Lee Decuir v. FREDDIE RICHARDS, Dr., Individually

* District Judge of the Eastern District of Louisiana, sitting by
designation.
** Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 93-2002
_______________________
LEE DECUIR,
Plaintiff-Appellant,
v.
FREDDIE RICHARDS, Dr.,
Individually and Officially as
Director of International Agribusiness Studies, ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-90-2448)
_________________________________________________________________
(April 11, 1994)
Before JONES, DeMOSS, Circuit Judges and District Judge Schwartz.*
EDITH H. JONES, Circuit Judge:**
A discharged university employee brought a wrongful
termination suit against his supervisors under Texas common law for
breach of contract and under 42 U.S.C. § 1983 for violation of due
process. A magistrate judge held after trial that the former

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employee had no contract to breach and no property interest
entitling him to due process. We affirm.
Counsel for appellant, although duly notified, failed to
appear for oral argument in New Orleans. His client did appear.
This failure represents a breach of trust toward both the client
and this court. No reasonable excuse has been presented for
counsel's failure. Should counsel ever be so remiss in his
professional responsibilities in this court again, he will be
subject to disbarment from the court. Despite counsel's lapse, we
have reviewed the record carefully in order to prepare this
opinion.
BACKGROUND
Unless otherwise noted, the following facts are
undisputed.
Lee DeCuir was hired on a temporary basis by Prairie View
A&M University on November 1, 1986, as a program specialist in the
Institute for International Agribusiness Studies (IIAS). In March,
1987, he was appointed to a permanent position of Assistant
Director of IIAS. His duties included assisting and representing
the director of IIAS for various client groups, maintaining
liaisons with government, corporate, and industry groups, and
developing new program initiates. In neither his initial hiring
nor in his subsequent promotion did DeCuir enter into a written
employment contract with the university.
The IIAS program was a rather small operation involving
four staff employees. Its funding was heavily dependent on federal

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1 DeCuir contests this factual finding by the magistrate judge. As we
discuss below, we do not find it clearly erroneous.
3
grants through the United States Agency for International
Development (USAID) and grants from the Texas A&M University
system. The USAID grant was awarded pursuant to a joint memorandum
of understanding which governed the application and use of the
grant monies. In 1987, USAID repeatedly expressed concerns
regarding the university's improper application of the grant
monies, which had been used to pay salaries in excess of the
amounts specified by the joint memorandum of understanding.1 In
December 1987, Richards, the director of IASS, notified the staff
of IIAS, including DeCuir, that because of the improper use of
grant monies to pay salaries in excess of the amounts specified by
the joint memorandum of understanding, there might be staff
reductions in the future.
In February, 1988, USAID sent Richards a letter again
expressing concern that too high a proportion of the USAID grant
monies was being spent on administrative salaries. In reviewing
the joint memorandum of understanding, the director determined that
as there were no other funding sources on the horizon, he would
have to terminate some IIAS employees to reduce administrative
salaries. On March 4, 1988, DeCuir and the entire staff of IIAS
received a letter from Richards indicating that their employment
would be terminated in six months, on August 31, 1988. Richards
stated in the letter that DeCuir would be terminated because the
part of the funding which paid DeCuir's salary, as well as the

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salaries of the remainder of IIAS staff, would no longer be
available because they depended on the USAID grant. On March 5,
1988, DeCuir received a second letter very similar to the first, in
which Dr. Richards added that this action "is considered a
reduction in force." The second letter, with its reference to
reduction in force, was prompted by the concern of affected
employees that the first letter might be construed to be a
termination for cause, jeopardizing their employment prospects
within the university system and elsewhere. DeCuir protested his
termination several times through various channels. He was given
a pretermination hearing two days before his employment with IIAS
ended.
The magistrate judge concluded that DeCuir was an at-will
employee and could be terminated at any time without cause. He
found that there was no statute, local ordinance, nor express or
implied contract which created a property interest in DeCuir's
continued employment. He thus found for the defendants on all
claims.
DISCUSSION
We review the magistrate judge's factual findings under
the clearly erroneous standard. Fed. R. Civ. Proc. 52(a). The
parties agree that DeCuir must have a protected property interest
in employment before a constitutional interest in procedural due
process is implicated. Board of Regents of State College v. Roth,
408 U.S. 564, 92 S.Ct. 2701, 2705 (1972). A protected property
interest in employment exists only where the employee has an

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express or implied right to continued employment. White v.
Mississippi State Oil & Gas Board, 650 F.2d 540, 541 (5th Cir.
1981). The source of such right can be a state statute, a local
ordinance, or an express or implied contract. Whatever the source,
the sufficiency of the claim of entitlement must be decided by
reference to state law. Id. If DeCuir could be legally terminated
at will by the University, he did not have a property interest in
his employment. Id.
DeCuir's bases his argument on appeal almost entirely on
the legitimacy of his expectation of continued employment. The
magistrate judge found that the facts presented at trial did not
establish a mutually explicit understanding of a permanent for-
cause employment contract. As stated above, a mere expectation of
continued employment is not enough; the expectation must be
confirmed by an independent source, such as a state statute, rule,
or policy. Roth, 408 U.S. at 577, 92 S. Ct. at 2709. DeCuir
testified at trial that there was an explicit mutual understanding
that he would stay for the duration of the IIAS program and that he
would not be discharged except for just cause. He testified that
a former director of the program, Dr. Freeman, gave him these
assurances when he hired DeCuir. DeCuir buttresses his expectation
argument by citing the university's administrative policy which, he
argues, limited discharge of nonprobationary employees to discharge

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2 Paragraph 3.2 of the university's administrative policy reads:
An employee of the university may be subject to
disciplinary action, including termination, when adequate
cause is established by demonstration of inability to
perform assigned duties in a satisfactory manner,
incompetence, misconduct, neglect of assigned
responsibilities, insubordination, absenteeism, failure to
abide by rules and regulations of the university and/or
Texas A&M University system or upon a showing that other
adequate causes exist.
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for adequate cause.2 Finally, DeCuir asserts that appellees'
conduct established DeCuir's right to continued employment.
In considering Mr. DeCuir's arguments on appeal, we have
carefully read not only the parties' briefs and record excerpts,
but also reviewed the trial transcript. Our review persuades us
that the significant factual findings entered by the magistrate
judge are not clearly erroneous. In the first place, there was no
evidence other than Mr. DeCuir's testimony that his employment
could be terminated only for just cause. On the other hand, there
was ample evidence introduced that his employment was contingent on
the program's continued funding. There was also ample evidence to
conclude that USAID repeatedly expressed concerns regarding
improper application of its grant monies to pay IIAS staff salaries
in excess of the amounts specified by the joint memorandum of
understanding. Although there was little documented evidence
offered at trial that the USAID grant expired in October 1988, see
Finding of Fact Nos. 8, it nevertheless happened that grant monies
were dramatically reduced in October 1988, necessitating the
termination of IIAS employees. Finding of Fact No. 17. The policy
provision DeCuir cites is an excerpt which was never introduced
into evidence and is clearly a nonexclusive list of reasons for

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which an employee could be terminated. Its existence does not
forfeit the University's right to discharge without cause.
Henderson v. Sotelo, 761 F.2d 1093, 1098-99 (5th Cir. 1985).
Finally, even if University policies were violated, this cannot
create a property interest where none existed. Henderson, 761 F.2d
at 1097-98. We therefore affirm the magistrate judge's factual
findings which compel a finding of no property interest.
Even on the basis of the unchallenged factual findings,
Mr. DeCuir could not recover. The lower court found that DeCuir
never had a written employment agreement. DeCuir's testimony that
Dr. Freeman orally promised him that "he would stay during the
duration of the program and that he would not be discharged except
for cause" is an oral promise for employment beyond a year. Under
Texas law, such promises are unenforceable under the statute of
frauds and thus, insufficient to destroy the employer's right to
terminate his employees at will. Webber v. M. W. Kellogg Co., 720
S.W.2d 124, 127 (Tex. App. Hou. [14th Dist] 1986, writ ref'd
n.r.e.) (statute of frauds precludes enforcement of an election
promise of "permanent" employment without a written contract).
Thus under established Texas law DeCuir was an employee at will
with no property interest in his continued employment. Without a
property interest, his constitutional claims must fail. We thus do
not reach DeCuir's policy and procedure arguments. Because DeCuir
was an employee at-will, and because there was no written
employment agreement, his claims for breach of contract must
similarly fail.

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For the foregoing reasons, the judgment of the district
court is therefore AFFIRMED.

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