Button v. Harden, 86-1760

• Citation: 814 F.2d 382
• Decision Date: 03 March 1987
• Docket Number: No. 86-1760,86-1760
• Parties: 38 Ed. Law Rep. 125 Phillip BUTTON, Plaintiff-Appellant, v. Kermit HARDEN, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 382

814 F.2d 382

38 Ed. Law Rep. 125

Phillip BUTTON, Plaintiff-Appellant, v. Kermit HARDEN, et al., Defendants-Appellees.

No. 86-1760.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 5, 1986.

Decided March 3, 1987.

Mark S. Demorest, Simpson & Moran, Birmingham, Mich., for plaintiff-appellant.

Everett E. Nicholas, Jr., Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Chicago, Ill., for defendants-appellees.

Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

Phillip Button, a public school teacher in Illinois, appeals from the dismissal of his suit under 42 U.S.C. Sec. 1983 in which he charged (so far as relevant to this appeal) that he was fired in retaliation for exercising his First Amendment right of free speech. The only question we need decide is whether the dismissal was proper on grounds of res judicata.

Button was tenured, and therefore could be fired only for cause. The school board passed a resolution to dismiss him, and the next stage under Illinois law was a hearing before a hearing officer, whose statutory function it is to "make a decision as to whether or not the teacher shall be dismissed." Ill.Rev.Stat. ch. 122, Sec. 24-12. After an evidentiary hearing, the hearing officer decided that dismissal was warranted. Button appealed to an Illinois circuit court, which affirmed his dismissal. He then brought this suit, lost on grounds of res judicata, and appeals.

Button argues that neither the hearing officer nor the circuit court ever determined whether he was a victim of retaliation; all they ever found was that there was cause for dismissing him. Button's superiors had been angry at him for reporting to law enforcement authorities criminal activity by students that his superiors were trying to hush up; on the other hand Button had engaged in conduct (such as being "AWOL," albeit briefly, when one of the criminal incidents occurred, and refusing to prepare lesson plans) that did constitute statutory cause for dismissal. This evidence, pulling in two directions, created a difficult causal question. Granted that there was cause to fire Button, would he have been fired had he not angered his superiors by reporting their own misconduct to the police? (His report led to criminal charges being filed against some of them, though the charges eventually were dismissed.) If not, he was a victim of retaliation for exercising what the defendants appear to concede were his constitutional rights. Another possibility is that although he would have been fired for reporting his superiors' misconduct even if he had been a perfect teacher, he would have been fired for his own shortcomings even if he had not spoken out. In that event he could not show a causal link between the violation of his constitutional rights and the injury of which he complains, because by hypothesis whether he spoke out or kept silent he would have been dismissed just the same. The choice between these two possible interpretations of the evidence, or in other words the correct resolution of the causal issue, poses a difficult question. Maybe, though there was cause to fire Button, he would not have been fired but for his speaking out, in which event he was a victim of retaliation; but maybe he would have been fired anyway, in which event he was not a victim of retaliation even if his superiors were brimming over with unconstitutional wrath against him. Section 1983 is a tort statute. To prevail under it a plaintiff must show not only that his federal rights were violated but also that, had it not been for the violation, the injury of which he complains would not have occurred, Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977); DeShaney v. Winnebago County Dept. of Social Services, 812 F.2d 298, 302 (7th Cir.1987); and the injury of which Button complains is his dismissal.

Much of the parties' dispute in this court is over the question whether the hearing officer and the circuit court addressed the causal question. Button points to parts of the hearing officer's opinion which make it seem that the officer conceived his function as being merely to decide whether the school board had cause to fire Button, rather than to decide as well whether the board would have acted on that cause but for its anger at Button for having spilled the beans. The defendants point to other parts of the opinion which seem to suggest that Button would have been fired anyway. (All the circuit court said about the question was: "The hearing officer almost found retaliation.") This dispute is important to the defendants' alternative ground for upholding the dismissal of the suit, which is that the hearing officer actually resolved the retaliation issue against Button, and hence (since the hearing officer's decision was affirmed by the circuit court) the doctrine of collateral estoppel bars relitigating it. But it is not important to the issue of res judicata.

When Button lost before the hearing officer, he had two choices if he wanted to pursue his constitutional claim. First, since there is (with an immaterial exception) no requirement of exhausting state administrative remedies before bringing a suit under section 1983, he could sue forthwith in federal court under that statute. Then the only question would be whether the hearing officer had actually decided the issue of retaliation; if he had, relitigation of it...