Suber v. Bulloch County Bd. of Educ., Civ. A. No. CV687-154.

• Court: United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
• Writing for the Court: BOWEN
• Citation: 722 F. Supp. 736
• Parties: Nancy Brown SUBER, Plaintiff, v. BULLOCH COUNTY BOARD OF EDUCATION, and Dr. Henry J. Proctor, Dr. Harry S. Carter, Charles Finch, Robert Rushing, Janna C. Taulbee, Donnie Simmons, J.R. Williams, and in their official capacity as members of the Bulloch County Board of Education, Thomas F. Bigwood, in his official capacity as an employee of the Bulloch County Board of Education, Dr. Edwin L. Wynn, in his official capacity as an employee of the Bulloch County Board of Education, Fred Shaver, in his official capacity as an employee of the Bulloch County Board of Education, William Locklear, in his official capacity as an employee of the Bulloch County Board of Education, Charles H. Brown, in his official capacity as former Chairman of the Bulloch County Board of Education, Defendants.
• Docket Number: Civ. A. No. CV687-154.
• Decision Date: 04 August 1989

722 F. Supp. 736

Nancy Brown SUBER, Plaintiff,
v.
BULLOCH COUNTY BOARD OF EDUCATION, and Dr. Henry J. Proctor, Dr. Harry S. Carter, Charles Finch, Robert Rushing, Janna C. Taulbee, Donnie Simmons, J.R. Williams, and in their official capacity as members of the Bulloch County Board of Education, Thomas F. Bigwood, in his official capacity as an employee of the Bulloch County Board of Education, Dr. Edwin L. Wynn, in his official capacity as an employee of the Bulloch County Board of Education, Fred Shaver, in his official capacity as an employee of the Bulloch County Board of Education, William Locklear, in his official capacity as an employee of the Bulloch County Board of Education, Charles H. Brown, in his official capacity as former Chairman of the Bulloch County Board of Education, Defendants.

Civ. A. No. CV687-154.

United States District Court, S.D. Georgia, Statesboro Division.

August 4, 1989.

722 F. Supp. 737

COPYRIGHT MATERIAL OMITTED

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Theron M. Moore, Perry, Ga., and Jon Gary Branan and Rowe Brogdon, Claxton, Ga., for plaintiff

Kran Riddle and Stanley M. Karsman, Savannah, Ga., and Vanderver R. Pool, Turner & Pool, Statesboro, Ga., for defendants.

ORDER

BOWEN, District Judge.

Before the Court are defendants' motion for summary judgment and plaintiff's motion to strike certain portions of various affidavits submitted in support of defendants' motion. Plaintiff's fourteen-count complaint alleges that defendants violated her constitutional rights, and various state and federal laws prohibiting certain forms of discrimination. Plaintiff seeks money damages, attorney's fees, and a declaration that defendants violated her rights. All defendants have moved for summary judgment as to each remaining count¹ of the complaint.

FACTS

Plaintiff, a white female, is a former school teacher who taught in the Bulloch County school system for twenty-three years. Defendants are the Bulloch County Board of Education (the "Board"), all current² members of the Board and its former chairman, along with various employees of the Bulloch County School System. These employees are the superintendent, Dr. Wynn; the assistant superintendent, Mr. Shaver; the principal at the school where plaintiff last taught, Mr. Bigwood; and the assistant principal at that school, Mr. Locklear. All individual defendants are sued only in their official capacity.

Plaintiff was a teacher at Southeast Bulloch High from 1983 to 1987. During this period plaintiff filed, and assisted others in filing, complaints with the United States Department of Education's Office of Civil Rights ("OCR"). These complaints asserted that the Board was discriminating against students on the basis of race.

In March, 1986, plaintiff received a so-called Global Teacher Evaluation of her performance. See Exhibit A. Global Evaluations are given annually by the school principal to each of his teachers. The Evaluations contain the principal's evaluation of the teacher's performance during the previous year, along with areas of her job performance which need improvements. Plaintiff's 1986 evaluation also contained certain directives which ordered plaintiff not to discuss or otherwise involve herself in problems between students and other

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members of the faculty or the administration

After receiving this evaluation, plaintiff filed a complaint with the OCR alleging that the directives in her evaluation were given in retaliation for her previous involvement in the filing of complaints with the OCR. The OCR investigated these complaints but found no violations of federal law.

At the beginning of each year, the principals at each school in the Bulloch County School System recommend to the superintendent whether the contracts for each teacher in their school should be renewed. The superintendent then independently recommends to the Board whether these contracts should be renewed.

In February, 1987, Mr. Bigwood recommended to Dr. Wynn, and Dr. Wynn recommended to the Board, that plaintiff's contract for the 1987-1988 school year not be renewed. The Board accepted the recommendation. The Board received no input from anyone other than Dr. Wynn concerning the recommendation that plaintiff's contract not be renewed, and Dr. Wynn did not give the Board the reasons for his recommendation.

Plaintiff was notified of the Board's decision by certified mail on or about February 27, 1987. Plaintiff requested a hearing before the Board concerning the nonrenewal of her contract, and a hearing was scheduled for June 8, 1987. However, plaintiff subsequently waived this hearing and instead filed the instant suit.

Up to this point the record in this case is, at best, somewhat jumbled. To try and restore some order to the proceedings, I am setting out a map of the structure of this order. I will first rule on plaintiff's motion to strike. Then I will address defendants' motion for summary judgment as to each count of the complaint. Because of the great overlap in the evidence and the duplicative nature of many of the counts, deciding defendants' motion in this manner will no doubt result in a much longer order which contains some repetitious analysis. However, such is necessary to dispose of the pending motions in an orderly fashion.

ANALYSIS

Plaintiff, in opposing defendants' motion, moved to strike certain paragraphs of the affidavits of defendants Wynn, Shaver and Bigwood. Plaintiff argues that certain portions of these affidavits, submitted in support of the motion for summary judgment, are not competent evidence because they are conclusory, based on hearsay, or are outside the personal knowledge of the affiants.³ According to plaintiff, defendants' motion for summary judgment cannot be granted on the material contained in these portions of the affidavits of Wynn, Shaver and Bigwood. See Fed.R.Civ.P. 56.

I have reviewed in detail each affidavit which plaintiff asserts contains matter which should be stricken. Much of the material about which plaintiff complains is testimony by the affiants as to the reasons why the affiant took a particular action. Certainly this testimony cannot be said to be outside the personal knowledge of the affiant or hearsay.

While I agree with plaintiff that certain portions of the affidavits of defendants Wynn, Shaver and Bigwood contain rambling and self-serving statements, I see very little, if any, material that is not competent evidence. My ruling on defendants' motion is not based upon evidence that is inadmissible or is not competent. See Fed. R.Civ.P. 56(e).

Summary judgment should be granted when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. Once a party shows, in the manner provided by the rule, that there is no genuine issue of material fact, the opposing party may not rest upon his pleadings, but must instead "set forth specific facts showing that there is a genuine issue

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for trial." Id. Such a showing should be made by depositions, affidavits, admissions and answers to interrogatories. Id. With this in mind, I will now rule on defendants' motion.⁴

Count One of the complaint alleges that plaintiff was deprived of her right to procedural due process. Plaintiff claims that she had a property interest in remaining a teacher in Bulloch County, and the Board's failing to renew her contract deprived her of this property without due process of law.

The Bulloch County Board of Education could not fail to renew plaintiff's teaching contract, except for cause. O.C.G.A. § 20-2-942 (1987). Thus, plaintiff had a property interest in having her contract renewed, and the Board, in refusing to renew plaintiff's contract, must have complied with minimum standards of due process. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The process to which plaintiff was entitled "contains both a procedural and substantive component." Holley v. Seminole County School District, 755 F.2d 1492, 1496 (11th Cir.1985). The procedure by which the Board failed to renew plaintiff's contract must have comported with due process requirements, and if so, the Board's action must have been supported by substantial evidence. Id.

The procedures followed by the Board in failing to renew plaintiff's contract are those set out in the Georgia Fair Dismissal Law, O.C.G.A. § 20-2-940 et seq. These procedures meet due process requirements. Holley, 755 F.2d at 1497. Therefore, the only question is whether these procedures, as applied to plaintiff, meet minimum standards of due process.

It is undisputed that the Board followed the procedures set out in the Georgia Fair Dismissal Law. In waiving her right to a hearing before the Board, plaintiff agreed that the Board had in fact followed these procedures. However, plaintiff argues (indirectly) that she was denied her right to due process because the Board was not an impartial decisionmaker. See Ferguson v. Thomas, 430 F.2d 852 (5th Cir.1970).

A plaintiff who complains that a decisionmaker was not impartial must show actual bias on the part of the decisionmaker such that the decisionmaker is incapable of judging the dispute fairly. See Hortonville School District v. Hortonville Education Association, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976). This bias may be personal or official. Id. Official bias exists where there is a conflict of interest between the parties. Id. Personal bias exists when the decisionmaker may harbor personal animosity toward the plaintiff. E.g., Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971).

In the case at bar, plaintiff complains that the Board was incapable of fairly determining whether to renew her teaching contract because a new teacher had already been hired to teach plaintiff's classes. However, the Court in Holley specifically rejected this exact argument. Holley, 755 F.2d at 1499. Furthermore, the...