676 F.2d 1338 (10th Cir. 1982), 80-1694, Childers v. Independent School Dist. No. 1 of Bryan County, State of Okl.

Docket Nº:80-1694.
Citation:676 F.2d 1338
Party Name:Michael CHILDERS, Plaintiff-Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 1 OF BRYAN COUNTY, STATE OF OKLAHOMA(a/k/a Silo Public Schools); Robert Johns, individually and in his official capacity as President of the Board of Education; Jim Green, Ken Masters, and Benny Holt, all individually and jointly in their official capacities as members of the
Case Date:April 26, 1982
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1338

676 F.2d 1338 (10th Cir. 1982)

Michael CHILDERS, Plaintiff-Appellant,



OKLAHOMA(a/k/a Silo Public Schools); Robert Johns,

individually and in his official capacity as President of

the Board of Education; Jim Green, Ken Masters, and Benny

Holt, all individually and jointly in their official

capacities as members of the Board of Education, Defendants-Appellees.

No. 80-1694.

United States Court of Appeals, Tenth Circuit

April 26, 1982

Page 1339

Ronald E. Stakem of Fagin, Hewett, Mathews & Fagin, Oklahoma City, Okl. (Clifford A. Jones, Oklahoma City, Okl.,

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with him on the brief), for plaintiff-appellant.

Ronald L. Day of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., for defendants-appellees.

Before SETH, McWILLIAMS, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Michael Childers sued Independent School District No. 1 of Bryan County, Oklahoma, a/k/a Silo Public Schools and the members of its Board of Education (hereinafter collectively referred to as the "Board") under 42 U.S.C. § 1983. Childers alleged that the Board's decision to change his teaching duties denied him a property interest without due process of law in violation of the Fourteenth Amendment, and impermissibly infringed on his First Amendment rights. The trial court granted the Board's motion to dismiss under Fed.R.Civ.P. 12(b), holding that Childers had failed to state a claim upon which relief can be granted.

On appeal Childers contends that his pleadings were sufficient to state a claim under both the First and Fourteenth Amendments. He also cites as error the court's failure to grant him leave to amend his pleadings to add a claim based on his subsequent termination by the Board. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.


The Dismissal Order

We initially address the Board's contention on appeal that we should treat the motion to dismiss as one for summary judgment. The Board points out that matters outside the pleadings were attached to its brief supporting its motion to dismiss and were not excluded by the trial court. The Board contends its motion was thereby converted to one for summary judgment pursuant to Fed.R.Civ.P. 12(b). 1

Rule 12(b) requires that when a dismissal motion is converted to a summary judgment motion, the trial court must proceed under Fed.R.Civ.P. 56. Torres v. First State Bank, 550 F.2d 1255, 1257 (10th Cir. 1977). "The provisions of Rule 56(c) 2 for notice to the opposing party and an opportunity for him to serve opposing affidavits are mandatory. Noncompliance therewith deprives the court of authority to grant summary judgment." Id. Accord Lucas v. Bechtel Corp., 633 F.2d 757, 759 (9th Cir. 1980). Here the district court did not comply with Rule 56(c), and its order granting the motion to dismiss did not refer to or rely on matters outside the pleadings. This court has held that under these circumstances the motion remains the "functional equivalent of a motion to dismiss." Smith v. Yellow Freight System, 536 F.2d 1320, 1322 (10th Cir. 1976).

The Rule 12(b) order of dismissal in this case is proper only if the complaint, taking all the allegations therein as true, fails to state a claim without consideration of any material outside the pleadings. Torres, 550 F.2d at 1257; see Smith, 536 F.2d at 1322.


The Fourteenth Amendment Claim

Childers' complaint states that he was a tenured teacher and that he was

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involuntarily reassigned from teaching vocational-agriculture to teaching regular classroom subjects. This change in teaching assignments resulted in a salary decrease and the loss of other benefits. Childers alleges that the above acts denied him a property interest without due process of law.

Property interests are created and defined by state law. Bishop v. Wood, 426 U.S. 341, 345 and n.7, 96 S.Ct. 2074, 2077 and n.7, 48 L.Ed.2d 684 (1976). The Oklahoma Supreme Court has recently examined the relevant state statutes and concluded that although a tenured teacher does have a property right in continued employment, he does not have a property interest in any particular position.

"In Oklahoma, teachers contracts are automatically renewed on a continuing basis unless the Board or the teacher acts to prevent the automatic renewal of employment. The contract for the ensuing year is not subject to the requirement that it contain identical terms as those found in the preceding year's contract. It is only necessary that the teacher receive a contract on the same salary schedule as other teachers in the district receive for the ensuing year. Teachers do not acquire the right to be employed in any particular position, rather the right of a tenured teacher is to continuing employment. Subject to the statutory boundaries, the Board may assign teachers within the school system as they desire."

Maupin v. Independent School District No. 26, 632 P.2d 396, 398-99 (Okla.1981) (footnotes omitted) (emphasis added).

We conclude that under Oklahoma law neither Childers' reassignment nor the resulting loss of salary and benefits deprived him of a protected property interest. The district court's decision on this issue is affirmed.


The First Amendment Claim

In his cause of action based on the First Amendment, Childers alleges that the Board reassigned him in retaliation for the exercise of his constitutional right to help organize a teachers union and to support a candidate for the School Board election. In dismissing the claim, the trial court concluded that the reassignment did not create an unconstitutional deprivation.

Public employment may not be conditioned upon relinquishment of the right to engage in activities protected by the First Amendment. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). However, "the state has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Id. To accommodate these competing interests, the Court in Pickering devised a balancing test under which "the interest of an employee in 'commenting upon matters of public concern' is weighed against the interest of the employer 'in promoting the efficiency of the public services it performs through its employees.' " Key v. Rutherford, 645 F.2d 880, 884 (10th Cir. 1981) (quoting Pickering, 391 U.S. at 568, 88 S.Ct. at 1734). Under this test, an employee's First Amendment rights are protected unless the employer shows that some restriction is necessary to prevent the disruption of official functions or to insure effective performance by the employee. Key, 645 F.2d at 844; Columbus Education Ass'n v. Columbus City School District, 623 F.2d 1155, 1159 (6th Cir. 1980).

If an employee's activities are protected under the Pickering test, he must then demonstrate that this conduct was a "motivating factor" in the detrimental employment decision. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). The employer "then bears the burden of showing by a preponderance of the evidence that it would have reached the same decision ... in the absence of the protected activity." Key, 645 F.2d at 885; Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576.

In the instant case, the Board argues in essence that the district court should be affirmed because reassignment, as opposed

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to termination...

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