Durant v. Independent School Dist. No. 16 of LeFlore County, State of Okl., s. 91-7129

• Decision Date: 05 April 1993
• Docket Number: 92-7033,92-7022,Nos. 91-7129,s. 91-7129
• Citation: 990 F.2d 560
• Parties: 82 Ed. Law Rep. 313 Jackie G. DURANT, Plaintiff-Appellee, v. INDEPENDENT SCHOOL DISTRICT NO. 16 of LEFLORE COUNTY, STATE of OKLAHOMA, also known as the LeFlore Public Schools; Dorsey L. Adams, in his official capacity as Superintendent of Schools and in his individual capacity; Leona Williams; David Owens; Alton Carpenter, Defendants-Appellants, and Daniel Ingle and Wayne Wolfe, in their official capacities as members of the Board of Education for the Leflore Public Schools and in their individual capacities, Defendants. Jackie G. DURANT, Plaintiff-Appellee, v. INDEPENDENT SCHOOL DISTRICT NO. 16 of LEFLORE COUNTY, STATE of OKLAHOMA, also known as the LeFlore Public Schools; DORSEY L. ADAMS, in his official capacity as Superintendent of Schools and in his individual capacity; Leona Williams; David Owens; Alton Carpenter, Defendants-Appellants, and Daniel Ingle and Wayne Wolfe, in their official capacities as members of the Board of Education for the LeFlore Public Schools and in their individual capacities, Defendants. Jackie G. DURANT, Plaintiff-Appellee, v. INDEPENDENT SCHOOL DISTRICT NO. 16 of LEFLORE COUNTY, STATE of OKLAHOMA, also known as the LeFlore Public Schools; Dorsey L. Adams, in his official capacity as Superintendent of Schools and in his individual capacity; Leona Williams, Daniel Ingle, David Owens, Alton Carpenter, Wayne Wolfe, in their official capacities as members of the Board of Education for the Leflore Public Schools and in their individual capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 560

990 F.2d 560

82 Ed. Law Rep. 313

Jackie G. DURANT, Plaintiff-Appellee, v. INDEPENDENT SCHOOL DISTRICT NO. 16 of LEFLORE COUNTY, STATE

of OKLAHOMA, also known as the LeFlore Public Schools;

Dorsey L. Adams, in his official capacity as Superintendent

of Schools and in his individual capacity; Leona Williams;

David Owens; Alton Carpenter, Defendants-Appellants,

and

Daniel Ingle and Wayne Wolfe, in their official capacities

as members of the Board of Education for the

Leflore Public Schools and in their

individual capacities, Defendants.

Jackie G. DURANT, Plaintiff-Appellee, v. INDEPENDENT SCHOOL DISTRICT NO. 16 of LEFLORE COUNTY, STATE

of OKLAHOMA, also known as the LeFlore Public Schools;

DORSEY L. ADAMS, in his official capacity as Superintendent

of Schools and in his individual capacity; Leona Williams;

David Owens; Alton Carpenter, Defendants-Appellants,

and

Daniel Ingle and Wayne Wolfe, in their official capacities

as members of the Board of Education for the

LeFlore Public Schools and in their

individual capacities, Defendants.

Jackie G. DURANT, Plaintiff-Appellee, v. INDEPENDENT SCHOOL DISTRICT NO. 16 of LEFLORE COUNTY, STATE

of OKLAHOMA, also known as the LeFlore Public Schools;

Dorsey L. Adams, in his official capacity as Superintendent

of Schools and in his individual capacity; Leona Williams,

Daniel Ingle, David Owens, Alton Carpenter, Wayne Wolfe, in

their official capacities as members of the Board of

Education for the Leflore Public Schools and in their

individual capacities, Defendants-Appellants.

Nos. 91-7129, 92-7022, 92-7033.

United States Court of Appeals Tenth Circuit.

April 5, 1993.

Lana Jeanne Tyree and Phyllis L. Walta, Oklahoma City, OK, for plaintiff-appellee.

Bill V. Wilkinson and Robyn R. Sanzalone, Wilkinson & Monaghan, Tulsa, OK, for defendants-appellants.

Before LOGAN, MOORE, and ANDERSON, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

Independent School District No. 16 of LeFlore County, Oklahoma, Superintendent Dorsey Adams, and individual school board members, Leona Williams, David Owens, and Alton Carpenter (collectively, the LeFlore District), appeal the award of damages and reinstatement of plaintiff Jackie G. Durant to her former position in the LeFlore school cafeteria upon her successful pursuit of claims defendants violated her First and Fourteenth Amendment rights. Although our intervening decision in Brown v. Independent Sch. Dist. No. I- 06, 974 F.2d 1237 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1278, 122 L.Ed.2d 672 (1993), extinguishes Ms. Durant's due process recovery granted by the court, we find no basis in the law or record to otherwise disturb the jury's verdict. Nevertheless, we remand for the district court to reconsider the award of attorney's fees in light of our discussion of Ms. Durant's status as a prevailing party.

I. Background

For three years, the LeFlore District employed Ms. Durant, a local resident, in the school cafeteria. During the 1988-1989 school year, a hotly contested election to unseat incumbent school board member David Owens occupied LeFlore's attention, dividing the loyalties of this small rural community of approximately 150 citizens. In that race, Ms. Durant and her husband actively and openly campaigned for Mr. Owens' rival, telephoning, pamphleteering, and contributing money to his candidacy. He lost, and shortly after, Superintendent Adams informed Ms. Durant her annual contract with the LeFlore District would not be renewed at the end of the school year.

Ms. Durant filed this action for deprivation of her First and Fourteenth Amendment rights under 42 U.S.C. § 1983, alleging the LeFlore District wrongfully refused to grant her a hearing before deciding not to renew her contract and terminated her because she participated in constitutionally protected activities. In the course of the five-day jury trial, the court granted Ms. Durant's motion for directed verdict on her due process claim, relying on Goudeau v. Independent Sch. Dist. No. 37 of Okla. County, Okla., 823 F.2d 1429 (10th Cir.1987), which held support personnel have a constitutionally protected property interest in continued employment under Okla.Stat. tit. 70, § 6-101.40, requiring a pre-termination hearing before nonrenewal of an employment contract. Directed verdicts were granted to the individual defendants dismissing the due process claim on the basis of qualified immunity. The court also directed a verdict for defendants Wayne Wolfe and Daniel Ingle, school board members, on Ms. Durant's First Amendment claim.

The remainder of the trial provided the jury with two sharply divergent pictures of the events culminating in the LeFlore District's decision not to renew Ms. Durant's contract. According to Ms. Durant, Superintendent Adams specifically admonished her to stay out of politics and threatened her with termination if she persisted. In contrast, the LeFlore District countered a reduction in the number of students using the school cafeteria necessitated the nonrenewal. Testifying school board members insisted they acted solely on the superintendent's recommendation; and although initially stating Ms. Durant had a good work record, upon later recall, complained of her cleanliness at work and loud and boisterous behavior at school board meetings.

Following the jury's verdict in Ms. Durant's favor, the court awarded actual damages of $11,250 to be paid by the school district; actual damages totalling $725; and punitive damages totalling $725 against the remaining individual board members and superintendent. In a separate order, the court reinstated Ms. Durant with seniority to her former position. Finally, upon finding Ms. Durant was a "prevailing party" under 42 U.S.C. § 1988, the court awarded $39,633.15 in attorney's fees. The LeFlore District challenges each facet of the judgment and relief, filing three separate appeals, consolidated here for review.

II. Due Process

Our recent decision in Brown v. Independent Sch. Dist. No. I-06, 974 F.2d at 1237, displaces the district court's analysis of the due process claim. Like Ms. Durant, plaintiffs in Brown were non-certified support personnel ¹ whose annual employment contracts were not renewed at the end of the school year. They claimed, relying on Okla.Stat. tit. 70, § 6-101.40, ² their employment was terminated without notice and a hearing in violation of their procedural due process rights. However, we affirmed the denial of relief, reading that statute on its face to trigger due process rights only when a suspension, demotion, or termination occurred. Therefore, unlike Goudeau, 823 F.2d at 1429, in which the support employee was dismissed shortly after she began working and we held she was entitled to a hearing before termination, the Brown plaintiffs were not given new contracts for the next school year in the first instance. Consequently, we concluded "the failure to renew is not the equivalent of an affirmative act of termination." 974 F.2d at 1240 (citation omitted). Because plaintiffs' contracts explicitly stated they expired in June unless renewed, we could not read the failure to offer a new contract as an act of termination. Moreover, we noted, "[i]n the absence of a statutory or contractual right to renewal, a person employed under consecutive annual contracts ordinarily can claim no property interest in the indefinite renewal of his or her contract." Id. at 1239 (citation omitted).

Similarly, Ms. Durant can claim no property interest under § 6-101.40 or her successive contracts. ³ Although Ms. Durant would distinguish her case from Brown on the ground her nonrenewal did not comply with Okla.Stat. tit. 70, § 6-101.45, ⁴ as she designated in the pretrial order, and the district court believed that section was a "significant indication of legislative intent to afford nonrenewed support employees with the same due process rights afforded discharged employees," we view that section differently.

Subsection B does not expand the rights afforded support employees but assures that Subsection A of § 6-101.45 is not read to alter them by replacing the for cause requirement for suspension, demotion, or termination in §§ 6-101.40, 6-101.43, and 6-101.47, to a mere notice requirement. We, therefore, hold under Oklahoma's statutory scheme for support employees, nonrenewal of a contract does not trigger the same due process concerns afforded a termination.

III. First Amendment

The LeFlore District contends the district court erred in denying its motion for directed verdict on Ms. Durant's claim that the contract was not renewed in retaliation for her exercising rights embraced by the First Amendment. Conceding the conduct or speech at issue is constitutionally protected, ⁵ the LeFlore District instead asserts Ms. Durant offered no evidence upon which a rational jury could conclude her conduct, and not the District's legitimate school needs, was the motivation for its nonrenewal decision.

Given the plenary review afforded the denial of a motion for directed verdict and viewing the evidence and its inferences in Ms. Durant's favor, Graham v. Wyeth Laboratories, 906 F.2d 1399, 1401 (10th Cir.), cert. denied, 498 U.S. 981, 111 S.Ct. 511, 112 L.Ed.2d 523 (1990), we conclude there is evidence upon which the jury could properly return a verdict for Ms. Durant. This conclusion is sobered by the realization that in a case such as this subjective elements percolate through all the evidence. Ware v. Unified Sch. Dist. No. 492, Butler County, Kan., 881 F.2d 906, 912 (10th Cir.1989), modified on other grounds, 902 F.2d 815 (10th Cir.1990). Indeed, allegations of retaliation are often supported only by circumstantial evidence. Smith v. Maschner, 899 F.2d 940, 949 (10th Cir.1990) (circumstantial evidence of timing of action or unavailability of witnesses may be only means of proponent's supporting allegation of retaliation).

Despite the LeFlore District's insistence no one discussed or...