Shields v. Watrel, Civ. A. No. 71-676.

Decision Date02 November 1971
Docket NumberCiv. A. No. 71-676.
Citation333 F. Supp. 260
PartiesJerry A. SHIELDS, Plaintiff, v. Albert A. WATREL, President of Slippery Rock State College, et al., Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

Marjorie H. Matson, Matson & Rothman, Pittsburgh, Pa., for plaintiff.

Richard L. Kelly, Asst. Atty. Gen., Joseph J. Pass, Sp. Asst. Atty. Gen., Pittsburgh, Pa., for defendants.

OPINION

TEITELBAUM, District Judge.

This is an action brought under 28 U. S.C. § 1343(3) alleging a contravention of the Civil Rights Act of 1871, specifically 42 U.S.C. § 1983.1 Procedurally, the plaintiff's application for a preliminary injunction and request for a permanent injunction have been merged, the testimony and exhibits offered at the hearing held on the former comprising all of the evidence on the latter.

The plaintiff, Jerry A. Shields, was an Assistant Professor of English at Slippery Rock State College. He began teaching at Slippery Rock in August, 1967, and was rehired annually through August, 1970. In August, 1970, while he was rehired for the school year 1970-1971, he was notified that he would not be rehired for the following school year, 1971-1972. In other words, his 1970-1971 contract was to be his "terminal contract".

The plaintiff charges that the termination of his employment was occasioned by his participation, during the school year 1969-1970, in demonstrations in protestation of the American involvement in Indochina and the student deaths at Kent State University, and concludes that the termination therefore represents impermissible retribution for his exercise of rights protected by the First and Fourteenth Amendments. Alternatively, the plaintiff suggests that he was entitled to an administrative hearing before his employment was terminated and that the failure of the Slippery Rock officials to afford him a hearing was transgressive of the Fifth and Fourteenth Amendments. In sum, by this action the plaintiff seeks to have himself either reinstated or afforded an administrative hearing.

Preliminarily, the defendants have moved to dismiss the action for failure to state a cause of action upon which relief may be granted. I think, however, that it is well settled that the employment of a public school professor, instructor, or teacher may not be terminated for his exercise of constitutionally protected rights. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Roth v. Board of Regents, 446 F.2d 806 (7th Cir. 1971); Lucas v. Chapman, 430 F.2d 945 (5th Cir. 1970); Pred v. Board of Public Instruction, 415 F.2d 851 (5th Cir. 1969); Greene v. Howard University, 134 U.S.App.D.C. 81, 412 F.2d 1128 (1969). Further, as stated in Roth v. Board of Regents, 310 F.Supp. 972 (D.C. W.D.Wis.1970), aff'd. 446 F.2d 806 (7th Cir. 1971).

"This substantive constitutional protection is unaffected by the presence or absence of tenure * * *. Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966), cert. den. 385 U.S. 1003 787 S.Ct. 706, 17 L.Ed.2d 542 * * *. Nor is it material whether employment is terminated during a given contract period, or not renewed for a subsequent period. McLaughlin v. Tilendis 398 F.2d 287 (7th Cir. 1968)."

Too, it is clear that the termination of the plaintiff's employment was "state action". If he proves, then, that his employment was terminated because he exercised rights protected by the First and Fourteenth Amendments, the plaintiff may be granted relief. Therefore, the defendants' motions to dismiss must be denied.

Factually, however, the plaintiff has failed to sustain his burden of proof. When he was hired in August, 1967, the underlying assumption was that he would shortly secure his Ph.D. degree in English. It is undisputed that by August, 1970, when the "terminal contract" was issued, he had not secured his degree.2 Nor is it disputed (1) that Slippery Rock reduced the number of "billets" or openings in its English Department from 29½ for the school year 1970-1971 to 26 for the school year 1971-1972; (2) that while initially Mr. Shields taught mostly advanced courses in English, he has recently been teaching mostly basic courses, particularly Freshman English, or English 101; and (3) that as a result of a policy change, English 101 is to be substantially discontinued for the school year 1971-1972.

Notwithstanding these facts, Mr. Shields contends that his employment was terminated because he exercised his First Amendment right of free speech. He testified that in October, 1969, he participated in a Vietnam moratorium-demonstration, speaking on non-violent civil disobedience. He testified further that in May, 1970, he actively participated in both the planning and staging of a demonstration in protestation of the incursion of the United States military into Cambodia and the student deaths at Kent State. From these facts and the facts (1) that the two other English professors whose employment was terminated in August, 1970, were among those with whom the plaintiff planned and staged the demonstrations of May, 1970 (presumably peaceful) and (2) that only seven of the twenty-eight professors and instructors comprising the English Department in August, 1970, had more seniority than the plaintiff, the plaintiff inferentially theorizes that his employment was terminated because of his First Amendment activities. The testimony of the defendants, Albert Watrel, James Roberts and Albert Schmittlein, however, convincingly refutes the threshold of that theory. Each testified that at the time of the issuance of the "terminal contract" he was totally unaware of Mr. Shields' First Amendment activities, including Mr. Shields' participation in the demonstrations surrounding the incursion into Cambodia and the student deaths at Kent State. Moreover, the recommendation that the plaintiff's employment be terminated originated (August 8, 1970) with the then Chairman of the English Department. Thus the preponderance of the evidence does not support the plaintiff's contention. Having failed to sustain his burden of proof, his claim that his employment was terminated because of his First Amendment activities must fall.

Alternatively, Mr. Shields contends that procedurally he was entitled to an administrative hearing before his...

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2 cases
  • Boyce v. Alexis I. duPont School District
    • United States
    • U.S. District Court — District of Delaware
    • March 23, 1972
    ...was arbitrary and capricious and thus a violation of substantive due process. The same conclusion was arrived at in Shields v. Watrel, 333 F.Supp. 260 (W.D.Pa.1971), where the plaintiff claimed that refusal to reemploy was because of his exercise of First Amendment rights of free speech. Or......
  • Powell v. Brown, 13955
    • United States
    • Supreme Court of West Virginia
    • October 18, 1977
    ...Drown v. Portsmouth School District, 435 F.2d 1182 (1st Cir. 1970); Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966); Shields v. Watrel, 333 F.Supp. 260 (W.D.Pa.1971). These holdings indicate that Powell has no constitutional right to a hearing. But we do not believe the case is disposed of ......

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