Schreiber v. Joint School District No. 1, Gibraltar, Wis.

• Decision Date: 10 January 1972
• Docket Number: Civ. A. No. 70-C-270.
• Citation: 335 F. Supp. 745
• Parties: Mrs. Barbara B. SCHREIBER, Plaintiff, v. JOINT SCHOOL DISTRICT NO. 1, GIBRALTAR, WISCONSIN, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

335 F. Supp. 745

Mrs. Barbara B. SCHREIBER, Plaintiff, v. JOINT SCHOOL DISTRICT NO. 1, GIBRALTAR, WISCONSIN, et al., Defendants.

Civ. A. No. 70-C-270.

United States District Court, E. D. Wisconsin.

January 10, 1972.

Richard L. Cates, Madison, Wis., for plaintiff.

Roger Pinkert, and Sven V. Kirkegaard, Sturgeon Bay, Wis., for defendants.

REYNOLDS, Chief Judge.

This civil action challenging defendant School Board's dismissal of plaintiff as a teacher is before the court on defendants' motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. At the hearing on that motion, plaintiff moved orally for summary judgment, requesting $100,000 damages ($50,000 as punitive) and an order of reinstatement. The matter was taken under advisement.

From the pleadings, depositions, and affidavits on file and the representations of counsel, it appears that the following facts are undisputed. Mrs. Schreiber was employed by the defendant School Board of the Gibraltar Area Schools, Fish Creek, Wisconsin, from June 1968 until December 1, 1969. At the time of the events at issue in this case, her employment was pursuant to a one-year contract with the Board of Education. In May 1968, plaintiff had become engaged to Robert Schreiber. They planned to be married in September 1969 but were forced to delay their wedding for some two months, since on account of a former marriage Mr. Schreiber had to obtain permission of the court to remarry. The issue was docketed later then they had expected, and they were not married until November 6, 1969.¹

Mrs. Schreiber had been living with a family during the summer of 1969, an arrangement which was to end by September 1. At that time her fiance offered her the use of one of the rooms in his house until she could find a place of her own or until, in the event that they could obtain a court date quickly, the time of their marriage. Plaintiff agreed to this arrangement and lived in Mr. Schreiber's home from September 1 until September 30. By the end of the month she had found an apartment a few miles out of town where she lived until their marriage on November 6, 1969.

On October 8, 1969, having heard a rumor to the effect that a petition was being circulated in an attempt to have her fired, plaintiff called the principal of the school in which she taught to make an appointment. On the next day she met with the principal and with the school district administrator to tell them of the rumor, of her plans to marry Mr. Schreiber, of the circumstances under which she had lived in his house, and of the fact that she was now living in an apartment of her own. The administrator responded that although the matter might be discussed in executive session at the School Board meeting, nothing definite would be done until they had an opportunity to meet with her.

On October 24, 1969, plaintiff received a letter dated October 22, 1969, censuring her for what the Board of Education denominated "unprofessional conduct." The letter advised her that the Board, pursuant to a discussion at an October 14 Board meeting, had authorized the reprimand. As a result of this letter, plaintiff again arranged to meet with the principal to discuss the matter. She was told that the letter was simply an indication that the fact of her living in Mr. Schreiber's house had been discussed. That night the Board of Education, in executive session, voted to request Mrs. Schreiber to tender her resignation effective December 1, 1969.

On October 29, 1969, Mrs. Schreiber was summoned to the administrator's office and given a letter stating that the Board requested her resignation. She requested a hearing and was told that she would have to submit the request in writing. Although she did so, a hearing was never granted.

In connection with the Board's request of Mrs. Schreiber that she tender her resignation, it should be noted that it is alleged and uncontested that plaintiff's conduct did not affect her performance as a teacher, that there was no disruption in the school as a result of her behavior, that the dismissal was for no reason other than her month's stay in the Robert Schreiber home, and that her conduct was not in violation of any rule or regulation of the defendant School Board.

Plaintiff refused to resign, and on November 11, 1969, again in executive session, the Board of Education decided to terminate her employment.

Jurisdiction is present. 28 U. S.C. § 1343(3), (4); 42 U.S.C. § 1983. Although defendants' motion for summary judgment urges that the court is without jurisdiction on the grounds that defendants did not act under color of state law, and that defendants' action was not state action within the meaning of the Fourteenth Amendment to the United States Constitution, that contention is without support. Defendants did act "under color of law" as that term has been established by long use: "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). Accord, e. g., Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). It is equally well established that a school board is an arm of government whose action is state action and thereby subject to constitutional restraints. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).

Defendants base their motion for summary judgment on three major contentions: (1) that the School District and School Board are not "persons" within the meaning of 42 U.S.C. § 1983; (2) that the School District, School Board, and their officials enjoy common law immunity; and (3) that there is no Wisconsin law which requires that a teacher be afforded a hearing upon termination of employment.

(1) Defendants contend that defendant School District and defendant School Board, as political subdivisions of the state, cannot be sued under 42 U.S. C. § 1983 as they are not "persons" within the meaning of that Act. Defendants cite Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), for that proposition. This court, however, is controlled by the Seventh Circuit decisions which have refused to hold the doctrine of Monroe applicable to actions in which equitable relief is sought. Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th Cir. 1969); Adams v. City of Park Ridge, 293 F.2d 585, 587 (7th Cir. 1961).

Defendants are correct that for the purposes of § 1983, a municipal corporation is not to be considered a "person" with respect to a request for damages.

(2) Defendants contend that the School District, School Board, and their officials enjoy common law immunity. Their position is that those organizations and individuals acted within their discretion and in good faith and are thus immune from suit.

With respect to the equitable relief sought, defendants' contention cannot be upheld. The lower court opinion which was affirmed on appeal in Roth v. Board of Regents of State Colleges, 446 F.2d 806 (7th Cir. 1971), dealt with that issue, and in light of the Seventh Circuit's statement that it would avoid unnecessary repetition and rely on the district court opinion, our discussion below draws upon the lower court's analysis.

The district court maintained in Roth v. Board of Regents of State Colleges, 310 F.Supp. 972, 975 (W.D.Wis.1970), that the purpose of common law immunity enjoyed by the judiciary and legislature, and which was sought to be extended, "is to preserve the integrity and independence of those bodies, and to insure that judges and legislators will act on their free, unbiased convictions, uninfluenced by apprehensions of consequences. Tenney v....