Ward v. Hickey

• Decision Date: 31 August 1990
• Docket Number: Civ. A. No. 82-3510-N.
• Citation: 781 F. Supp. 63
• Parties: Toby Klang WARD, Plaintiff, v. Carol A. HICKEY, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

781 F. Supp. 63

Toby Klang WARD, Plaintiff, v. Carol A. HICKEY, et al., Defendants.

Civ. A. No. 82-3510-N.

United States District Court, D. Massachusetts.

August 31, 1990.

Americo A. Salini, Jr., c/o Mass. Teachers Ass'n, Boston, Mass., for plaintiff.

Andrew J. McElaney, Nutter McClennen & Fish, Devra Balin, David C. Hawkins, Withington, Cross, Park & Groden, Boston, Mass., for defendants.

ORDER

DAVID S. NELSON, District Judge.

Pursuant to the Court's order of reference and upon consideration of a motion for reconsideration filed by the individual defendants named in this action in response to an earlier report and recommendation, Magistrate Collings issued an "Amended Report and Recommendation on Motion of Defendant School Committee to Dismiss Amended Complaint (# 08) and Motion of the Defendants' sic Hickey, Gibson and Tinkham to Dismiss Amended Complaint (# 11)" dated November 16, 1989 ("Amended Report on Motions to Dismiss"). The parties subsequently filed objections, responses and replies in connection with the Amended Report on Motions to Dismiss. In addition, Magistrate Collings issued a "Memorandum and Order on Plaintiff's Motions to Compel Margaret Gibson and Mary M. Tinkham, Defendants, to Answer Deposition Questions Relative to the Identity of Individuals (## 31 & 32)" dated November 21, 1989 ("Order on Motions to Compel"). The parties subsequently filed objections and responses in connection with the Order on Motions to Compel.

Upon de novo review of the parties' submissions in connection with the defendants' motion to dismiss, the Court reaches findings and conclusions consistent with those set forth in the Amended Report on Motions to Dismiss and therefore adopts the magistrate's recommendations contained therein. Moreover, upon review of the plaintiff's motions to compel, the Court finds that the Order on Motions to Compel is not clearly erroneous in fact or contrary to law. Accordingly, for the reasons set forth in the Amended Report on Motions to Dismiss and Order on Motions to Compel, the Court enters the following order:

A. Counts II, III, IV and V of the Amended Complaint are dismissed as to all defendants;

B. Count I of the Amended Complaint, as drafted, is dismissed as to defendant The School Committee of the Town of Belmont;

C. The plaintiff is granted leave to file and serve a second amended complaint containing allegations which state a claim against the School Committee for deprivation of the plaintiff's First Amendment rights in denying her re-appointment and tenure based on her discussion of abortions, reproduction and Proposition 2½ in the classroom and for deprivation of her right not to be denied re-appointment and tenure based on her discussion of abortions, reproduction and Proposition 2½ in the classroom without prior notification that such conduct was not permissible;

D. Summary judgment shall be entered in favor of the defendant Margaret Gibson on the claim contained in Count I that she voted not to re-appoint the plaintiff and thereby not to grant the plaintiff tenure in retaliation for the letter that the plaintiff wrote to the editor of the local newspaper in 1980;

E. Summary judgment shall be entered for the defendants Hickey, Gibson and Tinkham on the claim contained in Count I that they violated the plaintiff's First Amendment rights in voting not to re-appoint the plaintiff and thereby not to grant the plaintiff tenure on the basis of her discussion of abortions, reproduction and Proposition 2½ in the classroom;

F. The plaintiff is granted leave to file and serve a second amended complaint containing allegations which state a claim that the defendants Hickey, Gibson and Tinkham violated the plaintiff's constitutional rights in voting not to re-appoint the plaintiff and thereby not to grant the plaintiff tenure on the basis of her discussion of abortions, reproduction and Proposition 2½ in the classroom without giving her notice that discussing such topics in the classroom was not permissible;

G. The Court declines to vacate or modify Magistrate Collings' Order on Motions to Compel.

SO ORDERED.

AMENDED REPORT AND RECOMMENDATION ON MOTION OF DEFENDANT SCHOOL COMMITTEE TO DISMISS AMENDED COMPLAINT (# 08) AND MOTION OF THE DEFENDANTS' SIC HICKEY, GIBSON AND TINKHAM TO DISMISS AMENDED COMPLAINT (# 11)

ROBERT B. COLLINGS, United States Magistrate Judge.

INTRODUCTION

The plaintiff Toby Klang Ward was hired on an annual basis for three consecutive school years, 1979-1980, 1980-1981 and 1981-1982, as a full time teacher at the Belmont High School. In June of 1982, the Belmont School Committee voted not to reappoint Mrs. Ward as a teacher for the upcoming school year, and consequently denied her tenure in the Belmont School system. Mrs. Ward has commenced this action against the Belmont School Committee and its three members who voted against her reappointment. She seeks injunctive, declaratory and compensatory relief.

A SUMMARY OF THE AMENDED COMPLAINT

Count I of the plaintiff's five-count amended complaint alleges a cause of action for a deprivation of her First Amendment rights in violation of 42 U.S.C. § 1983. Count II, a claim containing allegations of conspiracies by the defendants to discriminate against Mrs. Ward because of her exercise of her First and Fourteenth Amendment rights, all in violation of 42 U.S.C. § 1985, has been withdrawn by the plaintiff.¹ Count III alleges that by their acts, omissions and conduct the defendants denied the plaintiff due process and equal protection under the Fourteenth Amendment and 42 U.S.C. § 1983. Count IV of the amended complaint is a pendant state claim for wrongful termination. Count V, another pendant state claim, has been voluntarily dismissed by the plaintiff.²

THE MOTIONS TO DISMISS

In separate motions, the Belmont School Committee and the three defendants, Carol A. Hickey, Margaret Gibson and Mary M. Tinkham, who have been named both individually and in their official capacities, have moved to dismiss the amended complaint for failure to state a claim upon which relief can be granted. Due to the various independent legal arguments upon which these two motions are predicated, they will be treated separately in this discussion.

In evaluating the merit of a motion to dismiss, the Court assumes that all the material allegations set forth in the complaint are true. Jenkins v. McKeithen, 395 U.S. 411, 421-422, 89 S.Ct. 1843, 1848-1849, 23 L.Ed.2d 404 (1969); O'Brien v. DiGrazia, 544 F.2d 543, 545 (1 Cir., 1976), denied sub nom O'Brien v. Jordan, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). The averments of the complaint, as well as the proper inferences arising therefrom, are liberally construed in favor of the plaintiff and will not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief." Conley v. Gibson, 355 U.S. 41, 45-56, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

PLAINTIFF'S FACTUAL ALLEGATIONS

In her amended complaint, the plaintiff alleges that the School Committee of the Town of Belmont is a public body responsible under law for the administration of the public schools of the town. (Para. 4) The individually-named defendants are duly elected members of the School Committee. (Para. 5-7) At all times germane to the complaint, the plaintiff alleges that all the defendants "acted under color of the statutes, customs, ordinances, and usage of the State of Massachusetts, the Town of Belmont and the Belmont School Committee." (Para. 8)

With respect to the nature of her action, Mrs. Ward avers that she was appointed as a full time high school science teacher in the Belmont Public Schools during the school years 1979-1980, 1980-1981 and 1981-1982. (Para. 9, 12 and 15) During the course of each of these three school years, Mrs. Ward's teaching performance was evaluated as excellent, and she was recommended for reappointment for the subsequent school year. (Para. 11, 14 and 17) The recommendation that Mrs. Ward be re-elected with tenure in May of 1982 was first tabled by the Belmont School Committee upon the motion of Carol A. Hickey, and ultimately voted down by the School Committee in June of 1982. (Para. 18, 19 and 20) The vote denying the plaintiff reappointment with tenure was a three-to-three tie with defendants Hickey, Gibson and Tinkham voting against the recommendation. (Para. 20 and 22)

During the interim period between the initial tabling of the recommendation in May and the vote in June, the plaintiff alleges upon information and belief that either defendant Gibson or the School Committee requested that a member of the administrative staff investigate some "concerns" that the Committee had with respect to the plaintiff's teaching performance. (Para. 23) The plaintiff contends that these "concerns" involved her discussion of abortion, reproduction and Proposition 2½ in classes with her students. (Para. 24 and 26) Mrs. Ward claims that she was never on notice from the School Committee that the discussion of these subjects in the classroom was inappropriate. (Para. 27) Further, she alleges upon information and belief that the defendants retaliated against her for discussing abortion, reproduction and Proposition 2½ by voting against her reappointment with tenure. (Para. 25)

Mrs. Ward also makes specific allegations against two of the three individually-named defendants, Margaret Gibson and Carol A. Hickey. She alleges that in the Spring or early Summer of 1980, Mrs. Gibson made a statement about widespread teacher absences on Mondays and Fridays wondering whether they were related to a hidden alcohol problem among the faculty. (Para. 28) Mrs. Ward submitted a letter opposing Mrs. Gibson's allegations to the local newspaper. (Para. 29) The plaintiff claims that Mrs. Gibson was aware of her rebuttal letter and as a result retaliated against her by voting not to reappoint her with tenure in June...