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

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: TEITELBAUM
• Citation: 333 F. Supp. 260
• Parties: Jerry A. SHIELDS, Plaintiff, v. Albert A. WATREL, President of Slippery Rock State College, et al., Defendants.
• Decision Date: 02 November 1971
• Docket Number: Civ. A. No. 71-676.

333 F. Supp. 260

Jerry A. SHIELDS, Plaintiff,
v.
Albert A. WATREL, President of Slippery Rock State College, et al., Defendants.

Civ. A. No. 71-676.

United States District Court, W. D. Pennsylvania.

November 2, 1971.

333 F. Supp. 261

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

333 F. Supp. 262

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...