McQueeney v. Glenn, 1-379A100

Citation400 N.E.2d 806
Decision Date19 February 1980
Docket NumberNo. 1-379A100,1-379A100
Parties115 L.R.R.M. (BNA) 4400 Patricia McQUEENEY, Plaintiff-Appellant, v. Max GLENN, as an Individual and as Superintendent of the Greenfield-Central School Corporation, and Greenfield-Central Community School Corporation, Defendants-Appellees.
CourtCourt of Appeals of Indiana

Donald F. Foley, Yaeger, Foley & Cutter, Indianapolis, for plaintiff-appellant.

John R. Van Winkle, Ging, Free, Brand, Tosick & Van Winkle, Greenfield, for defendants-appellees.

NEAL, Judge.

Plaintiff-appellant Patricia McQueeney appeals from a judgment denying her action for an injunction and damages against defendants-appellees Max Glenn and Greenfield-Central Community School Corporation.

She raises the following issues for our review:

I. (A) Whether the trial court erred in finding that plaintiff's discharge was not in violation of 42 U.S.C. § 1983 (1976).

(B) Whether the trial court's findings of fact and conclusions of law were inconsistent with the judgment, thus making the judgment clearly erroneous.

II. Whether the trial court's judgment was clearly erroneous in finding that plaintiff was an employee at will and lacked a legitimate claim of entitlement to continued employment.

III. Whether the trial court erred in failing to find that the exercise of the right of free speech by plaintiff and her husband was the motivating factor in her discharge, and whether the trial court erred in placing the burden on plaintiff to show that the exercise of the right of free speech was a motivating factor in her discharge.

IV. Whether the trial court's judgment was clearly erroneous in finding that plaintiff had no guaranteed right of due process.

V. Whether the trial court's judgment was clearly erroneous in finding that plaintiff's discharge was not motivated by the exercise of her rights of free speech and free association.

VI. Whether the trial court's judgment was clearly erroneous in concluding that the school board had given defendant Glenn the authority to discharge plaintiff and that the discharge did not violate the statutes of Indiana.

VII. Whether the trial court's judgment was clearly erroneous in concluding that plaintiff was not entitled to a preliminary and permanent injunction for reinstatement and back pay.

We affirm.

The evidence presented at the trial most favorable to support the judgment, and necessary for the determination of this case, is as follows:

Plaintiff was hired as a general office secretary for the central office of the Greenfield-Central superintendent of schools in 1971. There was no evidence that she had a contract, nor was there any evidence that she was promised tenure. On July 1, 1975, defendant Glenn was hired as superintendent of the school corporation. At that time plaintiff's principal duty was secretary to the assistant superintendent, Keith Davis. A conflict between Keith Davis and defendant Glenn led to the former's reassignment to the position of principal at a grade school in June, 1976, whereupon he resigned. Plaintiff was angry at defendant Glenn for what she considered mistreatment of Keith Davis.

In the fall, 1976, plaintiff's husband was elected as a member of the school board. His presence on the school board caused other board members and defendant Glenn to be apprehensive of a possible conflict of interest, though no action was taken. The relationship between plaintiff and defendant Glenn further deteriorated, and the conflict, characteristically, spread and eventually involved the public, the school board members, the media, the husband, etc. The record is amply punctuated with charges and recriminations, the details of which we do not deem necessary to recite here. Suffice to say, there is evidence that on March 3, 1978, defendant Glenn, with the authority of the majority of the school board, offered plaintiff the option of being transferred to a position in another building or having her employment terminated. Plaintiff insisted upon retaining her position in the central office and caused her keys to be delivered symbolizing her acceptance of the termination. No hearing was had on her termination.

The evidence is conflicting, and much of the plaintiff's argument in her brief is devoted to the insistence that the trial court committed error in not accepting her version of the events. We will not weigh the evidence nor determine the credibility of the witnesses. McCray Mem. Hosp. v. Hall, (1967) 141 Ind.App. 203, 226 N.E.2d 915. We will not disturb the ruling of the trial court if there is substantial evidence of probative value to sustain the decision of the trial court. Lake County Council v. Arredondo, (1977) 266 Ind. 318, 363 N.E.2d 218. We are cognizant that a trial court's judgment will be determined to be clearly erroneous only after a review of the evidence leaves us with a definite and firm conviction that the trial court erred. University Caseworks Systems, Inc. v. Bahre, (1977) Ind.App., 362 N.E.2d 155.

I(A), I(B), III and V
Freedom of Speech and Freedom of Association

For the sake of convenience, we join the issues raised in I(A), I(B), III and V of the assignments of error.

Plaintiff argues essentially, under these headings, that her rights of freedom of speech and freedom of association protected under the First Amendment to the Constitution of the United States were violated by her discharge. She couples this argument with one of similar import, that her discharge was in violation of 42 U.S.C. § 1983, which grants a person a cause of action for acts committed under color of state law causing a person to be subject to deprivation of rights secured by the United States Constitution.

Even though a person may not have a property interest or benefit that is protected under procedural due process under the Fourteenth Amendment, that benefit may not be denied if the denial is based upon the contravention of the constitutionally protected right of freedom of speech or association. Perry v. Sinderman, (1972) 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570. The Supreme Court of the United States in Mt. Healthy City Board of Education v. Doyle, (1976) 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, further refined the rule. In that case, the contract of a teacher, without tenure, was not renewed after he made a telephone call to a radio station and read a memo from the principal relative to school activities. The Supreme Court held that, initially, the teacher had the burden of showing that the telephone call, protected as freedom of speech under the First Amendment, was a substantial factor in the denial of a new contract. This burden having been met, the second step of the test was that the school board then must show by a preponderance of the evidence that the same decision would have been made without the issue of the teacher's protected conduct.

The plaintiff seems to argue that the court erred in not accepting her version of the evidence and the inferences and conclusions to be drawn therefrom. We have reviewed the evidence, and we find that there was sufficient evidence to support the court's findings and determination that the actions of the school board did not fall within the proscriptions of Perry, supra, Mt. Healthy City Board of Education, supra, or 42 U.S.C. § 1983.

Plaintiff argues that her discharge violates the public policy of Indiana in that her right of freedom of association, as represented by her marriage to Jack McQueeney, was the basis for a retaliatory discharge. She cites Frampton v. Central Indiana Gas Company, (1973) 260 Ind. 249, 297 N.E.2d 425, which held that retaliatory discharges are against public policy. We agree with the trial court's finding that there was no retaliation.

II and IV
Due Process

Plaintiff argues under assignment of errors II and IV that she was not just an employee at will but had a property interest in continued employment. She contends that her job was terminated without notice or hearing, thus denying her procedural due process under the Fourteenth Amendment to the Constitution of the United States.

The opportunity to be heard is a fundamental requirement of due process under the Fourteenth Amendment. The hearing must be meaningful in time and place. Town of Speedway v. Harris, (1976) Ind.App., 346 N.E.2d 646. In order for a plaintiff to avail himself of due process protections, he must first show that he had some property interest which was protected by procedural due process. A property interest may arise from a statute, ordinance, or contract. In any event, the sufficiency of the claim or entitlement to such a property interest must be decided by reference to state law. Gansert v. Meeks, (1979) Ind.App., 384 N.E.2d 1140.

The foundation of plaintiff's argument is that there existed a practice within the school corporation, which was stated in an employee handbook, requiring a conference with an allegedly errant employee wherein his deficiencies were discussed, and the employee was given an opportunity to correct the deficiencies before being discharged. In this instance, it was not done. Appellant cites Town of Speedway, supra, and State ex rel. Warzyniak v. Grenchik, (1978) Ind.App., 379 N.E.2d 997, in support of her argument. Those cases, after reciting the general rules relative to the Fourteenth Amendment due process protections afforded in job relationships with government entities, went ahead to say that in order to have a property interest in a benefit such as a job, a person clearly must have more than an abstract need for it. He must have more than a unilateral expectation of it. He must,...

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