Ruth Simmons Herts v. Gary Smith

BOWMAN, Before RICHARD affirm in part, part, S. in reverse and dismiss ARNOLD, BYE, Judges. part jurisdiction. Circuit for want of ARNOLD, Judge.

RICHARD S. Circuit I. rejection This Court reviews the of interlocutory This is an appeal from a a qualified-immunity defense de novo. of summary judgment denial on the issue Ianni, (8th 668, Burnham v. 119 F.3d qualified immunity of from suit. Cir.1997) (en banc). We examine the facts alleges Dr. Ruth Herts that Dr. Gary alleged, supported by summary- Smith, Superintendent of the Pulaski record, sup see whether District, County Special School failed to port a claim that defendants violated her employment renew contract as a result law. City established See Pace v. her testimony hearing at a on a deseg- Moines, Des 201 F.3d District, regation involving case the School Cir.2000). violating rights thus under the First Amendment, the Process Equal argues Due Plaintiff first that the notice Protection Clauses of Fourteenth is it flawed because Amendment, exist, and Title VII. referred an Defendants to an order did not deny any violation rights plaintiffs Herts’s order denying the motion for II. quali- issue of summary judgment of the draft- The intention immunity. fied Supreme Court has defined obviously to refer to of the notice was er as follows: only defen- It was motion. defendants’ performing officials dis- [G]overnment summary a motion for who made dants functions, generally cretionary Plaintiff did not. this issue. judgment on damages liability shielded from for civil caused mistake that This a mere clerical is their conduct does not violate insofar as plaintiff. Accordingly, prejudice no statutory or constitu- clearly established appealing against held should be per- of which a reasonable rights tional Davis, 371 See Foman defendants. have known. son would 9 L.Ed.2d S.Ct. 800, 818, Fitzgerald, Harlow reject ground dismiss- We ing appeal. qualified im- The determination of whether munity circumstances applicable that we suggests Plaintiff next “objective reasonableness.” one the order jurisdiction lack because Ramsey County, Schleck is not final. Cer sought review is which (8th Cir.1991). The issue is not 641 denying a that an order it true tainly wrongly, acted but “whether the defendant dismiss, summary judg for motion to persons would whether reasonable know ment, normally immediately appeal- is not deprived acted in a manner which Pendleton v. It is a final order. able. right.” another a known constitutional (8th 1007, County, 1010 Louis 178 St. (8th 589, Ward, v. 306 F.3d 593 Sparr Cir.1999). Court, however, Supreme The Cir.2002). The the bur- defendant bears rule of exception an to this has carved out affirmative proof den of on this defense. involving the defense of finality for cases Ibid. immunity. v. Pelle See Behrens A. First Amendment Claim 834, 299, 307, tier, 116 S.Ct. 133 516 U.S. (1996). summary A denial of L.Ed.2d 773 speech was Because Dr. Herts’s ground immu job-related, argue, cannot be defendants “may nity be reviewed on concern, public and a matter of considered pure presented when the ‘is a issue protected. Buazard v. Meri so is not See alleged [or the facts ly whether legal (8th Cir.1999). one: dith, 546, 172 F.3d 548 by summary-judgment record] shown com on Dr. Herts’s They specifically focus support ... a claim of violation of position, her which ments about own ” Pace, 201 F.3d at 1052 law.’ private established as “directed at her characterize 511, Forsyth, 472 (quoting Mitchell her own very personal concerns about and 2806, 86 L.Ed.2d 528 n. 105 S.Ct. Br. 4. How Reply situation.” employment (1985)). Here, for ever, by on defendants’ motion testimony at issue was did summary judgment, the District Court called as a wit Herts when she was qualified immunity. intervenors in de rule on the defense the Joshua ness review, there up for Little Rock School Dis question brought case of segregation County fore, Special estab is whether under facts trict v. Pulaski 4:82CV00866, record, District, 2002 WL summary-judgment No. by the lished (E.D.Ark.2002), highly publi “clearly established defendants violated In this Jones, in 1982. began case that 515 U.S. cized law.” Johnson testimony, asked to answer Dr. Herts was S.Ct. questions proposed about the combination would have if been unusual indeed she had Desegregation Pupil problems of the Office and the not discussed the obligations and Office, Personnel and the impact job associated with her in this context. change position on her as Di- would have Defendants’ characterization of this testi- Equity. questioned mony rector of She was as addressing private a matter of concern, to had primarily whether she been asked her personnel dispute, analysis any activity the complete. administration neither accurate nor in implemented past year, had and It remains discuss the issue in about whether she was involved of causation. Defendants assert that Dr. plan reorganizing proposed attend- would have anyway been terminated ance zones of Bates Landmark reasons, for other so there is no First questioned schools. She was also about Amendment violation. On this interlocu of the purpose existence Bi-Racial tory appeal, we take must care limit our Committee, and pre- about information qualified immunity, review the issue of response in sented to intervenors a re- questions and to other of law that are quest under Freedom Information “inextricably intertwined” with it. See capacity Act. It was her as Director of Commission, Swint Chambers Equity, testifying subpoena, 35, 51, responses remarked that her truthful she L.Ed.2d 60 In v. City Kincade might place job jeopardy. In con- Springs, Blue Cir. text, certainly Dr. Herts’s on a 1995), following: we held the public matter of concern. However, we conclude the Appel- In order to determine argument whether lants’ plain- [the that Kincade her is speech protected under the has presented tiff] First insufficient evidence Amendment, in speech her interest on to establish that ... speech his caused public matters of concern also must be his termination is “inextricably not inter- against state, balanced the interest of the twined” with immunity an employer, public as in efficient service claims. This argument pres- causation through employees. Pickering, its significantly 391 ents different issues. Ac- 568, U.S. at cordingly, S.Ct. 1731. Defendants we declined of review the cau- argument make no that Dr. speech Herts’s sation issue. The is holding Kincade public interfered with the efficient binding service panel. on this To extent employees, defendants, of their simply rely but on that on this their that argument her contract was not of appeal rejection of their defense ongoing problems renewed because of with qualified immunity, argue that Subpoenaed testimony her work. on a non-renewal of Dr. Herts’s contract was public matter in ongoing litiga concern by caused some factor other than a con- tion regarding the effectiveness of school stitutional statutory violation, or desegregation programs hardly can jurisdiction, be have no defeating characterized as the interests of dismissed toas the issue of causation. public through state efficient service whole, theOn we cannot say that its employees. Dr. Herts’s there establishes, record the clarity with neces- qualifies fore protected speech. as sary summary judgment, that defen- Given Dr. position Herts’s as reasonably Director of dants believed that were Equity, and the questions nature of the violating Dr. Herts’s First Amendment during testimony, she was asked rights. The District to Court’s decision did immunity adequate on this claim was cause receive no deny qualified a on hearing tice and full the non-renewal correct. contract, of her we find no clear violation Due Process B. Claims procedural rights, due process of her argue have in order affirm required which would be to Defendants summary from suit for violations the denial of rights. due Once it process qualified immunity. of Dr. Herts’s affirmative defense of is re process that some is determined Hearing Her to persuade failure be what it remains to determined quired, to Board1 reverse the decision not re Bd. process is due. kind of Cleveland negate new her contract does not this de 541, 105 Loudermill, 532, U.S. Educ. if, here, adequate procedures fense 1487, Due 84 L.Ed.2d 494 S.Ct. argues Plaintiff that cer were followed. requires certain generally process procedural irregularities tain occurred be met; plaintiff must re be procedures these, in during hearing, fore and but “ and ‘the adequate opportuni notice ceive even rise to opinion, arguably our do not meaningful .... at a time ty be heard’ level constitutional violations. meaningful Armstrong and in a' manner.” Manzo, 545, 552, 85 380 U.S. S.Ct. a viola To determine whether (1965), quoting Grannis v. pro tion of an due individual’s substantive Ordean, 394, 34 S.Ct. 234 U.S. occurred, rights question has cess L.Ed. 1363 arbitrary in an whether the officials acted manner, capricious or so as shock the argue that Dr. Herts Defendants conscience. Sacramento v. her contract adequate notice that received 845-46, Lewis, 118 S.Ct. renewed, that she re would not be (1998); 140 L.Ed.2d Harrah hearing opportunity with an ceived full Martin, Independent School District received response. agree. We She 194, 198, 99 her contract of the non-renewal of notice curiam). (1979) The con (per L.Ed.2d 248 24, 2001, April letter on hand-delivered right stitutional substantive due Smith, Gary Superintendent from Dr. discharge a to “free from right includes be County Special Pulaski School District. ‘arbitrary capri that are and for reasons for reasons This letter offered detailed words, cious,’ or in other for reasons stated, right have a non-renewal and “You trivial, pro to the education unrelated hearing on this recommendation be a cess, by basis in wholly unsupported or a Appellants’ App. board.” fore school University v. fact.” North Dakota State procedures at Details of the vol. 63-65. States, F.3d Cir. United a time for requesting arranging for and 2001). recently most As this Court has Dr. Herts did hearing explained. were stated, general “an official’s conduct must hearing granted, a on request, and con ly to inflict harm to be be intended represented Dr. Herts was June 2001. shocking in constitutional science counsel, by who cross-examined seven wit Holloway, Hawkins v. sense.” support called the District nesses (8th Cir.2003) (finding non-renewal, a substan and she of recommendation a sheriff process due violation where response. Be- tive length testified at herself represented by Hearing composed Herts and Board were of the Dr. 1. The Board was Special County seven members of the Pulaski counsel. Both District Board of Education. Products, Inc., employees 133, 147-48, with a ing threatened to shoot load- ed handgun). concede, As appellants has Although the non-renewal of Dr. prima made a facie case of discrimination may constitutionally Herts’s be contract Equal in violation of the Protection Clause reasons, suspect for other it cannot be said VII, require and Title under both of which the level conscience-shocking. to rise to of proof of intentional discrimination. Since The reasons for the non-renewal question there is no that intentionally dis- trivial, contract were nor Dr. Herts’s criminatory on part govern- actions they wholly unsupported. were can Nor mental officials would not be entitled arbitrary the non-renewal be described qualified immunity, appellants rely cannot capricious action. Defendants were en on this affirmative defense. We therefore summary judgment ground titled affirm the summary judgment denial of on of an affirmative im defense grounds of qualified immunity with

munity for the procedural claims of respect to these claims. substantive due violations. We re verse the on summary judgment denial of D. Eleventh Amendment qualified immunity grounds for the due defendant Pulaski Special process violations. it School District contends that is a state agency, immune under from suit the Elev Equal C. Protection and Amendment, enth because political a Title VII Claims subdivision of the State of Arkansas. The The trial court held that there were rejected argument, District Court disputes pertaining material factual to Dr. so do The Supreme we. Court Arkan job performance Herts’s that had to be sas has held that school districts are not resolved order to determine whether state agencies, public corporations but job deficient performance was a pretext may which sue and be sued. Dermott employment the non-renewal of her Johnson, Special School District v. contract based on race. Because of these 90, 94-96, Ark. 32 S.W.3d 479-80 disputes grant appellants was denied. III.

To a prima make out facie case Equal discrimination Protec Defendants also appeal the Dis Amendment, tion Clause of the Fourteenth trict request Court’s denial of their VII, or under plaintiff plaintiffs Title pendent need show the state-law claim un only that is a a protected she member of der the Arkansas Teacher Fair Dismissal class, qualified was position, and Act be dismissed. As we have explained, employment jurisdiction suffered an adverse action. our appeal Green, Douglas Corp. Under McDonnell solely rests qualified doctrine of immunity. L.Ed.2d 668 We not any aware of au (1973), case, “a plaintiffs prima thority applies com this doctrine of federal facie bined with sufficient to find that evidence law to state-law claims. Accordingly, employer’s justification the asserted the extent that the appeal asks on reversal false, may permit trier of fact the to con the Arkansas Teacher Fair Act Dismissal claim, employer unlawfully clude that the dis it is jurisdic dismissed for want of criminated.” Reeves v. Sanderson Plumb- tion. were estab rights the violated

IV. County, lished. v. Lawrence See Wilson First Amend- as to the summarize: To Cir.2001). (8th Unfortu Protection, VII ment, and Title Equal the order nately, denying district court’s rejection claims, District Court’s qualified immunity gives no clear indica immunity is affirmed. defense analyzed tion process of whether due claims, District to the Due Process As Accordingly, these lines. along claims qualified-immunity rejection of Court’s jurisdiction lack to consider them and reversed, and these claims defense is pro case should remand the for further with on re- prejudice dismissed should be with im ceedings consistent our the claim respect mand. With Ark., munity jurisprudence. Entergy, See statute, dismissed the state Nebraska, Inc. the claim will jurisdiction, so for want of Cir.2001). in the Court. pending District remain in majority opinion all other join I in part, in reversed dis- part, Affirmed respects. with instruc- and remanded part, missed tions.

BYE, part Judge, concurring in Circuit dissenting part. majority’s from the decision

I dissent sum- court’s denial of the district

reverse alleged to Dr. Herts’s mary America, STATES of UNITED quali- Because the process violations. due Appellee, Plaintiff — adequately was not fied issue court, would I in the district addressed join I proceedings. for further remand PELAYO-RUELAS, Eduardo respects. in all opinion other Appellant. Defendant — she Dr. Herts contends No. 02-3056. letter a school board to a written access Appeals, Court of United States superintendent accusing member Eighth Circuit. racially discriminatory employment him of Further, Dr. Herts contends practices. May 2003. Submitted: request- board was not told the school she 7, 2003. Filed: Oct. herself the letter’s author recuse from ed proceedings. Dr. Herts’s non-renewal argues actions rendered those unfair —and hearing process

non-renewal rights-— of her due

thus violative superin- on bearing

because evidence racial bias the school board’s

tendent’s and attorney. her and her withheld from of Dr. Herts’s due

Our review determining is limited to whether

claims of a rise to level allegations

these and, so, if whether

constitutional violation

Case Details

Case Name: Ruth Simmons Herts v. Gary Smith

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 6, 2003

Citation: 345 F.3d 581

Docket Number: 02-3594EA

Court Abbreviation: 8th Cir.