522 F.2d 1171 (10th Cir. 1975), 74-1030, Bertot v. School Dist. No. 1, Albany County, Wyoming

Docket Nº:74-1030.
Citation:522 F.2d 1171
Party Name:Donna BERTOT, Plaintiff-Appellant, v. SCHOOL DISTRICT NO. 1, ALBANY COUNTY, WYOMING, et al., Defendants-Appellees. Martha SWEENEY, Plaintiff-Appellant, v. SCHOOL DISTRICT NO. 1, ALBANY COUNTY, WYOMING, et al., Defendants-Appellees.
Case Date:July 16, 1975
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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522 F.2d 1171 (10th Cir. 1975)

Donna BERTOT, Plaintiff-Appellant,




Martha SWEENEY, Plaintiff-Appellant,




No. 74-1030.

United States Court of Appeals, Tenth Circuit

July 16, 1975

Rehearing and Rehearing En Banc Denied Aug. 14, 1975.

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[Copyrighted Material Omitted]

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Michael H. Gottesman, Washington, D.C. (George H. Cohen and Dennis D. Clark of Bredhoff, Cushman, Gottesman & Cohen, Washington, D.C., and Charles E. Graves, Cheyenne, Wyo., on the brief), for plaintiffs-appellants.

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Alfred M. Pence, Laramie, Wyo. (Pence & Millett, Laramie, Wyo., on the brief), for defendants-appellees.

Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

These are civil rights cases in which two public school teachers complain that a local school board violated their constitutional rights in not renewing their contracts. Plaintiffs-appellants Mrs. Donna Bertot and Mrs. Martha Sweeney, who taught at Laramie High School in Laramie, Wyoming, alleged that the defendants-appellees' non-renewal of their contracts was, at least in part, in retaliation for exercise of their First Amendment rights, and also that their right to procedural due process guaranteed by the Fourteenth Amendment was violated by the procedures followed by the defendants.

Plaintiffs brought separate suits under 42 U.S.C.A. § 1983, and the Federal Constitution, claiming jurisdiction under 28 U.S.C.A. §§ 1331 and 1343. They sought damages and declaratory and injunctive relief against defendants in their official and individual capacities. Plaintiffs' cases were consolidated and tried to a jury, which found for the defendants. The trial court denied motions for judgment notwithstanding the verdicts and entered judgment on the verdicts, and this appeal followed.

Plaintiffs raise two main issues on appeal: (1) that the court erred in refusing to submit the procedural due process issue to the jury, and in not directing a verdict for them on the issue; and (2) that the proof clearly established that the non-renewals were at least in part in retaliation for exercise of First Amendment rights so that the trial court erred in failing to enter judgment for plaintiffs notwithstanding the verdicts. Since both issues necessitate analysis of the evidence, we will defer discussion of the details of the proof until we treat the issues. The general background facts are as follows.

Both appellants were recent honor graduates of the University of Wyoming. Mrs. Sweeney was a Phi Beta Kappa graduate in 1968 with a bachelor's degree in mathematics and a minor in English, and started teaching both subjects at Laramie High School that autumn. She was re-employed in 1969-70, and again in 1970-71. Mrs. Bertot, also Phi Beta Kappa, began teaching at Laramie High School in the autumn of 1969, having graduated with a bachelor's degree in English the previous spring. She taught sophomore English, including several honors sections, and was re-employed in 1970-71. At this point the plaintiffs were "initial contract teachers" as defined by the Wyoming statutes, see n. 2, infra, having no statutory rights to tenure or to hearings before a decision not to renew their contracts.

In March, 1971, the Albany School District Board of Trustees voted not to renew the teaching contracts of both Mrs. Sweeney and Mrs. Bertot. Both had been recommended for re-employment "with some reservations" by their building principal, Dr. Ludwick. Of 65 teachers at Laramie High School whose contracts were being reviewed by the school board, appellants were the only two whose re-employment was recommended with reservations. There were no recommendations against renewal.

At several meetings the Personnel Committee composed of three of the six Board members, Dr. Ludwick, and the Superintendent of District Schools, Dr. Conklin discussed the cases of Mrs. Sweeney and Mrs. Bertot. Dr. Ludwick was asked to give his reasons for his reservations, and the Committee also heard from Dr. Conklin. The teachers were not called before the Committee and were not heard. On March 10 the Committee presented to the full Board, in executive session, its recommendation that neither teacher's contract be renewed. After further discussion the Board, with one member absent, so voted. Again, neither teacher was called before the Board. The plaintiffs learned of the board action by a letter on March

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15. At the teacher's requests, several meetings with the Board and with school officials were held later. Following the Board's refusal to change its position, the plaintiffs brought suit.

At trial the plaintiffs' positions were essentially that the defendants denied them procedural due process by failure to afford several required rights in determining not to renew their contracts, and that the decisions were in retaliation for exercise of their First Amendment rights. The defendants mainly argued that there was no tenure or property right possessed by the plaintiffs, making unnecessary any of the special procedural steps whose omission is complained of by the plaintiffs. And the defendants' position further was that several inadequacies of the plaintiffs were the reasons for the non-renewal of their contracts, and not any retaliation for exercise of constitutional rights.

The case was submitted to the jury on a charge covering the plaintiffs' theory of their First Amendment claims, and the defendants' denials of liability and their assertions of immunity. The trial court refused to submit any factual question on the procedural due process claims, instructing the jury that at the time of their termination the plaintiffs were initial contract or non-tenured teachers, and that their contracts could be terminated without notice and without a hearing, so long as they were notified in writing by March 15 (Tr. 937). The plaintiffs objected timely to the failure to instruct on the procedural due process issue. Both sides made other objections to the charge as well, but none of them is urged on appeal.

Under the charge the case was submitted to the jury on special interrogatories and for a general verdict as to each plaintiff. The first interrogatories asked for a jury finding whether the defendants acted in good faith in failing to renew the teaching contracts of the plaintiffs, and the jury answered "Yes" as to both plaintiffs. The second inquired whether the defendants acted maliciously and for purposes of retaliation in failing to renew the teaching contracts, and the jury answered "No" as to both plaintiffs. The jury also returned a general verdict finding the issues for the defendants individually and in their official capacities. Judgments were entered on the verdicts, denying all relief, and plaintiffs' subsequent motions for judgment notwithstanding the verdicts were denied.

We turn now to the two main issues raised by plaintiffs on the appeal.

1. The procedural due process claims

The plaintiffs argue that their procedural due process claims were improperly rejected by the trial court. They assert error in the refusal of the court to submit the factual question of whether they had a sufficient property interest in their continued employment so as to require observance of due process procedures before termination, relying on Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570. They also complain of the instruction to the jury that there was no issue as to proper notification, right to a hearing or notice (Brief for Plaintiffs-Appellants, 38-39). 1

In such a context our function in examining the proof is a narrow one. Although a scintilla of evidence is not sufficient to justify submitting a case to the jury, a verdict may not be directed unless the evidence points all one way

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and is susceptible of no reasonable inferences which sustain the position of the party against whom the motion therefor is made. Wilkin v. Sunbeam Corp., 377 F.2d 344, 347 (10th Cir.). However, when the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by non-suit, a directed verdict or otherwise in accordance with the applicable practice without submission to the jury, or by judgment notwithstanding the verdict. Brady v. Southern Ry. Co., 320 U.S. 476, 479-80, 64 S.C. 232, 88 L.Ed. 239.

Plaintiffs argue that they introduced evidence establishing a prima facie case that they possessed a "property" interest in continued employment, raising at least a fact question. Cf. Perry v. Sindermann, 408 U.S. 593, 596, 603, 92 S.Ct. 2694, 33 L.Ed.2d 570. Without relying on state law, plaintiffs point to words, acts and past rehiring practices of the District as showing such a property interest. They say that refusal to submit the issue, or to direct a verdict in their favor on it, was error.

Under Wyoming statutes a public school teacher is classed generally as a "continuing contract teacher" or an "initial contract teacher." 2 An initial contract teacher who has taught in the system continuously for at least 90 days is hired on an annual basis and must be notified in writing of termination, if such is the case, no later than March 15 of each year. § 21.1-155, Wyoming Statutes Annotated (1973 Cum.Supp.). The plaintiffs' contracts with the District were annual contracts of this sort.

A continuing contract teacher, on the other hand, is employed on a continuing basis from year to year, without annual...

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