Lipp v. Board of Education of City of Chicago, 71-1912.

• Decision Date: 27 November 1972
• Docket Number: No. 71-1912.,71-1912.
• Citation: 470 F.2d 802
• Parties: David A. LIPP, individually and on behalf of all other teachers similarly situated, Plaintiff-Appellant, v. The BOARD OF EDUCATION OF the CITY OF CHICAGO et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

470 F.2d 802 (1972)

David A. LIPP, individually and on behalf of all other teachers similarly situated, Plaintiff-Appellant, v. The BOARD OF EDUCATION OF the CITY OF CHICAGO et al., Defendants-Appellees.

No. 71-1912.

United States Court of Appeals, Seventh Circuit.

Argued November 1, 1972.

Decided November 27, 1972.

Robert K. Downs, Chicago, Ill., for plaintiff-appellant.

James W. Coffey, James E. Riley, Chicago, Ill., for defendants-appellees.

Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and PELL, Circuit Judge.

CASTLE, Senior Circuit Judge.

This case is another in the field of public employment relations law where a procedure set forth in a collective bargaining agreement between a governmental unit and a union representing public employees is challenged on constitutional grounds. Plaintiff David Lipp brought this class action against the Board of Education of the City of Chicago challenging the grievance procedure established in a collective bargaining contract between the Board and his union because it did not provide rights allegedly guaranteed by the due process clause of the fourteenth amendment. The district court dismissed the complaint for failure to state a cause of action, and this appeal followed.

Mr. Lipp's complaint alleged the following facts. Plaintiff Lipp was a full time basis substitute teacher with temporary certification employed by the Board of Education at the John T. Pirie Elementary School in Chicago. On June 17, 1970, the Bureau of Teacher Personnel of the Board received an efficiency rating of Lipp made by his principal, Philip M. Carlin. This rating found the plaintiff's work to be generally satisfactory, but reported that his appearance and practice of following school policies were unsatisfactory. It also contained Carlin's comments that Mr. Lipp "has a negative attitude towards the school as an institution" and that Lipp's concern for his pupils may not be efficacious "because of his extreme anti-establishment obsession." In response to the question on the rating sheet whether he would request the return of Lipp as a temporarily certified teacher if there should be an opening, Principal Carlin answered negatively.

No copy of this efficiency rating was given to Lipp before it was sent to the Bureau of Teacher Personnel. After he learned of the contents of the rating, plaintiff filed a grievance under the collective bargaining agreement covering him which alleged that Carlin had violated a provision of the contract requiring that efficiency ratings "be distributed to the individual teacher at the local school." Lipp's union represented him through the various stages of the grievance procedure in hearings before the Principal, the District Superintendent, and the General Superintendent. In each instance the Board of Education denied the grievance because of its consistent past practice of withholding ratings from temporarily certified teachers such as the plaintiff. The union then notified the plaintiff that it would no longer represent him in the grievance because the question of providing copies of ratings had been resolved during negotiations for a new contract. At the final grievance meeting where plaintiff was represented by his own attorney, the Board again denied the grievance and refused to remove the rating from his record. This lawsuit followed.

Lipp's complaint further alleged that the efficiency rating procedure violated the elementary rules of due process¹ and that the rating given him by Principal Carlin "damaged his reputation" and "will negatively influence his ability to obtain employment in the future." The prayer for relief asked for a declaration that the rating procedure violated teachers' due process rights, an injunction against continued use of the rating procedure, and the removal of the rating given the plaintiff from his record.

Defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted, arguing that the complaint did not assert facts showing a deprivation of liberty or property within the meaning of the fourteenth amendment. The district court granted this motion on October 19, 1971. In its memorandum opinion, the court applied the balancing test of Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), and found that the statutory duty of the principal to rate his teachers outweighed the plaintiff's interest in avoiding possible derogatory remarks about himself, especially since the plaintiff did not allege a loss of employment, salary, or other benefits in his complaint.

In this appeal plaintiff argues that the main issue is not whether the due process clause requires a hearing before the efficiency ratings are made, but rather, once a hearing procedure for grievances has already been established, whether this procedure must conform to constitutional due process standards.² This argument, however, ignores the fact that the due process clause imposes its procedural safeguards only to protect certain vital individual interests—life, liberty, and property. "To determine whether due process requirements apply in the first place . . . we must look to see if the interest is within the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). Unless a plaintiff alleges facts to show that he is demanding procedural safeguards to protect an interest recognized by the fourteenth amendment, the procedural protections will never come into play.³

The United States Supreme Court has recently defined the extent of the concepts of "liberty" and "property" as they apply to the interests of an individual in public employment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The facts which the plaintiff has alleged in his complaint do not show that he has been deprived of either "liberty" or "property" so that due process protection was required in rating his teaching performance.

The complaint did not allege facts to show that plaintiff was deprived of liberty. The concept of liberty recognizes two particular interests of a public employee: 1) the protection of his good name, reputation, honor and integrity, and 2) his freedom to take advantage of other employment opportunities. Board of Regents v. Roth, 408 U.S. at 573-574, 92 S.Ct. 2701. Plaintiff did allege that his reputation was damaged as a result of his being labeled "anti-establishment" in the efficiency rating. But not every remark which may arguably affect one's reputation...