19, 1966. As compensatory damages plaintiff wishes this court to impose liquidated damages against Dunlap as provided for in Zeller’s contract with Randustrial. We do not consider this to be a proper measure of damages. Although Dunlap may have had knowledge of the provisions of Zeller’s contract providing for damages for breach of said contract, we feel the only compensatory damages proven were the result of sales to Randustrial customers in the range of $1,000.00-$1,-500.00. Accordingly, an appropriate order will be entered awarding said compensatory damages.

With respect to attorneys’ fees, the court in a contempt proceeding may, in its discretion, award expenses, costs and fees to plaintiff. Lichtenstein v. Lichtenstein, 425 F.2d 1111, 1113 (3rd Cir.1970). Furthermore, the award is limited to the reasonable fees incurred by the party seeking relief and a basis for the award of said fees must appear in the record. Lichtenstein, supra at 1114 citing Schauffler v. United Ass’n of Journeymen, 246 F.2d 867 (3rd Cir.1957).

The evidence in the record is the testimony of William A. Randorf, president and chief executive officer of Randustrial. Mr. Randorf testified that he reviewed statements for legal fees as part of his responsibilities for Randustrial. Statements of attorneys’ fees were presented as exhibits and Mr. Randorf testified he approved these statements for payment as being reasonable. However, we cannot avoid the fact that Mr. Randorf is a biased witness. Had an attorney who had experience in similar cases testified with respect to the reasonableness of the statements, we would not be reluctant in awarding the fees in full. We, therefore, shall grant plaintiff a part of the $15,000 plus fees which are sought. An appropriate order will be entered.

Having found the defendant in contempt of this court’s consent order of May 19, 1966, an order will be entered requiring the defendant to come into compliance with said order.

The above shall constitute this court’s findings of fact and conclusions of law pursuant to Rule 52, Fed.R.Civ.P.

      . The period of time with respect to Zeller is three (3) years in any territory where he actually represented Randustrial, and one (1) year in any other territory within the continental United States.


author: ROY, District Judge.

text:
    Ken PAYNE, Plaintiff, v. J. Barry BALLARD et al., Defendants.
    No. J-C-83-123.
    United States District Court, E.D. Arkansas, Jonesboro Division.
    Oct. 11, 1984.

      Marc Baretz, West Memphis, Ark., for plaintiff.
    C.R. McNair, III, Asst. Atty. Gen., of the State of Ark., Little Rock, Ark., for defendant.
   MEMORANDUM OPINION

ROY, District Judge.

Plaintiff, Ken Payne, brought this action pursuant to 42 U.S.C. § 1983 alleging that his termination as an employee of the Cotton Boll Vocational Technical School violated his rights of procedural and substantive due process guaranteed by the Fourteenth Amendment, specifically alleging that he had both a property and liberty interest in his continued employment with the defendants. Additionally, plaintiff alleged that the actions of the defendants in terminating him were in violation of the employee grievance and appeal procedure in effect at the time of his termination.

The case was tried to the court on May 21 and 22, 1984.

Plaintiff, at all times during his employment with the Cotton Boll Vocational Technical School, was a resident citizen of Blytheville, Arkansas, and since his employment with the defendants, from 1979 through October 26, 1982, was an instructor at the Cotton Boll Vocational Technical School. Prior to his being employed at Cotton Boll, Mr. Payne had worked at various factory-type jobs as a draftsman or in related type of work. Mr. Payne had a high school education at the time of his employ with the defendants and did not have any post high school training or college courses and had no prior courses in teaching methods. Other than a one day period of orientation, defendants provided the plaintiff with no specific training either in his area of expertise or as to teaching in general.

The defendants are, in effect, the Cotton Boll Vocational Technical School, through its properly served agents and administrators. That school is an agency of the Department of Education, State of Arkansas and is located in Blytheville, Arkansas.

On or about August 27, 1982, the plaintiff was placed on probationary status by the defendants for an act of insubordination occurring on August 25, 1982. The insubordination concerned a request that he contact some high school students who apparently failed to return to Mr. Payne’s classes after attending one day of class. The Vocational School commenced classes on or about August 9, 1982, with the high school students’ first appearance at the Vocational School occurring on or about August 24, 1982.

William Nelson, Jr., Director of the Cotton Boll Vocational Technical School, had received information indicating that the reason some high school students did not return to Mr. Payne’s class was because Mr. Payne had paid no attention to them.

Upon receiving this information, on August 25, 1982, William Nelson, Jr., asked Ken Payne three times if he would ascertain if the high school students who failed to return to his classes would return. It was not until the third request that Ken Payne asked William Nelson, Jr. if he might have a day to think the matter over, and would advise Mr. Nelson the following morning as to whether or not he would in fact contact the students. Ken Payne testified that he thought that by agreeing to contact the students he was admitting that he had, in fact, run the students off, and that was the reason for his reluctance to contact the students upon Mr. Nelson’s request. On the 26th of August, 1982, Ken Payne did not make contact with William Nelson, Jr., and at trial testified that he made some attempt to contact Mr. Nelson but that he bore the responsibility for not succeeding in contacting him on the 26th. Ken Payne left no messages with the secretaries to advise Mr. Nelson of plaintiff’s attempts to reach him. William Nelson testified that he cancelled his lunch appointment the next day so he would not miss Mr. Payne, but Mr. Payne did not talk with Mr. Nelson until August 27, 1982, two days after their discussion. It was on August 27, 1982, that William Nelson, Jr. handed Ken Payne a letter indicating that insubordination was grounds for immediate dismissal and that Ken Payne could have been terminated on the 25th for his actions. The letter gave Ken Payne the option of contacting the students and being placed on probation, or not contacting the students and being terminated effective immediately. At that time, William Nelson, Jr., also advised Ken Payne that his employment status was changed and that he was no longer a permanent employee. The letter also stated that any subsequent acts of insubordination would be grounds for dismissal. Upon receipt of the letter, Ken Payne did, in fact, contact the students from Mr. Nelson’s office and elected to appeal the action of placing him on probation as per the letter of August 27, 1982, through the employee grievance and appeal procedure.

The appeal to step 1 of the employee grievance and appeal procedure provides for a hearing to be scheduled with the employee within ten working days and the employee’s immediate supervisor and area coordinator to be notified of the grievance by the personnel officer. Ken Payne testified that the Personnel Officer, Dianne Farquhar, called him and advised him that as time was running short regarding a decision to be made that a telephone conference was appropriate, and gave him the option of either having a conference by telephone or foregoing the hearing. Dianne Farquhar admitted at trial that the conference was, in fact, held by telephone but stated that Ken Payne was agreeable to holding the conference by phone. She further testified that she would never have agreed to a phone hearing if Mr. Payne had not so agreed. On or about September 24, 1982, Dianne Farquhar notified Ken Payne of her decision upholding the probation and advising him that he could continue on probation for the remainder of the school year. She did further advise him that if he was not satisfied with the decision that he might continue in accordance with step 2 of the employee grievance and appeals procedure. Ken Payne timely filed an appeal stating that he wished to continue the grievance to step 2. Once Dr. J. Barry Ballard, Director of the State of Arkansas Department of Education Division of Vocational Education, received the request for further review, he appointed an ad hoc committee to consider the case. On October 6,1982, the ad hoc committee appointed by Dr. J. Barry Ballard met at the Cotton Boll Vocational Technical School and held a hearing. The subject of that hearing was the plaintiff’s insubordination regarding his failure to call the high school students and his being placed on probation therefore. However, additional testimony was presented at the hearing and carefully considered by the committee regarding certain unauthorized schedule changes made by the plaintiff since the plaintiff’s own grievance which was filed with the Committee raised the schedule change issue.

At the hearing that was held on October 6, 1982, Ken Payne appeared on his own behalf without representation. A transcript of the tape recording taken at that hearing was prepared and introduced as a plaintiff’s exhibit. At various points in the proceedings there were discussions about a change of schedule that Mr. Payne made after having been told not to do so by his superiors. Testimony revealed that the ad hoc committee based its decision upon its understanding that Mr. Payne had made changes in his classroom schedule in contravention of directives from his superior, June Walters. The transcript of the ad hoe committee hearing is replete with instances wherein plaintiff himself acknowledges that he had made schedule changes although directed by Ms. Walters not to do so. Plaintiff now complains, in retrospect, that the ad hoc committee members apparently misunderstood his testimony and that in fact he had not made schedule changes but only rearranged class time devoted to particular subjects. Plaintiff testified at trial that the class time rearrangements were approved by Ms. June Walters, the school’s scheduling supervisor. Ms. Walters, however, explained in her testimony at trial how such changes would have been in violation of department policy and that as a result she would never have given any such approval. During his testimony, plaintiff Payne was unable to direct the court to any reference in the ad hoc committee transcript where he did not specifically admit to having made the schedule changes. It is true that at the committee hearing, Mr. Payne stated that he would not expect the administration to change the schedule that would conflict with other instructors, and that all he was asking was to change his class time only. Nevertheless, the transcript also clearly indicates that Mr. Payne stated that the full-time students were only getting half the drafting theory and half the communications, and that Mr. Payne answered affirmatively when asked if this constituted a schedule change. The Court has difficulty reconciling this testimony with the plaintiff’s statement at trial that he did not make a schedule change involving less theory time. Furthermore, Dr. J. Barry Ballard, Director of the Division of Vocational Technical Education, Department of Education, the individual that ultimately made the determination that Mr. Payne should be terminated, testified that in the period of time between the recommendation of the ad hoc committee in October of 1982 and the review of Dr. Ballard’s termination decision by the State Board of Education in January of 1983, numerous telephone conversations transpired between he and plaintiff without any reference to the alleged approval of the schedule changes by Ms. Walters. Although the transcript of the ad hoc committee hearing indicated some confusion on behalf of the members of the Committee concerning what, in fact, occurred, at no time did Ken Payne state that any changes he made were done with the approval of June Walters, the school’s scheduling supervisor. It is inconceivable to the Court how plaintiff could have answered so many questions with respect to the schedule changes without ever stating June Walters gave him permission to do so. In fact, Mr. Payne himself conveyed the impression to the ad hoc committee that he had indeed changed his schedule although directed not to do so by a superior.

After hearing the testimony regarding Ken Payne, the committee recommended that Ken Payne be dismissed for insubordination with the reasons given being both his alleged failure to comply with a reasonable request from a supervisor, and second, his changing of the instruction schedule for drafting. One committee member voted to keep Mr. Payne on probation.

By letter dated October 26, 1982, to Ken Payne, Dr. Ballard did, in fact, fire Ken Payne. After the committee’s recommendation of October 6 and until the letter of Dr. Ballard of October 26, Ken Payne continued with his duties as an instructor at Cotton Boll Vocational Technical School. At trial, Ken Payne testified that he continued during that twenty day interval to teach his class time in the same way and manner that he had done since August 25, 1982, and that nobody advised him to cease with any alleged scheduling changes after October 26, 1982. However, William Nelson, Jr., stated that the reason for this was because he didn’t want plaintiff to subsequently allege that he was being harrassed.

Dr. Ballard testified that in reviewing the committee recommendation pursuant to step 2 of the grievance and appeal procedure, he realized more severe punishment resulted from the ad hoc committee hearing, and therefore he read the file carefully, listened to some of the tape of the committee hearing to get a feel for attitudes, and spoke to some of the committee members. He also reviewed the procedure manual. He stated that after the review it was clear that the initial act of insubordination was grounds for immediate dismissal, and that it was also clear from the transcript that there had been a second act of insubordination. Dr. Ballard stated that since dismissal is always preceded by the supervisor’s recommendation, he called William Nelson and asked if he was aware of the schedule change. Mr. Nelson said that he was, and that he would recommend plaintiff’s dismissal. Dr. Ballard further stated that if a subsequent committee had been formed, one of the issues which would be raised was whether June Walters gave the plaintiff permission to change the schedule, and that June Walters had denied giving permission at the Board review. Dr. Ballard stated that the ad hoc committee had the authority to recommend anything they want in terms of action to be taken against an employee. Although Dr. Ballard found it unusual to escalate the punishment, and although such action had never been taken before, he felt that after reviewing the case the action was warranted.

Following step 2 the grievance and appeals procedure process, Ken Payne appealed to step 3 of the grievance and appeal procedure for a hearing before the State Board of Vocational Education. That hearing was scheduled for January 20, 1983, in Little Rock, and by letter dated December 13, 1982, Dr. Ballard advised Ken Payne’s attorney that there would be certain rules regarding the hearing held. There was a hearing held on January 20, 1983, and at that hearing, objections were made by counsel for plaintiff to the rules, specifically noting the lack of cross-examination of witnesses and the fact that the witnesses would not be under oath, setting out that it would not be too burdensome a task to permit both cross-examination and the swearing in of witnesses. The minutes of the State Board Meeting of January 10, 1983, indicate that the State of Arkansas claimed that due process did not require witnesses to be sworn in and cross examined and that the rules had been approved by the Office of Civil Rights. Chairman Hartsfield then ruled that the Board would continue under the rules identified in Dr. Ballard’s letter. Further, at the hearing, objection was made to the fact that a hearing should be held concerning the probation status only and not the termination of Ken Payne as Ken Payne should not have been jeopardized for appealing his probation by escalating the punishment to termination. At that hearing, according to the plaintiff, without notice to plaintiff and over the objection of plaintiff, the Board considered aspects of Mr. Payne’s entire work record and brought out matters such as his on-the-job rating by students and prior incidents of disciplinary disputes, none of which were addressed at the prior hearings or advised were being presented. According to the testimony at trial and exhibits introduced, plaintiff had received a letter of caution dated May 26, 1982, advising plaintiff that he must cease: 1) discussing anything about one student with another student or instructor; 2) discussing his personal problems of any nature with his students, and 3) using profanity in the presence of students; or his employment would be terminated. It was at the Board hearing that Mr. Payne requested that affidavits from two of his students identified below be made part of the hearing record to support his position that June Walters made improper suggestions for solving plaintiff’s schedule problems.

Two former students of Ken Payne, namely Pat Hancock and Terry Rodgers, testified at trial that they were students of Mr. Payne’s since the class commenced on August 25, 1982. They testified that June Walters, Assistant Director of Cotton Boll Vocational Technical School, in their presence came into the classroom and advised Ken Payne that a solution to the instructional problem concerning the training of high school students, was to either ask an advanced drafting student, Ronald Derbis, to train high school students in the 5th and 6th period class hours or to divide the theory time 5th or 6th period class hours and instruct thirty minutes for theory time to full time students and thirty minutes of theory time to high school students. They did further testify that they were present when the high school students came into the course and that they did not think Ken Payne had mistreated them in any way, or caused them to leave, and did further testify that they thought Ken Payne was a fine, impartial instructor and knew his craft well. However, June Walters testified that she did not in fact approve such a class time adjustment and that it was against regulations to have the adjustments made that were made inasmuch as the students weren’t receiving enough theory time. It is true that June Walters testified before the ad hoc grievance committee that, “I said you can change anything on your schedule that doesn’t affect the related instructor and mess up another department’s schedule.” Furthermore, with respect to recommending an advanced student to help teach the class, June Walters testified that she never recommended that an advanced student help teach the class, but may have suggested that an advanced student help a slower student as an example of who a high school student could shadow. June Walters also testified that any time a schedule change is requested, it should be submitted in writing. However, although plaintiff testified at trial that he gave one hour of theory each day, a review of the ad hoc committee transcript indicates that the changes made by Ken Payne were, in fact, in contravention of school policy since Ken Payne testified before the ad hoc committee that post-secondary students were only receiving one half hour of theory time rather than the required one hour.

Plaintiff now contends that he did not address the schedule change issue as clearly as it could have been addressed because there was never any notice that this issue was the subject of the hearing, and that while it was mentioned and discussed by the committee members and Mr. Payne, it is clear from the testimony given to the committee members that several schedule changes and/or class time requests were involved but not orderly addressed by either Mr. Payne or the committee. Plaintiff therefore contends that the committee in essence escalated the punishment based upon consideration of issues of which he had no notice. The Court finds this argument to be unpersuasive. It was plaintiff who raised the issue regarding schedule changes in his grievance, and it was plaintiff who appeared to contend that the schedule change issue was closely related to the reasons why he was placed on probation.

Plaintiff submits in the alternative that even if his termination were justified, it was procedurally improper. More specifically, plaintiff contends that under the immediate dismissal procedure, the immediate supervisor and the area coordinator must consult with the personnel administrator before taking any action, and that such procedure was not followed in the instant case. Defendants submit that the department policy was technically complied with and, in any event, that the spirit of the procedural protections envisioned by the policy were extended to plaintiff.

The Department of Education immediate dismissal policy provides for the immediate termination of an employee for insubordination. Defendant Nelson was Mr. Payne’s supervisor. The area cordinator, Mr. John Kauffman, was a member of the ad hoc committee that met to review plaintiff’s grievance. Dianne Farquhar was the department’s personnel administrator and also on the ad hoc committee. Mr. Nelson had formally notified Mr. Payne in his letter placing Mr. Payne on probation that future acts of insubordination would result in his termination. It therefore appears that all the required parties were in agreement that Mr. Payne should be terminated and that technical compliance with the wording of the policy would have required all the parties to have reconvened to review the identical evidence already uncovered by the ad hoc committee.

Dr. Ballard testified that the purpose of the policy and its procedural steps was to insure that by the time he made the ultimate decision to terminate an employee, all the relevant facts were before him. Feeling that this was the case, Dr. Ballard further testified that he had no reason to feel that a second committee would uncover anything that the first committee had not yet presented to him. Dr. Ballard also testified that he did contact Mr. Payne’s superior, Mr. Nelson, prior to deciding to terminate Mr. Payne and received Mr. Nelson’s concurrence in his decision.

This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1343(3) which authorizes the jurisdiction of claims brought pursuant to 42 U.S.C. § 1983 to enforce rights guaranteed by the constitutional laws of the United States. The Court also has jurisdiction pursuant to 28 U.S.C. § 1331 in that the amount in controversy exceeds, exclusive of interest and costs, the amount of $10,000.00. Plaintiff contends that he had a property interest in his continued employment as a permanent employee of the Cotton Boll Vocational Technical School since he was employed as an instructor from 1979 and October 1982. Further plaintiff states that he had a protected liberty interest as an employee of said institution as he was dismissed from his employment based upon an unsupported charge which affected his good name and reputation, thereby requiring due process. Additionally, jurisdiction is invoked pursuant to the substantive and procedural due process guarantees of the Fourteenth Amendment with the assertion that Defendants’ actions in failing to follow the employee grievance and appeal procedure and failing to reinstate the plaintiff after having appealed his probation violated said due process clause and was further arbitrary and capricious. Plaintiff alleges a pendant claim in that the actions of the defendants in terminating him was in breach and violation of the employee grievance and appeal procedure and thereby in breach of the contract of employment with the Cotton Boll Vocational Technical School as said procedure forms part of the basis of the employment relationship and contract.

It is well established that the Fourteenth Amendment forbids the state to deprive any person of life, liberty, or property without due process of law. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

Before considering the due process arguments, the Court must first determine that the termination adversely affected protected “property” or “liberty” interests. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Gilbreath v. East Arkansas Planning and Development District, Inc., 471 F.Supp. 912 (E.D. Ark.1979).

The opportunity to be a public employee is not a protected legal or constitutional right as such. Mittelstaedt v. Board of Trustees of University of Arkansas, 487 F.Supp. 960, 972 (E.D.Ark.1980). However, it has been held that a protected interest in employment may be created by express contract, Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Johnson v. City Council of Green Forest, Arkansas, 545 F.Supp. 43 (W.D. Ark.1982); by a federal or state statute or regulation, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Bishop v. Wood, supra; Johnson vs. City Council of Green Forest, Arkansas, supra; Seal v. Pryor, 504 F.Supp. 599 (E.D.Ark.1980), aff'd, 670 F.2d 96 (8th Cir.1982); by a specific tenure contract, Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1955); Seal v. Pryor, supra; by an implied contract, Bishop v. Wood, supra; Perry v. Sindermann, supra; Seal v. Pryor, supra; Gerrin v. Hickey, 464 F.Supp. 276 (E.D.Ark.1979); Gilbreath v. Arkansas Planning and Development Commission, Inc., supra; and by applicable personnel regulations if they reflect a de facto policy of established guidelines to be followed prior to dismissal. Bishop v. Wood, supra; Board of Regents v. Roth, supra; Perry v. Sindermann, supra; Gilbreath v. Arkansas Planning and Development Commission, Inc., supra; and Gerrin v. Hickey, supra.

Another Eighth Circuit opinion states that a plaintiff may alternatively establish a property interest by showing “mutually explicit understanding” or common practices and agreement derived from the employer-employee relationship which would create a sufficient expectancy of continued employment to merit some due process. Brockell v. Nouton, 688 F.2d 588 (8th Cir. 1982).

In the present case, no contract with a specific term of duration existed, and the employment relationship was thus terminable at will by either party under Arkansas law. Gilbreath v. East Arkansas Planning Commission and Development District, Inc., supra; Arkansas Livestock & Poultry Commission v. House, 276 Ark. 326, 634 S.W.2d 388 (1982); Seal v. Pryor, supra.

Neither party has pointed to any federal or state statute or regulation establishing a property interest.

Plaintiff appears to be arguing that the fact that he was a certified instructor until 1986 (the expiration date of his certificate) constituted a specific tenure contract or an implied contract that he would be employed until 1986. However, Dr. Ballard testified that said certificates were obtained for their instructors for the purpose of meeting certain standards and requirements, not to establish a contract with the employee. In fact, plaintiff testified that he could quit any time as long as he gave notice.

The only theory which contains some merit is plaintiffs claim that the employee grievance and appeal procedure reflects established guidelines to be followed prior to dismissal, and that the defendants failed to follow said guidelines before dismissing him. However, as will be discussed later, the minor deviations in the present case did not amount to a constitutional deprivation of property without due process.

Plaintiff also alleges that his good name and reputation has been affected by his wrongful termination. This could constitute a “liberty” interest if the requisites in Bishop v. Wood, supra, were satisfied:

In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), we recognized that the nonretention of an untenured college teacher might make him somewhat less attractive to other employers, but nevertheless concluded that it would stretch the concept too far “to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another.” Id. at 575, 92 S.Ct. at 2708. This same conclusion applies to the discharge of a public employee whose position is terminable at the will of the employer when there is no public disclosure of the reasons for the discharge.

Plaintiff testified that until he obtained his present job, he was turned away from jobs he wouldn’t have expected to be turned away from and that word of his termination had gotten around and stigmatized and hurt his reputation. No other evidence was presented to support these allegations. In fact, plaintiff even admitted that it was William Nelson, Jr. who recommended him and helped him get his present job.

The Court finds the evidence to be insufficient that plaintiff’s “liberty” interest was affected.

If the Court were to conclude plaintiff had a property interest by virtue of the applicable regulations, the Court would nevertheless conclude that plaintiff was given sufficient due process.

The court finds the arguments in the present case with respect to failure to follow the provisions contained in the employee grievance and appeal procedure to be similar to those advanced in Derrickson v. Board of Education of the City of St. Louis, 703 F.2d 309 (8th Cir.1983). In Derrickson a probationary teacher brought a civil rights action alleging wrongful discharge. It was alleged that Missouri statutory law and the regulations of the Board established a property interest in continued public employment which the defendants took from the plaintiff without due process required by the fourteenth amendment. The Court concluded that the Missouri statute in question did not create a reasonable expectation of continued employment, and then discussed the defendants failure to follow established Board procedures in deciding not to retain him after his third probationary period.

Derrickson argues that the defendants failed to comply with the regulations because the inembers of the special evaluating committee did not formally meet and all three members did not submit a formal committee recommendation to the Superintendent. He does not contest the facts that the members of the committee informally conferred about his nonretention and that Spicer and Waggoner, two of the three committee members, actively participated in the formal drafting of Spicer’s report, dated March 13, 1978, which explained the reasons for Spicer’s nonretention recommendation to the Board and Superintendent Wentz on March 14, 1978.
We agree that a state agency’s failure to follow its own ordinances and regulations may constitute a deprivation of property without due process. See Wilson v. Robinson, 668 F.2d 380, 382-383 (8th Cir.1981) (county ordinance requiring two weeks notice prior to the termination of non-probationary sheriff’s deputies creates a property interest protectable under the fourteenth amendment). Cf. McDonald v. Mims, 577 F.2d 951, 952 (5th Cir.1978) (state procedural protections cited as alternative source of the “property interest” held by “non-tenured” teachers in Mississippi). In this case, however, we find that the defendants’ alleged minor deviations from the regulations at issue, as a matter of law, do not amount to a constitutional deprivation. The Director of Fersonnel did appoint a special evaluating committee which in fact provided the input concerning Derrickson’s suitability for tenure which the regulations were designed to provide.

Id. at 315. The Court finds the reasoning and conclusions reached in Derrickson to be appropriate in the present case. As stated earlier, the immediate supervisor and the area supervisor did not consult with the personnel administrator in a separate procedure regarding the schedule changes. However, the area coordinator and personnel administrator were privy to and participated in the extensive discussions relating to the schedule changes. Furthermore, the immediate supervisor was contacted by Dr. Ballard and asked if he was aware of the schedule changes before Dr. Ballard affirmed the committee’s recommendation.

In addition, much of plaintiff’s case in this regard attempted to establish that the decisions made at the various proceedings provided were not supported by substantial evidence. To the extent that a plaintiff challenges administrative actions taken against him, the district court should not provide a de novo review under § 1983 of a fact finding board’s determinations. Cf. Cummings v. Dunn, 630 F.2d 649 (8th Cir.1980); Willis v. Ciccone, 506 F.2d 1011 (8th Cir.1974). (Prison disciplinary board hearing). Federal courts do not review disciplinary actions for sufficiency of evidence. It is only when a party suffers deprivations of constitutional dimension that a federal court may become involved. Cf., Courtney v. Bishop, 409 F.2d 1185 (8th Cir.1969), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969). (Prison disciplinary action).

Even if this court were not convinced that there was substantial evidence to support the personnel action taken against plaintiff, it would refrain from substituting its judgment for that of the responsible officials that were in a better position to weigh the evidence leading to plaintiff’s termination.

With respect to the failure to allow plaintiff to cross-examine the witnesses at the Board hearing, it has been held that cross-examination need not be a part of every hearing in order to satisfy due process. Woodbury v. McKinnon, 447 F.2d 839 (5th Cir.1971), Winston v. United States Postal Service, 432 F.Supp. 1117, (N.D.Ill.1977), aff'd, 585 F.2d 198 (7th Cir. 1978).

“A fundamental purpose of the due process clause is to allow the aggrieved party the opportunity to present his case and have its merits fairly judged.” Pollock v. Baxter Manor Nursing Home, 716 F.2d 545 (8th Cir.1983). Mr. Payne heard the evidence against him and was afforded the opportunity to rebut that evidence during his own testimony. Nothing prevented plaintiff’s counsel from pointing out inconsistencies in testimony.

Furthermore, it has been held that proof of a denial of due process requires a showing of substantial prejudice. Ka Fung Chan v. Immigration Naturalization Service, 634 F.2d 248 (5th Cir.1981); United States v. Lober, 630 F.2d 335 (5th Cir.1980). The plaintiff has made no such showing.

The United States Supreme Court has described due process as follows:

... “[d]ue process, ‘unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” (citations omitted). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” (citations omitted).

Matthews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976); Finney v. Mabry, 528 F.Supp. 567 (E.D.Ark. 1981).

Due process depends upon three factors: (1) The private interest involved; (2) the risk of erroneous deprivation of those interests through the procedures used and the probable value of additional procedures and (3) the government’s interests, including the fiscal and administrative burden that additional procedures would entail. Matthews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903.

This Court, after considering the factors enunciated above, finds that the plaintiff in the present case was not deprived of procedural due process by the failure of being able to cross-examine at the Board hearing.

Accordingly, the plaintiff’s case is hereby dismissed.