Zoll v. Eastern Allamakee Community School Dist., s. 77-1982
| Decision Date | 07 December 1978 |
| Docket Number | Nos. 77-1982,77-1946,s. 77-1982 |
| Citation | 588 F.2d 246 |
| Parties | Rose ZOLL, Appellee-Cross-Appellant, v. EASTERN ALLAMAKEE COMMUNITY SCHOOL DISTRICT, Board of Directors of the Eastern Allamakee Community School District, both Individually and as Board members, Lawrence Protsman, Hugh Conway, James Mettille, Roy Renk, Duane Fuhrman, Superintendent of the Eastern Allamakee Community School District, as Superintendent and as an Individual, Harold Pronga, Elementary Principal of Eastern Allamakee Community School District as Elementary Principal and as an Individual, Appellants- Cross-Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William F. Fanter (argued) and Michael H. Figenshaw, Des Moines, Iowa, filed brief, for Eastern Allamakee Community School Dist.
James L. Sayre, Dreher, Wilson, Adams & Jensen, Des Moines, Iowa, Robert M. Weinberg, Michael H. Gottesman and David M. Silberman, Bredhoff, Gottesman, Cohen & Weinberg (argued) and David Rubin, Washington, D. C., filed brief for Zoll.
Before BRIGHT, Circuit Judge, INGRAHAM, Senior Circuit Judge, * and STEPHENSON, Circuit Judge.
This case for reinstatement and back pay arose out of the non-renewal of a public school teacher's contract. Mrs. Rose Zoll brought suit against the Eastern Allamakee Community School District, the school board, superintendent and elementary principal, alleging that she was denied renewal of her contract in retaliation for her exercise of First Amendment rights. A jury verdict was rendered and judgment entered in favor of Mrs. Zoll and against the superintendent and elementary principal. The jury did not find the school district or school board members liable. The district court ordered that the school board reinstate Mrs. Zoll and that the superintendent and elementary principal compensate her for back pay up to the date of trial and attorney's fees and expenses. The superintendent and elementary principal appeal from the denial of their motion for a directed verdict and the overruling of their objection to a jury instruction. Mrs. Zoll cross-appeals for an extension in the back pay period and an increase in the attorney's fee award. We affirm the entry of judgment of liability on the jury verdict and the reinstatement directive and remand to the district court for reconsideration of the post-trial back pay issue and the attorney's fee award.
Mrs. Zoll holds a Masters Degree in Elementary Administration and is certified by the State of Iowa as both a teacher and an administrator. Prior to the non-renewal of her contract, she had been employed as a first grade teacher in Allamakee County for twenty-nine years. The last fifteen years of her teaching career were with the Eastern Allamakee Community School District which was organized after she began teaching. She was promoted to elementary school principal in the Eastern Allamakee Community School District but resigned after two years to devote her full time to teaching.
In September 1973, Mr. Harold Pronga succeeded Mrs. Zoll as the elementary school principal. In June and July 1974, Mrs. Zoll wrote two letters to the editor of a local newspaper sharply criticizing Mr. Pronga, School Superintendent Duane Fuhrman, and school board members Lawrence Protsman, Hugh Conway, James Mettille and Roy Renk for a decline in administrative concern with academic excellence. 1
In August 1974, on her second day at school following the summer vacation, Mrs. Zoll was summoned to Mr. Pronga's office to discuss the letters. Mr. Pronga had informed Superintendent Fuhrman of the planned meeting. At the outset of their discussion, Mr. Pronga read to Mrs. Zoll from his prepared notes: "I am very concerned and equally puzzled by your letters to the editor." Mr. Pronga accused Mrs. Zoll of misrepresenting facts and chastised her for failing to express her feelings through proper channels.
In December 1974, the school board followed the suggestion of the Iowa Department of Public Instruction in adopting a contingency plan for staff reduction in the event of a decline in enrollment. The plan included rules for determining the pool of teachers from which layoffs would be made. Selection from the pool would be by a 100-point system. A maximum of 40 points could be awarded for experience and training. The principal, superintendent and school board could award up to 20 points each, based on their subjective evaluations.
At the February 1975 school board meeting, the board was informed of a projected enrollment decline of first grade students for the 1975-76 school year which would warrant a staff reduction. The board treated as a pool from which a lay-off would be made the three first grade teachers: Mrs. Zoll, Mrs. Rebecca Okerlund and Mrs. Jane Meyer. The official decision of which teacher to terminate was postponed until the March board meeting. 2
Out of the potential 100 points, Mrs. Zoll received 57, 3 Mrs. Okerlund 62 1/2, and Mrs. Meyer 72. Mrs. Zoll received the highest point totals on the objective evaluation of experience and training. Out of a possible 40 points, Mrs. Zoll received 40, Mrs. Okerlund 4 1/2 and Mrs. Meyer 16. Mrs. Zoll received the lowest point totals on the subjective evaluations by Mr. Pronga, Mr. Fuhrman and the school board. Out of a possible 60 points, Mrs. Zoll received 17, Mrs. Okerlund 58, and Mrs. Meyer 56.
On April 8, 1975, the school board notified Mrs. Zoll that her contract would not be renewed for the 1975-76 school year. A public hearing was convened by the school board at Mrs. Zoll's request on June 9, 1975, pursuant to Iowa Code § 279.13 (1975). At the conclusion of the hearing, the board voted four to one not to renew her contract.
On December 15, 1975, Mrs. Zoll filed suit against Mr. Pronga, Mr. Fuhrman, and the four board members who voted not to renew her contract, alleging that they had refused to renew her teaching contract in retaliation for her exercise of First Amendment rights in violation of 42 U.S.C. § 1983 (1970). 4
The action proceeded to trial before a jury on August 8, 1977. The court denied defendants' motion for directed verdict made at the close of Mrs. Zoll's case and renewed at the close of all the evidence.
The court then instructed the jury on the elements of Mrs. Zoll's § 1983 claim:
The first amendment of the Constitution guarantees the right of free speech. The plaintiff in this case, like all persons living under the protection of the Constitution, had the legal right at all times not to be deprived of her free speech rights.
In order to sustain her claim against defendants, the plaintiff must prove by a preponderance of the evidence that:
2. Defendants' decision not to rehire was in retaliation for plaintiff's exercise of her right of free speech.
The parties in this case agree that "letters to the editor" are protected speech under the first amendment.
It is plaintiff's burden to show that protected conduct was a "substantial" or "motivating" factor in the board's decision not to rehire her.
If you find that Mrs. Zoll has carried that burden, you must next determine whether the board would have made the same decision in the absence of the protected conduct.
The defendants objected to the instruction on the ground that the "right of free speech" was not adequately defined. They expressed concern that the jury might find for Mrs. Zoll although conclude that her discharge was due to her school board appearances 5 rather than her letters to the editor. The court overruled the objection.
The court further instructed the jury that if Mrs. Zoll was found to be entitled to damages, that she should be compensated for the loss of income up to the date of trial.
The jury returned a verdict against Mr. Pronga and Mr. Fuhrman and assessed the maximum damages permitted by the court's instruction. 6 On October 25, 1977, judgment was entered on the verdict. The court ordered the school board to offer Mrs. Zoll the first available teaching position for which she was qualified. Mrs. Zoll's motion to extend the back pay period to the date reinstatement is actually offered was denied. Pursuant to 42 U.S.C. § 1988 (Supp.1976), Mrs. Zoll's counsel requested $7,150 in fees, based on the total number of hours worked times his regular hourly billing rate. 7 The court awarded attorney's fees of $5000, "given the nature of this case and considering all relevant circumstances."
Notice of appeal was duly filed on November 22, 1977, and notice of cross-appeal on December 6, 1977. On appeal, the defendants argue that the evidence of retaliatory motive is insufficient to support the jury verdict and that the jury instruction on elements of the case is erroneous. 8 On cross-appeal, Mrs. Zoll argues that the back pay period should extend to the date of a reinstatement offer and that the attorney's fee award should be vacated and remanded for reconsideration.
In determining whether the evidence of a retaliatory motive is sufficient to support the jury verdict, we are
(1) to consider the evidence in the light most favorable to the plaintiffs as the parties prevailing with the jury; (2) to assume that all conflicts in the evidence were resolved by the jury in favor of the plaintiffs; (3) to assume as proved all facts which plaintiffs' evidence tends to prove; (and) (4) to give the plaintiffs the benefit of all favorable inferences which may reasonably be drawn from the facts proved.
Hanson v. Ford Motor Co., 278 F.2d 586, 597 (8th Cir. 1960). Circumstantial as well as direct evidence of intent is relevant to a determination of sufficiency. Williams v. Anderson, 562 F.2d 1081, 1086 (8th Cir. 1977). A verdict may be directed or a jury verdict overturned "only where the evidence points All one way and is susceptible of No reasonable inferences sustaining the position of the nonmoving party." Giordano v. Lee, 434 F.2d 1227, 1231 (8th Cir. 1970) (emphasis in original).
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