1

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-20751

EUGENE M. HARRINGTON; MARTIN LEVY; THOMAS KLEVEN,

Plaintiffs-Appellees,

VERSUS

WILLIAM H. HARRIS, ET AL.,

Defendants,

JAMES M. DOUGLAS; CALIPH JOHNSON;

TEXAS SOUTHERN UNIVERSITY,

Defendants-Appellants.

Appeal from the United States District Court 

for the Southern District of Texas

July 21, 1997

REVISED OPINION

Before REYNALDO G. GARZA, DeMOSS, and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

The opinion issued in this case under date of March 14, 1997,

is withdrawn and the following is issued in place thereof.

In this proceeding tried by consent before a magistrate judge,

the jury found that three white law school professors, Plaintiffs

Eugene M. Harrington, Martin Levy, and Thomas Kleven, of state-
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supported Texas Southern University’s Thurgood Marshall School of

Law in Houston, Texas, had been discriminated against by the law

school’s dean, Defendant James M. Douglas, on the basis of

protected speech, and by the school’s associate dean, Defendant

Caliph Johnson, on the basis of their race. The jury also found

that Defendants Douglas and Johnson violated Plaintiffs’

substantive due process rights. The jury awarded compensatory and

punitive damages and judgment was entered. Holding that judgment

as a matter of law should have been entered against Plaintiffs’ as

to their claims under § 1983 for First Amendment free speech

retaliation, we reverse as to that issue, but affirm as to the

issues of § 1981 race discrimination and Fourteenth Amendment

substantive due process.

BACKGROUND

Appellees/Plaintiffs Eugene M. Harrington (“Harrington”),

Martin Levy (“Levy”), and Thomas Kleven (“Kleven”) are tenured

faculty members of the Texas Southern University Thurgood Marshall

School of Law (“the law school”) in Houston, Texas. They have been

on the law school’s faculty since 1966, 1972, and 1974,

respectively. The parties do not dispute that the law school is a

public university with a historically black majority enrollment. 

 In 1981, Appellant/Defendant James Douglas (“Douglas”) was

named dean of the law school. Appellant/Defendant Caliph Johnson

(“Johnson”) had been on the law school faculty since 1975 and

served as associate dean from 1990 to 1992.
1 The law school constitution allowed the Dean to appoint faculty

representatives to the law school committees. Student representatives were chosen by the SBA.

3

During Douglas’ first semester as dean, Harrington and Levy

approached Douglas concerning a Student Bar Association (“SBA”)

recommendation to appoint only black students to representative

positions on various law school committees. Harrington and Levy

believed that non-black student representation was important and

they solicited Douglas to disregard the SBA recommendation and

appoint non-black students.1 It is unclear how Douglas reacted to

their suggestions. Ultimately, the university president and a

Texas state senator became involved and non-black students were

subsequently appointed to the committees. Levy claims that the

following year he received the lowest salary recommendation of any

member on the faculty.

In May 1983, thirteen law school professors, including Levy

and Kleven, signed a document entitled, “Bill of Particulars.” In

this document, the signatories complained that Dean Douglas

discriminated against certain professors as to salaries, that he

failed to adhere to law school policies, and that he mishandled

various administrative duties. The Bill of Particulars addressed:

the professors’ concerns regarding American

Bar Association (ABA) mandates, extreme

insensitivity to the role of the Chicano

students in the Law School, unilateral

reduction of courses resulting in harm to

students, reversing a long-standing policy on

Senior Priority exams, unilateral increase in

enrollment at the Law School, and such

administrative matters as jeopardizing the

status of the Law School by failing to develop
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a plan for the clinical program, and failing

to properly certify Law School graduates for

the July 1982 Bar exam.

This Bill of Particulars also addressed the signatories’ concern

that certain professors had received arbitrary or unfair

performance evaluations or salary increases. Appellee Harrington

did not sign this document. 

One month later, another letter was sent to Douglas, further

detailing the professors’ concerns. Douglas sent no written

response. In July 1983, eight faculty members, including Levy and

Kleven, wrote to the university’s Vice-President for Academic

Affairs requesting that the university dismiss Douglas as dean of

the law school. Harrington did not sign this letter.

In early 1984, eighteen of the twenty-three full-time members

of the law school faculty, including Harrington, Levy, and Kleven,

participated in a vote of “confidence/no confidence” concerning

Douglas. Twelve members of the faculty voted “no confidence” and

six members abstained. 

Approximately six months later, fifteen members of the law

school faculty, including all three Plaintiffs, wrote a letter to

the president of the university requesting that Douglas be removed

as dean. The university president denied their request.

Several months later, eight members of the law school faculty

wrote a letter to the President of the American Bar Association

complaining that the university’s refusal to remove Douglas

violated ABA guidelines. Following an investigation, the ABA

dismissed the complaint.
2 Prior to the implementation of this system, the university did

not have a uniform faculty evaluation system.

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Beginning in 1985, Levy and Kleven, along with several of

their black colleagues, complained to both the university president

and vice-president about discriminatory treatment in their

salaries. In 1986, then vice-president William Moore allegedly

made salary adjustments for some of the professors, including Levy

and Kleven; however, Plaintiffs contend that they never received

these salary increases.

In 1988-89, Levy and Kleven again complained to the university

vice-president about unfair treatment in salaries and raises, and

were subsequently “awarded a partial adjustment for that year.”

In 1990, Levy and Kleven complained to then university vicepresident Bobby Wilson about Dean Douglas’ unfair treatment

regarding their salaries and raises. Levy subsequently received a

salary adjustment.

Later in 1990, vice-president Wilson developed a comprehensive

merit evaluation system.2 The merit evaluation system required the

individual faculty members to evaluate themselves on a point basis,

and then submit their self-evaluations to another appointed faculty

member for further review. Johnson, as associate dean of the law

school, was chosen to assess law school faculty’s self-evaluations

and recommend overall point totals to the dean. The merit

evaluations performed by Johnson formed the basis for the salary

increases to be awarded by Dean Douglas.

Plaintiffs state that Johnson failed to notify Harrington
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about the newly implemented self evaluation form, even though

Johnson allegedly knew that Harrington was on sabbatical when the

form was adopted. Harrington never submitted a self-evaluation

form for the 1990-91 academic year. His failure to do so was

considered when salary increase determinations were made.

Plaintiffs state that, for the 1990-91 academic year, “Johnson

also lowered the points requested for all the white

professors...and raised the points requested for every Black

professor who used the identical form.”

In 1991-92, Harrington was awarded “professor of the year” by

all three student bar associations on campus. This same year,

Harrington was allegedly awarded the lowest percentage salary

increase of all full professors - 1%. 

In 1991-92, Kleven received the “outstanding teacher of the

year award” from Texas Southern University and was asked to be a

speaker at the law school graduation. This same year, Johnson

allegedly lowered Kleven’s self-evaluation points because of

insufficient scholarship. Johnson, however, admitted to never

having read the scholarly work of Kleven.

Plaintiffs alleged that, by 1993, the disparity in salaries

between the average white full professors and average African

American full professors had grown to approximately $3,000 per year

even though, on average, the white professors had allegedly eight

years more longevity than the African American professors.

Plaintiffs allege that Harrington, who had been a professor longer

than any other, was ranked seventh in salary; Levy, who ranked
3 Prior to trial, the magistrate judge ruled, inter alia, that

Texas Southern University enjoys Eleventh Amendment immunity from

suit as to Plaintiffs’ § 1981 race discrimination and § 1983 free

speech retaliation claims. The magistrate judge also held that

Defendants are not liable in their individual capacities on

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third in years, ranked ninth in salary; and Kleven, who tied Dean

Douglas in years as a professor, ranked tenth in salary.

At the time of trial, Harrington’s nine month salary was

$102,046, Levy’s nine-month salary was $98,297, and Kleven’s nine

month salary was $97,332. Harrington, Levy, and Kleven were among

the ten highest paid faculty at the law school. 

After filing a complaint with the Equal Employment Opportunity

Commission, in 1993, Plaintiffs brought suit in federal court

alleging violations of their due process rights under the Fifth and

Fourteenth Amendments to the Constitution; violations of their

civil rights under the Civil Rights Act of 1871, 42 U.S.C. § 1983;

conspiracy to interfere with their civil rights under the Klu Klux

Klan Act, 42 U.S.C. § 1985; racial discrimination in violation of

equal protection under the Civil Rights Act of 1966, 42 U.S.C. §

1981; and violation of their right to free expression under the

First, Fifth, and Fourteenth Amendments to the Constitution, as

well as pendent state claims for breach of contract and intentional

infliction of emotional distress. 

At trial, the following issues were submitted to the jury: a

§ 1983 claim for retaliation in violation of Plaintiffs’ right to

free expression under the First Amendment; claims under § 1981 and

Title VII for race discrimination; and a claim for violation of

Plaintiffs’ substantive due process rights.3 The jury returned
Plaintiffs’ Title VII claim. The parties do not appeal these

rulings, hence, we will not address them. 

4 Defendants had previously filed a motion for judgment as a

matter of law prior to submission of the issues to the jury, as is

required by FED. R. CIV. P. 50. The magistrate judge denied this

motion, as well.

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verdicts against Dean Douglas as to the § 1983 First Amendment

claim, and against Johnson as to the § 1981 race discrimination

claim. The jury also returned verdicts against both Dean Douglas

and Johnson as to Plaintiffs’ substantive due process claims.

Defendants timely filed a renewed motion for judgment as a matter

of law, which was denied by the magistrate judge.4 The magistrate

judge entered final judgment as follows:

1. Harrington was awarded $12,362 in compensatory damages

and $27,000 in punitive damages from Dean Douglas, plus $4,301 in

compensatory damages and $5,000 in punitive damages from Johnson.

2. Levy was awarded $20,320 in compensatory damages and

$27,000 in punitive damages from Dean Douglas, plus $6,201 in

compensatory damages and $5,000 in punitive damages from Johnson.

3. Kleven was awarded $23,285 in compensatory damages and

$27,000 in punitive damages from Dean Douglas, plus $7,501 in

compensatory damages and $5,000 in punitive damages from Johnson.

The magistrate judge additionally found, by a preponderance of

the evidence, that “Plaintiffs are currently underpaid with respect

to certain colleagues with comparable experience and

qualifications.” The magistrate judge found that “the underpayment

is a result of illegal discrimination based on race, retaliation

for the exercise of their first amendment rights and the arbitrary
5 Otis King is a professor with seniority status.

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and capricious manner in which performance evaluations were made.”

The court ordered the following injunctive relief: (1) that

Harrington’s salary for the 1994-95 academic year be raised to

$105,382 “in order to bring him into parity with Professor Otis

King,”5 and (2) that the salaries for Levy and Kleven be raised to

$102,767 for the 1994-95 academic year to bring them into parity

with the salary of Johnson. The magistrate judge awarded

attorneys’ fees and costs to Plaintiffs.

The Defendants timely filed the instant appeal.

DISCUSSION

On appeal, Defendants challenge the jury’s verdict as to Dean

Douglas on the § 1983 First Amendment claim; Johnson on the § 1981

race discrimination claim; and both Dean Douglas and Johnson on

Plaintiffs’ substantive due process claims. We will address each

issue in turn.

I. Section 1983 - First Amendment

Defendants first argue that Plaintiffs have not suffered a

constitutional deprivation under the First Amendment because

Plaintiffs’ speech did not involve matters of public concern, nor

did Douglas’ actions constitute an adverse employment decision.

For the following reasons, we hold that Plaintiffs have failed to

establish a § 1983 claim for free speech retaliation, and we
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reverse the jury’s verdict as to this issue. 

Section 1983 provides that any person who, under color of

state law, deprives another of "any rights, privileges or

immunities secured by the Constitution and laws shall be liable to

the party injured in an action at law, suit in equity, or other

proper proceeding for redress...." 42 U.S.C. § 1983. “Rather than

creating substantive rights, § 1983 simply provides a remedy for

the rights that it designates.” Johnston v. Harris County Flood

Control Dist., 869 F.2d 1565, 1573 (5th Cir. 1989). “Thus, an

underlying constitutional or statutory violation is a predicate to

liability under § 1983.” Id. In this case, Plaintiffs claim that

the free speech provision of the First Amendment provides the

underlying constitutional violation.

To establish a § 1983 claim of retaliation for the exercise

free speech, Plaintiffs must prove that: (1) Defendants were acting

under color of state law; (2) Plaintiffs’ speech activities were

protected under the First Amendment; and (3) Plaintiffs’ exercise

of their protected right was a substantial or motivating factor in

Defendants' actions. Pierce v. Texas Dep’t. of Crim. Justice Inst.

Div., 37 F.3d 1146, 1149 (5th Cir. 1994); Mt. Healthy City School

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576,

50 L.Ed. 2d 471 (1977). We review de novo the legal question of

whether Plaintiffs’ allegations state a valid claim of retaliation.

Shultea v. Wood, 27 F.3d 1112, 1118 (5th Cir. 1994). 
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The parties do not dispute on appeal that Defendant Douglas

was acting under color of state law. Therefore, we must ask

whether Plaintiffs’ speech was protected under the First Amendment.

To assert a retaliation claim cognizable under the First Amendment,

a public employee must allege facts demonstrating that his speech

involved a matter of public concern, Shultea, 27 F.3d at 1118, and

that he “has suffered an adverse employment action for exercising

[his] right to free speech.” Pierce, 37 F.3d at 1149. 

Assuming, without deciding, that the issues raised by

Plaintiffs are matters of public concern, the critical questions

are: (1) did Plaintiffs suffer an adverse employment action and, if

so, (2) was such adverse employment action taken in retaliation for

Plaintiffs’ exercise of free speech. For the following reasons, we

hold that Plaintiffs have failed to show that they suffered an

adverse employment action.

“Adverse employment actions are discharges, demotions,

refusals to hire, refusals to promote, and reprimands.” Id. Many

actions which merely have a chilling effect upon protected speech

are not actionable. Id. Actions such as “decisions concerning

teaching assignments, pay increases, administrative matters, and

departmental procedures,” while extremely important to the person

who has dedicated his or her life to teaching, do not rise to the

level of a constitutional deprivation. Dorsett v. Bd. of Trustees

for State Colleges & Universities, 940 F.2d 121, 123 (5th Cir.

1991). 
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On appeal, Plaintiffs argue that they experienced the

following adverse employment actions: Douglas evaluated Kleven’s

law school participation as being “counterproductive” and Douglas

perennially discriminated against Plaintiffs when making meritbased salary increase determinations. For the following reasons,

we hold that neither of these actions rise to the level of a

constitutional deprivation. 

First, assuming that Douglas did, in fact, criticize Kleven’s

participation as being counterproductive, Plaintiffs point to no

case law (nor do we find any) which holds that an employer’s

criticism of an employee, without more, constitutes an actionable

adverse employment action. In this case, the evidence is clear

that no Plaintiff has been discharged or threatened with discharge;

no Plaintiff has been demoted; no Plaintiff has been denied a

promotion; and no Plaintiff suffered a reduction in pay. In fact,

all Plaintiffs are tenured professors of law, having achieved the

highest rank available at the law school. All Plaintiffs still

teach at the law school and all Plaintiffs are among the law

school’s top earners. Regardless of the arguable merits behind

this, or any criticism, mere criticisms do not give rise to a

constitutional deprivation for purposes of the First Amendment.

Accordingly, Plaintiffs did not suffer an actionable adverse

employment action when Douglas criticized Kleven as being

counterproductive.

Next, Plaintiffs argue that they experienced an adverse

employment action when Douglas failed to award them certain merit
6 In Dorsett, we stated:

The continuing retaliatory actions alleged by

Dorsett appear to be nothing more than

decisions concerning teaching assignments, pay

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pay increases. For the purpose of this analysis, we assume,

without deciding, that Plaintiffs actually qualified for a merit

pay increase in some amount. The record is undisputed, however,

that each Plaintiff did in fact receive, during each school year

for which free speech retaliation is claimed, a merit pay increase;

and that their claim is more precisely stated as "we were not

awarded merit pay increases in the same amount as others or in the

amount to which we think we were entitled." We find nothing in

this record upon which a determination could be made that Douglas

was obligated to give the same dollar amount or the same percentage

increase to each professor to whom merit pay increases would be

awarded; and the variations in the amounts or percentages of merit

pay increases which he actually awarded were not significant. If

Plaintiffs had received no merit pay increase at all or if the

amount of such increase were so small as to be simply a token

increase which was out of proportion to the merit pay increases

granted to others, we might reach a different conclusion. But

under the facts of this case we are persuaded that the merit pay

increases actually awarded to Plaintiffs cannot be considered as an

adverse employment action. As this Court has previously stated in

Dorsett, any harm resulting from decisions concerning "pay

increases" does not rise to the level of a constitutional

deprivation.6 Dorsett, 940 F.2d at 124. After carefully reviewing
increases, administrative matters, and

departmental procedures....

In public schools and universities across

this nation, interfaculty disputes arise daily

over teaching assignments, room assignments,

administrative duties, classroom equipment,

teacher recognition, and a host of other

relatively trivial matters. A federal court

is simply not the appropriate forum in which

to seek redress for such harms.

We have neither the competency nor the

resources to undertake to micro manage the

administration of thousands of state

educational institutions.

Dorsett, 940 F.2d at 123-24 (emphasis added) (internal citations

omitted).

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the record and the case law, we hold that Plaintiffs’ proof of

adverse employment action in this case amounts to nothing more than

a dispute over the quantum of pay increases. Accordingly, the

Plaintiffs have not proved an actionable adverse employment

activity.

Having failed to establish a First Amendment violation,

Plaintiffs failed to prove a case for a § 1983 claim of retaliation

for the exercise of free speech. For these reasons, the magistrate

judge erred in failing to grant Defendants’ motion for judgment as

a matter of law, and the judgment of the magistrate court is

reversed as to this issue.

II. Sufficiency of the Evidence

Standard of Review

Defendants next challenge the sufficiency of the evidence as

to Plaintiffs’ claims that Johnson discriminated against them on
7 The parties do not dispute on appeal that Defendants properly

preserved these issues for appeal by asserting a timely motion for

judgment as a matter of law at the close of the case. 

15

the basis of their race in violation of § 1981, and that Johnson

and Douglas arbitrarily and capriciously deprived them of merit pay

increases in violation of the Fourteenth Amendment.7 “A motion for

judgment as a matter of law ... in an action tried by jury is a

challenge to the legal sufficiency of the evidence supporting the

jury's verdict.” Hiltgen v. Sumral, 47 F.3d 695, 699 (5th Cir.

1995). “On review of the district court's denial of such a motion,

the appellate court uses the same standard to review the verdict

that the district court used in first passing on the motion.” Id.

A jury verdict must be upheld unless "there is no legally

sufficient evidentiary basis for a reasonable jury to find" as the

jury did. FED. R. CIV. P. 50(a)(1). “This court has consistently

applied this standard to show appropriate deference for the jury's

determination.” Hiltgen, 47 F.3d at 700. “A jury may draw

reasonable inferences from the evidence, and those inferences may

constitute sufficient proof to support a verdict.” Id. “On appeal

we are bound to view the evidence and all reasonable inferences in

the light most favorable to the jury's determination.” Id. “Even

though we might have reached a different conclusion if we had been

the trier of fact, we are not free to reweigh the evidence or to

re-evaluate credibility of witnesses.” Id. Within this broad

standard of deference, we “must focus on whether a reasonable trier
8 In the Civil Rights Act of 1991, enacted November 21, 1991,

Congress legislatively reversed the Supreme Court case of Patterson

v. McLean Credit Union, 109 S. Ct. 2363 (1989), which held that

section 1981's guarantee of the right to make contracts did not

extend to conduct occurring after the employer-employee contract

was formed. Section 1981 now specifically states that, "[f]or

purposes of this section, the term 'make and enforce contracts'

includes the making, performance, modification, and termination of

contracts, and the enjoyment of all benefits, privileges, terms,

and conditions of the contractual relationship.” 42 U.S.C. §

1981(b); National Ass’n. of Gov’t Employees, Et Al. v. City

Public Serv. Bd. of San Antonio, Et Al., 40 F.3d 698, 712 (5th Cir.

1994).

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of fact could have concluded as the jury did.” Armendariz v.

Pinkerton Tobacco Co., 58 F.3d 144, 149 (5th Cir. 1995), cert.

denied, 116 S. Ct. 709 (1996).

Section 1981 Race Discrimination 

Section 1981 provides that all persons in the United States

shall have the same contractual rights as white citizens.8 42

U.S.C. § 1981(a); LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448

n.2 (5th Cir. 1996). “Claims of racial discrimination brought

under § 1981 are governed by the same evidentiary framework

applicable to claims of employment discrimination brought under

Title VII.” LaPierre, 86 F.3d at 448 n.2. Thus, “to succeed on a

claim of intentional discrimination under Title VII ... or Section

1981, a plaintiff must first prove a prima facie case of

discrimination.” Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047

(5th Cir. 1996). However, “when a case has been tried on the

merits, a reviewing appellate court need not address the

sufficiency of plaintiff's prima facie case, and may instead

proceed directly to the ultimate question of whether plaintiff has
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produced sufficient evidence for a jury to find that discrimination

has occurred.” Walther v. Lone Star Gas Co., 952 F.2d 119, 122

(5th Cir. 1992). In other words, the focus “then shifts to the

ultimate question of whether the defendant intentionally

discriminated against the plaintiff.” LaPierre, 86 F.3d at 448.

In showing intentional employment discrimination, a plaintiff

need not come forward with direct evidence of discriminatory

intent. LaPierre, 86 F.3d at 449; Rhodes v. Guiberson Oil Tools,

75 F.3d 989, 993 (5th Cir. 1996) (en banc). Direct evidence of an

employer's discriminatory intent is rare; therefore, plaintiffs

must ordinarily prove their claims through circumstantial evidence.

Id. A plaintiff may establish circumstantial evidence of

intentional discrimination by demonstrating that a defendant's

articulated nondiscriminatory rationale was pretextual. McDonnell

Douglas Corp. v. Green, 93 S. Ct. 1817, 1825 (1973); Texas Dept.

of Community Affairs v. Burdine, 101 S. Ct. 1089, 1093 (1981). A

plaintiff may demonstrate pretext either by showing that a

discriminatory motive more likely motivated the employer, or that

the employer's explanation is unworthy of credence. Amburgey v.

Corhart Refractories Corp. Inc., 936 F.2d 805, 813 (5th Cir. 1991).

At trial, Plaintiffs offered evidence showing that Johnson

intentionally or recklessly failed to give white professors equal

credit and consideration for their scholarship, research, community

service, and publications. Plaintiffs offered evidence showing

that this discriminatory policy caused black professors to receive

higher merit pay increases than those received by their white
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counterparts. Plaintiffs also offered the testimony of faculty

members who stated that a racially discriminatory environment

existed at the law school and that Johnson’s treatment of the

Plaintiffs could only be attributed to such discrimination.

After thoroughly reviewing the relevant portions of the

record, as well as the arguments of the parties, we hold that

Plaintiffs offered sufficient evidence to allow a reasonable jury

to conclude that Johnson intentionally discriminated against

Plaintiffs on the basis of race when he evaluated them for merit

pay increases. While the evidence offered by Plaintiffs is purely

circumstantial, such evidence, if believed by the jury, can give

rise to a claim for intentional race discrimination under § 1981.

For these reasons, we find no reversible error and the judgment of

the magistrate judge on this issue is affirmed.

Substantive Due Process

Finally, Defendants argue that the evidence presented at trial

does not support the jury’s finding that Johnson and Douglas

violated Defendants’ substantive due process rights under the

Fourteenth Amendment. “To succeed with a claim based on

substantive due process in the public employment context, the

plaintiff must show two things: (1) that he had a property

interest/right in his employment, and (2) that the public

employer's termination of that interest was arbitrary or

capricious.” Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th

Cir. 1993). “If state action is so arbitrary and capricious as to
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be irrational, its infringement on a constitutionally protected

interest may violate substantive due process rights.” Neuwirth v.

Louisiana State Bd. of Dentistry, 845 F.2d 553, 558 (5th Cir.

1988). 

On appeal, Defendants do not dispute that Plaintiffs had a

property interest in a rational application of the university’s

merit pay policy. Accordingly, we need not address this issue.

Assuming, arguendo, that Plaintiffs did have a property interest in

merit pay increases, we must ask whether Johnson and Douglas

awarded such pay increases in an arbitrary and capricious manner.

See Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir. 1992) (Assuming

plaintiff had a property interest, the only substantive process due

was the exercise of professional judgment, in a non-arbitrary and

non-capricious fashion). After thoroughly and carefully reviewing

the briefs of the parties and the relevant portions of the record,

we hold that a jury could reasonably conclude that Johnson and

Douglas acted in an arbitrary and capricious manner in their merit

pay evaluations. Thus, the judgment of the magistrate judge as to

this issue is affirmed.

 

CONCLUSION

For the foregoing reasons, we reverse the judgment of the

magistrate judge as to the issue of § 1983 retaliatory discharge

under the First Amendment; affirm the judgment of the magistrate

judge as to the issue of § 1981 race discrimination; and affirm the

judgment of the magistrate judge as to the issue of substantive due
9 Defendants have not appealed the propriety of the injunctive

relief awarded by the magistrate judge, or the punitive damages

awarded by the jury on the issue of race discrimination.

Accordingly, we express no opinion as to these aspects of the

judgment. The issue of attorneys’ fees shall be determined by the

magistrate judge in a manner consistent with this opinion.

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process under the Fourteenth Amendment. To the extent that the

final judgment of the magistrate judge is not modified by this

order, it is, in all things, affirmed.9

This case is remanded to the magistrate judge for modification

of the final judgment in accordance with this opinion.