Peterson v. Unified School Dist. No. 418, Civ. A. No. 88-4077-0.

• Decision Date: 20 October 1989
• Docket Number: Civ. A. No. 88-4077-0.
• Parties: Jerry L. PETERSON, Plaintiff, v. UNIFIED SCHOOL DISTRICT NO. 418, McPHERSON COUNTY, KANSAS, a Public Corporation, Defendant.
• Court: U.S. District Court — District of Kansas

724 F. Supp. 829

Jerry L. PETERSON, Plaintiff, v. UNIFIED SCHOOL DISTRICT NO. 418, McPHERSON COUNTY, KANSAS, a Public Corporation, Defendant.

Civ. A. No. 88-4077-0.

United States District Court, D. Kansas.

October 20, 1989.

Wesley A. Weathers, Weathers & Riley, Topeka, Kan., for plaintiff.

Stanley E. Oyler, Timothy J. Pringle, J.H. Eschmann, Ascough, Bausch & Eschmann, Topeka, Kan., Anthony F. Rupp, Shughart, Thomson & Kilroy, P.C., Overland Park, Kan., David G. Shriver, McPherson, Kan., for defendant.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter comes before the court on defendant's motion for summary judgment. Plaintiff filed a civil rights action under 42 U.S.C. § 1983 in which he claims that Unified School District No. 418 ("school district") violated his civil rights when it non-renewed his employment as principal of Lincoln Elementary School and, in connection with this nonrenewal, denied him a hearing to clear his good name and reputation. For the reasons stated below, defendant's motion for summary judgment is granted.

In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the nonmoving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir. 1981). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). If the moving party does not bear the burden of proof, he must show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). This burden is met when the moving party identifies those portions of the record which demonstrate the absence of material fact. Id. at 323, 106 S.Ct. at 2552.

Once the moving party meets these requirements, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986) (emphasis added). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations of denials of his pleading." Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511.

The pertinent facts are as follows. Jerry Peterson entered into three one-year written contracts with the school district covering years 1983 to 1986. During those three years the plaintiff was the principal of Lincoln Elementary School in McPherson County, Kansas. On February 24, 1986, the school district's superintendent, Jack Hobbs, recommended to the school board that Peterson's contract not be renewed. In a document Hobbs submitted to the board the superintendent stated he believed plaintiff could not regain the confidence of several staff members. The superintendent questioned how effective Peterson could be when at least five staff members were so concerned about Peterson's performance as principal that they contacted him. The board followed the superintendent's suggestion and elected not to renew Peterson's contract. One month later the school board president, V.E. Skipton, informed the plaintiff of the board's decision.

Peterson met with the school board in executive session (i.e., in a closed meeting not open to the public) on April 14 and April 18, 1986 to discuss the nonrenewal of his contract. He was informed that his contract would not be renewed because of "staff relationships." At approximately the time of the board's formal action on the nonrenewal, plaintiff alleges that the superintendent was aware of rumors and/or allegations that plaintiff was: (1) abusive to children, including his own; (2) involved in inappropriate activity with staff members at his school ("nudging and pinching ... in confined spaces"); and (3) seeking treatment at a mental health facility. The plaintiff claims two school board members, several teachers, a teacher's husband, and a former PTA president heard similar rumors.

A. Statutory Property Interest

It is well established that a property interest in continued employment may be created by a state statute, ordinance or an implied contract. See, e.g., Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Vinyard v. King, 728 F.2d 428, 432 (10th Cir.1984). The existence and sufficiency of such a property right must be determined by reference to state law. Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30 (1978); Bishop v. Wood, 426 U.S. at 344, 96 S.Ct. at 2077. We must therefore look to Kansas law to determine whether plaintiff has a valid property interest.

The plaintiff contends that his primary right to due process arises from the property right that he acquired from his tenure under the Administrators' Nonrenewal Procedure Act ("Administrators' Act"). As this court noted in Burk v. Unified School Dist. No. 329, 646 F.Supp. 1557 (D.Kan. 1986), the Administrators' Act applies to administrators, principals, and supervisory personnel who have tenure, i.e., those who have completed two consecutive years of employment with the same district. See K.S.A. 72-5451(b) and K.S.A. 72-5455. Tenured administrators must be given notice of nonrenewal by April 15. K.S.A. 72-5452. The Act entitles nonrenewed tenured administrators to a hearing with the school board in executive session wherein the board must provide its reasons for nonrenewal. K.S.A. 72-5453. Administrators are then to be given the opportunity to respond. Id.

In the case at bar, plaintiff received notice of his nonrenewal on or about March 24, 1986. On that same day, the school board president advised Peterson that he could request a hearing before the board. At plaintiff's request, two hearings were held, on April 14, 1986 and again on April 18, 1986, where plaintiff had the opportunity to respond. The only reason Peterson can recall that was given for his nonrenewal was staff relationships at Lincoln Elementary School.¹ In similar vein, the school district states that plaintiff was informed his contract would not be renewed because the board had lost confidence in his ability to work with the staff.

We believe that the defendant complied with the Administrators' Act. There is no question that Peterson was given notice of the school board's intent to not renew his contract before April 15. Further, plaintiff was informed that the board planned to take this action because of the poor relationship that existed between him and the elementary school staff. Finally, Peterson was provided with the opportunity to respond at two separate hearings. After considering all the evidence and the inferences from that evidence in a light most favorable to plaintiff, we believe that no issues of material fact exist as to whether defendant complied with the Administrators' Act.

Principals in Kansas are also covered by the Evaluation of Certified Personnel Act, K.S.A. 72-9003, which provides that every Board of Education must adopt a written evaluation of policy and file that policy with the State Board of Education. K.S.A. 72-9004(f) provides:

The contract of any person subject to evaluation shall not be nonrenewed on the basis of incompetence unless an evaluation of such person has been made prior to notice of nonrenewal of the contract and unless the evaluation is in substantial compliance with the board's policy of personnel evaluation procedure as filed with the state board in accordance with the provisions of K.S.A. 72-9003, and amendments thereof.

K.S.A. 72-9004(a) further provides that the evaluation policy should take into consideration such qualities and attributes as efficiency, professional deportment, ability, results and performance.

We believe defendant complied with K.S.A. 72-9001 et seq. and the board's formal evaluation policy. Plaintiff was evaluated in writing and received a copy of his evaluation on or about February 10, 1986. In making its decision of nonrenewal, the board gave consideration to the qualities and attributes set forth in K.S.A. 72-9004(a), but determined that the problems Mr. Peterson had with the faculty at Lincoln Elementary School were of such magnitude that he could not be recommended for renewal.

B. Implied Contract Claim

In addition to plaintiff's claimed statutory property interest, he also contends that he has a property right in the form of an implied contract with the school district. Under the implied contract, Peterson argues that he was entitled to notice of any deficiency in his job performance which, if not corrected, would lead to his nonrenewal, and then a meaningful and reasonable opportunity to improve. Plaintiff asserts that this implied contract is based upon the Evaluation Act, school board policies as well as district customs and usages. More specifically, Peterson relies on the superintendent's practice of assisting principals in the school district by making them aware of problems which may lead to nonrenewal.

In support of his claim, plaintiff cites Morriss v. Coleman Co., Inc., 241 Kan. 501, 513, 738 P.2d 841, 848-49 (1987), in which the Kansas Supreme Court expressly recognized that an employment at-will situation may be modified by an "implied infact" contract.² Plaintiff also relies on Quintana v. Archuleta, Nos. 72-1358 and 72-1359 (10th Cir., unpublished, Feb. 6, 1973) (discussed and reaffirmed in Atencio v. Bd. of Educ., 658 F.2d 774 (10th Cir. 1981)), in which the Tenth Circuit held that state board of education regulations may create an expectation of re-employment in the absence of compliance with procedures prescribed by the regulations. See also Perry v....