Holthaus v. Board of Educ., Cincinnati Public Schools, 92-3422

• Decision Date: 02 March 1993
• Docket Number: No. 92-3422,92-3422
• Citation: 986 F.2d 1044
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 353, 61 Empl. Prac. Dec. P 42,143, 81 Ed. Law Rep. 435 Dennis R. HOLTHAUS, Plaintiff-Appellant, v. BOARD OF EDUCATION, CINCINNATI PUBLIC SCHOOLS; Lee Etta Powell, Doctor, Superintendent in her official capacity, Cincinnati Public Schools, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1044

986 F.2d 1044

61 Fair Empl.Prac.Cas. (BNA) 353,

61 Empl. Prac. Dec. P 42,143, 81 Ed. Law Rep. 435

Dennis R. HOLTHAUS, Plaintiff-Appellant, v.BOARD OF EDUCATION, CINCINNATI PUBLIC SCHOOLS; Lee Etta Powell, Doctor, Superintendent in her official capacity, Cincinnati Public SchoolsDefendants-Appellees.

No. 92-3422.

United States Court of Appeals Sixth Circuit.

Argued Jan. 25, 1993.

Decided March 2, 1993.

Robert C. Cetrulo, Covington, KY, Mark A. MacDonald (argued and briefed), Lindhorst & Dreidame, Cincinnati, OH, Stephen T. McMurtry, McMurtry & Wolff, Covington, KY, for plaintiff-appellant.

David T. Croall(argued and briefed), James K.L. Lawrence, Frost and Jacobs, John J. Finnigan, Jr., McCaslin, Imbus & McCaslin, Cincinnati, OH, for Board of Educ., Cincinnati Public Schools.

David T. Croall, James K.L. Lawrence, Frost and Jacobs, John P. Concannon, Cincinnati, OH, for Lee Etta Powell, Doctor, Superintendent in her official capacity, Cincinnati Public Schools.

Before: KENNEDY and GUY, Circuit Judges; and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

PlaintiffDennis Holthaus appeals the district court's grant of summary judgment in favor of defendantsCincinnati Board of Education("School Board") and Dr. Lee Etta Powell in her official capacity as Superintendent of Schools.Suing under 42 U.S.C. § 1983(1988), Holthaus claims that his constitutional right under the Fourteenth Amendment to substantive due process was violated when defendants terminated his one year high school football supplemental coaching contract.Because we determine that defendants did not infringe an interest implicating substantive due process, we AFFIRM the district court's grant of summary judgment.

I

Holthaus contracted to be head varsity football coach at Aiken High School during the 1989-90 school year.At that time, Holthaus had taught in the Cincinnati Public School District for seventeen years and had served many years as an assistant football coach before becoming the head football coach at Aiken in 1986.He also taught driver education.

Aiken High School has an enrollment exceeding 1,500 students.Approximately 75% of Aiken students are Black, but the staff is about 75% white.The school had a history of racial tension and race relations problems.

Before the 1989 football season started, Aiken's football team engaged in the customary August "two-a-day" practice sessions.Damon Flannigan, the team captain who is Black, informed Holthaus that the team did not want to be perceived by the community as "rowdy ... niggers."Thereafter, during a practice session, in an apparent effort to motivate the team to practice harder, Holthaus told the players, "Now you are acting like you didn't want to act.Now you are starting to act like a bunch of niggers."

Because of that remark, the School Board, after a hearing, terminated Holthaus' supplemental 1989-90 coaching contract though he continued to teach driver education.¹In response, Holthaus requested a hearing before an independent referee to which he was entitled.After a two-day hearing, the referee recommended that Holthaus be reinstated and that this incident be expunged from his record.The School Board, however, rejected the referee's recommendation.Holthaus appealed the Board's decision, and then, in a proceeding in state Common Pleas Court, he was basically awarded back pay with benefits and reinstatement, when feasible, as football coach.²

Meanwhile, Holthaus initiated the present action under § 1983 and state law, alleging, inter alia, that the Board's actions violated his constitutional right to substantive due process under the Fourteenth Amendment.The district court granted summary judgment for the defendants on the claims brought under § 1983 and dismissed the state law claims "for lack of jurisdiction."Holthaus appealed, contending only that his discharge from his position as football coach amounted to a violation of substantive due process.

II

This court reviews a grant of summary judgment de novo, making all reasonable inferences in favor of the non-moving party.EEOC v. University of Detroit, 904 F.2d 331, 334(6th Cir.1990).Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law.Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265(1986).

III

In Ramsey v. Board of Education of Whitley County, Kentucky, 844 F.2d 1268(6th Cir.1988), and in Charles v. Baesler, 910 F.2d 1349(6th Cir.1990), this court held that a breach of contract by a public employer does not give rise to a claim by its employee under § 1983 for a denial of substantive due process.Moreover, in Sutton v. Cleveland Board of Education, 958 F.2d 1339, 1351(6th Cir.1992), this court held that a claim by a public employee for improper discharge from employment cannot be brought under the substantive due process component even though the employment contract provides that the employee could only be discharged for just cause.

Holthaus attempts to circumvent the rule stated in Charles, Ramsey, and Sutton by recharacterizing the School Board's action.Holthaus asserts that rather than simply terminating his employment, the Board discharged him "by [improperly] charging him with immorality and willful violations of School Board rules, which, if true, would seriously impugn his character,...