McGill v. Board of Ed. of Pekin Elementary School Dist. No. 108 of Tazewell County, Ill.

• Decision Date: 23 July 1979
• Docket Number: No. 78-2111,78-2111
• Citation: 602 F.2d 774
• Parties: Barbara McGILL, Plaintiff-Appellee, v. BOARD OF EDUCATION OF PEKIN ELEMENTARY SCHOOL DISTRICT NO. 108 OF TAZEWELL COUNTY, ILLINOIS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 774

602 F.2d 774

Barbara McGILL, Plaintiff-Appellee, v. BOARD OF EDUCATION OF PEKIN ELEMENTARY SCHOOL DISTRICT NO 108 OF TAZEWELL COUNTY, ILLINOIS, et al Defendants-Appellants.

No. 78-2111.

United States Court of Appeals Seventh Circuit.

Argued April 13, 1979.

Decided July 23, 1979.

V. Rodney Hallberg, Pekin, Ill., for defendants-appellants.

R. W. Deffenbaugh, Springfield, Ill., for plaintiff-appellee.

Before CUMMINGS and SPRECHER, Circuit Judges, and BONSAL, Senior District Judge. ^*

CUMMINGS, Circuit Judge.

Pursuant to the Civil Rights Act (42 U.S.C. § 1983), plaintiff school teacher sued her employer, the Board of Education, its seven members, a school superintendent and the principal of Broadmoor School in Pekin, Illinois. The gravamen of her complaint was that she was involuntarily transferred to another school in retaliation for certain constitutionally protected speech.

Plaintiff alleged that in March 1977, the Broadmoor School principal informed her that she would be transferred to a different school for the 1977-78 school term because "she had complained about school procedures on a number of occasions, and that she was 'stirring up trouble' in the teachers' lounge." Plaintiff charged that during the 1976-77 school term, she had engaged in discussions with other faculty in the teachers' lounge stating that she favored a master collective bargaining contract and also that she had privately disagreed with some of her principal's decisions and had brought these disagreements to his attention. She further alleged that in April and May 1977 the school superintendent informed her she was being transferred because of "comments that she had made at open meetings of the Defendant Board of Education * * * " and also because "she had made references concerning the master (collective bargaining) contract in the teachers' lounge." In August 1977, the Board of Education approved her transfer to a different school. Plaintiff charged that this transfer amounted to a denial of her rights of free speech and association.

In response, the defendants stated that the student population of the Broadmoor School had changed so that it was necessary to reassign plaintiff to another elementary school. Defendants also asserted that the court did not have jurisdiction over the case because no federal statutory or constitutional right was alleged to have been abridged.

In a pretrial ruling, the district court noted that plaintiff had alleged "that the basis for the transfer was comments that she had made at open meetings * * *, and also the fact that she had made remarks concerning the master contract in the teachers' lounge." Judge Morgan held that if plaintiff was transferred "in retaliation for her peaceful expression of opinions outside the classroom," plaintiff would have a cause of action under Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 723, and therefore the case was held for a jury trial. Subsequently the jury returned a verdict in favor of plaintiff, and the district court entered judgment for plaintiff reinstating her to her teaching position at the Broadmoor School and awarding plaintiff costs. ¹ We affirm.

The Jury Properly Found That Plaintiff Was Transferred For Protected Conduct

Defendants first argue that plaintiff did not prove that her communications were entitled to First Amendment protection in view of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, and Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972), certiorari denied, 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695. Pickering held that school teachers may not constitutionally be compelled to relinquish their First Amendment rights "to comment on matters of public interest in connection with the operation of the public schools * * *." 391 U.S. 568, 88 S.Ct. at 1734. The Court applied the First Amendment to the teacher's statements critical of his employer "which are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally" (footnote omitted). 391 U.S. at 572, 573, 88 S.Ct. at 1737. Thus Pickering can be read as establishing that two limits on a teacher's right to speak out may be permissible. First, speech that is so disruptive as to impede the teacher's performance or to interfere with the operation of the school may be proper grounds for discipline. Second, if the speech does not involve matters of public interest it may not be entitled to constitutional protection.

In the present case defendants have not shown that plaintiff's statements impeded her classroom duties or interfered with the regular operation of the schools generally. Although defendants adduced some evidence tending to show that plaintiff was a source of friction and lack of cooperation among the teachers, plaintiff rebutted that evidence with testimony from the relevant teachers that such tension did not exist and that plaintiff was a respected and valued colleague. ² The jury was instructed that the teacher's criticism would not be protected if "the teacher's actions materially and substantially interfere with the operation of the education process in the classroom" (Tr. 209). ³ Clearly the jury made a credibility determination in this regard, and we cannot disturb it. Consequently, because plaintiff has established that her speech was not unduly disruptive, Pickering does not support defendants' position.

Clark v. Holmes, supra, does not require reversal either, because there the disruptive nature of the plaintiff's speech was plainly established. Teacher Clark's statements consisted of "uncontrolled expression at variance with established curricular contents and internally destructive of the proper functioning of the (university) institution" (474 F.2d at 931). ⁴ Instead this case is controlled by Donahue v. Staunton, 471 F.2d 475, 480 (7th Cir. 1972), certiorari denied, 410 U.S. 955, 93 S.Ct. 1419, 35 L.Ed.2d 687. There we observed that public employees do have a right to criticize their employers because dismissal from their employment for making critical statements would "inhibit the propensity of a citizen to exercise his right to freedom of speech and association." ⁵ In Donahue we held that defendants could not dismiss a hospital chaplain even though his accusations were extensive, critical, vociferous and exaggerated and even false. Judge Hastings' majority opinion supported this result because the defendants did not show that plaintiff's accusations impeded the performance of his duties or interfered with the functioning of the hospital.

Defendants also urge plaintiff's statements were not protected by the First Amendment because they involved only matters of private concern. ⁶ However, her complaint alleges that the reason for her transfer was advocacy of a collective bargaining agreement in the teachers' lounge and in an open meeting of the school board. Judge Morgan evidently concluded that this speech involved a matter of public concern, and we agree. The jury was instructed as follows (court's Instruction No. 7; defendants' Instruction No. 23):

"Plaintiff has the burden of proving the following propositions as to each defendant:

"First, that plaintiff has made remarks at open meetings and in the teachers' lounge concerning the teachers' master contract.

"Second, the transfer to another school was made as a result of the aforementioned comments.

"If you find that both of the aforementioned propositions have been proven, then your verdict should be for the plaintiff; but if, on the other hand, you find that either of the propositions has not been proved, then your verdict should be for the defendants." (Tr. 204.)

Plaintiff had unsuccessfully objected to this instruction of defendants because it was limited to plaintiff's remarks concerning the teachers' master contract (Tr. 213-214). Consequently, it is apparent that the district judge agreed with defendants that the only comments by plaintiff which were protected by the First Amendment were her remarks in the teachers' lounge and at the open meeting in favor of a master collective bargaining contract. Such a subject is, of course, of public concern, so that defendants may not complain that the jury was permitted to decide in plaintiff's favor with respect to any of her comments on private issues. The jury instruction quoted above precluded any such decision.

Finally, Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619, punctures defendants' insistence that plaintiff's speech was not protected by the First Amendment to the extent that some otherwise protected comments were made privately. In Givhan, the plaintiff teacher's comments to her school principal consisted of insulting, hostile, loud and arrogant, petty and unreasonable demands, according to the defending school district. Her complaints involved employment policies and practices at the school which she conceived to be racially discriminatory in purpose or effect. However, the Supreme Court considered her private comments and expressions of opinions to the principal to be protected under the First Amendment. It reiterated its Pickering view that the content of the teacher's statements would be protected if, as here, they did not impede the proper performance of his daily duties in the classroom or interfere with the regular operation of the schools generally (439 U.S. 415 n.4, 99 S.Ct. 696), but the case was remanded so that the district court could decide whether Givhan would have been rehired but for her criticism.

We therefore conclude that plaintiff's advocacy of a collective bargaining contract was protected by the First Amendment and that the jury's consideration was properly limited to this constitutionally protected speech.

Instruction No. 20 Was Not Erroneous

The court's Instruction No....