Ulichny, Susan v. Merton Comm School ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1947
SUSAN ULICHNY,
Plaintiff-Appellant,
v.
MERTON COMMUNITY SCHOOL DISTRICT,
MARK FLYNN, TIMOTHY F. O’NEILL, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 C 1144--Rudolph T. Randa, Judge.
Argued November 16, 2000--Decided May 7, 2001
Before CUDAHY, COFFEY, and EVANS, Circuit Judges.
COFFEY, Circuit Judge. On November 23, 1998,
Susan Ulichny filed a complaint in the United
States Federal Court for the Eastern District of
Wisconsin claiming that the Merton Community
School District in Waukesha County, Wisconsin, as
well as the other named defendants, violated her
14th Amendment rights under the United States
Constitution./1 The district court granted
summary judgment to the defendants, holding that
"Ulichny did not have a property interest in
performing the duties normally expected of a
school principal in Wisconsin." The judge also
concluded that
viewing the situation in its entire context as
well as the specific conditions objected to by
Ulichny, . . . no reasonable jury could conclude
that a reasonable person standing in Ulichny’s
shoes would have found the working environment so
intolerable as to leave no choice but to quit.
Ulichny was not constructively discharged and was
not deprived of her property interest in public
employment.
The district court judge further concluded that
"no reasonable jury could conclude that Ulichny
was defamed or stigmatized for the purposes of
the 14th Amendment by the statements of any of
the defendants . . . and thus she was not
deprived of her liberty interest in continuing
her career in public school administration."
Finally, the trial judge concluded that even if
there was merit to any of Ulichny’s claims, the
individual defendants were entitled to qualified
immunity./2 We affirm.
I. BACKGROUND
A. The Contract
In August 1995, the Merton Community School
District (MCSD) hired Susan Ulichny as the
District Principal with a contract for the 1995-
96 school year. As with all contracts of this
nature, Wisconsin Statute sec. 118.24 requires a
principal’s contract to be automatically renewed
for a subsequent term unless MCSD issues a notice
of non-renewal to the principal at least four
months prior to the contract’s expiration
date./3 Absent non-renewal, a principal’s
contract can be terminated only by mutual consent
of all the parties involved or if, after notice
and a hearing, "just cause" existed for the
principal’s removal.
Under the "RESPONSIBILITIES" section of the
contract between Ulichny and MCSD, Ulichny was to
perform at a professional level of competence the
services, duties and obligations required by the
laws of the State of Wisconsin and the rules,
regulations and policies of the Board which are
now existing or which may be hereinafter enacted
by the Board.
[and]
. . . to devote full time to the duties and
responsibilities normally expected of the
Principal’s position during the term of this
contract, and shall not engage in any pursuit
which interferes with the proper discharge of
such duties and responsibilities.
The School Board, in turn, had the
responsibility "to furnish [Ulichny] with a
written copy of all . . . rules, regulations and
policies now in effect or becoming effective
during the term of this contract," and to further
"provide [Ulichny] with a written job description
of the services, duties and obligations" of the
Principal position.
B. Ulichny’s First Year
When Ulichny was hired in August of 1995, Bruce
Connolly was the District Administrator for MCSD
and Ulichny was initially assigned to serve as
the K-8 Principal for the 730 students of the
Merton School. However, shortly after Ulichny was
hired, a new school building was opened and the
Merton School was separated into two
buildings/schools, K-5 (Elementary School) and
6-8 (Intermediate School).
As is the normal procedure for School
Administrators, Connolly formally evaluated
Ulichny’s performance as principal during her
first year. After reviewing the comments of
teachers and staff,/4 Connolly issued a formal,
written evaluation of Ulichny’s first-year
performance on September 23, 1996. Connolly
concluded that:
This evaluator has worked in supervising numerous
principals over the course of the past 20 years.
I would not characterize Mrs. Ulichny’s first
year as a completely successful one. While she
faced many issues and problems and dealt
successfully with most, some of the negatives
outweighed the positives. I hope that Mrs.
Ulichny takes to heart the recommendations and
suggestions made in the body of the evaluation to
work on her interpersonal relationships with
parents and staff. I also hope she works on
issues surrounding power and control. I genuinely
believe that if she would practice a less
judgmental style and use less positional
authority and power, she will be successful. I
expect Mrs. Ulichny to draft a plan for
improvement in each of the areas where
recommendations were shared. This plan for
improvement should be in writing. Together, we
will then draft a plan for improvement and
measurable outcomes for the 1996-1997 school
year. It would be my desire and hope that this
plan for improvement would mediate many of the
issues and concerns that occurred during the
first year. Since I will be leaving as of October
1st, I would encourage the hiring of an
independent evaluator to judge the process toward
the completion of established goals.
However, before any plan could be implemented to
improve Ulichny’s performance as a principal,
Connolly resigned his position as District
Administrator. Approximately four weeks
thereafter, Connolly was temporarily replaced by
Michael Budisch, who served as Interim District
Administrator.
C. Ulichny’s Second Year/5
Staff and teacher evaluations of Ulichny’s
second year also produced varying opinions of
Ulichny’s performance as principal; some believed
Ulichny to be doing an excellent job while others
felt equally as strongly that Ulichny was not
performing well. Although Budisch did not issue
a formal, written evaluation of Ulichny, he did
inform Ulichny, via a letter, that the School
Board, based primarily on the negative comments
of some of the teachers and staff, had issued a
preliminary notice of non-renewal on January 31,
1997. Budisch’s letter to Ulichny informed her
that the Board was considering the non-renewal of
her contract and that she was entitled to a
hearing before a final decision was made. She
requested a hearing and it was scheduled for
February 26, 1997.
At the private hearing before the School Board,
Ulichny presented the testimony of several
supportive staff members and teachers who spoke
at length concerning the criticisms that had been
leveled against her. Much of the discussion
focused on criticisms alleging a negative "school
climate," "strained relationships," and/or poor
communication between Ulichny and some members of
the staff and teachers.
After the hearing, the School Board notified
Ulichny on March 7, 1997, that it was not
renewing her contract. Despite this decision, the
Board did offer her a one-year contract for the
1997-98 school year as the Merton Intermediate
School Principal (Grades 6-8), and Ulichny
accepted the position.
After Ulichny’s acceptance of the offer, the
Board issued a written evaluation of her
performance during the 1996-97 school year. The
Board concluded, consistent with the criticisms
leveled against Ulichny by certain members of the
staff and teachers, that "Ms. Ulichny’s
leadership skills need a great deal of
improvement" and also "that a large group [of
faculty and staff] lacks confidence in her
abilities as a principal." The School Board cited
"school improvement, school climate, leadership,
and interpersonal relationships" as the areas
where there was "a significant need for
improvement on Ms. Ulichny’s behalf." The Board
suggested that Ulichny "register for classes and
workshops" to help her improve in those areas and
stated its "expectation . . . that there will be
measurable and significant improvement" in her
performance. The Board also directed that Ulichny
agree to a formal "plan of assistance" that
included "a process of continuous evaluation and
feedback on the areas previously noted" and
"goals and steps to accomplish these goals."
D. Ulichny’s Third Year and the Wedgie Incident
On July 1, 1997, Mark Flynn replaced Budisch as
the District Administrator. Immediately after
Flynn assumed the District Administrator
position, he prepared a formal assistance plan
for Ulichny, dated August 7, 1997, which
identified four areas for improvement--school
climate, leadership skills, interpersonal skills,
and communication skills. Additionally, Flynn set
goals and actions for Ulichny to perform, and set
a timeline in which he expected these goals and
actions to be accomplished. Flynn’s plan required
weekly meetings between Flynn and Ulichny in
order that he might monitor her progress in team
building skills and healthy communication.
Additionally, Flynn was supposed to prepare
quarterly written progress reports evaluating
Ulichny’s performance and development in order
that Ulichny could continue to improve as a
principal and the Board could monitor that
improvement.
On October 14, 1997, before Flynn prepared any
of the quarterly progress reports, approximately
six 7th and 8th grade students physically and
violently assaulted another boy on the
playground: code named "a wedgie." According to
the district court’s findings,
this was not a quick "grab and release" wedgie,
a childhood prank between friends that even the
Court remembers. This particular "wedgie" was of
a very aggressive variety, i.e., there were 5-6
kids against 1, they forced their victim to the
ground, they pulled so hard on his underwear that
he was lifted into the air and dropped back to
the ground, and his underwear tore in two places.
The victim ran away crying. In short, this was
not playful behavior between friends; it was a
mean-spirited act of cruelty intended to
humiliate the child at issue.
(Emphasis added).
Before deciding on any course of action,
Ulichny called District Administrator Flynn and
informed him of the "wedgie" incident and she
proposed calling the sheriff’s department. Flynn
agreed with Ulichny’s suggestion and Ulichny
called Deputy Haizel, the school’s D.A.R.E.
officer./6
Once at the scene, Deputy Haizel spoke with
Ulichny, the students involved in the incident,
and some of the students’ parents. After his
investigation, Deputy Haizel issued each of the
students who had given the boy a wedgie a
citation for disorderly conduct./7 After the
deputy issued the citations, Ulichny notified the
parents of the students involved in the incident,
relayed the fact that the police had been called,
and advised them about the issuance of disorderly
conduct citations./8
E. Fallout from the Wedgie Incident
The "wedgie" incident garnered a great deal of
attention. Local newspaper stories reported
details of the incident, including the fact that
some of the parents felt that Ulichny had
responded inappropriately and in too harsh a
manner when calling the police. A petition was
circulated in the community requesting an
independent investigation into the handling of
the incident.
Although there were obviously members of the
community who felt Ulichny had mishandled the
matter, there were also a significant portion of
the community who supported Ulichny’s actions. In
fact, Flynn, who had approved Ulichny’s decision
to call the police, publicly supported Ulichny’s
actions. Also, Waukesha County Sheriff’s Captain
Thomas Lentz was quoted as saying, "[w]hen the
school requested our assistance, we responded,
and it is my presumption the incident had gone
beyond what was tolerable within the school."
Colleen Krantz and Linda Spice, Suspensions for
’Wedgie’ Upset Students’ Parents Citations in
Merton Middle School Incident Could Cost 6 Boys
$141, Milwaukee Journal Sentinel, October 25,
1997.
On November 6, 1997, while some members of the
community were still complaining about Ulichny’s
handling of the "wedgie" incident, Flynn issued
Ulichny’s first quarterly progress report. Flynn,
who had approved Ulichny’s proposal to call the
police to the school after the wedgie incident,
concluded that Ulichny "has demonstrated good
performance in her role as Principal" and noted
"her willingness, with results, to actively
participate in the improvement process thrust
upon her by the Board and the Superintendent."
Furthermore, the School District had an outside
consultant conduct a staff survey during the
month of December, 1997. The survey report stated
that there was an "improvement in the
relationship between Ms. Ulichny and the
professional teaching staff" and noted that,
while "some distrust remain[ed]," it was "on a
subdued level since the 1996-97 school year."
On December 12, 1997, Flynn gave Ulichny her
second quarterly progress report. In the second
report, Flynn concluded that "Susan continues to
improve as a principal. . . . Her improvement
orientation, her introspection, are exemplary."
Three days after this report, and in an effort to
assist the Board in making its decision regarding
the possible renewal of Ulichny’s contract, Flynn
submitted a confidential report to the School
Board regarding Ulichny’s contract status and the
progress of her assistance plan. The report
listed specific areas of strength, areas of
improvement, and areas for future growth.
Furthermore, Flynn recommended that Ulichny
receive a renewed contract for two years.
According to Flynn,
Mrs. Ulichny has earned a 2 year contract. My
impression was that I started with a first year
principal. Improvement has been substantial and
her improvement orientation will continue to help
her improve. Her performance has been good this
year, she has the potential to improve and has
served the district well.
. . . Many times there currently exists with the
employees and the community a propensity to make
Susan the issue, instead of children being the
issue. The support of a 2 year contract reduces
that propensity.
At this time, Flynn was aware of the propensity
among school employees and community members to
make Ulichny the scapegoat for many of the
problems. Flynn further recognized that if the
Board showed its support for Ulichny, in the form
of a two-year contract, the unwarranted finger-
pointing at Ulichny might be reduced. On December
15th, the Board, in a closed session, voted to
issue a two-year contract to Ulichny covering the
1998-99 and 1999-2000 school years.
F. The Board Remains Supportive
During a January 20, 1998 Board meeting, some
90 days after the wedgie incident, Ulichny’s
handling of the matter was again raised; some of
the parents still criticized Ulichny’s actions
while others spoke out in support of her exercise
of judgment. Like before, Flynn spoke in strong
support of Ulichny’s actions, stating that "Susan
. . . had my 100 percent support . . . [a]nd has
it to this day."
Like a dog gnawing on a bone, some parents
still could not let go of Ulichny’s handling of
the wedgie incident. When Jeffrey Musche, a
parent of a child in the School District, learned
that the Board had voted to extend Ulichny a two-
year contract, he complained (apparently to the
police) that the Board violated Wisconsin’s Open
Meetings Law, Wis. Stat. sec. 19.81 et seq.
(1999), by not informing the public or voting in
open session regarding Ulichny’s contract
renewal. After Flynn discussed the closed-session
vote with Waukesha County District Attorney Paul
Bucher (to whom Musche’s complaint was forwarded
and who concluded that the closed-session vote
was illegal), the Board met on February 16, 1998,
and voted to rescind the prior vote on Ulichny’s
contract.
After a group of parents voiced their
objections to the renewal of Ulichny’s contract
at the February 16, 1998 Board meeting, the Board
delayed a second vote on Ulichny’s contract. It
should be noted that parents at the meeting also
took issue with Flynn’s evaluations of Ulichny
and now added to their complaints alleged teacher
morale problems, teacher turnover, student
achievement, an unsettled teachers’ contract, and
delayed textbooks. As noted by the district
court, newspaper reports following the meeting
attributed the following position to Flynn
concerning Ulichny and/or the other issues
raised:
Superintendent Mark Flynn had completed Ulichny’s
evaluation. He has steadfastly upheld her
decision to call law enforcement to the school.
* * * * * *
[Flynn] went on to say that he shared some of the
concerns raised by the residents, including:
teacher morale, lack of trust, the public’s
regard for the administration, an unsettled
teachers’ contract, teachers’ regard for the
board and teacher turnover.
[Flynn] said there is a misperception as to why
some teachers have left the district. The reasons
are stated in correspondence the district has
received from the teachers. He did not elaborate
on the reasons. Flynn also addressed concerns
that had been raised about textbooks, students’
placement at Arrowhead High School and
curriculum. . . . [Flynn] added he is looking at
providing time for teachers to talk to each other
about educational strategies . . . .
Asked about parents’ complaints, Superintendent
Mark Flynn said: "I’m not going to substantiate
or deny them. It was these parents’ opportunity
to state their perceptions and that’s what they
did." Parents of the youths said administrators
overreacted by calling police. But Flynn said the
district acted appropriately.
[Emphasis added].
The newspaper articles also quoted School Board
President Isabel Brown as stating that, although
numerous parents who attended the meeting wanted
Ulichny removed, we probably "have more people
who want her to stay than want her out."
[Emphasis added].
G. School Administrators and the Board Abandon
Ulichny
The Board met in open session on February 19,
1998, to again discuss whether to renew Ulichny’s
contract. However, the deadline for providing
Ulichny with a preliminary notice of non-renewal
under Wis. Stat. sec. 118.24 had passed and the
Board was thus obligated to renew Ulichny’s
contract. Instead of merely renewing Ulichny’s
contract for a year, the Board voted "to continue
Susan Ulichny’s employment with the Merton
Community School District with a revised job
title and description beginning with the 1998-99
school year." On February 20, 1998, Flynn sent a
memo to all school district employees stating,/9
in part:
The school board was advised by legal counsel of
the fact that statutory timelines provided for
the renewal of the employment contract for Ms.
Ulichny whether the board acted or not. Given
that advice, the board acted to continue Ms.
Ulichny’s employment contract with the Merton
Community School District for the next 2 years
with a revised job title and description,
beginning with the 98-99 school year.
The board, after lengthy discussion, took this
action in response to: contractual obligations,
statutory requirements, staff input, board input,
parent input, and taxpayer interest. The board,
in the coming months, will approve revised job
duties for administrative staff that are
responsive to the input received from staff and
parents.
Newspaper articles quoted Brown and Flynn as
follows:
[Ulichny’s] new duties likely will include some
of the areas [she] now handles, such as
curriculum and technology, Brown said.
"She will be the principal for the balance of
this year," Brown said. "We’re hoping that the
rest of the year goes well . . . . We will be
working with Susan and the staff to see where her
abilities fit in best."
* * * * * *
Superintendent Mark Flynn said Friday that he
understands parents remain upset about the
contract extension. But he said the board’s
decision took into account both negative and
positive comments the district received about
Ulichny, the district’s contractual obligations,
a responsibility to taxpayers, and Ulichny’s 2
years of employment in Merton Schools.
"When the job responsibilities are finalized, I
think people will be able to readily see the
board is responding in the best interests of the
children of Merton schools," Flynn said. "This is
the start of a process of change."
However, an April 21, 1998, Milwaukee Journal
Sentinel article reported that the Board "could
strip [Ulichny] of her duties as principal at the
end of the school year" and quoted Board
President Brown as stating that Ulichny’s revised
job duties "could lead to her not being
principal." The Lake Country Reporter stated that
although Ulichny would be allowed to stay on at
the Merton Intermediate School for at least two
more years, "she may no longer be principal of
the school." The article went on to state that
"There will be some shifting of job
responsibilities," said superintendent Mark
Flynn. "She could feasibly not be the principal
of Merton Intermediate School."
* * * * * *
"I’m confident we can put together a plan that
will work for the children and be responsive to
their needs," said Flynn, adding that the Board
was trying to accommodate the needs of everybody
involved.
"The board feels that the plan is responsive to
the concerns of the board, staff and parents," he
said. "The division of duties is something that
will reflect the concerns that the community and
staff indicated they wanted."
Flynn said neither he nor the board had decided
on any specific changes to Ulichny’s job
description.
* * * * * *
Throughout the controversy, Flynn and the school
board have stood behind their principal, but at
a raucous meeting last week a number of parents
spoke out criticizing [Ulichny’s] conduct and
asking for her dismissal.
* * * * * *
[Flynn] did not describe the board as having been
"forced" to keep Ulichny on, but did say that
"the time had passed" when the board could have
asked her to leave.
Despite the fact that newspaper articles were
regularly appearing which quoted school
administrators as questioning Ulichny’s role as
school principal (it is most interesting to note
that these supposed concerns did not exist just
two months earlier when the Board voted to extend
Ulichny’s contract for two years), Ulichny
accepted her 1998-2000 contract on March 25,
1998. However, when Flynn asked Ulichny to assist
him in drafting her revised job duties, she
refused. This, in our opinion, was a matter of
poor judgment on the part of Ulichny because she
passed up the opportunity to put her input in the
now-inevitable changes. In spite of the fact that
Ulichny stated that she felt she was capable of
performing all the current duties of her
position, Flynn drafted, without Ulichny’s input,
the proposed changes and provided her with a copy
of the "proposed job description and title
changes" just 72 hours before the new job
description was to be presented at the April 20,
1998, School Board meeting.
In his plan, Flynn recommended that he become
the Intermediate School Principal in addition to
being the District Administrator. Mike Budisch,
who was previously the K-3 Primary School
Principal, would serve as the K-5 Principal.
Ulichny would assist Flynn in the administration
of the Intermediate School, while retaining her
salary and the title of School Principal.
However, she was divested of the specific
authority to perform many of the duties which she
had previously performed, such as the direct
supervision of employees and student discipline.
Upon receipt of the new job description,
Ulichny’s attorney wrote a letter to the School
Board and stated that the proposed changes
violated: 1) her contract; 2) Wisconsin law; and
3) her federal due process rights. Ulichny’s
attorney also claimed that if the School Board
considered Flynn’s proposed changes in an open
session or released the proposed changes to the
public, the School Board would be violating
Ulichny’s "due process and/or liberty interest"
rights in her reputation.
The Board saw fit not to respond to this letter
and held the April 20, 1998, meeting in open
session (reporters and several community members
were in attendance). At the meeting, Flynn’s
proposed changes were "briefly discussed." The
Board did not vote on the proposed changes, but
scheduled a meeting for May 18, 1998, to vote on
the proposed job changes. However, prior to the
meeting, Ulichny served a "Notice of Claim and
Claim on the Clerk of the Merton School Board,"
which reasserted the claims made in her
attorney’s letter to the Board. In response to
the Notice, the Board removed the scheduled vote
on the proposed job changes from its formal
Agenda for the May 18th meeting. Instead, the
Board held a closed session meeting "to confer
with legal counsel and receive advice concerning
strategy to be adopted with respect to litigation
which is likely to occur."
After Ulichny sent the Notice, Flynn began
sending memos to Ulichny criticizing various
perceived lapses in her performance./10
Additionally, Flynn failed to prepare and file
the March 1 and June 15 quarterly progress
reports despite the fact that they were set forth
in the assistance plan put in place when Ulichny
was re-hired for the 1997-98 school year. It is
important to note that Ulichny did not recall
ever receiving such critical memos from Flynn in
the past. It is also important to note that
Ulichny’s previous two performance reviews
(before her job duties were revised) had been
very positive.
Despite Flynn’s either contrived or careless
failure to prepare and file the remaining
quarterly progress reports, he did prepare a
year-end evaluation of Ulichny’s performance on
July 7, 1998. In the evaluation which he never
discussed with Ulichny, Flynn radically and not
surprisingly altered his evaluation of Ulichny
and cited regression in many "critical areas"
since Ulichny’s first two quarterly progress
reports. Flynn further concluded that Ulichny’s
performance "if not reversed, will result in a
short-term, unsuccessful employment relationship
with the Merton Community Schools." It should be
noted that even at this time newspaper reports
were still reflecting a divided community. For
example, an article in the Milwaukee Journal
Sentinel stated:
Those who wrote in favor of Ulichny said she is
the victim of a vocal minority that is
manipulating the School Board.
Parents Greg and Lisa Overholt wrote to the board
saying Ulichny is "a very professional and caring
person."
"Unfortunately, as part of our human nature, you
will hear more often and more loudly the voices
of discontent. . . . We urge you to understand
that those who are complaining speak for
themselves only and do not speak for the
community as a whole," the Overholts wrote.
A school counselor, P.J. Sanders, wrote to the
board that Ulichny had turned a "turbulent
atmosphere" at the school into a "sense of calm,
a sense of orderliness."
Even the Delafield police chief weighed in on the
matter, although he doesn’t live in the district.
"I believe Principal Ulichny acted appropriately
when she notified the Sheriff’s Dept. about the
’wedgie’ incident; and while I do not think the
police should be called for every shoving match
or disruptive act a student might get involved
in, I think it very likely that school
administrators do not call the police as often as
they should," Chief Jack Arndt wrote.
Letters against Ulichny were equally passionate.
"Morale of teachers, staff and students is the
lowest I’ve seen in the last eight years. . . .
Our curriculum leaves a lot to be desired,"
parent Sandy Wegner wrote to the board. "We have
lost some of the best teachers we ever had
because of their problems with Mrs. Ulichny."
Wrote Russell and Cindy Hauser: "There is an
overwhelming feeling in this community that our
intermediate school is in disarray and that is a
direct reflection of the problems with our
principal." One parent, whose name was censored
from the letter by district officials, said
Ulichny, by calling police in the playground
incident, "stripped the parents of the right to
discipline their own children."
Mike Johnson, MERTON SCHOOLS ’Wedgie’ Incident
Shows Rift in Community Parents Take Sides Over
Principal’s Performance, Milwaukee Journal
Sentinel, March 19, 1998.
On August 3, 1998, Flynn sent Ulichny a memo
and stated that "[c]oncrete changes" were going
to take effect in the upcoming 1998-99 school
year. The changes were as follows:
Under the category of "Visibility/Supervision,"
Ulichny was required to be on the playground for
a half hour before school, in the lunch room and
on the playground for all three lunch periods of
the Intermediate School, in the halls when the
7th and 8th graders changed classes, and in the
halls and outside school during school dismissal
and bus departure.
Under "Employee Supervision," Flynn was
responsible for the supervision and evaluation of
all teachers and Ulichny would only "assist with
scheduling issues" and would be "assigned
specific teacher evaluations . . . [to]
participate in."
Under "Student Discipline," Ulichny would handle
student discipline in grades 4-6, while Flynn
would handle discipline in grades 7-8 "and all
suspension/law enforcement situations."
Under "School/Community Newsletter," Ulichny and
Flynn would work together to "set a schedule and
contents" for the school newsletter.
Under "NCA and Curriculum Evaluation," Ulichny
would "provide the administrative leadership in
these 2 areas."
Under "Intermediate Advisory Council," Flynn
would work directly with the advisory council,
and Ulichny "may participate if [Flynn] deem[ed]
it appropriate, but not in the beginning."
Under "Support," Ulichny was "expected to
support and carry out in spirit and letter, the
positions, policies, and directions of the school
board and superintendent . . . [a]greement with
the decision is not relevant."
On August 5, 1998, Flynn and Ulichny (along
with their respective counsel) met to discuss the
changes in her job responsibilities. According to
Flynn’s notes, he and/or district counsel raised
issues concerning Ulichny’s job performance,
including her failure to progress in inspiring
trust, lack of attendance at special events, lack
of judgment, and noncompliance with directives.
Flynn also elaborated on some of the
responsibilities he would be assuming in light of
Ulichny’s new job description. For example, in
the area of "Student Discipline," Flynn stated
that he would assume a "mentoring role on a
temporary basis in grades 7-8" and that Ulichny
would handle grades 4-6 "except special education
and suspensions." Flynn described his "mentoring
role" as one in which he would, at his sole
discretion, "handl[e] some cases, others handled
as a team, others with consultation, and some
delegated to [Ulichny]." Additionally, in the
area of "Employee Supervision," Flynn also stated
that he would assume a "mentoring role"
concerning "the supervision of all employees at
the Intermediate School, for day-to-day purposes
as well as evaluation purposes." Flynn described
his "mentoring role" as one in which he, again at
his sole discretion, "exclusively handl[ed] some
matters/cases, others handled as a team, others
with consultation and some delegated to
[Ulichny]." Flynn explained that these changes
"were being taken because the building and its
morale were viewed to be in crisis, and some
modeling or teaching for [Ulichny] was needed in
light of the situation after [her] three years in
the district." Possibly the new description was
a last attempt by Flynn to save his own position
from a politically biased School Board.
At the beginning of the 1998-99 school year,
Flynn moved his office into the Intermediate
School and was directly across the hall from
Ulichny’s office. Furthermore, in spite of the
fact that Flynn approved and supported (as did
the Board) Ulichny’s decision to notify the
police after the violent assault by the six
children perpetrated on one single child, Flynn
presided over the first faculty meeting and
informed the teachers and staff that he would be
handling all discipline at the Intermediate
School and that he would perform all teacher
supervision and evaluations. A subsequent memo to
school staff informed them that they could
contact either Flynn or Ulichny with questions or
concerns, but stated that Flynn was their "direct
supervisor." Additionally, Flynn hired a teacher
for the school without conferring with Ulichny.
He also conducted staff meetings without
informing Ulichny of the meetings or what had
transpired at them. Flynn also dealt with staff,
parents, and students regarding day-to-day issues
at the school and Ulichny had to refer questions
from parents or staff to him.
On September 10, 1998, Ulichny asked Flynn
whether the current division of responsibilities
would continue indefinitely and Flynn responded
that they would. After Ulichny called in sick the
next day, Flynn ordered her to provide a doctor’s
note. The note Ulichny provided advised Flynn
that Ulichny was suffering from an unspecified
"medical illness" and that she was "to remain off
work until [her] condition is improved."/11
On September 30, 1998, Flynn sent Ulichny forms
to apply for a medical leave of absence. However,
Ulichny responded that she was not requesting
leave under the Family Medical Leave Act. On
October 19, 1998, Ulichny’s lawyer sent a letter
to the School District claiming that Ulichny had
been constructively terminated because her main
duties had been taken away and her job was,
therefore, unbearable.
Ulichny, at this time, filed a complaint in the
United Stated Federal Court for the Eastern
District of Wisconsin alleging that the School
District and the various other defendants had
violated her due process rights when they altered
her job responsibilities./12 As mentioned
before, the district court granted summary
judgment to the defendants because, based on the
law according to the trial judge, Ulichny did not
have a property interest in her job as school
principal and she was not constructively
discharged. The district court judge further
concluded that according to case law "she was not
deprived of her liberty interest in continuing
her career in public school administration."
Finally, the judge concluded that even if there
was merit to Ulichny’s claims, the individual
defendants were entitled to qualified immunity.
Ulichny appeals.
II. ANALYSIS
A. Standard of Review
We review the trial judge’s conclusions of law
and decision to grant summary judgment de novo.
Wright v. Illinois Dep’t of Corrections, 204 F.3d
727, 729 (7th Cir. 2000); Freedom From Religion
Found., Inc. v. City of Marshfield, 203 F.3d 487,
490 (7th Cir. 2000). We must keep in mind that
summary judgment is proper when 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." Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). In determining whether
a genuine issue of material fact exists, we must
review the record in the light most favorable to
the plaintiff and make all reasonable inferences
in her favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).
B. Property Right
Ulichny’s federal constitutional claim depends
on her having had a property right in continued
employment as the school principal. Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 538 (1985);
Board of Regents v. Roth, 408 U.S. 564, 576-78
(1972); Reagan v. United States, 182 U.S. 419,
425 (1901). If Ulichny does have a such a right
in her position as school principal, the School
Board could not terminate her without due
process. Memphis Light, Gas & Water Div. v.
Craft, 436 U.S. 1, 11-12 (1978); Goss v. Lopez,
419 U.S. 565, 573-74 (1975). In evaluating
Ulichny’s claim on appeal, it is important to
understand that property interests are not
created by the United States Constitution.
"Rather they are created and their dimensions are
defined by existing rules or understandings that
stem from an independent source such as state
law--rules or understandings that secure certain
benefits and that support claims of entitlement
to those benefits." Roth, 408 U.S. at 577; see
also Paul v. Davis, 424 U.S. 693, 709 (1976).
Accordingly, federal property interests under the
14th Amendment usually arise from rights created
by state statutes, state or municipal regulations
or ordinances, and contracts with public
entities. Furthermore, "property interests
subject to procedural due process protection are
not limited by a few rigid, technical forms.
Rather, property denotes a broad range of
interests that are secured by existing rules or
understandings." Perry v. Sindermann, 408 U.S.
593, 601 (1972) (internal citations and
quotations omitted). Finally, a property right
"may be supplemented by other agreements implied
from the promisor’s words and conduct in the
light of the surrounding circumstances." Id. at
602 (internal citations and quotations omitted).
On appeal, Ulichny argues that her
contract and Wisconsin law establish her federal
property interest in performing the primary
duties of School Principal. This is so because
[her] contract provided that the District
employed her "in the position of School
Principal" and because Wisconsin case law
recognizes that if an employer refuses to allow
an employee to perform the primary duties agreed
upon, the employer has discharged the employee.
Ulichny further argues that while the Board had
the right to assign her additional duties, it did
not have the right to "take away the primary
duties of [her] position."
Two provisions of Ulichny’s contract cover the
duties/ responsibilities she was to have. The
first provision obligated Ulichny "to devote full
time to the duties and responsibilities normally
expected of the Principal’s position during the
term of this contract . . . ." (Emphasis added).
The second provision required that she "perform
at a professional level of competence the
services, duties and obligations required by the
laws of the State of Wisconsin and the rules,
regulations and policies of the Board . . . ."
With regard to Wisconsin statutes, Wisconsin
state law requires that "[t]he principal . . .
perform such administrative and instructional
leadership responsibilities as are assigned by
the district administrator under the rules and
regulations of the school board." Wis. Stat. Ann.
sec. 118.24(3).
The district court concluded that
the Wisconsin statutes do not support the
existence of a principal’s property interest in
performing specific duties. Neither does the
contract’s reference to "the duties and
responsibilities normally expected of the
Principal’s position . . . ." This provision,
placed within the "RESPONSIBILITIES" section of
the statute, simply sets forth what Ulichny’s
obligations were under the contract. It does not
place a reciprocal obligation on the Board or
prevent it--or the district administrator acting
with the Board’s authority--from determining what
the precise nature of Ulichny’s duties would be.
In Terry v. Woods, 803 F. Supp. 1519 (E.D.
Wisconsin 1992), the federal court in the Eastern
District of Wisconsin was asked to address a very
similar factual case. In Terry, the
employment contract, the basic source of any
property interest [the plaintiff] may enjoy as a
public employee, states that RUSD [Racine Unified
School District] "does hereby employ" Terry.
Terry agrees to perform his duties in accordance
with the rules set by the state and by RUSD. The
contract further provides that "in consideration
for services rendered," RUSD agrees to pay Terry
a biweekly salary, to contribute to a retirement
fund on Terry’s behalf, and to afford Terry
various other benefits, such as vacation time,
insurance, and so on. The term of the contract
was from July 1, 1989, to June 30, 1991. (Terry
Aff. at Ex. A.)
The state statute concerning the employment of
school administrators sets procedural
requirements for the renewal or nonrenewal of a
principal’s contract. Prior to notice of
nonrenewal, a principal must be given preliminary
notice of nonrenewal, and has the opportunity for
a hearing. Wis.Stat.Ann. sec. 118.24(7). The
statute also provides that a principal
shall perform such administrative and
instructional leadership responsibilities as are
assigned by the district administrator under the
rules and regulations of the school board.
Wis.Stat.Ann. sec. 118.24(3). Further, the
statute provides that a principal under contract
with any school board may not be employed by
another school board. Wis.Stat.Ann. sec.
118.24(6).
The parties have not described a principal’s
duties in precise terms. Nevertheless, like the
plaintiffs in Thornton, Terry says he takes pride
in his substantial responsibilities as an
administrator. (Terry Aff. at para. 15.)
Id. at 1523-24. Under this very similar factual
situation the trial judge went on to hold
that the circumstances surrounding Terry’s
employment do not indicate that he was "entitled"
to go to work. Most importantly, Terry’s contract
cannot be read as conferring any such
entitlement. The consideration flowing to him
under the contract is limited to his salary and
certain fringe benefits of an economic nature.
Although both the contract and state law require
Terry to perform certain duties, that requirement
does not directly impose any obligation upon
RUSD. Terry may have reasonably expected that he
would be able to do his work, but an expectation
by itself does not create a property interest.
Roth, 408 U.S. at 577, 92 S. Ct. at 2709.
Id. at 1524 (footnote omitted).
In Bordelon v. Chicago Sch. Reform Bd. of
Trustees, 233 F.3d 524 (7th Cir. 2000), a case
decided the day before oral argument in this
case, this court also addressed the property
rights a school principal has in his or her job.
In fact, in Bordelon, the school district not
only took away the "main" duties of the school
principal but also transferred the principal to
an administrative position in the Central Office.
Id. at 530. In Bordelon, this court held that the
school board was entitled to summary judgment on
the plaintiff’s claim for deprivation of his
property interest because he failed to offer any
evidence of economic harm as a result of the
Board’s conduct. Id. at 531.
However, in this case, Ulichny was not
transferred to another official position or
location. In fact, she retained her title as
principal and was paid the same wage. Ulichny
attempts to support her position by pointing to
amorphous phrases like "duties and
responsibilities normally expected of the
Principal’s position."/13 However, in Roth,
408 U.S. at 577, the Supreme Court held that
"[t]o have a property interest in a benefit, a
person clearly must have more than an abstract
need or desire for it. He must have more than a
unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it."
(Emphasis added). We can, of course, understand
Ulichny’s desire to perform the duties that she
reasonably believed constituted the position of
school principal. However, the fact that Ulichny
could very well have reasonably believed that she
should be able to perform certain duties as
principal, this expectation without more (either
in the caselaw, the job description, the
contract, or Wisconsin statutes) does not rise to
the level of a protectable property right under
the United States Constitution because, under the
terms of the contract and Wisconsin law, she does
not "have a legitimate claim of entitlement to
it." Id.
For example, in Ulichny’s appellate brief she
lists the following six duties she lost: 1)
enforce discipline; 2) participate in the
recruiting, screening, hiring, training,
assigning, and evaluation of professional and
support staff persons assigned to the school; 3)
evaluate and counsel all staff members; 4)
conduct staff meetings; 5) recommend to the
district administrator whether or not to remove
or discipline a staff member; and 6) delegate
authority. However, the right to perform any one
of these specific duties is neither enumerated in
Ulichny’s employment contract nor in any
Wisconsin state statutes. Consequently, relying
on federal and state law as we must, we are bound
to conclude that Ulichny does not have a
recognized property interest in performing
particular duties as a principal. This is not to
say that we are unsympathetic to Ulichny’s claim
and we believe she was the victim of a
politically-motivated School Board who failed to
support a school principal who not only acted in
the best interest of the children but also in the
best interest of the school, especially in this
day of ever increasing school violence and
litigation. However, "not all torts or contract
breaches committed by government entities are
constitutional or civil rights violations with
redress in federal court." Bordelon, 233 F.3d at
531./14
C. Constructive Discharge/15
Ulichny also argues that she was constructively
discharged when the Board and the District
Administrator revised her job duties and thus
made her working conditions so intolerable that
she was compelled to quit.
In support of her claim of constructive
discharge, Ulichny cites a litany of developments
and actions that allegedly created an intolerable
working environment. In her brief to this court,
Ulichny identifies six actions which support her
constructive discharge claim:
Flynn moved his office into the Intermediate
School directly across from Ulichny’s office and
took control of the school.
Over Ulichny’s objection, Defendants used an
overhead projector to graphically display to the
public that Ulichny would have supervisory duties
over no one.
Flynn assigned Ulichny the duties of a $10-per-
hour aide for almost four hours every day.
Flynn told Ulichny on at least two occasions
that she should get another job.
Ulichny had less authority than her staff with
respect to the discipline of students.
Defendants never informed Ulichny why they
stripped her of the main duties of School
Principal.
As the district court aptly noted,
[w]hat is clear from the foregoing litany of
complaints, and from the record as set forth in
the factual section, supra, is that the political
fallout from the handling of the "wedgie"
incident brought substantial pressures to bear in
the Merton Community School District and caused
a substantial amount of stress and humiliation
for both Ulichny, Flynn, the Board and the School
District as a whole. It is also clear that the
political fallout was something that neither
Ulichny nor the School District could control;
the story assumed a course and life of its own
through the efforts of several disgruntled
parents and an energized media (both locally and
nationally). It is finally clear that the Board--
after perhaps underestimating the shelf-life
and/or magnitude of the situation, and when
forced to consider the issue of Ulichny’s job
renewal in an open session with public input--
quickly surmised that the political situation
required action to quell the storm. The action it
took . . . was to make Flynn the direct principal
of Merton Intermediate School and to revise
Ulichny’s job duties such that she was
essentially an assistant principal with reduced
responsibilities (at least initially) acting on
Flynn’s direction and guidance. Perhaps this was
unfair or even cowardly (considering the
undisputed strides Ulichny had made prior to and
for some time after the "wedgie" incident), and
certainly it was a setback for Ulichny . . . .
In support for her claim that she was
constructively discharged, Ulichny cites to
Parrett v. City of Connersville, 737 F.2d 690
(7th Cir. 1984). However, we are of the opinion
that Parrett provides no support for Ulichny. In
Parrett, a former chief of detectives was removed
and demoted and "given a windowless room to sit
in that formerly had been a storage closet. The
room had a desk and chair but no other furniture
and no telephone." Id. at 603. Additionally,
Parrett spent his entire shift sitting at the
desk with nothing to do. Id. We are of the
opinion that Ulichny’s situation certainly was
far removed from the extreme situation in Parrett
and that her assignment did not rise to the level
of warranting a resignation as the only
alternative to avoiding or overcoming an
intolerable situation.
For example, she retained her same title and
pay as principal, and more importantly, she
continued to perform some but not all of the
duties and responsibilities usually assigned to
a principal. Ulichny cannot argue that she was
subjected to "enforced idleness" and/or faced the
distinct possibility that her professional skills
as a principal would substantially depreciate.
While it is undisputed that Ulichny lost direct
responsibility for some of the more significant
or traditional duties of a principal, she did
have a role in the administration of the school
and did, as described above, retain some
responsibilities and duties, unlike Parrett.
Rather than the circumstances being objectively
intolerable as required under the constructive
discharge doctrine, we are of the opinion Ulichny
must have believed that any changes in her duties
were unacceptable. This is evidenced by her
refusal to even participate or assist Flynn in
restructuring her job responsibilities, taking
the position that no changes were necessary and
thus suggesting that any change was unacceptable.
Not only is this position not objectively
reasonable, but it is important to note that
Ulichny passed up the opportunity to have input
and some possible influence concerning what
changes to her responsibilities would be made.
It is also possible that the Board gave Ulichny
different responsibilities in the hopes that
"sooner or later" she would quit. However, the
fact that Ulichny endured the changes for a short
span of only three weeks truly undermines her
constructive discharge claim./16 The duties to
which she was assigned, although clearly beneath
her level of experience and accomplishment, are
not totally unexpected of teachers and
administrators. We certainly understand her
frustration at the Board’s as well as District
Administrator Flynn’s abandonment of her, but
under the law she should have given the new
regime more time before quitting. To hold
otherwise would be to take the "objectively
unreasonable" requirement out of the constructive
discharge doctrine and place a premium on the
intent of the employer.
We are of the opinion that Ulichny’s act of
resignation was not the only means to avoid
objectively miserable working conditions. Rather,
it appears she was of the opinion that the School
Board was handling criticism of her, including
the "wedgie" incident, improperly and that any
changes in her contract were unnecessary.
Although her beliefs might very well have been
reasonable, the fact that the politically active
Board chose to go another way (even unreasonably)
does not make her working conditions so
intolerable that she was constructively
discharged.
D. Liberty Interest
Ulichny also claims that the defendants violated
her federal liberty interests by publicly making
false statements that she was untrustworthy and
should not be around children. She also claims
that her liberty interests were violated when she
was assigned "degradingly inferior" duties.
As we stated in Draghi v. County of Cook, 184
F.3d 689, 693 (7th Cir. 1999),
"The concept of liberty protected by the due
process clause has long included occupational
liberty--’the liberty to follow a trade,
profession, or other calling.’" Wroblewski v.
City of Washburn, 965 F.2d 452, 455 (7th Cir.
1992) (citing Lawson v. Sheriff of Tippecanoe
County, 725 F.2d 1136, 1138 (7th Cir. 1984)). The
cases have consistently drawn a distinction,
however, between occupational liberty and the
right to hold a specific job. The due process
clause of the Fourteenth Amendment secures the
liberty to pursue a calling or occupation, and
not the right to a specific job. Wroblewski, 965
F.2d at 455; Lawson, 725 F.2d at 1138. "It
stretches the concept too far to suggest that a
person is deprived of ’liberty’ when he simply is
not rehired in one job but remains as free as
before to seek another." Roth, 408 U.S. at 575,
92 S. Ct. 2701.
In her appellate brief, Ulichny initially argues
that Defendants-Appellees O’Neill and Flynn
stigmatized her by public comments they made. The
first comment Ulichny points to is when Flynn, at
a Board meeting, stated that he shared concerns
regarding Ulichny’s "lack of trust."
It is important to note that "not every remark
which may arguably affect one’s reputation
violates due process if made by a government
official without a hearing, for the fourteenth
amendment protects only against charges that
’might seriously damage [one’s] standing and
associations in [the] community.’" Hadley v.
County of DuPage, 715 F.2d 1238, 1245 (7th Cir.
1983) (quoting Lipp v. Bd. of Educ. of City of
Chicago, 470 F.2d 802, 805 (7th Cir. 1972)).
Thus, this court "has taken the position that a
mere charge of mismanagement is not enough to
give rise to a liberty interest requiring a
hearing." Id. "Liberty is not infringed by a
label of incompetence or a failure to meet a
specific level of management skills, which would
only affect one’s professional life and force one
down a few notches in the professional
hierarchy." Lashbrook v. Oerkfitz, 65 F.3d 1339,
1348 (7th Cir. 1995).
At the School Board meeting when Flynn stated
that he shared some of the parents’ concerns
regarding Ulichny’s "lack of trust," he stated
that he also shared some of the concerns
regarding teacher morale, the public’s regard for
the administration, an unsettled teachers’
contract, teachers’ regard for the board, and
teacher turnover. As such, Flynn’s comments can
hardly be called so damaging to Ulichny’s
reputation that she was prevented from obtaining
employment in her chosen field. Rather, we are of
the opinion that Flynn’s comments were nothing
more than a list of concerns that he had and not
a direct attack against Ulichny’s moral
character. See, e.g., Strasburger v. Bd. of Ed.,
Hardin County Comm. Unit Sch. Dist. No. 1, 143
F.3d 351, 356 (7th Cir. 1998). This is further
supported by the fact that at the same School
Board meeting, Flynn publicly supported Ulichny’s
decision to call the police during the wedgie
incident.
In her appellate brief, Ulichny also complains
that "another newspaper reported that O’Neill
said that parents have said that Ulichny ’lies’
and that Ulichny ’should not be allowed to
interact with kids.’" However, when O’Neill made
this statement he was not a member of the School
Board and, as such, these statement were not
statements "from the mouth of a public official."
Strasburger, 143 F.3d at 356. As such, O’Neill’s
statements, while not a member of the School
Board, cannot form the basis of Ulichny’s liberty
interest claim./17
E. Qualified Immunity
Finally, we hold that the individual defendants
are entitled to qualified immunity./18
In Hinnen v. Kelly, 992 F.2d 140, 142-43 (7th
Cir. 1993), we explored the parameters of
qualified immunity which we reiterate only
briefly here. Basic is that government officials
performing discretionary functions are not
subject to liability unless their actions violate
clearly established statutory or constitutional
rights then known to a reasonable officer. That
clearly established right must be one established
in a particularized sense. This requires more
than a general violation of the Fourth Amendment.
"It is an objective fact-specific question which
depends upon the clearly established law at the
time." Id. at 142 (citation omitted). It is not
necessary for liability, however, that an
identical factual situation had been legally
decided adverse to the officer. The officer’s
actions are to be considered in light of the
particular circumstances the officer faced at the
time. When the specific facts in the particular
instance are determined then those facts are to
be compared to the law existing at the time to
see if clearly established law was violated. "A
right is not clearly established if officers of
reasonable competence could disagree on the
issue." Id. at 143 (citation omitted). Officers
under this standard may be protected from
liability for objectively reasonable decisions,
even if wrong. Therefore, as we held in Jones v.
City of Chicago, 856 F.2d 985, 994 (7th Cir.
1988), qualified immunity is not forfeited unless
"no reasonable officer could have mistakenly
believed" that the conduct was unlawful.
Saffell v. Crews, 183 F.3d 655, 658 (7th Cir.
1999).
In this case, the individual defendants had
reason to believe that their actions, although
cowardly, were lawful. This is so because a
federal district court in Wisconsin had already
held that under a very similar factual situation,
the plaintiff had neither a property right in his
job as principal nor was his reputation so
infringed that his federal liberty interests were
violated. Terry, 803 F. Supp. at 1522-26.
Additionally, this court reaffirmed such a
conclusion in Bordelon, where we held that a
principal in Chicago, albeit for different
reasons, did not have a protectable property or
liberty interest in his position. Bordelon, 233
F.3d at 530-31. Given Terry and Bordelon, we
refuse to hold that a reasonable school official
would have known that reassigning Ulichny
different duties would have violated the 14th
Amendment and forced Ulichny to resign.
Even though we have concluded that as a matter
of law Ulichny’s claims cannot proceed in federal
court, we are sympathetic to her case. We are
certainly aware of the fact that teachers today
have a hard enough job attempting to instruct
young, undisciplined children without worrying
that parents, school administrators, or school
boards will abandon them as soon as their well-
intended actions become politically unpopular.
Those individuals given the awesome
responsibility of educating the children of this
nation must be allowed to protect their wards
while imposing the type of discipline they
reasonably deem proper without becoming a
scapegoat. It is very clear to this court that
the Merton School Board and the District
Administrator could have avoided this situation
by standing firmly in support of this school
principal whose actions were well calculated in
notifying local law enforcement authorities,
especially in this day of excessive litigation as
a result of growing concern over school violence.
Although Ulichny in all probability had room for
improvement as a principal, the Board and
Administrator would have been well advised to
stand firmly in support of her, especially given
the fact that after one young child was violently
assaulted by five or six children Flynn approved
Ulichny’s suggestion to call the police./19
Rather than serving the needs of the many, it
is evident to us that the Merton School Board, in
a cowardly fashion, abandoned a school principal
who was acting in the best interest of the
children when notifying the police. Had she not
notified law enforcement and the child had
suffered any type of serious injury, the school
district could very well have been involved in a
million dollar lawsuit for lack of proper
supervision on its school yard during school
hours.
Whether the Board abandoned one of its
principals for political reasons or because it
got tired of fighting a vocal minority is not our
concern, but it certainly did not display courage
or fairness. What is clear however is that
Ulichny, although obviously the sacrificial lamb
of the Board, does not have a remedy in federal
case law at this time.
The decision of the district court must be
AFFIRMED.
FOOTNOTES
/1 Ulichny also alleged several state law claims.
/2 The judge then remanded Ulichny’s state law
claims to Wisconsin state court.
/3 Wis. Stat. sec. 118.24 (1999) (School
district administrator), states, in relevant
part:
(1) A school board may employ a school district
administrator, a business manager and school
principals and assistants to such persons. The
term of each employment contract may not exceed
2 years. A contract for a term of 2 years may
provide for one or more extensions of one year
each.
* * * * * *
(3) The principal shall perform such
administrative and instructional leadership
responsibilities as are assigned by the district
administrator under the rules and regulations of
the school board.
* * * * * *
(6) The employment contract of any person
described under sub. (1) shall be in writing and
filed with the school district clerk. At least 4
months prior to the expiration of the employment
contract, the employing school board shall give
notice in writing of either renewal of the
contract or of refusal to renew such person’s
contract. If no such notice is given, the
contract then in force shall continue in force
for 2 years. Any such person who receives notice
of renewal or who does not receive notice of
renewal or refusal to renew the person’s contract
at least 4 months before the contract expiration
shall accept or reject the contract in writing on
or before a date 3 months prior to the contract
expiration. No such person may be employed or
dismissed except by a majority vote of the full
membership of the school board. Nothing in this
section prevents the modification or termination
of an employment contract by mutual agreement of
the parties.
(7) Prior to giving notice of refusal to renew
the contract of any person described under sub.
(1), the employing board shall give such person
preliminary notice in writing by registered mail
at least 5 months prior to the expiration of such
contract that the board is considering nonrenewal
of the contract, and that if such person files a
written request with the board within 7 days
after receiving such notice, the person has the
right to a hearing before the board prior to
being given written notice of refusal to renew
the contract. The written request for a hearing
shall include a statement requesting either a
private hearing or a public hearing before the
board. Section 118.22 does not apply to such a
proceeding. If a hearing concerning nonrenewal of
the contract is requested, the reasons upon which
the board is considering nonrenewal may also be
requested and the board shall furnish such
reasons before the hearing in writing.
/4 Teachers and staff filled out "feedback
forms" on their impressions of Ulichny’s
performance.
/5 The Board extended Ulichny’s original
contract.
/6 D.A.R.E. is an acronym for law enforcement’s
"Drug Abuse Resistance Education." D.A.R.E. is
designed to educate students about the dangers of
drug abuse and to create relationships between
law enforcement officers and students. Deputy
Haizel had a long relationship with the students
at Merton School.
/7 The disorderly conduct citations were later
dismissed on the condition that the boys
apologize to the victim and perform five hours of
community service.
/8 Ulichny also decided to suspend the students
for a short period of time. The misguided parents
of some of the children felt that the incident
was being blown out of proportion and threatened
that they were going to complain to the School
Board.
/9 The same basic information was also sent to
all the parents of students in Merton.
/10 Ulichny received poor evaluations (in the
form of a memo from Flynn) on May 12, May 15, May
22, June 1, June 7, August 3, and August 11,
1998.
/11 Ulichny was absent from work due to illness
from September 11, 1998 through November 19,
1998.
/12 Ulichny also alleged numerous state law
violations.
/13 We, like the district court, give no weight
to Ulichny’s attempt to create a question of fact
by submitting the affidavit of Charles Hilston,
a proposed expert in the operation of Wisconsin
school districts. Hilston’s affidavit basically
states that he believes that the duties taken
away from Ulichny are duties normally assigned to
a school principal and that school principals
usually have a right to perform those duties. Not
only does Hilston’s affidavit run contrary to the
contract and Wisconsin statutes (remember, sec.
118.24(3) grants the school board broad
discretion in assigning particular duties to a
principal), but the affidavit also fails to state
what school manuals, statutes, or recognized
educational treatises Hilston relied upon to
reach his conclusions.
/14 Ulichny also argues that the defendants
violated her property rights because they
discontinued her pay after she claimed that she
was constructively discharged. Such a claim is
meritless because there is no legal obligation to
continue to pay an individual who no longer works
for you.
/15 "The term ’constructive discharge’ refers to
the situation in which an employer, without
firing an employee, makes [her] working
conditions so miserable that it drives [her] to
quit." Hunt v. City of Makham, 219 F.3d 649, 655
(7th Cir. 2000).
/16 As courts have noted, "’[a]n employee who
quits without giving his employer a reasonable
chance to work out a problem has not been
constructively discharged.’" Yearous v. Niobrara
County Mem’l Hosp., 128 F.3d 1351, 1357 (10th
Cir. 1997) (quoting Tidwell v. Meyer’s Bakeries,
Inc., 93 F.3d 490, 494 (8th Cir. 1996)).
/17 Given the fact that this court has already
determined that Ulichny was not constructively
discharged, we need not address her argument that
her duties were so inferior that she was
stigmatized in violation of her federal liberty
interests.
/18 Of course, qualified immunity is unavailable
as a defense to the School Board. Brokaw v.
Mercer County, 235 F.3d 1000, 1022 n.18 (7th Cir.
2000).
/19 The actions of these school officials
certainly does not bring to mind the support and
leadership ideals made famous by individuals like
the late Vince Lombardi and George Patton.