Durham v. Fields

WILNER, Chief Judge. Until the General Assembly, by 1990 Md.Laws, ch. 220, provided for its takeover by the State, the Community College of Baltimore was an entity owned and operated by the Mayor and City Council of Baltimore. It was governed by a Board of Trustees appointed by the Mayor and City Council. In 1986, Joseph T. Durham was president of the college; Ralph R. Fields served as dean of faculty and provost.

In June of that year, Dr. Durham recommended to the Board of Trustees that Dr. Fields’ employment be terminated. In August, the Board concurred in that recommendation and formally terminated Dr. Fields’ employment. Aggrieved by that decision and the manner in which it was made, Dr. Fields sued Dr. Durham, the members of the Board of Trustees, and the City, in both Federal and State court. Although he lost his Federal case, he was successful in persuading a judge and jury in the Circuit Court for Baltimore City that his removal as a faculty member was improper, and in consequence he was awarded a judgment for $1,750,000.

The defendants have appealed. Factual Background Dr. Fields commenced employment with the college in 1967 as Director of General Studies. From 1969 to 1978, he held both a faculty and an administrative position at the ³ college. He began his faculty rank as an associate professor, becoming a full professor in 1974.

He was promoted as well through the administrative ranks, becoming assistant dean of faculty in 1969, associate dean of faculty in 1970, dean of faculty in 1976, and dean of faculty and provost in 1978. In June, 1970, upon recommendation of the then-president of the college, Dr. Fields received tenure from the Board of Trustees. Under the applicable by-laws of the Board that meant, among other things, that (1) he could be dismissed only by the Board and only for gross insubordination, incompetency, or moral turpitude, (2) if he disputed the charge, he was entitled to a hearing before the Board and the assistance of counsel, and (3) unless the charge was based on moral turpitude, he was entitled to one year’s advance notice. In 1977, a new president, Rafael L. Cortada, was appointed.

In part because of a collective bargaining agreement that the college had with a union representing faculty personnel but not administrative officials, Dr. Cortada decided to separate faculty and administrative positions and not to have the same person serve in both capacities. This was reflected in a number of documents, one of which, issued in December, 1980, was entitled “Conditions of Appointment for Administrators and Non-Instructional Personnel.” This document applied to the “staff” of the college, defined as those personnel appointed to certain administrative positions “whose primary duties are not in classroom instruction.” It is clear, and really not disputed, that the administrative positions held by Dr. Fields fell within the ambit of the new conditions. It also appears that, by then, Dr. Fields was no longer actually teaching any courses at the college but instead devoted his full time to his administrative responsibilities. Indeed, the record indicates that Dr. Fields had not taught any courses since 1972 or 1973.

The conditions set forth in the 1980 document represent, in effect, terms and conditions of employment for adminis ⁴ trative personnel subject to them. The document states, among other things, that an administrative title shall not be held concurrently with professional rank, that administrative contracts shall be for one or three year periods, and that termination prior to expiration of the contract shall be only for “documented failure to achieve a performance rating of ‘satisfactory,’ ‘good cause,’ lack of student enrollment, program curtailment, negative impact of performance on the administrative and educational progress of the College, or fiscal exigency.” In contrast to the by-laws governing tenured faculty, only 30 days (as opposed to one year) advance notice was required, but a hearing before the Board of Trustees was assured. The only specific reference in this document to “tenure” was the statement: “ ‘Tenure’ will not be awarded to or held by administrators who have not fulfilled the residence requirements in teaching, and undergone the evaluation processes required of faculty members for the award of tenure at the Community College of Baltimore.” Dr. Fields had initially been appointed to the position of dean of faculty and provost in 1978 for a three year period. That was extended by letter agreements in 1981 and 1984.

Under the last of these agreements, which mentioned and incorporated the 1980 Conditions of Appointment, Dr. Fields’ appointment ran to June 30, 1987. In 1985, amid allegations of fiscal and administrative mismanagement, there were a number of changes in the top management of the college. Dr. Cortada left, and in September, Dr. Durham was appointed as interim president; he was formally appointed as president in the spring of 1986. One of the things to which he turned his attention was the evaluation of administrative personnel.

Since 1977, the college had in place a written procedure for the periodic evaluation of administrative personnel. It called for an evaluator to evaluate the person’s skills, strengths, and opportunities for improvement in working toward the specific performance objectives of his position. Upon completion of the evaluation, the evaluator was to meet with the ⁵ person, at a meeting called especially for that purpose, and present him with the evaluation. The person evaluated had five days to file a written response.

The evaluator’s immediate supervisor was then to review the evaluation and was permitted to make comments. In February, 1986, Dr. Durham directed that evaluations of administrative personnel be completed by May 15. He designated himself as the evaluator of Dr. Fields and certain other high level officials. No one was designated to review his evaluations of those people.

On March 10, he sent a memo to Dr. Fields noting three “areas of concern about your performance.” One had to do with “accepting] a directive” from another college official that led to the college being closed on September 27, 1985; the second complained of his taking a week’s vacation, to which he was entitled, without “reminding” Dr. Durham; and the third was a cryptic reference to “the infamous ‘Glenmount Story’ ” that was not further explained. Dr. Durham warned that “[b]ecause these are serious occurrences, I shall note them in your forthcoming evaluation” but stated that he would “be available to discuss these with you.” Dr. Fields claimed that he had a “good meeting” with Dr. Durham following this memo. Despite his directive that evaluations be completed by May 15, Dr. Durham did not get around to completing his evaluation of Dr. Fields until June 27, 1986. On that day Dr. Durham called Dr. Fields to his office and handed him a written evaluation in which he rated Fields’ overall performance as unsatisfactory.

He found his “Supervisory/Evaluative Skills” to be “inadequate and unsatisfactory,” recounting a number of episodes of what he regarded as substandard performance. He said that he had “no confidence” in Dr. Fields’ leadership ability, cited “sloppy” staff work, and opined that he was “ineffective as the chief academic/instructional leader” of the college. He ended the evaluation with the recommendation that Dr. Fields “be replaced” and that his contract not be renewed. ⁶ In point of fact, Dr. Durham was recommending more than mere non-renewal of the contract. In a separate letter, he informed Dr. Fields that he intended to recommend to the Board of Trustees that the current contract, which still had a year to run, be terminated.

He stated, in relevant part: “The College policy provides that when an administrator fails to achieve a performance rating of satisfactory, his contract may be terminated with thirty (30) days notice with due process provided, first, by an appeal to the Cabinet, then to the Board of Trustees for decision, if the action of the Cabinet is not satisfactory____ Please consider this letter as my notice to you that I shall recommend the termination of your contract as Dean of the Faculty/Provost, effective July 28, 1986.” At some point, a meeting of the president’s Cabinet was scheduled to consider Dr. Fields’ protest of this action, but for reasons somewhat in conflict, Dr. Fields decided to forego a hearing before that body and present his case directly to the Board of Trustees. Dr. Fields maintained that he waived the hearing before the Cabinet because he was informed just before the meeting that his attorney would not be allowed to participate, that several members of the Cabinet had recused themselves, and that the matter would be presented to the Board no matter what the Cabinet did. The defendants do not deny those assertions but add that the reason some members recused themselves was because Dr. Fields had gone to see them in advance to persuade them to vote in his favor and they felt uncomfortable. The Board met on the evening of August 12, 1986.

It did not consider whether Dr. Fields had any right to remain as a faculty member but proceeded only upon Dr. Durham’s charges of unsatisfactory performance in his administrative positions. Both the Board and Dr. Durham were apparently operating on the assumption that Dr. Fields’ employment rights were governed entirely by the 1980 Conditions that ⁷ were incorporated into his 1981 and 1984 contracts and that he either had lost any tenure as a faculty member or that such tenure was not an issue in that proceeding. The record indicates that the Board members were generally familiar with Dr. Durham’s complaints against Dr. Fields and that Dr. Durham presented no witnesses other than himself to explain or document those complaints. Most of the hearing was devoted to Dr. Fields’ response, which consisted principally of documentary evidence; friendly witnesses, he said, refused to testify on his behalf because of fear.

Dr. Fields alleged, with some evidentiary support, that the Board did not, during the hearing, actually examine the various documents he presented but adjourned, immediately after the hearing, to Dr. Durham’s office. He claimed to have overheard some of the Board members say to each other that, because it was then very late, the Board would have to reconvene at another time to deliberate. On August 15, 1986, the chairman on the Board, Mr. Jeffers, wrote to Dr. Fields and his attorney: “Please be advised that the decision of the Board of Trustees sitting as appeal board from the hearing of Tuesday, August 12, 1986 was an affirmation of Dr. Durham’s contention that there did and does exist good cause for termination of Dr. R. Rodney Fields as Dean of Faculty/Provost at the Community College of Baltimore. The Board of Trustees at a subsequent meeting approved and affirmed Dr. Durham’s recommendation to terminate Dr. Fields.” By separate letter dated the same day, Dr. Durham notified Dr. Fields that, pursuant to the Board of Trustees decision “regarding good cause to terminate and their subsequent approval of my request to terminate your employment at the College,” his employment was terminated effective that day — August 15, 1986.

This letter served to sever the entire employment relationship, both as a faculty member and as an administrator. Dr. Fields could not revert to ⁸ a teaching status; he was off the payroll. 1 Procedural Background Dr. Fields’ initial reaction to this turn of events was to file suit in the United States District Court for the District of Maryland against Dr. Durham, the college, the Board of Trustees, its chairman, and the City. In his amended complaint, he contended that the defendants’ actions deprived him of due process of law (Count I), constituted a breach of contract (Count II), amounted to a civil conspiracy (Count III), and constituted both a tortious interference with a contractual relationship (Count IV) and a wrongful discharge (Count V). On January 29, 1988, the court, through Judge Motz, granted summary judgment for the defendants on Count I and dismissed the other counts.

Judge Motz characterized all five claims by Dr. Fields as asserting that “before terminating his employment, defendants did not afford to him procedural rights to which he was entitled under his contract and under the College’s rules and regulation.” The judge found the due process claim, filed pursuant to 42 U.S.C. § 1983 , wanting for two interrelated reasons: first, because Fields did not contend that the defendants’ conduct was sanctioned by State law but instead averred that it was in contravention of that law; and second, because there existed under State law adequate post-deprivation remedies. Having thus disposed of the sole Federal claim, the court declined to exercise pendent jurisdiction over the other claims, which were based on State law, noting that Dr. Fields was “free to pursue those claims in state court.” Perceiving Judge Motz to have been in error, Dr. Fields appealed to the U.S. Court of Appeals for the Fourth Circuit which, on September 13, 1988, affirmed. Fields v. Durham, 856 F.2d 655 (4th Cir.1988). The appellate court ⁹ concluded that the due process violations alleged by Fields were random acts, unauthorized by State law, and that, under the principles laid down in Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981) and Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984), if he was in fact deprived of a fair and impartial hearing prior to the termination of his employment, “due process is satisfied by the availability of adequate state law remedies which he may pursue in state court.” Fields , at 657; also 659.

Still aggrieved, Dr. Fields petitioned the United States Supreme Court for a writ of certiorari. On January 13, 1989, while the petition for certiorari was still pending, Dr. Fields filed this action in the Circuit Court for Baltimore City. The underlying factual averments in his four-count amended complaint were nearly identical to those made in the Federal Court complaint. In Count I, he urged that his dismissal violated his property and liberty interests in both his faculty and administrative positions, and thus contravened his rights under articles 19 and 24 of the Maryland Declaration of Rights, the State law counterparts to the due process clause of the Fourteenth Amendment.

Except for the references to the State Constitutional provisions, the averments were virtually identical to those made in Count I of the Federal complaint. Counts II (breach of contract), III (civil conspiracy), and IV (tortious interference with contractual relationships) were also repetitions of those claims as set forth in the Federal court complaint. The only real difference between the two complaints, other than the Constitutional references, was that the State Court complaint did not contain a count for wrongful discharge. Though similar in averments, the two complaints had very different outcomes.

On January 2, 1990, the circuit court granted partial summary judgment in favor of Dr. Fields “on the issues of violation of his due process rights and breach of his contractual rights in connection with his status as a tenured faculty member.” In entering this order, the court found as a matter of law that Dr. Fields ¹⁰ had and retained tenure as a member of the college faculty and that, whether the defendants acted properly or improperly in terminating Dr. Fields’ status as dean and provost, they acted unconstitutionally and in breach of his contract in terminating his faculty status. Prior to trial, Dr. Fields dismissed all of his other claims — Counts III and IV and his claims under Counts I and II that the defendants had violated his Constitutional and contractual rights in terminating his status as dean and provost. The case was thus submitted to the jury only on the issue of damages accruing from the two claims upon which the court had granted summary judgment. For the breach of contract, the jury awarded $100,000; as compensatory damages for the violation of Constitutional rights, it awarded $485,642, which the court later reduced to $400,-000; and, as punitive damages for the latter, it awarded $1,250,000 — $500,000 against Dr. Durham and $750,000 against the Board of Trustees.

Aghast, the defendants moved for judgment n.o.v. or, in the alternative, for new trial. That motion was denied on March 1, 1990. Four days later, the Supreme Court granted Fields’ petition for certiorari, vacated the Fourth Circuit decision, and remanded the case to that Court for further consideration in light of Zinermon v. Burch, 494 U.S. 113 , 110 S.Ct. 975 , 108 L.Ed.2d 100 (1990), a case that the Court had decided a week earlier. On March 7, 1990 — two days after the vacation of the Fourth Circuit decision — the defendants filed this appeal, thereby essentially terminating the jurisdiction of the Circuit Court.

Finally, on July 19, 1990, the Fourth Circuit Court of Appeals, acting pursuant to the Supreme Court mandate, reconsidered Dr. Fields’ appeal in light of Zinermon v. Burch, supra, but again affirmed the judgment of the District Court. This time, the Court concluded that the pre-deprivation remedy provided by the State — notice of the charges and hearing before the Cabinet and the Board of Trustees — provided adequate due process of law and that Fields was therefore not denied his Federal Constitutional rights. ¹¹ Issues The defendants raise three basic issues in this appeal, two of which have some sub-parts. They first contend that the Circuit Court erred in granting summary judgment on Fields’ State due process claims because (1) there was no such violation shown and (2) those claims, being identical to those litigated in the Federal case, are barred by res judicata. The second complaint is that the court erred in granting summary judgment on the breach of contract claim because that claim rested on the finding that Dr. Fields had faculty tenure status in 1986 and (1) he had no such status or (2) the facts were in dispute as to whether he had such status.

The third complaint is that the evidence was legally insufficient to support an award of punitive damages. We shall deal with these questions in the order presented. Due Process Claims In urging that we find error in the summary judgment entered on the State due process claims, the defendants understandably lay great stress on the judgment entered by the United States District Court, as ultimately affirmed by the Fourth Circuit Court of Appeals. Those Federal decisions, they say, ought to be given at least persuasive, if not preclusive, effect.

Dr. Fields, on the other hand, treats them as irrelevant. The Federal case, he says, was a different case decided on different facts and different law. As we indicated, the Constitutional claims made in the amended complaint before us are nearly identical to those made in the amended complaint filed in the District Court. The underlying factual averments are the same and the nature of the alleged Constitutional deprivation is the same.

The appeal in the Federal case was to the due process clause of the Fourteenth Amendment, whereas in the State case it was to Articles 19 and 24 of the Maryland Declaration of Rights. Both of those State provisions, however, have long been equated with the Federal due process clause and have been held to provide the same, but no greater, rights and protection. See, as to art. 19, Matter of Easton, ¹² Incompetent, 214 Md. 176, 187-89 , 133 A.2d 441 (1957) and Attorney General v. Johnson, 282 Md. 274, 298-99 , 385 A.2d 57 (1978); as to art. 24, see Oursler v. Tawes, 178 Md. 471, 483 , 13 A.2d 763 (1940) and Lodowski v. State, 307 Md. 233, 248 , 513 A.2d 299 (1986). Notwithstanding the similarity of the claims and the Constitutional provisions upon which they are based, we do not regard the Federal decisions as res judicata, precluding consideration of the State Constitutional claims in State court.

Several reasons can be advanced for this, but the simplest and most telling is that the Federal court declined to exercise its pendent jurisdiction over all State law claims, expressly reserving to Dr. Fields the right to litigate those claims in State court. The law seems clear that “a refusal to exercise pendent jurisdiction over a state claim following a pretrial dismissal of a federal claim does not bar litigation of state claims in the state court.” Merry v. Coast