106 F.3d 135 (6th Cir. 1997), 95-6212, Bailey v. Floyd County Bd. of Educ. By and Through Towler

Docket Nº:95-6212.
Citation:106 F.3d 135
Party Name:Sidney Jane BAILEY, Plaintiff-Appellant, v. FLOYD COUNTY BOARD OF EDUCATION, by and through its members; Stephen TOWLER, individually and in his official capacity as Superintendent of the Floyd County Schools; Big Sandy Area Community Action Program, Inc.; Eddie Billips, as a member of the Floyd County Board of Education; Brent Clark, as a member o
Case Date:January 30, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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106 F.3d 135 (6th Cir. 1997)

Sidney Jane BAILEY, Plaintiff-Appellant,


FLOYD COUNTY BOARD OF EDUCATION, by and through its members;

Stephen TOWLER, individually and in his official capacity

as Superintendent of the Floyd County Schools; Big Sandy

Area Community Action Program, Inc.; Eddie Billips, as a

member of the Floyd County Board of Education; Brent Clark,

as a member of Floyd County Board of Education; Robert D.

Isaac, as a member of the Floyd County Board of Education;

Patty C. Owens, as a member of the Floyd County Board of

Education; and Edward Patton, Chairperson of the Floyd

County Board of Education, Defendants-Appellees.

No. 95-6212.

United States Court of Appeals, Sixth Circuit.

January 30, 1997

Argued Oct. 22, 1996.

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Lawrence R. Webster (argued and briefed), Webster & Lucas, Pikeville, KY, for Plaintiff-Appellant.

Clifford B. Latte, Latta & Brown, Prestonburg, KY, William H. Fogle (argued and briefed), Moore & Fogle, Mt. Sterling, KY, for Defendants-Appellees Floyd County Bd. of Educ., Stephen Towler, Eddie Billips, Brent Clark, Robert D. Isaac, Patty C. Owens and Edward Patton.

W. Kenneth Nevitt, R. Thaddeus Keal (briefed), Sun S. Choy, Annette C. Karem (argued), Williams & Wagoner, Louisville, KY, for Defendant-Appellee Big Sandy Area Community Action Program, Inc.

Before: MERRITT, BROWN, and NELSON, Circuit Judges.

BAILEY BROWN, Circuit Judge.

After being dismissed from her position as Floyd County's Head Start Director, Sidney Jane Bailey filed a section 1983 action against the Floyd County Board of Education, individual members of the Board in their official capacities, 1 Dr. Stephen Towler both as an individual and in his official capacity, and Big Sandy Area Community Action Program, Inc. (Big Sandy) for alleged violations of her due process and First Amendment rights. In response, the defendants contend that Bailey's dismissal resulted from substance abuse and financial improprieties and that Bailey was afforded all the process due her. Following cross-motions for summary judgment, the district court granted the defendants' motions and denied Bailey's. On appeal, Bailey contests the district court's grant of summary judgment in favor of the defendants. Having considered Bailey's arguments, we AFFIRM the district court's decision.


Head Start is a federally-funded program that provides educational and social services to low-income families and their children. Head Start Act, 42 U.S.C. §§ 9831 et seq. (1994). To operate the program in particular areas, the Health and Human Services Department (HHS) provides annual grants to approved agencies, known as "grantee agencies." 45 C.F.R. § 1301.2. In turn, with the approval of the HHS, the grantee agency may delegate all or part of its responsibilities for operating the program to a "delegate agency" in a particular locality. Id.

HHS designated Big Sandy as the grantee agency for an area that included Floyd County, Kentucky. Big Sandy is a "community action agency," meaning a non-profit corporation "organized for the purpose of alleviating poverty within a community or area by developing employment opportunities; by bettering the conditions under which people live, learn, and work; and by conducting, administering, and coordinating similar programs." KY.REV.STAT. ANN. § 273.410(2) (Michie 1989). Subsequently, Big Sandy delegated the responsibility for operating the Head Start program in Floyd County to the Floyd County Board of Education. The terms of this assignment are embodied in the Agreement for Delegation of Activities (Delegation Agreement), pursuant to which, Big Sandy agreed to provide Head Start funds to Floyd County and, in return, Floyd County agreed to use the funds in the manner specified in the Delegation Agreement, including complying with the Head Start Policy Manual (HSPM). The HSPM is a federally-issued manual that assists local Head Start programs in providing parents with the opportunity meaningfully to participate in administering Head Start programs at the local level. For instance, according to section 70.2 of the HSPM, a program's Head Start Director can be dismissed only with the approval of the Policy Committee, an advisory body composed of parents participating in the program.

The HSPM was not the only guide pertinent to Floyd County. During the course of

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operating the program, the Board of Education adopted the Floyd County Head Start Personnel Policies (FCHSPP) manual. The FCHSPP manual is an employee manual that sets forth policies and procedures relating to personnel matters. Although the FCHSPP manual is specific to Floyd County, it is modeled after a generally-applicable employee handbook provided by the regional Head Start office. In addressing disciplinary issues, the manual affords to Head Start employees a four-step appeals process: The employee appeals (1) to his or her immediate supervisor; then (2) to the Floyd County Head Start Director; then (3) to the Floyd County Policy Committee; and finally (4) to Big Sandy. Joint Appendix at 120-22. The appeal to Big Sandy, however, is limited to alleged procedural errors.

In Kentucky, the appointment, assignment, and transfer of administrative personnel are functions of the superintendent of schools. KY.REV.STAT. ANN. §§ 160.380(2)(a), 160.390 (Michie 1994 & Supp.1996). On August 12, 1986, the superintendent of Floyd County schools hired Bailey as the Head Start Director for Floyd County's Head Start program for the coming school year. In that capacity, Bailey was responsible for administering the Head Start program in the county. Each year, the superintendent would issue a letter to Bailey, inviting her to retain her position for the upcoming school year. Prior to her dismissal, Bailey had received a letter from Superintendent Towler, dated July 9, 1993, assigning Bailey to the position of Head Start Director for the 1993-94 school year.

In the Summer of 1993, Assistant Superintendent Gary Frazier, Bailey's immediate supervisor, notified the Kentucky Office of Education Accountability (OEA) of possible improprieties involving Bailey, as well as other Head Start employees. The OEA concluded, based on evidence discovered during the ensuing investigation, that Bailey had smoked marijuana and consumed alcohol while on Head Start time, misspent Head Start funds, and used the Head Start van for unauthorized purposes. Bailey contests these findings.

Superintendent Towler, based on an initial meeting with OEA investigators, suspended Bailey without pay on July 28, 1993. After the OEA completed its investigation and forwarded its report, Superintendent Towler commenced disciplinary action against Bailey. On September 3, 1993, Superintendent Towler and Deputy Superintendent Frazier presided over the Policy Committee meeting. According to Bailey, Superintendent Towler notified her of the Committee meeting one day before it was to take place, too soon for Bailey to arrange counsel and prepare a meaningful defense. She contends that Towler failed to notify her that her employment status would be discussed at the meeting or that the OEA report contained allegations of misconduct against her. After allegedly denying Bailey's requests to postpone the meeting and to allow her to examine the OEA report, Towler reviewed and discussed the report with the Committee. Thereafter, the Committee voted unanimously to terminate Bailey. According to Bailey, however, the Committee reached its conclusion without a quorum of its members present and as a result of Superintendent Towler's intimidation. Bailey petitioned Big Sandy to review the Policy Committee's decision, alleging procedural errors in connection with the Committee meeting and, in particular, the failure to comply with the disciplinary process set forth in the FCHSPP manual. In response, Big Sandy upheld Superintendent Towler's decision.

Bailey subsequently commenced this section 1983 action, arguing (1) that she had a property interest in her position as Head Start director by virtue of an implied contract arising from Floyd County's adoption of the FCHSPP manual; (2) that she was deprived of property without due process of law because, prior to her dismissal, she was given neither effective notice of the Policy Committee meeting nor a meaningful opportunity to be heard; and (3) that her dismissal stemmed, not from improper conduct, but rather, from exercising her right to free speech. She contends that Assistant Superintendent Frazier and Superintendent Towler initiated the OEA investigation and the subsequent disciplinary proceedings in retaliation for her open opposition to the school board's proposed district-wide reorganization

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of the Floyd County Head Start Program. 2 In Bailey's opinion, if the school board went ahead with its plan to integrate Head Start into the schools, parental participation would decline because the parents would feel intimidated in the new situation. Bailey advocated her position in letters written to school board members and during the public comment section of the May 26, 1993, school board meeting. Bailey's only evidence in support of this claim is her own deposition testimony in which she alleges that Ernestine Shelton, a Head Start instructor, telephoned Bailey a day or two prior to the school board meeting and delivered "a little message ... from Gary Frasure (sic), that if I would keep my mouth shut then I would get to keep my job." J.A. at 157; Brief for Appellant at 33.

Following cross-motions for summary judgment, the district court dismissed Bailey's entire case against all of the defendants in two separate orders. First, the district court dismissed Bailey's only claim against Big Sandy, a due process claim, because the court...

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