Jefferson v. Jefferson County Public School System

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Jefferson v. Jefferson County Nos. 02-5621/6038
ELECTRONIC CITATION: 2004 FED App. 0067P (6th Cir.) Public School, et al.
File Name: 04a0067p.06
Argued: December 4, 2003
UNITED STATES COURT OF APPEALS Decided and Filed: March 4, 2004
FOR THE SIXTH CIRCUIT
_________________ Before: MERRITT, DAUGHTREY, and GIBBONS,
Circuit Judges.
NORMA JEFFERSON, X _________________
Plaintiff-Appellant, -
- COUNSEL
- Nos. 02-5621/6038
v. - ARGUED: J. Key Schoen, SALES, TILLMAN &
> WALBAUM, Louisville, Kentucky, for Appellant. Michael
,
JEFFERSON COUNTY PUBLIC Keith Kirk, WYATT, TARRANT & COMBS, Louisville,
-
SCHOOL SYSTEM ; STEPHEN Kentucky, for Appellees. ON BRIEF: J. Key Schoen,
- SALES, TILLMAN & WALBAUM, Louisville, Kentucky,
DAESCHNER, Superintendent - for Appellant. Michael Keith Kirk, Byron E. Leet, WYATT,
for Jefferson County Public - TARRANT & COMBS, Louisville, Kentucky, for Appellees.
School System; CAROLYN -
- _________________
MEREDITH , Director of
-
Employee Relations for - OPINION
Jefferson County Public - _________________
School System; GEORGE -
BELL, Director of Security - MERRITT, Circuit Judge. In this case brought under
Services for Jefferson County - 42 U.S.C. § 1983,1 plaintiff Norma Jefferson brought various
- federal due process claims against a group of state defendants,
Public School System; MAXIE -
as well as defamation and other state law claims.2 The
JOHNSON, Principal of -
Chenoweth Elementary -
School, - 1
Defendants-Appellees. - Although plaintiff’s constitutional claims were brought under the
Fourteenth Amendment, Section 1983 provides the usual remedy for
N
constitutional violations by state officials and her complaint was
interpreted as an action und er that statutory provision.
Appeal from the United States District Court
for the Western District of Kentucky at Louisville. 2
Plaintiff brought suit in state court against the Jefferson C ounty
No. 00-00044—Jennifer B. Coffman, District Judge. Pub lic Scho ol System, Superintendent Step hen D aeschner, Carolyn
Mered ith, Director of Employee Relations for the school system, George
Bell, Director of Security Services, Lisa Qureshi, an assistant teacher, and
1
Nos. 02-5621/6038 Jefferson v. Jefferson County 3 4 Jefferson v. Jefferson County Nos. 02-5621/6038
Public School, et al. Public School, et al.
primary questions before us arise from three of her federal in her job also fails because she has not shown that state
due process claims: (1) whether she received an appropriate remedies under Kentucky teacher tenure and breach of
predeprivation hearing before her five-day suspension and contract statutes and cases are inadequate or incapable of
alleged constructive discharge from her position as a school remedying the wrongs she alleges. Such a showing of
teacher in the Louisville public school system; (2) whether defective state remedies is required in procedural due process
she was deprived without due process of law of her cases like this one. Hudson v. Palmer, 468 U.S. 517 (1984);4
constitutionally-protected property interest in her job; and Vicory v. Walton, 721 F.2d 1062, 1065-66 (6th Cir. 1984).5
(3) whether she was deprived of a substantive liberty interest
– her asserted interest in her good name and reputation – Finally, we agree with the district court that plaintiff’s
without due process.3 Plaintiff also has a pending arbitration “liberty interest” due process claim for injury to reputation
proceeding arising under the collective bargaining agreement must be dismissed as well. As the Supreme Court made clear
governing her employment with the Jefferson County Public in Paul v. Davis, 424 U.S. 693, 708-09 (1976), there is no
School System. viable, free standing, federal due process claim arising from
injury to one’s reputation. Such a claim is viable only in
We agree with the district court that before plaintiff was
suspended and allegedly forced to retire she received an
appropriate predeprivation, right-of-reply hearing that 4
complies with the due process requirements for such hearings. In Hudson, the Supreme Court held that the
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 unauthorized intentional dep rivation of pro perty b y a state
(1985) (before termination, a public employee with a property employee does not constitute a violation of the procedural
interest in continued employment should receive requirements of the Due Process Clause of the Fourteenth
constitutionally adequate procedures, including “oral or Amendm ent if a meaningful [state] postdeprivation remedy for
written notice of the charges against him, an explanation of the loss is available.
the employer's evidence, and an opportunity to present his 468 U.S. at 533 .
side of the story" to ensure due process of law). In addition,
we agree with the district court that plaintiff’s procedural due 5
In Vicory, a proced ural due pro cess case, we held as follows:
process claim based on the deprivation of a property interest
Section 1983 was not meant to supply an exclusive federal
remedy for every alleged wrong committed by state officials.
Rather, the statute is a remedy for only those wrongs which
Hearst-Argyle Productions, Inc., the owner of a Louisville television offend the Co nstitution’s p rohib ition against property
station. Defendants removed the action to federal court. The claims deprivation without procedural due process. Thus we hold that
against Qureshi were remanded to state court and the television station has in § 1983 dam age suits claiming the deprivation of a property
settled with plaintiff; those two defendants are not parties to this appeal. interest without procedural due process, the plaintiff must plead
3
and prove that state remedies for redressing the wrong are
Plaintiff failed to include a copy of her complaint in the Joint inadequate. In a proce dural due process case under § 1983 , the
Append ix. In addition to constituting a violation of the rules for filings plaintiff must attack the state’s corrective procedures as well as
in our circuit, 6th Cir. R. 30 (f)(1)(B ), the lack of a co mplaint made it the substantive wrong.
difficult for this co urt to untangle p laintiff’s multiple, overlapping claims
and allegations. 721 F.2d at 1066.
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Public School, et al. Public School, et al.
combination with two other elements: “when there is some After the meeting, Johnson contacted Child Protective
injury to employment . . . in addition to damage to reputation Services about the allegations of child abuse and directed
and a subsequent denial of procedural due process to redress defendant George Bell, Jefferson County Public School’s
that injury.” In re Selcraig, 705 F.2d 789, 796 (5th Cir. Director of Security Services, to investigate the allegations.
1983). In the instant case, as the district court concluded, not Bell interviewed several students in plaintiff’s class, their
only is there no showing that state remedies for defamation parents, and Lisa Qureshi, plaintiff’s teaching assistant who
and improper discharge are inadequate, nonexistent or unfair, had first made the complaints. On January 22, Bell met with
but plaintiff has pending claims in state court that have yet to Johnson, plaintiff and plaintiff’s union representative, Ruby
be adjudicated and she may yet be able to bring other claims Fitzgerald, before any action was taken against her. At that
in state court that will adequately redress her injuries. In hearing, plaintiff was verbally informed of the allegations
addition, she has an arbitration proceeding that has apparently against her and she submitted a written response denying all
been stayed pending the outcome of this litigation. the allegations.
I. Predeprivation Due Process On January 27, 1999, Bell reported the results of his
investigation to defendant Carolyn Meredith, the school
It is necessary to understand the basic facts and the district system’s Director of Employee Relations. Bell concluded
court’s ruling on plaintiff’s entitlement to a predeprivation that some, but not all, of the allegations against plaintiff were
hearing before addressing her procedural due process and substantiated. On February 2, following review of Bell’s
liberty interest assignments of error. Plaintiff was a second- report by the school district’s Employee Practices Review
and third-grade teacher at Chenoweth Elementary School in Committee, plaintiff received a letter listing the specific
the Jefferson County Public School District. On January 18, improper conduct found by Bell’s investigation and informing
1999, a group of parents with children in plaintiff’s classroom plaintiff that she would be suspended for five days without
met to discuss allegations of improper conduct brought to pay, starting the next day. The superintendent of the
their attention by plaintiff’s teaching assistant, Lisa Qureshi. Jefferson County Public School System accepted Johnson’s
At the meeting, the parents agreed to meet at the school the decision to suspend plaintiff and notified the Board of
next day to confront school officials with their allegations. Education about the suspension as required.
One of the parents alerted a local television station about their
plans. The parents also contacted Kentucky Child Protective On February 5, 1999, two days into her suspension,
Services to report allegations of abuse. The next day, the plaintiff and her union representative met with Carolyn
parents met with Chenoweth principal, defendant Maxie Meredith and Minor Daniels, the Executive Director of
Johnson, and accused plaintiff of misconduct in the Business Affairs, to discuss where plaintiff would be assigned
classroom, including grabbing students by their arms or shirt following her suspension. Meredith presented plaintiff with
collars, using curse words, allowing students to watch a letter offering plaintiff a temporary assignment teaching
inappropriate television shows and allowing students to eat language arts at a different school in the system and stating
throughout the day. At the end of the meeting, several parents that she would be permanently reassigned the following
spoke with a local television reporter on camera. school year. It is not disputed that, instead of signing the
transfer letter, plaintiff submitted a letter at the end of the
meeting stating “I, Norma J. Jefferson, am submitting this
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Public School, et al. Public School, et al.
letter of retirement which will go into effect at the end of the the option of initiating a postdeprivation arbitration
1998-1999 contract year.” Plaintiff claims that the retirement proceeding under the grievance procedures of the teachers’
was coerced because she was forced to choose retirement collective bargaining agreement or bringing an action in state
because the transfer was an unacceptable alternative. court pursuant to the state teacher tenure statute, Ky. Rev.
Stat. Ann. § 161.790, and common law tort and contract
Kentucky Child Protective Services also conducted an theories.
investigation during the same time as Bell conducted his
investigation to determine whether plaintiff abused her II. Postdeprivation Procedural Due Process
students. Students, their parents, school personnel and
plaintiff were interviewed. Child Protective Services issued If satisfactory state procedures are provided in a procedural
its report two months later exonerating plaintiff of any due process case, then no constitutional deprivation has
criminal child abuse claims. The report also stated that the occurred despite the injury. Hudson, 468 U.S. at 533;
agency’s findings indicated that some of the students’ Vicory, 721 F.2d at 1065-66 (in procedural due process cases
comments were influenced by their parents and Qureshi. The claiming deprivation of property interest, plaintiff must attack
report criticized Bell’s investigation because (1) the parents the state’s corrective procedure as well as the substantive
were present when Bell interviewed the children, (2) the wrong). Plaintiff may not seek relief under Section 1983
investigation lasted only a week, and (3) it relied too heavily without first pleading and proving the inadequacy of state or
on the opinions and uncorroborated hearsay of Qureshi and administrative processes and remedies to redress her due
the complaining parents. process violations. Parratt v. Taylor, 451 U.S. 527 (1981),
overruled on other grounds, Daniel v. Williams, 474 U.S. 327
The collective bargaining agreement between the teachers’ (1986); Mansfield Apt. Owners Ass’n v. City of Mansfield,
union and the school board grants plaintiff a property interest 988 F.2d 1469, 1475 (6th Cir. 1993). The plaintiff must
in continued pay and benefits because it provides that a prove the inadequacy of state remedies as an element of her
teacher may only be suspended for “just cause.” See constitutional tort. See Marino v. Ameruso, 837 F.2d 45, 47
Loudermill, 470 U.S. at 538-39. We will assume for purposes (2d Cir. 1988) (“Although one need not exhaust state
of this appeal that the five-day suspension without pay and remedies before bringing a Section 1983 action claiming a
coerced retirement constitute the deprivation of a property violation of procedural due process, one must nevertheless
interest requiring a preloss hearing, which requires an prove as an element of that claim that state procedural
opportunity to respond before any deprivation, as well as remedies are inadequate.” (emphasis added)).
postdeprivation process where necessary. Id. at 542. If
extensive postdeprivation procedures exist, as they do here, Plaintiff had at least three options available to her once she
the predeprivation process need not be elaborate. received notice of the suspension: (1) proceed with the
detailed grievance procedures set out in the collective
Plaintiff conceded at oral argument that the predeprivation bargaining agreement governing the terms of her
hearing she received was adequate. She had notice of the employment; (2) bring suit in state court under Ky. Rev. Stat.
charges against her and an opportunity to respond both orally Ann.§ 161.790, or (3) bring suit in state court for breach of
and in writing, and she participated in at least one meeting the collective bargaining agreement.
with decisionmakers before her suspension. Plaintiff then had
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Public School, et al. Public School, et al.
The collective bargaining grievance procedures provide for action in state court, whether brought as a common law
several levels of review by school officials, culminating in the breach of contract claim or under Section 161.790 of the
availability of an arbitration hearing conducted by a neutral Kentucky statutes. Jefferson v. Jefferson County Bd. of
arbitrator chosen by the parties. Once a teacher chooses the Educ., 184 F. Supp. 2d 622, 625, motion to amend or alter
grievance process, she must exhaust that process before judgment granted in part and denied in part, 196 F. Supp. 2d
bringing an action in state court. The collective bargaining 515, 516-17 (W.D. Ky. 2002). We agree with the district
agreement does not prohibit a teacher from then pursuing an court. Plaintiff offers no plausible explanation as to why
action in state court. these remedies are inadequate.
Section 161.790 sets out a detailed process and timetable The fact that plaintiff was required, as an initial matter, to
for notification, reply and hearing procedures before and after choose between proceeding under the terms of the collective
a teacher has been terminated, suspended without pay or bargaining agreement’s grievance procedures or Section
publicly reprimanded. Ky. Rev. Stat. Ann. § 161.790(3)-(10). 161.790 of the Kentucky Revised Statutes does not make the
Section 161.790(10) clearly states that the procedures set state statute “unavailable” to her. Nothing in the collective
forth in subsections (3)-(9) are available to teachers who have bargaining agreement prevents a teacher from bringing an
been suspended without pay, such as plaintiff. The statute action under Section 161.790 at the conclusion of the
provides for the right to a hearing before an impartial tribunal, grievance process. The collective bargaining agreement states
the right to have counsel present at the hearing and the right that a teacher will not “be deemed to have waived or
to present and question witnesses. The teacher has the right otherwise prejudiced” her rights by first seeking redress under
to appeal the tribunal’s decision to the Circuit Court in the the collective bargaining agreement.
jurisdiction where the school district is located. Ky. Rev.
Stat. Ann. § 161.790(3)-(7). III. Liberty Interests
Plaintiff first chose to pursue the grievance process under The plaintiff asserts no substantive due process claim under
the collective bargaining agreement. On February 11, 1999, the incorporation doctrine based on violation of a specific
plaintiff filed a “Level I” grievance with the Board of provision of the First or any other amendment to the
Education containing multiple claims for relief. The Constitution. Plaintiff simply recites a combination of facts
grievance was denied four days later by the principal, Maxie that she claims constitutes a “substantive liberty interest” due
Johnson. Plaintiff then submitted a “Level II” grievance, process cause of action: (1) delay in her arbitration hearing;
which was denied on March 8, 1999, by the Director of (2) defamation, and (3) forced retirement or constructive
Employee Relations, Carolyn Meredith, as the discharge.
superintendent’s designee. The union, with plaintiff’s
acquiescence, then requested that her grievance be submitted Plaintiff first claims that defendants intentionally delayed
to arbitration. her arbitration hearing. Plaintiff learned in December 1999
that the arbitration had been set for late January 2000. The
The district court concluded that plaintiff failed to hearing never occurred, however, because on January 5, 2000,
demonstrate the inadequacy of the panoply of remedies plaintiff filed her complaint in Kentucky state court. Even
available to her, including arbitration and a postdeprivation though her arbitration was not completed, plaintiff claims she
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Public School, et al. Public School, et al.
had to file suit by that date to avoid statute of limitations harmed her reputation and caused her to be denied job
problems. As a result of filing suit, the arbitration hearing opportunities in her chosen field. The “liberty” interest that
was held in abeyance pursuant to an agreement signed by plaintiff claims was abridged is, essentially, that her freedom
school system officials and her own union representative. to pursue her chosen profession under the same conditions
Plaintiff claims that she did not agree to stay the hearing under which she had been working was curtailed, in part
pending her lawsuit and that the stay was imposed in through injury to her reputation caused by the false and
retaliation for filing a lawsuit. The school board and the stigmatizing publications. Assuming the combination of
union respond that plaintiff knew that it was standard arbitration delay, defamation and job loss, the question is
procedure to hold these types of hearings in abeyance once a whether these facts constitute a valid liberty interest claim
lawsuit is filed. Plaintiff’s own union president testified that and, if so, whether plaintiff must show that her state remedies
he told plaintiff’s attorney before the suit was filed that filing are inadequate.
a complaint would likely result in the hearing being held in
abeyance.6 In Zinermon v. Burch, 494 U.S. 113, 132 (1990), the
Supreme Court said that “the fact that a deprivation of liberty
Second, plaintiff claims defamation as another element of is involved . . . does not automatically preclude application of
her constitutional tort. The complaining parents had the Parratt rule” requiring a showing that state remedies are
contacted the media and, after the February 5 meeting, Lauren inadequate. In Zinermon, the Court held that we should look
Roberts, a spokesperson for the school system, described the to the nature of the deprivation complained of and the
allegations made against the plaintiff and stated that Bell’s circumstances under which the deprivation occurred to
investigation had substantiated some of them. Roberts determine whether the rule of Parratt applies to defeat a
informed the media that plaintiff had been suspended for five liberty interest claim. Subsequent to the Supreme Court’s
days and stated that plaintiff had acted unprofessionally and decision in Zinermon, we have held that Zinermon’s
inappropriately. Roberts also related to the media that eight extension of Parratt applies to some cases claiming
students had been removed from plaintiff’s classroom because deprivation of due process where liberty interests are
of the alleged abuse. Plaintiff claims that the defendants’ concerned. Wilson v. Beebe, 770 F.2d 578 (6th Cir. 1985) (en
failure to give her a timely arbitration hearing stigmatized her, banc) (arrestee brought suit against state police officer
seeking damages under § 1983 and under pendent state claim
of negligence and court held rule of Parratt applied to § 1983
6 suits alleging deprivation of a liberty interest); see also
Before the motion for summary jud gment was d ecide d, plaintiff Jackson v. City of Columbus, 194 F.3d 737, 750 (6th
moved to compel the production of 112 teacher arbitration cases brought Cir.1999) (police chief brought § 1983 claim against city
against the Jefferson Public School System between 1990 and 2002 for
the purpose of demonstrating that her arbitration hearing had been arising from his suspension and investigation into alleged
intentionally delayed. A magistrate judge conced ed the relevance of these misconduct and court held that a deprivation of liberty
doc uments to plaintiff’s claim of delay and granted the motion with some interest based on damage to good name and reputation does
restrictions. However, the district court judge granted summary judgment not automatically preclude application of Parratt rule),
to defendants on the federal claims before the documents were produced overruled on other grounds, Swierkiewicz v. Sorema NA, 534
and those documents were never produced. In light of our holding that
plaintiff’s claims fail as a matter of law, the appeal concerning the motion U.S. 506 (2002); Bacon v. Patera, 772 F.2d 259, 263-64 (6th
to compe l is moo t, as found by the d istrict court. Cir. 1985) (private investigator’s liberty interest was infringed
Nos. 02-5621/6038 Jefferson v. Jefferson County 13 14 Jefferson v. Jefferson County Nos. 02-5621/6038
Public School, et al. Public School, et al.
by damage to reputation and resulting loss of employment cost items and then to whether the amounts are reasonable
due to police conduct, but remand necessary to ascertain and necessary. Northbrook Excess & Surplus Ins. Co. v.
adequacy of state law remedies). Accord Hellenic Am. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991).
Neighborhood Action Comm. v. City of New York, 101 F.3d Under Rule 54(d) of the Federal Rules of Civil Procedure,
877, 880-82 (2d Cir. 1996) (following Parratt and Hudson, “costs other than attorneys’ fees shall be allowed as of course
due process rights held not violated where adequate to the prevailing party unless the court otherwise directs.” If
postdeprivation remedy was provided by New York law for authority exists to impose a cost, we reverse only for abuse of
city contractor barred from bidding on government contracts discretion. The district court awarded costs to the defendants
resulting in injury to liberty interest in good name and for removal fees and witness fees, mileage reimbursement and
reputation); Birkenholz v. Sluyter, 857 F.2d 1214, 1217 (8th copying materials related to depositions. Statutory authority
Cir. 1988) (state statute provided nursing director found exists for awarding all these costs under 28 U.S.C. § 1920.
negligent in care of patients with adequate postdeprivation
remedy to adjudicate any challenge to misconduct finding); Plaintiff argues that defendants cannot recover because they
Econ. Dev. Corp. of Dade County, Inc. v. Stierheim, 782 F.2d did not “prevail” on all their claims. We do not agree.
952, 954-55 (11th Cir. 1986) (contractor § 1983 action Because all of plaintiff’s federal claims have been dismissed,
against county and county employee for deprivation of due defendants are clearly the “prevailing party” in this action
process rights arising from loss of contract and attendant under Rule 54(d) and are entitled to the reasonable costs
statements made to press dismissed due to existence of awarded by the district court.
adequate state remedies to redress injury); In re Selcraig,
supra, 705 F.2d at 796 (discharged school official alleged due For the foregoing reasons, the judgment of the district court
process violations for damage to reputation and employment is affirmed.
and denial of name-clearing hearing).
Plaintiff has already filed multiple claims under the state’s
defamation law and pursued the grievance procedures under
the collective bargaining agreement. She is pursuing actions
in two other forums in addition to federal court. There is no
showing that the remedies there are inadequate. Kentucky
law provides plaintiff with a panoply of postdeprivation
remedies sufficient to satisfy due process. The district court
properly dismissed her claims of deprivation of property and
liberty interests.
IV. Costs
The district court ordered plaintiff to pay $5,239.90 as costs
to the defendants. When reviewing an award of costs on
appeal, we look first to whether the expenses are allowable