Davis v. GRIFFIN-SPALDING CTY., GA., BD. OF ED., Civ. A. No. C-75-6-N.

• Decision Date: 15 April 1976
• Docket Number: Civ. A. No. C-75-6-N.
• Parties: Mrs. Thelma DAVIS v. GRIFFIN-SPALDING COUNTY, GEORGIA, BOARD OF EDUCATION et al.
• Court: U.S. District Court — Northern District of Georgia

445 F. Supp. 1048

Mrs. Thelma DAVIS v. GRIFFIN-SPALDING COUNTY, GEORGIA, BOARD OF EDUCATION et al.

Civ. A. No. C-75-6-N.

United States District Court, N. D. Georgia, Newnan Division.

Order December 2, 1975.

On Determination of Appropriate Relief April 15, 1976.

Powell, Goldstein, Frazier & Murphy, Atlanta, Ga., for plaintiff.

Jones, Bird & Howell, Atlanta, Ga., for defendants.

ORDER

HENDERSON, Chief Judge.

This is an action for injunctive and declaratory relief and damages arising out of the alleged forced retirement of the plaintiff as a teacher with the defendant school board. Presently pending are the plaintiff's and defendants' cross-motions for summary judgment.

The suit is brought pursuant to the provisions of 42 U.S.C. §§ 1983 and 1985 and jurisdiction is predicated on 28 U.S.C. §§ 1343(3) and (4) and 1331. The complaint is in four counts. Count One attacks the local board's policy of requiring its teachers to retire at age sixty-five as being retaliation of the plaintiff's exercise of her First Amendment rights. Count Two alleges that her termination deprived her of a protectible "property" interest within the meaning of the Fourteenth Amendment. Count Three charges that the mandatory retirement age in this context is an infringement of the Fourteenth Amendment. Count Four asserts the pendent jurisdiction of the court for a purported violation of state law. The plaintiff seeks reinstatement to her teaching position and back pay.

By profession, the plaintiff is a reading specialist and elementary education teacher. From 1952 through the 1973-74 academic year, she was continuously employed by the defendant, the Griffin-Spalding County Board of Education (hereinafter referred to as "the school board").

In February, 1974 the school board adopted a mandatory retirement policy for its teachers, effective July 1, 1974, which provides:

1. Teachers who reach sixty-five (65) years of age shall be retired from the Griffin-Spalding County School System, unless exception is made as hereinafter provided. If the sixty-fifth birthday occurs during a school year, the teacher may finish that school year; however, no teacher shall begin a new school year if the sixty-fifth birthday is reached before the new school year begins.

2. Exceptions may be made to allow a teacher when under unusual circumstances pertinent to continuing employment, to request a meeting with the Board of Education to present these reasons. The Board must also receive recommendations from both the superintendent and the principal of the school involved.

3. The Board of Education may initiate and grant such an exception in an individual case where the teacher's specific and unusual services warrant continuing employment for the benefit of the school system. The Board must also receive such recommendations from both the superintendent and the principal of the school involved.

4. The exceptions cited in items 2 and 3 above will be on a year-to-year basis.

. . . . .

6. Employment may not be granted to any teacher who is sixty-five years of age or older at the time this policy becomes effective, unless an exception is made as hereinbefore provided.

The plaintiff reached age sixty-five in 1971. She was offered and accepted subsequent one-year employment contracts for the next three academic years. Shortly after the new policy was adopted, she was notified that her contract would not be renewed for the 1974-75 school year. She requested a hearing in May, 1974 but the school board reaffirmed its initial decision in a meeting the following month. Since the plaintiff was effectively retired after the school board declined to rehire her in June,¹ she applied for retirement benefits which began in August of that year. None of the checks were cashed until November, 1974 when the plaintiff received assurances from the Teachers Retirement System that acceptance of retirement payments would not prejudice her right to contest the board's action.

Three of the four counts of the complaint are founded on federal law and subject matter jurisdiction exists solely under 28 U.S.C. §§ 1343(3) and (4) and 1331. The constitutional issues need not be decided in this order because the state cause of action stated in Count Four is dispositive of the suit.

Pendent jurisdiction is a judicially created doctrine which permits a federal court to assume jurisdiction over a state claim not supported by independent jurisdictional grounds. See Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). As expanded and clarified in United Mineworkers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966):

pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim "arising under the Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *," U.S.Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional "case." The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. . . . The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.

Id. at 725, 86 S.Ct. at 1138 (footnotes and citations omitted).

There is no question that Count Four is factually inseparable from the "case" when viewed as a whole and is a situation "where two distinct grounds in support of a single cause of action are alleged, only one of which presents a federal question . . ." Hurn v. Oursler, supra, 289 U.S. at 246, 53 S.Ct. at 589. Further, this is exactly the case where a litigant, without regard to the state or federal nature of the complaint, "would ordinarily be expected to try them claims all in one judicial proceeding." 383 U.S. at 725, 86 S.Ct. at 1138. It follows then, that jurisdiction of Count Four must necessarily turn on the "substantiality" of the plaintiff's constitutional attacks.

In the context of 28 U.S.C. § 2281 a claim is insubstantial only if "its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933). See Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed. 36 (1973). In light of Gibbs, therefore, the state question may be properly entertained if this test is met.

Without reaching the merits of Counts One, Two or Three, in no sense can the plaintiff's challenges be considered as "obviously without merit." 290 U.S. at 32, 54 S.Ct. 3. On the contrary, there appears to be authority to support the due process arguments. Moreover, the entire concept of mandatory age qualifications for public employment has prompted the Supreme Court to inquire into their constitutional implications. Murgia v. Massachusetts Board of Retirement, 376 F.Supp. 753 (D.Mass.1974), prob.juris. noted, 421 U.S. 974, 95 S.Ct. 1973, 44 L.Ed.2d 466 (1975).

Gibbs expressly permits the district courts to decline jurisdiction of a state claim if the twin goals of "judicial economy, convenience and fairness to litigants" would not be furthered. 383 U.S. at 727, 86 S.Ct. at 1139. See 6 Wright & Miller, Federal Practice and Procedure, § 1588. However, in order to avoid needless duplication of judicial effort and to prevent undue delay in rendering the prayer for injunctive relief, the substance of Count Four will be considered. Siler v. Louisville & Nashville R. R., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909). See, e. g., Hillsborough v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358 (1946); United Fuel Gas Co. v. Railroad Comm'n, 278 U.S. 300, 49 S.Ct. 150, 73 L.Ed. 390 (1929); Waggoner Estate v. Wichita County, 273 U.S. 113, 47 S.Ct. 271, 71 L.Ed. 566 (1927). The soundness of this approach was recently reaffirmed by the Supreme Court in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

The plaintiff contends that the school board's retirement plan is not authorized by state statute and violates Georgia's public policy. On the other hand, the defendants argue that the rule is not prohibited by state law and therefore permissible.

Each county is authorized to establish a county board of education. Ga.Const., art. VIII, § 5. These boards are charged with promulgating rules to govern the schools within their jurisdiction. Ga.Code Ann. § 32-912 (Supp.1974). Of necessity, though, the authority of the local boards must yield to state supervision and the General Assembly has demonstrated its intention to exercise control over local matters.² The State Board of Education sets minimum qualifications for teaching personnel. Ga.Code Ann. § 32-662a (Supp.1974). Through disbursement of funds to local schools the legislature effectively regulates minimum teacher salaries, Ga.Code Ann. § 32-609, and pupil-teacher ratios. Ga.Code Ann. § 32-611 (Supp.1974). All teachers must first obtain a certificate from the State Board of Education before seeking employment in any school system. Ga.Code Ann. § 32-608.

A persuasive indication of the local boards' limited authority to set individual retirement policies is contained in the Georgia Teachers Retirement System (hereinafter referred to as "the retirement system"). Ga.Code Ann. §§ 32-2900, et seq. This statutory program provides for optional and compulsory retirement benefits for state teachers. In relevant part, the eligibility portions specify:

(a) Any member in service may retire upon written application to the board of trustees . . ..

(b) Any member in service who on

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