Evans-Marshall v. Board of Educ. of Tipp City

• Decision Date: 01 November 2005
• Docket Number: No. 04-3524.,04-3524.
• Citation: 428 F.3d 223
• Parties: Shelley EVANS-MARSHALL, Plaintiff-Appellee, v. BOARD OF EDUCATION OF THE TIPP CITY EXEMPTED VILLAGE SCHOOL DISTRICT; Charles W. Wray, individually; and John T. Zigler, individually, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 223

428 F.3d 223

Shelley EVANS-MARSHALL, Plaintiff-Appellee, v. BOARD OF EDUCATION OF THE TIPP CITY EXEMPTED VILLAGE SCHOOL DISTRICT; Charles W. Wray, individually; and John T. Zigler, individually, Defendants-Appellants.

No. 04-3524.

United States Court of Appeals, Sixth Circuit.

Argued: April 25, 2005.

Decided and Filed: November 1, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Tabitha D. Justice, Subashi, Wildermuth & Ballato, Dayton, Ohio, for Appellants. Joanne Jocha Ervin, Dayton, Ohio, for Appellee.

ON BRIEF:

Tabitha D. Justice, Lynnette P. Ballato, Subashi, Wildermuth & Ballato, Dayton, Ohio, for Appellants. Joanne Jocha Ervin, Dayton, Ohio, for Appellee.

Before: COLE and SUTTON, Circuit Judges; ZATKOFF, District Judge.^*

COLE, J., delivered the opinion of the court.

SUTTON, J. (pp. 233-238), delivered a separate concurring opinion.

ZATKOFF, D.J. (pp. 238-240), delivered a separate opinion concurring in part and dissenting in part.

OPINION

COLE, Circuit Judge.

This is a civil rights case brought under 42 U.S.C. § 1983. Plaintiff-Appellee Shelley Evans-Marshall, a public high school teacher, filed a complaint against Defendants-Appellants, the Board of Education of Tipp City Exempted Village School District; John T. Zigler, the Superintendent of the Tipp City Schools; and Charles W. Wray, the principal of Tippecanoe High School, a high school in the Tipp City school district. Evans-Marshall argues that Zigler and Wray, in recommending the non-renewal of her teaching contract, retaliated against her for exercising her rights under the First Amendment. The Defendants-Appellants filed a motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon denial of the motion, the Defendants-Appellants have lodged this interlocutory appeal. For the following reasons, this Court AFFIRMS the judgment of the district court.

I. Factual Allegations and Background

According to the allegations of the Complaint, Shelley Evans-Marshall is a certified high school teacher and a former employee of the Board of Education of Tipp City Exempted Village School District (the "Board"), located near Dayton, Ohio. Evans-Marshall was hired by the Board to teach language arts to high school students at Tippecanoe High School, and to advise the high school literary magazine for the 2000-2001 school year. During her employment, Evans-Marshall's direct supervisor was the principal of Tippecanoe High School, Charles W. Wray.

Throughout the 2000-2001 school year, Evans-Marshall received periodic evaluations from Wray. On January 4, 2001, her evaluation had six ratings of outstanding, fifteen ratings of satisfactory, and no unsatisfactory ratings. On April 10, 2001, she received five ratings of outstanding, sixteen ratings of satisfactory, and no unsatisfactory ratings. At the end of the school year, Evans-Marshall's teaching and literary magazine contracts were renewed.

On October 22, 2001, approximately twenty-five parents attended a public meeting of the Board of Education of the Tipp City Schools to "express concerns about the appropriateness and merit of some materials that had been assigned to the students as optional reading." The next day, Wray told Evans-Marshall, in front of the school's English teachers, that she was on the "hot-seat" because parents complained at the Board meeting about Evans-Marshall's assignment of the book Siddhartha to her students. Shortly thereafter, Evans-Marshall was evaluated for the first time for the 2001-2002 school year, and received no negative comments.

At the next Board meeting, held on November 26, 2001, public criticism of Evans-Marshall intensified. According to the Complaint, "approximately 100 parents were in attendance to protest the presence of material in classes and school libraries that the parents thought obscene." A petition was also presented with about 500 signatures that called for "decency in education." According to Evans-Marshall, the focus of the parents' concern was the subject matter presented in her classes.

Several weeks after the November 26 meeting, Wray formally observed Evans-Marshall in her classroom. Following the observation, Wray, for the first time, gave Evans-Marshall negative comments concerning her performance. He also provided her with instructions: "Any material containing graphic violence, sexual themes, profanity, suicide, drugs and alcohol need [sic] to be discussed with your department chairs before being used in class." Evans-Marshall responded to the instruction in writing. She noted that the materials used in her class were the novels Fahrenheit 451, To Kill a Mockingbird, and Siddhartha, that none of these books had any inappropriate themes, and that each book "had been purchased and approved by the Board."

Evans-Marshall's first written evaluation following the November 26 meeting was notably more critical than previous evaluations. On January 10, 2002, Wray rated Evans-Marshall as "unsatisfactory on 4 criteria, outstanding on only 2 criteria, and satisfactory on 15 performance criteria." Wray further commented that "Use of material that is pushing the limits of community standards through graphic violence and sexual overtones has created a negative image in the community. . . . Continued to use or tried to use material that was questionable after being told to get such material reviewed by department chairpersons or the principal."

On March 11, 2002, Evans-Marshall showed her class Romeo + Juliet, a movie adaptation of the Shakespeare play. Wray observed the class again and asked Evans-Marshall about the rating of the movie. Evans-Marshall informed him that it was rated PG-13. According to the Complaint, prior approval is not required to show movies rated PG-13.

On March 21, 2002, Evans-Marshall received her second written evaluation since the November 26 meeting; it was also very critical. Evans-Marshall "received 5 ratings of unsatisfactory, one rating of outstanding, and 15 ratings of satisfactory." Wray made the following comment in writing: "The evaluation from the first part of the year addressed several areas of concern that has [sic] arisen this year. There have been improvements but not enough to recommend a continuing contract."

Superintendent Zigler recommended the non-renewal of Evans-Marshall's contract at the Board's meeting on March 25, 2003. In accordance with Zigler's recommendation, the Board unanimously passed a motion not to renew Evans-Marshall's contract, and hired a replacement teacher. Evans-Marshall made various attempts to challenge the dismissal, all of which were denied by the Board.

Evans-Marshall brought suit in federal court under 42 U.S.C. § 1983, seeking injunctive relief and damages. She alleges that she was terminated in "retaliation for the curricular and pedagogical choices she made while teaching at Tippecanoe High School and the exercise of rights under the First Amendment." Evans-Marshall seeks recovery against the Board, as well as Wray and Zigler.

The Defendants-Appellants moved to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court denied the motion; this timely appeal ensued.

II. Analysis of Retaliation Claim

A. Standard of Review and Elements of Retaliation

On a Rule 12(b)(6) motion, we construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the pleader. Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 489 (6th Cir.2002); Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 677 (6th Cir.2001); see also CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 5B FEDERAL PRACTICE AND PROCEDURE § 1357 at 417 (3d ed.2004). Claims under 42 U.S.C. § 1983 "are not subject to heightened pleading standards." Memphis, Tenn., Area Local, Am. Postal Workers Union, AFL/CIO v. City of Memphis, 361 F.3d 898, 902 (6th Cir.2004). Therefore, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). "If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Claims lacking factual merit are properly dealt with through summary judgment under Rule 56. Id. This is because, under the notice pleading standard of the Federal Rules, courts are reluctant to dismiss colorable claims which have not had the benefit of factual discovery. See Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ("The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."). A motion to dismiss "should not be granted `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976) (citing Conley, 355 U.S. at 45-46, 78 S.Ct. 99).

In this case, Evans-Marshall claims she was terminated due to activities protected under the First Amendment. Accordingly, she must allege the following elements in order to establish a constitutionally protected right for the purposes of qualified immunity:

(1) that [she] was engaged in a constitutionally protected activity; (2) that the defendant's adverse action caused [her] to suffer an injury that would likely chill a person of ordinary firmness from continuing in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of [her] constitutional rights.

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