Darlene Berg v. Gregory Bruce

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 96-1818
DARLENE BERG, *
*
Plaintiff-Appellant, *
*
v. *
* Appeal from the United
States
GREGORY BRUCE; INDEPENDENT * District Court for the
District
SCHOOL DISTRICT NO. 601., * of Minnesota
*
Defendants-Appellees. *
Submitted: November 18, 1996
Filed: April 23, 1997
Before BEAM, FRIEDMAN*, and LOKEN, Circuit Judges.
FRIEDMAN, Circuit Judge.
The United States District Court for the District of Minnesota**
granted summary judgment dismissing the appellant Berg's suit challenging
her discharge by the appellee Independent School District Number 601
(School District) as a third grade Minnesota public school teacher. She
contended that her discharge violated the Age Discrimination
*
DANIEL M. FRIEDMAN, of the United States Court of Appeals for the Federal
Circuit, sitting by designation.
**
The Honorable Michael J. Davis, United States District Court for the District of
Minnesota.
in Employment Act (Age Discrimination Act), 29 U.S. C. § 623, denied her
constitutional rights in violation of 42 U.S.C. § 1983, and violated
various Minnesota state law provisions. The district court held that Berg
had not provided sufficient evidence to entitle her to go to a jury on any
of her claims. We affirm.
I.
The underlying facts are not disputed. In the fall of 1992, Berg had
been teaching third grade for five years. The appellee Bruce was the
principal of her school and supervised and evaluated her. He and Berg had
disagreed about Berg's teaching methods and, as early as the 1988-1989
school year, they had had conflicts on the subject.
Prior to the 1992-1993 school year, the School District and Bruce
received fifteen requests from parents that their children not be assigned
to Berg's classroom. Although the school had received such requests in the
past, the large number concerned Bruce and he decided to examine Berg's
teaching and grading practices.
Bruce's son was a student in Berg's social studies class. Because
Bruce was dissatisfied with a grade Berg had given his son and after his
son told him that at least one student was failing her class, Bruce met
with Berg to discuss her grading practices and requested her to provide her
grade book to him. After reviewing the grades, Bruce asked Berg to reteach
and retest one of the units.
Berg spoke and wrote to the school superintendent Maryanne Schmidt,
stating that Bruce was making these demands because his son had difficulty
with the material. In her letter to Schmidt, Berg asserted that Bruce's
treatment of her constituted harassment and that "she would find a legal
way to deal with it." Schmidt responded that Berg and Bruce had a
personality conflict, and suggested that Berg have a third party present
whenever she met with Bruce.
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Bruce began frequently to observe Berg's classes. In early December,
1992, Bruce issued to Berg a notice of deficiency criticizing her teaching
style, classroom control and grading procedures. He made suggestions for
correcting each deficiency and indicated that he would visit Berg's
classroom weekly to check on her progress. Berg refused to discuss the
matter with Bruce and told him that she would be absent the following
Monday. Berg did not come to work on the following Tuesday or Wednesday
either, and did not notify Bruce of these absences. In January, 1993, Berg
responded to the deficiency notice with a letter to Superintendent Schmidt,
in which she asserted that the notice was "another attempt to discredit and
harass me." She stated that Bruce's "comments and critiques at this time
are motivated more by ill will than a genuine desire to improve the quality
of education." She requested that the superintendent order the principal
to apologize to her for the "unfounded criticism."
In January, 1993, Berg attended a meeting with Bruce to discuss her
job performance. Berg's attorney was present, but Berg refused to discuss
anything with Bruce. Bruce then wrote a letter to Berg criticizing both
her teaching and grading practices and indicating that her refusal to meet
with him or others about her deficiencies and other employment matters,
unless her lawyer or union representative was present, made even minimal
communication impossible. Berg again responded with a letter to
Superintendent Schmidt. In this letter, dated February 16, 1993, Berg
first asserted that Bruce's actions towards her were motivated by her age.
She stated that she "received orders from Mr. Bruce to do things that were
not required of other younger, less experienced teachers with less
seniority."
Bruce observed Berg's class thirteen times during the school year.
He made thirty written requests and scheduled nine meetings with Berg.
During one of Bruce's visits to her classroom, Berg refused to teach while
Bruce was present. She slammed the door after Bruce left the room, and
then left the building without informing Bruce. Bruce issued a written
reprimand to Berg for insubordination and unprofessional conduct. Berg
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continued to refuse to meet with Bruce or to cooperate with her supervisors
to correct the deficiencies.
On June 8, 1993, the school board terminated Berg for her refusal to
cooperate in evaluating her grading system and responding to her
deficiencies, insubordination, unprofessional conduct and unwillingness to
discuss job-related issues. When terminated, Berg was forty-nine years
old. The School District replaced her with a thirty-two-year-old teacher.
After unsuccessfully invoking available state administrative
proceedings, Berg filed the present district court suit against Bruce and
the School District. She alleged that her termination violated the Age
Discrimination Act, § 1983 of Title 42, and the Minnesota Government Data
Practices Act, Minn. Stat. Ann. ch. 13, and involved defamation, tortious
interference with contract, and negligent and intentional infliction of
emotional distress.
The district court granted the defendants' motion for summary
judgment and dismissed the complaint. In a detailed opinion, the court
discussed and rejected each of Berg's claims, ruling that she had not
produced sufficient evidence to support any of them. With respect to the
Age Discrimination Act claim, the court explained that "[Berg] submitted
a number of affidavits from fellow teachers, and parents. These statements
contain numerous conclusory statements and statements made without personal
knowledge. What is lacking in the affidavits are specific facts, made with
person [sic] knowledge that would support plaintiff's contention that
defendants discriminate against older teachers." The court further stated
that "[p]laintiff fails to meet the ultimate burden of presenting evidence
that raises a genuine issue of material fact as to pretext."
II.
In her appeal to this court, Berg repeats the arguments under both
federal and state law that she made in the district court. That court
fully considered and properly rejected
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her state law claims, and those claims do not warrant discussion here.
Accordingly, we shall address only Berg's arguments under the Age
Discrimination Act and § 1983. We affirm the district court's summary
judgment dismissing her state law claims on the basis of the opinion of
that court.
III.
A. In considering Berg's claims under the Age Discrimination Act,
we apply the standards and provisions governing "the proper order and
nature of proof" that the Supreme Court enunciated for employment
discrimination cases under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et. seq., in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and refined in Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248 (1981). Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1332 n.
5 (8th Cir. 1996) ("Although McDonnell Douglas is a Title VII case, the
framework it establishes applies with equal force to claims under the
ADEA").
Under this analysis the plaintiff has the initial burden of
establishing a prima facie case of discrimination, which "creates a
presumption that the employer unlawfully discriminated against the
employee." Burdine, 450 U.S. at 254. The burden of production then shifts
to the employer to rebut the presumption by producing evidence showing a
legitimate non-discriminatory reason for its action. Id. at 253. If the
defendant carries this burden, the burden shifts back to the plaintiff to
show that the employer's proffered reason is merely a pretext for
discrimination. Id. The plaintiff retains the burden of persuasion at all
times and accordingly the plaintiff must present sufficient evidence to
persuade the trier of fact that the adverse employment action was motivated
by intentional discrimination. Id.
To establish a prima facie case of age discrimination under McDonnell
Douglas, a plaintiff must prove that (1) he was in the age group protected
by the Age Discrimination
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Act (40 or older, 29 U.S.C. 631); (2) at the time of his discharge or
demotion he was performing his job at a level that met his employer's
legitimate expectations; (3) adverse employment action occurred; and (4)
following his discharge or demotion, plaintiff was replaced by someone with
comparable qualifications. See Hutson v. McDonnell Douglas, 63 F.3d 771,
776 (8th Cir. 1995) (quoting Bashara v. Black Hills Corp., 26 F.3d 820, 823
(8th Cir. 1994); see also O'Connor v. Consolidated Coin Caterers Corp., --
U.S.--, 116 S. Ct. 1307, 1309-1310 (1996) (outlining elements of prima
facie case for claims of race discrimination and age discrimination).
The district court correctly held that Berg had established a prima
facie case of age discrimination. As the court stated:
Plaintiff is a member of a protected class (she was
49 at the time of discharge), there appears to be
no dispute that she was qualified for the job of
third grade teacher, and was discharged from that
job. Although plaintiff does not address it in her
memorandum, presumably ISD 601 sought to hire
another teacher for the following school year with
the qualifications similar to plaintiff's.
The burden then shifted to the defendants to show a legitimate non-
discriminatory reason for terminating Berg. The defendants carried that
burden by showing that Berg's termination was justified by her
insubordination and unprofessional behavior. As the district court stated:
"The evidence is undisputed plaintiff refused to attend or speak at
meetings, refused to address matters outlined in the Notice Of Deficiency,
and failed to notify her employer prior to missing school or leaving early.
There is also evidence that plaintiff made threats against Bruce."
The burden then shifted back to Berg to show that the defendants'
assertion that she was terminated for cause was a pretext to cover age
discrimination. To defeat the motion for summary judgment, Berg was
required to "set forth specific facts showing that
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there is a genuine material issue [regarding age discrimination] that
requires a trial." Roxas v. Presentation College, 90 F.3d 310, 315 (8th
Cir. 1996). As the district court correctly held, Berg "does not point to
any evidence from which to infer that her age played a part in the events
that lead to this suit" and that "no evidence has been presented that
raises a genuine issue of material fact as to the existence of age animus
of the part of Bruce."
To support her contention that Bruce and the School District engaged
in a pattern and practice of age discrimination, Berg submitted affidavits
by former teachers containing general statements, but no detailed facts,
about alleged age discrimination. The affiants sometimes referred to
alleged incidents of which they had no personal knowledge. Berg also
alleges, but again without giving detailed facts, that younger teachers
were treated better than she was. Finally, Berg points out that seven to
ten teachers took early retirement in 1993. She failed to show, however,
that these retirements resulted from anti-age animus by Bruce or the School
District.
Berg's failure to present any specific factual evidence showing age-
based animus by Bruce or the School Board also is fatal to her claim that
this case should be analyzed as a mixed motives case under Price Waterhouse
v. Hopkins, 490 U.S. 228 (1989), in which "an employment decision [i]s ``the
product of a mixture of legitimate and illegitimate motives.'" Radabaugh
v. Zip Feed Mills, Inc., 997 F.2d 444, 448 (8th Cir. 1993) (quoting Price
Waterhouse, 490 U.S. at 247).
As the district court stated at the end of its discussion of the age
discrimination claim:
Granting all factual inferences in favor of
plaintiff, plaintiff's evidence does not raise
genuine issues of material fact with regard to age
discrimination. Defendants presented evidence
sufficient to establish plaintiff was terminated
for legitimate
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reasons. Plaintiff fails to meet the ultimate burden of
presenting evidence that raises a genuine issue of material
fact as to pretext. Likewise, in terms of a mixed motives
case, plaintiff fails to raise a genuine issue that age was a
motivating factor in her termination.
B. The district court's determination that the School District
terminated Berg for cause and not because of anti-age animus also is
dispositive of Berg's alternative claim under the Age Discrimination Act
that she was terminated in retaliation for the exercise of her rights under
that Act. She invoked 29 U.S.C. § 623(d), which prohibits an employer from
discriminating against an employee because the employee "has opposed any
practice made unlawful by this section, or . . . has made a charge, . . .
assisted, or participated in any manner in an investigation, proceeding,
or litigation under this chapter." According to Berg, she was discharged
in retaliation for her letters to the school superintendent complaining
about Bruce's treatment of her and consulting with the union about the
matter.
To present a prima facie case of retaliation under the Act, Berg must
show that "[s]he engaged in conduct protected under the ADEA; (2) [s]he was
subjected to an adverse employment action [by defendants] at the time of,
or after, the protected conduct occurred; and (3) there was a causal link
between the protected activity and the adverse employment action." Wentz
v. Maryland Cas. Co., 869 F.2d 1153, 1154-55 (8th Cir. 1989); see O'Bryan
v. KTIV Television, 64 F.3d 1188, 1193 (8th Cir. 1995). Assuming that
subsection (d) covers the activity upon which Berg relies, she has failed
to show the necessary "causal link" between that activity and her
discharge. Berg offers no proof to "undermine the overwhelming evidence"
offered by the School District and Bruce which led to the district court's
determination that she was terminated for insubordination and professional
misconduct. Cf. Schweiss v. Chrysler Motors Corp., 987 F.2d 548, 550 (8th
Cir. 1993) (awarding summary judgment to employer on retaliatory discharge
claim when employee failed to present evidence undermining employer's
proffered reason for the discharge).
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IV.
Berg contends that Bruce and the School Board violated 42 U.S.C. §
1983, which prohibits conduct under color of state law that deprives any
person of "any rights, privileges, or immunities" secured by the United
States Constitution. See, e.g., Adickes v. S. H. Kress & Co., 398 U.S.
144, 150 (1970). She alleges that the defendants violated her First
Amendment rights to academic freedom, to petition the government for
redress of grievances, and to remain silent.
The district court correctly granted summary judgment rejecting these
claims because, once again, Berg failed to present facts showing any
violation of her constitutional rights.
A. Berg argues that her "right to academic freedom" was improperly
burdened when Bruce, upset over a grade his son received, scrutinized
Berg's teaching and grading practices. She asserts that the First
Amendment constitutionally protected her right to assign grades as she saw
fit, without interference from Bruce. Academic freedom is designed to
"protect the individual professor's classroom method from the arbitrary
interference of university officials." Parate v. Isibor, 868 F.2d 821, 830
(6th Cir. 1989).
As the principal and Berg's supervisor, Bruce properly was concerned
after learning that numerous parents objected to their children being
assigned to Berg's class. His subsequent classroom visits and review of
Berg's teaching methods and grading practices was not arbitrary, but was
appropriate action to insure that one of his teachers was properly
performing her duties. Since there is no evidence that Bruce ordered or
attempted to get Berg to change any particular grade, including that of his
son, we need not consider whether the First Amendment gave Berg the right
to assign grades as she saw fit. Compare Parate (First Amendment protects
right to assign grades) with Lovelace v. Southeastern Mass. Univ., 793 F.2d
419, 425-426 (1st Cir. 1986) (no such protection).
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See also Keen v. Penson, 970 F.2d 252, 257-258 (7th Cir. 1992) (expressing
neither approval or disapproval of Parate but allowing a professor to be
disciplined for unprofessional conduct including his refusal to change a
grade).
B. Berg claims that she was sanctioned for exercising her right to
petition the government for redress of grievances. The basis of her claim
is unclear. If Berg contends that she was prevented from exercising her
right to petition, the short answer is that she did petition. The staff
attorney from the Massachusetts Education Association submitted an
affidavit that he represented Berg in various grievances.
If, alternatively, Berg claims that the School District retaliated
against her for the filing of her grievances by terminating her and thereby
impermissibly burdened her First Amendment right to petition, her claim
fails because she has not established the causal connection between her
discharge and the protected conduct. As we explained in rejecting Berg's
retaliatory discharge claim under the Age Discrimination Act, Berg was
properly terminated for insubordination and unprofessional conduct.
C. Berg contends that the defendants violated her alleged
constitutional right to remain silent when they treated her refusal to
discuss with Bruce her performance problems, or even to talk to him, as
insubordination and professional misconduct. She asserts that she was only
following her union's instruction not to discuss grievance- related issues
with Bruce or other school district officials unless a union representative
or her lawyer was present. Berg, however, had no First Amendment right to
refuse to talk to those officials at all about her classroom performance,
grading and attitude. The First Amendment did not authorize Berg to be
totally uncooperative, disrupt classes or obstruct discipline. See Connick
v. Myers, 461 U.S. 138, 154 (1983) ("The limited First Amendment interest
involved here [employee's right to speak about office policies] does not
require that [the employer] tolerate action which he reasonably believed
would disrupt the office, undermine his authority, and destroy close
working relationships."). The district court
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correctly granted summary judgment rejecting this claim.
CONCLUSION
The judgment of the district court granting summary judgment
dismissing the complaint is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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