Needleman v. Bohlen

• Decision Date: 25 June 1979
• Docket Number: No. 78-1531,78-1531
• Citation: 602 F.2d 1
• Parties: Joan Rines NEEDLEMAN, Plaintiff, Appellant, v. Jack R. BOHLEN et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1

602 F.2d 1

Joan Rines NEEDLEMAN, Plaintiff, Appellant, v. Jack R. BOHLEN et al., Defendants, Appellees.

No. 78-1531.

United States Court of Appeals First Circuit.

Argued April 5, 1979.

Decided June 25, 1979.

Joan R. Needleman, Boston, Mass., pro se, with whom Charles R. Capace, Boston, Mass., was on brief for plaintiff, appellant.

C. Peter R. Gossels, Boston, Mass., with whom Lawrence B. Morse, Boston, Mass., was on brief for defendants, appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Appellant began teaching junior high school mathematics in the Wayland, Massachusetts, school system in 1959. From the 1962-1963 school year through the 1968-1969 school year, except for one year when she was on leave, she also held a position variously described in her annual contracts as "Team Leader" or "Chairman" or "Coordinator". By whatever name, the office involved the same responsibilities. She worked to keep the mathematics curriculum in grades one through twelve up to date, gave advice to teachers on implementing new material, and selected textbooks. She was offered the job for the 1969-1970 school year as well, but she was granted a leave of absence for that year. Though she requested reappointment when she returned to her teaching duties for 1970-1971 and again in 1971-1972, the School Committee, on the then superintendent's recommendation, chose to appoint someone else.

In November 1971, her principal notified appellant that he considered her performance unsatisfactory and was considering recommending that she not get the annual salary increment that would otherwise be due her. The principal reevaluated her performance in February, 1972, decided that her performance was still not satisfactory, and recommended withholding the increment. The new superintendent reviewed the charges against appellant and her written response and decided to recommend that the School Committee withhold the increment. The Committee voted unanimously to accept that recommendation.

Appellant brought this action under 42 U.S.C. § 1983 against the members of the School Committee, the superintendents, and her principal (appellees) alleging, inter alia, that she had property interests in her extra position and in her salary increment, both of which were taken away without due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution and that the denial of her increment violated her rights under the First and Fourteenth Amendments. An additional count, Count II, alleged that the first superintendent wrongfully interfered with appellant's contract rights. Twenty months after a one-day non-jury trial the district court found for the appellees and dismissed the case in its entirety. We will discuss additional facts as they become relevant to our consideration of appellant's legal issues.

Appellant claims that she was for three years a "principal, supervisor, assistant principal, or professional employee performing the duties of a principal, supervisor, (or) assistant principal" within the meaning of M.G.L.A. ch. 71, § 42A, and that therefore she could not be demoted without her consent except for good cause. ¹ Since she was clearly not a principal or assistant principal, she could qualify only if she was a supervisor or was performing the duties of a supervisor. In Dimlich v. School Committee of Andover, 344 Mass. 643, 184 N.E.2d 40 (1962) (when the statute was limited to principals and supervisors), the Supreme Judicial Court of Massachusetts held that an assistant principal was not a principal or supervisor because, though he had performed many duties of a principal, he lacked the "authority and responsibility" necessary to qualify under the statute. Id. at 646, 184 N.E.2d 40. Subsequently the legislature added "assistant principal" to the statute, but did nothing to overrule the SJC's interpretation of "supervisor". We, of course, are bound by the SJC's rulings on Massachusetts law. ²

The district court found that appellant's "position was always seen as a staff rather than line position in the school system"; that her position was not supervisory because she was a "resource person" and "advisor to teachers" rather than a person with authority and responsibility. The court found that a different person, the department head, hired, evaluated, and supervised math teachers and prepared and submitted the budget for the department. Though appellant challenges these findings, they are not clearly erroneous. F.R.Civ.P. 52(a). To the extent the evidence with regard to Needleman's responsibilities was conflicting, the court, of course, was entitled to believe appellees' witnesses or to disbelieve appellant's. Moreover, if an assistant principal performing some duties of a principal was not a supervisor then, a fortiori, appellant was not. Accordingly, we conclude that appellant had no property right in her incremental position, and appellees did not violate her constitutional right to due process in taking it away.

In her brief and argument before us appellant sought to raise statutory tenure rights grounded in sections other than ch. 71, § 42A. Though other sections were mentioned in passing in appellant's complaint and in other documents filed with the district court, appellant's brief to the court following trial relied exclusively on § 42A. References to other statutory sections in the brief were relevant, if at all, only to issues collateral to the statutory entitlement issue. Since the issue was not argued, it was understandable that the district court did not address the possibility of any entitlement under other statutory provisions.

" The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases." Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). It is a rule of long standing in this circuit that issues not presented to the district court will not be considered by this court except in extraordinary circumstances. McPhail v. Municipality of Culebra, 598 F.2d 603 (1st Cir. 1979); Johnston v. Holiday Inns, (1st Cir. 1979), 595 F.2d 890 at 894; SEC v. Howatt, 525 F.2d 226, 230 (1st Cir. 1975); Dobb v. Baker, 505 F.2d 1041, 1044 (1st Cir. 1974); Bricker v. Crane, 468 F.2d 1228, 1233 (1st Cir. 1972); Bird v. United States, 241 F.2d 516, 520 (1st Cir. 1957). We find no such circumstances here, and we decline to consider the applicability of other statutory sections.

Having failed to prove she had tenure under statute, appellant next argues that she nonetheless had a constitutionally protectible property interest in the position by virtue of either her contracts or an extra-contractual expectancy. The Supreme Court has decided that a "mere subjective 'expectancy' is (not) protected by procedural due process" but that " 'the policies and practices of the institution' " may give rise to a protected interest. Perry v. Sinderman, 408 U.S. 593, 603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972). However, as the Court there pointed out, such a "common law" tenure is most likely at an institution "that has no explicit tenure system". Id. at 602, 92 S.Ct. at 2700. Conversely, the existence of a "highly structured system of de jure tenure argue(s) against a parallel system of de facto tenure." Willens v. University of Massachusetts, 570 F.2d 403, 404 (1st Cir. 1978).

Here there was a very rigid system of statutory tenure imposed by the legislature. Appellant's appointments were always for discrete periods of one year or less. The court found that both the School Committee and the teachers' association understood appellant's position to be flexible rather than tenured. On this record we cannot say that the court was clearly erroneous. As the court concluded, she held the position "at the will and pleasure of the School Committee".

Accordingly, we affirm the ruling that appellant had no protected property interest in the position. We must now turn to her claims relative to the salary increment that was denied.

The court below found that teachers in the Wayland school system do enjoy an "expectancy" in the annual salary increment because, by contract, it cannot be denied unless the teacher's performance is determined to be "unsatisfactory". Thus appellant had a property interest in her increment within the meaning of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sinderman, supra. The question before us is whether that property interest was taken away without due process of law and, specifically, whether appellant was entitled to some hearing, either before or after the determination, beyond what was accorded by the contract from which her property interest arose.

This determination requires a balancing of interests:

"(I)dentification of the specific dictates of due process generally requires consideration of three distinct factors: (f)irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 17-18, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (Powell, J., concurring). ³

Though "some kind of hearing is required at some time before a person is finally deprived of his property interest(s)", Memphis Light, supra, 436 U.S. at 16, 98 S.Ct. at 1563; Wolff v. McDonnell, 418...