Vukadinovich, Brian v. Bd School North Newt ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1625
Brian Vukadinovich,
Plaintiff-Appellant,
v.
Board of School Trustees of North
Newton School Corporation, Ary J.
Nelson, Bonnie J. Storey, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 00 C 37--Allen Sharp, Judge.
Argued September 10, 2001--Decided January 22, 2002
Before Posner, Kanne, and Evans, Circuit
Judges.
Kanne, Circuit Judge. After the North
Newton School Corporation ("School")
terminated his employment, plaintiff
Brian Vukadinovich brought a lawsuit
against the Board of School Trustees of
the North Newton School Corporation
("School Board") and various school
officials under 42 U.S.C. sec. 1983.
Vukadinovich alleged that the defendants
violated his First Amendment rights by
firing him in retaliation for his
exercise of free speech and that his
termination hearing violated the
Fourteenth Amendment, as it did not
comport with principles of due process.
The district court granted summary
judgment in favor of the defendants,
finding that Vukadinovich was fired for
insubordination and neglect of duty, and
not in retaliation for exercising his
First Amendment rights. The court also
granted summary judgment in favor of the
defendants on Vukadinovich’s Fourteenth
Amendment claim, finding that his
termination hearing afforded him due
process. We affirm.
I. History
A. Vukadinovich’s Dispute with School
On January 9, 1996, the School hired
Vukadinovich as a teacher in the
Industrial Arts/Technology Department and
as the head coach of the boys’ basketball
team. Shortly before the 1999-2000 school
year, Vukadinovich wrote a letter to
Superintendent Louis Lindinger
complaining about his coaching salary and
demanding a renegotiation of his
contract. On October 8, 1999, the School
presented Vukadinovich with a contract to
coach the boys’ basketball team at the
same salary that he had made the year
before. After Vukadinovich refused this
offer, the School hired someone else to
coach the team at the same salary offered
to Vukadinovich.
This course of events spurred
Vukadinovich to approach the local media,
decrying the manner in which the School
and Superintendent Lindinger had treated
him. For example, on November 2, 1999,
the Rensselaer Republican published a
letter written by Vukadinovich, in which
he called Superintendent Lindinger a
liar, accused him of using "fear and
intimidation tactics," and stated that
"Lindinger will indeed answer for his
lies and refusal to follow the laws." On
November 10, 1999, the Newton County
Enterprise published a letter written by
Vukadinovich, in which he accused
Superintendent Lindinger of "ruining the
school corporation" and launched personal
attacks against him. By December 1999,
the scope of Vukadinovich’s attacks
expanded, as he now accused School Board
members of "living high on the hog" and
criticized School Board members for
spending taxpayer money on business
trips. Over the next few months, the
local papers continued to publish
Vukadinovich’s letters, in which he
attacked Superintendent Lindinger’s high
salary and the way that the School Board
spent money.
On February 11, 2000, the Newton County
Enterprise published a letter from the
School Board, in which the School Board
responded to Vukadinovich’s accusations.
The School Board noted that "it was not
until Mr. Vukadinovich had a contractual
dispute over the boys high school
coaching position that he ever had the
desire to be an ’educational gadfly’ for
our community." The School Board’s letter
also pointed out that Vukadinovich had
been involved in similar disputes with
previous employers, had engaged in
similar letter writing campaigns, and had
filed (and lost) lawsuits after he was
discharged.
B. Vukadinovich’s Termination
In December 1999, after Vukadinovich had
already written many letters critical of
the defendants, Principal John Larson
gave him a positive job-performance
evaluation. Shortly thereafter, however,
technology consultant Dan Grayson
informed the School that its Technology
Department, which was headed by
Vukadinovich, did not meet state
qualifications. Grayson issued a report
("Report") suggesting how the School
could improve the Department. In response
to the Report, on February 8, 2000,
Principal Larson directed Vukadinovich to
submit his lesson plan book and to
identify how it addressed the state
qualifications. Principal Larson made an
identical directive to the heads of three
other departments that also did not meet
state qualifications--the Math, Language,
and Special Education Departments. The
heads of these three departments all
promptly complied with Principal Larson’s
directive.
On February 13, 2000, Vukadinovich
responded to Principal Larson’s directive
by writing him a letter, in which he
refused to comply with the "harassing and
retaliatory request." On March 9, 2000,
Principal Larson issued a second letter
directing that Vukadinovich submit his
lesson plan to him by 8:00 a.m. on March
13, 2000. In response, Vukadinovich went
to Principal Larson’s office at 7:45 a.m.
on March 13, 2000, but Principal Larson
was not there. Assistant Principal Jerry
McKim signed an acknowledgment indicating
that Vukadinovich had attempted to give
his lesson plan book to Principal Larson,
but was unable to do so due to Principal
Larson’s absence.
The next day, Principal Larson wrote a
letter to Vukadinovich issuing a third
directive to him and reprimanding him for
failing to comply with his previous two
directives. Principal Larson directed
Vukadinovich to submit his lesson plan
and identify how it addressed state
qualifications by 8:00 a.m. on March 17,
2000. The letter also warned Vukadinovich
that his "failure to comply with this
directive [would] be viewed as a willful
refusal to comply with the directive, and
[would] result in further discipline
which could include a recommendation that
[his] teaching contract be cancelled for
insubordination." Not only did
Vukadinovich ignore this directive, but
he wrote a letter on March 27, 2000,
accusing Principal Larson of "adultery,"
"womanizing," and "massage parlor
visits."
That same day, Vukadinovich entered
Principal Larson’s office while Principal
Larson was meeting with another teacher,
David Hayes. Vukadinovich attempted to
give Principal Larson his lesson plan
book, but because he was meeting with
another teacher at the time, Principal
Larson told him to either leave the book
with him or to copy the book and leave
him a copy of it. As Vukadinovich refused
to do either of these things, Principal
Larson gave him back the lesson plan
book.
On March 28, 2000, Principal Larson
wrote a letter to Vukadinovich informing
him that he was recommending to
Superintendent Lindinger that
Vukadinovich be suspended with pay for
two days for failing to comply with his
directives. Principal Larson also issued
Vukadinovich a fourth directive
requesting that he submit his lesson plan
book and identify how it addressed state
qualifications by the end of the day.
Principal Larson waited in his office
until 5:00 p.m. that day, but
Vukadinovich never came.
In the March 28 letter, Principal Larson
also directed Vukadinovich to submit a
weekly progress chart identifying and
assessing student projects, the first of
which was due on April 10, 2000,
("Additional Directives"). Vukadinovich
failed to comply with the Additional
Directives; in fact, his only response
was to question Principal Larson’s
authority to issue such directives and to
attack Principal Larson’s character.
On April 10, 2000, Principal Larson
wrote a letter providing Vukadinovich
with the legal authority that vested him
with the power to issue directives. In
addition, he wrote to Vukadinovich: "As
you have been told repeatedly, your
refusal to comply with my directives
jeopardizes your continued employment and
this response does not waive or excuse
your refusal to comply with my directives
to date." Principal Larson delivered this
letter to Vukadinovich by hand in
Principal Larson’s office. Vukadinovich
became loud and unruly and refused to
leave Principal Larson’s office. At his
deposition, Principal Larson described
Vukadinovich’s behavior at this time as
"belligerent" and "abusive," bordering on
"threatening."
On April 10, 2000, Superintendent
Lindinger placed Vukadinovich on
administrative leave with pay. He also
directed Vukadinovich to comply with all
of Principal Larson’s prior directives.
Again, Vukadinovich failed to comply. As
a consequence of his willful refusal to
comply with the directives, on April 20,
2000, Superintendent Lindinger informed
Vukadinovich that the School Board would
be considering the cancellation of his
teaching contract at a termination
hearing.
On May 23 and 24, 2000, Vukadinovich’s
termination hearing was held in front of
all of the School Board members.
Vukadinovich was represented at the
hearing by Arthur Henderlog, Director of
the Indiana State Teachers Association
UniServe, and was given the opportunity
to call and cross-examine witnesses,
introduce evidence, and rebut the charges
against him. Superintendent Lindinger,
Principal Larson, Assistant
Superintendent Shari Miller, Sam Hills
(computer service technician at the
School), Denise Thrasher (teacher at the
School), and Vukadinovich testified at
the hearing. When asked why he did not
comply with the directives, Vukadinovich
said that he "had other things to do,"
that he did not believe that he should
have been required to do those things,
and that "if [he] would’ve done those
[things] . . . it would’ve been something
else and something else." At the
conclusion of the hearing, Superintendent
Lindinger recommended that the School
Board terminate Vukadinovich’s teaching
contract.
On May 25, 2000, the School Board voted
unanimously to terminate Vukadinovich’s
employment. The School Board found that
Vukadinovich’s failure to comply with
Principal Larson’s five directives
constituted "insubordination" and
"neglect of duty." Therefore, it found
that the School had "good and just cause"
to terminate Vukadinovich’s employment.
Lastly, the School Board concluded that
"the cancellation [of Vukadinovich’s
employment was] in the best interest of
the School Corporation."
C. Procedural History
On June 22, 2000, Vukadinovich filed a
pro se complaint in the Northern District
of Indiana against the School, various
School Board members, Superintendent
Lindinger, and Principal Larson, alleging
First and Fourteenth Amendment violations
under 42 U.S.C. sec. 1983. On August 11,
2000, Vukadinovich filed a "Verified
Petition/Motion for Reinstatement" and a
request for an evidentiary hearing,
seeking to have the School reinstate him
as a teacher. The District Court
characterized this motion as a motion for
a preliminary injunction and set an
evidentiary hearing for October 4, 2000.
At the preliminary injunction hearing,
Vukadinovich presented extensive
evidentiary materials and called
Principal Larson, Assistant Principal
McKim, David Hayes, Board Member Ary
Nelson, Superintendent Lindinger, and
Union President Denise Thrasher as
witnesses. Earl Cunningham, an employee
of the Michigan City Area Schools and
personal friend of both Vukadinovich and
of Principal Larson, assisted
Vukadinovich at the hearing. However,
neither Cunningham nor Vukadinovich
testified at the preliminary injunction
hearing.
On October 3, 2000, defendants filed a
Motion for Summary Judgment. Vukadinovich
submitted five affidavits ("Affidavits")
with his summary judgment brief that he
now claims precluded granting summary
judgment. One of the Affidavits was from
Earl Cunningham, who stated that Larson
had told him in February 2000, that
Superintendent Lindinger was placing a
lot of pressure on him to "get rid of"
Vukadinovich because of his newspaper
articles. Another was from Martin
Fernandez, who stated that he was
employed at the School from 1993 to 2000,
that he never maintained a lesson plan
book, and that he was never reprimanded
for not doing so.
On February 12, 2001, the district court
denied Vukadinovich’s request for
preliminary injunctive relief and granted
the School’s Motion for Summary Judgment.
The district court admitted the
Affidavits into evidence, but questioned
why the Cunningham affidavit had not been
offered at Vukadinovich’s termination
hearing nor at the preliminary injunction
hearing, given that Cunningham assisted
Vukadinovich at the latter hearing. The
district court found that Vukadinovich
was not fired in retaliation of his
speech, and that even assuming that he
was, he would have been fired anyway. The
district court also found that
Vukadinovich’s termination hearing did
not violate his procedural due process
rights. Vukadinovich now appeals the
district court’s judgment on both of
these issues.
II. Analysis
A. Standard of Review
We review a grant of summary judgment de
novo, viewing all of the facts and
drawing all reasonable inferences
therefrom in favor of the nonmoving
party. See Cent. States, Southeast &
Southwest Areas Pension Fund v. White,
258 F.3d 636, 639 (7th Cir. 2001).
Summary judgment should be granted if the
"pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,
show that there is no genuine issue as to
any material fact and that the moving
party is entitled to a judgment as a
matter of law." Cengr v. Fusibond Piping
Sys., Inc., 135 F.3d 445, 450 (7th Cir.
1998) (quoting Fed. R. Civ. P. 56(c)). The
primary purpose of summary judgment is to
dispose of claims that have no factual
support, and therefore, the nonmovant
must respond with affidavits or
otherwise, "setting forth specific facts
showing that there is a genuine issue for
trial." Albiero v. City of Kankakee, 246
F.3d 927, 928 (7th Cir. 2001) (quoting
Fed. R. Civ. P. 56(e)). The mere existence
of an alleged factual dispute is not
sufficient to defeat a summary judgment
motion. See Kuchenreuther v. City of
Milwaukee, 221 F.3d 967, 973 (7th Cir.
2000). The nonmovant will successfully
oppose summary judgment only when it
presents "definite, competent evidence to
rebut the motion." EEOC v. Sears, Roebuck
& Co., 233 F.3d 432, 437 (7th Cir. 2000)
(quotation omitted).
B. First Amendment Claim
We apply a three-step analysis in
evaluating Vukadinovich’s First Amendment
retaliation claim under 42 U.S.C. sec.
1983: 1) Was his speech constitutionally
protected? 2) If so, were the defendants’
actions motivated by his constitutionally
protected speech? 3) If Vukadinovich can
show that his constitutionally protected
speech was a substantial or motivating
factor in his termination, can the
defendants show that they would have
taken the same action in the absence of
his exercise of his rights under the
First Amendment? See Kuchenreuther, 221
F.3d at 973. If Vukadinovich can
establish the first two prongs, the
burden shifts to the defendants to prove
by a preponderance of the evidence that
Vukadinovich would have been terminated
regardless of his protected speech. See
Garrett v. Barnes, 961 F.2d 629, 632 (7th
Cir. 1992). If the defendants carry that
burden, Vukadinovich bears the burden of
persuasion to show that the defendants’
proffered reasons were pretextual and
that discrimination was the real reason
that the defendants fired him. See King
v. Preferred Technical Group, 166 F.3d
887, 893 (7th Cir. 1999). In the summary
judgment context, this means that
Vukadinovich has to show that a rational
finder of fact could infer that the
defendants’ stated reasons for firing him
were lies. See Alexander v. Wisconsin
Dep’t of Health & Family Servs., 263 F.3d
673, 683 (7th Cir. 2001). Because
Vukadinovich cannot show that the
defendants’ justifications were
pretextual, his claim fails.
Assuming, arguendo, that Vukadinovich
could prove the first two prongs, the
defendants claim that they fired him for
"insubordination" and "neglect of duty"
and that the record is replete with
evidence supporting their assertion. For
example, Vukadinovich failed to comply
with Principal Larson’s directives.
Principal Larson directed Vukadinovich to
submit his lesson plan book and identify
how it complied with state qualifications
five times and also made Additional
Directives to him. Vukadinovich refused
to comply with at least three of these
directives, made half-hearted attempts to
comply with the other two, ignored
Principal Larson’s Additional Directives,
and accused Principal Larson of
misconduct. These actions constituted
insubordination and we have consistently
held that insubordination constitutes a
legitimate justification for an adverse
employment action. See, e.g., Love v.
City of Chicago Bd. of Educ., 241 F.3d
564, 570 (7th Cir. 2001). Therefore,
because the defendants have shown that
they had legitimate justifications for
firing him, the burden shifts to
Vukadinovich to show that these
justifications were pretextual.
Vukadinovich can show pretext directly,
with evidence showing that retaliation
was the most likely motive for
terminating him. See, e.g., Worth v.
Tyer, 2001 WL 1657331, at *12 (7th Cir.
Dec. 27, 2001). He can also show pretext
indirectly, by showing that the
defendants’ proffered justifications were
not worthy of credence. See id. To show
that the defendants’ justifications were
not worthy of credence, Vukadinovich must
show that 1) the defendants’
justifications have no basis in fact, 2)
the justifications were not the real
reason for firing him, or 3) the
justifications were insufficient to
warrant the termination. See id.Vukadinovich claims that the Cunningham
affidavit shows that retaliation was the
most likely motive for terminating him.
In that affidavit, Cunningham states that
Principal Larson told him in February
2000 that Superintendent Lindinger was
placing a lot of pressure on him to "get
rid of" Vukadinovich because of his
newspaper articles. This affidavit does
not show pretext for several reasons.
First, it does nothing to weaken the
defendants’ assertions that they fired
Vukadinovich for "insubordination" and
"neglect of duty," and as we have
previously held, "[p]roof that the
defendant was brimming over with
unconstitutional wrath is insufficient
[to prove retaliation]; rather, the
plaintiff must demonstrate that the
challenged action would not have occurred
but for his constitutionally protected
conduct." Love, 241 F.3d at 569(quotations omitted). Additionally, the
fact that in February 2000, Principal
Larson made identical directives to three
other teachers offsets any inference that
he made directives to Vukadinovich
because of his letters to the newspapers.
Vukadinovich also cannot show pretext
via the indirect method. The record makes
clear that Vukadinovich failed to comply
with at least three of Principal Larson’s
directives and with the Additional
Directives, that he attacked Principal
Larson’s character, and that he behaved
in a "belligerent" and "threatening"
manner. Therefore, the defendants’
assertion that they fired Vukadinovich
for "insubordination" and "neglect of
duty" has "basis in fact." See Worth,
2001 WL 1657331, at *12. Next, the only
evidence that Vukadinovich has presented
to show that "insubordination" and
"neglect of duty" were not the real
reasons for his termination is his own
subjective belief, and this is not
sufficient. See Johnson v. Univ. of
Wisconsin-Eau Claire, 70 F.3d 469, 480
(7th Cir. 1995) (holding that plaintiff’s
"subjective belief that the action was
retaliatory and that the claimed reasons
were pretext does not alone create a gen
uine issue of material fact.").
Finally, "insubordination" has
consistently been held to be a sufficient
justification for an adverse employment
action. See, e.g., Love, 241 F.3d at 570;
Kahn v. United States Secretary of Labor,
64 F.3d 271, 279 (7th Cir. 1995).
Vukadinovich asserts that the Fernandez
affidavit shows that his actions did not
warrant termination. In that affidavit,
Fernandez only states that he never
maintained a lesson plan book while
employed at the School and was never
reprimanded for not doing so. However,
the situation here was different--
Vukadinovich was not fired for failing to
maintain a lesson plan book; he was fired
for failing to comply with directives.
Therefore, Vukadinovich has failed to
show that the defendants’ justifications
were pretextual, and summary judgment was
proper.
C. Fourteenth Amendment Claim
Additionally, Vukadinovich asserts that
his termination hearing before the School
Board violated his procedural due process
rights. The entirety of his argument with
respect to this claim is that because his
hearing was held in front of the same
School Board members that he criticized
in his letters, he was not afforded a
hearing before a neutral and impartial
arbiter. In order to prevail on this
claim, however, Vukadinovich must present
substantial evidence that the School
Board members acted with actual or
potential bias. See Head v. Chicago Sch.
Reform Bd. of Trustees, 225 F.3d 794,
804-05 (7th Cir. 2000). He has not done
so, and this claim is without merit.
III. Conclusion
For the foregoing reasons, we AFFIRM.