*District Judge of the Northern District of Mississippi,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 92-8451

 

CHARLES WILLIAMS,

Plaintiff-Appellant,

versus

TEXAS TECH UNIVERSITY 

HEALTH SCIENCES CENTER ET AL.,

Defendants,

EDWARD C. SALTZSTEIN, JOSEPH

BROWN, III and JAMES C. LEWIS,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Western District of Texas 

 

(October 22, 1993)

Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge, and

DAVIDSON,* District Judge.

HIGGINBOTHAM, Circuit Judge:

A professor claims that the decision to reduce his salary

violated the Constitution. We affirm the district court's grant of

judgment as a matter of law against the professor.

I.

Texas Tech University Health Sciences Center hired Dr. Charles

Williams as an associate professor and director of anesthesiology
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research in 1982 at an annual salary of $42,016.92, assigning him

to the El Paso Regional Academic Health Center. The university

granted him tenure in March 1986. In September 1987 he became

director of research in the department of surgery and his

compensation increased to $68,004 per year: $64,000 in base salary

and $4,204 in fringe benefits. 

Part of Williams's salary came from the Medical Practice

Income Plan, a fund collected from professional activities of the

physician faculty members. In early 1989, Dr. Edward Saltzstein,

the department chair, told Williams that as of September 1, 1989,

MPIP funds would not be used to augment Williams's salary because

Williams had not generated the expected amount of grant money.

Saltzstein sent a memo to Williams stating his plans and reasons on

March 21, 1989. In mid-1989 the surgery department received budget

documents indicating that Williams was entitled to the full $68,000

salary. A form was filled out in early September to amend the

budget to reflect Williams's lower salary, which was approved by

administrators Dr. Joseph Brown III & James Lewis. September 1,

1989, Williams began receiving an annual salary of $46,449.

In 1991 Williams sued the University Health Science Center,

the medical school's Medical Practice Income Plan, Saltzstein,

Brown and Lewis, alleging that his salary decrease had been

achieved by denying him procedural and substantive due process and

that the decrease gave rise to state law claims for intentional

infliction of emotional distress and breach of contract. In 1992

he voluntarily dismissed all his claims except for his
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constitutional claims against the university officials in their

individual and official capacities. Those claims were tried to a

jury in July 1992, and at the close of Williams's case-in-chief the

district court granted the officials' oral motion for judgment as

a matter of law.

II.

A.

Any property interest Williams had in his entire salary was

tenuous at best, as we will explain. In any event, he received

the process due him. The Supreme Court has identified three

factors to weigh in deciding how much process a property interest

deserves:

[F]irst, the private interest that will be affected by

the official action; second, the risk of an erroneous

deprivation of such interest through the procedures used,

and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the

Government's interest, including the function involved

and the fiscal and administrative burdens that the

additional or substitute procedural requirement would

entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The "minimal"

process set out by our cases applying Eldridge is notice of the

reasons for a proposed deprivation and some opportunity to respond

to the substance of the allegations before a final deprivation

occurs. See Eguia, 756 F.2d at 1139. 

Williams received this baseline procedural protection. In

early 1989, Saltzstein told Williams that MPIP funds would no

longer be used to augment his salary and Williams would have to

generate grant funds himself. On March 21, 1989, Saltzstein sent
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the memo to Williams described earlier. On both occasions Williams

responded. Nothing more was required on these facts.

A state university has a significant interest in having

reasonable discretion to administer its educational programs.

Texas Faculty Ass'n v. University of Texas at Dallas, 946 F.2d 379,

385-86 (5th Cir. 1991). See also Board of Curators v. Horowitz,

435 U.S. 78 (1978); Goss v. Lopez, 419 U.S. 565 (1975) (both

finding that student suspension requires minimal process because of

the freedom of action required for effective school

administration). The strength of that interest gives schools

leeway in making broad budget decisions that may affect only a few

employees. See generally Texas Faculty, 946 F.2d at 387-89.

Williams's interest in a specific level of income does not

outweigh the state's. Eguia v. Tompkins, 756 F.2d 1130 (5th Cir.

1985), required few procedural safeguards for the decision to

withhold a final paycheck because the interest was "substantial,

but . . . [not] of the same magnitude as the interest of a person

'on the very margin of subsistence' in the receipt of governmental

benefits." Id. at 1138 (quoting Goldberg v. Kelly, 397 U.S. 254,

264 (1970)). This case involves more money over a longer period

than the check at issue in Eguia, but falls short of the

termination decisions contested in Texas Faculty, 946 F.2d at 384.

Significantly, the low risk of erroneous decision making entailed

by the process used further erodes Williams's claim that he

deserved more process. See Texas Faculty, 946 F.2d at 386. The
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district court properly granted judgment as a matter of law on all

procedural due process claims.
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B.

Alternatively, the district court correctly granted judgment

to defendants in their individual capacity. The uncertainty about

Williams's asserted property right in his entire salary gave the

administrators qualified immunity to claims for money damages.

Government officials sued in their individual capacities for money

damages enjoy qualified immunity from liability for money damages

if their conduct did not violate clearly-established law of which

a reasonable official would have been aware. Anderson v.

Creighton, 107 S.Ct. 3034, 3038-39 (1987). Property interests are

created and their dimensions are defined by existing rules or

understandings under state law. Board of Regents v. Roth, 408 U.S.

564, 577 (1972). An interest can arise from a "mutually explicit

understanding" between an employer and employee. Perry v.

Sinderman, 408 U.S. 593, 601 (1972).

An expectation of employment carries with it some protected

expectations as to a salary. In some situations that expectation

can encompass an employee's entire salary. See Eguia v. Tompkins,

756 F.2d 1130, 1138 (5th Cir. 1985); Orloff v. Cleland, 708 F.2d

372, 378 (9th Cir. 1983). But the more detailed and conditional

the understanding becomes between employer and employee, the weaker

the linkage becomes between those understandings and the Due

Process Clause. See Mangaroo v. Nelson, 864 F.2d 1202, 1206-08

(5th Cir. 1989). At some point the linkage is uncertain enough to

justify qualified immunity for an official accused of breaking it.
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This relationship arguably passes that point. The background

to the relationship includes two university regulations that

envision an employment relationship with some "ebb and flow."

First, the tenure regulations allow annual adjustments in a tenured

professor's salary:

A tenured appointment assures the right of the faculty

member to a continuing academic position of employment.

The tenured faculty member's contract, however, is

subject to possible annual adjustments regarding salary,

rank, and conditions of employment.

§ 06.04(5)(A) ("Conditions of Tenured Appointments"). Second,

section 2.31 of the MPIP bylaws states that "[i]t is expressly

understood that each member's augmentation as determined under

Section 2.33, shall not be guaranteed to any such member." Section

2.33 mandates that each member's augmentation shall be determined

annually based on the recommendations of various administrators and

approval of the president. 

Given the uncertainties underlying the employment relationship

between the university and Doctor Williams, we cannot say that the

law clearly established that his property interest in the entirety

of his salary was constitutionally protected. The "mutually

explicit understanding" between the university and Dr. Williams

rested on periodic evaluations and salary revisions. A reasonable

administrator could have concluded on these facts that Dr.

Williams's salary could be adjusted without treading on ground

clearly protected by the Constitution. The district court

correctly granted judgment as a matter of law in favor of the

administrators on the issue of their qualified immunity.
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III.

We now turn to Williams's substantive due process claims. To

state a substantive due process claim a plaintiff must show that

the government's deprivation of a property interest was arbitrary

or not reasonably related to a legitimate governmental interest.

Brennen v. Stewart, 834 F.2d 1248, 1256 (5th Cir. 1988). Judicial

evaluation of academic decisions requires deference and they are

overturned only if they are "such a substantial departure from

accepted academic norms as to demonstrate that the person or

committee responsible did not actually exercise professional

judgment." Regents of the Univ. of Michigan v. Ewing, 474 U.S.

214, 225 (1985). Defendants Saltzstein, Brown, and Lewis each

testified that Williams's salary was reduced for lack of grant

productivity and lack of funded grant salary support. The district

court properly granted judgment as a matter of law on all claims

involving substantive due process.

AFFIRMED.