470 F.2d 179 (4th Cir. 1972), 71-1590, Johnson v. Fraley

Docket Nº:71-1590.
Citation:470 F.2d 179
Party Name:Evelyn J. JOHNSON, Appellant, v. S. A. FRALEY Jr., et al., Appellees.
Case Date:November 20, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 179

470 F.2d 179 (4th Cir. 1972)

Evelyn J. JOHNSON, Appellant,


S. A. FRALEY Jr., et al., Appellees.

No. 71-1590.

United States Court of Appeals, Fourth Circuit.

November 20, 1972

Argued Dec. 8, 1971.

Michael L. Soffin, Richmond, Va. (A. C. Epps and Christian, Barton, Parker, Epps & Brent, Richmond, Va., on brief), for appellant.

Brantley B. Griffith, Lebanon, Va., and Robert T. Winston, Jr., Norton, Va., (Griffith, Bondurant & Owens, Lebanon, Va., and Greear, Bowen, Mullins & Winston, Norton, Va., on brief), for appellees.

Before BOREMAN and BRYAN, Senior Circuit Judges, and BUTZNER, Circuit Judge.

ALBERT V. BRYAN, Senior Circuit Judge:

Suing under the Civil Rights Act, 42 U.S.C. § 1983, 1 as tooled by 28 U.S.C. § 1343, Evelyn J. Johnson asked for injunctive and indemnifying relief against the School Board and Superintendent of Schools of Russell County, Virginia, for refusal to reemploy her as a teacher, despite her continuous service of 29 years. The point of her complaint is that the defendants, authorized by the State to operate the schools, took this action without first informing her of the reasons

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for it and without granting her an opportunity to meet them. This grievance is braced by allegations that the manner of disemployment clashed with the Board's own regulation as well as State law. She condemns the procedure as odious to 14th Amendment due process.

The District Court, 327 F.Supp. 471, found that, as is conceded, she was employed only on a one-year basis, without stipulation for tenure. It also found that "[t]he only federally protected right plaintiff claims to be violated by the defendants is 'substantive . . . and pretermination procedural due process,' in other words, protection against discharge except for cause and an administrative hearing prior to termination of employment. The plaintiff disavows the violation of any other federally protected right by the defendants". In this shape of things, the Court concluded, in agreement with the defendants' argument, there was no denial of any right, privilege or immunity within the ken of the Civil Rights Act and "no colorable federal claim". Hence, the complaint was dismissed "without prejudice, for want of [Federal] jurisdiction", leaving no room for pendent adjudication on the protests under State law and local regulations. The plaintiff appeals.

We reverse on the authority of Supreme Court pronouncements delivered subsequent to the consideration by the District Court: Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). 2

The setting in which the cause came to the District Court was this. Appellant's career as a teacher in the Russell County Schools extended without break from 1942 until April 13, 1970, when she received a letter from the Superintendent stating that she would not be retained for the 1970-71 session. During her teaching years there was in effect a School Board regulation stipulating that:

"In the event a teacher is not to be given a contract for the succeeding school year, the superintendent or his designated representative must notify the teacher in writing not later than March 15, stating the reasons for his decision. The superintendent shall arrange with any such teacher who desires it a hearing with him and school personnel who have observed the teacher's work. If the teacher is then dissatisfied with the decision of the superintendent, full and free opportunity shall be granted for an appeal to the school board."

This regulation, the school officials asserted, was superseded by a 1968 Act of the Virginia legislature establishing a uniform and exclusive procedure for the engagement of teachers. Va.Code Ann. § 22-217.1 (Repl.Vol.1969). It prescribed that written notice of nonrenewal of a teacher's contract must be given on or before April fifteenth of each year. Id. § 22-217.4. As the equivalent of "tenure", the designation of "continuing contract" was used. To achieve that status the teacher must serve a probationary term of three years.

Because at the time of her termination, 1970, appellant had not, and could not, have served the three-year trial period fixed by the 1968 Act, it was assumed that she had not then attained a "continuing contract". The statute was amended in 1969 to allow, "in the discretion of the local school board", service prior to 1969 to satisfy the probationary term. This option was never exercised in favor of any teacher. Upon completion of probation, teachers would become entitled to continuing contracts "during good behavior and competent service". Id. § 22-217.4. The 1968 enactment also carried the following provisions:

"§ 22-217.5. Dismissal of teacher or placing on probation; grounds.-Teachers may be dismissed or placed on probation for the following reasons;

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Incompetency, immorality, noncompliance with school laws and regulations, disability as shown by competent medical evidence, or for other good and just cause.

"§ 22-217.6 Same; notice to teacher.-Written notice setting forth the reasons for dismissal or placing on probation and a statement that the teacher may request a hearing before the school board within fifteen days after receiving the notice must be sent to the teacher. A personal interview with the teacher stating the reason for dismissal or placing on probation may be employed in lieu of such written notice.

"§ 22-217.7. Same; hearing.-The hearing before the school board, which shall be private unless the teacher requests a public one, must be set within thirty days of the request, and the teacher must be given at least fifteen days' written notice of the time and place. At the hearing the teacher may appear with or without counsel and be heard, presenting testimony of witnesses and other evidence.

"§ 22-217.8. Same; decision of school board.-The school board shall give the teacher its written decision within five days after the hearing, together with a copy of the transcript of the proceedings, which shall be furnished without cost. A majority vote of the school board is necessary for dismissal."

These four sections, appellees argue, do not apply to nonrenewals but solely to dismissals, emphasizing that Evelyn Johnson was not dismissed. Furthermore, they argue, these provisions cover continuing contract teachers alone.

Appellant pleaded she had rendered "faithful and competent service". This allegation the school authorities traversed. She denounced the school officials' action as irreparably damaging her professional reputation and thereby crippling her ability to earn a livelihood, since teaching was her only occupation.

We do not resolve these disputes, reciting them only to depict the environment of appellant's resort to the...

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