Dunham v. Crosby, 7682.

Citation435 F.2d 1177
Decision Date18 December 1970
Docket NumberNo. 7682.,7682.
PartiesKenneth T. DUNHAM, Plaintiff, Appellant, v. Philip B. CROSBY, Jr., et al., Defendants, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Louis Scolnik, Lewiston, Me., with whom David J. Halperin, Portland, Me., was on the brief, for appellant.

Michael T. Healy, Portland, Me., with whom John A. Mitchell and Verrill, Dana, Philbrick, Putnam & Williamson, Portland, Me., were on the brief, for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Appellant, a public school teacher, brought a 42 U.S.C. § 1983 action against the Superintendent of Schools and the members of the Board of Directors of Maine School Administrative District Number 34. He alleges that appellees terminated his employment during the course of the school year for reasons and by a procedure which violates his constitutional rights. The case was tried below without a jury. At the close of appellant's case, appellees moved to dismiss appellant's complaint under F.R.Civ.P. 41(b). The court made findings of fact and dismissed the claim. From this ruling, appellant appeals.

Appellant's employment required him to hold a teaching certificate, which he did not have because he lacked the requisite education credits. In a previous year, however, he had held a "conditional" or temporary certificate which had qualified him to teach in Maine. Renewal of this certificate was conditioned on obtaining an affidavit from his current Superintendent.1 Appellant had signed a contract for the 1969-70 school year and was teaching English to ninth grade students in Belfast, Maine, but he had not yet obtained his conditional certificate. The court below found that the Superintendent was willing to sign the affidavit which would result in appellant's being certified, but had not done so, apparently due to an oversight.

During the first two months of the 1969 school year, appellant was employed without the conditional certificate. On October 28, he composed an assignment sheet listing several themes of Shakespeare's Romeo and Juliet for oral and written discussion. The full text of this assignment was:

Some Interpretations of Romeo & Juliet
1. Story of a feud between two families
2. Conquest of love over hate or conquest of hate over love
3. Destruction of love by a cruel society
4. Rise, decline, and fall of Romeo\'s sex drive
5. Moderation (nothing in excess) as a principle in guiding one\'s life
6. Romeo\'s rise to maturity
7. Juliet as an innocent nymph
8. Juliet as a sexpot

A daughter of a member of the school board was one of appellant's students who received this assignment sheet. She showed it to her father who took it to a meeting of the school board being held that same night. After the sheet was circulated, the board asked the Superintendent to investigate. The Superintendent met with appellant the next day. Appellant was called out of his class and told by the Superintendent, "I have had enough of you. You can either leave quietly or make a fuss about it but you are going to leave." Appellant was then fired and paid off. The firing was accomplished by the simple expedient of making clear to appellant that the affidavit necessary to his obtaining a conditional certificate would not be signed; without that affidavit, appellant could not comply with his employment contract. For the purposes of the 41(b) motion, the court below found that the Romeo and Juliet assignment sheet was the cause of the Superintendent's refusal to sign the affidavit. Appellant protested the Superintendent's decision during the course of his interview and asked what the school board thought of the sheet. In reply, the Superintendent told him that a hearing before the school board would do him no good. Appellant requested no hearing. The minutes of the next board meeting simply mentioned a proposed change in pay for another person who was "substituting in the position of teacher of English at Crosby Junior High School recently vacated by Mr. Kenneth Dunham."

The court below ruled that on the basis of the facts presented by appellant, there was no evidence that the members of the school board conspired to deprive appellant of his constitutional rights. Appellant argues that the board's authorization of the Superintendent to investigate and its subsequent approval of a contract for the person hired to replace appellant constitute a ratification of the Superintendent's action implicating the members in a conspiracy. The district court found the facts to be otherwise. That finding is not only not clearly erroneous, but compelled on the basis of testimony which the court could and did deem credible.

On appeal, appellant has added another twist to his ratification theory. He now claims that the manner in which the school board chose to defend this lawsuit, by denying that appellant was legally employed and counterclaiming for the salary paid him, constitutes a ratification of the Superintendent's failure to sign the affidavit. But appellant's complaint alleges that the members of the school board conspired to remove him from his job; the defense of a lawsuit after the firing cannot constitute a conspiracy to fire appellant. Indeed, if the defense of this suit is the basis of appellant's claim against the members, he is in the awkward situation of suing a defendant for conduct which took place after the complaint was filed.

From another perspective, appellant's claim that the board ratified the Superintendent's action by its defense of this suit merges into appellant's final claim, apparently raised for the first time on appeal, that the members of the school board are liable to him under the principle of respondeat superior. Appellant offers no support for the applicability of this theory in section 1983 actions which seem to contemplate only the liability of persons who have actually abused their positions of authority. It is doubtful that persons can be vicariously liable under 1983. See Sanberg v. Daley, 306 F.Supp. 277, 278 (N.D.Ill.1969); Salazar v. Dowd, 256 F.Supp. 220, 223 (D. Col.1966); Jordan v. Kelly, 223 F.Supp. 731, 738-39 (W.D.Mo.1963). Furthermore, appellant has put forth no evidence of the control of the school board over the Superintendent concerning his decision whether or not to sign the crucial affidavit; the only support for appellant's assertion that respondeat superior applies is the Maine law under which the school board is authorized to chose the Superintendent. There is no indication that the Superintendent, once chosen, does not have some duties beyond the board's immediate control. See W. Prosser, Law of Torts, § 69, at 472 (3d ed. 1964).

We therefore affirm the district court's dismissal of appellant's action against the members of the school board. But the case against the Superintendent takes quite a different posture. The Superintendent claims that the district court correctly dismissed appellant's case because appellant had failed to request a hearing before the board. At trial, all appellees argued that appellant was not fired, but simply never hired, the legitimizing affidavit never having been signed. Under this theory, appellant had no procedural rights to exhaust. The district court having, however, impliedly rejected this theory and having held that appellant failed to exhaust his administrative remedies, the Superintendent has now reversed field and is claiming that the...

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