Upshur v. Love, C-77-0111.

• Decision Date: 23 July 1979
• Docket Number: No. C-77-0111.,C-77-0111.
• Citation: 474 F. Supp. 332
• Court: U.S. District Court — Northern District of California
• Parties: James M. UPSHUR and United Teachers of Oakland, Local No. 771, AFT, AFL-CIO, Plaintiff, v. Ruth LOVE, Superintendent of Schools of the Oakland Unified School District, Robert Blackburn, Assistant Superintendent of Schools of the Oakland Unified School District, Angelo Lievore, Administrative Director of Personnel of the Oakland Unified School District, Robert P. Bignami, Coordinator of Summer Schools, Oakland Unified School District, and David Tucker, Mel Caughell, Seymour Rose, Charles Goady, Lorenzo Hoopes, Peggy Stinnett and Barney Hilburn, members of the Board of Education of the Oakland Unified School District, and Oakland Unified School District, Defendants.

474 F. Supp. 332

James M. UPSHUR and United Teachers of Oakland, Local No. 771, AFT, AFL-CIO, Plaintiff, v. Ruth LOVE, Superintendent of Schools of the Oakland Unified School District, Robert Blackburn, Assistant Superintendent of Schools of the Oakland Unified School District, Angelo Lievore, Administrative Director of Personnel of the Oakland Unified School District, Robert P. Bignami, Coordinator of Summer Schools, Oakland Unified School District, and David Tucker, Mel Caughell, Seymour Rose, Charles Goady, Lorenzo Hoopes, Peggy Stinnett and Barney Hilburn, members of the Board of Education of the Oakland Unified School District, and Oakland Unified School District, Defendants.

No. C-77-0111.

United States District Court, N. D. California.

July 23, 1979.

Robert J. Bezemek, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for plaintiff.

Michael S. Sorgen, Sandra Woliver, Oakland Unified School District, Oakland, Cal., for defendants.

MEMORANDUM OF OPINION

RENFREW, District Judge.

Plaintiff James M. Upshur brought this suit against the Superintendent of Schools of the Oakland Unified School District ("School District"), members of the Board of Education of the School District, various other School District officials, and the School District itself, charging that the defendants' discriminatory policies and practices prevented plaintiff from obtaining an administrative position in the School District. James Upshur is blind. He alleges that he is qualified to be an administrator yet was denied placement on a list of those eligible for administrative jobs because of his blindness. Plaintiff contends that defendants thereby violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and denied him equal protection and due process, in violation of 42 U.S.C. § 1983. Plaintiff also asks this Court to exercise pendent jurisdiction over a number of state law claims. However, plaintiff's briefs and arguments have focused almost exclusively on his federal claims.

This action was filed on January 14, 1977.¹ The matter was tried to the Court on November 15, 16, 17, 18, and 20, 1978, with plaintiff appearing by Robert J. Bezemek, Esq., and defendants appearing by Michael S. Sorgen, Esq. Post-trial briefs were filed, and closing argument was heard on February 8, 1979. Thereafter the parties filed proposed findings of fact and conclusions of law. Upon consideration of all the evidence, the entire record herein, and the argument of counsel, the Court renders the following opinion, which shall serve as its Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

Plaintiff Upshur is a tenured teacher in the Adult Education Program of the Oakland Unified School District. He is 58 years old and has been blind since 1963. Plaintiff graduated from San Francisco State University with a Bachelor of Arts degree in 1962. Prior to that date he had served in the United States Army for 20 years retiring with the rank of Major. From November 1962 to June 1963, Upshur worked as a day-to-day substitute teacher in the Oakland Unified School District. In April 1963, Upshur was hired as a fulltime teacher, but shortly thereafter he lost his sight in an automobile accident and was unavailable for employment again until 1965. From 1965 until 1971 Upshur served as a day-to-day substitute teacher in the School District. From 1971 to the present, Upshur has served as a five-sixths time teacher in the Adult School.

In or about April 1972, Upshur applied to be placed on the Administrative Preferred List, a list of eligible candidates for administrative positions within the School District. One qualifies for placement on the list by successfully completing a written examination given by the School District and an oral interview with a committee of administrators. Applicants are evaluated based on the "total process," and there is no minimum score for the written examination that must be achieved in order to be considered for placement on the list. No individual is required to take the written examination more than once. Candidates normally are permitted to have interviews every other year.

Upshur took the written examination in 1972 and had the assistance of a reader and scored in the lowest quartile.² After consideration of the written exam and the subsequent oral interview, the School District's Administrative Committee determined not to approve Upshur's placement on the Administrative Preferred List in 1972.³

In July 1973, Upshur received a General Administrative and General Secondary Credential for the State of California. Upshur had previously received a General Pupil Personnel Services Credential in September 1971, a Standard Adult School Credential in September 1970, and a Standard Secondary Credential in July 1969.

In October 1973, Upshur reapplied to the School District to be placed on the Administrative Preferred List. In May 1974, Upshur was interviewed by a committee of administrators, including defendant Angelo Lievore, Administrative Director of Personnel for the School District. In June 1974, Upshur was informed by letter that he would not be placed on the Administrative Preferred List.

Although the evidence on this point conflicted,⁴ the Court concludes that during the 1974 interview the committee did ask Upshur a number of questions about how he would cope with his blindness in performing particular administrative tasks such as inspecting buildings and facilities, developing curriculum, and dealing with emergency situations. Upshur's response to these inquiries was simply that he would handle such difficulties with the help of an aide.

The Court further finds, on the basis of Lievore's testimony, that the committee members who interviewed Upshur decided not to place him on the Administrative Preferred List for two reasons. First, they did not believe that Upshur was qualified to be an administrator. They concluded that Upshur needed to sharpen and develop his administrative skills, particularly in such areas as curriculum planning, program development, and personnel matters, and that he had not demonstrated that he had the experience and the leadership ability necessary to be a successful administrator. Second, the committee was concerned that Upshur's blindness would present difficulties in certain areas. The committee members were not satisfied with Upshur's responses to their questions about how Upshur would cope with his handicap in fulfilling particular administrative responsibilities. Upshur's invariable response that he would simply rely on an aide indicated that he had not given much thought to these problems and that he expected to be assigned an aide who would be fully qualified to perform a wide range of administrative duties.

After Upshur was notified that the committee had denied him placement on the Administrative Preferred List, he arranged an interview with Lievore to discuss the committee's decision. Lievore explained to Upshur that the committee did not believe he was qualified to be an administrator, and that he had not demonstrated the necessary leadership ability or the desired background in such areas as curriculum and instruction. Lievore also told Upshur that the committee had some concern about the problems presented by his blindness and had not been persuaded that he was able to cope with these problems.⁵ Upshur was not satisfied with this explanation and wished to pursue the matter further. Eventually a meeting was arranged with defendant Robert Blackburn, then Deputy Superintendent of Schools for the School District. Upshur, accompanied by George Stokes, his union representative, met with Lievore and Blackburn to discuss the committee's decision. Upshur asked Blackburn to overturn the committee's decision, since he believed that he had been denied placement on the list solely because he was blind.⁶

Blackburn thoroughly reviewed the committee's decision. He contacted committee members and individuals who had worked with Upshur and concluded that the committee's decision should not be overturned. He did not believe that the committee was biased against Upshur because of his handicap or had been unwilling to seriously consider him because of his blindness. Blackburn agreed with the committee's conclusion that Upshur lacked many of the qualities necessary to be an effective and able administrator. Blackburn already had some familiarity with Upshur's background, as he had served on the committee that interviewed Upshur in 1972. He had been disappointed at the time that Upshur did not evidence a better understanding of administrative responsibilities and that he lacked the leadership ability and the experience that the committee was seeking. Although Upshur emphasized his military background, the committee Blackburn served on did not feel that this experience had carried over to provide him with a solid understanding of problems of school administration.

In August 1974, Upshur filed a complaint with the Fair Employment Practices Commission ("FEPC") of the State of California, complaining that the committee had discriminated against him because of his visual handicap. Linda Tejada, an FEPC investigator, discussed Upshur's case with Lievore and Blackburn. In order to rebut the concerns those individuals expressed about a blind person performing effectively as a school administrator,⁷ Tejada obtained information about two blind school administrators in other sections of the country who had been able to fulfill their responsibilities despite their handicaps. Although Blackburn was impressed by the achievements of these individuals, he felt that their personal characteristics were quite different from Upshur's and he remained convinced that Upshur was not suited for an administrative position at that time, although he might be able to fill such a position at some point in the future. Blackburn informed Upshur of...