Cox v. Dardanelle Public School Dist., 84-2575

• Decision Date: 11 June 1986
• Docket Number: No. 84-2575,84-2575
• Citation: 790 F.2d 668
• Parties: 32 Ed. Law Rep. 99 Nancy COX, Appellee, v. DARDANELLE PUBLIC SCHOOL DISTRICT; Glenn Fugatt, Superintendent of Schools; and Johnny Dillard, Principal, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 668

790 F.2d 668

32 Ed. Law Rep. 99

Nancy COX, Appellee, v. DARDANELLE PUBLIC SCHOOL DISTRICT; Glenn Fugatt Superintendent of Schools; and Johnny Dillard Principal, Appellants.

No. 84-2575.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 11, 1985.

Decided April 30, 1986.

Rehearing Denied June 11, 1986.

W. Paul Blume, Little Rock, Ark., for appellants.

Clayton Blackstock, Little Rock, Ark., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The Dardanelle Public School District and its officials, as individuals, appeal the judgment of the district court, ¹ sitting without a jury, that the school district impermissibly failed to renew the contract of appellee, Nancy Cox, in retaliation for speech and conduct protected by the first amendment, in violation of 42 U.S.C. Sec. 1983 (1982). The appellants contend that the district court improperly concluded that appellee's activities were protected by the first amendment. They further contend that the district court erred in finding that the protected activities in which the appellee engaged were the motivating factor in the decision not to renew her teaching contract, and that but for her protected speech, she would have been rehired. The appellants also contend that the district court erred in finding that the district school board did not comply with statutory procedures governing the non-retention of public school teachers. We affirm the judgment of the district court. ²

Appellee Nancy Cox was first hired by the Dardanelle Public School District to teach eighth grade English at the district's Middle School for the 1976-77 school year. Her employment contract was renewed by the School Board each of the following two years. During the first two years Cox taught at the Middle School, she established a good working relationship with the principal, Ed Bradshaw, who served as her immediate supervisor. Bradshaw gave Cox good evaluations and recommended each year that she be rehired.

At the beginning of the 1979-80 school year, the third year Cox was employed by the School District, appellant John Dillard replaced Ed Bradshaw as principal of the Middle School. During this same school year Cox became more active in the teachers local organization, the Dardanelle Education Association (DEA), and was appointed DEA representative to the Middle School for the 1979-80 school year.

The difficulties between Cox and Dillard were best illustrated by the following factual findings of the district court:

4. Defendant Johnny L. Dillard replaced Ed Bradshaw as Principal of the Dardanelle Middle School before the beginning of the 1979-80 school term. Defendant Dillard implemented several changes in the regulations under which the teachers had performed their duties in previous years. Plaintiff, along with a majority of the other members of the faculty of the Dardanelle Middle School Upper Building, disagreed with some of defendant Dillard's methods.

5. Plaintiff on numerous occasions spoke out concerning the administration of the educational process at the Dardanelle Middle School, oftentimes in disagreement with defendant Dillard. On November 6, 1979, plaintiff, along with a number of the other faculty members of her school, caused a grievance to be filed with defendant Dillard concerning the educational process in their school. In that grievance, the teachers requested defendant Dillard to meet with them to discuss their dissatisfaction with the educational process then existing. Defendant Dillard instructed the teachers to file individual grievances if they wished to have their concerns addressed by him. Three teachers, Richard Johnson, Maxine Kemp and plaintiff, submitted individual grievances reflecting their names thereon to defendant Dillard. All three of the teachers submitting individual grievances were the victims of job-related sanctions from all the defendants herein. Richard Johnson was terminated in February, 1980, plaintiff was dismissed at the conclusion of the 1979-80 school term, and Maxine Kemp was placed on a probationary status for the 1980-81 school term. None of the other members of the Dardanelle Middle School Upper Building faculty suffered any job-related sanctions during or at the conclusion of the 1979-80 school term.

7. Plaintiff was informed by defendant Fugatt by letter received on or about February 29, 1980, that he was recommending to the Board of Education that her contract not be renewed for the coming school term. Later, on April 1, 1980, plaintiff received a letter from the President of the School Board specifying eleven (11) grounds for the Superintendent's nonrenewal recommendation. A hearing was held before the School Board on April 16 and 23, 1980, to consider the matter of the nonrenewal recommendation as to plaintiff's employment. After hearing considerable evidence from defendants Fugatt and Dillard, as well as plaintiff and other witnesses, the School Board voted on each of the grounds listed by the Board President in his letter to plaintiff and relied upon by defendant Fugatt. Of those eleven (11) charges, the Board voted that four (4) were false, that four (4) were true but not sufficient grounds for nonrenewal, noted that one (1) had been withdrawn by the Board's attorney, and voted that two (2) were true and constituted sufficient grounds relied upon by the Board in dismissing plaintiff were "(1) on August 30, August 31, September 4, September 7, and September 10, Mrs. Cox refused to follow directions in that she signed in for Mr. Johnson.", and "(2) on February 15, Mrs. Cox refused to follow administrative policy in that she allowed her class to be interrupted by a visitor without permission from the Principal."

Cox v. Dardanelle Public School District, No. LR-C-80-441, slip op. at 2-4, (E.D.Ark. April 23, 1984).

The district court found that the appellants had dismissed Cox not for alleged insubordination in failing to comply with administrative directives, but because of her continued expressions of disagreement over the educational policies in force in the Middle School. ³ The district court also found that the grounds advanced by the appellants for Cox's renewal were "pretextual and insignificant," Cox, slip op. at 4, and further, that but for her criticisms, Cox's contract would have been renewed by the School Board. The court also concluded as a matter of law that Cox's expressions were protected by the first amendment. The court thereupon awarded Cox damages for the wrongful dismissal. The appellants filed the instant appeal.

Claims by public employees that they have suffered job-related sanctions as a result of speech are considered in accordance with the now familiar analysis set out by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). As a threshold matter, a plaintiff must demonstrate that the speech or conduct, which she alleges as the basis of the adverse employment decision, was entitled to constitutional protection; she must then show that this protected conduct was a substantial or motivating factor in the adverse employment decision; the burden then shifts to the employer to show by a preponderance of the evidence that it would have taken the same action absent the employee's protected conduct. Id. at 287, 97 S.Ct. at 576.

A.

Whether a public employee's expressions are constitutionally protected involves a two-step inquiry. Connick v. Myers, 461 U.S. 138, 143-47, 103 S.Ct. 1684, 1688-90, 75 L.Ed.2d 708 (1983). Initially, a court must conclude that the employee's speech can be "fairly characterized as constituting speech on a matter of public concern * * *." Id. at 146, 103 S.Ct. at 1689; if the speech falls within this category, the court must then balance "the interest of the [employee] as a citizen, in commenting upon matters of public concern and the interests of the state, as an employer, in promoting the efficiency of the public service it performs through its employees." Id. at 142, 103 S.Ct. at 1687 (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968).

The district court concluded that Cox's speech, for the most part, was an "expression of her own ideas concerning the educational process in the Dardanelle Middle School ...," Cox, slip op. at 4, and therefore related to a matter of public import. Appellants contend that this conclusion is wrong as a matter of law ⁴ and that appellant's expressions amounted to no more than her "personal objections to employee work rules," Brief of Appellants at 16, and thus, as expressions of private and not public concern, are not entitled to constitutional protection.

Whether a public employee's expressions relate to a matter of public concern must be considered in light of the "content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690 (footnote omitted). The question in each case is whether the employee's expressions can be "fairly characterized as relating to any matter of political, social, or other concern to the community * * *." Id. at 146, 103 S.Ct. at 1689. Where a public employee speaks out in public or in private ⁵ on matters that relate solely to the employee's parochial concerns as an employee, no first amendment interests are at stake. Id. at 146, 103 S.Ct. at 1689. The focus is on the role the employee has assumed in advancing the particular expressions: that of a concerned public citizen, informing the public that the state institution is not properly discharging its duties, or engaged in some way in misfeasance, malfeasance or nonfeasance; or merely as an employee, concerned only with internal policies or practices which are of relevance only to the employees of that institution. See id. at 143, 147-48, 103 S.Ct. at 1688,...