Avery v. Homewood City Bd. of Ed., 80-7364
| Decision Date | 26 April 1982 |
| Docket Number | No. 80-7364,80-7364 |
| Citation | 674 F.2d 337 |
| Parties | 3 Ed. Law Rep. 506 Jean AVERY, Plaintiff-Appellant, v. HOMEWOOD CITY BOARD OF EDUCATION, et al., Defendants-Appellees. . Unit B * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gray, Seay & Langford, Montgomery, Ala., Jeremiah A. Collins, Joy Koletsky, Washington, D. C., for plaintiff-appellant.
John W. Williams, Jr., Donald B. Sweeney, Jr., Birmingham, Ala., for Homewood City Bd. of Ed.
Appeal from the United States District Court for the Northern District of Alabama.
Before MORGAN, TJOFLAT and ANDERSON, Circuit Judges.
Jean Avery brought this action in the district court, alleging that the termination of her teaching contract by the Homewood City Board of Education was unlawful. Following a bench trial, the court concluded that although one of the grounds of Avery's discharge was arguably impermissible, the presence of another, permissible, ground rendered the termination lawful. Accordingly, the court entered judgment for the defendants. The district court erred by holding that the mere presence of a permissible ground for Avery's discharge rendered the discharge lawful. On the record before it, the court was required to enter judgment for Avery. We therefore vacate the judgment of the district court and direct the entry of judgment for the plaintiff.
Jean Avery, a black woman, taught remedial reading at Shades Cahaba Elementary School in Homewood City, Alabama, from 1972 until her discharge on February 8, 1977. A written policy of the Homewood City Board of Education (the Board) required teachers who became pregnant so to inform the Superintendent of Education (the Superintendent) no later than the fourth month of pregnancy (the notice rule). In mid-November, 1976, Avery, who was not married, informed her principal that she was expecting to give birth in late December. The principal commented that Avery was in violation of the notice rule and instructed her to inform the Superintendent of her pregnancy, which Avery did.
Avery and the Superintendent, Dr. French, discussed Avery's situation in early December, 1976. According to Dr. French's testimony, he emphasized Avery's violation of the notice rule. According to Avery, Dr. French urged her to resign because of the "moral issue" of conception out of wedlock. 1
In any event, Dr. French notified Avery by letter of December 15, 1976, that the Board would meet to determine whether to cancel her contract for three reasons: insubordination, neglect of duty, and immorality. As Superintendent, Dr. French was authorized to recommend Avery's dismissal, and the three grounds stated in the December 15 letter were charges he would be bringing before the Board. As Dr. French testified, both "insubordination" and "neglect of duty" referred to Avery's violation of the notice rule, and "immorality" referred to her pregnancy out of wedlock.
On February 8, 1977, the Board voted to terminate Avery's employment immediately, and instructed Dr. French so to inform Avery. Dr. French did so by letter of February 11, 1977, specifying no reasons for the discharge. At trial, however, Dr. French, who recorded and transcribed the Board's deliberations as its secretary, testified that the reasons for the decision to dismiss Avery were the three grounds specified in the December 15 letter. The decision of the Board was affirmed by the Alabama State Tenure Committee.
Avery sued the Board, Dr. French, and the Board members (collectively appellees), alleging that her discharge violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976); Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq. (1976); 42 U.S.C. § 1981 (1976); and, because it deprived her of rights guaranteed by the equal protection and due process clauses of the fourteenth amendment, 42 U.S.C. § 1983 (1976). She sought reinstatement with back pay, tenure status, lost benefits, declaratory and injunctive relief, and attorney's fees. Underlying each legal theory in the complaint was the premise that the Board unlawfully based its decision to dismiss Avery on her immoral conception of a child out of wedlock. Avery has at no time claimed that the notice rule is unlawful either facially or as applied.
The district court found that Avery's employment had been terminated in part for immorality and acknowledged that a discharge for that reason might be unconstitutional. However, the court found that it was not necessary to reach the issue:
Immorality was only one of the grounds for termination. Defendants contend that the plaintiff's employment was also terminated on the grounds of insubordination or neglect of duty in not reporting her pregnancy. Clearly she did not comply with the school rules with respect to reporting.... The notice rule ... is reasonable, and the School Board was justified in terminating her for this refusal. That being the case, the court finds it unnecessary to reach the constitutional issue and the other issues raised by plaintiff.
The district court held in effect that, without regard to the immorality charge, Avery's dismissal was lawful because it was based in part on a permissible ground. This holding contravened the standards of proof and causation mandated by the Supreme Court for mixed-motive discharge cases such as this one. In Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), a teacher, who had previously been involved in an altercation with another teacher, an argument with school cafeteria employees, and incidents in which he swore at and made obscene gestures to students, communicated to a radio station the substance of a memorandum from his principal relating to teacher dress and appearance. The radio station announced the adoption of the dress code as a news item. Thereafter, the school board advised the teacher that he would not be rehired, citing his lack of tact in handling professional matters, with specific reference to the radio station and obscene gesture incidents. Claiming that the discharge violated his first and fourteenth amendment rights, the teacher sought reinstatement and damages in a suit against the school board. The district court concluded that the communication to the radio station was protected by the first amendment, and that because it had played a substantial part in the decision to discharge the teacher, he was entitled to reinstatement with back pay. The court of appeals affirmed. On certiorari, the Supreme Court vacated the judgment of the court of appeals and remanded the case.
The Court concluded that the fact that constitutionally protected conduct played a substantial part in the termination decision did not necessarily indicate a constitutional violation justifying remedial action. 429 U.S. at 285, 97 S.Ct. at 575. Rather, the proper test would protect against the invasion of constitutional rights without commanding consequences not necessary to the assurance of those rights:
Initially, ... the burden was properly placed upon (the plaintiff) to show that his conduct was constitutionally protected, and that this conduct was a "substantial factor"-or to put it in other words, that it was a "motivating factor" in the Board's decision not to rehire him. (Plaintiff) having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to (plaintiff's) reemployment even in the absence of the protected conduct.
Id. at 287, 97 S.Ct. at 576 (footnote omitted).
The framework of proof established in Mt. Healthy applies to Avery's constitutional claims. 2 The burden was initially on Avery to show that her conduct was constitutionally protected and was a substantial or a motivating factor in the Board's decision to discharge her. We assume, arguendo, that Avery's out of wedlock pregnancy was constitutionally protected. The district court found that the pregnancy was one of the reasons for Avery's discharge; the appellees did not dispute at trial that a motivating factor in Avery's discharge was immorality, and do not challenge the district court's finding to that effect on appeal.
Having found that Avery had carried her initial burden, the district court should have gone on to determine whether the appellees had proven by a preponderance of the evidence that they would have discharged Avery even in the absence of her out of wedlock pregnancy. Since the court instead held that the other, unchallenged, ground for Avery's dismissal rendered the Board's decision lawful, the district court's judgment must be vacated.
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