Fishman v. Clancy

• Decision Date: 10 June 1985
• Docket Number: Nos. 84-1753,84-1754,s. 84-1753
• Citation: 763 F.2d 485
• Parties: 119 L.R.R.M. (BNA) 3047, 25 Ed. Law Rep. 168 Donna FISHMAN, Plaintiff, Appellee, v. William J. Clancey, Defendant, Appellant. Donna FISHMAN, Plaintiff, Appellee, v. William J. CLANCY, Defendant, Appellee, Stephen Coppinger, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 485

763 F.2d 485

119 L.R.R.M. (BNA) 3047, 25 Ed. Law Rep. 168

Donna FISHMAN, Plaintiff, Appellee, v. William J. Clancey, Defendant, Appellant.

Donna FISHMAN, Plaintiff, Appellee, v. William J. CLANCY, Defendant, Appellee, Stephen Coppinger, Defendant, Appellant.

Nos. 84-1753, 84-1754.

United States Court of Appeals First Circuit.

Argued March 5, 1985.

Decided June 10, 1985.

Benjamin V. White, III, Providence, R.I., with whom George M. Vetter, Jr. and Vetter & White, Providence, R.I., were on brief for defendants, appellants.

Lynette Labinger, Providence, R.I., with whom Roney & Labinger, Providence, R.I., was on brief for Donna Fishman.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

COFFIN, Circuit Judge.

Defendants-appellants are the superintendent and a principal in the East Greenwich, Rhode Island, school district. A jury found that they retaliated against plaintiff, a teacher in the school system, for her exercise of First Amendment rights. The jury returned a verdict against the superintendent, William Clancy, in the amount of $5,036.42 compensatory damages and $39,000 punitive damages. The verdict against Stephen Coppinger, the principal, was for $5,036.42 compensatory damages and $26,000 punitive damages. Defendants appeal on several grounds. They claim that plaintiff failed to present sufficient evidence that they violated her civil rights, and that the district court thus erred in denying a directed verdict or judgment notwithstanding the verdict. They also argue that the punitive damage awards were unwarranted and excessive, and that the amount of attorneys fees awarded was unjustified. We affirm.

I. Sufficiency of the Evidence

It is well established that a motion for judgment n.o.v. "should be granted only upon a determination that the evidence could lead reasonable men to but one conclusion, a determination made without evaluating the credibility of the witnesses or the weight of the evidence at trial", Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 199 (1st Cir.1980); Cazzola v. Codman & Shurtleff, 751 F.2d 53 (1st Cir.1984). We review this evidence, as we must, in the light most favorable to the plaintiff. Borras v. Sea-Land Service, Inc., 586 F.2d 881, 885 (1st Cir.1978); Dumas v. MacLean, 404 F.2d 1062, 1064 (1st Cir.1968).

Plaintiff joined the East Greenwich schools in 1975 to set up a new reading program. She had taught for 10 years in public schools in the City of Pawtucket where she had a good record and had been given tenure. Plaintiff's conflicts with the administration of the East Greenwich schools began three years after she started there, in September 1978, when she filed her first grievance under her union contract. She filed a second grievance in April 1979. Also during 1979, plaintiff received criticism for counseling two students who wished to file appeals of discipline imposed on them.

The most bitter dispute between plaintiff and defendants arose in March 1980 when plaintiff learned that defendants planned to recommend a cutback in the high school reading program which she taught. She repeatedly urged them to reconsider their decision, and objected as well to her reassignment to teach high school English. When the proposed change in the program was presented to the School Committee in June 1980, plaintiff publicly challenged the wisdom of defendant Clancy's proposal at a heavily attended meeting. She later criticized Clancy's conduct at the meeting in a letter to the editor published in the local newspaper. In another apparent expression of displeasure at the proposed changes, plaintiff got herself "decertified" so that she would be unable to teach high school English. Despite plaintiff's objections, the reading program was reduced and, as a result of changes in her teaching assignment, plaintiff filed two more grievances, bringing her total to four, more than any other East Greenwich teacher had ever filed.

The four grievances, the student counseling and the public criticism of the reduction in the reading program are the First Amendment activities for which plaintiff claimed the defendants retaliated against her. The alleged retaliation first took the form of an unlawful and unjustified termination for an incident which occurred February 9, 1981. On that date, plaintiff wrote a note to another teacher asking that a student be excused from the other teacher's class so the student could take a required test in plaintiff's classroom. The note was untrue; the student, in fact, sought to discuss a personal problem with plaintiff. Instead of meeting with plaintiff, however, the student left school grounds without permission. Principal Coppinger brought the incident to the attention of superintendent Clancy and, on February 13, Clancy sent plaintiff a letter notifying her that she was terminated as of that day.

Defendants' behavior toward plaintiff in response to this incident was irregular in a number of ways. Although Coppinger had met briefly with plaintiff to discuss the untrue note before Clancy sent the termination letter, Clancy did not discuss the incident with her despite his usual practice of meeting with both the teacher and a union representative when a problem arose over a teacher's performance or professional conduct. The evidence suggested that Coppinger did not tell Clancy of plaintiff's explanation for writing the note, the testimony also indicated that Clancy told the School Committee that plaintiff had discharged the student from school rather than having excused her only from another teacher's classroom to come to her own room. Moreover, Clancy did not have authority under state law to terminate plaintiff, a fact to which defendants stipulated. Although Clancy attempted at trial to suggest that his letter of termination was meant only to start the termination process, a jury certainly could have discounted his explanation in light of the wording of the letter, which stated, in part, "You are hereby notified that you are being terminated as a teacher in the East Greenwich Public Schools, effective February 13, 1981" (the date of the letter). The School Committee, in fact, seemed to acknowledge the impropriety of Clancy's action by reinstating plaintiff and treating the time she missed from work as a suspension with pay.

Plaintiff contends that the retaliation continued following her reinstatement, and she has pointed to several specific episodes. First, shortly after she returned to work, she took three days off to take care of matters associated with her aunt's death. Upon her return, she filled out the required form to explain her absence, and checked the reason as "death in the family". The union contract did not provide pay for an absence connected to an aunt's death, and plaintiff testified that she knew she was not entitled to pay and did not claim it. Nevertheless, both Coppinger and Clancy responded to plaintiff's absence form as if she had attempted to deceive them into paying her for the days she missed. Clancy sent her a harshly worded letter questioning her "unauthorized absence" and suggesting that he was considering further job action. Other teachers had reported similar absences the same way but had never received such a letter.

The next incident in the alleged campaign of harassment was plaintiff's reassignment to teach elementary grades in fall 1981. She had never taught at the elementary level in East Greenwich, had not done so for many years before she left Pawtucket, and felt ill prepared for the position. She considered the assignment retaliatory because a reading and study skills position, her area of specialization, was available at the junior high school.

The final incident occurred when plaintiff applied to fill a posted vacancy for a reading specialist position. Clancy rejected her application despite her seniority and extensive experience as a reading specialist, while the teacher selected had little experience in that area. Plaintiff filed a grievance and an arbitrator ruled that Clancy had violated a collective bargaining agreement when he chose someone with less seniority and experience. Plaintiff was then assigned to the reading specialist job.

Appellants respond to these allegations of retaliation by noting plaintiff's improper conduct, and asserting that they were just doing their jobs when they took actions against her. They imply that they would have done nothing differently in the absence of plaintiff's first amendment activities and they urge upon us the admonition in Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 285-86, 97 S.Ct. 568, 50 L.Ed.2d 471 (1976) that a teacher with an otherwise tenuous employment status not be placed in a better position as a result of the exercise of constitutionally protected conduct than she would be in without such conduct. They emphasize the eight-month lag between the most serious conflict--the public confrontation of Clancy about the reading program--and plaintiff's termination, and argue that it is not enough for plaintiff simply to show an adverse employment decision sometime after engaging in constitutionally protected activity.

We agree that the simple fact of plaintiff's termination eight months after the public controversy over the reading program is not enough to show a violation of her constitutional right of free speech. But as the preceding factual summary demonstrates, that is not all plaintiff proved. While it is true that the picture presented at trial was a mixed one, showing plaintiff to be an outspoken teacher who resisted her superiors' program changes by making herself ineligible for her new position and who lied in a note to another teacher, the evidence was more than sufficient to support plaintiff's tale of retaliation for the exercise of her First Amendment rights.

Although it can be argued that the school district's internal remedial procedure tended to protect plaintiff by preventing the defendants from succeeding in their...