Ferrara v. Mills, 82-8329-CIV.

• Citation: 596 F. Supp. 1069
• Decision Date: 14 November 1984
• Docket Number: No. 82-8329-CIV.,82-8329-CIV.
• Parties: Lawrence J. FERRARA, Plaintiff, v. Thomas J. MILLS, individually and as Superintendent of Schools for Palm Beach County, Florida; John Munroe, individually and as former Principal of John I. Leonard High School; and Luke Thornton, individually and as Principal of John I. Leonard High School, Defendants.
• Court: U.S. District Court — Southern District of Florida

596 F. Supp. 1069

Lawrence J. FERRARA, Plaintiff, v. Thomas J. MILLS, individually and as Superintendent of Schools for Palm Beach County, Florida; John Munroe, individually and as former Principal of John I. Leonard High School; and Luke Thornton, individually and as Principal of John I. Leonard High School, Defendants.

No. 82-8329-CIV.

United States District Court, S.D. Florida, N.D.

November 14, 1984.

I. Jeffrey Pheterson, Lake Worth, Fla., for plaintiff.

Richard Oftedal, West Palm Beach, Fla., for defendants.

ORDER OF DISMISSAL

GONZALEZ, District Judge.

I.

IN THIS ACTION plaintiff Lawrence J. Ferrara alleges that his former superiors at John I. Leonard High School and the Palm Beach County School Board violated his constitutional rights by changing his class assignments and hours in retaliation for plaintiff's outspoken criticism of school policy.

Subject-matter jurisdiction is premised on 28 U.S.C. § 1343(3) and the first and fourteenth amendments to the United States Constitution. Appended to plaintiff's federal questions is a tort claim for intentional infliction of emotional distress. The doctrine of pendent jurisdiction makes possible this court's review of that state claim. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

The controlling question before the court is whether the subject speech concerns internal school administration or is more appropriately characterized as a matter of public concern. Defendants have moved for summary judgment on this issue, and the court now reviews the question because "the inquiry into the protected status of speech is one of law, not fact." Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708 (1983).

In reviewing defendants' motion for summary judgment, the court is mindful that the movants bear the exacting burden of demonstrating that there is no genuine dispute as to any material fact in the case, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); the evidence is reviewed in the light most favorable to the nonmovant. Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983).

II.

When Lawrence J. Ferrara began working for John I. Leonard High School ("Leonard High School") in 1965, he was assigned to teach eleventh grade American history classes. By the 1980-1981 school year, Mr. Ferrara was teaching four eleventh grade American history classes and one twelfth grade political science course. During this period, Mr. Ferrara was able to work the school shift he desired, 6:45 a.m. to 2:15 p.m.

In January 1980, Mr. Ferrara was compelled to speak out against certain administrative policies at Leonard High School, including collegiate registration and the courses to which he and others had been assigned to teach during the 1981-1982 school year. As explained in his amended complaint, "collegiate registration allows high school students to choose their subjects and teachers. Plaintiff believed that this policy allowed cliques to concentrate in certain classes and add to the normal disciplinary problems." Amended Complaint ¶ 9 (filed May 5, 1983). As for course assignments, plaintiff wanted to teach advanced placement history, and furthermore objected to the school's hiring of physical education coaches to fill several vacancies in the social studies department.

Mr. Ferrara submits that he has voiced his concern over collegiate registration with "many others in the school community," Amended Complaint ¶ 9, and personally informed defendant John Monroe, former Principal of Leonard High School, that the use of athletic coaches as social studies teachers contributed to "civil illiteracy." Id. ¶ 10.

Curiously, Mr. Ferrara also avers that during 1980 he often called various radio talk shows and spoke out on a variety of subjects. No mention is made of the content of these discussions, and thus their relevance is dubious. No doubt Mr. Ferrara would have the court believe that he pontificated on school and Board policy when he called these programs.

Sometime toward the end of the 1980-1981 school year, then-Principal Munroe assigned Mr. Ferrara to teach elective (i.e., less prestigious) classes to ninth and tenth (rather than eleventh and twelfth) graders during the 9:45 a.m. to 5:15 p.m. (rather than the 6:45 a.m. to 2:15 p.m.) shift. Mr. Ferrara maintains that these undesirable assignments are the direct result of his criticism of school policy.

Although Mr. Ferrara fulfilled his assigned tasks during the first half of the 1981-1982 school year, he did request that defendant Luke Thornton (who replaced Mr. Munroe as Principal of Leonard High School) reinstate him to his original class assignment and time schedule for the second term. Mr. Thornton denied this request. Mr. Ferrara repeated his demands at the beginning of the next school term to Mr. Thornton, Mr. Monroe (who had become an Area Superintendent for the Palm Beach County School System) and defendant Thomas Mills, who served as the Superintendent of Schools for Palm Beach County. When his request was again denied before the start of the second term of the 1981-1982 school year, Mr. Ferrara claims he was overcome by severe headaches, psoriasis, insomnia and other stress-related disorders, and consequently could not work for the rest of the year. Mr. Thornton's evaluation of Mr. Ferrara's performance during that year indicates the problems posed by the latter's attitude.

Mr. Ferrara has a considerable amount of discipline problems. Students have difficulty understanding his approach.

....

Mr. Ferrara does not have an effective relationship with associates. He complains about assignments. He missed half of the year because he could not cope with stress.

Amended Complaint, Exhibit A (Palm Beach Co. Teacher Evaluation Form, dated June 8, 1982).

According to the amended complaint, the defendants' administrative policies violated plaintiff's constitutional rights protected under 42 U.S.C. § 1983, including his first amendment right to free speech. Defendants' actions also allegedly caused plaintiff to suffer mental anguish and physical shock.

III.

A court deciding a claim by a public employee that his first amendment right to free speech has been violated must engage in a three step analysis. The court must determine (1) whether the plaintiff has carried the burden of demonstrating that his "speech" concerned matters of public concern and thus constitutes a protected activity, Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); (2) whether the protected activity was a substantial or motivating factor in the actions taken against the plaintiff, Mt. Healthy City School Dist. Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); and (3) whether the defendant has defeated the plaintiff's claim by demonstrating that the same action would have been taken in the absence of the protected activity, Givhan v. Western Lines Consolidated School Dist., 439 U.S. 410, 416-17, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979).

In this case the court need only inquire into the first level of analysis. A review of the entire record convinces the court that plaintiff's speech, while tangentially related to matters of public concern, constitutes nothing more than a series of grievances with school administrators over internal school policies. The court reaches this result after weighing the time, manner and place of the speech; the context in which the dispute arose; the degree of public interest in the speech; and the need for harmony and discipline in the school system. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 1691-92, 75 L.Ed.2d 708 (1983).

IV.

In a working environment there exists an obvious tension between an employee's right to speak out as a citizen on work-related matters that also are of public concern and an employer's ability to control such activities in order to manage internal affairs.

The Supreme Court of the United States addressed this very issue in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). In Connick, a disgruntled assistant district attorney circulated a questionnaire among her colleagues asking them to comment on favoritism, incompetency and political pressure that allegedly existed in their office. When the District Attorney caught wind of the activity, he discharged the assistant, prompting her suit on first amendment grounds.

Justice White, writing for the Court, reversed the Fifth Circuit and held that the assistant prosecutor's discharge did not violate her first amendment right to freedom of speech. This court recites relevant passages from that decision because they provide guidance in the case at bar.

If the assistant prosecutor's questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.

....

We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. Our responsibility is to ensure

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