Baldwin v. Birmingham Bd. of Ed.

• Decision Date: 19 March 1981
• Docket Number: No. 79-2603,79-2603
• Citation: 648 F.2d 950
• Parties: 25 Fair Empl.Prac.Cas. 947, 25 Empl. Prac. Dec. P 31,666, 26 Empl. Prac. Dec. P 32,045 Charles BALDWIN, Plaintiff-Appellant, v. BIRMINGHAM BOARD OF EDUCATION, Defendant-Appellee. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 950

648 F.2d 950

25 Fair Empl.Prac.Cas. 947,

25 Empl. Prac. Dec. P 31,666,

26 Empl. Prac. Dec. P 32,045

Charles BALDWIN, Plaintiff-Appellant, v. BIRMINGHAM BOARD OF EDUCATION, Defendant-Appellee.

No. 79-2603.

United States Court of Appeals, Fifth Circuit.

Unit B

March 19, 1981.

As Amended June 11, 1981.

Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiff-appellant.

Lange, Simpson, Robinson & Somerville, Harry L. Hopkins, Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before SIMPSON, RONEY and THOMAS A. CLARK, Circuit Judges.

RONEY, Circuit Judge:

Plaintiff, a black male, was employed by the defendant Birmingham Board of Education as a teacher. At the end of his third year of teaching his contract was not renewed and he was thus denied tenure. He brought this action under 42 U.S.C.A. § 1981 claiming he was discriminated against on the basis of his race. Following a nonjury trial, the district court found there was no showing of purposeful discrimination and entered judgment for defendant. Concluding that the failure to make certain findings led the district court to improperly evaluate plaintiff's prima facie evidence of disparate treatment, we vacate the judgment and remand for further proceedings.

Plaintiff was hired as a teacher by defendant in December 1973 and was assigned to teach seventh grade math at Powderly Elementary School. While he had received some training in teaching mathematics, he was not certified to teach mathematics and did not have an endorsement in that subject, his endorsements being in commercial subjects and English. Plaintiff encountered difficulty maintaining discipline at Powderly and wrote letters to the defendant's personnel department to that effect. In other respects his teaching ability was rated good.

In the spring of 1974, plaintiff requested a transfer to another school and into a field in which he was certified. Plaintiff was rehired for the 1974-75 term and transferred to Lincoln Elementary School to teach eighth grade math. He testified that he was told that he was not assigned to teach in his area of certification because of decreased enrollment. Apparently plaintiff enjoyed his new assignment and did well. His evaluations show high ratings and in the spring of 1975 he requested the "same assignment" for the next school year. During 1975 plaintiff also became certified in guidance counseling and supervision.

Beginning with the 1974-75 school year, the defendant school board commenced a two-year program to obtain accreditation for its elementary schools. One of the major obstacles to accreditation was the large number of elementary teachers teaching "out of field," that is, teaching subjects or grades for which they were not qualified under standards published by the Southern Association of Colleges and Schools and by the State of Alabama. The district court found that it was sometimes difficult to identify such teachers but that as soon as the administration learned of such a teacher, he or she was advised of the problem and alternative solutions. One solution was to transfer into an in-field assignment if a vacancy in that field existed. The district court found that tenured teachers were given preference in utilizing this solution. The other solution was for the out-of-field teacher to return to school and complete sufficient courses to become certified in the field in which he was teaching. The defendant board considered "in field" those teachers who entered into an agreement to complete the course of study pursuant to a specified timetable and who were actively pursuing that objective.

In September of 1974, teachers identified as out of field were sent letters listing the alternative methods of becoming in field. Plaintiff testified that he never received such a letter, and none appears in his personnel file. Plaintiff also testified, however, that as chairman of the mathematics department at Lincoln School during the 1974-75 term, he was actively involved in a self-study program which assessed where the school stood with respect to meeting the accreditation standards and that he was personally aware of other teachers identified as out-of-field.

Plaintiff was rehired for the 1975-76 school year and pursuant to his request to retain the same assignment, he continued at Lincoln School teaching eighth grade math. Sometime during the fall of 1975 the school was cited because plaintiff and two other teachers were teaching out of field. On November 18, the day after learning of the citation, Dr. Roy Nichols, the supervisor for about 30 elementary schools, visited Lincoln School. After discussing the problem with the principal, Dr. Nichols personally discussed the matter with plaintiff outside plaintiff's classroom. Dr. Nichols testified that he told plaintiff he would have to get in field by being transferred or by going back to school and becoming certified in math, that plaintiff said he wanted to stay at Lincoln and teach math, and that plaintiff said he would go back to school. The principal was told to make sure plaintiff followed through on this assignment because the school's accreditation was at stake. Plaintiff testified that the principal told him to get an outline of his proposed course of study and a letter for Dr. Nichols' purposes, but it is admitted that the outline and the letter were never secured before plaintiff's termination. The district court found that by December 1975 either Dr. Nichols or the principal made it abundantly clear to plaintiff that he needed to achieve in field status by the end of the current school year in order to continue teaching. Although plaintiff contends this finding was clearly erroneous, the record sufficiently supports the court's finding.

Following the conversation with Dr. Nichols, plaintiff sought and obtained permission of the state board of education to take more than three semester hours while teaching full time. On December 8, he was admitted as an Irregular Post Graduate student at the University of Alabama at Birmingham. In early January 1976 he enrolled in three math courses of three semester hours each. Within two weeks, however, he dropped all three courses without informing anyone at the school. He explained at trial that he dropped the courses because he was too busy, in that he was teaching school full time, was studying career awareness on a voluntary "mini-grant" from the school board, and had recently been married.

In March 1976 plaintiff prepared his work assignment request for 1976-77 and, as he had done the previous year, requested the same assignment.

Late in the school year plaintiff's principal learned that plaintiff was not enrolled in college courses leading to certification in mathematics, and he notified the personnel department of that fact. On that same day, Dr. Nichols recommended to the board that plaintiff not be given tenure because he was not certified to teach elementary mathematics and had failed to take proper steps to become certified despite repeated warnings that he should do so. Acting on this recommendation, the board on May 25 1976 notified plaintiff his contract would not be renewed.

Under Alabama law, unless a teacher is notified before the end of the school term of his third year of teaching that his contract will not be renewed, the teacher automatically acquires tenure. Ala.Code tit. 16, §§ 24-2(a) 24-12 (1975). Tenured status gives the teacher certain procedural and substantive rights in his job, makes it more difficult for the school board to terminate the teacher and increases the school board's obligation to find a place for the teacher. See generally Ala.Code tit. 16, ch. 24 (1975).

Plaintiff filed suit under 42 U.S.C.A. § 1981 alleging that the defendant board of education discriminated against him on the basis of his race by refusing to transfer him to a position in field while transferring out-of-field whites into field and refusing to grant him tenure because he was out of field while granting tenure to out-of-field whites. A somewhat detailed account of the course of discovery and trial is necessary to understand the trial court's actions.

In preparing for trial, plaintiff filed interrogatories which defendant did not answer. After several months, plaintiff filed a Motion to Compel Answers to Interrogatories, which was granted by the district court. Defendant eventually answered all the interrogatories except number 18. Interrogatory 18 dealt specifically with the qualifications, teaching assignments and granting of tenure to out-of-field teachers. Plaintiff finally filed a Motion for Sanctions for defendant's refusal to answer interrogatory 18. The court had not ruled on this motion prior to trial, and on the day of trial announced that the trial would proceed without the interrogatory being answered and that the Motion for Sanctions would be ruled on at the close of evidence.

Prior to trial, plaintiff also subpoenaed a number of teacher personnel files to the deposition of one of defendant's officers. Upon defendant's refusal to produce, plaintiff filed a Motion to Compel Production of the subpoenaed items. The Court responded by ordering that the original files be produced to plaintiff's counsel "for his personal review," but forbidding photocopying of most of the material in the files. Based on counsel's review of the files, on the day before trial plaintiff subpoenaed 120 teacher permanent record cards, which plaintiff had been permitted to photocopy, and 167 personnel files. At trial the court refused to require the production of all 167 files, but eventually some 37 files were produced, 17 relevant to the issue of failure to transfer plaintiff when he was out of field, and the remainder relating to the issue of failure to grant tenure to plaintiff while granting it to similarly situated whites. In plaintiff's attempt to prove discrimination for...