Rich v. Montpelier Supervisory District

Rich v. Montpelier Supervisory District  (97-010); 167 Vt. 415; 709 A.2d 501

[Filed 23-Jan-1998]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 97-010


William Rich and Montpelier                  Supreme Court
Education Association
                                             On Appeal from
    v.                                       Washington Superior Court

Montpelier Supervisory District, et al.      September Term, 1997


John P. Meaker, J.

       Devin McLaughlin of Langrock Sperry & Wool, Middlebury, and Donna
  Watts, Vermont-NEA, Montpelier, for Plaintiffs-Appellants.

       Robert McKearin of Dinse, Erdmann, Knapp & McAndrew, P.C., Burlington,
  for Defendants-Appellees.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       JOHNSON, J.  William Rich appeals a summary judgment order by the
  Washington Superior Court (1) upholding the decision of the Montpelier
  School Board to nonrenew his contract as a probationary teacher and, (2)
  determining that the Superintendent of the Montpelier Supervisory District
  is entitled to qualified immunity from Rich's civil rights claims.  We
  affirm in part, reverse in part, and remand for further proceedings.

       Rich taught seventh-grade science and language arts as a probationary
  teacher at the Main Street Middle School in Montpelier for the 1992-93 and
  1993-94 school years.  Rich's employment contract was governed by a
  collective bargaining agreement (Agreement) between the Montpelier
  Education Association, the teachers' union, and the board.  In the event a
  teacher's contract was not to be renewed for the following year, the
  Agreement required that the teacher be given notice of the nonrenewal by
  March 15, and provided the teacher with the right to a hearing before the
  board.

       On March 15, 1994, Rich attended a meeting with the superintendent to
  discuss his

 

  contract and to address several issues that the superintendent believed
  warranted its nonrenewal. The meeting culminated in an agreement to extend
  the deadline for the renewal of Rich's contract by six weeks, to provide an
  opportunity for Rich to resolve the issues through negotiation with the
  school principal.  Later the same day, however, Rich informed the
  superintendent that he would not honor the agreement.  The superintendent
  then sent Rich a letter, dated March 15, informing him that his contract
  would not be renewed.  The March 15 letter also stated that Rich's contract
  was not renewed because of concerns about his judgment and self-control.

       Rich requested a hearing before the board on May 3.  The board denied
  the request as untimely, and Rich brought this suit seeking a determination
  that he is entitled to the renewal of his contract as well as damages for
  alleged violations of his civil rights.  The trial court granted summary
  judgment in favor of defendants, and this appeal followed.

       Rich claims that the trial court erred by 1) holding that his
  procedural claims are barred for failure to exhaust his administrative
  remedies under the Agreement, 2) granting summary judgment to defendants on
  his procedural due process claims, and 3) granting summary judgment to
  defendants on his civil-rights claims, based on its conclusion that the
  superintendent was immune from suit.

                                     I.

       We first address Rich's contractual claim.  Rich does not dispute that
  he requested a hearing before the board after the deadline provided for in
  the Agreement.  Rather, he argues that the March 15 letter was not notice
  of nonrenewal within the meaning of the Agreement because the board had not
  voted to nonrenew Rich before the letter was mailed.  Therefore, he argues
  that the March 15 letter could not have triggered an obligation on his part
  to request a hearing pursuant to the Agreement.  Because the Agreement
  provides for automatic renewal of a teacher's contract unless the teacher
  is given notice of nonrenewal, Rich concludes that he is entitled to a
  teaching contract.  We disagree.

 

       It is undisputed that the board did not officially act to nonrenew
  Rich before the superintendent sent the March 15 letter.(FN1)  This does not,
  however, excuse Rich from following the grievance procedure in the
  Agreement.  "[A]n employee subject to a collective bargaining agreement,
  who has a grievance within the scope of that agreement's grievance and
  arbitration procedure, must exhaust the remedies available under that
  agreement before he may maintain a suit against his employer."  Burkhart v.
  Mobil Oil Corp., 143 Vt. 123, 126, 463 A.2d 226, 228 (1983); see also
  Morton v. Essex Town Sch. Dist., 140 Vt. 345, 348-49, 443 A.2d 447, 449
  (1981) (teacher obligated to pursue breach of contract claims through
  bargained-for-grievance procedure).

       Rich's dispute concerning the nonrenewal of his teaching contract
  falls directly within the scope of the Agreement's grievance procedure. 
  Article 21.9 of the Agreement governs the grievance procedure for
  probationary employees.  It provides that "an individual who is given
  notice of dismissal or non-reemployment may, within ten (10) days of
  receiving said notice, request in writing either a Board hearing or a
  written statement from the Board giving the reasons for the Board's
  action."  If Rich believed that the notice or procedure of his nonrenewal
  was not made in accordance with the Agreement, the proper forum for him to
  challenge their validity was at a hearing before the board in accordance
  with Article 21.9.  See Ploof v. Village of Enosburg Falls, 147 Vt. 196,
  200, 514 A.2d 1039, 1042 (1986); Burkhart, 143 Vt. at 126, 463 A.2d  at 208;
  Morton, 140 Vt. at 349, 443 A.2d  at 449.  Rich failed to comply with the
  grievance procedure provided for in the Agreement, and such failure is
  fatal to his claim.  See Ploof, 147 Vt. at 201-02, 514 A.2d  at 1043
  (summary judgment proper where plaintiff failed to exhaust administrative
  remedies and exception to exhaustion requirement did not apply).

       Rich next argues that, even if this case is subject to the grievance
  procedures, he is

 

  excused from seeking a hearing before the board because the board
  repudiated the Agreement by failing to vote before the superintendent sent
  the March 15 letter.  We have recognized an exception to the exhaustion
  requirement where "an employer fails or refuses to perform actions required
  of it under contract and thus prevents the employee from complying
  therewith."  Furno v. Pignona, 147 Vt. 538, 541, 522 A.2d 746, 749 (1986). 
  Nevertheless, this exception is not applicable here.

       Article 22.3 of the Agreement provides in part that "[t]eachers not to
  be re-employed for the following school year shall be notified, in writing,
  by March 15."  As we stated in Furno, "[t]he clear purpose of the written
  notice requirement is to give an employee the information upon which he may
  choose to base an appeal of the adverse personnel decision."  Id. at 542,
  522 A.2d  at 750.  The employee in Furno was denied such information when
  his employer refused to provide him with written notice of termination and
  the reasons therefore, as required by the contract.  Moreover, the employer
  told the employee that he was not entitled to the grievance procedure.  Id.
  at 540, 522 A.2d  at 748.  Under such circumstances, we held that the
  employee's failure to file a grievance was not a bar to his lawsuit.  In
  contrast, in the instant case, the March 15 letter articulated the reasons
  for Rich's nonrenewal and specifically advised him of his right to request
  a hearing pursuant to Article 21.9 of the Agreement.  We cannot agree that
  Rich was "prevented" from complying with the grievance procedure.  Indeed,
  if Rich wanted to challenge the procedure by which the decision was made,
  the March 15 letter told him how to do so.

                                     II.

       We turn now to Rich's constitutional claim.  Rich argues that the
  lower court erred in holding that (1) he does not have a property interest
  in his position because he is a probationary teacher, and (2) even if he
  had, that the board's procedure afforded him due process.

       Relying on Burroughs v. West Windsor Bd. of Sch. Directors, 138 Vt.
  575, 420 A.2d 861 (1980), Rich argues that he has a property interest in
  his teaching position notwithstanding

 

  his probationary status.  The board argues in response that probationary
  teachers do not have a property interest in their positions.  We need not
  resolve this issue.  Assuming arguendo that Rich does have a property
  interest in his position, we hold that he received all the process he was
  due.

       The essential elements of due process are notice and an opportunity to
  be heard.  See Cleveland Bd. of Educ. v. Loudermill 470 U.S. 532, 546
  (1985).  A public employee who has a property interest in his position "is
  entitled to oral or written notice of the charges against him, an
  explanation of the employer's evidence, and an opportunity to present his
  side of the story."  Id.  The employee must be afforded the opportunity of
  a hearing "at a meaningful time and in a meaningful manner."  In re Maher,
  132 Vt. 560, 563, 326 A.2d 142, 144 (1974); accord Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). 
  Teachers have "`not been denied due process while still employed at the
  same job and while adequate procedures remain to challenge and forestall'
  their termination."  Russell v. Harrison, 632 F. Supp. 1436, 1441 (N.D.
  Miss. 1986) (quoting Bignall v. North Idaho College, 538 F.2d 243, 246 (9th
  Cir. 1976)).  Nevertheless, as we have previously stated, "[t]he right to
  be heard is worth little unless one . . . can choose `whether to appear or
  default, acquiesce or contest.'"  Town of Randolph v. Estate of White, 8
  Vt. L.W. 51, 52 (1997) (citing Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 314 (1950)).  Rich argues that he was deprived of this choice.

       The undisputed evidence indicates that Rich had notice of the decision
  to terminate him and the reasons for that decision.  In making this
  determination, we consider not only the contents of the March 15 letter,
  but also whether Rich had notice from other sources.  See Aronson v.
  Gressly, 961 F.2d 907, 909-10 (10th  Cir. 1992) (letter stating charges and
  possible action following several meetings to discuss charges sufficient
  notice).  Having attended the March 15th meeting to discuss issues
  concerning the renewal of his contract, Rich had knowledge of his potential
  nonrenewal and the reasons why nonrenewal was being considered.

 

  Rich received the March 15 letter in response to his decision to reject the
  proffered negotiation. The letter stated, "I am writing to notify you that
  you will not be receiving a contract for employment for the 1994-95 school
  year . . . your duties as a classroom teacher will expire as of June 30,
  1994."  Under these circumstances, we agree with the trial court that Rich
  had adequate notice that he would not receive a new contract and the
  reasons for this decision.  See In re Gregoire, ___ Vt. ___, ___, 689 A.2d 431, 435 (1996) (notice of charges and knowledge that conduct could lead to
  dismissal sufficient for due process); Aronson, 961 F.2d  at 909-10.

       We also conclude that Rich was provided with an opportunity to be
  heard.  Not only did Rich enjoy a statutory and contractual right to a
  hearing, the March 15 letter from the superintendent explicitly informed
  Rich of these rights.  Having chosen not to avail himself of the appeal
  procedures until approximately one month after the deadline, Rich "cannot
  now claim a denial of due process."  Hanton v. Gilbert, 36 F.3d 4, 7 (4th
  Cir. 1994); see also Hockney v. School Comm. of Lynn, 747 F.2d 50, 52 (1st
  Cir. 1984) (teacher procedurally defaulted and lost right to hearing);
  Brickner v. Voinovich, 977 F.2d 235, 238 (6th Cir. 1992) (employee neither
  brought proceeding nor demonstrated why available procedure would not
  satisfy due process); Russell, 632 F. Supp.  at 1442 ("Since the plaintiffs
  did not pursue their opportunity for a hearing, they cannot now complain
  that they were denied due process.").

                                    III.

       Rich's final argument on appeal is that the lower court erred in
  granting summary judgment to the superintendent on Rich's civil rights
  claims under 42 U.S.C. § 1983 because defendant's motivation in
  recommending nonrenewal was a disputed issue of fact.  The trial court
  concluded that there were no disputed issues of fact and that the
  superintendent was protected by qualified immunity, but its reasons are not
  entirely clear.  We agree with Rich that defendant's motivation in failing
  to recommend renewal of his contract is a critical element of his First
  Amendment claim, and that issue remains disputed, precluding summary
  judgment.

       Rich's civil rights claims are premised on his assertion that the
  superintendent

 

  recommended the nonrenewal of his contract in retaliation for his
  exercising his First Amendment rights.  To establish a prima facie case,
  Rich must show that his speech (1) is entitled to First Amendment
  protection and (2) was a substantial or motivating factor in his dismissal. 
  See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
  (1977); accord Hanton, 36 F.3d  at 6-7.

       The first issue does not require a lengthy analysis.  Without
  expressing an opinion on the merits of Rich's claim, and taking the facts
  in the light most favorable to Rich, we believe Rich introduced sufficient
  evidence to show that his speech touched upon matters of public concern.
  See Grievance of Morrissey, 149 Vt. 1, 15-16, 538 A.2d 678, 687 (1987); see
  also Waters v. Churchill, 114 S. Ct. 1878, 1884 (1994); Connick v. Myers,
  461 U.S. 138, 146 (1983).  Rich's statement was made at a community forum,
  which was held to inform and involve parents about public school policies. 
  The speech criticized a basketball cut policy as inconsistent with other
  written policies of the board.  See Pickering v. Board of Educ., 391 U.S. 563, 571 (1968) (teacher's criticism of board's allocation of school funds
  addressed matter of public concern); accord Mt. Healthy, 429 U.S.  at 282,
  284 (dress code); Jeffries v. Harleston, 52 F.3d 9, 10 (2d Cir. 1995) (bias
  in public school curriculum).  This is not a situation in which a public
  employee took a public occasion to criticize a personnel decision or other
  internal administrative policy that applied only to employees.  See, e.g.,
  Connick, 461 U.S.  at 148 (employee's speech concerning discipline and moral
  was "mere extension[] of [her] dispute over her transfer to another
  [position]"); accord Hanton, 36 F.3d  at 7 (employee's speech "related to
  her personal dissatisfaction with . . . her employment").  The issue Rich
  addressed was one of interest to parents and students alike.  At the very
  least, Rich met his burden of production on this issue.

       The more important dispute between the parties is whether Rich's
  speech was a motivating factor of the superintendent's recommendation.  Two
  events underlie Rich's claim. The first is the statement, discussed above,
  at the community forum.  The second is Rich's threat, on March 8, 1994,
  that both he and a co-worker, Michael Pierce, would withhold

 

  teaching services if the superintendent refused to take action to eliminate
  what Rich alleged was the illegal use of software in his classroom.

       In response to the community forum event, the superintendent placed a
  disciplinary letter in Rich's file.  Even after Rich successfully grieved
  the letter, the superintendent wrote in the grievance report that, "The
  letter reflects the personal view of the Superintendent.  These personal
  views remain."  (emphasis added).  It was not until Rich's threat to
  withhold services that the superintendent made a negative recommendation on
  nonrenewal, but it is entirely possible that, as Rich alleges, the
  recommendation was motivated by the superintendent's views that Rich had
  improperly spoken out at a public meeting.  Indeed, Rich introduced
  evidence that, when asked for the reasons behind the nonrenewal, the
  superintendent mentioned only Rich's speech at the public meeting. 
  Moreover, the superintendent concedes that Rich's threat to withhold
  services resurrected his concerns about Rich's exercise of judgment and
  self-control, an issue central to his disapproval of Rich's speech at the
  community forum.

       Despite this evidence, the superintendent claims that there is no
  genuine factual dispute because he recommended the renewal of Rich's
  contract approximately two months after Rich's speech at the board meeting. 
  He argues that, in light of this fact, the trial court correctly determined
  that his decision to nonrenew Rich could not have been in retaliation for
  Rich's speech.  This argument overlooks that Rich was not required to show
  that the superintendent's decision was based entirely on Rich's speech; it
  is sufficient for him to show that his speech was a motivating factor of
  the superintendent's decision.  Notwithstanding the superintendent's
  favorable recommendation after the first event, we conclude that a jury
  could find that Rich's speech at the board meeting may have tipped the
  balance toward nonrenewal and was a motivating factor in the
  recommendation.  The trial court erred in resolving this factual issue on
  summary judgment.

       Citing Levinsky v. Diamond, defendant contends that an objective
  standard applies to his motives and, therefore, that the qualified immunity
  defense is available to him.  151 Vt. 178,

 

  190-91, 559 A.2d 1073, 1081-82 (1989).  He misunderstands the role of the
  objective standard in qualified immunity analysis.  Qualified immunity
  extends to individuals acting within the scope of their authority, acting
  in good faith, and performing discretionary acts.  Id. at 185, 559 A.2d  at
  1078.  For purposes of resolving qualified or "good faith" immunity, we
  apply the standard enunciated in Harlow v. Fitzgerald, 457 U.S. 800 (1982). 
  An official performing discretionary acts is generally shielded from
  liability for civil damages insofar as his conduct does not violate
  "clearly established . . . rights of which a reasonable person would have
  known."  Id. at 818; accord Sabia v. Neville, 165 Vt. 515, 521, 687 A.2d 469, 473 (1996). What the "official reasonably should have known" is
  measured by an objective test.  In other words, if the right is clearly
  established, then the official reasonably should have known of it, and the
  official's actual lack of knowledge will not bar suit.  Conversely, a suit
  is barred if the right is not clearly established, because an official
  cannot reasonably be expected to know that the law forbade conduct not
  previously identified as unlawful.  Thus, the defense is available even if
  the plaintiff shows that the official acted "with the malicious intention
  to cause a deprivation of constitutional rights or other injury."  Harlow,
  457 U.S.  at 815.

       This standard prevents exposing officials to the distraction and
  expense of defending themselves in the courtroom and it permits the
  resolution of many insubstantial claims on summary judgment.  Concern for
  the depletion and diversion of public officials' energies led the Court in
  Harlow to abolish the doctrine that an official would be deprived of
  immunity on summary judgment if the plaintiff alleged that the official had
  acted with malicious intent to deprive his constitutional rights.  See,
  e.g., Wood v. Strickland, 420 U.S. 308, 322 (1975).

       Here, defendant's motivation in not recommending renewal of
  plaintiff's contract is an essential element of plaintiff's claim that his
  constitutional rights were violated.  This issue is distinct from
  defendant's knowledge of the applicable law.  See Feliciano-Angula v.
  Rivera-Cruz, 858 F.2d 40, 45-46 (1st Cir. 1988).  Under these
  circumstances, we cannot accept defendant's version of the facts at face
  value and dismiss plaintiff's claim on immunity grounds.

 

  Otherwise, the "principal disputed question of fact, which forms the basis
  of the substantive claim, [would be] subsumed by the legal immunity inquiry
  and implicitly resolved by the court against the plaintiff when it
  concludes, on the basis of nothing more than pretextual assertions, that
  the allegedly unconstitutional conduct contravened no clearly established
  law."  Id. at 46 (quoting Note, Qualified Immunity for Government
  Officials: The Problem of Unconstitutional Purpose in Civil Rights
  Litigation, 95 Yale L.J. 126, 138 (1985)).  Such an interpretation would
  allow public officials to punish the exercise of First Amendment rights
  with impunity.  Id.; see also Gutierrez v. Municipal Court of S.E. Judicial
  Dist., 838 F.2d 1031, 1050-51 (9th Cir. 1988) (reaching same conclusion
  regarding claim of intentional discrimination); Martin v. District of
  Columbia Metro. Police Dep't, 812 F.2d 1425, 1432-33 (D.C. Cir. 1987) (same
  conclusion regarding Fifth Amendment rights).  Therefore, defendant's
  motive may not be disregarded as immaterial.

       Finally, defendant argues that even if Rich has carried his burden, we
  should consider whether Rich's actions were so disruptive to defendant's
  administration of a government workplace that the employer's interests
  should prevail.  See Waters, 114 S. Ct.  at 1890; Jeffries, 52 F.3d  at 13. 
  Although defendant makes a correct statement of the law, we decline to
  address this point because defendant did not submit any evidence concerning
  the issue of potential disruption below.  See Rankin v. McPherson, 483 U.S. 378, 388 (1987) (defendant bears burden to justify discharge).  Moreover,
  defendant's attempts to supplement the record on appeal are in violation of
  our rules.  V.R.A.P. 10(a); State v. Brown, 165 Vt. 79, 82, 676 A.2d 350,
  352 (1996).  We leave the issue of disruption to the trial court on remand.

       We conclude, therefore, that the trial court erred in granting summary
  judgment to defendant because the central issue on which Rich's claim
  depends -- the motivation of the superintendent -- remains disputed and
  could not be resolved, as a matter of law, on summary judgment.  See
  Feliciano-Angula, 858 F.2d  at 47 (summary judgment based on qualified
  immunity defense improper when disputed issue of fact); see also Sabia, 165
  Vt. at 523, 687 A.2d  at 474 (summary judgment not proper when existence of factual
  dispute).

       Affirmed in part and reversed and remanded in part for further hearing
  in accordance with this opinion.



                              FOR THE COURT:



                              _______________________________________
                              Associate Justice


--------------------------------------------------------------------------------
                                  Footnotes


FN1.  In light of today's holding, we need not decide whether notice
  of nonrenewal is valid under the Agreement when it is given prior to a
  board decision to nonrenew.  See Morton v. Essex Town Sch. Dist., 140 Vt.
  345, 348, 443 A.2d 447, 448 (declining to decide validity of discharge when
  teacher failed to follow grievance procedure).