Rogers v. Masem, 84-2425
| Decision Date | 04 April 1986 |
| Docket Number | No. 84-2425,84-2425 |
| Parties | 40 Fair Empl.Prac.Cas. 773, 40 Empl. Prac. Dec. P 36,146 Leslie T. ROGERS, Appellant, v. Paul MASEM, Superintendent of Schools of the Little Rock, Arkansas, School District, and Members of the Board of Education of the Little Rock, Arkansas School District, Individually and in their Official Capacities, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John W. Walker, Little Rock, Ark., for appellant.
G. Ross Smith and Susan Lutton, Little Rock, Ark., for appellees.
Before ROSS and JOHN R. GIBSON, Circuit Judges, and COLLINSON, * Senior District Judge.
Leslie T. Rogers, an assistant principal who was discharged in 1982 from the Little Rock school system, appeals the judgment of the district court denying his claims of discrimination and due process violations arising out of his discharge. In June 1982, shortly before his contract was to expire, Rogers received a notice of termination from Superintendent of Schools Ed Kelly. The district court found that Kelly intended the notice to be one of nonrenewal and, hence, that Rogers was not entitled to the statutory procedures that apply when a teacher is terminated in Arkansas. We hold that the notice was, in fact, one of termination and, accordingly, reverse and remand for determination of appropriate relief.
Dr. Leslie T. Rogers, a black man with more than twenty-five years of experience in education, was employed by the Little Rock School District in 1979 as an evaluation specialist. After two years in that position, he was reassigned to the position of assistant principal at Henderson Junior High School under the supervision of Principal Marjorie Hubbard. His year at Henderson was a stormy one. The district court found that:
Dr. Rogers' period of employment at Henderson can be described as one of continuing conflict. * * * Although many of Dr. Rogers' confrontations involved Marjorie Hubbard, he also experienced difficulty with a football coach, teachers who were called upon to work with him, the representative of the Classroom Teachers' Association, bus drivers and the supervisor of transportation for the district.
Dr. Rogers complains that he was the victim of unfair treatment by Mrs. Hubbard and others while at Henderson. He claims that his problems with Mrs. Hubbard stemmed from the fact that she was insensitive to black children and treated blacks and poor whites differently from whites who enjoyed economic advantages.
* * *
* * *
After hearing the witnesses and reviewing the exhibits, the court is convinced that Dr. Rogers was unable to resolve his differences of opinion with Mrs. Hubbard and others without an unpleasant encounter. On several occasions, he ended a meeting with a flurry of heated words or a threat to call his attorney. While the court does not doubt Dr. Rogers' sincerity about his concern for the treatment of blacks and the poor, self-righteousness is no excuse for the abusive behavior and disruptive attitude displayed by Dr. Rogers on many occasions.
Rogers v. Masem, No. LR-C-82-485, slip op. at 2-3 (E.D.Ark. Oct. 4, 1984).
In April, Rogers was removed from Henderson by Superintendent of Schools Paul Masem and reassigned to the personnel department. In June, Superintendent Ed Kelly, who had replaced Masem earlier that month, wrote Rogers telling him that he was recommending his "termination" because of:
1) Your refusal to comply with and carry out certain tasks and duties assigned to you by your supervisor.
2) Specific acts of insubordination, including telling youngsters not to do certain things they were told to do by Mrs. Hubbard.
3) Your refusal to support certain policies and procedures of the school district.
4) Your harassment and intimidation of fellow employees through threats of legal action and threats to use a tape recorder in the performance of your duties.
At trial, Masem testified that, in light of the list of reasons given as well as the fact that ordinarily notices of nonrenewal were sent in March or April of the school year, he would regard the letter as one of termination and not of nonrenewal. Kelly, however, testified that when he wrote the letter he "had not learned at that time to make a clear distinction" between the terms. The district court accepted Kelly's explanations, stating that
for whatever legal significance it might have, [the court] believes that Dr. Kelly intended the letter as notice of nonrenewal and not a discharge letter. In fact, Dr. Rogers was not 'terminated' in the sense that he was discharged; he was simply not offered another contract.
Rogers, slip op. at 6.
Kelly's letter to Rogers was dated June 15, 1982. Rogers's contract expired June 18, 1982. In a letter dated July 12, 1982, Rogers's attorney requested a hearing before the Board of Directors of the school district. On July 13, 1982, at a special meeting the Board considered Kelly's recommendation. There was testimony that Board members had received documentation prepared by the district reproducing and outlining some of the letters and memos that had been written about incidents involving Rogers at Henderson. Principal Hubbard appeared before the Board and answered a few questions. Rogers was given no opportunity either to review the documentation or to appear before the Board. The Board voted not to renew Rogers's contract. After further action by Rogers's attorney, the school district offered Rogers an informal hearing on October 28, 1982. No formal presentation of evidence or cross-examination of witnesses was allowed, but Rogers did make his presentation under interrogation by his counsel. Following the hearing, the Board took no vote but simply allowed the earlier vote of nonrenewal to stand.
Rogers sued the Little Rock School District and its superintendent and school board members, claiming discrimination and violation of due process rights. In a bench trial, the district court, after determining that Rogers's "specific contentions about racial discrimination at Henderson [were] directed toward Mrs. Hubbard," found that
[t]he only evidence of discrimination by Mrs. Hubbard is conclusory statements by Dr. Rogers. There is no credible or persuasive evidence that Mr. Greenway [a white assistant principal at Henderson] was given preferential treatment by Mrs. Hubbard; that Mrs. Hubbard treated Dr. Rogers unfairly; or that Mrs. Hubbard improperly or unfairly documented incidents involving Dr. Rogers. To the contrary, Dr. Rogers was furnished copies of documentation of the incidents and responded in writing to most of them.
Perhaps the allegation of discriminatory treatment which has a semblance of substance revolves around Mrs. Hubbard's handling of a complaint by Dr. Rogers regarding the treatment of black children by a black bus driver. Apparently a black bus driver made racially derogatory remarks to some of the black children who were passengers on her bus. Dr. Rogers was critical of Mrs. Hubbard for not taking corrective action. Mrs. Hubbard did, however, arrange a meeting between Dr. Rogers and the district's supervisor of transportation. Unfortunately, the meeting ended with an argument between Dr. Rogers and the supervisor.
Rogers, slip op. at 3-4. Thus, it concluded that the nonrenewal of Rogers's contract was not the product of racial discrimination since he "failed to demonstrate that he was treated differently from similarly situated whites or that any adverse decisions toward him were arbitrary, capricious or racially motivated." 1 Id. at 10.
As to the due process claim, the court first concluded that no liberty interest was implicated, since Superintendent Kelly's dismissal letter was not made public. It then concluded Rogers was not deprived of a property interest in continued employment since he was a probationary employee and thus not protected by Arkansas's fair dismissal act for teachers and since de facto policies and practices created no such right. It expressed doubts that the Principals' Roundtable Agreement, a document spelling out, inter alia, procedures for dismissal of principals and entitling them to a hearing, applied to Rogers but concluded that, in any event, Rogers's posttermination hearing before the school board in October 1982 gave him whatever process was due under that document. It also noted that Rogers's "only other source of entitlement would rest upon the 'Classroom Teacher's Association Agreement' and there was substantial, if not actual, compliance with the terms of that agreement." Rogers, slip op. at 12. Thus, finding no violations of due process, the court entered judgment for the school district, from which Rogers now appeals. 2
We first turn to Rogers's claim on appeal that he was dismissed because he exercised his first amendment rights. He argues one of the reasons he was fired was because he spoke out about the treatment of black students at Henderson. He points, for example, to evidence that in a memo prepared by Principal Hubbard she referred to Rogers's "excessive references to due process during disciplinary conferences." At trial, however, Rogers presented this and other similar evidence in support of his discrimination claim. His amended complaint did not raise the issue, and it was not the subject of consideration by the district court in its opinion. Our general rule is that we do not consider issues not raised in the courts below. For example, in Cato v. Collins, 539 F.2d 656, 662 (8th Cir.1976), a case involving an Arkansas black teacher whose contract was not renewed, we did not consider the constitutional issues raised on appeal because of "[t]he failure of appellant to assert such contentions in the District Court." As Rogers in his brief advances no reason for his tardiness in raising the issue, we shall adhere to our general rule and not...
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