345 F.3d 581 (8th Cir. 2003), 02-3594EA, Herts v. Smith

Docket Nº:02-3594EA
Citation:345 F.3d 581
Party Name:Herts v. Smith
Case Date:October 06, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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345 F.3d 581 (8th Cir. 2003)

Dr. Ruth Simmons HERTS, Appellee,

v.

Dr. Gary SMITH, Individually acting under the color of state law and in his official capacity as the Superintendent of Education of the Pulaski County Special School District; Eugene Manfredini, Individually acting under the color of state law in his official capacity as the President of the Board of Education of the Pulaski County Special School District; Pat O'Brien, Individually acting under the color of state law and in his official capacity as the Vice-President of the Board of Education of the Pulaski County Special School District; Gwendolyn Williams, Individually acting under the color of state law in her official capacity as the Secretary of the Board of Education of the Pulaski County Special School District; James R. Burgett, Individually acting under the color of state law and in his official capacity as a member of the Board of Education of the Pulaski County Special School District; Ruth White Tucker, Individually acting under the color of state law and in her official capacity as a member of the Board of Education of the Pulaski County Special School District; Mildred C. Tatum, Individually acting under the color of state law and in her official capacity as a member of the Board of Education of the Pulaski County Special School District; Pam Roberts, Individually acting under the color of state law and in her official capacity as a member of the Board of Education of the Pula to County Special School District; and the Pulaski County Special School District, Appellants.

No. 02-3594EA.

United States Court of Appeals, Eighth Circuit

October 6, 2003

Submitted: April 18, 2003.

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George J. Bequette, argued, Little Rock, AR, for appellant.

John T. Lavey, argued, Little Rock, AR, for appellee.

Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

This is an interlocutory appeal from a denial of summary judgment on the issue of qualified immunity from suit.

Dr. Ruth Herts alleges that Dr. Gary Smith, Superintendent of the Pulaski County Special School District, failed to renew her employment contract as a result of her testimony at a hearing on a desegregation case involving the School District, thus violating her rights under the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and Title VII. Defendants deny any violation of Dr. Herts's rights and assert that they did not discriminate against her. They further assert that they are entitled to qualified immunity from such claims. The defendant School District pleads a defense under the Eleventh Amendment.

The most important issue in the case, in our view, is the First Amendment claim. A principal question relevant to that issue is whether Dr. Herts's speech was protected. The District Court held that it was. The Court first held the speech to be of public concern. See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Next, the District Court held that Dr. Herts's right to comment on matters of public concern, under the circumstances of this case, outweighed the defendants' interest in promoting the efficiency of the public service they were performing. See Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The District Court held that material factual disputes existed which required denial of summary judgment for the defendants on their defense of qualified immunity. This interlocutory appeal followed. For the reasons given below, we affirm in part, reverse in part, and dismiss in part for want of jurisdiction.

I.

This Court reviews the rejection of a qualified-immunity defense de novo. Burnham v. Ianni, 119 F.3d 668, 673 (8th Cir. 1997) (en banc). We examine the facts alleged, or supported by the summary-judgment record, to see whether they support a claim that the defendants violated clearly established law. See Pace v. City of Des Moines, 201 F.3d 1050, 1052 (8th Cir. 2000).

Plaintiff first argues that the notice of interlocutory appeal is flawed because it referred to an order that did not exist, an order denying the plaintiff's motion for

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summary judgment on the issue of qualified immunity. The intention of the drafter of the notice was obviously to refer to defendants' motion. It was only defendants who made a motion for summary judgment on this issue. Plaintiff did not. This is a mere clerical mistake that caused no prejudice to plaintiff. Accordingly, it should not be held against the appealing defendants. See Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). We reject this ground for dismissing the appeal.

Plaintiff next suggests that we lack jurisdiction because the order of which review is sought is not final. Certainly it is true that an order denying a motion to dismiss, or for summary judgment, is not normally immediately appealable. It is not a final order. Pendleton v. St. Louis County, 178 F.3d 1007, 1010 (8th Cir. 1999). The Supreme Court, however, has carved out an exception to this rule of finality for cases involving the defense of qualified immunity. See Behrens v. Pelletier, 516 U.S. 299, 307, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). A denial of summary judgment on the ground of qualified immunity "may be reviewed on interlocutory appeal when the issue presented 'is a purely legal one: whether the facts alleged [or shown by the summary-judgment record] ... support a claim of violation of clearly established law.' " Pace, 201 F.3d at 1052 (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n. 9, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Here, on defendants' motion for summary judgment, the District Court did rule on the defense of qualified immunity. The question brought up for review, therefore, is whether under the facts established by the summary-judgment record, defendants violated "clearly established law." Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

II.

The Supreme Court has defined qualified immunity as follows:

[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The determination of whether qualified immunity is applicable in given circumstances is one of "objective reasonableness." Schleck v. Ramsey County, 939 F.2d 638, 641 (8th Cir. 1991). The issue is not "whether the defendant acted wrongly, but whether reasonable persons would know they acted in a manner which deprived another of a known constitutional right." Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002). The defendant bears the burden of proof on this affirmative defense. Ibid.

A. First Amendment Claim

Because Dr. Herts's speech was job-related, defendants argue, it cannot be considered a matter of public concern, and so is not protected. See Buazard v. Meridith, 172 F.3d 546, 548 (8th Cir. 1999). They focus specifically on Dr. Herts's comments about her own position, which they characterize as "directed at her private and very personal concerns about her own employment situation." Reply Br. 4. However, the testimony at issue was given by Dr. Herts when she was called as a witness by the Joshua intervenors in the desegregation case of Little Rock School District v. Pulaski County Special School District, No. 4:82CV00866, 2002 WL 31465311 (E.D.Ark.2002), a highly publicized case that began in 1982. In this testimony, Dr. Herts was asked to answer

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questions about the proposed combination of the Desegregation Office and the Pupil Personnel Office, and the impact this change would have on her position as Director of Equity. She was questioned as to whether she had been asked for her analysis of any activity the administration had implemented in the past year, and about whether she was involved in the proposed plan for reorganizing the attendance zones of Bates and Landmark schools. She was also questioned about the purpose and existence of the Bi-Racial Committee, and about the information presented to intervenors in response to a request under the Freedom of Information Act. It was in her capacity as Director of Equity, testifying under subpoena, that she remarked that her truthful responses might place her job in jeopardy. In context, Dr. Herts's speech was certainly on a matter of public concern.

In...

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