Stout v. Whiteaker

• Decision Date: 28 June 1974
• Docket Number: Civ. A. No. 662.
• Citation: 379 F. Supp. 218
• Parties: William H. STOUT v. James Harold WHITEAKER, Individually and as Chairman of the Board of Education of Putnam County, et al.
• Court: U.S. District Court — Middle District of Tennessee

379 F. Supp. 218

William H. STOUT v. James Harold WHITEAKER, Individually and as Chairman of the Board of Education of Putnam County, et al.

Civ. A. No. 662.

United States District Court, M. D. Tennessee, Northeastern Division.

February 9, 1973.

As Amended June 28, 1974.

James F. Blumstein, Vanderbilt Law School, Nashville, Tenn., for plaintiff.

Aron P. Thompson, Cookeville, Tenn., for defendants.

MEMORANDUM

MORTON, District Judge.

Plaintiff, formerly a tenured teacher in the Putnam County, Tennessee, school system, brings this action against the Chairman of the Board of Education of Putnam County, certain members of the Board of Education, the Superintendent of Schools in Putnam County, and the principal of Putnam County Senior High School, alleging that defendants contravened his right to due process of law by dismissing him from the school system without first affording him a hearing and an opportunity to challenge the charges upon which he was dismissed. Plaintiff seeks redress for violation of his civil rights under 42 U. S.C. § 1983 and declaratory relief pursuant to 28 U.S.C. §§ 2201, 2202. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343(3).

The facts of the case are not in dispute, and have been stipulated by the parties as follows. Plaintiff, William H. Stout, was a teacher employed by the Putnam County Department of Education from September, 1958, to June, 1971, and for the last eleven years maintained the status of tenured teacher as set forth in T.C.A. §§ 49-1401 et seq. On March 29, 1971, plaintiff received a letter, dated March 22, 1971, from defendant James W. Norwood, a second-year principal at Putnam County Senior High School where plaintiff had taught for several years, which stated that Norwood would not recommend plaintiff's reemployment for the 1971-72 school year to the Putnam County Board of Education. Plaintiff received no further correspondence from any defendant until April 20, 1971, when he was notified in a letter signed by defendant James H. Whiteaker, Chairman of the Putnam County Board of Education, and Collie B. Jared, Jr., Superintendent of the Putnam County Schools, that the defendant members of the Putnam County Board of Education, meeting in executive session on April 13, 1971, had dismissed plaintiff from his position as of the end of the 1970-71 school year. The letter informed plaintiff that, under T. C.A. § 49-1416, he could request a hearing at which he might contest the Board's termination of his contract. However, plaintiff failed to submit such a request within the ten days provided.

The defendants' decision to terminate plaintiff's contract was based upon charges of defendant Norwood, and apparently upon the personal knowledge of the defendant members of the Board, and various unidentified reports and sources communicated to defendant Board members. None of these reasons were specified to plaintiff in his notice of dismissal.

On May 10, 1971, plaintiff did request a hearing before the Board in a letter to defendant Jared, but received no response. Two further similar requests were made on May 15 and August 17, 1971, and again defendants remained silent.

Subsequent to his dismissal plaintiff alleges that he made numerous unsuccessful attempts to locate employment in education or related vocations, and finally, in March, 1972, took employment as a spot-welder and shear operator with a firm in Nashville, Tennessee, where he was employed at the time of institution of this suit on June 22, 1972.

Defendants initially contend that the court is without jurisdiction, asserting that the right sought to be enforced is one of property and as such does not constitute a cognizable claim under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3). See Bradford Audio v. Pious, 392 F.2d 67 (2d Cir. 1968). Defendants cite further Tichon v. Harder, 438 F.2d 1396 (2d Cir. 1971) in support of the proposition that a right of personal liberty is not involved and relief under the Civil Rights Act therefore unwarranted "in the absence of a clear, immediate and substantial impact on the employee's reputation which effectively destroys his ability to engage in his occupation . . . ." Id. at 1402. Defendants submit that since the contested employment right is one of property and no showing has been made that the plaintiff's discharge has destroyed his employability in the teaching profession, a claim cannot be made out under § 1983.

Insofar as the dichotomy of the personal versus property rights under the Civil Rights Act is concerned, it cannot be said that either is exclusively within the Act's contemplation. Much has been said of the distinction in various contexts, and whether jurisdiction under 28 U.S.C. § 1343(3) is appropriate when property interests are involved. The Second Circuit has stated that jurisdiction under § 1343(3) lies "whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights." Eisen v. Eastman, 421 F.2d 560, 564, n. 7 (2d Cir. 1969), quoting Hague v. C.I.O., 307 U.S. 496, 531, 59 S. Ct. 954, 83 L.Ed. 1423 (1939). It has been recognized, however, that ". . . some classes of cases are not readily characterized as involving either rights of personal liberty or property rights but take on characteristics of both. Cases challenging the procedures used in a discharge from public employment are such a class." Tichon v. Harder, supra, at 1399; see Eisen v. Eastman, supra, at 565. The Supreme Court has recently disavowed a "personal liberties" limitation upon § 1343(3).

"The dichotomy between personal liberties and property rights is a false one . . . . In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized . . . ." Lynch v. Household Finance Corp., 405 U.S. 538, 552, 92 S. Ct. 1113, 1122, 31 L.Ed.2d 424, 434, 435 (1972).

Therefore, that the right sought to be vindicated is one of employment and characterizable as a property right does not, taken alone, render absent jurisdiction under § 1343(3).

While this is dispositive of defendants' bare jurisdictional contentions, there remains the question of whether the facts stipulated herein form the basis for relief under 42 U.S.C. § 1983. The Sixth Circuit in Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), has stated the elements for proof of claim under this section as "1) action taken under color of State law, and 2) a deprivation of a constitutional right as a result of that action." As to the first element, there is no question but that plaintiff's dismissal was accomplished under color of state law. The more fundamental question is whether his dismissal entailed the deprivation of a constitutional right.

That there exists no constitutional right to public employment needs no commentary. Cafeteria and Restaurant Workers Union v. McElroy, 367 U. S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Just as well settled is the proposition that public employment may not be terminated or conditioned in ways which infringe upon the exercise of constitutional rights and freedoms. See Orr v. Trinter, supra, at 134, for cases depicting constitutionally infirm bases for refusal to rehire a teacher.

In the instant case, however, the state action asserted as being constitutionally impermissible was the manner in which plaintiff's dismissal was accomplished, not that dismissal arose from his exercise of constitutionally protected activity. Thus, the question under § 1983 becomes whether plaintiff's status was such as to make applicable to its termination the Fourteenth Amendment's procedural safeguards, and if so, whether the procedures in effect at the time of plaintiff's dismissal accorded with due process requirements. The court in Orr rejected the similar constitutional contentions presented by a nontenured teacher in that case, and stated:

"The Fourteenth Amendment only protects against the State depriving one of life, liberty, or property without due process of law. `It has been held repeatedly and consistently that Government employ is not "property." . . . We are unable to perceive how it could be held to be "liberty." Certainly it is not "life."' Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, . . . ." Orr v. Trinter, supra, at 134.

This pronouncement, however, and those subsequently rendered by this circuit in Lukac v. Acocks, 466 F.2d 577 (6th Cir. 1972); Crabtree v. Brennan, 466 F.2d 480 (6th Cir. 1972); Harp v. Clemens, 464 F.2d 1028 (6th Cir. 1972); and Patrone v. Howland Local Bd. of Education, 472 F.2d 159 (6th Cir. 1972), are deemed restricted to nontenure situations in which the interest in employment did not rise to the level of a "property" interest in the constitutional sense.

On the basis of the recent Supreme Court holdings in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the court holds that plaintiff's employment as a tenured teacher under Tennessee statute was a "property" interest, the termination of which must be accomplished through procedures consistent with Fourteenth Amendment due process. The clear pronouncement of both Roth and Sindermann is that when interests in continued employment surpass mere abstract concerns and become legitimate claims of entitlement created by state rules and understandings, then property interests are involved to which the Fourteenth Amendment's procedural safeguards attach. The presence of those essential ingredients of continued employment expectancy sufficient to establish a status invoking procedural safeguards is a factual question to be resolved in each case, but acknowledged tenure under Tennessee's statutory scheme is clearly such a status. The Roth decision contemplates...