Hesse v. Board of Educ. of Tp. High School Dist. No. 211, Cook County, Ill.

Citation848 F.2d 748
Decision Date09 September 1988
Docket NumberNo. 87-1522,87-1522
Parties47 Ed. Law Rep. 88 David HESSE, Plaintiff-Appellee, v. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT NO. 211, COOK COUNTY, ILLINOIS, Robert Creek, Anna Countryman, Anne Koller, Joseph Marchiori, James Rogers, Robert Seger, Richard C. Kolze and Jack Gaza, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

John H. Hager, Hager & Collins, Chicago, Ill., for defendants-appellants.

Marilyn F. Longwell, Kerr & Longwell, Chicago, Ill., for plaintiff-appellee.

Before FLAUM and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

David Hesse, plaintiff-appellee, prevailed in a jury trial on his claim filed under 42 U.S.C. Sec. 1983 for alleged abridgments of his rights under the First and Fourteenth Amendments to the United States Constitution. The defendants in this action are the Board of Education of Township High School in Cook County, Illinois, the seven individual members of the Board, the superintendent of the Township High School District and the principal of Schaumburg High School. The plaintiff asserted jurisdiction in the district court on the basis of 28 U.S.C. Secs. 1331 and 1343. We have jurisdiction to review the final judgment under 28 U.S.C. Sec. 1291. Hesse sought both damages and equitable relief, alleging that the defendants took adverse retaliatory job action against him as a result of the exercise of his right to freedom of expression.

The appellants challenge the verdict on several grounds. They claim that: 1) the plaintiff's statements did not involve matters of public concern because of their personal content; 2) that even if the plaintiff's statements did involve a matter of public concern, the defendants' interest in maintaining discipline, harmony and efficiency in the public education system outweighed the plaintiff's interest as a citizen in making such statements; 3) that the instructions to the jury were in error; 4) that the job action taken would have occurred irrespective of the plaintiff's expressions; 5) that certain expert testimony should not have been admitted; and 6) that the verdict was excessive in amount. Initially, we dismissed the first appeal of this case because judgment on the jury verdict for damages had left unresolved the plaintiff's claim for equitable relief, but the district court subsequently entered equitable relief for the plaintiff. We will reverse the judgment of the district court and remand with instructions to enter judgment for all the defendants 1 and against the plaintiff.

I

Hesse has taught at schools in the defendants' school district since 1972, and is a tenured teacher. He teaches classes in both art and photography. Between 1972 and 1985, Hesse taught at Schaumburg High School. During the 1985-86 school year, Hesse served as a traveling teacher between Hoffman Estates High School and Palatine High School. This transfer to a traveling teacher status for one year underlies the plaintiff's contentions that the defendants took adverse job action against him to retaliate for his expressions on matters of public concern and interest. In addition to this transfer, the plaintiff alleges that the defendants harassed him by requiring him to submit his daily lesson plans to them, forcing him to undergo more classroom evaluations than other teachers, and manipulating his 1984-85 teaching schedule to make it less desirable to him. However, the plaintiff does not complain that any of the job action taken resulted in a diminution of his salary.

As far back as 1978, Hesse's teaching evaluations contained criticisms of his performance. They contained criticisms of his grading policies, of the lack of motivation of his students, of his inability to maintain student discipline and similar matters. For instance, we note from the record that an evaluation dated December 8, 1978 indicated that 93% of the plaintiff's students in Photography I received D's and F's that term. Numerous other evaluations contained negative ratings based on inadequacies in the plaintiff's performance. Not all of Hesse's evaluations were negative, however. Good and even excellent performance ratings were interspersed throughout the evaluations. Nevertheless, the record is clear that the negative evaluations created within Hesse a deep sense of personal animosity toward his superiors, a bitterness evidenced by his personal attacks against these various school officials in the many memoranda that he wrote to them. These memoranda were often sarcastic, unprofessional and insulting in nature. While some of them did criticize school rules or policies, most of the criticisms were not voiced out of a concern for the public. Instead, they merely defended the plaintiff's personal teaching methods.

The plaintiff's personnel record with the school district is replete with evidence of Hesse's personal animosity toward the school officials, and its ultimate disruption to the school environment. Aside from his many rancorous memoranda reacting to his poor evaluations, Hesse's personnel record details several unprofessional displays of hostility. As an example, in one month the plaintiff referred an unprecedented 42 students to the administration for disciplinary action. In another incident, Hesse threw a temper tantrum in class before his students. The plaintiff's behavior at a March 2, 1984 faculty symposium held at Schaumburg High School, a meeting all teachers were required to attend, exemplifies the plaintiff's disruptive hostility. At the request of the guest speaker, several rows of seats in the back of the hall had been taped off in order to move the audience forward for enhanced visibility and audibility. Resentful of this procedure and apparently of the entire meeting itself, Hesse sat down in the taped area and invited other teachers to follow suit. During the speaker's question and answer session, Hesse embarrassed the other teachers by asking the guest speaker pointed questions pertaining to Hesse's conflicts with the school administration, but unrelated to the speaker's topic. Following this incident, the school principal sent Hesse a memorandum reprimanding him for his behavior at the symposium. In response, Hesse sent back a sarcastic memorandum attacking the school officials, and containing insulting suggestions.

On June 1, 1984, the school board sent the plaintiff a request to undergo psychiatric examination. On the same day, the plaintiff was also given a "Notice to Remedy," which under Illinois law is an early step in the process which may lead to the dismissal of a tenured teacher. However, the request for psychiatric examination was later withdrawn at the request of plaintiff's counsel.

For the 1985-86 school term, the plaintiff was assigned to serve as a teacher traveling between Hoffman Estates High School and Palatine High School. While the defendants contend that this assignment was necessary because only two of Schaumburg High School's four art teachers were qualified to teach photography, it is this assignment which the plaintiff primarily relies upon as constituting retaliatory adverse employment action taken against him by the defendants.

II

In analyzing the constitutional protection to be accorded Hesse's speech, we must first determine whether the context, content and form of Hesse's statements as revealed by the record as a whole indicate that they were on a matter of public concern. See Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). The district court instructed the jury that the "plaintiff's statements on the subject of grading and student discipline policies and teacher evaluation procedures constitute speech on matters of public concern and are therefore entitled to constitutional protection." We have considered the plaintiff's expressions from the standpoint of their content, form and context as revealed by the entire record, and have carefully examined all of the various memoranda sent by the plaintiff to the defendants. As a matter of law, we can only conclude that but one of Hesse's memoranda arguably related to a matter of public concern. 2 In the context of this case, we hold that the jury instruction constituted prejudicial error.

With the exception noted above and hereinafter described, each of Hesse's memoranda dealt primarily with matters of personal interest to the plaintiff. Under these circumstances, we are not at liberty to review the wisdom of the personnel decision made by the defendants in this case. As the Supreme Court stated in Connick: "We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Id. at 147, 103 S.Ct. at 1690. While it cannot be gainsaid that educational policies in a public school are matters of public concern, all but one of the plaintiff's memoranda and statements were directed to the defense of his personal teaching methods and his resentment of the evaluations and criticisms of those methods. "To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark--and certainly every criticism directed at a public official--would plant the seed of a constitutional case." Id. at 149, 103 S.Ct. at 1691.

Even though some of Hesse's memoranda tangentially included general references to public education, an analysis of each memorandum clearly indicates that the memoranda themselves were not intrinsically on a matter of public concern. This Court has noted that "there is a difference between criticism...

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