Sеan GSCHWIND, Plaintiff-Appellant, v. Linda HEIDEN, et al., Defendants-Appellees.
No. 12-1755.
United States Court of Appeals, Seventh Circuit.
Argued Aug. 7, 2012. Decided Aug. 31, 2012.
692 F.3d 844
William C. Barasha (argued), Kathryn M. James, Attorneys, Judge, James & Kujawa, LLC, Park Ridge, IL, for Defendants-Appellees.
Before POSNER, TINDER, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge.
The basic facts are not in dispute. Before the student threatened him, the plaintiff had met with the parents about a threat the student had made to another student. Later the plaintiff had seen the student beat up another student in the hallway of thе school, and again he met with the student‘s parents. The student‘s father used that occasion to threaten the plaintiff with a class-action lawsuit and to tell him that the father‘s older son, who had assaulted the assistant principal, should have assaulted the plaintiff instead.
Several days later the plaintiff happened to call on the student in class to perform the student‘s “math karaoke“-the plaintiff had given the students an assignment to create a song the lyrics of which would relate to something they‘d lеarned in the class. The student‘s song added “I stabbed Gschwind” to the lyrics of the Gangsta Rap song “Boyz in da hood,” www.youtube.com/watch?v=fGeNDnYcQOA (visited Aug. 28, 2012). The plaintiff was disturbed and stopped the class. The student was 12 or 13.
The plaintiff spoke to the school‘s poliсe liaison and to the principal and the assistant principal (the latter, remember, had been the victim of the assault by the student‘s brother). The plaintiff talked of filing a criminal complaint, and later did. He acknowledges having been afraid for his safеty, but he explained in an affidavit in this litigation that his fear “co-existed with a desire to report the singing of the song as a crime that had been committed, to help ensure the smooth and safe operation of the school and everyone inside.... The point of signing the disorderly conduct complaint was to bring to the public light the fact that such an incident had occurred.” He testified similarly in his deposition: “as far as it [the complaint] being a matter of public concern, it involved disorderly conduct thаt occurred in the classroom. That disorderly conduct had to do with public safety issues.”
The police liaison encouraged him to file the criminal complaint, pointing out that Illinois law declares a knowing threat of violence against a person at a school to be a form of disorderly conduct,
The day after the plaintiff signed the criminal complaint, the assistant principal out of the blue gave him an “unsatisfactory” evaluation; his previous evaluations had all been “satisfactory” and he had nоt
The defendants admitted in their answer to the plaintiff‘s complaint that they had “informed Plaintiff that they had both come to the conclusion that Plaintiff‘s employment with the School District should not continue beyоnd the end of the school year and that, if Plaintiff did not resign his teaching position before the next Board of Education meeting, Principal Heiden would recommend to the Board of Education that Plaintiff‘s teaching contract not be renewed for the following year.” Since, as we‘ll see, the board‘s policy was to rubber stamp personnel decisions by the school district‘s superintendent, who in turn rubber stamped personnel decisions by principals, it is apparent that the plaintiff was being fired-as he put it in his complaint, being “compelled to resign.” The defendants do not deny that he was constructively discharged. See, e.g., Kodish v. Oakbrook Terrace Fire Protection District, 604 F.3d 490, 502 (7th Cir. 2010); Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th Cir. 2008).
But they argue that even if they fired the plaintiff in retaliation for his complaining to them about the student and particularly for his filing the сriminal complaint, the complaining and the filing were purely personal acts on his part and thus not the exercise of his right of free speech. Houskins v. Sheahan, 549 F.3d 480, 490-92 (7th Cir. 2008). The district judge agreed, saying that “the undisputed facts overwhelmingly demonstrate that plaintiff signed the cоmplaint purely as a matter of private interest ... as a perceived victim of a crime and out of concern for his own personal safety.”
Violence in schools is a subject in which the public these days is highly interested, with the added twist in this casе, which would amplify the public‘s interest, that the father of the student who made the threat appears to have endorsed it. Nevertheless the plaintiff in filing the criminal complaint might have had no interest in making a public statement about school violеnce, but have only wanted to deter further threats against himself. However, in saying that the undisputed facts “overwhelmingly demonstrate[d]” that the latter was the correct interpretation of the plaintiff‘s reaction to “I stabbed Gschwind,” the district judge overloоked the statement in the plaintiff‘s affidavit that he had filed the criminal complaint in part “to help ensure the smooth and safe operation of the school and everyone inside” and, more important to a free-speech claim, “to bring to the public light the fact that such an incident had occurred.” As pointed out in Gazarkiewicz v. Town of Kingsford Heights, 359 F.3d 933, 942 (7th Cir. 2004), “speech of public importance is only transformed into a matter of private concern when it is motivated solely by the speaker‘s personal interests” (emphasis in original).
The defendants state in their brief that the plaintiff‘s “contention that he signed the juvenile complaint for disorderly conduct to bring to the public light the fact that such an incident had occurred in his classroom is belied by the fact that under the
We are mindful-have indeed emphasized-that academic administrators are entitled, in the name of acаdemic freedom and efficient educational administration, to a considerable degree of judicial forbearance in matters of discipline. See, e.g., Brandt v. Board of Education of City of Chicago, 480 F.3d 460, 467 (7th Cir. 2007). Realistically they can‘t be indifferent to parental pressure and to the threats and the actuality of suits engendered by indignant (though biased and often overprotective and downright unreasonable) parents. But Illinois law has curtailed that discretion in respects directly relevant to this case by requiring that any incident of battery or intimidation (which includes threats, see
So summary judgment should not hаve been granted on the ground that the plaintiff‘s criminal complaint was a matter of purely private concern. But we must also consider the liability of the particular defendants should the plaintiff succeed on remand in proving a violation оf his right of free speech.
The principles on which this suit is based are well settled, which defeats the individual defendants’ claim of qualified immunity. The school district, however, cannot be held liable for the tortious conduct of the principal and assistant principal under the doctrine of respondeat superior. It can be held liable only for its own conduct or that of its highest official or officials charged with responsibility for making the kind of decision, in this case a termination of employment, that is сhallenged. In Illinois the school board is the ultimate policymaking body with regard to personnel decisions.
The superintendent authorized the principal to fire Gschwind, and the board approved that decision. When Gschwind complained to the superintendent about the decision of the principal and assistant principal to force him to resign, the superintendent replied that “it was the policy of the school district and the Board of Education tо allow principals and assistant principals to make evaluation and employment decisions as they see fit with respect to the teachers they supervise and for the school district and the Board of Education to follow these dеcisions and recommendations.” This was evidence of a policy of the school district of condoning unconstitutional terminations, since principals and assistant principals might “see fit” to fire teachers on unconstitutional grounds. See Cornfiеld by Lewis v. Consolidated High School District No. 230, 991 F.2d 1316, 1325-26 (7th Cir. 1993); Mortimer v. Baca, 594 F.3d 714, 716 (9th Cir. 2010).
After the holding in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), that an employer‘s policy of granting its supervisors discretion to make personnel decisions can‘t be the subject of a class action against the employer by employees complaining оf discrimination by the supervisors, it is easy to jump to the conclusion that such a policy cannot be the basis of an individual (as distinct from class action) suit against the employer, either. Easy, but wrong. Wal-Mart distinguishes between the lack of “commonality” among the class members when multiple supervisors made the employment decisions of which the class is complaining-commonality being a prerequisite for a class action-and the possibility “that ‘in appropriate cases,’ giving discretion to lower-level supervisors can be the basis of Title VII liability ... since ‘an employer‘s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination,‘” id. at 2554, quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91 (1988). Or as we put it in Bolden v. Walsh Construction Co., 688 F.3d 893, 896 (7th Cir. 2012), “when multiple managers exercise independent discretion, conditions at different stores (or sites) do not present a common question.” For sure that is not this case.
The suit was terminated prematurely.
REVERSED AND REMANDED.