Johnsen v. Independent School District No. 3

891 F.2d 1485
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 19, 1989
DocketNo. 86-2759
StatusPublished
Cited by6 cases

This text of 891 F.2d 1485 (Johnsen v. Independent School District No. 3) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnsen v. Independent School District No. 3, 891 F.2d 1485 (10th Cir. 1989).

Opinion

EBEL, Circuit Judge.

Plaintiff brought this action under 42 U.S.C. § 1983, alleging that her First Amendment rights were violated when her contract as a school nurse was not renewed after she spoke out against the school district's medication policy. After the jury awarded plaintiff $10,000 in damages, the district court granted a judgment notwithstanding the verdict in favor of the defendants because plaintiff’s speech was not protected under the balancing test of Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Plaintiff appeals the district court’s decision granting the judgment notwithstanding the verdict. We affirm.

FACTS

Plaintiff Ellen Johnsen was hired as a school nurse by Broken Arrow Public Schools for the 1982-83 school year.1 Plaintiff was the sole nurse assigned to two different schools between which she split her work time.

As the school year began, plaintiff became concerned about the school system’s medication policy, which allowed nurses, with only parental permission, to administer prescription and nonprescription drugs [1488]*1488to students. Plaintiff believed that the Oklahoma Nursing Practice Act, Okla.Stat. Ann. tit. 59, § 567.1-567.16 (1989), did not allow a nurse to administer any medicine without a doctor’s authorization.2 Plaintiff expressed her concern to Dr. Don Hall, the school administrator who supervised the health service program within the school system.

Plaintiff was selected to serve as a member of a committee formed by the nurses to review the medication policy and draft a new policy to present to the administration. The nurses submitted the new policy to the administration. In December 1982, Dr. Hall announced that the policy submitted by the nurses had not been adopted and that the nurses should continue to administer nonprescription drugs as permitted by the existing policy or find other employment.

The School Board, however, did not ignore the nurses’ concerns and preformed its own independent investigation of the medication policy. The Board hired legal counsel which determined that it was not unlawful for the school nurses to administer nonprescription drugs with parental permission. The Board also discussed the issue with the state department of education.

While the nurse committee was studying the issue and prior to using the school district’s internal complaint procedure, plaintiff hired legal counsel and began to contact outside government agencies, including the Governor’s office, the Oklahoma State Board of Education, the Attorney General’s office, the Oklahoma Board of Nurse Registration and Nursing Education, and the School Nurses’ Association of Oklahoma. Plaintiff distributed the information she received from the outside agencies to the other school nurses through inter-school mail. She also called other school nurses during school hours to discuss the issue.

Plaintiff frequently voiced her concerns about the medication policy at the monthly meetings of the school district’s nurses. Some of the nurses testified that plaintiff dominated those meetings, stifling others from speaking out. The meetings became unproductive because of the discord surrounding the medication policy.

The information the other school nurses received from plaintiff and the controversy surrounding the medication policy caused many of the nurses to fear that they might lose both their jobs and their nursing licenses. Plaintiff threatened another nurse that she would report the nurse to the state board of nursing for illegally administering drugs.

Plaintiff sent the information she gathered to Dr. C.G. Oliver, Jr., the Superintendent of the Broken Arrow Public Schools. Dr. Oliver requested that plaintiff use the formal complaint mechanism designed by the school system to allow employees to voice their grievances. Dr. Oliver also admonished her for seeking legal counsel and contacting outside agencies prior to using internal procedures. The complaint procedure was set out in detail in the school district’s policies. A copy of the district’s policies including the complaint procedure had been given to plaintiff when she was employed. In addition, a principal in one of the schools where plaintiff worked went over the procedure with her. Plaintiff eventually used the school complaint procedure after being expressly instructed to do so by her principal and Dr. Oliver.

[1489]*1489On March 21, 1983, plaintiff spoke at the school board hearing discussing proposed changes to the medication policy and told the school board at that public meeting that the nurses were “indiscriminately” administering drugs to the students. Plaintiff had previously used the term “indiscriminate” in written communications and in discussions with parties outside the school system. Plaintiffs allegation of indiscriminate administration of drugs was quoted in the newspapers and several nurses were questioned by the public as to their practices. Evidence at trial demonstrated that this accusation was false, and that the nurses were cautious in administering the drugs and would exercise their discretion not to administer a drug to a child if it would endanger the child’s health.

After the school board hearing, the Board adopted a revised medication policy which addressed the majority of plaintiffs concerns. The policy precluded the administration of prescription drugs without a medical order, but it did continue to permit the administration of non-prescription drugs with only parental consent.

On April 4, 1983, two weeks after the meeting on the medication policy, the Board met again and voted not to renew plaintiffs contract. Plaintiff asked for, and received, a hearing review of the Board’s decision not to renew her contract. The hearing took place on June 2 through June 3, 1983. At the hearing, plaintiff had counsel and the right to offer evidence. The Board upheld its original decision, believing that plaintiff had created a divisive atmosphere among the health services staff. However, the quality of plaintiff’s work was not questioned.

Plaintiff then filed this § 1983 suit, alleging that her contract was not renewed because she had spoken out against the medication policy of the school district. At the end of the trial, the district court improperly submitted the determination of whether plaintiff’s speech was constitutionally protected to the jury,3 which returned a verdict for the plaintiff and awarded her $10,000. The district court granted a judgment notwithstanding the verdict in favor of defendants, holding that plaintiff’s speech, as a matter of law, was not constitutionally protected under the Pickering balancing test because plaintiff’s speech disrupted the operation of the school system, undermined the administration’s authority, and impaired the working relationships of the health services. Johnsen v. Independent School Dist., No. 85-C-54-B, at 12-13 (N.D.Okla.) (filed Oct. 22, 1986).

DISCUSSION

I. Standard of Review

We review a decision to grant a judgment notwithstanding the verdict de novo.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brammer-Hoelter v. Twin Peaks Charter Academy
602 F.3d 1175 (Tenth Circuit, 2010)
Lee v. Arapahoe County
197 F.3d 1291 (Tenth Circuit, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
891 F.2d 1485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnsen-v-independent-school-district-no-3-ca10-1989.