Sullivan v. Brown, 75-2269

• Decision Date: 19 October 1976
• Docket Number: No. 75-2269,75-2269
• Citation: 544 F.2d 279
• Parties: Linda Kay SULLIVAN, Plaintiff-Appellant, v. George BROWN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 279

544 F.2d 279

Linda Kay SULLIVAN, Plaintiff-Appellant, v. George BROWN et al., Defendants-Appellees.

No. 75-2269.

United States Court of Appeals, Sixth Circuit.

Argued June 17, 1976.

Decided Oct. 19, 1976.

Russell X. Thompson, Memphis, Tenn., for plaintiff-appellant.

Ernest G. Kelly, Jr., Evans, Petree, Cobb & Edwards, Memphis, Tenn., for defendants-appellees.

Before PHILLIPS, Chief Judge, and EDWARDS and ENGEL, Circuit Judges.

PHILLIPS, Chief Judge.

The question present on this appeal is whether the transfer of a tenured school teacher from one school to another, with no reduction in compensation, based upon various unresolved allegations that are made a part of her permanent record, constitutes a fourteenth amendment due process violation under 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).

Plaintiff Sullivan is a tenured public school teacher employed by the Memphis, Tennessee, school system. In May, 1974, she was subjected to an investigation of her conduct as a teacher at Kingsbury High School. As a result, she was suspended temporarily, reprimanded and transferred to Oakhaven High School. Additionally, a letter of reprimand containing three allegations which had been admitted by her, a conference report containing certain unresolved allegations and students' statements were all placed in her personnel file. Chief District Judge Bailey Brown concluded that plaintiff was neither deprived of a "property" interest nor a "liberty" interest under the standards announced in Roth or Sindermann. The District Court further concluded that plaintiff was present at several conferences conducted to investigate the allegations, and these conferences were sufficient to comply with due process requirements. We affirm the District Court on the basis that the facts of the instant case establish neither a "property" interest nor a "liberty" interest protected by the due process clause.

I.

On May 2, 1974, there was a small disturbance in one of plaintiff's classes which caused plaintiff to send a student to the principal's office. There, this student made certain charges against plaintiff, that, in conjunction with other matters, prompted the principal, William Taylor, to request a conference before the Director of Certified Personnel, James Pendergrast, to discuss the situation with plaintiff. The conference was set for the afternoon of May 6, 1974. However, the principal did not inform plaintiff of the conference until the morning of May 6. The District Court found that the principal had a "well-founded fear" that if he informed plaintiff of the conference prior to May 6, she would enlist student support and cause a disturbance at the school. Plaintiff was not informed at that time of the charges against her. She was instructed not to report to school that day, and that she was to be present at Pendergrast's office that afternoon.

During the conference, Taylor informed plaintiff of the several complaints that he had received, and plaintiff was allowed to respond to each of them. Although plaintiff denied several of the charges, the District Court found that she admitted the accuracy of three of them: 1) the discussion by her of sex related topics in her classes; 2) excessive tardiness on her part; and 3) her use of profanity in the presence of students. Pendergrast informed each party that he would consider the matter and render a decision shortly. He told the principal, however, that the allegations would have to be supported with proof. Plaintiff similarly was informed that she could supply additional proof to rebut the allegations. Plaintiff was instructed not to return to Kingsbury until a decision had been made.

On May 7, 1974, after the principal was approached by several students concerning plaintiff's absence, he decided to have an assembly of plaintiff's students at the school auditorium. The District Court found that the purpose of this assembly was to dispel any rumors about the situation and to ascertain whether other students were aware of plaintiff's alleged conduct. After the principal had told the students the purpose of the meeting, he wrote the complaints against plaintiff on a blackboard, and he asked those students who had observed the alleged conduct to raise their hands. The principal had three assistants present. One took notes of the meeting while the other two maintained order and counted the number of students who raised their hands.

On May 9, 1974, plaintiff received a letter from Superintendent of Schools John Freeman, formally advising her that she was suspended with pay pending the investigation of the complaints against her. ¹ That same day, plaintiff submitted to Pendergrast a ten page document rebutting or explaining the complaints raised by the principal. She also submitted several letters from students and their parents supporting her position. The principal transmitted to Pendergrast several letters from students that supported the allegations made. On May 14, 1974, after reviewing all the evidence, Pendergrast sent plaintiff a letter informing her of his decision that she was guilty of the following offenses:

1. Conduct unbecoming a member of the teaching profession by use of profanity in front of students.

2. Neglect of duty by repeated tardiness and failure to report on time to rehearsals and to the Thespian banquet.

3. Insubordination discussion of controversial subjects with students after having been specifically instructed not to do so by the principal.

The May 14 letter informed plaintiff that she would be transferred immediately to another high school and an official letter of reprimand would be placed in her personnel file. ² The record indicates that in addition to the letter of reprimand, the conference report containing copies of the allegations and the statements from students also was placed in plaintiff's personnel file.

Subsequently, plaintiff appealed Pendergrast's decision to the Assistant Superintendent, Department of Personnel Services, Lee Thompson. After having three conferences with plaintiff, Thompson, on August 12, 1974, decided to uphold the decision rendered by Pendergrast. That decision subsequently was appealed to Superintendent of Schools, John Freeman. Freeman rendered a decision on August 19, 1974, upholding the conclusions of Pendergrast and Thompson. Plaintiff also was informed on at least two occasions of her right to appeal to the Board of Education. This right was never exercised. In event of an adverse decision by the Board, she would have been entitled to a judicial review de novo in the State Chancery Court. T.C.A. § 49-1417.

Plaintiff argues that she has been deprived of a substantive due process right involving her good name, her honor, her integrity and her personal as well as her professional reputation, without being afforded the minimum requirements of procedural due process. The only relief that she seeks is the expunction of all information relative to the reprimand and transfer, maintained in her personnel file, until such time as she has been afforded a hearing that meets minimum due process requirements.

In an opinion by Circuit Judge John Paul Stevens in Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1 (7th Cir. 1974), the court held as follows:

The Fourteenth Amendment prevents the state from depriving any person of liberty or property without due process of law. As Roth squarely holds, the right to procedural due process is applicable only to state action which impairs a person's interest in either liberty or property. Certainly the constitutional right to "substantive" due process is no greater than the right to procedural due process. Accordingly, the absence of any claim by the plaintiff that an interest in liberty or property has been impaired is a fatal defect in her substantive due process argument.

(Emphasis added.) 492 F.2d at 4.

Without a "property" or "liberty" interest protected by the due process clause, plaintiff would have no federally protected right, even if it be assumed that the statement of reasons or charges placed in her personnel file were false. Rather, her right of action would exist exclusively in state courts. See, Ryan v. Aurora City Board of Educ., 540 F.2d 222 (6th Cir. 1976). The Supreme Court commented on this question in Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976):

Indeed, the impact on petitioner's constitutionally protected interest in liberty is no greater even if we assume that the City Manager deliberately lied. Such fact might conceivably provide the basis for a state law claim, the validity of which would be entirely unaffected by our analysis of the federal constitutional question.

Id. at 349 n. 13, 96 S.Ct. at 2080 n. 13 (emphasis added).

II.

Therefore, it is necessary to determine whether on the facts of this case, transfer pursuant to T.C.A. § 49-1411 amounts to a deprivation of a "property" interest within the meaning of Roth, supra.

Whether or not a "property" interest exists depends not upon the Constitution but upon "independent sources such as state law". Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709. See also Bishop, supra, 426 U.S. at 344, 96 S.Ct. 2074. There can be no doubt under Tennessee law that the transfer of a tenured teacher, pursuant to T.C.A. § 49-1411, does not amount to a deprivation of a "property" interest within the meaning of Roth, supra and Sindermann, supra. See, Coe v. Bogart, 519 F.2d 10, 12 (6th Cir. 1975). See also Lipp v. Board of Educ., 470 F.2d 802, 805 n. 5 (7th Cir. 1972); Mitchell v. Garrett, 510 S.W.2d 894, 897-98 (Tenn.1974); State ex rel. Pemberton v. Wilson, 481 S.W.2d 760, 769 (Tenn.1972); State v. Yoakum, 201 Tenn. 180, 297 S.W.2d 635 (1956). In Coe, this court held:

The above-cited statutes make it manifestly clear that the Tennessee legislature, in enacting the Teacher...