Vukadinovich v. Bartels

• Decision Date: 29 July 1988
• Docket Number: No. 87-2507,87-2507
• Citation: 853 F.2d 1387
• Parties: 48 Ed. Law Rep. 756 Brian VUKADINOVICH, Plaintiff-Appellant, v. Kathryn BARTELS, Individually and as trustee of New Durham Township School Corporation and New Durham Township, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1387

853 F.2d 1387

48 Ed. Law Rep. 756

Brian VUKADINOVICH, Plaintiff-Appellant, v. Kathryn BARTELS, Individually and as trustee of New Durham Township School Corporation and New Durham Township, et al., Defendants-Appellees.

No. 87-2507.

United States Court of Appeals Seventh Circuit.

Argued April 20, 1988.

Decided July 29, 1988.

Brian Vukadinovich, Valparaiso, Ind., pro se.

Donald E. Baugher, Raelson Osborn Roule Baugher & Hedge, LaPorte, Ind., Steven A. Johnson, Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, Ind., for defendants-appellees.

Before BAUER, Chief Judge, COFFEY and FLAUM, Circuit Judges.

BAUER, Chief Judge.

Plaintiff, Brian Vukadinovich, filed suit under 42 U.S.C. Sec. 1983 alleging violations of his rights under the First and Fourteenth Amendments in connection with the termination of his employment as a public high school teacher. ¹ His complaint also included pendent state law claims. Vukadinovich alleged that the defendants fired him in retaliation for the exercise of his right to free speech after his comments regarding his resignation as basketball coach were published in a local newspaper. The district court granted summary judgment for the defendants on the First and Fourteenth Amendment claims and dismissed the pendent claims for lack of subject matter jurisdiction. Vukadinovich appeals pro se. Because we agree with the district judge's determination that the speech at issue addressed a matter of personal rather than public concern, we affirm the judgment for the defendants.

I.

From 1976 to 1981, Brian Vukadinovich was a teacher of industrial arts, physical education, and drivers education at Westville High School. When he was hired, Vukadinovich was not licensed to teach industrial arts. He was assured, however, that the school would obtain a limited teaching license for him, allowing him to teach industrial arts until he could complete the courses required for certification. The superintendent did obtain a limited license for Vukadinovich by certifying "an emergency need for personnel in the teaching area," as required by Indiana regulation. See 530 Ind.Admin.Code 2-2-12 (1984). Vukadinovich never obtained permanent certification to teach industrial arts.

Vukadinovich also was coach of Westville's junior varsity basketball team. He alleges that, in March 1981, defendant James Rose, Principal of Westville High, told him that the New Durham Township Advisory Board had asked for his resignation as basketball coach. Vukadinovich therefore resigned from that position. Shortly thereafter, an article was published in a local newspaper regarding the resignations of Vukadinovich and another coach, Rick List. Containing quotations from Vukadinovich and List, the article stated:

More upset [than List] at the decision was Vukadinovich, who said, "I feel it's a shame for the school and the community it represents."

"It was Mr. Rose and the board and trustee's wishes. For me to get called in after a 14-5 season, I certainly have questions. I feel they're obligated to say why."

But so far, according to Vukadinovich, no reason has been given. "I've never been told that I've done anything wrong. All I was told was I wouldn't be offered a coaching position next year."

Vukadinovich has been at Westville five years, and posted the following records: 11-8 in '76-'77, 14-6 in '77-'78, 6-12 in '78-'79, 12-8 in '79-'80 and 14-5 in '80-'81. His team won the conference championship in 1977-'78, and tied for the crown the next three years. "I'm 100 percent impressed with the school's performance. I feel it's their loss."

"If there was a lack of interest I could understand it. But the community backed the team and I respect it. If anybody has anything to hide, fine. But I don't."

"The decision came as a surprise after what I achieved," Vukadinovich said. When asked if technical fouls which were a common occurrence in j.v. games, were the cause of his being fired, he said, "Any verbal disagreements were between me and the refs."

"I stood up for my players. I won't mention any names, but at a lower level there seems to be more technicals than are called on me. So if technicals were the issue, why would they come to me. They couldn't justify it as an excuse if they use it against me and not the other."

Vukadinovich teaches industrial arts at Westville and is also the C-team coach. Asked if he will stay on as teacher, he said, "I'm not sure."

Soon after the article's publication, Vukadinovich received notice from Rose and defendant Kathryn Bartels, a trustee for the New Durham School Corporation, that his teaching contract was to be cancelled and that there would be a hearing before the New Durham Advisory Board to discuss the matter on May 5, 1981. On that date, the hearing was held and the board voted to cancel Vukadinovich's 1980-81 contract and not renew his contract for the following year. Vukadinovich's complaint alleged that his contract was cancelled in retaliation for the exercise of his First Amendment rights in commenting on his resignation as basketball coach and, additionally, that he was denied due process and that his firing violated the Equal Protection Clause.

In an order entered September 5, 1986, then-District Judge Kanne granted the defendants' motion for summary judgment on the First Amendment claim, finding that Vukadinovich's comments regarding his resignation as basketball coach were a matter of personal rather than public concern and thus were not protected under the First Amendment. In an order entered on August 19, 1987, the district judge denied plaintiff's motion to reconsider that determination, granted the defendants' motion for summary judgment on the due process and equal protection claims, ² and dismissed Vukadinovich's state law claims for lack of subject matter jurisdiction. Vukadinovich appeals, arguing that he was fired in retaliation for his comments on a matter of public concern in violation of both the First Amendment and the Equal Protection Clause. ³

II. The First Amendment Claim

In cases where a public employee's First Amendment rights are at issue, the courts engage in a three-step analysis.

First, the court must determine whether the plaintiff's speech is constitutionally protected. This is a question of law. Connick v. Myers, 461 U.S. 138, 148 n. 7 [103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708] (1983); Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274 [97 S.Ct. 568, 50 L.Ed.2d 471] (1977); Pickering v. Board of Educ., 391 U.S. 563 [88 S.Ct. 1731, 20 L.Ed.2d 811] (1967); Knapp [v. Whitaker], 757 F.2d [827,] 839, 845 [ (7th Cir.), cert. denied, 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 (1985) ]. If the plaintiff's speech is protected by the first amendment, then two issues of fact must be addressed. The first factual issue is whether the defendant's actions were motivated by the plaintiff's constitutionally protected speech. Knapp, 757 F.2d at 845. If the plaintiff can demonstrate that his or her constitutionally protected speech was a substantial or motivating factor in the defendant's actions, the defendant must then have an opportunity to prove that it would have taken the same action in the absence of the plaintiff's exercise of his or her first amendment rights. Id.

Hesse v. Board of Educ., 848 F.2d 748, 754 (7th Cir.1988) (Flaum, J., dissenting). This case involves only the first step of the analysis--the legal determination ⁴ whether the plaintiff's speech is constitutionally protected. ⁵

"In analyzing the constitutional protection to be accorded [plaintiff's] speech, we must first determine whether the context, content and form of [his] statements as revealed by the record as a whole indicate that they were on a matter of public concern." Hesse, at 751 (citing Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690). Once the court determines that the matters are not of public concern, "absent the most unusual circumstances" (plaintiff makes no argument that such circumstances are present here), a federal court will not "review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Hesse, at 751 quoting Connick, 461 U.S. at 147, 103 S.Ct. at 1690.

Given our reading of Vukadinovich's statements as a whole and in context, we agree with the district judge's conclusion that they related to a matter of personal rather than public concern. Although in a sense any events which transpire in a public school are matters of public concern, ⁶ we have recently quoted Connick as stating, " 'To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark ... would plant the seed of a constitutional case.' " Hesse, at 752 (quoting Connick, 461 U.S. at 149, 103 S.Ct. at 1691. Thus, even where a plaintiff's remarks "tangentially include general references to public education," they may not themselves be "intrinsically on a matter of public concern." Id.

This Court has noted that "there is a difference between criticism directed at the institution in general and disputes with which the complainant has an intimate personal involvement." Egger v. Phillips, 710 F.2d 292, 318 (7th Cir.1983) (en banc).... This court has recently reaffirmed its stance that even though an expression may inherently deal with a matter of public concern, the Connick test " 'requires us to look at the point of the speech in question: was it the employee's point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern? Or was the point to further some purely private interest?' " Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir.1987) (quoting Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir.1985)). The Eleventh Circuit has also noted that "a public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions...