Stewart v. Bailey
| Decision Date | 27 October 1977 |
| Docket Number | No. 75-2996,75-2996 |
| Citation | 561 F.2d 1195 |
| Parties | Walter F. STEWART, Plaintiff-Appellant, v. James C. BAILEY, Individually and as Director of the George C. Wallace Technical Community College, et al., etc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edward Still, William M. Dawson, Jr., Birmingham, Ala., Jerry D. Anker, Steven E. Silverman, David Rubin, Washington, D. C., Matthew Horowitz, N. E. A., Washington, D. C., for plaintiff-appellant.
James R. Knight, Knight, Knight & Griffith, Cullman, Ala., for defendants-appellees.
Appeal from the United States Court for the Northern District of Alabama.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion July 22nd, 5 Cir., 1977, 556 F.2d 281).
Before GOLDBERG and HILL, Circuit Judges and KERR, * District Judge.
The petition for rehearing is GRANTED.
Since our initial decision in this case, the Supreme Court has rendered decision in Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
In Mt. Healthy, the issue for decision was whether or not a constitutional violation would necessarily result if the decision not to rehire a teacher was based in substantial part on the teacher's exercise of constitutionally protected conduct. The Court held that such a refusal to rehire could nevertheless pass constitutional muster if the employer could prove that it would have reached the same decision even in the absence of the protected conduct.
The Court enunciated the procedure to be followed by district courts in determining cases where there are allegedly both permissible and impermissible grounds for the termination of the employment relationship. Initially, the employee must carry the burden and prove "that his conduct was constitutionally protected and that the conduct was a 'substantial factor' or, to put it in other words, that it was a 'motivating factor' in the Board's decision not to rehire him." 429 U.S. at 287, 97 S.Ct. at 576 (footnote omitted). If the employee carries that burden the district court must then determine if the employer has shown "by a preponderance of the evidence that it would have reached the same decision as to the (employee's) reemployment even in the absence of the protected conduct." Id.
In the instant case, the requirements of the intervening Supreme Court decision have not been met. The record is not sufficient for our decision. Accordingly, the case must be remanded to the...
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Professional Ass'n of College Educators, TSTA/NEA v. El Paso County Community College Dist.
...discharge motivated in part by protected activity notwithstanding existence of permissible reasons for discharge).12 See Stewart v. Bailey, 561 F.2d 1195 (5th Cir.1977), granting reh'g of 556 F.2d 281 (5th Cir.1977); Goss v. San Jacinto Junior College, 588 F.2d 96 (5th Cir.1979), modified o......
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...his right to due process simply was not infringed.8E. g., Stewart v. Bailey, 556 F.2d 281, 285-86, rev'd on other grounds, 561 F.2d 1195 (5th Cir. 1977); Field v. Boyle, 503 F.2d 774, 778-79 (7th Cir. 1974); Suckle v. Madison General Hospital, 499 F.2d 1364, 1367 (7th Cir. 1974); Jackson v.......
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...Goss v. San Jacinto Junior College, 588 F.2d 96 (5th Cir.), modified on reh'g on other grounds, 595 F.2d 1119 (1979); Stewart v. Bailey, 561 F.2d 1195 (5th Cir.) (remanded to district court in light of Mt. Healthy ), rev'g on reh'g, 556 F.2d 281 (1977). Cf. Baylor v. Jefferson County Bd. of......
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