Piver v. Pender County Bd. of Educ.

• Citation: 835 F.2d 1076
• Decision Date: 22 December 1987
• Docket Number: No. 87-2536,87-2536
• Parties: 43 Ed. Law Rep. 908, 2 Indiv.Empl.Rts.Cas. 1382 Edwin G. PIVER, Plaintiff-Appellant, v. PENDER COUNTY BOARD OF EDUCATION; Billy O. Rivenbark; Wilbert Henry; Charles F. Sidbury; J.J. Smith; R.E. Brown individually and as a member of the Pender County Board of Education; M.D. James, individually and as Superintendent of Schools of Pender County, Defendants-Appellees, Pender County Schools, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1076

835 F.2d 1076

43 Ed. Law Rep. 908, 2 Indiv.Empl.Rts.Cas. 1382

Edwin G. PIVER, Plaintiff-Appellant, v. PENDER COUNTY BOARD OF EDUCATION; Billy O. Rivenbark Wilbert Henry; Charles F. Sidbury; J.J. Smith; R.E. Brown individually and as a member of the Pender County Board of Education; M.D. James, individually and as Superintendent of Schools of Pender County, Defendants-Appellees Pender County Schools, Defendant.

No. 87-2536.

United States Court of Appeals Fourth Circuit.

Argued July 2, 1987.

Decided Dec. 22, 1987.

William Robert Shell, Wilmington, N.C., for plaintiff-appellant.

Richard Allen Schwartz (Tharrington, Smith & Hargrove, Raleigh, N.C., on brief), for defendants-appellees.

Before PHILLIPS, ERVIN, and WILKINSON, Circuit Judges.

ERVIN, Circuit Judge:

This action for damages under 42 U.S.C. Sec. 1983 (1982) was brought by a high school teacher who spoke out in support of tenure for his principal. The principal was later discharged, and the teacher was reassigned to a junior high school some forty miles from his home. The transfer never took place, however, because the teacher signed a statement of support for his new principal and the school board gave him back his original job. The teacher nevertheless sued, arguing that the state had taken adverse action against him because of the exercise of his first amendment right of free speech. The district court granted summary judgment for the defendants on the theory that the content of the teacher's speech was not a matter of public concern, and hence was not constitutionally protected. We reverse on that issue: the speech concerned matters of central importance to the public. We remand for consideration whether the teacher compromised and settled his claim against the defendants by signing the statement and returning to his original job.

I.

Plaintiff-appellant Piver is a career social studies teacher employed by the defendant Pender County Board of Education (hereafter "the school board"). Piver worked at all times relevant to this action at the Topsail High School. In April, 1982, by a vote of four to one, the school board elected not to renew the contract of R.J. Jourdan, the principal at Topsail High School. The issue of Jourdan's contract had been the topic of extensive discussion at the high school prior to the school board's decision. Piver, along with several other faculty members, supported Jourdan. The chairman of the school board, J.J. Smith, was in favor of refusing to renew Jourdan's contract. Smith and Piver were related by marriage.

Piver spoke on behalf of Jourdan and the other teachers who favored Jourdan at a public meeting in April, 1982, before the school board vote. The meeting was called for the purpose of soliciting comments on Jourdan's tenure decision. After the school board decided not to renew Jourdan's contract, Piver joined with other faculty and community members to urge the school board to reverse its decision. He also allowed discussion of the issue and the circulation of a petition in support of Jourdan in his classroom. The school board, however, persisted in refusing to renew Jourdan's contract.

In June, 1982, a non-partisan election was held in Topsail Beach for the school board. Three incumbents ran for office, including chairman Smith. The record reveals that Piver himself, while personally opposed to the two incumbents who voted against Jourdan, did not participate in any campaigns against the incumbents. Piver's wife, however, actively campaigned on behalf of the challengers. The two incumbents who voted against Jourdan's reappointment, including chairman Smith, were defeated.

In July, 1982, Piver was reassigned by the school board, still headed by the lame duck chairman Smith, to a junior high school located approximately forty miles from his home. The school board members explained to Piver that they were concerned that he had been engaging in activities that were divisive and disruptive for the students during the controversy over Jourdan's contract. Piver filed a grievance and asked that the transfer be rescinded. In August, 1982, Piver reached an agreement with the school board whereby he remained at Topsail High School in exchange for signing a statement of support for the new principal at Topsail. ¹ The statement that was ultimately signed was the product of negotiations between Piver's attorney and counsel for the school board. Piver's attorney ² testified that Piver understood the statement to be an alternative to remaining at the distant junior high school and filing suit against the school board. The attorney, in a deposition, appeared to assert that Piver was given his old job in consideration for signing the statement.

Approximately one year later, Piver retained different counsel for the purpose of having the statement of support removed from his personnel file. The school board agreed to remove the statement. In 1986, Piver retained his current counsel and filed suit against the school board, several individual members of the school board, and the superintendent of schools. The suit sought damages under 42 U.S.C. Sec. 1983 (1982) for violation of Piver's rights under the first and fourteenth amendments to the United States Constitution, for violation of the equal protection clause of the fourteenth amendment to the United States Constitution, and for conspiracy to violate his constitutional rights under 42 U.S.C. Sec. 1985(3) (1982). The claims against the Pender County Schools, the equal protection claim, and the conspiracy claim were dismissed by the district court pursuant to Fed.R.Civ.P. 12(b)(6). The district court later granted summary judgment for the defendants on Piver's claims under Sec. 1983 and the first and fourteenth amendments. It is from that summary judgment that Piver appeals.

II.

When a public employee claims to have suffered discrimination because of the employee's exercise of rights guaranteed by the first amendment to the United States Constitution, a court reviewing that claim must pursue a two-step analysis. First, the court inquires whether, as a matter of law, the speech was constitutionally protected. Speech is constitutionally protected only if it relates to matters of public concern, see Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983), and if the interests of the speaker and the community in the speech outweigh the interests of the employer in maintaining an efficient workplace. See Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

A.

Speech that cannot "be fairly considered as relating to any matter of political, social, or other concern to the community," Connick, 61 U.S. at 146, 103 S.Ct. at 1689, or that concerns "matters bounded by [one's] immediate self-interest," Lewis v. Blackburn, 734 F.2d 1000, 1012 (4th Cir.1984) (Ervin, J., dissenting) (dissenting opinion adopted by court en banc, 759 F.2d 1171 (4th Cir.1985)), is not of public concern and therefore not protected by the first amendment. The district court, reading Lewis for the proposition that "disputes relating to personnel matters, such as the decision to grant tenure to a principal, have been held to be matters of private rather than public concern," held that Piver's speech was unprotected.

In Pickering, the Court held impermissible under the first amendment the dismissal of a high school teacher for openly criticizing the Board of Education for its allocation of school funds between athletics and academics and its methods of informing taxpayers about the need for additional revenue. The Court said that "free and open debate" about whether a school system requires additional funds "is vital to informed decision-making by the electorate." Pickering, 391 U.S. at 571-72, 88 S.Ct. at 1736. A teacher in a state college system who testified before committees of the legislature and became involved in a debate over changing his college to four-year status was engaged in speech that raised public concerns. See Perry v. Sindermann, 408 U.S. 593, 598, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972). A teacher who relayed to a radio station the substance of a memorandum relating to teacher dress and appearance that the principal had circulated to various teachers was also engaged in speech involving a matter of public concern. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, at 284, 97 S.Ct. 568, at 574, 50 L.Ed.2d 471 (1977); see also Lewis v. Harrison School District No. 1, 805 F.2d 310 (8th Cir.1986) (school principal's speech to school board involving proposed transfer of his wife, an English teacher, involved issues of public concern), cert. denied, --- U.S. ----, 107 S.Ct. 2481, 96 L.Ed.2d 374 (1987); Wren v. Spurlock, 798 F.2d 1313, 1317 (10th Cir.1986) (teacher's filing of grievances against principal involved topics of public concern), cert. denied, --- U.S. ----, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987).

The Connick Court established that the test for the existence of speech on matters of public concern involves inquiry into the "content, form and context" of a given statement. 461 U.S. at 147-48, 103 S.Ct. at 1690. Connick did not hold that speech relating to employment grievances is always a personal matter; such a view would conflict with the Court's commitment to case-by-case balancing. See Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415 n. 4, 99 S.Ct. 693, 696 n. 4, 58 L.Ed.2d 619 (1979) (criticism in private of the public employer's allegedly racially discriminatory policies can be of "public concern"); see also McKinley v. City of Eloy, 705 F.2d 1110, 1114-15 (9th Cir.1983) (policeman who was fired because of speech dealing with pay for city's police force raised a "public concern"); Collins v. Robinson, 568 F.Supp. 1464, 1468 (E.D.Ark.1983) (policeman fired for writing a memo to his sheriff that criticized the behavior of the policeman's immediate superior held to have...