Ivey v. Yeager

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRED GUTHRIE IVEY, JR.,
Plaintiff-Appellant,
v.
J. FRANK YEAGER, Dr., both in his
personal capacity and in his official
capacity as Superintendent of the
Buncombe County Schools; THE
BUNCOMBE COUNTY BOARD OF
EDUCATION; M. WENDELL BEGLEY, in
his official capacity as Chairman of
No. 97-1627
the Buncombe County Board of
Education; CHARLES JOHNSON;
MICHAEL ANDERS; WILLIAM D.
WILLIAMS; GRACE BRAZIL; BRUCE
GOFORTH; TERRY ROBERTSON,
members of the Board of Education
of Buncombe County sued in their
official capacity as members of the
Board of Education,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-96-97-1)
Submitted: November 25, 1997
Decided: April 3, 1998
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Charles R. Brewer, Asheville, North Carolina, for Appellant. James
G. Middlebrooks, Brian D. Barger, SMITH, HELMS, MULLISS &
MOORE, L.L.P., Charlotte, North Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Fred Guthrie Ivey, Jr., appeals from the district court's grant of the
defendant's summary judgment motion in an action brought under 42
U.S.C. § 1983 (1994), the First and Fourteenth Amendments to the
United States Constitution and the North Carolina Constitution. Find-
ing no error, we affirm.
The gravamen of Ivey's complaint concerned adverse employment
actions allegedly taken in violation of his right to petition the Govern-
ment for redress of grievances. Allegedly, the adverse actions were
based upon Ivey's purported pursuit of a lawsuit and his refusal to
sign a release abandoning any legal claims he had against the Bun-
combe County Board of Education (the "Board") or any of its
employees.
Ivey was a tenured high school principal. In November 1994, Ivey
was informed by Yeager, the school superintendent, that a purchase
order prepared by Ivey may have been in violation of public school
law. A subsequent audit revealed that Ivey had violated a state crimi-
nal statute. Yeager offered Ivey three options: (1) he could accept a
demotion to a teaching position; (2) he could resign; or (3) he could
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face dismissal proceedings. In January 1995, after continued negotia-
tions and consultation with his attorney, Ivey requested a transfer to
a teaching position for personal reasons. Yeager accepted the terms
Ivey set forth in his request. Ivey's wife then wrote letters to members
of the Board informing them that her husband was pressured by
Yeager to request a transfer. Yeager then learned from a supporter of
Ivey's that Ivey had met with a new lawyer and discussed suing the
Board.
In February 1995, Yeager presented Ivey with a proposed modified
written agreement concerning the transfer and a written release of
claims against the Board. According to Ivey, Yeager intended on rec-
ommending that he be dismissed if he did not sign the documents. Of
concern to Yeager was Ivey's apparent contention that his request for
a transfer was not voluntary and the possibility of a law suit. Ivey
refused to sign the documents.
In March 1995, Ivey was informed that there were other improprie-
ties allegedly committed by him involving his oversight of the school
and he was given an opportunity to respond. In late March 1995,
Yeager informed Ivey of his intent to suspend him without pay and
to recommend to the Board that he be dismissed. He also rescinded
the transfer agreement because Ivey had contended that he did not
enter the agreement voluntarily. In April 1995, Ivey was presented
with a formal letter of immediate suspension. The grounds for Ivey's
suspension were upheld by a panel of the State Professional Review
Committee. After a hearing before the Board, Ivey was dismissed.
This Court reviews a district court grant of a motion for summary
judgment de novo. See Nguyen v. CNA Corp., 44 F.3d 234, 236-37
(4th Cir. 1995). A summary judgment motion should only be granted
if there is no genuine dispute as to an issue of material fact and the
moving party is entitled to judgment as a matter of law. Id. (citing
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)).
As the district court properly concluded, with regard to Ivey's
claim that his First Amendment right to petition the government for
redress was violated, Ivey failed to show that he was prevented from
speaking as a private citizen on matters of public concern. See
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Connick v. Myers, 461 U.S. 138 (1983); see also Rendish v. City of
Tacoma, 123 F.3d 1216 (9th Cir. 1997).
There is no indication that Ivey's pursuit of a civil lawsuit was
nothing more than a disgruntled employee seeking to air his griev-
ances. See Huang v. Board of Governors of Univ. of N.C., 902 F.2d
1134, 1140 (4th Cir. 1990). Furthermore, there is no indication that
the release chilled his opportunities to speak as a private citizen con-
cerning matters of public concern. See Luethje v. Peavine Sch. Dist.
of Adair County, 872 F.2d 352, 355 (10th Cir. 1989).
In addition, Ivey was provided with all the pre-deprivation process
that he was due. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 546 (1985). Insofar as Ivey asserts that Yeager ignored the pro-
cess by having predetermined the disposition, he is asserting that
Yeager's conduct was random and unauthorized, for which there were
adequate post-deprivation remedies. See Zinermon v. Burch, 494 U.S.
113, 115 (1990). Ivey's substantive due process claim will not be
reviewed by this Court because the source of the claim is a specific
constitutional guarantee. See Winfield v. Bass , 106 F.3d 525, 530 n.2
(4th Cir. 1997) (citing Graham v. Connor, 490 U.S. 386 (1989)); see
also Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion).
Finally, Ivey's state constitutional claims must also fail. A litigant
who asserts violations of state constitutional rights may bring an
action under the North Carolina constitution only if there is an
absence of state remedies. See Hughes v. Bedsole , 48 F.3d 1376, 1383
n.6 (4th Cir. 1995). North Carolina provides judicial review of a
Board's decision to dismiss a tenured principal. See N.C. Gen. Stat.
§§ 115C-40, 115C-325(n) (1983). In fact, Ivey initiated an action
under these provisions asserting the state constitutional claims raised
in the federal action. However, he withdrew that action prior to a
decision on the merits.
Accordingly, we affirm the district court's grant of summary judg-
ment in favor of the Defendants. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
material before the court and argument will not aid in the decisional
process.
AFFIRMED
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