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MATTHEWS v. HESBURGH

July 30, 1980

Harry G. MATTHEWS, Plaintiff,
v.
Theodore M. HESBURGH, Chairman, Select Commission on Immigration and Refugee Policy et al., Defendants



The opinion of the court was delivered by: PRATT

Summary

 Plaintiff, Dr. Harry Matthews, brings this action against the Members of the Select Commission on Immigration and Refugee Policy, its Executive Director, and the United States, alleging that he was terminated as the Commission's Coordinator of Public and Congressional Affairs for racial reasons in violation of the Fifth Amendment Due Process Clause, and without a hearing in violation of the procedural protections of the Due Process Clause. Plaintiff seeks reinstatement, back pay, and damages. Defendants have moved for summary judgment for reasons hereinafter discussed.

 As a result of our consideration of the parties' contentions, we have granted partial summary judgment for defendants, finding that plaintiff was not entitled to any constitutionally-mandated due process procedural protections, and we have denied summary judgment on the issue of racial discrimination, finding that plaintiff has raised a genuine issue of material fact.

 I. The Facts

 The Select Commission on Immigration and Refugee Policy (Commission) was created by Congress *fn1" to comprehensively review this country's immigration and refugee policies and laws, and to recommend revisions. The Commission is statutorily directed to make a final report of its findings and recommendations to the President and the Congress by March 1, 1981, *fn2" at which time the Commission will wind up its affairs and cease to exist. *fn3" Defendant Fuchs, the Executive Director of the Commission, offered plaintiff a position as the Commission's Coordinator of Public and Congressional Affairs on July 24, 1979. Plaintiff accepted the position on that date and began work with the Commission on August 15, 1979. *fn4" On December 18, 1979, defendant Fuchs informed plaintiff that he was discharging him effective February 1, 1980. Precisely what occurred between these dates is the subject of some dispute.

 The affidavits of defendant Fuchs, Commission Special Assistant Sandra Stevens, and Commission Deputy Director Ralph Thomas allege numerous instances of plaintiff's substandard performance, including missing deadlines, failing to perform certain duties, and refusing to perform other duties when directed to do so. Defendant Fuchs' affidavit states that plaintiff's supervisory responsibilities were transferred to Special Assistant Stevens on November 15, 1979, and that plaintiff was notified of his termination for failure to properly perform his job on December 18, 1979. The Fuchs' affidavit also states that defendant Fuchs again informed plaintiff of the reasons for his termination on January 3, 1980, and that these reasons were put in writing by defendant Fuchs on January 4, 1980 at plaintiff's request.

 Plaintiff concedes in his affidavit that at a November 15, 1979 meeting defendant Fuchs told plaintiff and others that the public affairs staff was not functioning properly, and that Special Assistant Stevens was being given supervisory responsibility for the public affairs staff. However, plaintiff's affidavits specifically rebut or deny many of the charges of substandard performance made in the affidavits of Fuchs, Stevens and Thomas, and plaintiff states that many of the criticisms made of his performance were actually the result of disorganization and mismanagement within the Commission. In particular, plaintiff states that he was often the victim of conflicting orders and requests issued by Stevens, Thomas and defendant Fuchs. Rather than being discharged for incompetence, plaintiff alleges that he was discharged for racial reasons and for other non-job related reasons.

 Plaintiff's allegations center around the hiring of Nina Solarz, the wife of Congressman Stephen Solarz. Defendant Fuchs' affidavit states that he only offered plaintiff a position after Mrs. Solarz had been offered and had rejected the job. (i. e., as between Mrs. Solarz and plaintiff, Mrs. Solarz was his first choice as Coordinator of Public and Congressional Affairs). Defendant Fuchs' affidavit also states that he succeeded in hiring Nina Solarz for the position "on or about December 17, 1979." *fn5" Plaintiff's affidavit states that on December 18, 1979 defendant Fuchs told him that he had decided to hire Mrs. Solarz, that he needed a slot in order to do so, and that he had decided to terminate plaintiff in order to make room for Mrs. Solarz. According to plaintiff's affidavit, defendant Fuchs named various staff members and explained why each could not be terminated to make room for Mrs. Solarz. In discussing one staff member, John Jones, plaintiff states that defendant Fuchs indicated he could not fire Mr. Jones because he was black. *fn6" On the basis of this conversation, which is not denied by defendant Fuchs, *fn7" plaintiff alleges that he was fired for racial considerations.

 Prior to his termination, plaintiff was not given an opportunity for a hearing or an appeal. Although plaintiff was a federal employee, the legislation creating the Commission provided that the Commission could hire personnel without regard to civil service laws, rules and regulations. *fn8" Thus, plaintiff did not enjoy the procedural protections accorded civil service employees.

 Plaintiff brings this action under the Due Process Clause of the Fifth Amendment against members *fn9" of the Commission, the United States, and Executive Director Fuchs individually and in his official capacity. Plaintiff alleges that he was denied a property interest in continued employment with the Commission and a liberty interest in obtaining other employment, both denials being in violation of due process procedural protections, and that he was discriminated against on the basis of race in violation of the Due Process Clause. Plaintiff seeks reinstatement, back pay, attorney's fees, costs, and exemplary damages of $ 50,000 against defendant Fuchs.

 Defendants have moved for summary judgment, arguing that no liberty or property interest was infringed, that back pay and reinstatement are an inappropriate remedy, that sovereign immunity bars any award against the government and that official immunity bars any award against defendant Fuchs, and that plaintiff was fired for job-related reasons adding up to substandard performance and not for racial considerations.

 II. Legal Analysis

 We begin with the well-established proposition that the mere fact of government employment, without more, does not of itself trigger any constitutional requirement that an individual be given a hearing or other procedural protections prior to dismissal. Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO, et al. v. McElroy, et al., 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1960); Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959). In Vitarelli, the Supreme Court noted that an Interior Department employee who enjoyed no statutory protection under the Civil Service Act could be summarily discharged by the Secretary at any time without a reason being provided. Subsequent to these decisions, the Supreme Court increased the breadth of procedural protection under the due process clause. See Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). However, as this Circuit's Court of Appeals has noted, "... as a threshold requirement the plaintiff in a public employee dismissal case must show that he has either a legitimate entitlement with respect to his job, which would be protected as property under the Fifth or Fourteenth Amendments, or that his dismissal deprives him of a liberty interest ...


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