Burns v. Rovaldi

• Decision Date: 28 August 1979
• Docket Number: Civ. No. H-76-19.
• Citation: 477 F. Supp. 270
• Court: U.S. District Court — District of Connecticut
• Parties: Philip H. BURNS v. Robert ROVALDI et al.

477 F. Supp. 270

Philip H. BURNS v. Robert ROVALDI et al.

Civ. No. H-76-19.

United States District Court, D. Connecticut.

February 27, 1979.

On the Merits August 28, 1979.

Eugene N. Sosnoff, Sosnoff, Cooper & Whitney, New Haven, Conn., for plaintiff.

William R. Connon, Thomas N. Sullivan, Sullivan, Lettick & Schoen, Hartford, Conn., for defendants.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

BLUMENFELD, District Judge.

The plaintiff Philip Burns was a tenured fifth grade teacher in the Plainfield school system until December 17, 1975, when his employment contract was terminated by a vote of the Plainfield Board of Education (the Board). Prior to the action of the Board, he was given specifications of the charges on which the termination was to be considered and a full public hearing before a quorum of the Board. He was represented at that hearing by himself and by his brother as counsel. Instead of taking an appeal to the Court of Common Pleas for review of the Board's decision, as provided for by Conn. Gen. Stat. § 10-151(f), he brought this action for a declaratory judgment, preliminary and permanent injunction, compensatory and punitive damages, and other equitable relief.

Plaintiff Burns alleges that the Board's termination of his contract was impermissibly based on his exercise of his first amendment rights, and also that the Board's decision violated both procedural and substantive rights of due process guaranteed him by the fourteenth amendment. Upon those allegations he invokes the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343(3), as the basis for jurisdiction in this court. The individual defendants, allegedly acting under color of state law, are sued in their official, as well as individual, capacities. See Dunham v. Crosby, 435 F.2d 1177, 1181 n. 3 (1st Cir. 1970). Thus, since the defendants allegedly deprived the plaintiff of his constitutional rights, the "two elements that are necessary for recovery" in an action based on 42 U.S.C. § 1983 are present. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). The defendants, who are members of the school board, challenge jurisdiction over them on the ground that they were acting only as a Board of Education. Building on that premise, they further contend that a school board is not a "person" amenable to suit under 42 U.S.C. § 1983. While that contention once had some support, see Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court has recently held that its reasoning is not applicable to school boards. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

This case now comes before the court on cross-motions for summary judgment. A motion for a preliminary injunction, previously filed by the plaintiff, was denied after a hearing in January of 1976. A hearing on the motions for summary judgment was held on November 13, 1978. It is to those motions I now turn.

The First Amendment Issue

Although there were three separate charges lodged against the plaintiff in the termination hearing before the Board, the principal one was based on conduct in class which directly affected the students. The classroom conduct of the plaintiff which provoked the institution of charges against him first came to the attention of Albert Mizak, the Superintendent of Schools, through letters from parents of fifth graders in Burns' class who wanted Burns fired. This sudden flurry of correspondence to the school authorities from those parents was their response to what Mr. Burns had done as a teacher of their children.

A. The Pen-Pal Incident

In September of 1975, the plaintiff assigned to his then fifth grade class at the Memorial School a penmanship lesson. As part of that lesson, the students could either practice cursive penmanship by writing the alphabet or write a letter to the plaintiff's then fiancee. As a result of that assignment, each student who wrote to the plaintiff's then fiancee received from her a letter in return. These return letters were directly sent to the plaintiff who, in the classroom, distributed them to his students. Each letter was addressed to a specific student and was enclosed in a sealed envelope.

Among other things, the aforesaid letters, written by the plaintiff's then fiancee and distributed to various students in the plaintiff's fifth grade class contained the following, or similar statements:

"I am a communist, in the Progressive Labor Party, just like Phil Burns is.¹ We are both working hard for the day when you kids and the rest of us working people kick out all the rich rotten bosses and then we can all run everything ourselves. That is what communism really means. Then we can all cooperate and have a good and happy life. My son Chris is learning to be a Communist too!"

Pl.'s Exh. C, Hearing on Motion for Preliminary Injunction (letter dated October 6, 1975 addressed "Dear Sherry," which was part of the record of the contract termination hearing of Philip Burns as well as part of the record of the Hearing on Plaintiff's Motion for Preliminary Injunction). See also other letters marked as Pl.'s Exh. K-1, Hearing on Motion for Preliminary Injunction.

It is not surprising that parents of some of the fifth graders who got those letters promptly reacted by calling for the discharge of the plaintiff as a teacher in communications to the Superintendent.

On October 17, 1975, the Superintendent (Mizak) called Burns into his office. When Burns answered "No" to Mizak's inquiry if he knew why he was there, Mizak said, "Well, I think you do. It's because of the pen-pal letters." Tr. at 8, Hearing on Motion for Preliminary Injunction, Jan. 26, 1976. He offered to let Mr. Burns resign and gave him a few days to think it over, and also told Burns that he was going to recommend to the school board that his contract to teach be terminated. By letter of October 28, 1975, Mizak wrote to Burns:

"In response to your request for a statement of the reasons for the proposed termination of your contract of employment, this is to notify you that the reasons are the following:

(1) insubordination. More specifically, you have violated a directive issued to all personnel by the Superintendent of Schools, and dated June 12, 1975, which is entitled `Interruption of School Programs or Duties' in that, on at least one occasion, you visited the classroom of a fellow teacher to discuss your personal affairs, thereby, interfering with that teacher in the performance of his duties.

(2) You have evidenced incompetence in the performance of your assigned teaching duties by using your classroom and your access to students in your classroom as a vehicle for the dissemination of your political convictions."

Pl.'s Exh. F, Hearing on Motion for Preliminary Injunction.

Thereafter, on November 19, 1975, Mizak again wrote to Burns about the letter-writing charge to which (2) above refers:

"The following is submitted in response to your request for a more specific statement of the charges which form the basis for the recommendation that your teaching contract with the Plainfield School System be terminated.

". . .

"You have also been charged, as stated in the October 28, 1975 letter to you, with incompetence, `in that you have used your classroom as a vehicle for the dissemination of your political convictions.' More specifically, you are charged with having caused letters to be written by a personal friend to your fifth grade students. These letters were written in response to letters written by your students as part of an in-class assignment and delivered by your class to these students. The letters in question which can, at best, be described as politically dogmatic in nature, were distributed by you to your students even though you knew their political content. Their distribution by you is a violation of the spirit, if not the letter, of the by-laws of the Plainfield Board of Education which prohibits sectarian or partisan instruction. In addition, your distribution of these letters which indicate extreme bias on the part of the writer evidences, at the least, a lack of judgment on your part and a misunderstanding of your role as a teacher.

"Please be advised that pursuant to your request and that of your attorney, a date will be set for a hearing on the above matters before the Plainfield Board of Education no sooner than fifteen (15) days from your receipt of this more specific statement."

Pl.'s Exh. G, Hearing on Motion for Preliminary Injunction.

A third charge was added on December 1, 1975:

"The following constitutes an amendment to, and an addition to, the statements of charges dated November 19, 1975. You should be prepared to answer these charges, as well as previous charges, to which I will refer at the hearing to be held before the Plainfield Board of Education:

1. You are charged with insubordination based on the events of Wednesday, the 26th of November 1975, at Plainfield Memorial School when Mr. Bahner indicated that Ms. Kingsley was not to enter your room. Nevertheless, you allowed Ms. Kingsley to do so . . ..

. . . . .

"In regard to the charges, reference should be made to the Board of Education By laws, Article 6, Section 606, and to an item in the daily bulletin from Mr. Bahner distributed to the entire staff on November 24, 1975 and again on December 1, 1975."

Pl.'s Exh. H, Hearing on Motion for Preliminary Injunction (letter from Mizak to Burns, dated Dec. 1, 1975).

Finally, on December 10, 1975, Mizak again wrote to Burns:

"With regard to the charge of incompetence which is stated in my letter to you dated October 28, 1975, it has come to my attention from statements that you have made in the media that there may be some confusion in your mind about the nature of that charge.

"The basic facts of that charge form the essence of my claim that you have acted

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