Allen v. Denver Public School Bd.

• Decision Date: 26 March 1991
• Docket Number: Nos. 89-1331,89-1339,s. 89-1331
• Citation: 928 F.2d 978
• Parties: 55 Fair Empl.Prac.Cas. 715, 56 Empl. Prac. Dec. P 40,654, 66 Ed. Law Rep. 597 Isabella E. ALLEN, Plaintiff-Appellant, v. DENVER PUBLIC SCHOOL BOARD; Robert Baker, individually and in his capacity as principal of John F. Kennedy High School, Defendants-Appellees. Isabella E. ALLEN, Plaintiff-Appellee, v. DENVER PUBLIC SCHOOL BOARD, Defendant, and Robert Baker, individually and in his capacity as principal of John F. Kennedy High School, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 978

928 F.2d 978

55 Fair Empl.Prac.Cas. 715,

56 Empl. Prac. Dec. P 40,654, 66 Ed. Law Rep. 597

Isabella E. ALLEN, Plaintiff-Appellant, v. DENVER PUBLIC SCHOOL BOARD; Robert Baker, individually and

in his capacity as principal of John F. Kennedy

High School, Defendants-Appellees.

Isabella E. ALLEN, Plaintiff-Appellee, v. DENVER PUBLIC SCHOOL BOARD, Defendant, and Robert Baker, individually and in his capacity as principal

of John F. Kennedy High School, Defendant-Appellant.

Nos. 89-1331, 89-1339.

United States Court of Appeals Tenth Circuit.

March 26, 1991.

Penfield W. Tate, II of Trimble, Tate & Nulan, P.C., Denver, Colo., for plaintiff-appellant.

Martin Semple, Dwight L. Pringle of Semple & Jackson, P.C., for defendants-appellees.

Before McKAY, McWILLIAMS, and EBEL, Circuit Judges.

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cases are therefore ordered submitted without oral argument.

Plaintiff Isabella Allen appeals from various rulings of the district court dismissing civil rights claims she brought pursuant to 42 U.S.C. Secs. 1981 and 1983 and 42 U.S.C. Sec. 2000e et seq. (Title VII). Defendants Denver Public School Board (Board) and Robert Baker cross appeal on the issue of attorney's fees. We affirm the district court in all respects.

I.

Isabella Allen was hired as a teacher for the Denver Public School System in 1971. She later became certified as a guidance counselor and was assigned to various schools in the system. In 1984, she was assigned to John F. Kennedy Senior High School (JFK). While at JFK, Allen was a general guidance counselor. She remained in this position until June 1987, when she was placed on paid leave pending an investigation into criminal charges filed against her. She was officially terminated on September 15, 1988. From early 1985 through June 1987, defendant Robert Baker was the principal at JFK.

Sometime in 1986, two positions for "college" and "career" guidance counselors opened up at JFK. Although these positions did not carry additional salary or benefits, they were regarded as more prestigious and involved additional responsibilities. Allen approached the principal and assistant principal about obtaining one of the positions, but she did not submit a formal application. The jobs were not formally posted in the school system. White males were chosen for both positions.

In December 1986, Allen was placed on a three-day paid administrative leave after she allegedly helped a student conceal a knife following a hallway altercation in which she intervened. JFK had a school policy which required expulsion for bringing weapons to school. According to JFK officials, Allen denied a knife was involved. As a result of the suspension, Allen filed a grievance with the Denver Classroom Teacher's Association alleging Baker wrongly disciplined her. She also filed a discrimination claim with the Colorado Civil Rights Division and the Equal Employment Opportunities Commission (EEOC) asserting, inter alia, that Baker harassed her and discriminated against her in suspending her and failing to promote her to career guidance counselor.

In addition to her school duties, Allen also maintained a private consulting service. In June 1987, she was named in a twelve-count felony indictment alleging she defrauded the federal Medicaid program by filing false information and overcharging her Medicaid claims. Specifically, Allen represented that she had a doctorate degree when, in fact, she had dropped out of the program. Allen eventually pleaded guilty to three misdemeanor counts of offering false instruments.

As a result of these charges, the Board initiated dismissal proceedings under Colo.Rev.Stat. Sec. 22-63-101 (Tenure Act). An administrative law judge heard the case and recommended retaining Allen despite his finding that she was guilty of the misdemeanor charges. The Board rejected this recommendation and dismissed Allen under the "immorality" and "other good and just cause" provisions of the Tenure Act. See Colo.Rev.Stat. Sec. 22-63-116. The Colorado Court of Appeals subsequently affirmed this ruling. ¹ Throughout this action, the Board has maintained it terminated Allen because of the fraud charges.

Allen filed suit in April of 1988, asserting claims under 42 U.S.C. Secs. 1981 and 1983. She also brought a claim under Title VII. The district court initially dismissed Allen's section 1981 and 1983 claims pursuant to Fed.R.Civ.P. 12(b)(6) because they did not provide a factual basis which was independent of the Title VII claim. Allen then amended her complaint to broaden her bases for relief, including for the first time a wrongful termination claim. Upon defendants' motion, the court again dismissed the section 1983 claim, but allowed the section 1981 claim. After discovery was completed, defendants filed a motion for summary judgment on the remaining claims. The court granted this motion on October 4, 1989.

On appeal, Allen argues the district court erred in dismissing her section 1983 action for failure to state a claim under Fed.R.Civ.P. 12(b)(6). She also asserts factual issues preclude the entry of summary judgment on the Title VII and section 1981 claims. The Board and Robert Baker cross appeal, asserting they are entitled to attorney's fees under 42 U.S.C. Sec. 1988. We affirm.

II.

The district court dismissed Allen's section 1983 claim on two separate occasions. First, it ruled Title VII precluded the claim because it was based only on a violation of that statute, rather than some other federal constitutional right. Rec. Vol. I at doc. 17 p. 11. After Allen amended the claim to include a fourteenth amendment violation, the court held that although Allen had cured the earlier defect, the claim was still fatally flawed because no independent liberty interest was implicated. Rec. Vol. I doc. 24 pp. 2-3. It appears Allen challenges both these rulings. We must affirm the district court if " 'it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.' " Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1266 (10th Cir.1989) (quoting Shoultz v. Monfort of Colo., Inc., 754 F.2d 318, 321 (10th Cir.1985), cert. denied, 475 U.S. 1044, 106 S.Ct. 1259, 89 L.Ed.2d 569 (1986) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).

The district court correctly held that section 1983 cannot be used to assert the violation of rights created only by Title VII. Polson v. Davis, 895 F.2d 705, 710 (10th Cir.1990). Allen's original section 1983 claim only alleged a violation of Title VII rights. It did not allege a violation of any other constitutional right. ² Therefore, it was properly dismissed.

In her second amended complaint, Allen alleged the following violation of section 1983:

The right to gainful employment is a federal constitutionally protected right. The loss of reputation and esteem in her community is also guarded in the Fourteenth Amendment to the U.S. Constitution. That the acts and conducts of the Defendants complained of above were taken by reason of Plaintiff's race and/or sex and were done under color of state and local laws, customs and authorities and were taken specifically to deprive Plaintiff of those rights. The actions complained of resulted in a deprivation of property rights and immunities as secured by the Fourteenth Amendment to the United States Constitution and as protected by Title 42 U.S.C. Sec. 1983.

Rec. Vol. I doc. 19. (Emphasis added.)

To the extent this claim attempts to allege a liberty interest, it is necessary that the alleged stigmatization be entangled with some further interest, such as the ability to obtain future employment. Melton v. City of Oklahoma City, 928 F.2d 920, 926-927 (10th Cir.1991); Paul v. Davis, 424 U.S. 693, 701, 709-10, 96 S.Ct. 1155, 1160, 1164-65, 47 L.Ed.2d 405 (1976); see also McGhee v. Draper, 639 F.2d 639, 643 (10th Cir.1981) ("[S]tigmatization or reputational damage alone, no matter how egregious, is not sufficient to support a Sec. 1983 cause of action."). Only where the stigmatization results in the inability to obtain other employment does this type of claim rise to a constitutional level. Colaizzi v. Walker, 812 F.2d 304, 307 (7th Cir.1987).

In Colaizzi, the Seventh Circuit stated:

To understand the tort you must go back to its origins in cases where public employees were fired for suspected Communist sympathies. In the atmosphere of those times, employees fired on such grounds found it difficult to land equally responsible jobs, public or private. The circumstances of discharge, at least if they were publicly stated, had the effect of blacklisting the employee from employment in comparable jobs. If a state or the federal government formally banned a person from a whole category of employment, it would be infringing liberty of occupation--a component of the liberty that the due process clauses of the Fifth and Fourteenth Amendment protect, and recognized as such almost since the beginning of this nation.

Id. (Citations omitted.)

Absent this further "occupational" interest, the stigmatization claim does not rise to a federal level and is best pursued under state tort law. See Davis, 424 U.S. at 710-12, 96 S.Ct. at 1165-66; McGhee, 639 F.2d at 643. Here, Allen has made no claim that her future employment is restricted or that she was harmed through the public dissemination of information regarding her termination. As a consequence, we affirm the district court on this issue. ³

III.

The district court granted summary judgment in favor of the Board and Baker on Allen's remaining section 1981 and Title VII claims. We review the granting of a motion for summary judgment in the same manner as the district court. Abercrombie v....