Joyce Wells v. Hico Independent School District, Etc., Veriena Braune v. Hico Independent School District, Etc.

Appellant’s that he obvious- by withholding attorney notes motion for ness fees is existed, DENIED. incorporating knew and then ly record Chapman’s into several

them later, Chapman’s dis- just prior

months conduct, agree that this

missal. We do not more, necessarily implies that

without “gross acted with the

NASA willfulness

negligence,” prerequisite that is a recov- Privacy

ery damages Act. Army, Department v. Edison Joyce WELLS, Plaintiff-Appellee, internal at 846. rules al- NASA’s memoranda to lowed for handwritten HICO INDEPENDENT SCHOOL incorporated records personnel into even DISTRICT, al., Etc., et this court decided issue in the Defendants-Appellants. Indeed, appeal of this case. the first first case, heard this it time district court did BRAUNE, Plaintiff-Appellee, Veriena even think memoranda handwritten meaning “records” within the Act. HICO INDEPENDENT SCHOOL Etc., DISTRICT, al., et memoranda While handwritten could Defendants-Appellants. have been from the “timely” excused incorporation requirement of the Act and No. 82-1468. rules, previous NASA’s own before our Appeals, United States Court opinion “timely” legal precise had no mean Fifth Circuit. ing personnel in this circuit. NASA rea sonably thought long could that as July placed the memoranda were the file be they became

fore the basis adverse

action, employee long and as as the had an

opportunity prior to review them to chal action,

lenging agency’s incorpora “timely.” Thompson tion v. De Cf.

partment Transportation, 547 F.Supp. (S.D.Fla.1982) (“contemporaneously or within a reasonable time after an disciplinary proposed”).

adverse is action

Chapman has adduced further evidence no supervisor’s give

that his failure supervisor personnel

memoranda to the im

mediately after writing them inexcusa oversight, supervisor

ble or that the

any unlawful ulterior intent or motive in

keeping private. his memoranda We con finding

clude district court’s supervisor’s simply fell short actions

being intentional within or willful

meaning clearly of the Act errone

ous. court,

The decision of the district there-

fore, is AFFIRMED.

Ñaman, Howell, Lee, Beverly Smith & Willis, Waco, Tex., Jerry Campbell, P. appellants. defendants and Watson, Waco, Tex., Murray for defend- appellants ants and and amicus curiae Tex. Boards, Ass’n of School et al. Freís, Houston, Kelly Timothy Cooper, T. Tex., for amicus curiae Tex. Ass’n of et al. Boards Hall, Associates, “Right E. Read” Robert concerned the School’s Hall & Bob Jones, Robert Houston, Tex., Glasgow program, federally & J. funded effort to com- Tex., Penny illiteracy. Julia bat Hico School Glasgow, Stephenville, Sasso, D.C., Washington, participate program Clark, L. Board elected to Gary and, Superin- Braune. on the recommendation for Wells

tendent of Schools defendant Harold Walk- er, program chose Mrs. Braune as director. grade Mrs. Braune continued to teach first full assuming responsi- time after the new RUBIN, GARWOOD, and JOL- Before bility. program Under leadership, her LY, Judges. Circuit received publicity, favorable and Hico was selected as a demonstration site GARWOOD, Judge: Circuit (TEA). Texas Agency Education In addi- 1983 case involves two ele- This section tion, Mrs. personally Braune com- alleged mentary teachers who school mended Elementary Principal, School employment of their the nonrenewal Bonner, defendant Frank for her work with Independent School District violated Hico Right to Read. rights constitutional under the First go All did program, well Judgment Amendments. and Fourteenth teachers, Although many however. includ- them based on an- was rendered for Wells, ing Mrs. who teaching third special interrogato- swers in their favor to initiated, grade program when the Defendants, ries. its seven shared Mrs. Braune’s commitment to and members, Superintendent, and Board its Read, Right enthusiasm for some did Principal elementary single of its group apparently not. This latter included school, appeal evidentiary several raise primarily upper the teachers procedural issues. We find that de- i.e., grades, through fourth sixth. In an properly preserve fendants have failed to spring evaluation conducted in the their claims of error on most issues. We these teachers criticized the results judgment sustain the district court’s on program. achieved in the plaintiffs’ First Amendment claims. How- ever, we reverse on the Fourteenth Amend- Mrs. increasingly Braune also came to claims, ment giv- believe that the administration was not in- and reverse remand on the ing program adequate In support. result, judgment terest claims. As a example, 1976 for she believed that teach- must damages be modified to delete for the actively participating program ers hearing. failure to hold a We also hold performance received unfair evaluations. judgment must be modified to She asked for permission and received punitive damages delete the award of add letters of teach- commendation to these against the individual defendants. Moreover, ers’ files. there was evidence

that she and other us- teachers who were I. ing program experienced difficulty in receiving adequate supplies equipment FACTS for their classrooms. Mrs. Braune believed Plaintiffs-appellees Veriena Braune and problems resignation these led to the Joyce taught elementary Wells had school key of one of the program teachers in the the Hico District for in 1976 and to the transfer of Mrs. Wells to years years, respectively, thirteen and five migrant program at the end when School Board failed to renew August 1977, In resigned as Mrs. Braune their contracts at the end of the 1977-1978 Right program, director of the to Read school term. indicating that she could not “continue in The at respecting capacity support evidence trial events without more from preceding plaintiffs’ largely faculty.” nonrenewal administration and January ing “pressures Mrs. Braune was con- and tensions” that were Board member tacted a School about “causing among factions faculty, ad- Right her difficulties with Read. A community.” ministration and Both the meeting among Mrs. Braune followed and grievance subject and the of contract re- Board members at her home. most School following year newals for the school a letter to the Board also wrote re- She scheduled for meeting the Board the fol- appear questing formally before them on lowing Monday, April 17. The teachers granted request her this issue. The signed who appeared at the presentation regular at its and she made meeting expressed concerns about sev- meeting January 1978. Three other issues, eral including the confrontation be- Wells, accompanied teachers her: Mrs. who tween Mr. Principal Braune and Bonner migrant program had transferred to the and several incidents between Mrs. Wells term; beginning of the school Mrs. and other teachers. Although discussing Rone, taught grade; and who second Mrs. contract April renewal at the 17 meeting, Harmon, taught kindergarten. At the who the Board deferred determination of this meeting, spoke prob- Mrs. Braune about April issue until 20. At that time Board including program, per- lems with the members decided to rehire all teachers ex- lack of administration and teacher ceived cept Braune, Wells, Mrs. Mrs. and a coach. support. She read aloud an evaluation of Superintendent Schools, Mr. Walk- (two years Mrs. Wells from 1975-1976 ear- er, had not recommended renewal of Mrs. lier) support her contention that teachers contract, Braune’s but advised the Board program active in the received discrimina- that he would make the effort to work with torily ratings. low The next teacher evalu- her if the Board should renew it. Walker ations of Mrs. Wells and Mrs. Braune were did recommend the nonrenewal of Mrs. completed early April and reflected low Wells. Neither Mrs. Wells nor Mrs. ratings categories in several for each. Pri- Braune were afforded a hearing by the time, or to this Mrs. Braune had received regarding Board either their evaluations or Wells, consistently high ratings.1 Mrs. the nonrenewal of their contracts. exception term, How- with the of the 1975-1976 ever, they were allowed to grievance file a generally high ratings. had also received concerning matter, they and subse- Both teachers were distressed their quently received a hearing before the evaluations. Mrs. Braune’s husband was Board and pursued then complaints their quite upset princi- also and confronted her administratively up to the Texas Commis- pal, Bonner, defendant Frank while Bonner sioner They of Education.2 prevail driving Descriptions school. of this of the proceedings. administrative trial, confrontation appears varied at but it at least Principal certain that Bonner was On June completing badly shaken as a result. He offered to their appeals, administrative the plaintiffs up tear the evaluations of Mrs. Braune and brought individual lawsuits under section Mrs. Wells. Mrs. Braune declined. Both 1983, alleging violations of their constitu- requested hearing teachers before the rights speech tional of procedural free Board on their evaluations. in connection with their nonre- April

On after the incident newal as involving They brought teachers. their Braune, Mr. group suits, of teachers at Hico which were trial, consolidated before grievance filed a with the School concern- against the Hico School Dis- 1. It was peers conceded at trial disposition both her liberty In view of our of the supervisors and her property considered Mrs. Braune to interest claims and the failure of de- exemplary be an teacher —at least before the adequately fendants to raise issue below or 1976, Superintendent 1977-1978 term. In appeal, Walk- question we do not reach the recognized performance by nominating er her post-nonrenewal hearings whether these afford- "Outstanding her for an award as an plaintiffs process they Teacher of ed all the have been Public Education.” constitutionally due. Trustees, Superin- II.

trict, Hico its Board Walker, Elementary School tendent response special Principal Bonner. FIRST AMENDMENT jury found that interrogatories, Appellants attack the verdict and their First Amend-

plaintiffs’ exercise judgment upholding the First Plaintiffs’ rights was substantial motivat- ment grounds.4 Amendment claim on three in the decision to renew their ing factor defendants would contracts Sufficiency of the Evidence this decision in the absence have made activities. protected also of these grounds these Two of relate had a inter- plaintiffs found sufficiency Appellants of the evidence. policies and evaluation est first claim that there is insufficient evi and that were de- District the School plaintiffs’ protected speech dence that interests the non- prived of motivating in their substantial or factor April processing renewal or nonrenewal and that the evidence conclu damages grievance.3 It found for teacher sively shows that the School District would including punitive damages plaintiff, each have made the same decision absent defendants. De- against all the individual protected speech. Healthy City Mount wages. The stipulated as to lost fendants Doyle, Education U.S. judgment in the total then entered court 274, 285-86, 568, 575-76, 97 S.Ct. $112,858 Braune, plus amount of for Mrs. (1977). Next, appellants L.Ed.2d 471 as $9,000 punitive damages against the indi- conclusively sert the evidence establishes defendants, $89,670 a total vidual plaintiffs’ speech pertained to no mat Wells, $9,000 plus punitive dam- for Mrs. concern, public ters of but to matters ages against the individual defendants. interest, exclusively personal and was permanently enjoined The court also hence, Myers, Connick refusing District from to reinstate (1983), as teachers and ordered other protected purposes personnel ap- actions related to reinstatement. This peal followed. decisions.5 supplemental 3. The court had instructed the jury argument appellants’ the brief. We however, not, nonrenewal of the processing teachers’ contracts the address a second issue also do grievance brought by of the the other by appellants supplemental brief: raised comport procedural teachers did not they qualified immunity should receive be- disposition, process. view of our we do not changed protection has the af- cause Connick propriety determine the of these instructions. public employees under the First Amend- forded qualified immunity was ment. The defense not 4. The absence or presence of a any previously form below or raised in not affect a does First Amendment claim. Court, Moreover, properly is not before us. though discharged "Even he could have been far as here relevant Connick did not because so whatever, no reason right and had no constitutional sphere protected by the of conduct the broaden hearing ato ... he nonetheless estab- Amendment, any plaintiffs’ activity First lish a claim to reinstatement if the decision not protected after here which was so Connick also by to rehire him was made reason of his exer- protected been would have before that decision. constitutionally protected cise of First Amend- reason, change Connick Healthy City For this ment freedoms.” Mount Board of 274, 283, Doyle, considering Education v. 429 U.S. assessment court would make in (1977). immunity 50 L.Ed.2d 471 qualified defense this case: wheth- reasonably er defendants knew or should Appellants raised this issue for the first time have known that their conduct was unconstitu- Supplemental in Motion for Leave to File Fitzgerald, tional. Harlow v. days argument Brief filed a few before oral (1982). express S.Ct. We Myers in this case. Connick v. was decided after regarding opinion appel- no whether or not the decision, the district court’s but some five defense, immunity qualified properly lants’ if prior appellants' months to submission of mo- court, raised in the district would had- potential tion. Because of Connick’s relation- merit. claim, ship plaintiffs' First Amendment give aspect limited consideration to this However, any time appellants did not at Mrs. Wells and Mrs. Braune’s verdict, they directed nor did speech, particularly move for a in connection with their deficiency in on the any appearance Board, assert evidence before the School con any by claim motion or First Amendment Right cerned the program, to Read a feder prior jury’s to the com- request for relief ally program being funded administered They did of its deliberations.6 mencement through the TEA. The record reflects to the submission of of the object that, prior presenta even to Mrs. Braune’s pertaining to the First interrogatories tion, program subject was a of debate grounds they on the Amendment in the community: parents some thought it evidence, or on supported effective, was some did not. At least one ground, made no relevant other member, who had a student in Mrs. charge au- portions of the class, Braune’s expressed his reserva thorizing jury to find for the tions to Superintendent. Another Appel- on their First Amendment claims. Board member meeting initiated a at Mrs. judgment not- lants made no motion for Braune’s regarding home this issue. On withstanding the verdict or for a new trial. suggestion, Mrs. Braune’s meeting expanded to include other members. repeatedly At This Court has held that the January public meeting, sufficiency supporting Mrs. jury of the evidence presented Braune her understanding of findings normally ap- not reviewable on commitment the School District to the peal party seeking unless the review has program, her Right concerns that to Read made a motion for a directed verdict in the receiving adequate support from district court. Little v. Bankers Life Administration, the School percep and her (5th Casualty Company, 426 F.2d concept program tion that the Cir.1970); Quinn of the v. Southwest Wood —indi vidualized Products, key instruction —was the im Inc., proving Following education. Cir.1979). presen This rule serves the salutary Braune, tation to the Board purpose other preventing “litigants Mrs. gam- from individuals also expressed opinions bling jury favor, will rule in their program. about the Because of this wide reserving option while challenging interest, spread public the Board invited sufficiency appeal evidence on representatives present from TEA to addi against should the rule them.” Hall Right tional information on the to Read Corporation, Crown Zellerbach program. (5th Cir.1983). “Similarly, litigant who has not moved for a direct- plainly There is at least some evidence ed verdict in the trial court must have been portion that a material of Mrs. Braune’s of the view that the evidence made a case speech pertained public to matters of con- jury; he permitted should not be on cern, and did not relate to matters of appeal impute to error to the trial judge for interest, exclusively personal within the sharing Little, that view.” 426 F.2d at respect- rule of Connick. The same is true ing Mrs. Wells. There is likewise at least appellants Because wholly protected failed to in evidence that this speech some preserve manner motivating issue of sufficien- was a factor in their cy of the support evidence to plaintiffs’ nonrenewal. Nor does the evidence conclu- claims, First Amendment sively we must affirm show that nonrenewal would have the jury verdict in respect this if occurred protected speech. there is absent such any evidence support Hall, it. example, 715 F.2d For Mrs. Braune and Mrs. Wells at 986. Plaintiffs satisfy they this showed poor minimal received evaluations threshold. following about two months January 6. Nor summary judgment did their motion for notes 9 & infra. pertain to the First Amendment claims. See miscarriage to have resulted in a meeting. In each of the eval- negative justice the circumstances of this uations, made under Principal Bonner Accordingly, City at this case. Schneider v. participation about their comments Cir.1980), Atlanta, Further, testimony F.2d 915 does meeting. there require here. and dis- Walker was disturbed reversal Unrest Superintendent First Ap- resulting the Board. cord from the exercise of appearance their testimony rights clearly appear Amendment do not items point several pellants dispute not renew the have a central factual at trial. the Board did been indicate legitimate Appellants’ theory reasons factual of the case was contracts for plaintiffs’ exercise of their that Mrs. not renewed because Wells was not connected with relations, jury, continuing problems how- of rights. The with staff Amendment First and, ever, essentially the re- which claimed were unre- decided otherwise to, use, largely antedated, plaintiffs’ there is lated we must stricted standard appearance January before the Board on support its verdict. evidence to Braune, respect 1978. With to Mrs. limited standard distinctly Applying appellants’ theory basically factual appellants where have applicable review that her nonrenewal resulted from Mr. pre- any way properly wholly failed to Principal Braune’s confrontation with Bon- sufficiency of challenges to the serve their ner. That confrontation does not seem to plaintiffs’ First evidence to sustain the properly something characterized as claims, their as- Amendment we overrule “proximately resulting” from Mrs. respect. sertions Braune’s exercise of her First Amendment Error Instructional rights, and there is no clear indication that Appellants’ final assertion of error position Mrs. Braune took the at trial that respect Amendment First Rather, it Mrs. Braune’s claim at was. portion claims relates to a of the district trial seems to have been that this was concerning charge “protected” court’s the reason for her nonrenewal. If fact unrest, dissension, or discord nature made, objection had been the district court “proximately resulting” from ex should, would, surely and doubtless have rights. ercise of their First Amendment plain clarified the instruction so as to make however, Appellants, objection made no general language that its did not embrace portion to this whatever related the unfortunate incident between Mr. charge. appellants Because However, Principal Braune and Bonner. below, object to the instruction “we cannot theoretically possible arising harm appeal, consider it on Fed.R.Civ.P. un imprecision generali- this kind of from the error so less is fundamental as to result very ty an instruction is the kind of miscarriage justice.” in a Whiting v. requires Rule 51 matter which counsel University, Jackson State call to the district court’s attention. The (5th Cir.1980). Appellants do not meet good is likewise a indi- absence of stringent standard. cation that trial counsel did not believe the harmful, Though actually we are inclined to believe that instruction was no mat- complained theoretically in overly of instruction ter how error it confusing, clearly appear broad and As it does not do not consider been.7 challenged that these claimed deficiencies are so fundamental deficiencies appeal, prejudice presume We observe that record we 7. sometimes the from on are entitled to part charge they special may appear support appel- an erroneous of the furnish no Here, arguments. jury they from the lants’ claim and are consistent with view are our Having clearly in included the record before us. failed record does not demonstrate instruction, object appellants’ proximately resulting to the it was that unrest and discord protected speech significant burden to demonstrate to us that claimed from the were a dispute Whiting a factual in the deficiencies instruction resulted in mis- case. v. Jack- Cf. (5th carriage justice. they bring University, Since did not son State 616 F.2d Cir.1980). jury arguments part forward the as a of the miscarriage property in a interest. We resulted do not reach the instruction have sufficiency respecting review of the evidence decline to otherwise justice, liberty interest, but reverse and remand as respect be- complaints appellants’ grounds. to it on other comply with total failure to cause of their 51. Rule A. PROPERTY INTEREST response interrogatories, III. jury found that Mrs. Braune and Mrs.

DUE PROCESS Wells property had a interest “arising out express of an hearing implied or contract to a with the Plaintiffs were entitled Hico Independent providing School District their contracts on the decision not to renew the District would follow its rules con inter protected property if they had a cerning grievances.”8 evaluations or Ap employment in or if the non- est continued pellants’ primary contention is that there liberty interest. deprived them of a renewal was insufficient support evidence to sub Roth, Regents mission of this jury.9 issue to the 569-70, 33 L.Ed.2d Burris Willis (1972); appellants Although did not move for a District, Inc., 713 F.2d case, directed verdict in they object did that, (5th Cir.1983). Appellants claim con below to the charging court’s jury on trary jury findings, Mrs. Braune property to the theory on the basis agree, at least Mrs. Wells had neither. We the evidence did not show such an part, process the due interest.10 and reverse on It is well-established that jury a Robb, grievance by any judgment.” 8. The also found that the Woodsv. plain- Cir.1948). at these two other teachers was directed procedures applied tiffs and that the evaluation depart We find no reason here to from this to them. approach. commonsense Appellants argue also that the district court objection 10. Their was: failing grant erred in their motion for sum- page “The next is on 15. Defend- mary judgment on both due issues object page descrip- ants on 15 to the Court’s ask us to reverse the decision below on this [sic], inquiry descrip- tion of an the Court’s Although basis. We decline to do so. the dis- property employment a her tion of interest in judge formally trict rule on the summa- clearly in that the evidence shows that both ry judgment motion until after the close of were non-tenured Plaintiffs teachers with no presentation charge evidence and before of the expectation employment contractual of future jury, summary judgment the motions for imposed upon and that Court has these made, renewed, as to each of the a Defendants interest in a argued before commencement of trial. procedure and evaluation when none is re- began, summary judgment Once trial mo- quired or exists law.” effectively Appellants tions became moot. objected The instruction to reads as follows: make no contention that relied on the express implied "In order to find an or ruling delay giving district court’s its formal contract, you preponder- must find from a motions, summary judgment on the and it is ance of the evidence that there was an im- persuasive doubtful such a contention would be Plaintiff(s) plied express or contract between event, at least indication in absent some and the HICO INDEPENDENT SCHOOL DIS- expressly the record that the court considered providing TRICT that the SCHOOL DISTRICT deny- during all evidence introduced the trial in comply published would with its own rules ing reflecting explicit the motions or an commu- respect grievances with evaluations. and/or nication between court and counsel that either you preponderance "If find a treating summary judgment the motion for evidence that rules evaluation and/or as a motion for directed Court verdict. As this (Plaintiffs grievance complaint Exhibits & has held: 34) BRAUNE, you covered VERIENA and if saving expense pur- "The of time and is the by preponderance find of the evidence that pose by summary judgment to be attained express implied there either an con- proper case. When in course the final tract between VERIENA BRAUNE and the trial is had on the merits it becomes the best SCHOOLDISTRICT that the DISTRICT would rights test of the of the movant. If he wins on respect griev- abide its own judgment. rules he trial has his If loses he evaluations, you may ances ought then con- fair trial it shows that he and/or not to 252 legal theory (Tex.Civ.App —Corpus 603 a S.W.2d 229 instructed on “should be . n.r.e.). is It undis trial Christi writ ref’d

only if adduced the evidence latter, puted operated an instruction.” that Hico justify such sufficient Co., F.2d Mrs. Braune each Ford Motor 621 that Mrs. Wells and Foster v. also, Barber v. worked under a Cir.1980). See one-year contract. (5th 717 (5th Texaco, Inc., Cir. F.2d 384 720 however, claim, policies Their is that Jannee, by 1983); Kicklighter v. Nails School, procedures adopted by spe (5th Cir.1980) Inc., (giv 740 cifically relating grievances and those loquiter instruction is error ipsa of res ing evaluations, gave expectation an them provide a “rational” if does not evidence employment.12 Supreme continued jury to determine that for the basis recognized Court has a state institu that doctrine are required under the elements may, through give tion policies, its rise to a reason, deter we must present). For this state implied right law contractual based there was sufficient evidence mine whether “mutually explicit understandings.” court property interest for the district of a Perry Sindermann, v. 593, 601, 408 U.S. to con properly allowed the to have 2694, 2699, (1972); 92 S.Ct. 33 L.Ed.2d 570 sider that issue. Wood, Bishop v. 341, 344-46, 426 U.S. 2074, 2077-76, (1976). interest ex S.Ct. property Whether a L.Ed.2d 684 also Mississippi See White v. State Oil by reference to ists must be determined Wood, Board, Bishop Gas state law. U.S. 2074, 2077, Cir.1981). Burris plaintiff Co.,

(1976); Logan v. Zimmerman Brush claimed district court that he 1148, 1155, right property poli had a because of school S.Ct. (1982) (“The procedures cies and prop L.Ed.2d 265 hallmark of a district that had erty adopted continuing ... is an individual entitlement contract law. law, grounded disagreed in state which cannot The district court and entered a ”). except removed ‘for cause.’ Under Tex directed verdict for the defendants. We law, determination, may adopt as a school district affirmed the district court’s that, continuing provisions concluding contract afforded under Texas law and the case, property section 13.101 of the Texas Education that circumstances of Code,11 may or it right implied. instead offer fixed term of this nature could not be contracts under section 23.28. Tex.Educ. reaching 713 F.2d at 1091. In this conclu § (Vernon 1972). Bowen sion, Ann. Code 23.28 court deci we relied on a Texas state Calallen indicating policy by sion that a tenure support elude that VERIENA BRAUNEhad achieved a interest submittal of was insufficient is, property employment: interest recovery, particularly in her that ground in view of right a contractual that HICO INDEPENDENT summary pending, unresolved motion for comply SCHOOL DISTRICT would with its judgment. independently we do not re- While Similarly, you by prepon- own rules. if find motion, the denial of that we believe it view derance of the evidence that the evaluation provided to the relevant context district court (Plaintiffs complaint rules and/or assessing opposing counsel in defendants’ 34) WELLS, Exhibits 22 & covered JOYCE objections property referenced you preponderance and if find charge. express evidence that there was either an implied contract between JOYCE WELLS and (Ver- seq. §§ 11. Tex.Educ.Code Ann. 13.101 et the SCHOOL DISTRICT that the DISTRICT 1972). non would abide respect its rules own evaluations, grievances, you then and/or Appellants plaintiffs may assert conclude that JOYCE WELLS had achieved a simply claim a due violation because in is, property employment: interest in her renewing their contracts the School District right a contractual that HICO INDEPENDENT procedural failed to its follow own rules. We comply SCHOOL DISTRICT would with its claim, however, asserting read own rules." policies expectation these created an of contin- appellants' adequate We find the employment amounting property right. ued ato raise the claim that evidence of a

253 Burris. See Burris v. adopted has nonten the district court in district that school Independent District, Willis School provision state law would be incon of 537 ure Hix v. Tuloso- 801, (S.D.Tex.1982). Burris provision. F.Supp. 804 with that In sistent District, 489 Independent School Midway Hix was “[t]he we nevertheless that held (Tex.Civ.App. Corpus controlling Christi 706 Texas 713 case.” F.2d at 1090. S.W.2d — contend, n.r.e.). 1973, Burris “without Appellees We by regard writ ref 'd are bound Bowen v. case, however, in alleged existing a later to any that confusion in state law,” Calallen contrary 603 absent a state law decision subsequent 229, (Tex.Civ.App. Corpus 234-35 or statute rendered enacted S.W.2d or — n.r.e.), Burris. v. 1980, Broussard Southern Pacific ref’d state Christi writ Transportation Co., of a 1387, considered merits similar court 665 1389- arguably Cir.1982) nar 90 by plaintiff (en banc).13 claim Hix. holding of rowed holding In practices that policies We find that Hix and Burris control. of Texas school districts which had not Bow- Burris adopted after years law, was decided three the continuing contract Tex. en, Burris § seq. 13.101 et panel plainly and the aware (Vernon Educ.Code Ann. Bowen, 1972), opinion governed of as it was cited in of and were by 23.28, section vice, purport 13. Bowen does not to narrow Hix. In- and United Shaugh- States rel. ex Accardi v. deed, Burris, Bowen, 260, involving 499, nessy, Hix a like 347 U.S. 74 S.Ct. 98 L.Ed. 681 (1954), adopted relied, which school district had not section on which prin- Service "enunciate 13.101, plaintiffs pleadings, ciples held that the which of federal administrative law rather than alleged one-year a binding contract and school board' upon of constitutional law the States.” policies plaintiffs similar those relied on Burnaman was decided before Horowitz case, "negate plaintiff Vitarelli, Service, ‘ten- respect relied in this on jure facto," “[pjlaintiff Accardi, ure’ de or de and that has portion as well as on of Justice alleged ‘property’ a Roth, not interest renewal Douglas’ Regents dissent in Board of her 603 564, 582, 2712, of contract.” S.W.2d at 234. 2701, 408 U.S. S.Ct. 92 33 (1972), stating L.Ed.2d 548 that "tenure is not did While Bowen determine there was no evi- the critical issue.” See violated, Burnaman at 936. Bur- policies question dence the purport employ- naman did not to hold that the property violation not would seem to create property employ- ee had a ment, interest continued interest which otherwise did not exist. Bowen’s ultimately and the decision there rested appears consideration of violation issue di- grounds. felt First Amendment Id. at 934-35. rected at what it to be the of rule Vitarelli v. Seaton, 535, 968, specifically recognized In Vitarelli the 359 U.S. Court 79 S.Ct. 3 L.Ed.2d (1959), ISD, employee Bay City 1012 and Burnaman v. had no character of tenure. 445 (S.D.Tex.1978): F.Supp. Accordingly, Id. 359 U.S. at at 972. federal due 79 S.Ct. predicated passage violation could be we do read the on no not referenced in Bowen that, law, agency's having more than a state failed to as fol- mean a matter state procedural respecting employ- presence procedural low its own rules of school board rules re- course, This, specting ment. 603 S.W.2d at 233. expression is an teacher contract renewal created sub- federal, state, right employ- law. property As the stantive to continue in Wood, pointed Bishop Court out 426 U.S. ment unless terminated for cause. 341, 345, say "general 96 S.Ct. 48 L.Ed.2d does also Bowen rule” is (1976), question policies "prior essen- that school board in effect tially employee making employment part whether state law the has a contract of ... form right employment However, the substantive to continued Id. contract.” at 233. this does cause, state, only distinguished terminable suggesting, and we read do not it as “merely conditioning policies employ- lawfully "express, from the state an that such could create compliance speci- implied” ee’s contrary removal on certain de tenure to section facto procedures." Moreover, fied Bowen’s refer- 23.28 of the Texas Education Code and the deci Hix, expression enced remarks are an overbroad as sion in nor do the cases cited Bowen federal law. principal Vitarelli was decided on the involve that. We also note policies principles federal administrative law enunciated relied on here were' Dulles, adopted in Service v. 77 S.Ct. well after their contracts were entered (1957), into, opinion days and the Vitarelli indeed a few before their evalua eschewed constitutional decision. Id. 359 tions and less than a month before nonre 539-40, at S.Ct. U.S. 972-73. newal. We also observe that Hix decided University prior Curators itz, Missouri v. execution Horow- of Mrs. Braune’s and Mrs. renewed; n. U.S. 956 n. Wells’ contracts which were Bow (1978), L.Ed.2d 124 the Court stated that en Ser- was decided after the nonrenewal. and Mrs. Mrs. Braune part est on implied contractual an not create could simply describes policy This written in Bur Wells. this Court reemployment, right (or third employee by an approval a which 1091)quoted with (713 F.2d at ris through var- complaints 710) part may present as party) in (489 at S.W.2d from Hix and of the administration ious levels follows: “ discipli- express a It does not Board itself. District of the School policy ‘The tenure will District process that the School nary effect, it in be says was plaintiff that em- addressing problems with its use in would be implied, or express, de facto means for em- rather allows a ployees, but predecessor 2781 Article contra to [the others) com- (or to voice their ployees Code], 23.28, Education Texas section policy This District. plaints to the School generated an void, have it would as discharge about either pro- says nothing renewal contract teacher automatic any employee. As Bowen would nonrenewal cedure, of which the effect pro- policy, concerning limited a similar was not said “[it] in a term that resulted complaints, solving procedures failure of for by the vides years three but ” at 235. satisfactory nothing 603 S.W.2d service.’ more.” to render teacher stating: in Burris We continued procedures or remaining two written law, 27, 1978, just that, adopted Texas March policies “It is clear adopt the did not evaluations days district which school a few 13.101, law their nonre- continuing contract a month before and less than [section may not ... cre- expressly purports Education Texas Neither Code] newal. for teachers plan tenure adopt its own nor to be for rights employees, ate 713 F.2d 23.28.” employed under section job continuity or enhancing purpose at 1091. specifically mentions Neither tenure. is entitled first of these teachers. The approv regard, Burris cited In this commences of Personnel” and “Evaluation Independent School al v. Roma Guerra Superin- stating, “The Board directs (S.D.Tex. District, 818 F.Supp. 444 program an effective to maintain tendent 1977) (Gee, Judge), which made Circuit that un- provides It evaluation.” of staff Moore v. holding. also similar See “[ejmployees shall be program (N.D.Tex.1974), der such a Knowles, F.Supp. 302 377 scheduled, peri- Cir.1975); and evaluated (5th observed Doscher aff'd, 512 F.2d 72 event that intervals” Consolidated odic “[in] v. Seminole Common per- employee’s F.Supp. reveals that No. 377 evaluation School District (N.D.Tex.1974); satisfactory,” In then the em- Brady Siler formance is not 1170-71 F.2d 385 placed probation on dependent School “shall be ployee Cir.1977).14 City (5th Ryan v. Aurora At the end of period of time.” specified Cf. (6th Education, perform- employee’s if “the probation, denied, Cir.1976), cert. employee should be improved, the ance has (1977) (“... S.Ct. probation removed.” and the reevaluated ‘expectancy’ no teacher has non-tenured improvement has been no ... But “if there whatever employment, continued recommend that the supervisor should institution, there where policies of the appro- terminated in a manner employee be system.”). statutory tenure exists a posi- employee’s priate to the terms Plaintiffs were not the District.” believe, tion with Further, plain, here it is However, nothing placed probation. policy could District’s the School limit the au- purports either to policy inter- implicate a and did not policy stated, long 'they did not violate school court "In Moore ... In Siler we [Tjhe jobs satisfactorily.’ holding ... performed a teacher who followed Hix taught years system protection for 16 Siler claims type in a school whose of tenure though there was even have de facto tenure testimony simply of Texas law.” not exist as a matter does policy of the School ... at 388. 553 F.2d 385 contracts so teachers’ Board was to continue discharge thority provisions the Board to em- make ... exclusive [their] dealing the Board’s nonre- ployee, speak question or to basis for with” the policy The second employed newal of a contract. is whether a teacher should be Employment” entitled “Termination of year following expiration of the teach states, Superintend- “The Board directs the er’s fixed contract term. McMillian v. warning notices shall be ent to ensure Hazlehurst, City any employee who violates Board given to Cir.1980) (referring by police to claim offi “state, specifical- warning to policy,” each police department regulations cer that es policy which has been violated.” ly, the by city tablished ordinance created an em given warning a Plaintiffs were not ployment property interest). However, specified policy. kind light In plaintiffs’ of the fact that con- warning policy purports in nothing tracts indisputably were year for one discharge any employee to a limit the and that the District adopted had not specific policy, or to violation Texas continuing law, contract which is the speak to the Board’s nonrenewal of a con- method school districts required are to uti- tract. provide lize in order to teachers tenure policies Texas school Similar districts other than as afforded the fixed terms consistently been construed to relate have contracts, of their it wholly unreasonable discharge, to nonrenewal. at most to entirely by implication to read into these Moore, 304, (policy F.Supp. 377 at 308 See policies, adopted less than a month before entitled “Termination of Contract and Pro nonrenewal, plaintiffs’ purportedly a bind- stating, cedure for Dismissal” “The Board ing restriction on the plenary otherwise contract,” right a reserves to terminate power of the School Board to elect not to providing proper procedure “the plaintiffs’ expiration renew contracts at the teacher,” apply only dismissal held to of their terms. Our decision Burris con- to “the termination or cancellation of a policies trols. Neither the referenced nor expiration teacher’s contract before the any justifies other evidence the conclusion term”); Bowen, 231-32, its 603 S.W.2d at had, plaintiffs law, any Texas (policy “Re-employment 235 entitled and property interest in their teaching positions policy professional person dismissal for extending beyond one-year terms of nel”; provisions apply dismissal held not to their contracts with this School District nonrenewal); v.White South Park Inde operated statutory which under the nonten- pendent District, 1163, 693 F.2d system. ure Because there was insuffi- (5th Cir.1982) (“... 1166 poli the written interest, cient property evidence of a regulations cies and of the Board establish submitting prop- district court erred in procedure employ for the dismissal of an erty theory jury. interest to the ee, say nothing but about decision to B. LIBERTY INTEREST contract.”). renew a teacher’s See also Clutts v. University, Appellants Southern Methodist next contend that 1981, (Tex.Civ.App. Tyler S.W.2d 334 district in charge court erred its jury — n.r.e.) (one-year appointment writ ref’d on the Specifi interests. tenure,” “Associate Professor cally, they argue without as a given the instruction by private matter of jury law is not overridden infringement allowed to find an university’s by-law provision that plaintiffs’ liberty all associ interests on the basis of tenure). Further, professors ate as their nonrenewal alone. We find that the suming applicability policies of these instruction prejudicially misleading teachers, nothing in them “undertakes respects. to this and related second, ers, separate part policy 15. A given of this re- provision exit interviews. The is, quires Superintendent opinion, wholly to ensure there is an for exit interviews in our every employee interview "exit ... who immaterial both to whether had a employment leaves employment with the District” for in their and to Plaintiffs, proper reason. policies. and other nonrenewed teach- construction of the other (1972). Doland, analyzing a claimed instructional de L.Ed.2d 548 See Wells v.

fect, 670, (5th Cir.1983). look not to see “whether the 711 F.2d Mere every particular charge was faultless proof might that nonrenewal make an indi- jury misled but whether the employers vidual less attractive to other understanding of way and whether it had not, itself, implicate liberty does inter- duty and its to determine those issues Roth, est. 408 U.S. at 574 n. 92 S.Ct. at Reed, 709 F.2d issues.” Ware v. 2707 n. 13. Dennis v. &S. S. Consolidat- Cir.1983); (5th Borg-Warner Smith ed Rural 577 F.2d High School (5th Cir.1980); Corp., 626 F.2d (5th Cir.1978). (“[M]ere nonre- Capitol, 571 F.2d Coughlin v. newal of a teacher’s contract is not such a Cir.1978). task is to consider the Our blight name, upon good reputation, his hon- whole, light allega charge as a or, integrity depriva- as to constitute a complaint and the evidence tions of liberty.”).16 tion of reputation Nor is alone 348; presented. Ware, at Cough 709 F.2d interest, a constitutionally protected even lin, If, review, after our though state law create an action for we are left with “substantial and ineradi Davis, defamation. Paul v. cable doubt” as to whether the (1976). Rath- properly guided, been we cannot allow the er, stigma imposed by must be City instruction to stand. Martin v. of state in right connection with its denial aof Orleans, 1321, (5th New 678 F.2d 1325 previously recognized by or status state 1203, Cir.1982), denied, 103 cert. 459 U.S. law, here, such as the nonrenewal issue 1189, (1983), quoting S.Ct. 75 L.Ed.2d 435 (such though loss of a interest Rollins, Inc., 285, Dwoskin v. 634 F.2d 293 employment) tenured required. is not Den- (5th Cir.1981). Wright Mil See also 9 nis, 341-42; Wells, 577 F.2d at 711 F.2d at ler, Procedure, Federal Practice and Civil (the stigmatization 676 “in must be or as a § (1978). Here, 2558 we have such a “sub discharge process”).17 result of the The stantial and ineradicable doubt.” employee govern- must also show that “the interest, liberty To establish a agency likely mental has made or is employee an must demonstrate that his make the stigmatizing charges public ... governmental employer brought manner, has false ‘in official or intentional other charges against “might seriously him that than in connection with the defense of [re- ” damage standing his legal] associations his lated action.’ v. Mackey, Ortwein community,” impose “stigma 696, (5th Cir.1975); or that or 511 F.2d 699 711 Wells other disability” that Moreover, forecloses “freedom F.2d at employee 676 n. 8. advantage to take employment of other must not have meaningful received a hear- opportunities.” Roth, Regents ing Board v. charges to clear his name.18 Id. The of 564, 573, 2701, 2707, 408 U.S. 92 S.Ct. 33 must be Velger, false. 429 Codd U.S. Moreover, newal, charge with, stigmatizing 16. to be it occur in connection adverse; to, merely closely enough must be worse employee's than it must be and be related give ‘badge infamy,’ discharge such as would rise to "a of nonrenewal or so as to cause that scorn, public stigmatizing. City or like.” Ball v. Board action to be Owen v. Inde- of of District, 622, 13, Independent 1398, pendence, Trustees Kerrville School 445 U.S. 633 n. 100 S.Ct. of 684, (5th Cir.1978), denied, 13, (1980); 584 F.2d 685 cert. 1406 n. 63 L.Ed.2d 673 Marrero v. 972, 1535, Hialeah, 499, City (1980). 99 S.Ct. L.Ed.2d 59 788 625 F.2d 519 of (1979). Burris, 1092; See also 713 F.2d 1087 at 1090, Bergland, (5th 607 F.2d 1092 remedy deprivation liberty 18. The for a Huffstutler of is a Cir.1979); LaBorde v. Franklin Parish School name-clearing hearing governing Board, (5th Cir.1975); 510 593 Robert Thomas, body. (5th White v. 660 F.2d 685 Rogers, son v. 679 F.2d 1092 Cir. Cir.1981), denied, cert. U.S. 1982); Regents, F.Supp. Press v. Board (1982) (plaintiff of to be (M.D.Ga.1980). only opportunity charge). afforded to refute It necessary hearing is not prior occur stigmatizing publication 17. But it is not essential stigmatizing charges. In re governmental charges actually Selcraig, (5th Cir.1983). cause the nonre- 882, 884, evidence 51 L.Ed.2d There is no the Board mem- S.Ct. (1977). bers or the District any- administration did regard thing in this other than listen to the principles guide, With these as our grievance teachers; the other nothing it to charge.19 We find examine court’s purporting constitute or Board District deficient. administration action on this shown to have occurred. Other than the teachers’ hearing

The of the other “grievance” fact this publicly grieving teachers grievance, at which heard, is nothing there to indicate arguably plain adverse to made comments Board or the District tiffs, administration either hear purport constitute contracts, publicized by the statements made there ing on the renewal the other teachers or publicly the comments other teachers did linked the charges purport to be the School nonrenewal such statements. Under evidence, District or administration. it certainly cannot be con- charge, pertinent part, teaching reads as fol- renew the contracts Veriena lows: Joyce Braune and deprived Wells each or liberty both of them of their "The Plaintiffs also claim that the Defend- im- deprived posing stigma them injuring reputation^] ants have of their with- or out due law substantially in violation impair so as to their freedom to Specifically, Fourteenth Amendment. Vene- advantage employment opportu- take of other Joyce na Braune and Wells contend that the you nities. In this connection can consider acting by Hico Plaintiff, them, whether each both has Trustees, through superin- its Board its substantially impaired taking been from ad- elementary principal, tendent and its school vantage employment public other area employment failed to renew their contracts of schools, public whether there has been disclo- partly against because of accusations made nonrenewal, sure of the reasons for such grievance by them in a filed several other oppor- employment whether there are similar They teachers. that the assert decisions about area, the tunities in and other whether school employment their ing were made without afford- systems were notified of the reasons for the meaningful opportunity them a to con- nonrenewal.’’ respond front these other teachers and to to Objections charge by to the the defendants grievance. the accusations contained in their below that are relevant to this are: issue most, all, “They further that assert if not regard page "Further with to 10 is against the accusations them were and false regard paragraph to the third on the that, so, they permitted they if had been to do page process liberty under due interest. The responded effectively could have ac- to these reads, language ‘They which assert that as a cusations. the result of school district’s non-renewal.’ that, "They assert as a result of the school object language "Defendants to this for the teaching district’s nonrenewal of their con- reason that Defendants believe law circumstances, tracts under those and on requires the that reason for non-renewal be bases, personal professional those reputations their and damage pro- personal the basis to and damaged were and abil- that their reputations, fessional and in record this De- ity to continue their career as teachers object language to the fendants used because substantially impaired. any non-renewal would affect a teacher’s fu- hiring, got but the ture law it has holds that to actions, deny "The Defendants that or the be a for reason non-renewal which would act, concerning failures to the em- Plaintiffs’ stigma prevent appropriate attach such ployment personal damage profes- their or liberty interest and that the reason must be reputation[s]. They deny anything sional that published, just the mere non-renewal al- did, do, the school or district failed to inter- go jury lows the Plaintiff to to the under a ability fered with the Plaintiffs’ to continue by required lesser than burden is law. Finally, their career as teachers. Defendants that, assert even if Plaintiffs had been afford- object page "Defendants further on 11 to the process, ed due it would have availed them complete paragraph page. second that nothing on because the accusations contained and, The refers grievance Court and uses against the the terms ‘refusal to them were true thus, they renew.’ Defendants would submit it should be the been able success- fully object they to reason for the refusal defend themselves even if to renew to given opportunity language been the to do the used. It so. allows the Plaintiffs to preponderance go jury "You must decide from a to the on a than burden less that required the evidence by whether the board's to refusal which is law.’’ contracts,21 “liberty” the the state- a matter of law eluded that as (as- asks the interrogatory form which whether grievance hearing at the ments made imposed a grievance the nonrenewal or they stigmatizing) constituted suming were stigma circum- plaintiffs.22 these or the by the School Board charges made stances, jury that be it was essential so far in connection District administration stigma- instructed that nonrenewal closely related the nonre- to with and so raised, itself, tizing sufficiently a matter stig- constitute nonrenewal newal as to along requirement, in publication with the matizing.20 objections charge.

defendants’ was not that jury The instructed “charges” these against stigmatizing what We to determine on are unable ap plaintiffs must have been made liberty made its interest deci- jury basis the (or proved by the defendants and made jury possible that considered sion. It is made) public by them. With likely to be responsible for that the defendants necessity charges that respect (as- by the other teachers the accusations made) jury (or likely public, the to be made responsible) so suming they could be that ... merely is told that “can consider stigmatizing public “made” thus public been disclosure of there has whether charges the course against the As to for such nonrenewal.” the reasons equally possi- It is nonrenewal.23 public necessity disclosure be that ble, however, jury that believed defendants, jury is not instruct responsible merely defendants were jury is the instructed on ed at all. Nor and that this ac- the nonrenewal decision nexus necessity of between implicate liberty enough to tion alone was the other teachers’ “charges” at testimony trial to interest. There was nonrenewal the for hearing and the suggest itself can be that nonrenewal stigmatizing. the latter mer render could professional reputa- harmful a teacher’s is, instead, simply whether asked

The Further, requires law more tion. while the deprived Board’s refusal renew liberty find than mere nonrenewal interest, plaintiffs of a without be general there is a deprivation, we believe ing necessary in order for told what perception public commonsense potentially misleading aspect be so. job stigmatizing can be loss of one’s respect is com reason, of the instruction important it is itself. For instruction, pounded by the court’s both a the carefully jury a court instruct on charge, necessary the Dis part legal liberty of the for a requirements another process provide plain due to interest The district court deprivation. trict did not here, despite failed defendants’ processing in the of the other to do so tiffs either objections. Accordingly, we must reverse grievance teachers’ nonrenewal of issue, perform- of this 20. was made at trial 21. of our resolution we do Reference to the Because plaintiffs. regarding of the if these appellants' ance evaluations Even not determine contentions however, stigmatizing, the evaluations process the instructions con- merits of these derogatory presence in a mere information sidered their own. on implicate liberty not confidential file does employer unless the has made or is interest jury imply properly 22. We could do stigmatizing charges likely public make the to infringement liberty find an interest based any or intentional manner. v. official Ortwein alone; grievance aspect but of the 696, (5th Cir.1975); Mackey, Wells 511 F.2d preserved by proper objections. matter was not 670, Doland, (5th Cir.1983). 711 F.2d n. 8 v. is no evidence the Board or the District There legal validity We do not decide the of such a actually perform- so made the administration theory. any decide Nor do we whether jury public, and ance evaluations was not (at "charges” made or in the eval- likely public the made or make instructed on uation) enough implicate were serious a lib- theory, properly hence could not have con- 16, erty supra. interest. See note the evaluations connection with sidered liberty claim. interest upheld judg While we have liberty for new trial on the remand granting plaintiffs recovery ment on their claim.24 interest claims, First Amendment there is absolute IV. ly no evidence individual Board members acted with malice or with a “reck DAMAGES disregard” less or callous for rights in this connection. Board members Because of our resolution of visited Mrs. Braune at her home to discuss issues, modify judg process the due Right program. They to Read allowed portion to delete that of each award ment present her to her views to them and even to these issues.25 also attributable We arranged for additional discussion on the modify judgment to set aside the award issue. The remarks attributed damages against punitive the individual by plaintiffs members and cited reflect (none against defendants were awarded some perhaps concern Mrs. Braune did District).26 damages may Punitive present her concerns first to the Dis against individual in a awarded defendants administration, justify trict do puni but Piphus, Carey v. case. section 1983 damages. tive punitive We have held that 1042, U.S. 55 L.Ed.2d 252 damages may be awarded in section 1983 (1978). disregard A “reckless or callous punish eases to deter or intentional viola rights, for the as well as inten Shillingford rights. tions of constitutional law, of federal tional violations should be Holmes, (5th Cir.1981). 634 F.2d trigger jury’s sufficient consideration punitive An damages against award appropriateness punitive of the dam Board clearly members would not serve Wade, Smith ages.” goals these twin punish deterrence and (1983). However, S.Ct. given ment. the evidence of which, noticed, sufficiency 24. We do not consider the of the ted if not would result in a claim, respecting liberty evidence interest miscarriage justice." manifest Little v. Bank- any defendants ed verdict make motion for direct- Casualty Company, ers & Life (or trial) for a new and their motion (5th Cir.1970). any reversing As we are in event summary judgment pre- does not suffice to remanding judgment liberty on the in- (see ). point supra serve the note ground, terest claim on another consideration Appellants' objection to the interest support of whether there is evidence to (see portion charge supra) of the note raised judgment necessary pre- on that basis is not clearly the contention that "the evidence shows miscarriage justice,” vent "a manifest and we that both Plaintiffs were non-tenured teachers accordingly decline to rule on whether there is expectation with no contractual ployment” of future em- support liberty evidence to interest recov- “property and that no interest in a ery. grievance procedure and evaluation ... exists law,” accordingly adequate $25,000 25. awarded to Mrs. Braune preserve the circumstances to for review the $15,000 to Mrs. Wells for the School question sufficiency of evidential that re- provide Board’s failure to a due hear- contrast, spect. By ing. (see portion charge note su- ) pra was not based on what was or was not Appellants also contend that there is insuffi- evidence, shown the and rather assumes that support cient evidence to the amount of actual liberty question the interest should be sub- damages plaintiff. awarded each We cannot mitted, although under a different definition. issue, however, review this as Hence, defendants nei- objection respecting liberty the the inter- ther moved any for a directed verdict nor in charge present est cannot be said to the conten- any manner or at time asked the conclusively district court tion that the evidence establishes liberty infringement damages to review the award of there was no interest actual for ex- support that there any was insufficient evidence to cessiveness nor otherwise ever took action any liberty jury. interest submission to the Ac- present in the district court to this issue. Sam’s cordingly, property objection, unlike the interest Style Shop Broadcasting Company, Cosmos liberty preserve the interest does not (5th Cir.1982). 694 F.2d ever, 1005 n. 15 How- sufficiency appellate the of the evidence for preserve complaint defendants did their as review. punitive damages by objecting to to the submis- question sufficiency Where the of evidential is damages. sion of such properly preserved consideration is "[o]ur error has been commit- plain limited to whether conformity such personal herewith and for further direct more and extensive the evalua- appropriate and nature of as and not participation proceedings may the ques- closer plaintiffs, tions of a somewhat inconsistent herewith. Superintendent to presented is as

tion In these Principal Bonner. and Walker JOLLY, Judge, E. GRADY Circuit con- in circumstances, any must we and since dissenting part: in curring part in and punitive dam- aside award set the event fully majority I concur its if there with the and ground ages on another differ, holding judgment that the district court’s trial the evidence another sufficiency the plaintiffs’ reach the issue on the claims decline to first amendment respect as to Walker of the evidence judgment should be affirmed and its on the punitive determining the and Bonner. process property due interest claims re- award, jury considered both damage the however, dissent, pan- I from the versed. and the due Amendment claims the First holding that process-liberty el’s the due brought by plaintiffs. the process claims remanded, interest claims should be be- say the would cannot whether We I find no in the record cause evidence to punitive damages the awarded simply them. I support would reverse the the at all—in ab- amount—or even same judgment respect with to those claims. due claims. For this process of the sence Although testimony at trial presented in damages reason, punitive we set aside the procedure that the grievance dicates judgment against the Bonner portion of colleagues the plaintiffs’ invoked Walker, against the as well as individu- pres part least in of tensions and because al Board members.27 resulting sures school environment plaintiffs conflict V. from the between program, over the Read Right others CONCLUSION plaintiffs’ testimony support does Accordingly, plaintiffs’ all we reverse charges that stigmatizing assertion were all process against due claims defendants against public hearing at the made them in favor judgment and so much the school board. Some of the damages plaintiffs as awards them actual trial that they board members testified at ($25,000 process deprivation of due names, any including recall those Braune, $15,000 Wells) and as awards plaintiffs, having mentioned in been damages. exemplary them We further grievance. with connection Other prejudice direct dismissal with so members testified were board plaintiffs’ process claims much as were complaints aware directed at are on an based asserted plaintiff. However, plaintiffs of employment, in their and of all indicates testimony fered no which damages against for exemplary claims any specific false comments directed individual Board members. Plaintiffs’ would at either of which de deprivation claims for of due Reading them of a interest. prive infringement connection asserted of a light evidence most favorable liberty interest all their claims for ex- I plaintiffs, only conclude that can damages emplary against defendants by their plaintiffs were characterized fel reversed and Walker Bonner are re- low teachers overcritical difficult to proceedings manded for further incon- uncoopera charges with. work Mere sistent herewith. decline disturb We inability harmoniously tiveness or to work aspect judgment other below. colleagues an made in relation to the district The case remanded to court em discharge entry judgment ployee’s deprive of do not indi for a modified court, challenged injunc- granted by appellants we do not 27. As district consider equitable remedy or the those issues. tion reinstatement advantage of his “freedom to take vidual employment opportunities” nor do

other MISSISSIPPI POWER & LIGHT name, “good they impugn person’s COMPANY, al., Petitioners, et honor, The dis reputation, integrity.” v. missal must be shown to have resulted “ FEDERAL ENERGY REGULATORY scorn, ‘badge infamy,’ public or the COMMISSION, Respondent. like.” v. Kerr Ball Board Trustees No. 82-4444. ville denied, Cir.1978), cert. United Appeals, States Court of 440 U.S. 99 S.Ct. 59 L.Ed.2d 788 Fifth Circuit. (1972). I find no evidence in the record July charges against before us that were made fairly plaintiffs of which it can be said Peyton Bowman, III, Priest, G. Reid & they “might seriously damage [the Washington, D.C., for Light Miss. Power & plaintiffs’] standing and associations Service, Co. and New Orleans Public Inc. addition, community.” there is [their] Nelson, Orleans, La., William C. New board, merely no evidence that the school Horn, Clayton Houston, L. Tex., for New entertaining unfavorable comments Orleans Public Service Inc. co-workers, plaintiffs’ gave any form of Jr., Miller, T. John Washington, D.C., imprimatur charges, official to these a nec Brown, Joseph Atty. Gen., C. Asst. Hous- essary foundation to a claim such as the ton, Tex., Texasgulf, for Inc. plaintiffs. one raised Carter, Lemann, Andrew P. Monroe & sup- Because there was no evidence to O’Brien, Orleans, Terrence La., New for it, port judge it was error for the trial Louisiana Light Power & Co. process liberty submit the Ross, Wald, William jury, judgment interest claim to the and the Warfield Harkrader Ross, & Seigler, Lichtman, Jane Robert M. below should be reversed without remand Washington, D.C., for Gulf States Utilities respect. though Even the defend- Co. question ants failed to at trial the sufficien- cy process-liber- of the evidence on the due Wise, Joseph Wise, Sherwood W. P. Jack- claim,

ty interest it seems to me to be a son, Miss., Mississippi Light for Power & miscarriage justice manifest require Co. the defendants to submit to a second trial Feit, Sol., F.E.R.C., Jerome M. A. Karen of a claim in support of which the Hill, D.C., Washington, for F.E.R.C. produced no evidence at the first trial. Manning, Robles, Michael J. Martin J. Jaworski,

Fulbright D.C., Washington, & for Louisiana Service Gas Co. Robertson, Jr., Roy Ala., Birmingham, R. for Southern Natural Gas Co. Robertson, Jr., Lombard, Roy Ill., R. Mississippi River Corp. Transmission Pierson, Bemis, W. DeVier Knox Richard Yarmey, McLean, A. Kevin W. Wash- D.C., ington, Pipe for United Gas Line Co. Goldberg, Letham, Fieldman & Wash- D.C., ington, for Mississippi Corp. Chemical Roth, Regents Roth, 1. See Board Regents 2. Board 408 U.S. at (1972). S.Ct. at 2707.

Case Details

Case Name: Joyce Wells v. Hico Independent School District, Etc., Veriena Braune v. Hico Independent School District, Etc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 16, 1984

Citation: 736 F.2d 243

Docket Number: 82-1468

Court Abbreviation: 5th Cir.