Morfin v. Albuquerque Public Schools

• Decision Date: 27 June 1990
• Docket Number: No. 89-2140,89-2140
• Citation: 906 F.2d 1434
• Parties: 134 L.R.R.M. (BNA) 2595, 61 Ed. Law Rep. 470 Isabel MORFIN; Michael Kotlisky, Plaintiff-Appellants, v. ALBUQUERQUE PUBLIC SCHOOLS; Marilyn Davenport, Individually and as an agent for Albuquerque Public Schools; John Mondragon, Individually and as agent for Albuquerque Public Schools; Karen Hill, Individually and as an agent for Albuquerque Public Schools, Defendant-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1434

906 F.2d 1434

134 L.R.R.M. (BNA) 2595, 61 Ed. Law Rep. 470

Isabel MORFIN; Michael Kotlisky, Plaintiff-Appellants, v. ALBUQUERQUE PUBLIC SCHOOLS; Marilyn Davenport, Individually and as an agent for Albuquerque Public Schools; John

Mondragon, Individually and as agent for Albuquerque Public

Schools; Karen Hill, Individually and as an agent for

Albuquerque Public Schools, Defendant-Appellees.

No. 89-2140.

United States Court of Appeals, Tenth Circuit.

June 27, 1990.

Eric Isbell-Sirotkin (Aaron Bartels, with him on the brief), of Girard Street Legal Clinic, Albuquerque, N.M., for plaintiff-appellants.

Gregory D. Huffaker, Jr. (David E. Brown, with him on the brief), of the Poole Law Firm, Albuquerque, N.M., for defendants-appellees.

Before ANDERSON and EBEL, Circuit Judges, and BROWN, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiff-appellants Isabel Morfin and Michael Kotlisky appeal a summary judgment granted in favor of defendant-appellees Marilyn Davenport and John Mondragon. ¹ The plaintiffs claim that the defendants retaliated against them for engaging in constitutionally protected conduct. The district court held that some of the conduct was not protected, and that it was not clearly established at the time that the remainder was protected (and therefore, the defendants acted within their qualified immunity).

BACKGROUND

When we review a summary judgment, we resolve all factual disputes, and draw all inferences, in favor of the party against whom judgment was granted. Reazin v. Blue Cross & Blue Shield, 899 F.2d 951, 979 (10th Cir.1990). Viewed in this light, the relevant ² facts are as follows:

During the 1985-86 academic year, Kotlisky and Morfin, who are married to each other, were employed at the Sandia Base Elementary School ("Sandia"), which is part of the Albuquerque Public Schools ("APS"). Davenport was the principal of Sandia; Mondragon was her supervisor. The exclusive bargaining agent for APS staff was the American Federation of Teachers ("AFT").

The previous principal of Sandia had been reassigned, in part because of parental complaints about discipline. Mondragon deposition at 9. Further community interest in school discipline was created when the superintendent of APS announced that the district would adopt a new disciplinary theory. Davenport deposition at 38.

At the beginning of the year, Davenport described to the staff her philosophy of discipline. Kolitsky deposition at 174. Kolitsky and Morfin held a different view, Kotlisky deposition at 141, 180; Morfin deposition at 94, and complained to Sandia personnel, APS administrators, and Davenport herself that she had not set out sufficiently clear consequences for misbehavior, Benavidez deposition at 13; Lewis deposition at 28; Morfin deposition at 95-96; Kotlisky deposition at 187, 205-06.

In November, Kotlisky missed a staff meeting because some children needed supervision. Kotlisky deposition at 403. Davenport was informed of his whereabouts. Id. at 411. She later denied knowing Kotlisky filed another grievance in December, with both the AFT and the National Education Association ("NEA"), another teachers' union, concerning the fact that Davenport was improperly asking teachers to evaluate staff members. Id. at 319.

where he was, and she also falsely denied knowing that Kotlisky was a member of a counselors' advisory board, and periodically had to leave school to attend board meetings. Id. at 318, 420, 429. Davenport then required Kotlisky to leave her a note every time he left the school grounds. Id. at 425. No one else had to do this. Id. at 429. Kotlisky filed a grievance with the AFT. Id. at 427.

In January, after Kotlisky complained to Mondragon that Davenport could not fairly evaluate him, the three of them met. Mondragon insulted Kotlisky and told him he had no right to file a grievance against Davenport or to question her disciplinary policy. Id. at 477-96. Dissatisfied with the unions' inability to ease the situation, Kotlisky and Morfin met with APS' employee relations supervisor. Id. at 506.

Davenport called Morfin to a meeting to discuss allegedly insubordinate and unprofessional behavior on Morfin's part. Davenport affidavit at 13. Morfin conferred with an NEA representative. Morfin deposition at 249.

DISCUSSION

I.

The plaintiffs contend that in retaliation for constitutionally protected conduct, they were subjected to substantial harassment and abuse, ³ Kotlisky was transferred to another school, and Morfin's contract was not renewed. ⁴ The defendants are entitled to summary judgment if the plaintiffs did not produce evidence sufficient to create a genuine issue of material fact regarding whether the defendants committed the acts of which the plaintiffs complain. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985); see Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Because there is no evidence that Mondragon had anything to do with Morfin, he is entitled to summary judgment as to all of her claims. Genuine issues of fact do exist regarding Morfin's claims against Davenport and Kotlisky's claims against both defendants.

II.

Kotlisky and Morfin claim that they were punished for criticizing Davenport's disciplinary policy. Public employees may not be retaliated against for "speech on a matter of public concern," i.e., "political, social, or other concern to the community." Connick v. Myers, 461 U.S. 138, 146-48, 103 S.Ct. 1684, 1689-90, 75 L.Ed.2d 708 (1983). To make this determination, we consider the content, form, and context of the speech. Id. at 147-48, 103 S.Ct. at 1690.

Generally, speech by a public school employee about a policy or practice which Public officials are protected by qualified immunity. They are immune unless their conduct violates rights which were " 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). At the time the actions challenged herein were taken, it was not clear that our decision in Schmidt v. Fremont County School Dist. No. 25, 558 F.2d 982 (10th Cir.1977), had not "establish[ed] a per se rule exempting statements made in the course of official duties from the protection of the First Amendment," Koch v. City of Hutchinson, 847 F.2d 1436, 1442 (10th Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988).

can substantially and detrimentally affect the welfare of the children attending the school constitutes speech on a matter of public concern. See Johnsen v. Independent School Dist. No. 3, 891 F.2d 1485, 1490 (10th Cir.1989); Rankin v. Independent School Dist. No. I-3, 876 F.2d 838, 843 (10th Cir.1989); Leuthje v. Peavine School Dist., 872 F.2d 352, 355 (10th Cir.1989); cf. Saye v. St. Vrain Valley School Dist. RE-1J, 785 F.2d 862, 866 (10th Cir.1986) ("The allocation of aide time among teachers is not a matter inherently of public concern."). On the record before us, this is such a case.

"In Schmidt, this court affirmed a district court decision that statements by a high school principal to the board of education concerning the school's career education program and football reserved ticket sales policy were 'not on issues of general public concern but statements at the school on the internal affairs of the school system.' This court went on to say, '[the statements] were part of his official functions. These statements do not invoke First Amendment protection.' "

Id. (quoting Schmidt v. Fremont County School Dist. No. 25, 558 F.2d at 984-85). That Schmidt did not establish such a rule was not clearly established until 1988. See Koch v. City of Hutchinson, 847 F.2d at 1442; see also Koch v. City of Hutchinson, 814 F.2d 1489, 1500-01 (10th Cir.1987) (Seth, J., dissenting) (citing Schmidt for the proposition that a report prepared in the course of an employee's official duties was not speech on a matter of public concern), on reh'g en banc, 847 F.2d 1436 (10th Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988); Marcum v. Dahl, 658 F.2d 731, 734 (10th Cir.1981) (citing Schmidt for the proposition that complaints about who should coach the school's women's basketball team "were internal problems with which defendants were required to deal in their official capacities. Such matters are not of general public concern."). Therefore, the defendants are qualifiedly immune on the plaintiffs' free speech claims.

III.

The First Amendment protects the right of a public employee to join and participate in a labor union. Smith v. Arkansas State Highway Employees, 441 U.S. 463, 465, 99 S.Ct. 1826, 1828, 60 L.Ed.2d 360 (1979); Saye v. St. Vrain Valley School Dist. RE-1J, 785 F.2d at 867; Childers v. Independent School Dist. No. 1, 676 F.2d 1338, 1342 (10th Cir.1982); Key v. Rutherford, 645 F.2d 880, 885 (10th Cir.1981). Kotlisky contends that he was retaliated against for filing grievances with the AFT. Both plaintiffs contend that they were retaliated against for associating with the NEA.

The right to join and participate in a labor union prohibits retaliation against an employee who files a grievance with the union. Stellmaker v. DePetrillo, 710 F.Supp. 891, 892 (D.Conn.1989); Gavrilles v. O'Connor, 579 F.Supp. 301, 304 (D.Mass.1984); see Wren v. Spurlock, 798 F.2d 1313, 1316-17 (10th Cir.1986); Professional Ass'n of College Educators v. El Paso County Community College Dist., 730 F.2d 258, 263 & n. 7 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984); Carter v. Kurzejeski, 706 F.2d 835, 837-38 (8th Cir.1983); Columbus Educ. Ass'n v. Columbus City School Dist., 623 The defendants contend that the unconstitutionality of retaliating against a grieving employee was not clearly established. We disagree. The unconstitutionality of retaliating against an...