Lewis v. Harrison School Dist. No. 1
| Decision Date | 01 November 1985 |
| Docket Number | Cir. No. 84-3022. |
| Citation | 621 F. Supp. 1480 |
| Parties | Bill LEWIS, Ed. D., and Judy Lewis, Plaintiffs, v. HARRISON SCHOOL DISTRICT NO. 1; Terry Humble, Superintendent of Schools, Harrison School District No. 1; Joe Bill Wilson, M.D., Tom Rogers, Cathy Brandt, Bobby Lowe, Robert Kent, D.D.S., Richard Hudson, James Harness, and Janet Clark, Individually and in their Official Capacities as Members of the Board of Education of the Harrison School District No. 1 of Boone County, Arkansas, and Roy Horne and Joyce Lindsey, Individually and as Members of the School Board of the Harrison School District No. 1, Defendants. |
| Court | U.S. District Court — Western District of Arkansas |
Philip E. Kaplan, and Karen L. Arndt, of Kaplan, Brewer & Miller, P.A., Little Rock, Ark., for plaintiffs.
Felver Rowell, Jr., Morrilton, Ark., G. Ross Smith, P.A., Little Rock, Ark., for defendants.
The instant action arises under 42 U.S.C. § 1983, involving conduct on the part of defendant Humble as Superintendent of Harrison School District No. 1, the individual members of the Board of Education of the Harrison School District, and the Harrison School District as a governmental entity. Plaintiffs contended that various actions by the defendants violated the rights secured to them by the First Amendment.
Specifically, plaintiff Bill Lewis alleged that he was wrongfully terminated from his employment as principal of the Harrison High School as a result of a speech he presented to the Harrison School Board during the May 12, 1981, meeting of the board. Dr. Lewis asserted that his speech was protected under the First Amendment and that his termination was retaliatory, thus entitling him to back pay, reinstatement and damages. Plaintiff Judy Lewis alleged that she was threatened with an involuntary transfer of her teaching position from Harrison High School to Harrison Junior High School as a result of her activities with the Harrison Education Association.
Defendants contended during trial that plaintiffs' conduct was not protected by the First Amendment, and that, in any event, Dr. Lewis would have been terminated for reasons unrelated to his speech at the May 12, 1981, school board meeting and further that the proposal to transfer Judy Lewis was unrelated to her HEA activities. The individual defendants additionally assert that they are entitled to qualified immunity based on "good faith."
The case was tried to a jury from September 19 through September 23, 1985. At the close of the evidence, the court submitted ten interrogatories to the jury. The answers to certain of the interrogatories mandated a judgment in favor of defendants with regard to the claim of Judy Lewis. A damages verdict form with respect to the claim of Dr. Lewis was then submitted to the jury. The jury returned a verdict assessing the sum of $25,348.00 as "wages lost" and $5,000.00 as compensation for "violation of First Amendment right to freedom of speech."
Prior to submission of the interrogatories and verdict form to the jury, the court advised the attorneys that it would take under consideration the issue whether the speech or conduct of Dr. Lewis was protected, after considering the pertinent answers to interrogatories and evaluating their legal effect. For reasons set forth below, the court declined to issue a definitive ruling during trial as to whether the speech was protected. In order to avoid a possible re-trial on the issue of damages in the event the court of appeals ultimately disagreed with the court's decision, the issue of damages was submitted to the jury for determination.
At this juncture the court had some doubt as to whether presumed "compensatory" damages for the violation of Dr. Lewis' First Amendment rights could be recovered in this action. The court submitted this element of damage to the jury subject to later decision on this issue, also in an effort to avoid the necessity of a re-trial in the event of disagreement by the court of appeals. The issue of good faith "qualified" immunity was taken under consideration by the court at the close of the evidence. The court will now discuss whether Dr. Lewis' speech was protected, whether the issue of presumed "compensatory" damages was properly submitted to the jury, and the applicability of qualified good faith immunity.
Dr. Lewis' claim invokes the holding in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), that "public employee(s) do not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 1686, 75 L.Ed.2d 708 (1983). It is well-settled that consideration of such claims involves a three-step analysis. First, plaintiffs must demonstrate that their conduct was protected; second, plaintiffs must demonstrate that such protected conduct was a substantial or motivating factor in the adverse employment decision; and third, the employer may then show that the employment action would have been taken even in the absence of the protected conduct. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Bowman v. Pulaski County Special School District, 723 F.2d 640, 643-44 (8th Cir.1983).
Identification of protected activity since Connick is a two-step process. Roberts v. Van Buren Public Schools, 773 F.2d 949 (8th Cir.1985). As a threshold matter, the speech must have addressed a "matter of public concern," 461 U.S. at 143, 146, 103 S.Ct. at 1688, 1689; see Collins v. Robinson, 568 F.Supp. 1464, 1468 (E.D.Ark.1983), aff'd per curiam, 734 F.2d 1321 (8th Cir. 1984). If the speech involves a "matter of public concern," the interest of the employee in so speaking must be balanced against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35. The "Pickering balance" requires consideration of the following factors:
(1) The need for harmony in the office or work place; (2) whether the government's responsibilities require a close working relationship to exist between the plaintiff and co-workers when the speech in question has caused or could cause the relationship to deteriorate; (3) the time, manner, and place of the speech; (4) the context in which the dispute arose; (5) the degree of public interest in the speech; and (6) whether the speech impeded the employee's ability to perform his or her duties.
The inquiry into the protected status of speech is ultimately one of law, not fact. See Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690 n. 7; Roberts, supra, at 954; Brockell v. Norton, 732 F.2d 664, 667 (8th Cir. 1984). Proper resolution of this issue, "particularly as to the balancing, may involve determination by the jury of certain underlying facts ...." Roberts, at 954. However, the precise nature of the role of the jury in this determination is not well defined, and, in fact, if the Court of Appeals for the Eighth Circuit means what it seems to say in McGee v. South Pemiscot School Dist. R-V, 712 F.2d 339, (8th Cir. 1983), the jury's role in cases such as this one may be great indeed.
In McGee, supra, the trial judge instructed the jury that its verdict "had to be for the defendants if it believed that McGee's `exercise of free speech had a disruptive impact upon the employees of Defendant ....'" McGee at 342. In that case the court of appeals stated:
The above-quoted language from McGee clearly implies that a school board may dismiss an employee for criticizing school policies, even if the policies are of public interest, so long as the speech contains knowingly or recklessly false statements, or undermines the ability of an employee to function, or interferes with the operation of the school. McGee also states that the "knowingness," "recklessness" and falsity of any statements are for the jury to determine, as well as whether the speech "undermined" the employee's ability to function, and whether the speech "interfered" with the operation of the school: "The jury obviously found that the letter did not have a disruptive impact, and there is sufficient evidence to support that view." McGee at 342.
McGee, then, indicates that it is proper to tell a jury to return a verdict for the defendants if the jury finds that the speech had a "disruptive impact" upon the employees of the school. There is very little balancing of interests implicit in this recognition. In other words, under the language in McGee, a First Amendment claim may be entirely defeated if the jury finds a "disruptive impact" of the speech by a preponderance of the evidence. The jury was told to determine the "disruptive impact" of the speech, and then was told that "its verdict had to be for the defendants" if it found a "disruptive impact." McGee at 342 (emphasis added). A review of the trial court's opinion in granting defendants' motion for a judgment n.o.v. in the McGee case similarly reflects no "balancing." See McGee v. South Pemiscot School District R-V, 545 F.Supp. 171 (E.D.Mo.1982). Although the court of appeals in McGee cited Connick, see McGee, 712 F.2d at 342 n.4, taken at face value McGee essentially allows the jury to determine the...
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Lewis v. Harrison School Dist. No. 1
...damages. The district court 1 set aside this verdict, detailing its reasoning in a published opinion. See Lewis v. Harrison School District No. 1, 621 F.Supp. 1480 (W.D.Ark.1985). The district court found (1) that as a matter of law Lewis' speech was not protected under the first amendment,......