Irby v. McGowan, Civ. A. No. 7793-73-P.

• Decision Date: 11 June 1974
• Docket Number: Civ. A. No. 7793-73-P.
• Citation: 380 F. Supp. 1024
• Parties: Paula R. IRBY, Plaintiff, v. W. Candler McGOWAN et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

380 F. Supp. 1024

Paula R. IRBY, Plaintiff, v. W. Candler McGOWAN et al., Defendants.

Civ. A. No. 7793-73-P.

United States District Court, S. D. Alabama, S. D.

June 11, 1974.

J. Victor Price, Jr., Montgomery, Ala., for plaintiff.

J. B. Blackburn, Bay Minette, Ala., Robert F. Adams, Mobile, Ala., for defendants.

ORDER

PITTMAN, Chief Judge.

The plaintiff is a duly certified school teacher in the State of Alabama and a resident citizen of Baldwin County, Alabama. The defendants are the Principal of the Fairhope High School, the Superintendent of the Baldwin County Board of Education, the members of the Baldwin County Board of Education, and the members of the Fairhope High School Board of Trustees, Baldwin County, Alabama. They are all residents of Baldwin County, Alabama. They are all sued in their individual and representative capacities.

The plaintiff brought this action against the defendants, pursuant to 42 U.S.C. § 1983, seeking: (1) to enjoin the defendants from refusing to reinstate the plaintiff to her position as a teacher in the Baldwin County school system, (2) an injunction requiring the defendants to give the plaintiff a due process hearing on the reasons for her non-renewal, and (3) back pay for the period of time the plaintiff was unemployed by reason of her unconstitutional termination. By Order of this court dated April 3, 1974, the hearing on the preliminary injunction was consolidated with the trial on the merits, pursuant to Rule 65(a) (2), Federal Rules of Civil Procedure.

The complaint alleges three causes of action against the defendants. The first is that the plaintiff was deprived of her liberty or property without due process of law. This contention is based on the fact that the defendants stated that the plaintiff's contract was not renewed because the plaintiff was non-cooperative. The plaintiff contends that by making this charge the defendants damaged the plaintiff's ability to secure other employment, thereby damaging the plaintiff's liberty. The second cause of action alleges that the plaintiff had a reasonable expectation of reemployment arising out of operation of Alabama law and statements made by the defendants, and that this expectation of reemployment was a property right, and that she was deprived of this property right by the action of the defendants in failing to renew her contract. The third cause of action alleges that the plaintiff's First Amendment right to free speech was violated in that the true reason the plaintiff's contract was not renewed was because of her exercise of her right to free speech.

The complaint initially alleged that the defendants informed the plaintiff they would accept a letter of resignation and such resignation would look better on the record.

The plaintiff's contentions as set out in the pretrial documents required by the court allege a "charge of being `non-cooperative' pressed against her by the defendants." The plaintiff further asserts "she had been forced to discuss the circumstances surrounding her past `non-renewal' with other prospective employers."

The plaintiff contends an entry in the minutes of the Board of Education on May 11, 1972, "Mrs. Paula Irby — Dismissed — Non-Cooperative," did not become known to her until February 1973; therefore, the Alabama statute of limitations of one year for tort actions did not apply. At the same time she contends an entry in the minutes is a public record even though not disclosed and constitutes a publication.

The defendants contend that the plaintiff is a non-tenured teacher and that they followed the provisions of Title 52, § 361(2), Code of Alabama of 1940 as last amended,¹ and that the only requirement necessary for the School Board was to give her notice prior to the last day of the term in the school year for which she was employed and this was done. The defendants further contend no publication was made of the minute entry by them and the only disclosure was to the plaintiff's husband, an attorney, at his insistence, in February 1973. Furthermore, the only publication of the entry has been made by the plaintiff, her husband, and persons to whom they saw fit to so inform.

The defendants further contend the plaintiff did not have a property interest in reemployment nor was she entitled to a due process hearing. They further claim that they accepted the plaintiff's resignation in writing, submitted at her husband's suggestion, on May 23, 1972. Defendants further contend the filing of the suit on August 16, 1973, was more than one year past the minute entry date and is barred by the Alabama one year statute of limitation.²

The defendants deny that the plaintiff's free speech was inhibited in any way and that her non-cooperative attitude was a personality quirk manifested by such things as reluctance to comply with orderly procedures, late submissions in violation of established procedures and an unwillingness to take an assigned workload until it was made clear she would have to.

The defendants further contend there were no promises or actions taken prior to her non-reemployment that should have given her a reasonable expectation of reemployment. They claim the true party in interest is the Alabama Education Association who is admittedly bearing the expense of attorney's fees, witness fees, etc.

FINDINGS OF FACT

The parties admit the following facts:

The plaintiff has had five years experience as a teacher, but only one of these years was as an employee of the Baldwin County Board of Education, as a teacher of English in the Fairhope High School. She was employed on a one year contract in a non-tenured status. On the morning of May 23, 1972, plaintiff was given a letter from the Baldwin County Board of Education signed by W. Candler McGowan as its Superintendent, advising her that her employment by the Baldwin County Board of Education would cease on Tuesday, May 23, 1972. This was on or before the last day of the term in which she was employed. Later, plaintiff mailed a letter dated May 23, 1972, addressed to the Board of Education of Baldwin County tendering her final resignation effective as of Tuesday, May 23, 1972.

The defendants did not give the plaintiff a hearing before the non-renewal of her contract.

Mr. W. Candler McGowan, the Superintendent of the Baldwin County Board of Education, prepared the minutes of a special meeting held May 11, 1972, of said Board of Education which contained the statement "Fairhope — Mrs. Paula Irby — Dismissed — Non-Cooperative."

Plaintiff was hired as an English teacher at a time when the entire Baldwin County school system, grades 7 through 12, was in the midst of a three-year, federally funded, experimental English project known as Title III PL 89-10, entitled "Program — Staff Development in English Instruction." The federal government required that this program be approved, audited and evaluated at the end of each scholastic year. This program involved the phasing of students into three phases, the place a student was assigned to depended on his educational level in the subject. Because this program was experimental, and because it had to be conducted within guidelines established by H. E. W., the program required extensive preparation, and evaluation by the teacher.

From the evidence, certain facts are uncontradicted. All the classes she taught were part of the federally funded program which was in the first year of a three year pilot project. The letter of resignation tendered by the plaintiff was at the suggestion of her husband without a suggestion or request from the defendants as originally charged. The resignation was accepted by the defendants.

She made an application for a teaching position with the Mobile County system. In answer to a question on the application "Why did you leave your last employment," her answer was "Resigned to stay home with daughter."

She made an oral inquiry concerning employment at a private school in Baldwin County in August 1972. She was told that it was too late, which she acknowledges as correct, to take applications for the 1972-73 school year. She made oral inquiry to a private school in Mobile in 1972. She did not follow-up on her inquiries or applications in 1973.

All teachers in the project taught on more than one grade level and more than one phase of a three phase program. She objected to an assignment the last six weeks of the school year to a different grade level and a different phase. She made known her objections to other teachers, and taught the course only after a conference with the Principal, and, at her insistence, changes were made from the planned assignment.

The Alabama Education Association (AEA) of which she was, but is no longer, a member, is bearing the plaintiff's expense in this litigation.

The court finds the minute entry "Fairhope — Mrs. Paula Irby — Dismiss — Non-Cooperative." of the Board of Education was not, and has not been, disclosed prior to the taking of evidence in this case by any defendant except to the plaintiff's husband, an attorney, at his insistence in February 1973.

Contrary to her contention that she discussed the circumstances surrounding her past non-renewal with other prospective employers, the court finds she did not.

The court further finds that an inquiry by a fellow teacher, who exercised no authority with reference to renewing contracts, as to whether or not she would serve as co-sponsor for the yearbook the next year, the discussion of a probable room assignment, and a suggestion she leave her materials in the customary cabinets, was nothing more than tentative future planning.

The court further finds that the plaintiff knew contract renewal was not automatic, and that her contract had to be renewed by the Baldwin County Board of Education.

The court finds the plaintiff turned in the name for a scholastic award after the deadline and on the day the awards were to be made. Those in charge of the program overlooked the...