Hudson v. Marshall

• Decision Date: 04 March 1977
• Docket Number: No. 9959,9959
• Citation: 94 A.L.R.3d 127,549 S.W.2d 147
• Parties: Frank A. HUDSON, Plaintiff-Appellant, v. Herbert MARSHALL et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 147

549 S.W.2d 147

94 A.L.R.3d 127

Frank A. HUDSON, Plaintiff-Appellant, v. Herbert MARSHALL et al., Defendants-Respondents.

No. 9959.

Missouri Court of Appeals, Springfield District.

March 4, 1977.

Motion for Rehearing or Transfer Denied on March 28, 1977.

Application to Transfer Denied May 10, 1977.

Charles A. Werner, St. Louis, for plaintiff-appellant.

L. D. Joslyn, Philip R. Pruett, Jeffrey C. Vaughan, Joslyn, Joslyn & Vaughan, Charleston, for defendants-respondents.

FLANIGAN, Judge.

This non-jury action was instituted by Frank A. Hudson against defendants, who are members of the Board of Education of Charleston R-I School District. Plaintiff, a former employee of the school district, sought reinstatement to his former position, back pay, and other damages. The petition was in two counts. Count I was based upon violations of certain rights allegedly held by plaintiff as a "permanent teacher" holding an "indefinite contract" under the provisions of the Teacher Tenure Act. (§§ 168.102 to 168.130 V.A.M.S.) ¹ Count II was based upon alleged violations of plaintiff's rights under the federal and state constitutions. The trial court denied plaintiff relief on both counts and plaintiff appeals. This court affirms.

Plaintiff's employment by the board commenced on March 1, 1966, and ended in August 1972. ² His initial contract was for a period of four months commencing March 1, 1966. Thereafter he received annual contracts commencing on July 1 of each year. His first annual contract commenced July 1, 1966. Except for the periods, the years involved, and the salary amounts, his contracts for his original four-month period and for the school years 1967-68, 1968-69, and 1969-70 were substantially in the same form. That form bore the caption "Teacher's Contract." It referred to Hudson as "a legally qualified public school teacher." It stated that Hudson "agrees to teach the public school of said district for the term of twelve months."

The contract for the school year 1970-71 was entitled "Teacher's Employment Contract." It referred to Hudson as "the teacher." It provided that "the teacher agrees to teach in the public schools of said district" for the school year. It included this provision: "As a condition to employment by the Board, the Teacher agrees to obtain prior to the first day of service hereunder and to have at all times during the term of this contract a valid certificate of license to teach in the public schools of the State of Missouri." Plaintiff's final contract, that for the school year 1971-72, was in the same form except for the year involved and the amount of compensation.

Although plaintiff's earlier contracts did not contain an express provision that certification was a condition of his employment, Superintendent Wells, a witness for the defense, testified on direct examination that plaintiff was required to have a license.

As plaintiff's excellent brief points out, the validity of Count I hinges upon the issue of whether plaintiff was a "permanent teacher" within the meaning of § 168.104(4) V.A.M.S.

Those portions of § 168.104 which are germane to this action include the following:

"168.104 Definitions.

The following words and phrases when used in sections 168.102 to 168.130, except in those instances where the context indicates otherwise, mean:

(3) 'Indefinite contract', every contract heretofore or hereafter entered into between a school district and a permanent teacher;

(4) 'Permanent teacher', any teacher who has been employed or who is hereafter employed as a teacher in the same school district for five successive years and who has continued or who thereafter continues to be employed as a full-time teacher by the school district. . . .

(7) 'Teacher', any employee of a school district, except a metropolitan school district, ³ regularly required to be certified under laws relating to the certification of teachers, except superintendents, assistant superintendents, and any other persons regularly performing supervisory functions as their primary duty."

Count I of the petition alleged, in essence: plaintiff was employed by the board from February 15, 1966, until June 30, 1972; the written contracts previously referred to had been executed; "plaintiff's duties under said teacher's contracts was (sic) coordinator of federal programs for the Charleston R-I School District"; under the terms of the contracts plaintiff was required to have "a valid license to teach in the public schools for the State of Missouri" and he was at all times so licensed; at all times after February 15, 1971, plaintiff was a "permanent teacher" within the definition of § 168.104(4) and "as a permanent teacher an indefinite contract existed between plaintiff and defendants under RSMo 168.104(3) and 168.106"; the termination of his contract by defendants was not done in accordance with § 168.116. ⁴

In order to support the cause of action contained in Count I, it was incumbent upon plaintiff to prove the existence of an "indefinite contract." This required proof that plaintiff was a "permanent teacher." Proof that he was a "permanent teacher" necessitated proof that he was a "teacher."

Thus the initial inquiry is, was plaintiff an "employee of a school district . . . regularly required to be certified under laws relating to the certification of teachers"?

Plaintiff, who was 60 years old at the time of trial, obtained a Bachelor of Arts Degree from Southwest Missouri College in 1937. In 1949 he received a Master's Degree from George Peabody College for Teachers, Nashville, Tennessee. Thereafter, he took graduate courses at three universities. He has had a Missouri public school teacher's certificate continuously since 1937 and at least since September, 1969, it has been a lifetime certificate. His certificate authorizes him to teach in the positions of "elementary grades," social studies (secondary schools), elementary principal, and secondary principal. During his period of employment by the board his certificate was on file with the clerk of the district.

Prior to 1966, plaintiff was employed in other Missouri and out-state school districts in various capacities, including sixth grade school teacher, elementary principal and high school principal. On February 24, 1966, the Charleston Board adopted a motion that "Frank Hudson be contracted at a salary of $9,500 as Curriculum Supervisor for federal programs." Minutes of board meetings held in subsequent years listed Hudson among "the following administrators" to whom annual contracts were to be offered.

It was plaintiff's testimony that at no time during his employment by the Charleston Board did he have the title of superintendent, assistant superintendent, elementary principal, or secondary principal. He was initially hired by the board "to make a survey in the curriculum area." In July 1966, when Thomas Wells became superintendent, Wells assigned plaintiff, under the authority of the board, "to become familiar with the various federal education programs under the Civil Rights Act of 1964, and to prepare proposals for the school district under Title I through Title VI of the Civil Rights Act." The trial court found that throughout his employment plaintiff's activities were confined to those duties.

Plaintiff's duties included discussing the various programs with Superintendent Wells, filling out forms for the programs, submitting them to Wells for corrections, and thereafter submitting them to governmental authorities. Plaintiff's work also included the preparation of the budget for "these various federal programs." The budget included salaries for teachers and administrators. Plaintiff's salary was included in the salaries for administrators.

Unlike classroom teachers, plaintiff did not fill out absentee reports when he was absent from his work on occasion. It was his testimony that in his position he could and did "leave the campus pretty well whenever I wanted to during the school day." Although the evidence showed that all teachers were placed on a salary schedule, there was no relationship between plaintiff's salary and the teachers' salary schedule. Like classroom teachers, however, plaintiff received a monthly salary check from the school district and from that check a deduction was made for hospital insurance "arranged by the Missouri State Teachers Association." Another deduction from plaintiff's check was for "Missouri State Teachers Retirement" to which the state made matching contributions.

Among the exhibits introduced were copies of letters which plaintiff had written to government officials in which plaintiff described his own position as "Administrator and Supervisor, Title I Projects, PL 89-10." Plaintiff, however, minimized the degree of his contact with other employees of the school system, including teachers. Although one governmental form recited that plaintiff's duties included "day to day supervision of Title I staff," it was plaintiff's testimony that "I did not do that." He said he did not do any supervision of the Title I staff, day to day or otherwise.

Plaintiff was not assigned to a classroom and did not, at least in the usual sense, teach or have contact with students. ⁵ It was plaintiff's testimony that he did not hire, terminate, transfer, assign, evaluate, promote, discipline, or reward any teachers, nor was he responsible for their work. Plaintiff's office was located in the central office building which also contained the offices of the superintendent, the assistant superintendent, the meeting room of the board, and two stenographers. Plaintiff did no supervision of the classroom teachers, that supervision being done by the principal.

On April 13, 1972, plaintiff appeared before the board to present some of his "proposals." After plaintiff left the meeting, the board voted "that Frank Hudson not be rehired for the 1972-73 school year." On April 14, 1972, Superintendent Wells gave written notice to the...