Thomas v. Ward, 74--1541

• Decision Date: 24 November 1975
• Docket Number: No. 74--1541,74--1541
• Citation: 529 F.2d 916
• Parties: Lyell J. THOMAS, Appellant, v. Marvin WARD, Superintendent of Winston-Salem/Forsyth County Schools, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 916

529 F.2d 916

Lyell J. THOMAS, Appellant, v. Marvin WARD, Superintendent of Winston-Salem/Forsyth County Schools, et al., Appellees.

No. 74--1541.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1974.

Decided Nov. 24, 1975.

Joel D. Gewirtz, Washington, D.C. (Jerry D. Anker, Robert E. Nagle, Lichtman, Abeles, Anker & Nagle, Washington, D.C., William G. Pfefferkorn, Clyde C. Randolph, Jr., Randolph & Randolph, Winston-Salem, N.C., on brief), for appellant.

John L. W. Garrou, Winston-Salem, N.C. (W. F. Womble and Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and BUTZNER and FIELD, Circuit Judges.

HAYNSWORTH, Chief Judge:

Lyell J. Thomas, a former school teacher in the Winston-Salem/Forsythe County, North Carolina School System, appeals from an order of the district court denying him reinstatement, back pay and an award of attorney's fees. We reverse that part of the order which refused to award back pay.

Mr. Thomas was employed from 1965 to 1971 as a mathematics teacher at North Forsythe Senior High School, Winston-Salem, N.C. On May 11, 1971 the school principal, Mr. Julian Gibson, recommended to the Superintendent of Schools that Thomas be terminated at the end of the academic year. His recommendation was based on reports of administrators who had visited Mr. Thomas' classes and expressed the opinion that, while Thomas was a hard worker with a good academic background, he was deficient in maintaining discipline and in communicating with students. The Superintendent thereafter notified Mr. Thomas that the Board of Education would consider his contract on June 1, 1971. Thomas was invited to attend and be heard.

At the meeting Mr. Thomas testified and presented other witnesses whose testimony tended to show that he was a competent and effective teacher. The school administration presented no witnesses but submitted letters of school officials, Thomas' personnel file, and affidavits of several students and of the assistant principal, which tended to show ineffectiveness. On this record the Board concluded that Thomas should be terminated.

Thomas subsequently filed suit in the district court, naming as defendants the Superintendent and Assistant Superintendent of the County Public Schools, the principal of his school and the members of the Board of Education, all in their individual and official capacities. He alleged discrimination based on race and age, both of which were ultimately abandoned, and that he was deprived of his liberty and property without due process. Thomas contended that his year-to-year contract together with the school system's 'Handbook for Professional Personnel' gave him a property interest in his position.

According to the Handbook:

It is the policy of the Winston-Salem/Forsythe County Schools to employ new personnel on a 'temporary or probationary status' for their first three years.

Elsewhere in the Handbook it is stated:

Beginning with the 1967--68 school year, teachers in North Carolina are employed on a continuing contract basis. This means that once a teacher has signed a contract, she is employed until the teacher resigns or is dismissed . . .. Cases of dismissal are rare and result from incompetence or from immoral or disreputable conduct. (Emphasis in original).

The district court held that Mr. Thomas was deprived of his interest in this 'de facto tenure' without due process. The court observed that witnesses had not been sworn and that the school system relied solely on unsworn letters and affidavits. Thomas consequently was unable to confront and cross-examine those who presented opinions critical of his performance. Moreover, several of the students whose affidavits were unfavorable had discipline problems of their own, a fact of which the Board was unaware. Thus, cross-examination might have been crucial. Finally, the court held that the Board's reliance on the administrative staff's evaluation, appearing in the unsworn letters, did not constitute substantial evidence to justify termination in the face of Thomas' live, contrary evidence. The Board was ordered to hold a second hearing.

The defendants did not appeal from that order. Rather, a new hearing was held at which Thomas was again terminated but this time in compliance with due process. Accordingly, when he returned to the district court, his complaint was dismissed because the second hearing was constitutionally adequate and because the Board's decision was not arbitrary or capricious. The court also held that an award of back pay or attorneys fees was barred as against the defendants in their individual capacity by the officials' good faith, see Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), and as against them in their official capacity by City of Kenosha v. Burno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Thomas has appealed the dismissal as to the officials only in their representative capacity, claiming that he was nevertheless entitled to reinstatement, back pay, and attorneys fees. The defendants, notwithstanding their failure to appeal the first order, now seek to argue that Thomas was deprived of no property interest protected by the Fourteenth Amendment and that, in any event, the first hearing met due process standards.

I.

We agree with the district court that Mr. Thomas had a protected property interest in continued employment. The Supreme Court, in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) made it clear that a teacher's property interests are not limited to formal tenure or contract rights. Thus, explicit contractual provisions may be supplemented by other agreements implied from the promisor's words and conduct in light of the surrounding circumstances. And, a teacher who has held his position for a number of years might be able to show that he has a legitimate claim of entitlement to job tenure. Such is the case before us, for, through its Handbook, the School Board fostered an understanding that after a temporary or probationary status for their first three years, teachers would be employed on a continuing contract basis, subject only to dismissal for cause. Mr. Thomas was clearly no longer a probationary employee, having been employed under this policy for five years, and thus had a legitimate claim of entitlement to continued employment that could not be taken without due process. See Zimmerer v. Spencer, 485 F.2d 176 (5th Cir. 1973); Johnson v. Fraley, 470 F.2d 179 (4th Cir. 1972).

II.

The district court also properly held that the first hearing before the Board did not meet due process standards. It is by now a truism that due process is a flexible concept, the very nature of which negates any concept of inflexible procedures universally applicable to every imaginable situation. E.g. Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). And, while the right to confront and cross-examine live witnesses does not necessarily attach to every administrative hearing, see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), in the circumstances of this case we conclude that Thomas could not constitutionally be terminated without such an opportunity.

The school administration's 'case' against Mr. Thomas depended upon a list of several itemized shortcomings alleged to demonstrate his incompetence. Thus, for example, it was said that he spoke too softly, that he allowed students to waste time, that he was an ineffective disciplinarian, and that his room was subject to excessive vandalism. Moreover, these allegations were dependent for their proof in no small part upon the unfavorable affidavits of a half dozen students, some of whom, unknown to the Board, were discipline problems themselves. These affidavits not only criticized Mr. Thomas' ability to communicate but also related specific instances of his failure to take prompt disciplinary action. It cannot be doubted, therefore, nor does the Board seriously contend otherwise, that the termination decision turned on the truth or falsity of disputed facts. ¹ As this court has noted, in almost every such setting due process requires an opportunity to confront and cross-examine adverse witnesses. McNeill v. Butz, 480 F.2d 314, 321 (4th Cir. 1973); Goldberg v. Kelly, 397 U.S. 254, 269--70, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

The Board, however, does complain of the administrative burden that would result from a requirement that it provide a full hearing to each teacher it discharges. Such considerations are properly the subject of concern, of course, but they cannot always outweigh the employee's interest in having an effective opportunity to challenge damning evidence and in preserving his job and reputation. McNeill v. Butz, 480 F.2d at 322--23. Moreover, we note that North Carolina law, effective July 1, 1972, expressly provides that career teachers (those with more than three consecutive years in one district) may be dismissed or demoted only in accordance with procedures clearly more elaborate than those provided in this case and which include the right of...