McCullough v. Wyandanch Sch. Dist.
| Decision Date | 01 August 1998 |
| Docket Number | Docket No. 98-7274 |
| Citation | 187 F.3d 272,1999 WL 592250 |
| Parties | (2nd Cir 1999) MICHAEL MCCULLOUGH, Plaintiff-Appellee, v. WYANDANCH UNION FREE SCHOOL DISTRICT, THE BOARD OF EDUCATION OF THE WYANDANCH SCHOOL DISTRICT, DR. ANTHONY PECORALE, Individually and as Interim Superintendent, Defendants-Appellants, DR. RICHARD ROSS, Individually and as Superintendent, Defendant |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from an order of the United States District Court for the Eastern District of New York (Thomas C. Platt, Judge) entered January 21, 1998, denying defendants-appellants' motion for summary judgment.
Reversed in part and remanded.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Richard C. Hamburger, Melville, NY (David N. Yaffe, Hamburger, Maxson & Yaffe, Melville, NY, of counsel), for Defendants-Appellants.
Alan C. Stein, Law Office of Alan C. Stein, Manhasset, NY, for Plaintiff-Appellee.
Before: PARKER and SACK, Circuit Judges, and SEAR*., District Judge.
Appellants Wyandanch Union Free School District, the Wyandanch Board of Education, and Anthony Pecorale, interim superintendent, appeal from an order of the United States District Court for the Eastern District of New York (Thomas C. Platt, Judge) entered January 21, 1998, denying appellants' motion for summary judgment. Appellants terminated appellee from his position as assistant superintendent. Appellee sued under 42 U.S.C. § 1983, claiming that the termination violated the First Amendment because it was motivated by public statements appellee had made about the operation of the school district. Appellee also claimed that materials in his personnel file unconstitutionally stigmatized him in violation of the Due Process Clause of the Fourteenth Amendment. The district court denied appellants' motion for summary judgment on both claims. The district court also denied appellant Pecorale's summary judgment motion seeking qualified immunity on both claims.
On November 2, 1992, appellee was appointed Assistant Superintendent for Curriculum and Instruction of the Wyandanch Union Free School District. Appellee was an at-will employee hired for a three-year probationary term. He was, however, eligible for tenure if he completed three successful years in the position.
Within the school district administration, appellee's position was subordinate only to the school district superintendent, to whom appellee reported directly. Among appellee's responsibilities, as set forth in his official job description, were the duties to develop new curriculum, to assist in the formulation of educational philosophy and objectives, and to communicate approved curriculum and philosophy to the school board, district administration and staff, and the general public. From the start of his appointment, appellee regularly opined that the lack of leadership within the school district caused students to receive a below average education. For example, appellee stated that students were not kept under control, that test scores were being manipulated, that high school credit requirements were not adhered to, that no standard for grading existed, that principals lacked the ability to direct their staffs, and that the school leadership lacked a "clear mission" and did not keep apprised of developments in the field of education. Appellee made these and similar statements at bi-monthly school board meetings and at regularly scheduled school-wide meetings. He made comments to board members, senior administrators, parents of students, and members of the general public. In February 1995, he expressed his opinions on a radio talk show.
In moving for summary judgment, appellants proffered evidence, uncontroverted by appellee, that appellee's speech caused disruption in the school district. Specifically, the speech caused hostility between appellee and various district employees, including principals and teachers. One principal asked to be relieved of the obligation to work with appellee. Moreover, appellants proffered, again without contravention, that appellee's statements were "likely to cause tremendous disruption to the functioning of the School District" because the comments were "contrary to the goals established by the Board of Education."
Over the course of his employment, appellee received a number of written censures and negative evaluations directed at his job performance. None of the negative evaluations referred to the disruptive statements made by appellee.
On May 8, 1995, Pecorale notified appellee that Pecorale would recommend to the board of education that appellee's appointment be terminated. On June 21, 1995, (appellee having served for two and one-half years) the board terminated him.
On December 1, 1995, appellee sued the board of education, the school district, superintendent Richard Ross, and Pecorale under 42 U.S.C. § 1983. As amended, the complaint raised two claims: that appellee was terminated for exercising his First Amendment right to speak out on the administration of the district's schools, and that the negative evaluations discussed above contained stigmatizing allegations that deprived or threatened to deprive appellee of liberty without due process of law. The claims against Ross were subsequently dismissed.
On October 30, 1996, the documents alleged by appellee to contain unconstitutionally stigmatizing statements were permanently removed from appellee's personnel file. According to Assistant Superintendent Calvin Wilson, the documents are being kept by the school district's attorney. Wilson has instructed human resources personnel to respond to inquiries by prospective employers of appellee by revealing only the dates of appellee's employment and his salary. Wilson asserts that none of the allegedly stigmatizing statements have been made public. Appellee conceded at his deposition that he had no "written information" that the materials had been made public. Appellee testified that he "ha[s] a sense" that the materials have been disclosed, because professionals in this field have "a tendency to share information that should not be shared."
After discovery was completed, appellants moved for summary judgment. On the First Amendment claim, appellants argued that appellee's speech was not protected. On the Due Process claim, appellants argued primarily that the undisputed evidence showed that there was no likelihood that the allegedly stigmatizing allegations against appellee had been or ever would be disclosed. Additionally, Pecorale argued that he was entitled to qualified immunity on both claims.
Appellee argues that we lack jurisdiction over this appeal because the qualified immunity issues raised by Pecorale turn on disputed issues of fact. The district court's denial of the qualified immunity defense on a summary judgment motion is an appealable final decision to the extent that the denial turns on an issue of law. Genas v. State of N.Y. Correctional Services, 75 F.3d 825, 830 (2d Cir. 1996). As the discussion that follows will show, the material facts are undisputed and this is an appeal on "plaintiff's version" of the facts. Thus, the issues presented are questions of law and we have jurisdiction. See Salim v. Proulx, 93 F.3d 86, 91 (2d Cir. 1996) ().
The district court held that "a factual issue exists as to whether defendant's action in firing plaintiff comported with the First Amendment." It did not explain, however, how any factual dispute precluded a decision on qualified immunity. Moreover, it is not necessary for a district court to determine whether in fact the First Amendment was violated before deciding whether a defendant is entitled to qualified immunity. As the discussion below shows, the whole point of the qualified immunity defense is to allow a defendant to be dismissed out of the case even if a right was actually violated (i.e., where it can be shown that the right asserted was not clearly established at the time, or that if the right was clearly established, it was objectively reasonable for the defendant to believe he or she was not violating it).
The same is true of the district court's analysis of the Due Process claim. The district court cited to no facts in the record that actually were disputed. Nor did the district court evince awareness of the fact that Pecorale could be entitled to qualified immunity even if appellee's Due Process rights had been violated.
The school district and the board of education urge us to exercise pendent jurisdiction over their appeal from the denial of summary judgment on the First Amendment and Due Process claims. They argue that the pendent issues with regard to the underlying claims are intertwined with the qualified immunity issues. See Swint v. Chambers Count Comm'n, 514 U.S. 35, 51 (1995) (); see also Rein v. Socialist People's Libyan Arab Jamahiriya, 162 F.3d 748, 757 (2d Cir. 1998) (), cert. denied, 119 S. Ct. 2337 (1999).
As the discussion that follows will show, we agree with appellants that there is sufficient overlap in the factors relevant to the appealable and nonappealable issues to warrant exercising pendent jurisdiction over the Due Process claim. See Freeman v. Complex Computing Co., 119 F.3d 1044, 1049-50 (2d Cir. 1997) (). However, insufficient overlap exists with respect to the First Amendment issues....
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