McGhee v. Draper, 79-1224

• Decision Date: 16 January 1981
• Docket Number: No. 79-1224,79-1224
• Parties: Janie McGHEE, Plaintiff-Appellant, v. Daniel D. DRAPER, Superintendent; Daniel D. Draper; Floyd E. Mott; Montie Jones; Jerry Stafford; Don Larmon; and Quentin Riley, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 639

639 F.2d 639

Janie McGHEE, Plaintiff-Appellant, v. Daniel D. DRAPER, Superintendent; Daniel D. Draper; Floyd E.

Mott; Montie Jones; Jerry Stafford; Don Larmon;

and Quentin Riley, Defendants-Appellees.

No. 79-1224.

United States Court of Appeals, Tenth Circuit.

Argued July 7, 1980.

Decided Jan. 16, 1981.

David M. Silberman (Robert M. Weinberg, Washington, D. C., with him on the brief) of Bredhoff, Gottesman, Cohen & Weinberg, Washington, D. C. (and David Rubin, Washington, D. C., and Robert Hall, Houston, Tex., with him on the brief), for plaintiff-appellant.

William S. Hall, Tulsa, Okl. (Joseph R. Farris, Tulsa, Okl., with him on the brief) of Feldman, Hall, Franden, Reed & Woodard, Tulsa, Okl. (Gene A. Davis of Davis & Thompson, Jay, Okl., with him on the brief), for defendants-appellees.

Before SETH, Chief Judge, and McKAY and SEYMOUR, Circuit Judges.

McKAY, Circuit Judge.

In 1974, defendants, past and present members of an Oklahoma school board, declined to renew the contract of plaintiff, a non-tenured teacher. Plaintiff brought suit under 42 U.S.C. § 1983 seeking reinstatement with backpay, damages and attorney fees. In the case's previous appearance before this court, we held that the plaintiff had shown no entitlement to the position and hence had no protected property interest. McGhee v. Draper, 564 F.2d 902, 905-06 (10th Cir. 1977). However, we also indicated that the district court improperly granted defendant's motion for a directed verdict on plaintiff's liberty interest claim. Sufficient evidence "that the defendants' actions imposed a stigma or disability foreclosing the freedom of plaintiff to take advantage of other possibilities" was presented at trial to justify submission of the issue to the jury. Id. at 912. Furthermore, we held as a matter of law that the school board did not provide plaintiff a sufficient hearing, assuming that a liberty interest was implicated, and that "a remedy should be afforded for such denial of due process." Id.

We instructed the district court to hold new proceedings in order to determine whether the discharge infringed upon plaintiff's liberty interest and, if so, to "consider proper equitable relief for the denial of procedural due process." 564 F.2d at 916. Because of the board members' apparent good faith and the then-existing state of the law, we said that compensatory damages would be unavailable. Id. at 914-15. On remand, the district court did not conduct a new trial. Instead, the court decided that the only available remedy "would be a court-ordered hearing before the school board." Record, vol. 1, at 111. Because plaintiff had requested no such hearing, the court dismissed the action.

On appeal, plaintiff challenges the district court's rejection of her various claimed remedies. With respect to the availability of backpay and compensatory damages, plaintiff particularly urges that Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), and Bertot v. School District No. 1, 613 F.2d 245 (10th Cir. 1979) (en banc), require modification of certain portions of our prior opinion.

I. Preliminary Issues

Two threshold arguments of the defendants lend themselves to summary disposition. Because the School District itself was earlier dismissed from the case and that dismissal was not appealed, 564 F.2d at 904 defendants contend that there are no members of the school board still before the court in their official capacities. If so, the remedies issues would be mooted; good faith precludes a damages award against the individual defendants, see Wood v. Strickland, 420 U.S. 308, 318, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975), and the requested equitable relief requires an official-capacity party. Relying on Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), defendants also assert that plaintiff has not alleged "her deprivation was the result of the execution of the School District's policy, rule or custom." Brief for Appellee at 12. Such a deficiency would remove the basis for a § 1983 suit against the district or the individuals in their official capacities.

"(O)fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. Department of Social Services, 436 U.S. at 690 n.55, 98 S.Ct. at 2035 n.5. See also Bertot v. School District No. 1, 613 F.2d at 247 n.1. In our previous treatment of this case and despite the district court's earlier dismissal of the School District we clearly considered the named defendants to have been sued in their official, as well as individual, capacities. See, e. g., 564 F.2d at 916 n.16. Since we indicated that a damages recovery would be impossible, our remand would have been futile if no official defendants remained to provide the suggested equitable relief. The separate treatment of the District qua District and the board members in their official capacities certainly confused the logistics of the situation, but it did not end the lawsuit. ¹ The named board members are before us in their official capacities.

Owen v. City of Independence, 100 S.Ct. 1398 (1980), disposes of defendants' argument that no board "policy, rule or custom" is here involved. Monell precludes holding the official entity liable "solely because it employs a tortfeasor," 436 U.S. at 691, 98 S.Ct. at 2036, but here, as in Owen, "it is the local government itself that is responsible for the constitutional deprivation." 100 S.Ct. at 1418 n.39. Hence, "it is perfectly reasonable to distribute the loss to the public as a cost of the administration of government, rather than to let the entire burden fall on the injured individual." Id.

II. Liberty Interest

In our prior opinion we concluded that the district court had improperly directed a verdict against plaintiff on her liberty interest claim. That conclusion, of course, is the law of this case. Plaintiff must now be given an opportunity to establish her claim.

In order to recover under § 1983 for infringement upon a liberty interest, plaintiff must first show that the complained of conduct stigmatized or otherwise damaged her reputation. However, stigmatization or reputational damage alone, no matter how egregious, is not sufficient to support a § 1983 cause of action. Paul v. Davis, 424 U.S. 693, 697-713, 96 S.Ct. 1155, 1158, 47 L.Ed.2d 405 (1976). Such damage is properly vindicated through state tort actions. Id. In order to justify relief under liberty clause of the 14th amendment via § 1983, plaintiff's alleged reputational damage must be entangled with some other "tangible interests such as employment." Id. at 701, 96 S.Ct. at 1160. Plaintiff must be allowed to attempt to convince the trier of fact that these elements are present.

Plaintiff alleges that the stigmatization in this case was caused or enhanced by her non-renewal. Typically, when one's liberty interest is allegedly infringed upon by a discharge from employment, the termination or non-renewal will either explicitly state the stigmatizing factors or implicitly ratify some other stigmatizing allegations. Thus, the discharge will either cause or contribute to the alleged defamation. In either case, the defamed's liberty "to engage in any of the common occupations of life" is diminished, Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923)), and the defamation has occurred "in the course of the termination of employment." ² Paul v. Davis, 424 U.S. at 710, 96 S.Ct. at 1164. Thus, if plaintiff can show to the trier of fact that the non-renewal caused or enhanced her alleged reputational damage, she will have shown that she was entitled to a hearing or other reasonable opportunity to clear her name. See Paul v. Davis, 424 U.S. at 706-13, 96 S.Ct. at 1163-1166; Board of Regents v. Roth, 408 U.S. 564, 573-74, 92 S.Ct. at 2707 (1972).

Once it is determined that a hearing right was triggered because of an infringement upon plaintiff's liberty, the constitutional sufficiency of a purported hearing is a legal issue to be determined by the courts. In our prior opinion in this case we found that, assuming a violation of plaintiff's liberty interest, no constitutionally adequate hearing was afforded her. This is the law of the case and plaintiff need not present evidence on this final element of her claim.

The truth or falsity of any charges made or legitimized by the school board's action is not relevant to determining the existence of a procedural due process violation; it is relevant only in fashioning the appropriate remedy. The jury's determination whether plaintiff was deprived of a liberty interest because of the charges against her depends on the character of the charges, not on their truthfulness. The "truth or falsity ... (may) determine whether or not (the) decision to discharge (plaintiff) was prudent, but neither enhances nor diminishes (plaintiff's) claim that (her) constitutionally protected interest in liberty has been impaired." Bishop v. Wood, 426 U.S. 341, 349, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976). Just as we provide criminal trials to the guilty as well as to the innocent, we provide opportunities to rebut serious charges to those who will fail as well as to those who will prevail. ³

III. Remedies

When all of the elements of a § 1983 liberty claim are shown, a constitutional violation (failure to provide a hearing) is established. An appropriate remedy must then be fashioned. At a minimum, nominal damages would be available, even if the charges prove to be truthful. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978). A post-termination hearing, if requested, might also be awarded. In addition, compensatory and equitable relief might be appropriate if the damaging, publicly-disseminated charges made by...