773 F.2d 949 (8th Cir. 1985), 84-2244, Roberts v. Van Buren Public Schools

Docket Nº:84-2244.
Citation:773 F.2d 949
Party Name:Estella ROBERTS and Bertha Burden, Appellants, v. VAN BUREN PUBLIC SCHOOLS; James R. Tate and James Starbird, Individually and as Superintendent and Principal of Van Buren Public Schools; Gene Neidecker, President; C.J. Franklin, Iverson Riggs, Ray Nelson, Darral Sparkman, Dr. Richard Darden, Otis Arnold, and Robert Daugherty, Individually and as M
Case Date:September 11, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 949

773 F.2d 949 (8th Cir. 1985)

Estella ROBERTS and Bertha Burden, Appellants,


VAN BUREN PUBLIC SCHOOLS; James R. Tate and James Starbird,

Individually and as Superintendent and Principal of Van

Buren Public Schools; Gene Neidecker, President; C.J.

Franklin, Iverson Riggs, Ray Nelson, Darral Sparkman, Dr.

Richard Darden, Otis Arnold, and Robert Daugherty,

Individually and as Members of the Board of Directors of the

Van Buren Public Schools, Appellees.

No. 84-2244.

United States Court of Appeals, Eighth Circuit

September 11, 1985

Submitted April 11, 1985.

Rehearing and Rehearing En Banc Denied Nov. 6, 1985.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Marcia Barnes, Little Rock, Ark., for appellants.

Ben Core, Fort Smith, Ark., for appellees.

Before ROSS and JOHN R. GIBSON, Circuit Judges, and COLLINSON, [*] Senior District Judge.

JOHN R. GIBSON, Circuit Judge.

Estella Roberts and Bertha Burden appeal a judgment entered on a jury verdict against them on their claim under 42 U.S.C. Sec. 1983 (1982) that the Van Buren Public Schools Board of Directors impermissibly failed to renew their teaching contracts in retaliation for their exercise of their first amendment rights. The teachers argue that the district court erred in submitting to the jury the constitutional issue of whether their conduct was protected speech. We vacate and remand on the first amendment issue as to Roberts insofar as her claim is based on certain union activities but affirm the judgment of the district court in all other respects.

Roberts and Burden were fifth-grade teachers at City Heights Elementary School in Van Buren, Arkansas. On evaluations near the end of the 1980-81 school year, Roberts' second in the district and Burden's first, school principal James Starbird rated them both "satisfactory"--the highest rating--in every category.

Later that month, however, the teachers filed with Starbird three written grievances on forms developed by the Van Buren Education Association, local affiliate of the Arkansas Education Association teachers union. Two of the grievances related to the fifth-grade trip to Little Rock, the first expressing dissatisfaction with the manner in which parental complaints concerning seating arrangements for the bus had been handled, and the second criticizing the failure of the school to provide monetary support for the trip. The third grievance pertained to the inadequacy of teaching supplies and particularly to the necessity of sacrificing Weekly Readers to obtain greater classroom allowances for other supplies. Starbird passed these grievances directly to Superintendent of Schools James R. Tate,

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who responded by directing the teachers either to meet with him to work out the problems or to present the grievances directly to the school board (for which purpose he offered to call a special meeting if they desired). When Roberts and Burden answered indicating their desire to meet, however, Tate stated that he saw no purpose in such a meeting and said he felt the grievances indicated a lack of confidence in both him and Starbird.

The next spring when Starbird completed teacher evaluations for the 1981-82 school year, he dropped Roberts' and Burden's ratings to "needs to improve" in approximately half the categories and recommended that the district not renew the contract of either. He stated as to both teachers that the grievances filed the previous spring had been responses to his attempts to work with them on their deficiencies and had accused him of incompetence and dishonesty and threatened him with legal action. He further stated as to Roberts that her efforts to recruit union members had "often attempted to create poor relations between administration and faculty, instead of cooperation for the good of the children." Plaintiff's Exhibit No. 12. Superintendent Tate, relying in part on Starbird's evaluations and comments, recommended to the Board that Roberts and Burden's contracts not be renewed, and the Board unanimously agreed.

After their requests for hearings were denied, Roberts and Burden filed this action. They allege that Starbird, Tate, and the Board, by acting in retaliation for their protected speech activities, deprived them of their rights under the first and fourteenth amendments, 1 and, in failing to bring to their attention and help remedy their teaching deficiencies, deprived them of their rights under the Teacher Fair Dismissal Act of 1979. Ark.Stat.Ann. Sec. 80-1264.6 (1980) (repealed effective July 4, 1983 2). Roberts' and Burden's motion for a preliminary injunction requiring that they be reinstated pending trial on the merits was denied, and we affirmed. Roberts v. Van Buren Public Schools, 731 F.2d 523 (8th Cir.1984).

At the subsequent trial the district court submitted to the jury the following interrogatory with respect to each teacher:

Do you find that [teacher's name] was engaged in activity protected by the First Amendment and that the protected activity was a substantial or motivating factor in any of the defendants decisions not to renew her teaching contract?

The jury answered "no" to this interrogatory with respect to both Roberts and Burden and similarly answered the interrogatory relating to the state law claim in favor of the school district. Judgment was entered consistent with these special verdicts, and after the district court denied the teachers' motions for judgment notwithstanding the verdict or a new trial, this appeal followed.


Roberts' and Burden's constitutional claims invoke the holding in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), that "[p]ublic employee[§ do] not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 1686, 75 L.Ed.2d 708 (1983). Consideration of such claims involves a three-step analysis. First, plaintiffs must demonstrate that their conduct was protected; second, plaintiffs must demonstrate that such protected conduct was a substantial or motivating factor in the adverse employment decision; and third, the employer may show that the employment action would have been taken

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even in the absence of the protected conduct. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Bowman v. Pulaski County Special School District, 723 F.2d 640, 643-44 (8th Cir.1933).

Identification of protected activity since Connick is a two-step process in itself. As a threshold matter, the speech must have addressed a "matter of public concern," 461 U.S. at 143, 146, 103 S.Ct. at 1687, 1689; see Collins v. Robinson, 568 F.Supp. 1464, 1468 (E.D.Ark.1983), aff'd per curiam, 734 F.2d 1321 (8th Cir.1984); then, the interest of the employee in so speaking must be balanced against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1735. This "Pickering balance," as it has come to be known, looks to the following factors:

(1) the need for harmony in the office or work place; (2) whether the government's responsibilities require a close working relationship to exist between the plaintiff and co-workers when the speech in question has caused or could cause the relationship to deteriorate; (3) the time, manner, and place of the speech; (4) the context in which the dispute arose; (5) the degree of public interest in the speech; and (6) whether the speech impeded the employee's ability to perform his or her duties.

Bowman, 723 F.2d at 644.

Roberts and Burden argue that the district court erred in submitting to the jury through the interrogatories the issue of whether or not the speech and activities in which they engaged were protected under the first amendment. "The inquiry into the protected status of speech is one of law, not fact." Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690 n. 7. While proper resolution of this issue, particularly as to the balancing, may involve determination by the jury of certain underlying facts, e.g., McGee v. South Pemiscot School District R-V, 712 F.2d 339, 342 (8th Cir.1983) (jury to decide whether speech created disharmony between employee and immediate supervisor); see Kim v. Coppin State College, 662 F.2d 1055, 1062, 1064 (4th Cir.1981); Schneider v. City of Atlanta, 628 F.2d 915, 919 n. 4 (5th Cir.1980), the ultimate decision is for the court. Brockell v. Norton, 732 F.2d 664, 667 (8th Cir.1984); see Czurlanis v. Albanese, 721 F.2d 98, 102, 105 (3d Cir.1983). Thus, use of the jury instruction here was...

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