Austin v. Board of Ed. of Georgetown Community Unit Sch. Dist. No. 3 of Vermilion County, Illinois
| Decision Date | 21 September 1977 |
| Docket Number | No. 77-1168,No. 3,3,77-1168 |
| Citation | 562 F.2d 446 |
| Parties | Verle AUSTIN, Plaintiff-Appellant, v. BOARD OF EDUCATION OF GEORGETOWN COMMUNITY UNIT SCHOOL DISTRICT NO. 3 OF VERMILION COUNTY, ILLINOIS, Joseph Dalida, Jack Harrold, James W. Bonebrake, Don Ehlenfeld, Elmo Snook, Carl Cunningham and Sarah R. Gleichman, Individually and as members of the Board of Education of Georgetown Community Unit School Districtof Vermilion County, Illinois, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
R. W. Deffenbaugh, Springfield, Ill., for plaintiff-appellant.
Wendell W. Wright, Danville, Ill., for defendants-appellees.
Before CUMMINGS, PELL and BAUER, Circuit Judges.
This is an appeal from the judgment of the district court entered on December 23, 1976, granting the defendants' motion for summary judgment and dismissing the case with prejudice. The three issues on appeal are (1) whether the defendants' dismissal of Austin from his teaching position deprived him of his liberty without due process of law, (2) whether the failure of the defendants to consider Austin for employment for the 1976-77 school year deprived him of liberty without due process of law, and (3) whether the defendants' dismissal of Austin was in accordance with the provisions of Illinois Revised Statutes, 1975, ch. 122, § 24-11.
Verle Austin was first employed by Georgetown Community Unit School District No. 3 on January 28, 1975. Thereafter, he was re-employed by the school district by a written contract commencing on August 25, 1975, and ending on June 7, 1976.
On April 2, 1976, the Board of Education, at a special meeting, passed a resolution authorizing the termination of Austin's employment. On that same date, the Board sent Austin a notice of dismissal, stating that this dismissal would take effect on June 7, 1976, and giving as the basis of the dismissal the charge that he had taken indecent liberties with two or more female students in the classroom. The "NOTICE OF CHARGES AND DISMISSAL" stated that a
Bill of particulars or details of these charges will be provided if you request in writing and a Hearing will be granted to you by the Board of Education if you so request it; at which Hearing you may be represented by legal counsel and hear the charges against you with the right to present any defense which you may have.
On April 6, 1976, Austin wrote to the President of the Board requesting a hearing on the charges stated in the April 2, 1976, notification and further requesting written notice of such charges and a bill of particulars to be served upon him at least twenty-one days before the scheduled hearing date in accordance with Illinois Revised Statutes, 1975, ch. 122, § 24-12. Three days later, Donald F. Strohl, Principal, Pine Crest School, transmitted to Austin a bill of particulars. 1 Austin had been suspended from his teaching duties as of April 2, 1976. If the charges of taking indecent liberties with two or more female students in the school had been sustained, his salary was to have ended as of April 20, 1976.
Attempts to set a date for a hearing were unsuccessful as of May 25, 1976. Thereafter, Derry L. Behm, Superintendent of the School District, and the Board of Education determined to proceed to pay Austin for his full contract period ending June 7, 1976. It was determined that a due process hearing was not necessary because the notice of dismissal, giving specific reasons and stating that dismissal would be effective at the end of the school term, had been sent by registered mail to Austin at least sixty days before the end of the school term.
On August 19, 1976, Austin filed suit in the district court. His complaint alleged, inter alia, that after providing him with the bill of particulars the defendant Board of Education refused to grant him a pretermination hearing on the charges included in the notice of dismissal and the bill of particulars. The complaint further alleged that the nature of the charges against Austin had become common knowledge among the students, faculty, administration, and community in which Austin worked and lived, that said charges had substantially damaged Austin's reputation in the community and had materially impaired his ability to find employment and to make a living and that said charges would continue in the future to damage his reputation and to impair his ability to make a living. The complaint charged a violation of Austin's civil rights by denying him property and liberty without due process of law, and prayed for reinstatement as a full-time teacher, an award of monetary damages, and such further relief as might be required.
In granting the defendants' motion for summary judgment and in dismissing the case with prejudice, the district court determined that there was no genuine issue as to any material fact and ruled that the defendants were entitled to judgment as a matter of law. The court's order rested in part upon a determination that an Illinois probationary teacher who receives notice of dismissal at least sixty days before the end of his or her probationary period is not entitled to enter upon contractual continued service. The court's unreported opinion explained that Austin had received his salary for the entire 1975-76 school term and had suffered no diminution thereof. Finally, the court determined that there was no provision of Illinois law which would entitle Austin to the requested administrative hearing under the circumstances of this case.
The resolution of the first issue in this case is controlled by Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977); Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2047, 48 L.Ed.2d 684 (1976); and Colaizzi v. Walker, 542 F.2d 969 (7th Cir. 1976), cert. denied, 430 U.S. 960, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977).
In Codd, a terminated police officer sought reinstatement and damages for the injury to his reputation and future employment prospects. His personnel file contained a report of an apparent suicide attempt when he was a trainee. The respondent's amended complaint did not seek a delayed hearing under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Moreover, the litigation proceeded to a bench trial, thus going beyond the pleading stage, without any affirmative assertion by the respondent that the report of the apparent suicide attempt was substantially false. Expressly refusing to rest decision upon an overly technical application of the rules of pleading, the per curiam Codd opinion stated that the absence of any allegation or court finding that the report was substantially false was fatal to Velger's claim under the Due Process Clause that he should have been given a hearing. 429 U.S. at 624, 97 S.Ct. 882. The Codd decision recognizes that the hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his employment is solely to provide the person an opportunity to clear his name and that such a hearing is required only if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination. Id. at 627, 97 S.Ct. 882.
Because the procedural history in Codd reflected the lack of any allegation of the falsity of the report, the Court found it unnecessary to reach the issue of its stigmatizing nature or whether the circumstances of its apparent dissemination were such as to fall within the language of Roth and Bishop, supra. 429 U.S. at 624, 97 S.Ct. 882. Simply stated, the record in Codd did not raise an issue about the substantial accuracy of the report. Even if the Supreme Court had accepted the determination of the Second Circuit that the creation and disclosure of the file report amounted to stigmatization, which it found it unnecessary to do formally, the Court was able to rule that Velger had not made out a claim under the Fourteenth Amendment that he had been harmed by the denial of a hearing. Id. at 627, 97 S.Ct. 882.
Our present case is both similar to and different from the Codd case. Here, as there, the complaint does not allege that the charges upon which the dismissal was based are substantially false. Under Codd, the complaint as drafted must be viewed as insufficient to state a deprivation of liberty under the Fourteenth Amendment. However, the present case never reached the advanced stages of discovery and trial. Had the district court anticipated the ruling of Codd and dismissed the complaint as insufficient for want of an allegation of falsity, the plaintiff Austin would have had under Rule 15(a) as construed by this court the absolute right to file an amended complaint averring the falsity of the female molestation charges. See Fuhrer v. Fuhrer, 292 F.2d 140, 142 (7th Cir. 1961). Moreover, plaintiff-appellant Austin's continuing attempt to secure a delayed Roth hearing not only makes the present case procedurally dissimilar from Codd 2 but can be viewed as an implied assertion that the charges are substantially false. Assuming that the grant of summary judgment was otherwise improper, Austin should be allowed to amend his complaint by including the indispensable "falsity" allegation.
In Bishop, supra, 426 U.S. at 348, 96 S.Ct. 2047, the Court concluded that a discharged employee was not deprived of "liberty" under the Due Process Clause of the Fourteenth Amendment where there was no public disclosure of the reasons for the discharge. On this appeal, the defendants contend that Bishop effectively controls the present case, asserting that there is nothing in the record showing that the Board of Education published its reason for dismissing Austin. The short answer to the contention is that there is a factual dispute about the disclosure to the community of the charges. Although the very...
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