Hardiman v. Jefferson County Bd. of Educ.

• Decision Date: 22 June 1983
• Docket Number: No. 81-7816,81-7816
• Parties: 12 Ed. Law Rep. 19 Kerry Dale HARDIMAN, individually and on behalf of all others similarly situated; American Federation of Teachers, Local 2143, Plaintiffs-Appellants, v. JEFFERSON COUNTY BOARD OF EDUCATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 635

709 F.2d 635

12 Ed. Law Rep. 19

Kerry Dale HARDIMAN, individually and on behalf of all

others similarly situated; American Federation of

Teachers, Local 2143, Plaintiffs-Appellants, v. JEFFERSON COUNTY BOARD OF EDUCATION, Defendant-Appellee.

No. 81-7816.

United States Court of Appeals, Eleventh Circuit.

June 22, 1983.

Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiffs-appellants.

Bishop, Sweeney, Colvin & Johnson, Carl E. Johnson, Jr., Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT and HATCHETT, Circuit Judges and MORGAN, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

This appeal involves a due process challenge to the suspension with pay of a tenured teacher and coach, Kerry Dale Hardiman, employed by the Jefferson County, Alabama, Board of Education. We hold that Hardiman failed to establish the Board's infringement of either a protected "property" interest or a "liberty" interest within the meaning of the due process clause of the fourteenth amendment. Consequently, we affirm the district court's order granting summary judgment for the Board.

On May 12, 1981, the principal of Bottenfield Junior High School, Charles Smith, informed Hardiman that a student, Johnny Batchelor, had accused Hardiman of touching Batchelor's girlfriend on the buttocks and of poking her breast with a fork while she was standing in the lunch line. Hardiman denied the allegations and immediately requested to meet with the students and parents involved to resolve the matter. Two days later, on May 14, Smith told Hardiman that the parents would not talk to him or let their children talk to him and that they wanted the matter taken straight to the Board. On that day, and on May 15, Smith informed Board members Gerald Godfrey and Bill Pugh about the allegations and about Hardiman's denial. Also on May 15, Hardiman met with a union representative from the local chapter of the American Federation of Teachers (AFT), Pryor Conrad. Conrad called Godfrey and told him that Hardiman was concerned about the allegations and that he wanted a conference immediately. The following Monday, May 18, Smith informed Hardiman that the Board had suspended him with pay, effective immediately, pending a hearing before the full Board. Hardiman immediately left the school grounds.

On May 21, Hardiman filed this action in district court seeking preliminary and permanent injunctive relief ordering that he be reinstated and that he not subsequently be suspended or terminated. Hardiman also sought to represent the class of employees of the Board who were or who would be suspended with pay without due process of law. The next day, May 22, the court held a hearing on Hardiman's prayer for a preliminary injunction. The court heard testimony from Hardiman and Smith. Before the court could render its decision, however, the parties agreed that a hearing would be held the following Tuesday, May 26, before a neutral Board member who would decide whether Hardiman should be suspended with pay pending a hearing before the full Board. Thus, the court withheld ruling on Hardiman's prayer for injunctive relief. The agreed-to hearing was held before Joe Moore, Director of Student Services, who decided that Hardiman should be suspended with full pay pending a full Board hearing. Before the Board could convene this hearing, however, Hardiman resigned.

On June 8, the Board moved to dismiss Hardiman's complaint as moot. On July 1, Hardiman amended his complaint to assert a claim for nominal and compensatory damages for the deprivation of due process, and to add AFT Local 2143 as a party plaintiff. On July 21, the district court ordered that the Board's motion to dismiss would be deemed a motion for summary judgment, and requested the parties to file briefs and affidavits in support of or in opposition to the motion. On September 3, the district court entered its order granting summary judgment in favor of the Board. The court held that Hardiman's resignation rendered his individual due process claim moot, and that the case was not a proper one for class certification. As an alternative ground for rejecting Hardiman's claim, the court noted that "there was no property loss prior to resignation. Neither is there substantial evidence that [the Board] published the action taken by it [and therefore its action implicated no liberty interest]." We affirm the district court's order based in part on this alternative ground.

Hardiman argues on appeal that the district court erred in rejecting his claim for nominal and compensatory damages for the period between May 18, when he was suspended with pay, and May 26, when he received a hearing before a Board member. He argues that his subsequent resignation did not moot his claim for any damages incurred in this time period. We agree with Hardiman on this point. Nevertheless, in order to prevail on his claim, Hardiman must show that the Board's action in suspending him with pay for a little over a week pending a hearing before the Board infringed on some protected property or liberty interest.

Hardiman argues that the mere fact that he was suspended with full pay should not be dispositive. He asserts that his property interest under state law extends not only to the full pecuniary benefits of his position, but also to the right to teach and coach. ¹ We need not reject this contention absolutely in order to dispose of it here. In Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the Supreme Court stated: "The Court's view has been that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause." Id. at 576, 95 S.Ct. at 737 (citations omitted). Assuming, without deciding, that the right to teach and coach standing alone can constitute a protected property interest under the due process clause, we hold that Hardiman's interest in teaching and coaching for the period from May 18 to May 26 was de minimis. ² Thus, the Board did not have to take account of the due process clause to protect any property interest of Hardiman's.

Hardiman argues also that his suspension with pay from May 18 to May 26 infringed on his liberty interest because the charges against him were likely to stigmatize him and did stigmatize him in the community. There is no question that the nature of the charges here are such that they may stigmatize a person and thus give rise to a liberty interest. See Board of Regents v. Roth, 408 U.S. 564, 572-75, 92 S.Ct. 2701, 2706-08, 33 L.Ed.2d 548 (1972). Nevertheless, there are two reasons why Hardiman fails to establish a protected liberty interest.

The first hurdle stems from the Supreme Court's decision in Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1161, 47 L.Ed.2d 405 (1976), that a person's interest in reputation alone, "apart from some more tangible interests such as employment," is not a protected liberty interest within the meaning of the due process clause. As we recognized in Moore v. Otero, 557 F.2d 435, 437 (5th Cir.1977): "To establish a liberty interest sufficient to implicate fourteenth amendment safeguards, the individual must be not only stigmatized but also stigmatized in connection with a denial of a right or status previously recognized under state law."

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