Leary v. DaeschnerLeary v. Daeschner
KAREN NELSON MOORE, Circuit Judge. Plaintiffs-appellants and cross-appellees Mary Elizabeth Leary and Glenda H. Williams (“plaintiffs“) were teachers at the Atkinson Elementary School (“Atkinson“), a public school in Jefferson County, Kentucky. At the end of the 1998-99 school year, they were involuntarily transferred to another school within the school district. Alleging that they were transferred in retaliation for exercising their First Amendment rights and that they were not afforded due process in connection with the transfer, the plaintiffs brought the instant suit under
I. BACKGROUND
Mary Elizabeth Leary and Glenda H. Williams were long-time special education teachers at the Atkinson Elementary School, a public school in Jefferson County, Kentucky.1 Atkinson, the undisputed evidence shows, is a highly troubled elementary school, producing some of the lowest student test scores in the state of Kentucky. In fact, Atkinson was identified by the state as a school “in decline.” Moreover, the school has a reputation for being an unpleasant place to work: testimony presented to the district court suggested that Atkinson has had great difficulty in getting qualified individuals to accept and keep the job of principal, due in part to the tense relationship between Atkinson faculty and administration. In addition, several teachers testified that student discipline was a significant problem.
Due to Atkinson‘s poor academic achievement level, the school qualified under the Kentucky Education Reform Act to receive the assistance of a Distinguished Educator, or “Highly Skilled Educator,” an employee of the school district who specializes in aiding troubled schools. Atkinson‘s Distinguished Educator was Nancy Bowlds, who arrived at the school in August 1998. Bowlds conducted a number of
Once the decision was taken to transfer some teachers, Meriwether asked Howard and Bowlds to suggest the names of teachers who would be most likely to resist or impede the impending changes at Atkinson. Bowlds‘s list contained both Leary‘s and Williams‘s names, but Howard‘s did not contain either. Meriwether compared the lists and asked Howard whether she would agree with Bowlds‘s identification of Leary and Williams as prospects for transfer. Howard agreed. Neither Meriwether nor Eckels personally knew very much about the plaintiffs, but rather relied entirely on the advice of Howard and Bowlds. Ultimately, five teachers and one security monitor were given notice that they would be transferred out of the Atkinson school. Williams and Leary received letters on May 29, 1999, and June 1, 1999, respectively — the last days of the school year — informing them that they would be transferred pursuant to section D of the collective bargaining agreement (CBA) between the Jefferson County Board of Education and the Jefferson County Teachers’ Association (JCTA). It is undisputed that
Leary and Williams presented substantial evidence to the district court showing that they had been highly vocal on a number of occasions in criticizing various aspects of the management of the Atkinson school and that they were considered “leaders” among the faculty in this respect. In early 1997, Leary was involved in presenting complaints — and ultimately a petition — to the School-Based Decision Making Committee, a sort of mini-school board that consisted of Atkinson employees and governed Atkinson alone, regarding the school‘s handling of student discipline. Leary had also been particularly critical of the changes to the ECE program proposed by Bowlds and the rest of the administration in the spring of 1999, suggesting that the changes could put the school in violation of the law. Furthermore, Williams was a teachers’ union (JCTA) representative and therefore had voiced a number of concerns over the years to Howard on behalf of other teachers — as often as every two weeks, according to Howard.
The defense witnesses gave reasons for transferring the plaintiffs that were unrelated to the plaintiffs’ vocal criticism of school policy, however. Bowlds testified that she believed that Leary and Williams had leadership problems and were not “team players.” She claimed that both plaintiffs had failed to attend the meetings of certain committees that they were involved with. Bowlds also noted that Leary had a
The plaintiffs filed suit on July 16, 1999, in the U.S. District Court for the Western District of Kentucky, alleging that school board superintendent Stephen Daeschner had violated their rights to free speech in violation of the First and Fourteenth Amendments to the U.S. Constitution and their rights to procedural due process, in violation of the Fourteenth Amendment. They requested preliminary and permanent injunctive relief as well as declaratory relief. The district court held hearings on August 5, 6, 12, and 13, in order to attempt to resolve the matter of the preliminary injunction before the Atkinson students were scheduled to return to school on August 17, 1999. On August 13, 1999, the district court orally ruled against the plaintiffs on their First Amendment claim but found that they were entitled to more process than they had received before their transfer was effected. Therefore, the district court enjoined the school board from transferring Leary and Williams until they had been afforded “notice of the proposed transfer, a statement of the reasons [therefor], and an opportunity to be heard.” J.A. at 379-81 (Tr. of Hr‘g).
On the morning of August 16, 1999, Leary and Williams were given written notice of their transfer, which listed
II. ANALYSIS
A. Preliminary Injunction Standard
When deciding whether to issue a preliminary injunction, the district court considers the following four factors:
(1) whether the movant has a “strong” likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.
McPherson v. Michigan High Sch. Athletic Ass‘n, 119 F.3d 453, 459 (6th Cir. 1997) (en banc) (quoting Sandison v. Michigan High Sch. Athletic Ass‘n, 64 F.3d 1026, 1030 (6th Cir. 1995)). These factors are to be balanced against one another and should not be considered prerequisites to the grant of a preliminary injunction. See United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg‘l Transit Auth., 163 F.3d 341, 347 (6th Cir. 1998); McPherson, 119 F.3d at 459.
This court reviews the district court‘s decision for an abuse of discretion. See McPherson, 119 F.3d at 459. Thus, “the district court‘s ‘weighing and balancing of the equities of a particular case is overruled only in the rarest of cases.‘” Id. (quoting Sandison, 64 F.3d at 1030). Moreover, the district court‘s factual findings must be clearly erroneous in order for this court to find that it abused its discretion. See UFCW, 163 F.3d at 347. If pure legal conclusions are involved in the district court‘s determination, however, those conclusions are subject to de novo review. See McPherson, 119 F.3d at 459.
B. First Amendment Retaliation Claim
A public employee who would succeed on a claim of retaliation in violation of the First Amendment must demonstrate
(1) that the plaintiff was engaged in a constitutionally protected activity; (2) that the defendant‘s adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of the plaintiff‘s constitutional rights.
Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998); see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). If the plaintiff makes this showing, the burden then shifts to the defendant to show by a preponderance of the evidence “that it would have taken the same action even in the absence of the protected conduct.” Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir. 1999) (quotation omitted); see also Mt. Healthy, 429 U.S. at 287.
When the plaintiff is a public employee, she must make additional showings to demonstrate that her conduct was protected. First, the employee must show that her speech touched on matters of public concern. See Connick v. Myers, 461 U.S. 138, 146 (1983). Second, the employee‘s interest “in commenting upon matters of public concern” must be found to outweigh “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Educ., 391 U.S. 563, 568 (1968); see Connick, 461 U.S. at 149-52; Boger v. Wayne County, 950 F.2d 316, 322 (6th Cir. 1991). Whether the plaintiff‘s speech constituted protected conduct is a question of law, reviewed by this court de novo. See Connick, 461 U.S. at 148 n.7; Langford v. Lane, 921 F.2d 677, 680 (6th Cir. 1991).
The district court found that, although the plaintiffs’ speech was largely on matters of public concern and therefore constituted protected speech under the First Amendment, the plaintiffs had failed to show that their speech was a substantial or motivating factor in the decision to transfer them. Concluding that the plaintiffs did not show a likelihood of success on the merits, the district court refused to grant a preliminary injunction on this basis.
1. Protected Activity
As the district court found, the vast majority of the plaintiffs’ speech involved matters of public concern. The subjects of student discipline and the appropriate educational program to be implemented are undoubtedly matters of concern to the community at large. See Jackson, 168 F.3d at 910 (describing matters of public concern as matters of “political, social, or other concern to the community” (quoting Connick, 461 U.S. at 146)). Leary‘s comments suggesting that the proposed educational changes would result in violations of the law, moreover, are undoubtedly of the highest public concern, since they hint at possible wrongdoing by public officials. Cf. Bloch, 156 F.3d at 678 (“The First Amendment clearly protects the Blochs’ right to criticize
Determining whether the plaintiffs’ interest in speaking outweighed the school district‘s interest in performing its function efficiently requires a “particularized balancing” of the various interests at stake, and if an employee‘s speech “substantially involved matters of public concern,” an employer may be required to make a particularly strong showing that the employee‘s speech interfered with workplace functioning before taking action. Connick, 461 U.S. at 150-52. In the plaintiffs’ favor, as noted above, is the fact that most of their speech unquestionably involved important matters of great public concern. In Daeschner‘s favor, however, is the fact that the Atkinson school was undoubtedly in a state of near-crisis, and radical and decisive action appeared to be required in order to improve the school‘s functioning; thus, the school board‘s interest in performing its function efficiently was particularly strong. Adding to the strength of Daeschner‘s case is evidence suggesting that the plaintiffs’ speech was often conducted in a disruptive manner. For example, Leary was known to “yell” at her colleagues, and Williams apparently visited Howard quite often and consistently questioned her authority as principal. See Connick, 461 U.S. at 154 (holding that the First Amendment does not require an employer to “tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships” (emphasis added)); McGill v. Board of Educ., 602 F.2d 774, 777 (7th Cir. 1979); cf. Pickering, 391 U.S. at 572-73 (noting that the employer school‘s interest in limiting a teacher‘s speech is not great when those public statements “are neither shown nor can be presumed to have in any way either impeded the teacher‘s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally“) (footnote omitted). Finally, to the extent that the plaintiffs’ speech occurred in private — such as in the principal‘s office, or informally within the walls of
On balance, however, the plaintiffs’ speaking out on discipline, choice of educational approaches, and potential violations of the law by the school district is of sufficient public importance to outweigh the employer‘s interest in limiting that speech. Moreover, the school board has essentially conceded the point. See Appellee‘s Br. at 26. Thus, we hold that the plaintiffs’ speech was protected by the First Amendment.
2. Adverse Action
The school board does not dispute that the involuntary transfer of the plaintiffs would have a sufficient chilling effect to qualify as an adverse action under the First Amendment retaliation analysis. See Appellee‘s Br. at 26. This position is supported by our case law. See, e.g., Boger, 950 F.2d at 321-23.
3. Motivating Factor
The most problematic aspect of the plaintiffs’ First Amendment claim is showing that their speech was a substantial or motivating factor in the decision to transfer them. The district court found that the plaintiffs did not make a sufficient showing that their transfer was so motivated for two reasons. First, the court noted that Howard had decided to leave her position as principal of Atkinson shortly before the transfers were arranged; therefore, the court concluded, Howard would have little incentive to get the plaintiffs out of her way if she was not staying at Atkinson. Second, the court noted that the various incidents of protected speech occurred over a period of several years, which weakened the inference of retaliation or causation. Furthermore, it appears that the
The plaintiffs advance numerous reasons why the district court‘s conclusion is faulty. Primarily, they take issue with the district court‘s interpretation of the facts, arguing, for example, that the remoteness in time between the plaintiffs’ speech and the alleged retaliation is due to the fact that Howard and Bowlds had no real opportunity to retaliate against the plaintiffs before then. Moreover, they question the speculative logic of the district court‘s finding that Howard had no motive to retaliate against the plaintiffs because she was leaving. Finally, the plaintiffs point to copious evidence that could suggest that Bowlds‘s and Howard‘s asserted reasons for marking them for transfer were pretextual, including, inter alia, the plaintiffs’ consistently high performance evaluations.
The question whether the plaintiffs’ speech was a motivating factor in Bowlds‘s and Howard‘s decision to recommend them for transfer is a close one. We note that the proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion, for example, and we therefore express no opinion as to the ultimate merits of the plaintiffs’ case. See generally Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 818-19 (4th Cir. 1991) (observing that the standard for obtaining a preliminary injunction is higher than the standard for surviving summary judgment); William G. Wilcox, D.O., P.C. Employees’ Defined Benefit Pension Trust v. United States, 888 F.2d 1111, 1114 (6th Cir. 1989) (noting that “a trial court‘s disposition of the substantive issues joined on a motion for extraordinary relief is not dispositive of those substantive issues on the merits“); National Wildlife Fed‘n v. Burford, 878 F.2d 422, 432 (D.C. Cir. 1989) (“To obtain a preliminary injunction, [the plaintiff] not only had to demonstrate specific
Because we hold that the district court‘s conclusion regarding the causal relationship between the plaintiffs’ speech and their transfer is not clearly erroneous, we need not express an opinion about Daeschner‘s argument that he cannot be found liable because the plaintiffs cannot show that Daeschner himself, who undisputedly did not know the plaintiffs personally, had a retaliatory motive in approving the transfer. However, we note our doubts as to the validity of this contention. As a supervisor, Daeschner can be held liable under
C. Due Process Claim
The district court found for the plaintiffs on their due process claim, concluding that the CBA between the JCTA and the Board of Education, which provided that a teacher could be transferred only “for good cause and extenuating circumstances . . . as may be necessary for the efficient operation of the school district,” J.A. at 26 (CBA § D), gave the plaintiffs a property interest in their particular positions within the school district.5 The district court found that the
The plaintiffs now argue that the process afforded by the school board was insufficient. Specifically, the plaintiffs claim that they were given insufficient time — a few hours — to prepare adequately for the hearing and that the school board indicated that it would proceed to transfer the plaintiffs regardless of the outcome of the hearing. They thus appeal the district court‘s denial of their “Motion in Furtherance of Preliminary Injunction.”6 Daeschner argues, in response, that the process afforded the plaintiffs was constitutionally sufficient, given the particular circumstances of this case. In his cross-appeal, Daeschner also argues that the plaintiffs had no property interest in their positions at Atkinson in the first place, and therefore that they were not entitled to any due process before being transferred.7
1. Existence of a Property Interest
The district court correctly decided that the CBA between the school board and the JCTA created for the plaintiffs a property interest in their positions at Atkinson. Section D of that CBA apparently provides that teachers may not be transferred within the school district except on a showing of “good cause” and “extenuating circumstances.” J.A. at 26 (Section D). This requirement is at least as stringent as those found in other cases, in the Supreme Court and this court, to create a property interest in continued employment, such as8
2. What Process Is Due
When a plaintiff has a protected property interest, a predeprivation hearing of some sort is generally required to satisfy the dictates of due process. See Loudermill, 470 U.S. at 542; Roth, 408 U.S. at 569-70 (“When protected interests are implicated, the right to some kind of prior hearing is paramount.“). The predeprivation process need not always be elaborate, however; the amount of process required depends, in part, on the importance of the interests at stake. See Loudermill, 470 U.S. at 542; Winegar v. Des Moines Indep. Community Sch. Dist., 20 F.3d 895, 899-901 (8th Cir.), cert. denied, 513 U.S. 964 (1994). Thus, when deciding on the necessary process, this court must balance “the private interest in retaining employment, the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous” decision. Loudermill, 470 U.S. at 542-43 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Moreover, the sufficiency of predeprivation procedures must be considered in conjunction with the options for postdeprivation review; if elaborate procedures for postdeprivation review are in place, less elaborate predeprivation process may be required. See, e.g., Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1349 (6th Cir. 1992). In some cases, postdeprivation review may possibly be sufficient, and no predeprivation process is required. See Ramsey, 844 F.2d at 1272-74.
In this case, a predeprivation hearing was required. Admittedly, the plaintiffs’ interest in not being transferred is not as great as that of the plaintiff in Loudermill in not losing his job altogether. See Loudermill, 470 U.S. at 543 (emphasizing the “severity of depriving a person of the means of livelihood“). However, there is sufficient reason to believe, based on the record evidence adduced by the plaintiffs, that an involuntary transfer carries with it significant costs for the transferee, including stigma, loss of professional esteem, and the difficulty of rebuilding relationships and professional status within the new school. See J.A. at 101-03 (Drescher Test.) (describing the stigma
The plaintiffs’ case does not fall within the exception laid out in Ramsey v. Board of Education, 844 F.2d 1268 (6th Cir. 1988). In Ramsey, this court noted that state postdeprivation procedures are sufficient, and neither a predeprivation hearing nor a federal cause of action is necessary, when the property interest at stake is a “specific benefit, term, or condition of employment,” the loss of which is easily quantified, rather than the “tenured nature of the employment itself.” Ramsey, 844 F.2d at 1274. The benefit lost in Ramsey was the right to compensation for a number of unused accumulated sick-leave days provided for by the plaintiff‘s employment contract. Since the plaintiff could sue under her employment contract, and the value of the property interest lost was clearly definable and quantifiable, this court held that a state-law breach of contract action would provide the plaintiff with sufficient due process. See id. at 1274. In the instant case, by contrast, the CBA has created for Williams and Leary a right to tenure in a particular position within the school district. We believe that the plaintiffs’ loss of this tenure is more analogous to the complete termination from a post in Loudermill than the loss of a specific and primarily economic benefit in Ramsey. Cf. Johnston-Taylor, 907 F.2d at 1581-82 (holding that posttermination grievance procedures are not sufficient in the case of the discharge of tenured professors, where the professors were not given reasons for the discharge or an opportunity to be heard beforehand). The original determination by the district court that the plaintiffs were entitled to due process was not in error.
In the circumstances of this particular case, the predeprivation hearing ultimately provided by the school board was sufficient to satisfy the dictates of due process. Due process is a flexible principle whose requirements depend on the facts of the individual case. See Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991). “The essential requirements of due process . . . are notice and an opportunity to respond. The opportunity to present reasons, either in
Moreover, the plaintiffs have not sufficiently shown that the hearing offered to them was not truly meaningful. The plaintiffs claim that the letter informing them of their right to a hearing also informed them that the transfer would be effective at 5:00 p.m. that day, regardless of the outcome of
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED in its entirety.
Notes
The Superintendent or designee for good cause and extenuating circumstances will execute transfers as may be necessary for the efficient operation of the school district.
J.A. at 26 (CBA § D).