United States Court of Appeals, Eleventh Circuit.August 15, 1990908 F.2d 149962 Ed. Law Rep. 28 (Approx. 16 pages)
908 F.2d 1499
United States Court of Appeals, Eleventh Circuit.
James D. STEWART, Plaintiff–Appellee,
v.
BALDWIN COUNTY BOARD OF EDUCATION; Laurens Jones; Carl E. Johnson; William L. Donaldson; L.E. Rockwell, M.D.; Ruth S. Underwood; J. Larry Newton, Defendants–Appellants.
This is a section 1983 case brought by James Stewart, a former employee of the Baldwin County Board of Education (“School Board”). Stewart was employed as a painter in the School Board's building maintenance department and had worked in that position for over three years. Stewart's complaint alleges that he was terminated for exercising his First Amendment freedoms of expression and association. The defendants (the School Board, Board members, and Superintendent) moved for summary judgment on the grounds of qualified immunity and Eleventh Amendment immunity. The district court denied the motion, and the defendants appealed. We conclude that the district court properly denied defendants' motion for summary judgment based on qualified immunity. We also affirm the district court's denial of Eleventh Amendment immunity to the School Board. Defendants also raise the claim that the School Board members are entitled to quasi-judicial absolute immunity; we conclude that the Supreme Court's decision in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), precludes such immunity.
I. BACKGROUND
A. Facts
On April 1, 1987, at approximately 3:35 p.m., Stewart, along with his co-workers in the maintenance department, attended a mandatory meeting of the maintenance shop employees to hear comments from the superintendent, Larry Newton (one of the defendants in this case), concerning a referendum on new school taxes in Baldwin County. At 4:00 p.m., the end of the normal work day, Stewart left the meeting, which was still in progress. It is not contested that Stewart's exit was quiet and nondisruptive; the Superintendent did not even know that Stewart had left the room until he was informed by Stewart's supervisor.
The next morning, Stewart's supervisor, Gherlin McDaniel, advised Stewart that Superintendent Newton wanted to see him. At that conference, Newton and McDaniel *1502 confronted Stewart with his early departure from the previous day's meeting. They suggested to Stewart that such conduct showed a lack of interest regarding the future of the school system and asked whether Stewart was interested in resigning from his job. Stewart refused to resign. It is not disputed that the conference was somewhat heated and that “voices were raised” during the course of the meeting. The parties do disagree, however, as to whether Stewart was insubordinate during the conference.
On Friday, April 3, 1987, McDaniel wrote a recommendation to Newton that Stewart be terminated from employment with the School Board. McDaniel's recommendation stated as reasons for the proposed termination that Stewart had demonstrated a lack of concern for the school system by leaving the April 1 meeting before it had been concluded; that during the conference of the previous day Stewart had been insubordinate by continually interrupting the Superintendent and refusing to be quiet; and that Stewart should be terminated for other good and just causes. Superintendent Newton subsequently forwarded to Stewart a written notice of proposed termination. This notice set out as reasons for the termination that Stewart had been insubordinate; had neglected his duties; had used vile and demeaning language in reference to a supervising administrator; and had demonstrated a lack of concern for the school system by leaving the meeting called by the Superintendent before its conclusion.
B. Procedural History
On March 29, 1989, Stewart filed this action under 42 U.S.C. § 1983, alleging that the School Board's termination of his employment violated his constitutional rights to freedom of expression and association. Stewart named as defendants the School Board itself; Superintendent Newton, sued in his individual and official capacities; defendants Johnson, Rockwell, and Underwood (current School Board members who participated in the decision to fire Stewart), sued individually and as members of the Board; defendants Jones and Donaldson (past School Board members who participated in the decision to fire Stewart), sued individually; and defendants Boothe, Sims, Williams, and Deese (current School Board members who did not participate in the decision to fire Stewart), sued as members of the Board. Stewart sought declaratory and injunctive relief, including reinstatement, backpay, and lost benefits; he also sought compensatory and punitive damages.
The defendants moved for summary judgment. Defendants claimed that the School Board and the members of the Board were entitled to absolute immunity under the Eleventh Amendment to the United States Constitution. They also argued that the individual Board members and the Superintendent, as sued in their personal capacities, were entitled to qualified immunity under the rule announced in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The plaintiff cross-moved for summary judgment, alleging that there was no factual dispute that Stewart was terminated because he departed early from the Superintendent's meeting, and that such activity was protected under the First Amendment. The district court, without opinion, denied both motions for summary judgment. Defendants now appeal the district court's denial of their motion for summary judgment; they bring their appeal under 28 U.S.C. § 1291.
This familiar standard presents two distinct questions of law for this court to consider in determining whether the district court erred in refusing to grant summary judgment. First, we must determine whether the legal norms allegedly violated by the defendants were clearly established at the time the defendants acted. Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.1988).1 If the law that the defendants allegedly violated was not clearly established, then the defendants are entitled to qualified immunity. See Daniel v. Taylor, 808 F.2d 1401, 1403 (11th Cir.1986) (holding that to be entitled to qualified immunity, defendants need only show that it is an unsettled question of law whether plaintiff had a right not to be detained without probable cause).
If the legal norms that the defendants are alleged to have violated were clearly established when the defendants' conduct occurred, then we must proceed to the second question of law in our analysis: whether the plaintiff has adduced evidence sufficient to create a genuine issue of fact as to whether the defendant engaged in conduct violative of the rights guaranteed by the clearly established law. Bennett v. Parker, 898 F.2d 1530, 1532–33 (11th Cir.1990); Rich, 841 F.2d at 1564. In addressing this question, we resolve all reasonable inferences of fact in favor of the plaintiff, as the plaintiff is the party who opposes the motion. Goddard v. Urrea, 847 F.2d 765, 767 (11th Cir.1988).
A. Implication of a Clearly Established Right
Stewart argues that he was discharged from his employment because he refused to embrace the School Superintendent's position on an upcoming tax referendum and because he objected to the Superintendent's campaigning among the employees on this issue. Stewart claims that he expressed his objections to the Superintendent's position by walking out of an employee meeting conducted by the Superintendent, held for the purpose of discussing the tax referendum. Stewart argues that his discharge violated his clearly established constitutional right to communicate his disagreement with the Superintendent and his clearly established right not to be coerced into attending, on his own time, a meeting advocating a given political position.
The Supreme Court, in Spence v. Washington, 418 U.S. 405, 410–11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974), set out the following test for determining whether symbolic acts constitute speech for First Amendment purposes: there must be (1) an intent on the part of the actor to convey a particularized message, and (2) circumstances surrounding the act such that the likelihood is great that the message will be understood by those who view it. Accord Monroe v. State Court of Fulton County, 739 F.2d at 571. Stewart alleges that by leaving the meeting early he sought to communicate to his fellow employees that he “wanted to be able to make up [his] own mind on the tax referendum issue without pressure from [the Superintendent]” and that “an employee [has] the right to go home when the whistle [blows] and not stay around on his own time to listen to the Superintendent talk about an upcoming *1505 election.” Affidavit of Stewart. He also claims that he had spoken with his fellow employees prior to the meeting and had told them he planned to leave precisely at 4:00 p.m., the normal quitting time. All of these factors demonstrate that Stewart intended his departure to communicate a particularized message—that he objected to being required to listen to a campaign supporting the tax referendum.2
In addition, Stewart's supervisors undoubtedly received the message that Stewart objected to the proposed increase of the school taxes, or at least that he objected to the manner in which the Superintendent presented the issue to the employees. It is apparent that Stewart's supervisors were offended not by the bare act of Stewart's departure from the meeting, but rather by the message he wished to communicate. In his deposition, Superintendent Newton stated that Stewart violated none of his duties when he left the meeting at 4:00; it was within Stewart's prerogative to leave at 4:00, if he so desired. Yet Newton called Stewart into his office to discuss Stewart's early departure from the meeting. Newton testified that “if a person didn't want to hear what—any information concerning the raising of two hundred and ten million dollars for a system, then he probably didn't have any real dedication to the system, and I wanted to know why he didn't have an interest in the system.” A fair inference from this testimony is that the Superintendent believed that Stewart's departure from the meeting signaled an unwillingness to support the Superintendent's position on the tax referendum and that any employee who did not support his position lacked concern for the system and could be called on the carpet for that reason.
We conclude that Stewart has adduced sufficient evidence to show that his departure from the Superintendent's meeting was intended to convey and did convey the message that he objected to the Superintendent's position and methods. Thus, Stewart's act of leaving the meeting was conduct “sufficiently imbued with elements of communication,” Spence, 418 U.S. at 409, 94 S.Ct. at 2730, to implicate the protections guaranteed by the First Amendment.
An employee's speech will be protected if it meets two requirements. First, the speech must be “fairly characterized as constituting speech on a matter of public concern.” Rankin, 483 U.S. at 384, 107 S.Ct. at 2896–97. The court examines the content, form, and context of the employee's speech to determine whether it addresses a matter of public concern. Id. at 384–85, 107 S.Ct. at 2897. Second, the speech must pass muster under the Pickering balancing test: the employee's interest in making the statement must outweigh “the interest of the state, as an employer, in promoting the efficiency of the public *1506 services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. at 1734–35quoted in Rankin, 483 U.S. at 384–85, 107 S.Ct. at 2896–98.
Stewart's speech in opposition to the Superintendent's position on the upcoming tax referendum clearly implicates a matter of public concern. Indeed, the Supreme Court in Pickering held that the issue of a proposed school tax was a matter of public concern. Pickering, 391 U.S. at 571, 88 S.Ct. at 1736.
The Pickering balance is similarly clear in this case; it is clear that Stewart's interest in making his statement outweighs any interest articulated by the Superintendent or the School Board in the efficient and effective operation of the school system's maintenance department. Stewart's speech raised the important issue of an employee's freedom to disagree with his supervisor on a matter submitted to a county-wide election. It is not contested that Stewart raised this issue in a nondisruptive manner. Moreover, the defendants cannot point to any disruption, inefficiency, or ineffectiveness in the general workplace that was caused by Stewart's speech. They do not allege that Stewart violated any of his duties by leaving the meeting when he did.
This case is remarkably similar to Pickering v. Board of Education, 391 U.S. 563, 571–73, 88 S.Ct. 1731, 1736–37, 20 L.Ed.2d 811 (1968), in which the Court held that a teacher could not be discharged on the basis of speech criticizing the School Board's sponsorship of a school bond referendum. The Court held that the school tax issue was one of public concern and that there was no showing that the teacher's speech had impeded the teacher's performance or interfered with the operations of the schools generally. While we recognize that the Pickering balancing test is necessarily conducted on a case-by-case basis, and thus will often result in a balancing of interests that is insufficiently one-sided so as to clearly establish the plaintiff's constitutional right, Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989), we conclude that such clarity is present in this case. Defendants can point to no interests which the squelching of Stewart's speech served in this case, and, in addition, there is Supreme Court precedent that is directly on point. We therefore conclude that, assuming that Stewart was discharged because of his speech (as we must assume in this summary judgment posture), Stewart clearly prevails on the Pickering balancing test.
We conclude, therefore, that Stewart has articulated a clearly established constitutional right to walk out of the Superintendent's meeting as an expression of opposition to the Superintendent's campaign in favor of the proposed tax referendum. The defendants could not reasonably have believed that it would be lawful to discharge Stewart for expressing opposition to the Superintendent's position on the tax referendum. Thus, we proceed to the second step of our analysis, i.e. whether Stewart has raised a genuine issue of material fact as to whether the defendants committed acts which violated the foregoing clearly established right.
B. Genuine Issues of Fact as to Whether Defendants Violated Stewart's Clearly Established Rights
It is not sufficient that Stewart has demonstrated a clearly established constitutional right; to avoid summary judgment, Stewart must also adduce sufficient evidence to create a genuine issue of material fact as to whether the defendants acted so as to deprive him of his clearly established rights. Rich v. Dollar, 841 F.2d at 1564.
The issue of whether qualified immunity is proper in this case turns on a question of fact: was Stewart discharged from his employment because he walked out of the Superintendent's meeting? Defendants maintain that Stewart was not discharged for walking out of the meeting; they argue that the termination came in response to Stewart's insubordination during his private meeting with Newton and McDaniel.
*1507 Stewart denies being insubordinate and contends that this reason for his discharge is pretextual.3 Stewart has produced evidence, in the form of his own affidavit and the depositions of Superintendent Newton and Supervisor McDaniel, that supports his contentions. Superintendent Newton testified before the School Board that the tax referendum was important to the school system and that all school personnel should have been interested in getting the referendum passed. It is undisputed that Superintendent Newton called Stewart into his office to speak with him about his “lack of interest in the system,” and during the course of this meeting Newton asked Stewart for his resignation. Moreover, Supervisor McDaniel formally recommended that Stewart be discharged for three reasons; the first reason listed was Stewart's lack of concern for the school system, as demonstrated by his early departure from the meeting. All of these factors support Stewart's contention that he was discharged for exercising his right to speak out on a matter of public concern.
Stewart has presented sufficient evidence from which a jury could find that the defendants discharged Stewart in retaliation for Stewart's exercise of his clearly established constitutional rights. We conclude that the district court correctly denied summary judgment on the qualified immunity issue, and thus we affirm4 on this issue.
*1508 However, the Court has explicitly declined to extend absolute judicial immunity protection to actions taken by school board members. In Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), the Court noted that school board members function as “adjudicators in the school disciplinary process,” and they must “judge whether there have been violations of school regulations and, if so, the appropriate sanctions for the violations.” Id. at 319, 95 S.Ct. at 999. However, despite the school board's adjudicative function, the Court held that board members were to be protected by qualified immunity only: “[A]bsolute immunity would not be justified since it would not sufficiently increase the ability of school officials to exercise their discretion in a forthright manner to warrant the absence of a remedy for students subjected to intentional or otherwise inexcusable deprivations.” Id. at 320, 95 S.Ct. at 1000.See also Cleavinger, 474 U.S. at 204–05, 106 S.Ct. at 502 (explaining the Court's holding in Wood and relying on Wood 's holding to deny absolute judicial immunity to a prison's Institution Discipline Committee).
Although this case involves a school board's decision to discharge an employee rather than an instance of student discipline, as was involved in Wood, we conclude that the function of the school board in this case was substantially similar to the function of the board in Wood. The Court's ruling in Wood therefore precludes an extension of absolute immunity to the defendants in this case.
IV. ELEVENTH AMENDMENT IMMUNITY
Appellants argue that the School Board and the members of the Board as sued in their official capacities are entitled to absolute immunity under the Eleventh Amendment. Before we reach the merits of the immunity issue, however, we must first determine whether we have jurisidiction to hear an interlocutory appeal of the district court's denial of Eleventh Amendment immunity.
Because the parties have not raised or argued the question of jurisdiction, we conclude that we should not undertake *1509 to resolve it at this time. We do, however, have discretion to assume pendent appellate jurisdiction over this issue. Pendent jurisdiction is properly exercised over nonappealable decisions of the district court when the reviewing court already has jurisdiction over one issue in the case. See Myers v. Gilman Paper Corp., 544 F.2d 837, 847 (5th Cir.1977); Broughton v. Courtney, 861 F.2d 639, 641 n. 1 (11th Cir.1988). See also 9 Moore's Federal Practice ¶ 110.25 (noting that “once a case is lawfully before a court of appeals, it does not lack power to do what plainly ought to be done”). Pendent jurisdiction over the Eleventh Amendment immunity question is appropriate in this case because of considerations of judicial economy.
B. Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against any one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.
The Supreme Court in Mt. Healthy, looking to Ohio state law, found that the school board was not entitled to Eleventh Amendment immunity:
Under Ohio law the “State” does not include “political subdivisions,” and “political subdivisions” do include local school districts. Petitioner is but one of *1510 many local school boards within the State of Ohio. It is subject to some guidance from the State Board of Education and receives a significant amount of money from the State. But local school boards have extensive powers to issue bonds and to levy taxes within certain restrictions of state law. On balance, the record before us indicates that a local school board of education is more like a county or city than it is like an arm of the state.
County school boards in Alabama possess a significant amount of flexibility in raising local funding. The board's authority to manage its own finances includes the ability to raise revenues by selling interest-bearing tax anticipation warrants, Ala.Code § 16–13–70, et seq. (1988); the statutory authorization to expend money raised by taxes in support of public schools in the district or county in which it was raised, id. at § 16–13–32; the authorization to spend revenues from county sales and use-tax funds for educational purposes, id. at § 16–13–37; § 16–13–145; and the authorization to borrow funds, id. at § 16–13–145; § 16–13–211. In addition, the school boards are required to hold “a meeting for the purpose of giving the public an opportunity of presenting to the board matters relating to the allotment of public school funds.” Id. at § 16–8–3. It is clear that Alabama school boards have a degree of fiscal autonomy comparable to that of the school boards at issue in Mt. Healthy (received significant amount of money from the state, but had extensive powers to issue bonds and to levy taxes within certain restrictions of state law), Moore (had power to sue and be sued, to purchase and sell property, to borrow money, to levy taxes), and Adams (had local funding primarily through an ad valorem tax, which was supplemented by the state if insufficient, and had flexible tax structure allowing the board to tap local resources when increased resources were necessary). Consequently, even though the school boards are required to submit their budgets to the state superintendent for approval, id. at § 16–13–140, *1511 it cannot be said that a judgment against a county school board will come from state funds.
Moreover, the county school boards in Alabama have the power to establish general education policy for the schools, id. at §§ 16–8–10, 16–8–28; they possess general administration and supervision responsibility for the schools, id. at §§ 16–8–8, 16–8–9; and they are imbued with the authority to assign teachers and to place students, Opinion of the Justices, 276 Ala. 239, 160 So.2d 648, 650–51 (1964). Additionally, the boards are subject to a significant amount of local control. Board members are elected by “the qualified electors of the county”, Ala.Code at § 16–8–1, and they receive compensation from the public funds of the county, id. at § 16–8–5,
Finally, it is instructive that at least four federal district courts sitting in Alabama, in addition to the district court who ruled below, have held that the county school boards are not entitled to Eleventh Amendment immunity. Smith v. Dallas County Bd. of Educ., 480 F.Supp. 1324, 1335–36 & n. 2 (S.D.Ala.1979) (Hand, J.); Rolin v. Escambia County Bd. of Educ., No. 88–0314–AH (S.D.Ala.) (Howard, J.); Andrews v. Coffee County Bd. of Educ., No. 88–D–1095–S (M.D.Ala.1988) (Dubina, J.); Coleman v. Lowndes County Bd. of Educ., No. 88–V–220–N (M.D.Ala.1988) (Varner, J.). To the extent that these decisions construe the role and function of Alabama county boards of education under state law, we properly accord some deference to the evaluation of the local district judges. See Mandel v. Doe, 888 F.2d 783 (11th Cir.1989); Moore, 594 F.2d at 494.
We conclude, therefore, that the Baldwin County Board of Education is not an “arm of the State” for purposes of Eleventh Amendment immunity, and we affirm the district court's denial of summary judgment on the basis of such immunity.7
V. CONCLUSION
We conclude that the district court correctly denied the defendants' claims of qualified immunity and Eleventh Amendment immunity. In addition, we hold that the defendants are not entitled to quasi-judicial absolute immunity. The judgment of the district court is therefore
AFFIRMED.
HATCHETT, Circuit Judge, specially concurring:
I join in affirming the district court and returning this case to that court for factual development because the issue of why the school board fired Stewart precluded summary judgment. Consequently, I would dismiss the appeal. Goddard v. Urrea, 847 F.2d 765 (11th Cir.1988).
Two additional comments are in order: (1) where material factual issues are in dispute, it is risky for the district court to rely on one party's “version of the facts” to resolve any issue in the case; (2) the practice whereby defendants create material factual issues in the district court, lose on their summary judgment motion based on immunity because of the factual disputes, but then argue on appeal that the district court should be reversed because on the plaintiff's “version of the facts” no clearly established right has been shown, is unacceptable.
Rich, 841 F.2d at 1563–64 (citing Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983)), sets out a two-step framework for applying Harlow 's objective reasonableness test. In the first step, the defendants must prove they were acting within the scope of their discretionary authority when the allegedly wrongful acts occurred. The second step then shifts the burden to the plaintiff to show that the defendants' actions violated clearly established constitutional law. Because there is no dispute in this case that the defendants were acting within the scope of their authority when they terminated Stewart, we address only the second part of the test, i.e. whether the plaintiff has demonstrated that the defendants engaged in conduct that violated Stewart's clearly established constitutional rights.
Stewart explained to the School Board, prior to his termination, that he left the meeting because he felt that he and the other members of the maintenance crew were being pressured to vote a certain way on the tax referendum.
We decline to entertain defendants' suggestion that the administrative proceedings may preclude plaintiff's assertion that his protected speech was a substantial factor motivating defendants' discharge of him. Defendants have not adequately briefed the issue before this court. Nor was the issue adequately presented to the district court in support of defendants' motion for summary judgment. Moreover, defendants' reply brief to this court acknowledges that the issue was raised in a different context in the district court and is still pending. We express no opinion on the merits of the preclusion issue or on its preservation in the district court.
Defendants argue that this court's reference to the role of Alabama county boards of education in Jaffree v. Wallace, 705 F.2d 1526, 1533 (11th Cir.1983) (noting that “[t]he Alabama County School Boards are creatures of the State and are controlled by the State”), controls our decision in this case. However, our comment in Jaffree was with regard to whether or not the school systems could be considered state actors. This determination is completely separate from and has no independent bearing on a determination as to whether a county defendant is a state defendant for purposes of the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 667 n. 12, 94 S.Ct. 1347, 1358 n. 12, 39 L.Ed.2d 662 (1974) ( “while county action is generally state action for purposes of the Fourteenth Amendment, a county defendant is not necessarily a state defendant for purposes of the Eleventh Amendment”); Campbell v. Gadsden County District School Bd., 534 F.2d 650, 655 (5th Cir.1976).