Evelyn Anderson v. David Evans

660 F.2d 153

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 7, 1981
• Docket: 79-1730
• Status: Published

Opinions

LIVELY, Circuit Judge.

The plaintiff, a tenured school teacher in the Haywood County, Tennessee system, who was terminated for “conduct unbecoming a teacher” and “inefficiency,” appeals the district court’s dismissal of her action seeking reinstatement and back pay. In her complaint Mrs. Anderson founded her action on 42 U.S.C. § 1983, alleging violation of the First Amendment right to freedom of speech and the Fourteenth Amendment right to due process of law. The defendants, members of the county board of education and its superintendent of schools, responded to the complaint with a motion to dismiss for failure to state a claim upon which relief may be granted. This motion was accompanied by two affidavits and the transcript of the “Termination of Employment Hearing” before the board of education. The plaintiff then filed a motion for summary judgment. The district court treated the two motions as cross motions for summary judgment, granted that of the defendants and dismissed the action. On appeal the plaintiff relies on the same constitutional arguments made to the district court.

I.

Evelyn Anderson had taught in the predominantly black Haywood County, Tennessee school system for several years prior to the 1978-79 school year. As in previous years, for 1978-79 she was assigned as a Title I mathematics teacher at the Douglass Elementary School whose student body was all black. On August 16, 1978, prior to the beginning of classes, the faculty of Douglass were at the school for an “in service” workshop. According to testimony which the board of education credited and which the district court accepted as true, Mrs. Anderson entered an office where the school principal, Mr. Fouse, and the assistant principal, Mr. Baskerville, were working and the following exchange took place:

And she came in and said, “I’m glad to see both of you together. I have something I want to tell you.” And then she told us about the incident where two young blacks went into a cafe and robbed the place where her daughter worked. And she said one of the boys slapped her daughter and roughed her up. And she said at that time, “I hate all black folks.” She said, “Now, I hate all black folks.” She said, “I never did care too much for them in the first place and now I don’t care anything about them.” I said, “Mrs. Anderson, don’t you realize that I am black and Mr. Baskerville is black and all the children here are black?” She said, “That’s just the way it is. I can’t help it.” I said, “Well, I hope they catch them,” She said, “I hope they catch anybody to servé the time.” I said, “Now here I am, a teacher, principal and a minister. Now, suppose they came in and get me and take me up there and make me serve the time out?” She said, “That wouldn’t make any difference with me one way or the other.” I said, “Mrs. Anderson, you’re at the wrong place. All of your children that you have out here are black. That’s just the way it is.” She said, “Well, that’s just the way it is.” And she walked out.

The principal testified that immediately after Mrs. Anderson left the room he called the superintendent of the Haywood County schools, the defendant Cox. Superintendent Cox directed the principal to check on Mrs. Anderson to be certain she was not abusing the children. Principal Fouse testified that after the conversation of August 16th his relationship with Mrs. Anderson was “marginal.” He tried to avoid her because of her attitude about Negroes. Often when he encountered Mrs. Anderson and spoke to her she would just turn her head and look away. The principal described one contact with Mrs. Anderson in some detail. On the first day of school — five days after the conversation recited above— Mrs. Anderson went to Mr. Fouse’s office and complained about a new aide who had been assigned to work with her. The new aide was a black woman. In earlier years Mrs. Anderson had had two white aides about whom she had no complaints. The new aide continued to work and Mrs. Anderson continued to complain. On December 6, 1978 Mrs. Anderson wrote Mr. Fouse asking that her aide be replaced, stating, “I can no longer tolerate her attitude or the quality of her work.”

Principal Fouse testified that the aide was doing what Mrs. Anderson told her to do, but that Mrs. Anderson “rejected her.” .At one point Mrs. Anderson threatened the principal with a lawsuit if he did not get rid of the aide. The aide was eventually terminated because Mrs. Anderson refused to give her any work to do. Since the aide was employed under the Title I program she could not be used elsewhere in the school.

The principal also testified that the community learned of Mrs. Anderson’s remarks about Negroes and that parents felt she had lost her effectiveness as a teacher. He believed that his strained relationship with Mrs. Anderson greatly affected the efficient and orderly operation of Douglass school.

During the 1978-79 school year Mrs. Anderson received three evaluations from the Title I supervisor and one from Principal Fouse. In most areas she was rated “poor” or “needs improvement” by the supervisor. One comment on the November 14, 1978 evaluation was, “Mrs. Anderson has been very unorganized this year. I feel sure she has problems which we will have difficulty solving.” The principal evaluated Mrs. Anderson in many areas as “adequate” and as “good” in a few. However, he rated her total support of the school program, work with other teachers and cooperation with principal and supervisors as “less than adequate.” On this evaluation the principal recommended that Mrs. Anderson be transferred. The Title I supervisor testified that Mrs. Anderson’s personal problems, particularly with her daughter, kept her upset and affected her attitude in the classroom. This witness detected a deterioration in Mrs. Anderson’s teaching ability during the school year.

Superintendent Cox testified that he discussed Mrs. Anderson’s situation at several staff meetings before making the decision to file charges. In his opinion Mrs. Anderson’s failure to use her aide properly was a sign of ineffectiveness. In addition he concluded that Mrs. Anderson failed to make allowances for individual differences in pupils, a requirement “at the very heart” of the Title I program. The charge of conduct unbecoming a teacher was based on the August 16th conversation with Fouse and Baskerville and on Mrs. Anderson’s subsequent conduct. The superintendent concluded that Mrs. Anderson’s failure to accept the black aide and her attitude toward her principal indicated that her statements of August 16th were an expression of her true feelings about Negroes rather than an outburst resulting from emotional stress. The witness felt that Mrs. Anderson’s attitude destroyed her “whole position” in the 67% black school system.

Two white Douglass teachers testified that they had heard no complaints from parents or students about Mrs. Anderson. These witnesses had not heard of Mrs. Anderson’s anti-black remarks to Mr. Fouse and had never heard her make racial slurs. Four black parents testified that they had heard no complaints about Mrs. Anderson. The only witness who testified that the remarks of August 16th were known in the Douglass community was the father of the black aide who was assigned to Mrs. Anderson and eventually terminated.

Mrs. Anderson testified that she was very upset about the incident involving her daughter and went to the principal to explain why she wasn’t mixing with the other teachers and participating fully in the usual school activities. She denied stating that she hated all black people and said she told Fouse and Baskerville that she would be all right, that she just needed to be left alone for a while.¹ Mrs. Anderson testified that she had received no complaints about her teaching or her attitudes. She said the aide’s work was unsatisfactory and that she got along well with other teachers. She felt there had been no lessening of her effectiveness as a teacher, though she agreed on cross-examination that a white teacher in an all black school who said, “I hate black people” would not be an effective teacher “if they mean it.”

Following the hearing which took place over a period of three days, the board of education voted 4-2 for dismissal of Mrs. Anderson, specifically finding both charges to be true.

II.

The role of federal courts in actions by teachers and other public employees against their state and local employers is a limited one. The sole function of the federal courts in such litigation is to provide remedial action where constitutional violations by public employers are established. Disputes between public employees and their state and local employers which do not involve the infringement of rights guaranteed by the United States Constitution are properly litigated in state and local courts. In a series of recent cases the Supreme Court has established the procedure to be followed by federal courts when a state or local public employee claims that he has been penalized by his employer for exercising First Amendment rights. ■

The freedom of speech guarantee of the First Amendment applies to public employees. Nevertheless, as the Supreme Court pointed out in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), “the State' has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Thus, courts confronted with cases where a public employee claims violation of his right to free expression must balance the interest of the plaintiff against that of the employer “in promoting the efficiency of the public services it performs through its employees.” Id. The Pickering Court concluded that the school board in that case had no significantly greater interest in limiting the plaintiff’s public comments than it would have in limiting comments of a member of the general public.

In reaching its conclusion in Pickering the Court stated that no evidence was introduced with respect to the effect of the plaintiff’s public comments on the community as a whole or on the administration of the school system by which he was employed. 391 U.S. at 567, 88 S.Ct. at 1734. The Court pointed out that the plaintiff in Pickering did not have close working relationships with the targets of his public criticism and there was no problem of maintaining discipline by immediate supervisors or harmony among co-workers. It was not shown, and could not be presumed, that criticism of his ultimate employer, the school board, interfered either with the plaintiff’s classroom performance or the operation of the school generally. Id. at 569— 70, 88 S.Ct. at 1735-1736. The Court commented on another problem not present in Pickering — public statements by an employee which are so lacking in foundation as to raise questions about fitness to perform class room duties: “In such a ease, of course, the statements would merely be evidence of the teacher’s general competence, or lack thereof, and not an independent basis for dismissal.” Id. at 573 n. 5, 88 S.Ct. at 1737 n. 5. In pointing to conditions not present in the case before it (which was decided for the public employee) the Pickering Court gave clues to the sorts of conditions which could lead to a finding that a school board’s interest does outweigh that of an employee. Conduct which adversely affects close working relationships, or makes the maintenance of discipline by an immediate supervisor or harmony among co-workers more difficult may lead to such a finding.

In Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), the Supreme Court held that private expressions of one’s views are entitled to the same First Amendment protection as those made in public. However, since the free speech rights of public employees “are not absolute,” Id. at 414, 99 S.Ct. at 696, it was concluded that the same balancing is required for private expressions. Referring to personal confrontations between a public employee and her immediate supervisor, the Givhan Court stated that “the employing agency’s institutional efficiency may be threatened not only by the content of the employee’s message but also by the manner, time and place in which it is delivered.” Id. at 415 n. 4, 99 S.Ct. at 696 n. 4.

A third recent Supreme Court decision should be discussed. In Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the Court held that even where protected conduct plays a “substantial part” in a decision not to renew a teacher’s contract, the decision does not “necessarily amount to a constitutional violation justifying remedial action.” Id. at 285, 97 S.Ct. at 575. The employer should be given the opportunity to show by a preponderance of the evidence that the same decision would have been reached for other reasons even if the protected conduct had not occurred. Id. at 287, 97 S.Ct. at 576. This court applied the Pickering balancing and the Mt. Healthy “test of causation” in Columbus Education Ass’n v. Columbus City School District, 623 F.2d 1155 (6th Cir. 1980), and concluded that the school board had failed to offer any evidence to overcome a prima facie showing by the plaintiff that he had been reprimanded for engaging in constitutionally protected activity.

Other courts have applied the teachings of the three Supreme Court decisions in a variety of factual settings. However, since the facts are determinative of the outcome in each case, no purpose would be served by discussing them. Reading Pickering, Mt. Healthy and Givhan together leads to the conclusion that a two-step analysis may be required when a public employee alleges retaliation for the exercise of her constitutional right to freedom of speech. If the action of the employer is found to have had the effect of limiting the speech of an employee, a balance must be struck between the interest of the employee as an individual and the public interest served by the employer. If it is found that the interest of the state, as employer, in limiting the employee’s freedom of expression is significantly greater than any interest it might have in similarly limiting expression by a member of the general public, the public employer’s action against its employee does not amount to a constitutional violation requiring remedial action. This finding ends the court’s inquiry. However, if the interest of the public employer does not satisfy the Pickering test, a prima facie case for remedial action is established. The next step is to determine whether the employer has shown that the same decision would have been made on independent grounds unrelated to the employee’s protected conduct. Unless this showing is made, the employee is entitled to prevail. Mt. Healthy, supra.

III.

The district court did not state specifically that it had conducted the required balancing in the present case. In other circumstances the proper procedure might be to remand for such action by the trial court. However, the district court’s recitation of the “basic facts” in its judgment order and its statement that “the remarks and accompanying conduct of plaintiff are not entitled to first amendment protection under the circumstances of this case” (emphasis added), at least imply that a balancing has taken place. More important, however, is the fact that counsel for Mrs. Anderson, both in brief and oral argument, stated that all the evidence is in the record before us and requested this court to conduct the required balancing on the basis of the record. It is for this reason that we have set forth such a full statement of facts.

It appears to the court that many of the factors which were missing in Pickering and Givhan are present in this case. The remarks of Mrs. Anderson were made to the principal of her school, her immediate supervisor with whom a close working relationship existed. The nature of the remarks created tension between teacher and principal and made a normal relationship difficult in a situation where cooperation is necessary.² Further, Mrs. Anderson continued to evidence hostility or resentment toward Mr. Fouse during the school year as evidenced by her failure to return greetings and her efforts to avoid conversation. Unlike Pickering, there was evidence that Mrs. Anderson’s remarks and subsequent conduct did have a detrimental effect in the Douglass school and the community it served. In addition, there was evidence that Mrs. Anderson’s effectiveness as a teacher was adversely affected by her attitude. Her evaluations were consistently in the fair to poor range and her supervisor testified that her performance as a teacher deteriorated during the year. This was ascribed to her personal problems and attitude. This witness stated that children in the remedial Title I program particularly are affected by a negative attitude and need love, attention and individual care. The inability of Mrs. Anderson to work with the aide assigned to her — a fact which reduced her efficiency — could inferentially be traced to her animosity toward all blacks.

Also, unlike Pickering, this case is one where the nature of the employee’s remarks cast serious doubt on her judgment and general competence as a teacher. The circumstances of the Douglass school are an important factor in balancing the competing interests. Mrs. Anderson’s remarks were made to two black colleagues on the faculty of a school whose entire student body was black. The likely effect on her hearers and the community served by the school was obvious.³ Conceding her right to make such statements, the court finds that the interest of the school board in maintaining an efficient and regularly functioning school system and in employing effective teachers outweighed Mrs. Anderson’s interest in making the remarks and concludes that her dismissal was not an unconstitutional act. The circumstances of this case gave the school board an interest in limiting Mrs. Anderson’s freedom of expression which it could not have claimed with respect to the general public. Pickering, 391 U.S. at 573, 88 S.Ct. at 1737.

Having determined that the interest of the school board outweighed that of Mrs. Anderson, we do not reach the Mt. Healthy question of whether the same decision to terminate the plaintiff would have been reached for other reasons in the absence of her racial remarks.

IV.

The due process arguments of the plaintiff are not entirely clear. If it is contended that Mrs. Anderson was not given adequate notice of the charges, the record does not support her. The superintendent sent Mrs. Anderson a copy of the charges along with a resolution of the school board finding that the charges warranted dismissal if found to be true, and advice of her legal rights and recourse under Tennessee law. The charges were as follows:

The specific offenses with which I charge Ms. Anderson are as follows:

1. Ms. Anderson is guilty of conduct unbecoming a teacher as is evidenced by racial remarks made to the administrative staff of Douglass School which subsequently have spread into the community.

2. Ms. Anderson is guilty of inefficiency as is evidenced by a decline in her teaching performance ■ during the 1978-79 school year.

The charge of “conduct unbecoming a teacher,” amplified as it was in the notice, is not vague or indefinite. The charge was taken directly from a statute which lists the causes for which a teacher may be dismissed. Tenn. Code Ann. § 49-1412. “Conduct unbecoming a member of the teaching profession” is among the causes defined in Tenn. Code Ann. § 49-1401(H).⁴ A similar statutory definition of a cause for which a military officer may be punished, “conduct unbecoming an officer and a gentleman,” was sustained in the face of a charge of vagueness in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). See also Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), where the Court upheld a statute which authorizes the removal of civil service employees “for such cause as will promote the efficiency of the service.” Certainly the charge of “inefficiency” was not vague. Mrs. Anderson knew of her unfavorable evaluations.

This court finds that the plaintiff had adequate notice of the charges. She was given a full hearing at which she was represented by counsel and has pointed to no procedural irregularities. Mrs. Anderson’s contention that the action of the board of education in dismissing her rather than transferring her to another school was “overboard” is without merit. The statute under which she was dismissed authorizes either suspension or dismissal of a teacher whose conduct or performance brings her within certain defined causes. The statute leaves the choice of the level of discipline to the board. See Tenn. Code Ann. § 49-1416(8). There is no attack on the constitutionality of Tenn. Code Ann. § 49-1412 either in the pleadings or the briefs of the plaintiff, and no proof of an abuse of discretion was offered.

The judgment of the district court is affirmed.

1 . Counsel for Mrs. Anderson conceded that the version related by the principal and accepted by the school board must be treated as true for the purposes of this appeal.

2 . Douglass was a small school. It had a total enrollment of 240 pupils and a faculty of 12 teachers. Both the principal and assistant principal also served as classroom teachers.

3 . There was evidence of the adverse reaction to Mrs. Anderson’s remarks among workers in the school cafeteria, all of whom lived in the Douglass community.

4 . One of the definitions of “conduct unbecoming a member of the teaching profession” is “disregard of the code of ethics of the Tennessee education association . . . . ” Tenn. Code Ann. § 49-1401(11)(d). The preamble of the Code of Ethics of the Tennessee Education Association affirms that educators believe “in the worth and dignity of each human being...."