Appendix — Brewer v. Clarke County School District
Supreme Court brief1995
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Text
f Supreme Court, U.S. s
FILED
941639 APR 6- 1995
OFFICE OF THE CLERK
Case Number
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1994
KEN BREWER,
Petitioner
vs
CLARKE COUNTY SCHOOL DISTRICT,
HANS J. SCHACHT, and CHRIS GOOD
in their individual capacities,
Respondents
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
DEEDRA M. BREWER
ATTORNEY FOR PETITIONER
BREWER & ASSOCIATES
231 MAXHAM ROAD, SUITE 120
AUSTELL, GEORGIA 30001
(404) 944-6267
i
TABLE OF CONTENTS
SORES OE AMERGEZCIG ss occ ccsceccrccsscece ii
Order of Eleventh Circuit
GHG Ges Go BOP cv ccsctvvscersdéece A-1
Order of U.S. District Court
GUGGG BUTS 30, B9GRs cscs icsiceses B-1
Order of U.S. District Court
GREGG SULY 19, BPS ccccsredessever C-3
ii
TABLE OF AUTHORITIES
Alicea Rosado v. Garcia Santiago,
$62 F.2d 114, 119 (ist Cig. 1977) ccccceseses B-49
Anderson v Indiana High School Athletic
Ass’n, 699 F.Supp. 710 (S.D.Ind.1988)....... B-54
Arango v Guzman Travel Advisors Corp.,
621 F.2¢ 1371, (Sth Cir. 1980) ccccescocces -B-33
Arp v Breman City Bd. of Educ. No. 1985-16
(State Bd. of Educ., Sept. 12, 1985)........ B-43
Atascadera State Hosp. v Scanlon, 473 U.S. 234,
105 S.Ct. 3142, 87 L.Ed.2d 171 (1984)....... B-27
Barker v Norman, 651 F.2d 1107
(SER Cir. 1981) ccccccccscvcesesesess A-21, C-11
Bishop v Wood, 426 U.S. 341, 96 SD.Ct. 2074,
46 L.Bd.24 664 (1976). ccccccoscccssecece B-2, C-2
Blackston v. Shook & Fletcher Insulation Co.,
764 F.2d 1480 (11th Cir. 1985).......ceeeee B-59
Blum v Yaretsky, 457 U.S. 991, 102 S.Ct. 2777,
FSD Wc BG. 3G S94 (19SZ) cccccccreocscsccecevess B-53
Board of Regents v Roth, 408 U.S. 564, 92 S.Ct.
2701, 33 L.EG.2d 548 (1972). .ccccccceces B-38,39
iii
Bonner v Fulton County Bd. Educ., Case No. 1989-
24 (State Board of Ed., Dec. 14, 1989)..... B-43
Brewer v Purvis, etal 816 F.Supp. 1560
ee re An-2,4,19; C=-2
Buxton v Plant City, Florida, 871 F.2d 1037,
(ZIER CAF. 1989). .c00. TrTTTCTL TE A-2,9,11,15,233
B-57,66,67; C-14,15
Campbell v Pierce County, 741 F.2d 1342 (11th
Cir. 1984) cert denied, 470 U.S. 1052, 105 S.Ct.
1754, 84 L.Ed.2d 818 (1985).......ce- B-61,67,68
Celotex v. Catrett, 477 U.S. 317, 106 $.Ct.
2930, 91 LL. EG.2G 265 (1986)... ncccccces B~2,73
Childress v. Small Business Administration., 825
F.2d 1550, 1553 (11th Cir. to 3 2 re C-i3
Chiodo v Bd. of Educ., 215 N.W.2d 806 (Minn.
Clark v Arizona Interscholastic Ass’n, 695 F.2d
1126 (9th Cir. 1982), cert. denied, 464 U.S.
818, 104 S.Ct. 79, 78 L.Ed. 2d 90 (1983)...B-55
Cleveland Bd. of Ed., 470 U.S. saa, By. TEx,
EE re ee B-40
iv
Codd v Velger, 429 U.S. 624, 97 S.Ct. 882, 51
L.Ed.2d 92 (1977)... caceevces A-12,14,15; B-60
Copeland v Clarke County Bd. Educ., Case No.
1988-43, aff’d. J. Gaines, Civil Action No. SU-
89-CV-0185 (Superior Court, Western Judicial
CAFGULC, JULY 13, LISP) « ccccsescescssntaersses B-43
Curtis v Bd. of Regents, 262 Ga 226, 416 S.E.2d
ee Pica Gde wees bane eens B-28
Danno v Peterson, 421 F.Supp. 950 (N.D.I11l.
Davis v Scherer, 468 U.S. 183, 104 S.Ct. 3012,
BZ £..84.20 139 (1984). ccvcnccossccess eececes C-i3
Diehl v. Albany County Sch., 694 F. Supp. 1534,
(D. Wyo. 1988)... we oeeeees oseveenseosa B-63,65
Downey v Southern Natural Gas Co., 649 F.2d 302,
Ee SO 6 kn nde esdkemneeous B-46,49
Early v Champion Int’l Corp., 907 F.2d 1077
CLIER CLE. 1499S) a ccvcccnccccvccaseseseceaser B-72
Edelman v Jordan, 415 U.S. 651, 94 S.Ct. 1347,
39 L.Ed.2d 662 (1974)........ sear nee ..B-25
Ellis-Adams v. Whitfield County Bd. of Educ.,
182 Ga. App. 463, 356 S.E.2d 219 (1987)....B-41
V
Emory v Peeler, 756 F.2d 1547
eh. tee De ee ee ee B-60
Employees of Dept. of Public Health and Welfare,
Missouri v. Dept. of Public Health and Welfare,
Missouri, 411 U.S. 279, 93 8.Ct. 1614, 36
Tou Bse SOO CEPTS} a wecccccicsasecesevssesees B-26
Endicott v Huddleston, 644 F.2d 1208 (7th Cir.
Florida v. Treasure Salvors, Inc., 458 U.S. 670,
102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982)...... B-36
Fouche v Jekyll Island-State Park Authority, 713
F.am@ 2526 C12ER CAF. 19BB) -cccvccuccsvsscens B-27
Freeman v Hinson, No. C76-1351
Cale Ge BFF Foc ve vessevusvensseceeecsseesees B-43
Garner v Wal-Mart Stores, Inc., 807 F.2d 1536,
CZAGM SAEs BO Re kceweceseeeeteccsceneecenes B-46
Gertz v Robert Welch, Inc., 418 U.S. 323, 94
SCE. 2997, 41 L.BG. 26 TED (1974). cc ccvcces B-76
Goffer v Marbury 956 F.2d 1045
$e. Bt Ae 3 eee ee A-12,13,14,15
Goss v Exxon Office Systems, Co,, 747 F.2d 885
CPEG CARs B9OG) 6 0600s ce eceavesewnnbeavnccess B-50
vi
Hafer v Melo, u.s. P . » bbe BeGe-
358, 116 L. BG. 2G SOL CiFF Ld cosa caceecsecesers B-30
Hatcher v Bd. of Public Ed., 809 F.2d 1546 (11th
Cir. 1987) «cc cccceuean eed a hese 6Ou 80 betes ewe B-40
Henry v Metropolitan Sewer Dist., 922 F.2d 332
(6th Cir. 1990) .cacccuncscesisescoseseses B-34,35
Hobbs v Georgia Dept. of Transp., 785 F.Supp.
960 (N.D.GO. LDL) ccrccvccesessesecesesseses B-32
Holley v Seminole County Sch. Dist., 755 F.2d
1492 (LITHCIC. 19S) co cessevcccsescacesessss B-42
Jett v Dallas Indep. Sch. Dist., 798 F.2d 748
(5th Cir. 1986), modified on other grounds, 491
U.S. 701, 109 S.Ct. 2702,
105 L. Bd. 2G $96 (1969) .ceccenevececces A-44, 46,47
Junior [v. Texaco, Inc.,] 688 F.2d 377 (5th
Cir. 1982). csccecveedeees00eGe0e8enen600s000% B-48
Jurgens v_ E.E.0O.C., 903 F.2d 386 (5th Cir.
Karpovs v State of Mississippi, 663 F.2d 640
(Sth Civ. 2904 )i ccccaac eee kes bhanveers B-28
Kentucky v Graham, 473 U.S. 159, 105 S.Ct. 3099,
87 L.Ed. 114 (19BS ps cccccncescevecssessesces B-31
vil
King v Board of Education of City of Buford, 214
tt Or inh ccna eeeswedtebeeens A-17,18,19
Kitchens v State, 198 Ga. App. 284, 401 S.E.2d
De CPE PeRehesedaséusecanecheeeccscece A-17,18,19
Lagos v Modesto City Schools Dist., 843 F.2d 347
(9th Cir. 1988) cert. denied, 488 U.S. 926, 109
Bete SUR, 208 1. BO. 2G B20. cc cccccccecces B-44,70
Lassiter v Alabama A & M University, 28 F.3d
1146 (11th Cir. 1994) (en banc).......ccccccs A-21
Levendos v Stern Entertainment, Inc., 860 F.2d
og ee B-50,51
Libby v. South Inter-Conference Ass’n. 728 P.
Bete SOS CMD. TIL. 2990). co ccccccccucaccccas B-55
Louisiana High School Athletic Ass’n v. St.
Augustine High School, 396 F.2d 224 (5th Cir.
Ludgren v McDaniel, 814 F.2d 274 (1978). -B-30,37
Luger v Edmondson Oil, 457 U.S. 922, 102 S. Ct.
SPO, FS tee BG. 28 462 (1982). cccccccecccces B-52
Mathews v Eldridge, 424 U.S. 319, 96 S.Ct. 832,
tI O CAOUO Ss a ecccuseesccceccesecses B-67
Vill
Maupin v. Indep. Sch. Dist., 632 P.2d 396 (Okla.
Mayer v Brown & Root Constr. Co., 661 F.2d 369
2 Et Pe fb rer rr rT TT eTrerTeceriT TS B~3i
McKay v Boyd Const. Co. Inc., 769 F.2d 1084,
CSUR GAS. 19RS) acces wcescscesueeeses B-33,34,35
Melton v Oklahoma, 928 F.2d 920 (10th Cir.) (en
banc), cert denied, U.S. __, 112 S.Ct. 296,
366 1. BG. 26 241 (1991 je ccccccnscceenss A-14,15,16
Milkovich v Loraine Journal Co., 497 U.S. 1,
__, 110 &.Ct. 2695, 111 L.Ed.2d 1 (1990)...B~76
Mitchell v Louisiana High School Athletic
Ass’n., 616 F.2d 152, reh’g denied, 621 F.2d 440
(Sth Cir. 1980), and cert denied, 449 U.S. 1124,
i101 S.Ct. 939, 67 L.Ed.2d 109 (1981)..... B-53,56
Moore v Otero 557 F.2d 435 (5th Cir. 1977)..A-20
National Collegiate Athletic Ass’n v. Tarkanian,
488 U.S. 179, 109 S.Ct. 454, 102 L.Ed.2d 469
FG Ss a gaan bauwce ee ee al bok amen B-54
Newton v Southeast Alabama Gas Dist., 708
F.Supp. 1254 (6.D. Alm. 1969). ..ccacssrccecs B-52
ix
Oklahoma City v Tuttle, 471 U.S. 808, 106 S. Ct.
36, OS Unc BG. 26 GES (19S). ccccccccasscvesecs B-23
Owens Equip. & Erection Co. v Kroger, 437 U.S.
365, 98 S.Ct. 2396, 57 L.Ed. 2d 274 (1978)..B-29
Paul v Davis 424 U.S. 693, 96 S.Ct. 1155, 47
a eRe. St errr Peer re rer eer eee B-60
Pennhurst State School & Hosp. v Halderman, 465
U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67
(RISD pce cccesosencesensseevecen ecrceen B-25,30,35
Post v City of Fort Lauderdale, 7 F.3d 1552,
(llth Cir. 1993), modified, 14 F.3d 583 (11th
ee Se eer A-21
Quern v Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59
5 Raat earn arene eer mes MEER ONE B-25
Randall-Baker v. Kohn., 457 U.S. 830, 102 S.Ct.
BIO8 s FF We BGs SE G18 CIGSZ occ ceccecceven B-52,53
Rich v Dollar, 841 F.2d 1558
oe ee ee TT TTT ee Ce Te eT ee A-21
Roberts v College of the Desert, 870 F.2d 1411,
(Fem Gas ROS sh 560 kn bese ekesed de ednens B-35,36
Robinson v Georgia Dept. of Transp., 966 F.2d
OP? ESEEM COL s FUE) 6s aes O80 kb 0b cc dase ner B~25
i NES! RO ex ~
x
Rockdale County School Dist. v. Weil, 245 Ga
7320, 266 S.8. 2G FIO (CIFOS) cc cvcesvcccecesess B-41
S & W Seafoods Co. v Jacor Broadcasting of
Atlanta, 194 Ga App 233, 390 S.E.2d 228
Senopier ¥. SBliga@, 903 F.20 1373. .ccccscsnece B-25
Schneeweis v Jacobs, 771 F.2d 733
tn A PP). oP rreererrerreeerrerrrerirrrey B-62,63
Shawgo v Spradlin, 701 F.2d 470
CRED CAKs LORD) eco e ebb ces nek bob 0664 sb saey ees B-46
Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836,
92 Tc BGc ZIGL (ESE) cc cdvoccencdhcoveacvesocve B-52
Simmons v State of Cal. Dept. of Indus. Rel.,
740 F.Supp. 781 (E.D.Cal. 1990). .ccccccccces B-34
Slockett v. Iowa Valley Community Sch. Dist.,
S39 B.W. 2G 446 (Towa, 1964) cccccccvsscaneces B-44
Smith v Bd. of Educ. of Urbana Sch. Dist. No.
Stephens v. C.I.T. Group/Equip. Financing, Inc.,
O55 F. 2G 3083 (SCR CAPs TGOZ) sc occesncesvcnus B-50
xi
Tate v Government Employees Insurance Co. 997
F.2d 1433 (11th Cir. 1993) .cccccccccccccccses A-8
Tate v. Livingston Parish Sch. Dist. U-46 v.
Kossoff, 419 N.E.2d 658 (Tll. App. 1981)....B-44
Wells v Doland 711 F.2d 670 (5th Cir, 1983).A-9
West v Atkins, 487 U.S. 42, 108 S.Ct. 2250 2255,
101 L,. Bd. 2d 40 (1988). cccccccccvsccsesccces B-24
Western Union Tel. Co. v Vickers, 71 Ga. App.
204, 30 S.E.2d 440 (1944). cc ccccccccccvcces B-75
White v. Banks, 614 S.W.2d 331 (Tenn. 1981).B-44
Wiggins v Citizens & Southern Nat. Bank, 173 Ga.
App. 761, 328 S.E. 222 (1985)... eeeeees B-72,74
Will v Michigan Dept. of Police, 491 U.S. 58,
109 S. Ct. 2304, 105 L.Ed 45 (1989)......e6. B-32
Williams v City of Albany, 936 F.2d 1256 (11th
Cir. 1991) (POF CUTLUM) .cccccccccsccvccceses C-10
A-1
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 93-9446
D.C. Docket No. CA 91-39-ATH(DF)
FILED JAN. 4, 1995
Appeal from the United States District Court
for the Middle District of Georgia
Appellant Ken Brewer ("Brewer") appeals the
district court’s grant of appellees’ motion for
judgment as a matter of law in this 42 U.S.C. §
1983 action. Brewer alleges that the Clarke
County School District ("CCSD") deprived him of
his constitutionally protected liberty interest
without due process of law in connection with
his termination as head football coach at Cedar
Shoals High School ("Cedar Shoals"). The
district court granted judgment as a matter of
law on the ground that Brewer failed to present
A-2
legally sufficient evidence of publication by
the government employer. See Buxton v Plant
City, Florida, 871 F.2d 1037 (11th Cir. 1989).
Upon an independent review of the record, we see
no error in the district court’s findings and,
accordingly, affirm the judgment of the district
court.
I. BACKGROUND?
The CCSD employed Brewer as a teacher and
Head Football coach at Cedar Shoals from the
spring of 1986 until April of 1990. On April 12,
1989, Brewer signed a contract of employment as
a ,ember of the cedar Shoals teaching staff for
the scholastic year 1989-10990, which paid a
$27,167.00 annual salary. On july 20, 1989, the
Personnel director of CCSD issued a personal
information indicating that Brewer would receive
a salary supplement of $7,400.00 for his
1 The facts are recited in more
detail in the district court’s opinion.
See Brewer v Purvis, 816 F.Supp. 1560
(M.D. Ga. 1993).
iii
football coaching position during the 1989-1990
A“3
season.
The CCSD has a "no pass/no play" rule which
comports with the Georgia High School
Association’s ("GHSA") academic eligibility
rules. These rules require that a student in his
third year of high school must have passed and
received credit for ten units before he is
eligible to participate in interscholastic
competitions. One student at Cedar Shoals, J.C.
did not have the passing grades necessary to
play football for Cedar Shoals. After J.C.’s
father discussed J.C.’s eligibility with Coach
Osborne, who taught handicapped students at
Cedar Shoals, Coach Osborne tested J.C. and
Surmised that he might have a learning
disability. Coach Osborne informed some of
J.C.’s teachers about his learning disability,
and eventually four of J.C.’s grades were
changed. Then J.C. was declared eligible for the
1989 football season.
In the early fall of 1989, the State Dept.
eran ccareaa era eee
A-4
of Education notified GHSA of a possible
violation of eligibility rules by Cedar Shoals.
The GHSA held a hearing on November 9, 1989, on
the allegations of breach of GHSA’s regulations
by Cedar Shoals. Following the hearing, the GHSA
made findings and assessed penalties against
Cedar Shoals.* The GHSA forwarded its ruling tc
Dr. Carol Purvis ("Dr. Purvis"), Superintendent
of the CCSD.
Chris Good ("Good"), an investigator for
the Professional Practices Commission ("Ppc")?,
along with administrators of the "no pass/no
play rule," began an investigation involving one
2 For a detailed list of findings and
ruling, see Brewer v Purvis, 816 F.Supp.
at 1566.
3 The PPC is an agency of the State
of Georgia authorized to investigate
alleged violations of rules, regulations,
Or policies of the state board, the
commission, or a local board, by an
educator. See 0.C.G.A.§20-2-796(a)(1)-(4)
A-5
Or more interviews with approximately twenty-
five people. On November 14, 1989, Mr. Hans
Schacht ("Schacht"), Executive Director of the
PPC, and Good informed Dr. Purvis of the PPC
investigation. Schacht informed Dr. Purvis that
the local school board should not investigate
the matter since the CCSD had an internal task
force investigating the situation. On January
23, 1990, Schacht advised Dr. Purvis of the PPC
Executive Committee’s finding that probable
cause existed to believe that Brewer had
committed an act or acts warranting the
suspension of his teaching certificate.* On
February 1, 1990, Schacht presented the PPC’s
investigative report to the CCSD in an open
meeting attended by the media.
On February 6, 1990, the CCSD internal task
force presented its written report to the CCSD
in an open meeting. this report found that the
grade-changing/grade correction practices at
4Brewer’s teaching certificate, however,
was never suspended.
A-6
Cedar Shoals were deficient. Based on the GHSA’s
ruling, the PPC investigation, and the CCSD‘s
internal task force report, Dr. Purvis decided
to recommend that Brewer be relieved of his
duties as head football coach. Two days later,
the Clarke County Board of Education ("the
board") voted to relieve Brewer of his coaching
responsibilities at Cedar Shoals. Brewer still
maintained his teaching position; however, he
was absent from teaching twenty-nine times from
February 9 until March 23, 1990. Brewer
requested a leave of absence but the board
unanimously voted to deny the request. Dr.
Purvis spoke with Brewer and informed him that
he could either return to work, in which case he
would not be fired, not return to work and be
fired, or he could submit his resignation. On
March 26, 1990, Brewer submitted his resignation
effective April 2, 1990.
Brewer subsequently filed this 42 U.S.c. §
1983 action alleging that the ccsp deprived him
of his constitutionally protected liberty
A-7
interest without due process of law when it
fired him from his football coaching position at
Cedar Shoals. The district court conducted a
bench trial and at the conclusion, entered
judgment as a matter of law, pursuant to
Fed.R.Civ.P. 50 on the ground that Brewer failed
to prove a necessary element of a liberty
interest deprivation claim. Brewer then
perfected this appeal.
II. ISSUES
1. Whether the district court erred in
granting the motion for judgment as a matter of
law.
2. Whether the district court erred in
granting Schacht and Good’s motion for summary
judgment on the basis of qualified immunity.
3. Whether the district court erred in not
admitting into evidence newspaper articles which
recounted the grade changing controversy.
III. Discussion
A. Motion for judgment as a matter of law
Brewer contends that the district court
A-8
erred in granting the CCSD’s motion for judgment
as a matter of law on the basis that Brewer
failed to prove a necessary element of a liberty
deprivation claim. In reviewing the grant of a
judgment as a matter of law, this court must
"evaluat(e] all of the evidence, together with
logical inferences, in th2 light most favorable
to the party opposing the motion." Tate v
Government Employees Insurance Co. 997 F.2d
1433, 1436 (11th Cir. 1993).
Brewer claims that CCSD deprived him of his
liberty interest without due process of law when
it received a copy of the PPC report in a
meeting open to the public, subsequently
relieved him of his coaching duties, and did not
afford him an opportunity to clear his name. In
order to prove a deprivation of a public
employee’s liberty interest without due process
of law, a plaintiff must prove: (1) a false
Statement (2) of a stigmatizing nature, (3)
attending a governmental employee’s discharge
(4) made public, (5) by the governmental
A-9
employer, (6) without a meaningful opportunity
for the employee to clear his name. Buxton v
Plant City, Florida 871 F.2d at 1042-43. The
plaintiff bears the burden of establishing each
and every element of his liberty interest claim.
Welz * Doland 711 F.2d 670, 677 (Sth Cir,
193). The district court found that Brewer
failed to satisfy the elements of public
disclosure by the governmental employer and
therefore granted CCSD’s motion for judgment as
a matter of law.
The district court correctly determined
that Brewer failed to meet the "made public by
a governmental employer" requirement enunciated
in Buxton. Under the Georgia Open Records Act,
O.C.G.A. § 50-18-70, state, county, and
municipal records are open to inspection by the
general public, except where specifically exempt
by state law. "Public records" as contemplated
by the Open Record Act include "all documents,
papers, letters, maps, books, tapes,
photographs, or similar material prepared and
A-10
maintained or received in the course of the
operation of a public office or agency." Id at
$ 50-18-70 (a). Specifically, with regard to
"records consisting of materials obtained iin...
investigation of complaints against public...
employees," public disclosure is not required
until "{1] ten days after the same has been
[resented to the agency or an officer for action
or [2] the investigation is otherwise concluded
or terminated..." Id. at § 50-18-72 (1)(5). PPC
investigations are authorized by Georgia law,
See generally 0.C.G.A. § 20-2-790 et seq., and
state regulations require a PPC investigation to
culminate in a written report to be submitted to
the Executive Director for probable cause
determination. Id. The files and documents of
the PPC are subject to the Open Records Act. Id.
The PPC investigative file and memorandum
regarding Brewer was prepared and maintained in
the course of the operation of the PPC. See R7-
127-32. The PPC investigation concluded no later
than January 12, 1990, when the PPC investigator
A-11
signed the memorandum setting forth the results
of his investigation. At that time, the
memorandum became a public record as a matter of
law and the PPC considered and treated it as
such. R7-132-33 139, 142-43,210-212. Accordingly,
the allegedly stigmatizing material became
public as a matter of law, see 0.C.G.A. § 50-18-
70; O.C.G.A § 50-18-72, and was published for
purposes of due process before the CCSD obtained
copies of then PPC report on February 1, 1990.
See Buxton 871 F.2d at 1045 (when documents
become public pursuant to state law, then, for
due process purposes, publication of the
information contained in those documents must be
held to occur at the time of filing).
Furthermore, information regarding the
investigation, including a copy of the PPC
report and a press release regarding the
Executive Committee’s action, was made public as
a matter of law by the PPC on January 26, 1990,
when it furnished a copy of the press release to
Channel 5 television in Atlanta. R7-157-160;
A-12
Def.’s Exhs. 7, 8, & 9 (emphasis added). The PPC
also furnished a copy of its report to Deedra
Brewer, a member of the public, before the CCSD
received a copy. R7-157-158; Def’s Exhs. 6 & 7.
Thus, in receiving copies of the PPC report on
February 1, 1990, the CCSD was merely obtaining
a copy of a public document created by the PPC.
In Codd v Velger 429 U.S. 624, 628 (1977), the
Supreme Court stated that only if the government
employer "creates and disseminates" a false and
defamatory impression about an employee in
connection with his termination is a name
Clearing hearing required. Based upon the
evidence presented to the district court in the
present case, the CCSd did not "create" nor
"disseminate" this allegedly stigmatizing
information.
In Goffer v Marbury 956 F.2d 1045 (11th
Cir. 1992), we focused on this "Create and
disseminate" requirement. In Goffer, a staff
member of a public, state Supported university
was terminated from employment. Id. at 1048. The
&-a3
executive vice-president of the university
filled out an exit termination form in which he
stated that Goffer was "’manifestly untruthful,
untrustworthy, unethical, subversive and
demonstrative of poor judgment.’" Id at 1052. He
placed the form in Goffer’s personnel file and
alter read the above language to a city employee
who called seeking information about Goffer as
a possible job applicant. Id. Goffer did not
receive a name clearing hearing. Id. At trial,
the defendants moved for directed verdicts with
respect to the stigmatizing claims and the
district court denied the motions. On appeal we
concluded that the stigmatizing references to
Goffer were published by the vice-president’s
placing the exit form in her file; we concluded
further that the stigmatizing material was also
published by the vice-president’s repeating that
information to the city employee. Id. With
regard to the university president, we noted
that there was no evidence that he participates
in or countenances the creation of the exit
el
A-14
form. Id. Furthermore, although after Goffer’s
termination, the university president told a
third party that Goffer had been fired, there
was no evidence that he provided that third
party with the particulars nor that he shared
the contents of the exit interview form with
that third party; that is, the university
president did not disseminate the stigmatizing
information. Id. (emphasis added). The same
principal applies here. There is no evidence
that the CCSD participated in or countenanced
the creation of the allegedly stigmatizing
information.
Absence of either one of the elements of
the "create and disseminate" requirement is
sufficient to preclude Brewer’s recovery on his
liberty interest claim, for that requirement is
a conjunctive one. See Codd, 429 U.S. at 628;
Melton v Oklahoma, 928 F.2d 920, 928 & n. 12,
931 (10th Cir.) (en banc), cert denied, __ vU.8.
__- 112 S.Ct. 296, 166 L.Ed.2d 241 (1991). In
Melton, a police officer had been accused of
A-15
perjury by the FBI and was the subject of a
police department internal affairs
investigation. Melton 928 F.2d at 922. Upon
inquiry, a departmental public affairs officer
repeated that information to a _ reporter;
however, unnamed sources other than the public
affairs officer previously made _ public
disclosure of such information. Id. at 923-24.
The accused officer was later discharges and he
filed a claim for deprivation of his liberty
interest. Id. at 924-25. The court noted that
the defendant, the public affairs officer, did
not "create" a false and defamatory impression
because the disclosure of information regarding
the perjury charge did not originate with the
defendant. Id. at 928-30. Accordingly, the
conjunctive requirement of Codd was not
satisfied. Id. at 928 & n.12.
The approach in Melton, is consistent with
this court’s acknowledgment of the "create and
disseminate" requirement in Buxton v Plant City,
871 F.2d 1037 (11th Cir. 1989), and Goffer v
ee. es PE
SS eT ees % ee eee Soe
Eel
A-16
Marbury, 956 F.2d 1045 (1lith Cir. 1989), As in
Melton, "(i]t is impossible, in this case, to
say the employer created the false and
defamatory impression when the original
disclosure came from another source. 928 F.2d at
928 & n.12. In the instant case, the original
disclosure,a s a matter of law and as a matter
of fact, came form the PPC. Thus, even if the
substantive contents of the allegedly
stigmatizing PPC report were revealed at the
board meeting on Feb. 1, 1990, the CCSD did not
create the stigmatizing information, which for
due process had been previously been made public
by the PPC.
We note that the National Education
Association ("NEA") filing a brief as amicus
curiae, contends that the issue before the court
is one of first impression and asks whether a
public employee may prove his liberty interest
was violates simply by showing that he was fired
at a time of such public controversy that his
Superiors should have known he would be
A-17
stigmatized, even thought the employer did not
explicitly state that the employee was fired for
stigmatizing reasons. therefore, the NFA claims
that it does not matter whether the PPC was the
original source of the charges and publicized
them before the CCSD did or whether the CCSD did
not "formally" or "explicitly" adopt the PPC
charges by passing a resolution firing Brewer
for his role in the grade changing scandal
because CCSD’s timing of its action communicated
to the public, the media, and potential
employers that Brewer was guilty as charged. As
a result, the CCSD allegedly imposed on Brewer
a stigma that foreclosed any future employment
opportunities in his chosen profession --
coaching football.
The CCSD contends that PBrewer’s coaching
position was supplemental and as such, does not
warrant constitutional protection. A _ recent
Georgia case, King v Board of Education of City
of Buford, 214 Ga App 325 (1994), supports the
CCSD’s position. In King, the plaintiff had a
A-18
teaching contract with the school district and
had also been assigned the supplemental duties
of band director. Id. at 325-26. The school
board eventually decided not to continue the
Plaintiff as band director but offered her
continued employment as a classroom teacher. Id.
The plaintiff contended that the board’s
decision to discontinue her in the position of
band director was a "demotion" which entitled
her to the procedural protection of Georgia’s
Fair Dismissal Law, 0O.C.G.A. § 20-2-940 Id.
Under the Statute, a demotion occurs when a
teacher or other school employee is effectively
moved "from one position in the school system to
another position in the school System having
less responsibility, prestige, and Salary. Id.
at 326-27. The evidence Showed that the
plaintiff would lose her Supplemental Salary,
have fewer responsibilities, and would suffer a
loss of prestige. Id. at 327. The Georgia Court
Of Appeals held, however, that the plaintiff’s
loss of band director duties did not amount to
CELT RA A ER he ne OY
A-19
a demotion. Id. at 326. The court acknowledged
the plaintiff’s lost responsibilities, reduced
Salary, and diminished duties, and further
acknowledged that "classroom teachers who are
also band directors place a significantly higher
value on that status than they do on their
underlying status as classroom’ teachers
generally." Id. at 327. the court concluded that
the plaintiff’s band director duties were not a
"distinct position" and her loss of these duties
did not amount to a demotion.°®
As in King, Brewer’s supplemental duties as
a coach did not constitute a distinct position
under Georgia Law. There was no written contract
for Brewer’s supplemental coaching job. See
Brewer v Purvis 816 F.Supp at 1572. Brewer had
a written contract to teach, not coach. The
> The court noted that the Buford School
System’s addendum listed twenty-five other
potential extra duty assignments other than band
director. Listed among these was head football
coach. Id. at 328 n.2.
A-20
supplemental pay received for his coaching
duties was not included in the teaching
contract. Id. Also, tenure is not required ina
coaching position, as it is in some teaching
positions. Id. The CCSD enters into contracts
with teachers, not coaches. Additionally, high
school football, although extremely important to
many people, is an extracurricular activity.
Brewer retained his employment as a teacher
until his resignation. Brewer lost his
supplemental position as a coach, but this loss
does not amount to a demotion under Georgia law
and does not invoke the due process protection
of the Fourteenth Amendment. See Moore v Otero
557 F.2d 435 (Sth Cir. 1977).
In sum, we affirm the district court’s
grant of CCSD’s motion for judgment as a matter
of law.
B. Qualified Immunity
The district court correctly ruled that
Schacht and Good were entitled to summary
judgment based on qualified immunity because
AN Le ANP Reset Ra NI Sot o on —
A-21
Brewer failed to show that Schacht and Good
violated clearly established law. "For the law
to be clearly established to the point that
qualified immunity does not apply, the law must
have earlier been developed in such a concrete
and factually defined context to make it obvious
to all reasonable government actors, in the
defendants place; that ‘what he was doing’
violated federal law." Lassiter v Alabama A & M
University, 28 F.3d 1146, 1149 (lith Cir. 1994)
(en banc). "If case law, in factual terms, has
not staked out a bright line, qualified immunity
almost always protects the defendant." Post v
City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th
Cir. 1993), modified, 14 F.3d 583 (11th Cir.
1994).
In reviewing Brewer’s claim, it is clear
that Schacht and Good were acting within their
discretionary authority when the _ alleged
violations occurred. See Rich v Dollar, 841 F.2d
1558, 1564 (11th Cir. 1988), quoting Barker v
Norman, 651 F.2d 1107, 1121 (5th Cir. 1981) (a
A-22
government official proves that he acted within
the purview of his discretionary authority by
Showing "objective circumstances that would
compel the conclusion that his actions were
undertaken pursuant to the performance of his
duties and within the scope of his authority").
Brewer cannot dispute that Schacht and Good were
acting in their discretionary authority as an
Investigator and Executive Director of the PPC,
respectively, when the alleged violations took
place. All actions alleged by Brewer occurred
during the PPC’s investigation of Cedar Shoals
and were within the lawful authority of Schacht
and Good. the PPC is authorized under 0.C.G.A.
§ 20-2-796 to conduct investigations regarding
certified school personnel for the purpose of
making recommendations to the State Board of
Education, the local board, the Professional
Standards Commission, or any combination
thereof, which may accept or reject such
recommendations.
Moreover, Brewer fails to establish that
A-23
either Good or Schacht violated any clearly
established law. Brewer claims that Good
violated his liberty interest and his right to
due process by not giving written notice to the
local board of education prior to beginning the
PPC investigation and testifying in a Georgia
High School Association hearing regarding his
preliminary findings. Brewer fails to show,
however, exactly what clearly established
constitutional rights were violated by Good’s
failure to give written notice to the school
board prior to the investigation. regarding
Schacht, Brewer claims Schacht violated his
constitutional rights to liberty and due process
by presenting the PPC’s investigative report and
recommendation to suspend Brewer’s teaching
certificate for two years to the school board in
a public meeting. Brewer fails to prove that
Schacht deprived him of any constitutional right
since Schacht was not Brewer’s employer. See
Buxton, 871 F.2d at 1042. Accordingly, the
district court properly granted summary judgment
A-24
to Schacht and Good on the basis of qualified
immunity.
C. Evidentiary Ruling
Brewer contends that the district court
improperly held that newspaper articles which
evidenced the grade-changing incident at Cedar
Shoals were admissible. These articles reflected
the media attention which attended the grade
changing incident. Brewer attempted to present
these articles to show the stigmatization which
occurred and the extent of the controversy. this
argument provided no basis for reversal of the
district court’s judgment. The district court
did not grant judgment as a matter of law on the
basis of Brewer’s failure to prove’ the
stigmatizing nature of the statement at issue
and the articles were presented to prove
stigmatization only. Accordingly, we see no
abuse of discretion in the exclusion of these
articles from evidence.
A~-25
IV. Conclusion
For the Forgoing reasons, we arfirm the
Judgement of the District Court.
Affirmed.
eT
a |
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
KEN BREWER,
Plaintiff, :
vs. :$ Civ. NO.91-39-ATH(DF)
CAROL PURVIS, CLARKE CO. :
SCHOOL DISTRICT, WILLIAM :
C. FORDHAM, GEORGIA HIGH :
SCHOOL ASSOCIATION, HANS :
J. SCHACHT, CHRIS GOOD,
THE PROFESSIONAL
PRACTICES COMMISSION,
Defendants.
FITZPATRICK, District Judge
Defendants’ motions for summary judgment —
are presently pending in this court. Summary
judgment is proper *ift 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 judgment as a
matter of law. Fed.R.Civ.R. 56(c). For purposes
of a summary judgment motion, the non-movant’s
version of the facts must be accepted and all
disputed matters must be resolved in favor of
B-2
the non-movant. Bishop v Wood, 426 U.S. 341, 96
SD.Ct. 2074, 48 L.Ed.2d 684 (1976). Summary
judgment, however is mandated, against a party
who fails to make a showing sufficient to
establish the existence of an element essential
to the party’s case, and on which that party
will bear the burden of proof at trial. Celotex
v. Catrett, 477 U.S. 317, 106 S.Ct. 2538, 91 L.
Ed.2d 265 (1986).
BACKGROUND
Plaintiff Ken Brewer was employed by the
Clarke County School District ("CCSD") as the
head football coach and as a teacher at Cedar
Shoals High School ("CSHS") from the spring of
1986 until April of 1990.1 On April 12, 1989,
Plaintiff signed a contract of employment as a
member of the CSHS teaching staff for the
scholastic year 1989-90, which called for a
$27,167.00 annual salary. On July 20, 1989, the
Personnel Director issued a personnel
information indicating that Brewer would receive
1 purvis deposition, p.98
a
B~-3
a salary supplement of $7,400.00 for serving as
the head football coach during the 1989-1990
season.
CSHS is a member of the Georgia High School
Association ("GHSA"). The GHSA is a voluntary
association of 355 public and private high
schools organized to promulgate and enforce
uniform rules of eligibility and play between
its members.? Schools are required to determine
and certify eligibility rules for competing
students to the GHSA. One of the academic
eligibility requirement that a student be "on
track" for graduation before he/she can
participate in athletics. The "on _ track"
provision was enacted by the State Board of
Educaticn in July of 1987, effective for then
1987-88 school year and was adopted in
2 Affidavit of Herbert Stroud
("Stroud Affidavit") in Support of CCSD’s
Motion for Summary Judgment, Exb. B.
3aAffidavit William C. Fordham, P. 1.
B-4
October 1988 by the GHSA Executive Committee’,
which included CSHS’s athletic director.® In
order to be "on track" a student in his third
year of high school must have passed and
received credit for ten (10) units before he is
eligible to participate in interscholastic
competitions.© The Clarke County School
District’s "no pass/no play" rule is identical
to the GHSA’s rule.’ ;
Football practice began on August 1, 1989.
Coach Glen Townsend, who was responsible for
determining student eligibility, prepared a list
of all players desiring to participate in
varsity football and checked the school records
to determine whether those students were
eligible. J.C.’s grades at CSHS were as follows:
4GHSA By-Law § 1.55
°Second Fordham Affidavit at P. 3.
°rordham Affidavit at P 3.
Stroud Affidavit in Support of
CCSD’s Motion for Summary Judgment,Exh. D
B-5
1987-1988 School Year
English I 48/F
Math I 62/F
Physical Science high 60s/F
World Geography mid 50s/F
Art 77/C
Health and PE 77/C
1988-1989 School Year
Math I 52/F
Math II 72/C
Biology 58/F
World History 77/C
Building and
Construction
Technology I F
P.E. 85/B
Summe 98
Biology 77/C
General Math 75/C
Since J.C. had passed only seven subjects
during his first two years of high school, he
was ineligible to play varsity football, and he
did not participate in football practice on
B-6
August 1, 1989. 8 Coach Townsend told Coach
Brewer that J.C. was ineligible.
The week before football practice began,
J.C.’s father visited Charles Worthy, Associate
rincipal at CSHS. J.C.’s father indicated his
desire to have J.C. play football and his
concern that J.C. might not remain in school if
he were not permitted to play football that
year. J.C.’ father had previously talked to
Coach John Osborne, who taught handicapped
students at CSHS, about J.C.’s academic
problems.? Coach Osborne surmised that J.C.
might have a learning disability and arranged
for J.C. to be tested. Coach Brewer called the
GHSA and asked if J.C.’s placement in special
education would automatically make him
8 stroud Affidavit. Exh. D.
%professional Practices Commission
("PPC") Hearing, Testimony of John Osborne
at 362.
B-7
eligible.+° Mr. Fordham informed Mr. Brewer that
special education placement had no effect on
eligibility.1?
Coach Osborne contacted Mr. David Schwartz
and asked if he would test J.C. After Mr.
Schwartz agreed to do so, Mr. Osborne called
J.C.’s father and gave him Mr. Schwartz’s name.
J.C.’s father then contacted Mr. Schwartz and
made an appointment for J.C. for Saturday,
August 26, 1989.1}* That evening, Mr. Schwartz
informed Coach Osborne that J.C. had a learning
disability.12 Coach Osborne then advised some
10 ppc hearing, Testimony Ken Brewer,
p- 886.
“2 ta.
42 Id. Testimony John Osborne at 366-
369.
13 Mr. Schwartz’s evaluation said that
J.C. had a reading disability. PPC
hearing, Testimony of Nancy Congor, p.
609. J.C. was eventually rejected for
special education placement. Id. at 615.
="
B-8
of J.C.’s teachers about the test results.
Eventually four of J.C.’s grades were changed. 14
J.C. was declared eligible for football on
August 30, 1989, and practiced football that
day.
In the early fall of 1989, GHSA was
notified by the State Department of Education of
a possible violation of eligibility rules by
CSHS, i.©. that the grades of a Cedar Shoals
student athlete, J.C., had been changed to make
14 3.C.’s grades in Math, Physical
Science, World Geography, and Construction
were changed. See PPC hearing at 259-260,
305, 482-483, 509. There is a lack of
consensus among the various defendants as
to how many of these changes were
improper. See Exh. C to GHSA’s motion for
summary judgment (three); Response of
Carol Purvis to plaintiff’s Requests for
Admissions (two); PPC Investigative Report
(four).
B-9
the student eligible to play football. 15 on
November 1, 1989, Chris Good, an investigator
for the Professional Practices Commission?®
("PPC"), received a telephone call from Mr.
Randall Ponder, who was the administrator in
charge of no pass/no participate. Mr. Ponder
informed Mr. Good that he had received a report
of violations of the No Pass/No Participate rule
at CSHS and that he and regional Director Jim
Gurley were going to Cedar Shoals on November 7,
1989, to begin an investigation. Mr. Ponder
153 Nancy Congor, who is in charge of
special education referrals at CSHS,
testified that she made an anonymous phone
call at the end of October 1989. PPC
hearing at 634, 646.
16 The PPC is an agency of the State
of Georgia authorized to investigate
alleged violations of rules, regulations,
or policies of the state board, the
commission or a local board by an
educator. 0.C.G.A. § 20-2-796 (a)(1)-(4).
B-10
asked Mr. Good to accompany them.
On November 7, 1989, Good, Gurley and
Ponder visited CSHS.!’ While visiting CSHS,
Chris Good spoke with Plaintiff for
approximately five minutes.+8 On the same day,
Gurley and Ponder visited Dr. Purvis and
informed them of their investigation.?9 The next
day Dr. Purvis met with Mr. Doug McLaughlin, the
principal of CSHS, regarding the grade changing
incident.
On November 8, 1989, Mr. Fordham called Mr.
Good to inform him that GHSA would hold a
hearing on Nov. 9, 1989 on the allegations of
GHSA’s regulations by CSHS. Mr. Fordham granted
Mr. Good’s request to attend as an observer for
informational purposes. Although the PPC did not
receive a written request to conduct an
17 ppc hearing, Testimony Chris Good,
p. 694.
18 td. at 698.
19 ppc hearing, Testimony Carol
Purvis, p. 136.
B-11
investigation into the grade changing incident
until Nov. a3, 198920, it instigated an
official investigation on Nov. 9, 198921,
which involved one or more interviews with
approximately twenty-five people. 22
20 ppc Hearing, Respondent’s Exh. No.
6. The letter from Dr. Hall Rogers,
Associate State Superintendent, though
dated Nov. 8, 1989, is Stamped "Received
November 13, 1989." Chris Good testified
that Mr. Ponder told him when they left
CSHS on November 7, that he would receive
a referral the next day. Id. at 855.
21 Chris Good testified that he was
conducting a "preliminary" investigation
on behalf of the ppc at the invitation of
the State Board of Education when he
visited CSHS on November 7, 1989. PPC
hearing at 852.
22 Stroud Affidavit, Exh. "3". The
first day "officia)" interviews were
conducted at CSHS was Nov. 13, 1989.
til
B-12
On November 9, 1989, Coach Brewer observed
Chris Good talking with Mr. Alan Connell,
attorney for the GHSA, and William C. Fordham
before the GHSA hearing began.*? During the
hearing Coach Brewer testified that he had no
interest or knowledge of any grade changes
involving J.C. Mr. Connell turned and asked Mr.
Good if Coach Brewer had indicated the same in
earlier interviews. Mr. Good replied that Coach
Brewer told him that Coach Osborne had
approached him and said "Here’s the deal. I’ve
talked to all the teachers. I think they
understand. It wouldn’t hurt for you to talk to
them."
After the evidentiary hearing, William
Fordham made the following fact findings and
assessed the following penalties:
In view of the fact that (1) only three
courses were needed to gain eligibility and
only three grades were changed; (2) two of
23 affidavit of Ken Brewer, dated Aug.
14, 1992. P. 12.
B-13
the three teachers who changed grades were
football coaches and all three acted after
a request for review by Coach Osborne; (3)
the action taken by Coach Osborne is not
such action as he customarily took on
behalf of all other students; (4) no one
could recall a similar case where grades
were changed after a two year period; (5)
no make up work or supplemental work was
performed by the student prior to the grade
changes; (6) all three grades were changed
within a two year period; (7) the student
was, on the same day the grades were
changed, immediately certified to the GHSA
as eligible; and (8) Coach Osborne had a
conversation with Coach Brewer indicating
that eligibility for football was
considered in the action taken by Coach
Osborne, I must conclude that the actions
taken by the Cedar Shoals personnel were
for the purposes of improperly securing
eligibility for the student to play
B-14
football. These actions are in violation of
the GHSA Constitution Art. IV Section 14
and GHSA Bylaws Section 2.31b. Cedar
Shoals is hereby required to:
(1) forfeit any games won during the
1989-90 school year in which the
subject student participated;
(2) be on probation for one calendar
year from the date of this ruling;
(3) pay a $1,000.00 fine.*4
William Fordham forwarded his ruling to Dr.
Carol Purvis, Superintendent of the Clarke
County School District. Neither the GHSA nor any
other person acting on its behalf released a
copy of the decision to anyone other than
Superintendent Purvis. GHSA did not announce its
decision and all inquiries were directed to
Superintendent Purvis. ?°
CSHS subsequently appealed the decision to
the GHSA State Board of Appeals, which
24 Fordham Affidavit, Exh. C.
25 Fordham Affidavit at P. 9.
B-15
unanimously upheld the Executive Director’s
decision.*© CSHS did not exercise its right to
appeal the decision to the full GHSA Executive
Committee.?”? On November i3, 1989, a CCSD
Internal Task Force was formed at the direction
of the Clarke County School Board to investigate
grade changing, eligibility requirements,
including the no pass/no participate policy and
the screening process for special education
students in the CCSD. The CCSD Internal Task
Force completed its investigation on December
15, 1989, and found that while things at the
three middle schools and CCHS [sic] generally
were in good shape, grade changing/grade
correction at CCHS was not. Dr. Purvis received
the Task Force’s Report on January 5, 1990.28
On November 14, 1989, Mr. Hans J. Schacht,
Executive Director of the PPC, and Mr. Good
visited Dr. Purvis to inform him of the PPC
26 Fordham Affidavit at P. 10.
27 1d.
28 affidavit of Dr. Purvis, P. 8.
B-16
investigation. During the meeting, Schacht
advised Dr. Purvis that it would be "improper
for Purvis or the Clarke County Board of
Education to investigate the grade changing
situation" since CCSD had a "legal arm of the
State who was doing the investigating" and that
any local investigation should be put on
hold.?? Ric
On January 23, 1990, Mr. Schacht advised
Dr. Purvis of the PPC Executive Committee’s
finding that probable cause existed to believe
that Plaintiff had committed an act or acts
warranting the suspension of his teaching
certificate. On January 24, 1990, Dr. Purvis
telephoned Mr. Chris Good and asked for
clarification concerning the PPC Executive
Committee’s findings and recommendations.
On February 1, 1990, Mr. Schacht presented
the PPC’s investigative report to the CCSD in an
29 purvis deposition, dated Jan. 17,
1991, pp. 26-27.
B-17
Open meeting attended by the media.?° In the
report Mr. Schacht recommended that Coach
Brewer’s teaching certificate be suspended for
two years. Schacht also instructed the Board to
"use the report for Study, deliberation, and to
make decisions about employees and their
contract tenure that are ethically and legally
defensible."3! schacht was quoted in the local
newspaper as telling the school board and public
that the reason he gave the local school system
the report was because they might not be able to
enforce its no pass/no play policy since it was
invalid. 32
3° purvis Affidavit at Pp. 11.
31 Exh. D to Plaintiff’s Opposition to
PPC’s motion for Summary judgment.
32 In Kitchens v State, 198 Ga App.
284, 401 S.E.2d 552 (1991), the Georgia
Court of Appeals held that state school
policy, including the no Pass/no play rule
was invalid because it had not been
promulgated by the Administrative
a
B-18
On Feb. 6, 1990, the CCSD Internal Task
Force presented its written report to the CCSD
in an open meeting.?? Based on the GHSA’s
ruling, the PPC investigation, and the CCSD’s
Internal Task Force Report, Dr. Purvis decided
to recommend that plaintiff be relieved of his
duties as head Football Coach.?* on Feb. 8,
1990, the Clarke County Board of Education,
without holding a hearing, voted to relieve
Plaintiff of his responsibilities as Head
Football Coach at Cedar Shoals to be effective
immediately.°° Neither Defendant Purvis nor
the Clarke County School system investigated the
allegations of improper grade changes before the
decision was made to relieve Brewer of his
coaching position.?®© Rather the incident was
Procedure Act.
33 purvis Affidavit, P. 12.
34 purvis Affidavit, P.12.
35 Stroud Affidavit, Exh. "H".
36 ppc hearing, testimony Carol
Purvis, pg. 142.
er ae 7 se) ie ae ee
"eer
seks neh NG olan seta an
ee te ee het Vy Beta
ro} os Foye’?
B-19
investigated many months later. 37
Brewer was absent from work twenty nine
times from Feb. 9 until March 23, 1990.38 Many
nerenhis and school board members contacted Dr.
Purvis about Mr. Brewer’s absenteeism. 2? On
March 15, 1990, Brewer suffering stress and
public humiliation, requested a leave of absence
from Superintendent Purvis through his
attorney. 4° Purvis received a copy of the
letter confirming his permission to take a leave
of absence but did not respond to it.4! on
March 22, 1990, the Clarke County Board of
Education unanimously voted to deny Brewer’s
request for a leave of absence.*? The ccsD did
37 Iq.
38 purvis Deposition, Exh. C.
39 purvis affidavit. P. 13.
40 Affidavit Ken Brewer, dated Feb.
14, 1990.
*1Deposition Caro] Purvis, dated Aug.
30, 1991, p.94.
42 purvis deposition, p. 92-93.
B-20
not provide Brewer a pre-termination hearing.
On March 22, 1990, the CCSD discovered that
in Sept. 1989, Dr. Tina Upchurch, Director of
Special Education, had informed Elizabeth
Ireland, the Associate Superintendent of Clarke
County School District, about the changes in
J.C.’s grades and that Dr. Ireland had not taken
any action. Although Dr. Purvis learned that his
office had been informed of the grade changes in
September, 1989, he chose not to divulge -this
information to the School Board*?. Both Dr.
Ireland and Dr. Purvis subsequently received
letters of reprimand. *4
43 Exh. C to plaintiff’s Brief in
Support of Motion for Reconsideration of
Plaintiff’s Motion to Compel; Clarke
County School District’s Response to
Plaintiff’s First Interrogatories No. 17;
PPC hearing, Testimony of James Harris, p.
338; Testimony of Elizabeth Ireland, at
802-806.
44 purvis affidavit, P.18.
B-21
On March 26, 1990 Brewer submitted a letter
of resignation, effective April 2, 1990, to the
CCSD after he received a phone call from Dr.
Purvis informing him he could either return to
work, in which case he would not be fired, not
return to work and be fired or he could submit
his resignation. 4°
Prior to September 1990, Don Farmer of WSB-
TV in Atlanta, Georgia, interviewed William
Fordham as part of a feature story on Georgia
high school athletics. In the interview, which
was aired in September of 1990, Fordham made the
following statements:
Farmer: Did [Brewer] foul up?
Fordham: Yeah, he fouled up, he fouled up.
Farmer: [Brewer] claims he didn’t know, he
had nothing to do with eligibility.
Fordham: You sit here and have him call you
day in and day out though; he better have
something to do with it, he better know.
45 Deposition of Ken Brewer, p. 101;
Purvis affidavit at P.14.
rere
B-22
Farmer: In other words, if he didn’t know,
he should have known.
Fordham: He should have known. *®
On June 25-27, 1991, a PPC hearing Tribunal
convened. Mr. Brewer was present and represented
by counsel. The Tribunal concluded that
plaintiff committed "an act or acts constituting
other good and sufficient cause" within the
meaning of the rules of the PPC so as to justify
disciplinary action against Mr. Brewer’s
teaching certificate.*’
DISCUSSION
Plaintiff contends that the Defendants
violated his right to equal protection and his
due process rights under the constitution of the
United States and the Georgia Constitution by
depriving him of his property interests in his
coaching and teaching positions and of his
liberty interest in his reputation. Plaintiff
also claims that he was libeled by the
46 Fordham Affidavit at P.13.
47 Stroud Affidavit, Exh. "D".
Defendants.
FEDERAL LAW CLAIMS
II. EQUAL PROTECTION
Defendant Purvis has moved for summary
judgment on plaintiff’s equal protection claim.
Plaintiff conceded this claim by his failure to
respond to Defendant’s motion on this issue.
claim. Consequently, Defendant Purvis’ motion
for summary judgment on plaintiff’s equal
protection claim is GRANTED. *®
II. DUE PROCESS DEPRIVATION OF PROPERTY
The language of 42 U.S.C. § 1983 does not
create substantive rights; rather, it merely
provides remedies for deprivation of rights
established elsewhere. Oklahoma City v Tuttle,
471 U.S. 808, 816, 106 S. Ct. 16, 85 L.Ed.2d 695
(1985). In order to sustain a cause of action
under section 1983, a plaintiff must show that
the defendant deprived him of a right secured by
48~he Court notes that the record is
devoid of any evidence that would support
an equal protection clain.
OO
B-24
the Constitution or the laws of the United
States and that the deprivation was committed by
a person acting under color of state law. West
v Atkins, 487 U.S. 42, 108 S.Ct. 2250, 2255, 101
L.Ed.2d 40 (1988).
A. PPC, SCHACHT and GOOD
Plaintiff contends that the PPC’s
recommendation that plaintiff’s teaching
certificate be suspended for two years deprived
him of his property interest without due process
of law. Defendants argue, however, that
Plaintiff’s lawsuit is barred under the Eleventh
Amendment. Defendants Schacht and Good further
contend that they are entitled to qualified
immunity.
1. Eleventh Amendment Immunity
The Eleventh Amendment states: "[t]he
Judicial power to the United States shall not be
construed to extend to any suit in law or
equity, commenced or prosecuted against one of
the United States by citizens of another state,
or by citizens or subjects of any Foreign State.
B~25
U.S. Const. Amend. XI.*? The amendment "is a
specific constitutional bar against hearing even
federal claims that otherwise would be within
the jurisdiction of the federal courts.
Pennhurst State Sch. & Hosp. v. Halderman,
("“Pennhurst II"), 465 U.S. 89, 120, 104 §8.Ct.
900, 919, 79 L.Ed.67 (1984) (emphasis in
Original). The bar is present "even when the
state is not named as a party of record, if for
all practical purposes the action is against the
state. Schopler v Bliss, 903 F.2d 1373, 1378
(llth Cir. 1990).
Eleventh Amendment immunity may be waived,
however, by explicit Congressional enactment or
a state may consent to be sued in federal court.
Robinson v Georgia Dept. of Transp., 966 F.2d
637, 640 (11th Cir. 1992). In Quern v Jordan,
the Supreme Court held that Congress did not
49The Eleventh Amendment also bars
Suits against a state by its own citizens.
Edelman v Jordan, 415 U.S. 651i, 94 8.¢t.
1347, 39 L.Ed2d 662 (1974).
B-26
abrogate states’ eleventh amendment immunity
when it enacted 42 U.S.C. § 1983. 440 U.S. 332,
341, 99 S.Ct. 1139, 1145, 59 L.Ed. 358 (1979).
Thus, the PPC’s, Good’s, and Schacht’s eleventh
amendment immunity has not been abrogated by
Congress. The Court further concludes that
Georgia has not waived its Eleventh Amendment
immunity.
Suits against state agencies seeking
monetary damages are considered as suits against
the state itself. See Employees of Dept. of
Public Health and Welfare, Missouri v. Dept. of
Public Health and Welfare, Missouri, 411 U.S.
279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973).
Plaintiff, however, argues that the PPC and
Defendants Schacht and Good in their official
capacities should not be barred because Georgia
has waived its immunity by purchasing a
$5,000,000 state employee liability policy. A
state’s Eleventh Amendment immunity is waived
only if it unequivocally indicates that it
"intends to consent to federal jurisdiction that
B-27
otherwise would be barred by the Eleventh
Amendment." Atascadera State Hosp. v Scanlon,
473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 3145
n.1, 87 L.Ed.2d 171 (1984). Therefore, waiver
will not be found unless "stated by the most
express language or by such overwhelming
implications from the text as will leave no room
for any other reasonable construction." Fouche
v Jekyll Island-State Park Authority, 713 F.2d
1518 (lith Cir. 1983).
The Georgia Constitution states in relevant
part:
Sovereign immunity extends to the state and
all of its departments and agencies...[T]he
defense of sovereign immunity is waived as
to these actions for the recovery of
damages for any claim against the state or
any of its departments and agencies for
which liability insurance protection is
provided. No waiver of sovereign immunity
shall be construed as a waiver of immunity
provided to the state or its departments
B-28
and agencies provided by the United States
Constitution. ;
GA. CONST. Art. 1 § 2, P. 9 (1983)°° (emphasis
added). As the last sentence indicates, although
Georgia waived its sovereign®! immunity and
50 This section of the Georgia
Constitution was amended in 1991 to delete
provisions that waived Georgia’s sovereign
immunity when liability insurance was
present. The amendment, however, is
inapplicable because the conduct, which
gave rise to Plaintiff’s claims, occurred
in 1989 and 1990. See Curtis v Bd. of
Regents, 262 Ga 226, 416 S.E.2d 510
(1992)(waiver not withdrawn by passage of
1991 amendment). Even if the amendment
were applicable the result would be the
same since the provisions’ reserving
Eleventh Amendment immunity was preserved.
51 Sovereign immunity and eleventh
amendment immunity are two distinct
concepts. Karpovs v State of Mississippi, |
B<29
consented to be sued in its own courts when
liability insurance was present, it specifically
reserved its Eleventh Amendment immunity.
Therefore, since the state has not waived its
immunity, this Court does not have subject-
matter jurisdiction over the claims against the
ppc.°* The Court next turns to the question of
whether Defendants Schacht and Good are entitled
663 F.2d 640, 645 (Sth Cir. 1981). A
waiver of sovereign immunity does not
dictate a waiver of Eleventh Amendment
immunity. Id.
52 The plaintiff argues that these
defendants obviously were comfortable with
this Court’s subject-matter jurisdiction
because Defendants removed this case to
federal court. While plaintiff is correct
that these Defendants agreed to the
removal, subject-matter jurisdiction
cannot be waived. See, e.g., Owens Equip.
& Erection Co. v Kroger, 437 U.S. 365, 98
S.Ct. 2396, 57 L.Ed.2d 274 (1978).
B-30
to Eleventh Amendment immunity.
Eleventh Amendment immunity applies to
suits against officials in their official
capacities. Pennhurst State School & Hosp. v
Halderman, 465 U.S. 89, 104 S.Ct. 9300, 79
L.Ed.2d 67 (1983). It does not preclude an award
of damages against defendants sued in their
personal or individual capacities. Hafer v Melo,
U.S. . : , 112 S.Ct. 358, 364-365,
116 L.Ed.2d 301 (1991); Gamble, 779 F.2d at
1512. Plaintiff’s complaint does not specify
whether he is suing Schacht and Good in their
official capacity or individual capacities or
both.°? Frequently, a complaint will not
53although the courts may consider the
caption of a case as a factor in
determining whether a defendant has been
sued personally or in his’ official
capacity, see Ludgren v McDaniel, 814 F.2d
600, 604 n.2 (11th Cir. 1987), the caption
in the present case does not indicate one
way or the other.
B-31
indicate whether the defendants are sued in
their individual capacities, official capacities
or both. Kentucky v. Graham, 473 U.S. 159, 167
n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed. 114
(1985). Nonetheless, "'the course of the
proceedings’ typically will indicate the nature
of the liability sought to be imposed." Id.
(citation omitted).
The Eleventh Amendment protects Good and
Schacht if plaintiff "is reasonably seeking
relief from the state coffers. Gamble, 779 F.2d
at 1513. In arguing that defendants waived their
Eleventh Amendment immunity the Plaintiff states
"Georgia’s fiscal integrity will remain intact
due to its insurance protection. "*4 Thus since
plaintiff is seeking to have any potential
judgment satisfied by the state, plaintiff is
suing Schacht and Good in their official
94 plaintiff’s brief in opposition to
Defendant’s Hans J. Schacht, Chris Good,
and the Professional Practices Commission
Motion for Summary Jucgment, p. 13.
B-32
capacities.°> Unfortunately, this conclusion
raises troubling issues for the court, which
have not been addressed by any of the parties.
2. Subject Matter Jurisdiction
The Eleventh Amendment is aé_e specific
limitation on the grant of jurisdiction under
Article III of the United States Constitution.
Hobbs v Georgia Dept. of Transp., 785 F.Supp.
980, 986 n.10 (N.D.Ga. 1991). This case was
removed to this court on March 20, 1991.
Plaintiff’s motion to remand, °° which was
°° The Court does not reach Good and
Schacht’s contention that section § 1983
Suits may not be pursued against a state
officials in their official capacities,
Will v Michigan Dept. of Police, 491 U.S.
58, 109 S.Ct. 2304, 105 L.Ed. 45 (1989),
Since it has concluded the two are
entitled to Eleventh Amendment immunity.
56 plaintiff did not argue that the
Eleventh Amendment was a jurisdictional
bar to removal.
B-33
denied, was opposed by all the defendants.
Consequently, the state Defendants’ Eleventh
Amendment immunity defense raises the issue of
a lack of subject matter jurisdiction.
Under 28 J.S.C. § 1441 only civil actions
that are within the original jurisdiction of the
district court may be removed. McKay v Boyd
Const. Co. Inc., 769 F.2d 1084, 1087 (5th Cir.
1985). The phrase “civil action" means "the
entirety of the proceedings in question, not
merely" claims or parties. Arango v Guzman
Travel Advisors Corp., 621 F.2d 1371, 1376 (5th
Cir. 1980). A district court must remand a case
if it discovers, at any time prior to final
judgment, that it lacks subject matter
jurisdiction. 28 U.S.C. § 1447. Undoubtedly, the
claims against the PPC, Schacht and Good in
their official capacity were improperly removed.
The question is whether, in light of § 1441 and
1447 (c), a state defendant’s Eleventh Amendment
immunity defense completely divests this court
subject-matter jurisdiction even when other
" 3 < Sirs Sa POE Oe see rat ety
pen ee ca RN Gr aE RN ON OTT Me whi eA eR I ttt I SI ee
B-34
federal claims against other defendants are
present such that the entire action must be
remanded to the state court.
In McKay a plaintiff sues a state highway
department and a private contractor for
negligence. the fifth Circuit concluded that the
case had been improperly removed because the
state had eleventh Amendment immunity, and
therefore, the presence of the state as a co-
defendant required that the action against the
private contractor also be remanded. The Court
concludes that the present case is
distinguishable from McKay.
The Supreme Court has indicated that the
Eleventh Amendment jurisdictional bar acts to
preclude individual claims rather than entire
cases. Henry v Metropolitan Sewer Dist., 922
F.2d 332. 338 (6th Cir. 1990); but see Simmons
v State of Cal. Dept. of Indus. Rel., 740
F.Supp. 781, 786 (E.D.Cal. 1990) (removal
improper as to all defendants despite presence
of federal questions when Eleventh Amendment
)
B-35
immunity present). In Pennhurst II, which held
that pendant jurisdiction cannot override the
protection of the Eleventh Amendment, the
Supreme Court states "{a] federal court must
examine each claim in a case to see if the
court’s jurisdiction over that claim is barred
by the Eleventh Amendment." Henry, 922 F.2d at
337; See Roberts v College of the Desert, 870
F.2d 1411, 1415 (9th Cir. 1988) ("even if the
[state defendant] is shielded from suit by the
state’s sovereign immunity, we have jurisdiction
to consider the merits of [the plaintiff’s]
appeal because she could still recover from the
individual defendants in thei~ individual
capacity.") Consequently, "to the extent that
McKay forecloses consideration of claims
unaffected by the eleventh amendment in favor of
remand pursuant to 28 U.S.C. § 1447 (c) [this
Court] rejects as fundamentally incompatible
with ... Pennhurst II." Henry at 339.
Thus, the court concludes that it need not
remand the entire case to the state court.
B-36
Rather the Court, according to Pennhurst II, may
limit its remand to the claims against the PPC,
and Defendants Schacht and Good in their
official capacities.°’ See Roberts, 922 F.2d
at 1415. Accordingly, the claims against Good
and Schacht in their individual capacities are
REMANDED to the Clarke County Superior Court.
The Court now turns to plaintiff’s claims
against Good and Schacht in their individual
Capacities. If a Plaintiff seeks to "proceed
against the officer only because he acted
without proper authority, the judgment may not
compel the State to use its funds to compensate
the plaintiff for the injury. Florida v.
Treasure Salvors, Inc., 458 U.S. 670, 689, 102
S.Ct. 3304, 3317, 73 L.Ed.2d 1057 (1982). Thus,
57 The Eleventh Amendment does not
present a bar to section 1983 claims
against state officials in their
individual capacity. Scheuer v Rhodes, 416
U.S. 232, 237-38, 94 S.Ct. 1683, i1686-
1697, 40 L.Ed.2d 90 (1974).
seteadnne's
B-37
any allegation that defendants Schacht and Good
exceeded their authority is subject to a
qualified immunity, rather than an Eleventh
Amendment immunity, defense.°® The difficulty
is determining which claims are against the
individual defendants in their individual
capacities. »*?
58 Contrary to Plaintiff’s assertion,
any action taken by Schacht and Good in
their official capacities does not
abrogate a qualified immunity defense
since qualified immunity is not a defense
official capacity claims.
59 Since Schacht and Good have raised
the qualified immunity defense they have
acknowledged that they were also sued in
their individual capacities. See Lundgren
v McDaniel, 814 F.2d 600, 603-604 (11th
Cir. 1987) (defendants sued in personal
capacity because they raised qualified
immunity defense, which is inapplicable to
official capacity suits).
B-38
A review of the Complaint shows that
plaintiff makes a number of allegations that
Schacht, Good and the PPC together acted in an
arbitrary and capricious manner, with malice and
in bad faith.©° this is not an individual
capacity claim. Paragraph 32, which alleges that
defendant Good acted outside his statutory
authority when he testified at a GHSA hearing, °+
NA her ie ss Sic SW nd ik doe ob
is the only paragraph which specifically allege |
an individual capacity claim. The Court
hesitates to address the issue of qualified
immunity until he Plaintiff clarifies the
60 See Complaint at PP. 24-34.
61 paragraphs 33 and 34 allege that
Good acting as the agent of the "PPC
started his investigation before he
received an official request to do so. The
Court finds it difficult to determine if
this is a claim against Good in his
individual capacity or official capacity
Since Plaintiff is alleging that the
agency exceeded its authority.
B-39
specific claims that relate to Good and Schacht
in their individual Capacities. Consequently,
the Court reserves its ruling on these claims
and DIRECTS the plaintiff to Submit a short
brief within 10 days from receipt of this order
specifying all claims against Good and Schacht,
concerning plaintiff’s property and liberty
interests, in their individual Capacities.
defendants may respond, if necessary, within
five days of plaintiff's Submission.
B. CCSD & Purvis — Deprivation of Property
Defendants CCSD and Purvis concede that
plaintiff had tenure in his teaching position.
Defendants, however, argue that Plaintiff did
nit have tenure in his Supplemental duty
assignment as a coach. The Constitution itself
does not create property interests. Board of
Regents v Roth, 408 U.S. 364, 377, 92 8.Ct.
2701, 2709, 33 L.Ed.2d 548 (1972). "rather they
are created and their dimensions defined by
existing rules or understandings that stem from
an independent source such as State law..." Id.;
a
|
B-40
Cleveland Bd. of Ed., 470 U.S. 532, S.Ct.,
L.Ed.2d (1982). Therefore, the first inquiry is
whether Georgia’s statutory scheme gave
Plaintiff a property interest or legitimate
claim of entitlement to his coaching position.
Hatcher v Bd. of Public Ed., 809 F.2d 1546, 1551
(11th Cir. 1987).
I. Coaching Position
Georgia law created a property interest in
‘ontinued employment for tenured teachers, i.e.
one who accepts a school year contract for the
fourth consecutive year from the same local
board of education. Hatcher 809 F.2d at 1550;
O.C.G.A. § 20-2-942 (b)(1). A tenured teacher
may be demoted or not have his contract renewed
for the reasons set forth in 0.C.G.A. § 20-2-940
(a) pursuant to the procedural protection in
O.C.G.A. § 20-20942 (b)(2), which requires that
the teacher be given written notice of the
board’s intention and the right to be
represented by counsel at a full hearing before
the board. Id.
B-41
The Georgia appellate courts have not
addressed the issue of whether or not a teacher
gains tenure in a Supplemental duty
position. ° Therefore, the Court turns to the
62 The authority on which Plaintiff
relies, Rockdale County School Dist. y
Weil 245 Ga 730, 266 S.E.2d 929 (1980) and
Ellis-Adams v. Whitfield County Bd. of Ed.
182 Ga App 463, 356 S.E.2d 219 (1987), do
not stand for the Proposition that a
teacher has tenure in his Supplemental
duty position. In Ellis-Adams the
plaintiff was reassigned from her position
as Language Arts Coordinator for the
district to a classroom teacher position.
The plaintiff in weil waS a_e school
principal who had been reassigned to be
the coordinator of an alternative school
program. Thus, in these cases, which
concern the issue of whether plaintiff has
tenure, the plaintiffs in Weil and Ellis-
Adams had tenure in their respective
B-42
applicable statutory scheme to determine whether
plaintiff had tenure in his position as head
football coach. The Georgia Code refers to a
teacher with a "contract for employment",
O.C.G.A. § 20-2-940(a), and defines "school year
contract" as "a contract of full-time employment
between a teacher and a local board of
education." 0.C.G.A. § 20-2-942(a)(3). In the
instant case there is no evidence that plaintiff
positions and the issue was whether a
demotion, which would entitle them to a
due process hearing, had occurred. Absent
tenure, Plaintiff is not entitled to a due
process hearing before being removed even
if Plaintiff suffered a loss in prestige,
pay, and responsibility. Furthermore,
Holley v Seminole County Sch. Dist. 755
F.2d 1492 (lith Cif. 1985) is
distinguishable from the instant case.
Although the plaintiff in Holley coached
football, he sued because his teaching
contract was not renewed.
eee eT ee a ee ee ee ee
B-43
had a written contract for his coaching
position. The supplement he received for
coaching was not included in his teaching
contract. Consequently, the Court concludes that
a coaching position, which is not guaranteed by
a written contract for a definite term, falls
outside the protection of the statute. see
Freeman v Hinson, No. C76-1351 (N.D. Ga. 1977)
(no property interest in position of department
chairman).
Furthermore, the Georgia State Board of
Education has consistently held that teaching
contracts do not include supplemental duty
positions. See Copeland v Clarke County Bd.
Educ., Case No. 1988-43, (position of lead
teacher), aff’d. J. Gaines, Civil Action No. SU-
89-CV-0185 (Superior Court, Western Judicial
Circuit, July 13, 1989); Bonner v Fulton County
Bd. Educ., Case No. 1989-24 (State Board of Ed.,
Dec. 14, 1989)(no tenure in chairperson and
coaching positions); Arp v Breman City Bd. of
Educ. No. 1985-16 (State Bd. of Educ., Sept. 12,
B-44
1985) (0.C.G.A. § 20-2-942 applies only to
position under which individual had a contract
to perform).
Finally, the Court notes that a number of
state and federal courts have concluded that
teachers dco not acquire tenure in coaching
positions. See, e.g., Lagos v. Modesto City
Schools Dist., 843 F.2d 347 (9th Cir.), cert.
denied, 488 U.S. 926, 109 S.Ct. 309, 102 L.Ed.2d
328 (1988); Jett v Dallas Indep. Sch. Dist., 798
F.2d 748 (5th Cir. 1986), modified on other
grounds, 491 U.S. 701, 109 S.Ct. 2702, 105
L.Ed.2d 598 (1989); Slockett v. Iowa Valley
Community Sch. Dist., 359 N.W.2d 446 (Iowa,
1984); Tate v. Livingston Parish Sch. Dist. U-46
v. Kossoff, 419 N.E.2d 658 (Ill. App. 1981);
Maupin v. Indep. Sch. Dist., 632 P.2d 396 (Okla.
1981); White v. Banks, 614 S.W.2d 331 (Tenn.
1981); Stang v Indep. Sch. Dist., 256 N.W.2d 82
(Minn. 1977); Chiodo v Bd. of Educ., 215 N.W.2d
806 (Minn. 1974). As noted in Tate "[w]hile such
decisions are not controlling and can be
ROM epg ae ea Ne
se SA ah RL oli BER 2 in aie neti Ser ie eI
B-45
distinguished on their facts, or on differences
in the tenure acts or certification
requirements, they are significant in their
unanimity in denying tenure to coaches. 444
So.2d at 221. Consequently, the Court concluded
that since Plaintiff did not have a property
interest in his coaching position, he was not
entitle to a pre-termination hearing.
2. Teaching Position
Plaintiff also alleges that he was
terminated from his teaching position without a
hearing in violation of his due process rights.
Defendant was entitled to a termination hearing
if he was fired from his tenured teaching
position. 0.C.G.A. § 20-20-942 (b)(2). Although
he submitted his resignation, Plaintiff asserts
that he was constructively discharged.
Defendants, however, contend that there is no
evidence, which would support a claim of
constructive discharge, and that the evidence
shows that the resignation was voluntary.
Constructive discharge is a mixed question
B-46
of law and fact. Garner v Wal-Mart Stores, Inc.,
807 F.2d 1536, 1538 (11th Cir. 1987). The test
for constructive discharge is whether a
reasonable person in the employee’s position
would have felt compelled to resign, Downey v
Southern Natural Gas Co., 649 F.2d 302, 305 (5th
Cir. 1981), a question which the Court has the
power to decide. Shawgo v Spradlin, 701 F.2d
470, 481 n. 12 (5th Cir. 1983); see, e.g.,
Jurgens v E.E.0.C., 903 F.2d 386, 391 (5th Cir.
1990).
Defendant CCSD argues that the present case
is analogous to Jett v Dallas Indep. Sch. Dist.,
798 F.2d 748 (5th Cir. 1986), modified on other
grounds, U.S., 109 S.Ct. 2702, 105 L.Ed.2d 598
(1989). In Jett a high school teacher who was
head football coach and athletic director at one
high school was reassigned to teach and coach
freshman football and track at another school.
The Fifth Circuit concluded that the evidence
was insufficient to support a claim of
constructive discharge stating:
B~-47
"Jett tendered his resignation ... stating
that, after considering his assignment to
Thomas Jefferson High School, he could not
accept the position and felt ‘forced to
resign from the public education field with
much sorrow and humiliation.’ Jett argues
that his significant loss in coaching
responsibilities as well as the racial
discrimination and the retaliation of his
protected speech that prompted . his
reassignment amounted to a constructive
discharge.
Although a demotion or transfer in
some instances may constitute a
constructive discharge, we find that Jett’s
loss of coaching responsibilities was not
So intolerable that a reasonable person
would have felt compelled to resign. We
have noted that constructive discharge
cannot be based on the employee’s
subjective preference for one position over
another. [citation omitted] ... Moreover,
a
B-48
the humiliation and embarrassment that
[plaintiff] suffered are not significant
enough to support a constructive discharge.
See Shawgo 701 F.2d at 481-82 (publicity
and derogatory comments resulting from
disciplinary proceedings were not
constructive discharge); Junior [v. Texaco,
Inc.,] 688 F.2d 377, 380 (5th Cir. 1982)
(unfavorable work evaluations not
constructive discharge). Id. at 755-56.
The Court acknowledges that the instant
action is distinguishable because plaintiff’s
humiliation and emotional distress were produced
both by the reason he lost the position, i.e.
allegedly improper grade changes made by other
teachers, which were approved by the guidance
counselor and the principal, °? and by the loss
63 after Purvis explained plaintiff’s
options the Plaintiff testified he said "I
don’t need to go back to the classroom ...
my hearts not in it...I’ve been slandered
and put down through this whole thing."
ee Se ae *
Ce a he TE SB St RT AN Me i rt” >, ails
ENTE OE OO CE
B-49
of the position itself. Unless extreme, however,
loss of prestige, humiliation and embarrassment
do not constitute a constructive discharge.
Alicea Rosado v. Garcia Santiago, 562 F.2d 114,
119 (lst Cir. 1977).
Furthermore, "[pjart of the employee’s
obligation to be reasonable is an obligation not
to assume the worst, and not to jump to
conclusions too fast." Bourque v_ Powell
Electrical Mfg. Co., 617 F.2d 61, 65 (5th Cir.
1980). The evidence shows that Brewer never
returned to work after he was dismissed as head
football coach. This case is distinguishable
from the situation where a plaintiff is given
the option of resigning or being fired. See,
©.g-, Downey, 649 F.2d 302 (Sth Cir. 1981)
(Superior told older employee he might be
discharged with Subsequent loss of benefits so
plaintiff resigned). When Purvis informed Brewer
that his request for leave had been denied he
told Brewer that he could return to work, not
Brewer Deposition, p. 101.
B-50
report to work and be fired or resign. |
Plaintiff was not given an either/or option. |
Rather, he was told that if he did not return to
work he would be fired. Instead of reporting to
work, Brewer called Purvis the next day and told
him that he could not get a letter of
resignation to him until Monday because his
attorney was in court. Brewer subsequently
submitted his resignation on March 26, 1990.
The facts of this case do not support a
claim for constructive discharge. Cases in which
ummary judgment has been denied on this issue
have involved intolerable working conditions
©4 In his affidavit dated Feb. 14,
1992, Plaintiff stated that Purvis told
him that if he did not have his
resignation on his desk the next morning
he would be fired. This assertion
contradicts plaintiff’s deposition
testimony in which he states that he was
told he would be fired if he did not
return to work.
—————<x———rtt—“—i—OS—~—<—<~<~Sé<;<CO
B-50b
while the plaintiff was on the job. See, e.g.,
Stephens v. C.I.T. Group/Equip. Financing, Inc.,
955 F.2d 1023 (5th Cir. 1992) (demoted plaintiff
asked to train and to report to young successor,
to explain his demotion and to introduce
successor to defendant’s biggest client,
deprived of all supervisory responsibilities and
pay cut); Goss v Exxon Office Systems, Co., 747
) F.2d 885 (3rd Cir. 1984) (plaintiff’s supervisor
verbally abused her when she decided to become
pregnant, assigned her sales territory to a man
cnet
despite her success and gave her an ultimatum to
accept her reassignment or resign when she
pursued in-house remedies); Levendos v. Stern
hn SS bee RR aED a w
Vs eas dels Sant USA ENR 2 RRA RE ete SR Cave
Bg oR erie lS AS
B-51
Entertainment, Inc., 860 F.2d 1227 (3d Cir.
1988) (female excluded from management meetings
and not permitted to order supplies even though
males in her position had been allowed to do so,
falsely accused of stealing and drinking on the
job and had stolen goods placed in her locker to
implicate her); Mayer v Brown & Root Constr.
Co., 661 F.2w 369 (5th Cir. 1981) (defendant
transferred pregnant worker to position that
would have endangered health of child). The
Court does not think the Defendants’ request to
that Plaintiff to return to work imposed
intolerable work condition that would cause a
reasonable person to resign. Furthermore, it was
unreasonable for Plaintiff to refuse to return
to work. Accordingly, defendant’s CCSD’s and
Purvis’ motion for summary judgment on the issue
of due process in relation to Plaintiff’s
teaching and coaching positions are GRANTED.
C. GHSA and FORDHAM
GHSA and Fordham argue that they are not
state actors and did not deprive Plaintiff of
TR ANE NE te nh EP
B-52
any protected right or interest.
1. State Actors
The fourteenth amendment does not protect
against private action, no matter how unfair
that action may be. Shelley v. Kraemer, 334
U.S. 1,13, 68 S. Ct. 836, 842, 92 L.Ed. 1161
(1948). "(T]he ultimate issue in determining
whether a person is subject to suit under § 1983
is the same question posed in cases arising
under the fourteenth amendment: is the alleged
infringement of federal rights ‘fairly
attributable’ to the State’" Randall-Baker v.
Kohn., 457 U.S. 830, 838, 102 S.Ct. 2764, 2769,
73 L.Ed.2d 418 (1982) (quoting Luger v Edmondson
Oil, 457 U.S. 922, 957, 102 S. Ct. 2744, 2753,
73 L.Ed.2d 482 (1982).
State action is present in two sets of
circumstances. First, the state action is
present where the "actor" is the "State itself,
a state agency, a political subdivision of the
state, or a public employee." Newton v Southeast
Alabama Gas Dist., 708 F.Supp. 1254, 1257 (M.D.
B-53
Ala. 1989). Second, state action is also present
where the actor is a private entity if it is
deemed a state actor by virtue of its functions
and its relationship with the state.Id.
Traditionally, courts have found that high
school athletic associations are state actors.
See Louisiana High School Athletic Ass’n v. St.
Augustine High School, 396 F.2d 224, 227 (5th
Cir. 1968); Mitchell v Louisiana High School
Athletic Ass’n., 616 F.2d 152, 156, reh’g
denied, 621 F.2d 440 (5th Cir. 1980), and cert
denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d
109 (1981). Defendants, however, contend that
Since the Supreme Court’s decision in Randall-
Baker and Blum v Yaretsky, 457 U.S. 991, 102
S.Ct. 2777, 73 L.ed.2d 534 (1982), the lower
courts have unanimously held that such athletic
associations do not act under color of law. The
Court, however, notes that almost every case
cited by the Defendants to support this
assertion involves that National Collegiate
Athletic Association, which is distinctly
Tee ee
B-54
different from ae high/- school athletic
association as acknowledged by the Supreme Court
in National Collegiate Athletic Ass‘n_ v.
Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 102
L.Ed.2d 469 (1988).®°°
In Tarkanian the Supreme Court, in reaching
its conclusion that the NCAA was not a state
actor, stated "the source of the legislation
adopted by the NCAA is not Nevada but the
collective membership, speaking through the
organization that is independent of any
particular state. 488 U.S. at _, 109 S.Ct. at
462. In a footnote the Supreme Court stated
65 The other authority cited by
Defendants, Anderson v. Indiana High
School Athletic Association, 699 F.Supp.
719 (S.D.Ind. 1988), was decided before
Tarkanian.
B-55
"(t]he situation would, of course, be different
if the membership consisted entirely of
institutions located within the same State, many
of them public institutions created by the same
sovereign." Id. at 13 (citing Clark v Arizona
Interscholastic Ass‘n, 695 F.2d 1126 (9th Cir.
1982), cert. denied, 464 U.S. 818, 104 S.Ct. 79,
78 L.Ed. 2d 90 (1983); Louisiana High School
Athletic Assoc. v. St. Augustine High School,
396 F.2d 224, 227 (5th Cir. 1968)). Thus, an
athletic association whose membership. is
predominated by institutions created by the same
sovereign is a state actor. see Libby v. South
Inter-Conference Ass’n. 728 F. Supp. 504, 507
(N.D.I1ll. 1990). Consequently, the Court
concluded that the Defendants are state actors.
2. Property Interest
Defendants next assert that the Plaintiff
was not deprived of a federally protected right,
privilege or immunity. Plaintiff contends that
the Defendants denied him his property interest
B-56
in his job. *° Generally, cases in which the
decisions or rules of a high school athletic
association have been challenged have involved
a student or a high school plaintiff. See, e.g.,
Mitchell, 430 F.2d at 1156; Walsh, 616 F.2d at
155, St. Augustine High School, 396 F.2d at 225.
In this case, Plaintiff is challenging a
decision against Cedar Shoals High School.
Plaintiff does not have a federally protected
property interest in the games CSHS won. Even
if, however, these defendants’ actions affected
plaintiff’s job as a coach or as a teacher,
summary judgment is still appropriate since the
Court has already concluded that Plaintiff did
not have tenure in his coaching position and he
was not deprived of his teaching position
without due process of law. Consequently, GHSA’s
and Fordham’s motion for summary judgment on
plaintiff’s claim that he was deprived of his
66 plaintiff specifically contends
that GHSA’s decision caused him to lose
his job and made him unemployable.
B-57
property interest without due process of law is
GRANTED.
II. DUE PROCESS DEPRIVATION OF LIBERTY
In Roth v. Bd. of Regents, 408 U.S. 564,
573, 92 S.Ct. 2701, 2707, 33 L.Ed. 2d 548 (1972)
the Supreme Court stated that a plaintiff must
allege either public disparagement damaging to
his standing in the community or a stigmatic
injury in an employment interest likely to
impair future work-related opportunities in
order to invoke the procedural due process
protection for a claim of injury to a liberty
interest. The Eleventh Circuit standard for
determining whether the deprivation of an
individual’s liberty interest has occurred
requires the plaintiff to prove: (1) a false
statement (2) of a stigmatizing nature (3)
attending a governmental employee’s discharge
(4) made public (5) by the governmental employer
(6) without a meaningful opportunity for
employee name clearing. Buxton v Plant City,
Florida, 871 F.2d 1037, 1042 (11th Cir. 1989).
Pe Le Oe, a Te ee
Lad mie Soh I. ee UR alln aaieektet tee
B-58
A. CCSD
Brewer claims that the PPC’s investigative
report to the public and press after the report
has been presented to Hans Schacht at the CCSD
meeting on Feb. 1, 1990, deprived him of his
liberty interest in his reputation without due
process of law. CCSD, however, first argues that
Plaintiff has not established the falsity
element necessary to implicate his liberty
interest. A review of the PPC’s preliminary
investigative report shows that it called
Plaintiff’s honesty into question, implied that
he had been previously involved in grade
changing incidents,®’ implied he took part in
67 The report states "Mr. Brewer’s
statements, which contain only partial and
benign admissions, cannot be regarded as
creditable [sic]. His statements lack
persuasiveness all the more, since this
present matter is not an isolated incident
in his career. Stroud Affidavit. Exh. "E".
at 20 (emphasis added).
B-59
improper grade changes, attacked his leadership
abilities and alleged he knew of the improper
activities designed to gain the eligibility of
g.c.©® The Hearing Tribunal Report®? did not
address the allegation that Plaintiff had been
previously involved in grade changing incidents.
Furthermore, the investigative report gave the
impression that plaintiff intentionally and
actively sought to gain the eligibility for J.C.
by grade changes, which he knew to be improper.
Although the hearing tribunal concluded that the
actions were proper, it acknowledged that Clarke
County School System did not have a formal
written policy regarding grade changes at the
time the changes were made and that CSHS’s
principal had approved the grade changes.
therefore, after reading both documents in a
light most favorable to the Plaintiff and
drawing all inferences in his favor, Blackston
v. Shook & Fletcher Insulation Co., 764 F.2d
68 stroud Affidavit, Exh. "E".
69 Stroud Affidavit, Exh. "D".
B-60
1480, 1482 (11th Cir. 1985), the Court concludes
that the plaintiff has presented evidence of a
false statement in his claim against CCSD.
Next, CCSD contends that Plaintiff cannot
establish the third element because he was not
terminated from his teaching position. Damage to
one’s reputation, standing alone, is not
protected by the Fourteenth Amendment Due
Process Clause. Emory v Peeler, 756 F.2d 1547,
1554 (11th Cir. 1985) (citing Paul v Davis 424
U.S. 693, 700-02, 96 S.Ct. 1155, 1160-61, 47
L.Ed.2d 405 (1976)). Rather, "damage to
reputation must be coupled with the denial of a
more tangible interest, such as the loss of
employment, to warrant the fourteenth amendment
due process protection delivered by Section
1983." Id. Nevertheless, the liberty interest
Survives even if the plaintiff does not have a
Property interest in his position when
statements are made in the context of a
termination. See, e.g., Codd v Velger, 429 U.S.
624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977);
B-61
Campbell v Pierce County, 741 F.2d 1342 (11th
Cir. 1984) cert denied, 470 U.S. 1052, 105 S.Ct.
1754, 84 L.Ed.2d 818 (1985).
While the Court agrees that plaintiff was
not terminated from his teaching position, it is
disingenuous to suggest that he was not fired
from his coaching position. The question is
whether the .termination of his coaching
responsibilities is sufficient to invoke the due
process protection of the fourteenth amendment.
In Campbell, the plaintiff was an at-will
employee who suffered damage to her reputation
when the transcript from the Commissioner’s
meeting at which she was dismissed was
published. Similarly, this plaintiff had an at-
will coaching contract with the Clarke County
School District and the PPC’s investigative
report was read at a CCSD meeting two days
before he was discharged from his coaching
position. Although Campbell is distinguishable
because, unlike Brewer, the plaintiff in
Campbell did not remain employed in any
B-62
Capacity; this Court concludes that CCSD’s
decision to relieve Plaintiff from his position
as head football coach is significant enough to
implicate his liberty interest.
In Smith v Bd. of Educ. of Urbana Sch.
Dist. No. 116, 708 F.2d 258 (7th Cir. 1983) and
Schneeweis v Jacobs, 771 F.2d 733 (E.D.Va.
1991), the courts assumed, without deciding,
that the plaintiff’s had a liberty interest in
their coaching positions even though they had
not been terminated from their teaching
positions. In Smith the plaintiffs were physical
education teachers who were dismissed from their
head coaching positions but retained in their
teaching positions. In concluding that the
plaintiff were not stigmatized by the school
board members statements, the Court stated that
the Constitution required that the school board
members "not make public statements so critical
of plaintiff’s coaching abilities that it would
be virtually impossible for them to find new
employment in similar coaching positions."
B-63
Smith, 708 F.2d at 265 (emphasis added). In
Schneeweis the district court held that a high
school basketball coach’s liberty interest in
her reputation was not implicated when she was
suspended because a temporary suspension was not
an injury to employment. 7° Thus, both Smith
and Schneeweis implicitly recognized that
termination of the coaching position alone would
satisfy the termination requirement.
The Court finds this reasoning sounder than
the reasoning in Diehl v. Albany County Sch.,
694 F. Supp. 1534, 1538 (D. Wyo. 1988), which
held that a plaintiff whose high school
basketball coaching contract was not renewed
could not succeed on his liberty interest claim
because he retained his teaching position and
continued to coach at the junior high level, for
three reasons. First, Diehl relied on Danno v
Peterson, 421 F.Supp. 950 (N.D.I1l. 1976), which
70 The district court also concluded
that no stigmatizing statements had been
made.
B-64
held that a plaintiff’s liberty interest was not
implicated when he was transferred from an
administrative position to a teaching position.
In contrast to the plaintiff in Danno who worked
for the school board in one position and was
reassigned to another, Brewer was employed by
the school district in two distinct positions:
as teacher and as head football coach.
Plaintiffs have implicitly concede this point in
their arguments concerning Plaintiff’s lack of
tenure in his coaching position. Therefore, the
present case is distinguishable from Danno.
Second, in Danno, the district court
stated:
The plaintiff in this action may well wish
to seek other employment opportunities,
however, he is still employed by the
defendant school board. Whatever stigma may
have been inflicted by the board in the
allegedly defamatory remarks is greatly
diminished by the simultaneous action
assigning him to the position of teacher
B-65
and continuing his employment in that
Significant capacity ... the alleged stigma
is minimized by his continued employment.
421 F.Supp. at 954. This Court does not see
how any alleged stigma in the present case was
diminished by the decision to retain Plaintiff
in his teaching position. Plaintiff testified
that he wanted to get back into coaching and
that the jobs he looked for involved coaching
positions. ’} Unlike the plaintiff in Diehl
who retained other coaching responsibilities,
however, Brewer was completely removed from
coaching. If he desires to coach he is compelled
to seek other employment and the statements made
may have affected his employment opportunities.
Schools actively recruit teachers to fill
specific coaching positions. For example,
Plaintiff testified that high schools in other
counties tried to hire him to fill head football
coach positions while he was coaching at
71 Deposition Ken Brewer, p. 103.
Pee ere es eee re
Pe ee Oe ee ee fee een eee
. Oe ae ns ey ee, ee ee eee Pe ee
B-66
CSHS. 72 Furthermore, the articles that
appeared in the local Athens’ newspaper when
Plaintiff was hired as a head _ football
coach.’3 hus, the stigma attached to
plaintiff’s conduct as a coach is not minimized
by his continued employment as a teacher.
Accordingly, for the reasons discussed, the
Court concluded that there was a termination of
employment.
Finally, defendant ccsp argues that even if
the statements were made in an employment
termination context Plaintiff had an Opportunity
to clear his name at the PPC hearing. Buxton
indicates that the governmental employer must
provide a meaningful Opportunity for a name-
clearing hearing. 871 F.2d at 1042. CCSD never
72 Deposition of Ken Brewer, p.106-
109.
73 Plaintiff's response to Defendant
Clarke County School District’s Motion for
Summary Judgment, Exh. A.
B-67
provided Plaintiff with any opportunity to clear
his name.
Moreover, even if the PPC hearing could
cure CCSD’s failure to provide a hearing,
Plaintiff has provided evidence that the hearing
was not provided at a meaningful time. Hearings
granted in cases in which a liberty interest
involving reputation is implicated serve to
allow the employee to clear his name. Buxton,
871 at 1046. "’[{T])he hearing need not take place
prior to {the employee’s] termination or to the
publication of related information adverse to
his interests.’" Id. (quoting Campbell, at
1345). Thus, the name-clearing hearing is
eventually provided, due process is not
violated. The Court disagrees.
Due process requires that a hearing be held
at a meaningful time. Mathews v Eldridge, 424
U.S. 319, 333, 96 S.Ct. 832,902, 47 L.Ed.2d 18
(1976). In Campbell the Eleventh Circuit implied
that due process was violated when "a
substantial amount of time elapsed between the
——- “ee
B-68
claimant’s termination and the ‘name-clearing’
hearing." Campbell at 1346 (plaintiff could not
prevail on her claim for damages under § 1983
because she had been’ provided with a
constitutionally adequate name-clearing hearing
within 14 days of her dismissal; see also
Endicott v Huddleston, 644 F.2d 1208, 1216-17
(7th Cir. 1980) (three year delay in providing
name-clearing hearing could give rise to
compensable damages).’* In this case the PPC’s
hearing for the Plaintiff was over one year and
four months after he was relieved of his head
coaching responsibilities, and four months after
74 The court said the plaintiff could
recover for the cost of attorney’s fees in
getting second hearing through’ the
mandamus action in state court. The court
further noted that the plaintiff would
thave been entitled to recover damages for
injury to reputation between the time he
was denied due process and the time of the
second hearing. Endicott, at 1217.
B-69
he filed suit. While Plaintiff did not have to
wait as long as the plaintiff in Endicott, he
certainly had to wait longer than the plaintiff
in Campbell. Therefore, the Court concluded that
plaintiff has provided evidence on the sixth
element of a liberty interest claim.
Accordingly, CCSD’s motion for summary judgment
on Plaintiff’s liberty interest claim is DENIED.
B. PURVIS
Defendant Purvis also contends that he
never made a false statement concerning
Plaintiff. Purvis admits that his recommendation
to relieve Brewer of his coaching
responsibilities was base on the PPC
investigative report, the CCSD Internal Task
Force Report, and the GHSA’s ruling. Plaintiff,
however, has not directed the Court to any
specific false statements made by Purvis.
Rather, Plaintiff appears to contend that
Purvis’ recommendation in and of itself
stigmatized him. The mere act of recommending
Plaintiff’s dismissal does not implicate
— sea.
OO EEE EEE EEE EOE EOE EEE
B-70
Plaintiff’s liberty interests. See Lagos v
Modesto City Schools Dist., 843 F.2d 347 (9th
Cir. 1988) (plaintiff not stigmatized by school
board’s decision not to renew his teaching
contract). Consequently, the Court concludes
that Plaintiff has failed to establish that
defendant Purvis made a false statement.
Consequently, the Court concluded that Plaintiff
has failed to establish that Defendant Purvis
made a false statement. Consequently, Purvis’
motion for summary judgment on this issue is
GRANTED.
C. GHSA and FORDHAM
Plaintiff also claims that the decision
rendered by Fordham implicated his liberty
interest in his reputation. The Court concludes,
however, that plaintiff has not established that
the statements in the ruling were made in the
context of a termination. In Campbell, the
transcript from the Commissioner’s meeting at
which she was dismissed was published. In
contrast, the GHSA’s ruling was issued months
B-71
before Plaintiff was removed from his coaching
position. Consequently, the ruling did not
implicate Plaintiff’s liberty interest in his
reputation. Accordingly, defendants GHSA’s and
Fordham’s motion for summary judgment on
Plaintiff’s liberty interest claim is GRANTED.
STATE LAW CLAIMS
Brewer claims that the Defendants libeled
him in violation of 0.C.G.A. § 51-5-1. "A libel
is a false and malicious defamation of another
expresses in print, writing, pictures, or signs,
tending to injure the reputation of the person
and exposing him to public hatred, contempt, or
ridicule." 0O.C.G.A. § 51-5-1(a). in order to
recover for a libelous statement the statement
must be published. 0O.C.G.A. § 51-5-1(b).
I. CCSD
Plaintiff claims he was libeled presumably
by CCSD’s distribution of the PPC’s
Investigative Report at a public meeting of the
School Board. Summary Judgment is appropriate
Since Plaintiff failed to respond to CCSD’s
B-72
argument on this issue. See Early v Champion
Int’l Corp., 907 F.2d 1077 (11th Cir. 1990).
(non-moving party bears the burden of coming
forward with sufficient evidence on each element
that must be proved).
Furthermore, the Court notes that the
statute of limitation had passed when this
action was filed. The applicable statute of
limitation to Plaintiff’s claim for damage to
his reputation is one year. Wiggins v Citizens
& Southern Nat. Bank, 173 Ga. App. 761, 328 S.E.
222 (1985); O.C.G.A. § 9-3-33. The evidence
shows that the PPC’s investigative report was
distributed on February 1, 1990. Brewer’s
complaint was filed February 7, 1991, which is
outside the statute of limitations.
Consequently, his claim is time barred.
Accordingly, CCSD’s motion for summary judgment
on the issue of Libel is GRANTED.
II. Purvis
Plaintiff fails to identify how Dr. Purvis
libeled or slandered him. The Court assumes that
B-73
Plaintiff’s contention is that Purvis’ action in
recommending that Plaintiff be terminated
defamed the Plaintiff. Plaintiff has not pointed
this Court to any authority which would support
his argument. Consequently, summary judgment in
favor of Dr. Purvis is GRANTED. See Celotex v.
Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986).
III. GHSA
Plaintiff’s allegation of defamation in the
GHSA’s ruling is based on the inclusion of
language regarding Plaintiff’s knowledge of the
grade changes. In order to recover for a
libelous statement the statement must _ be
published. 0O.C.G.A.§ 51-5-1(b). Generally,
publication occurs when the libel is
communicated to anyone other than the person
libeled. Kurtz v Williams, 188 Ga. App. 14, ___,
371 S.E.2d 878, 880 (1988); O.C.G.A. § 51-5-3.
Georgia Courts, however, have carved = an
exception to the general rule, which provides
that "when communication is intracorporate, or
B-74
between members of unincorporated groups or
associations, and is heard by one who, because
of his/her duty or authority has reason to
receive the information, there is no publication
of the allegedly slanderous material."Id.
As Executive Director of the GHSA, Mr.
Fordham, had an obligation to communicate his
findings to Superintendent Purvis. Even if the
decision eventually was made public by others,
there is no evidence that the GHSA or Fordham
disseminated the ruling to anyone else.
Consequently there was no publication.
Furthermore, even if there was publication,
the statute of limitation on this particular
instance of publication has expired. The
evidence shows that the ruling was transmitted
to Dr. Purvis on November 10, 1989. This action
was tiled on February 7, 1991, which is outside
the one year limit. See Wiggins, 173 Ga. App.
761, 328 S.E.2d 222 (1985); 0.C.G.A. § 9-3-33.
Plaintiff, however, contends that Fordham’s
interview with Don Farmer kept the statutory
B-75
period for defamation open until September 1991.
The Court disagrees.
The statute of limitation runs from the
date of publication. Each publication of a
libelous matter constitutes a separate cause of
action. Western Union Tel. Co. v Vickers, 71 Ga.
App. 204, __, 30 S.E.2d 440, 443 (1944). This,
the interview with Don Farmer, is a separate
incident giving rise to a separate claim for
defamation. Accordingly, Defendant’s motion for
summary judgment on Plaintiff’s claim for
defamation related to the GHSA ruling is
GRANTED.
IV. FORDHAM
Plaintiff claims William Fordham’s
statements to Don Farmer were defamatory under
O.C.G.A. § 51-5-1. Defendant Fordham contends
that he was merely stating an opinion and
Opinions are not actionable. Defendant relies on
S & W Seafoods Co. v Jacor Broadcasting of
Atlanta, 194 Ga App 233, 390 S.E.2d 228 (1989),
to support his contention. S & W Seafoods,
B-76
however, relied on dictum from Gertz v Robert
Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41
L.Ed. 2d 789 (1974), in reaching its conclusion.
In Milkovich v Loraine Journal Co., 497 U.S. 1,
__». 110 S.Ct. 2695, 2705, 111 L.Ed.2d 1 (1990),
the Supreme Court stated that Gertz did not
create a "wholesale defamation exemption for
anything that might be labelled Opinion" and
held that some opinions were actionable. Thus,
Some opinions are actionable under the law of
defamation. The question is whether the opinion
Stated by Mr. Fordham is actionable.
In Milkovich the Court set forth a two
pronged test to determine whether or not an
opinion was entitled to protection. First, this
Court must determine whether a reasonable fact
finder could conclude that a statement implied
a defamatory assertion. 110 S.Ct. at 2707. If
the answer is "yes", then the district court
must determine whether the defamatory assertion
is factual enough to be proved true or false.
Id. If is cannot be proved true or false then
B-77
the opinion is constitutionally protected. The
Court concludes that the test has been met.
Consequently, Fordham’s motion for summary
judgment on these statements is DENIED.
CONCLUSION
Accordingly, for these reasons stated
above, defendant CCSD’s motion is GRANTED IN
PART and DENIED IN PART. Defendant Purvis’s
motion is GRANTED. Defendant GHSA’s and William
Fordham’s motion is GRANTED IN PART and DENIED
IN PART. Plaintiff’s claim against the PPC, and
Schacht and Good in their official capacities is
REMANDED to the Superior Court of Clarke County.
The Court reserves its ruling on claims against
Good and Schacht in their individual capacities.
SO ORDERED, this 9th day of March, 1993.
s/
Dvross Fitzpatrick, Judge
United State District Court
ee ee ee ee I a ae I a
Ci
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
KEN BREWER, :
Plaintiff, :
vs. CIV. NO.91-39-ATH(DF)
CAROL PURVIS, CLARKE CO.
SCHOOL DISTRICT, WILLIAM
C. FORDHAM, GEORGIA HIGH
SCHOOL ASSOCIATION, HANS
J. SCHACHT, CHRIS GOOD,
THE PROFESSIONAL
PRACTICES COMMISSION,
Defendants.
ORDER
Defendants Hans C. Schacht’s and Chris
Good’s motion for summary judgment is presently
pending before this Court. Summary judgment is
proper "if 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
judgment as a matter of law. Fed.R.Civ.R. 56(c).
For purposes of a summary judgment motion, the
non-movant’s version of the facts must be
accepted and all disputed matters must be
C-2
resolved in favor of the non-movant. Bishop v
Wood, 426 U.S. 341, 96 SD.Ct. 2074, 48 L.Ed.2d
684 (1976). Summary judgment, however is
mandated, against a party who fails to make a
showing sufficient to establish the existence of
an element essential to the party’s case, and on
which that party will bear the burden of proof
at trial. Celotex v. Catrett, 477 U.S. 317, 106
S.Ct. 2538, 91 L. Ed.2d 265 (1986).
BACKGROUND
The background of this case is fully stated
in Brewer v Purvis, 816 F.Supp. 1560 (M.D. Ga.
1560). The Court reiterates the following
pertinent background. In the early fall of 1989,
GHSA was notified by the State Department of
Education of a possible violation of eligibility
rules by Cedar Shoals High School ("CSHS"),
i.e., that the grades of a Cedar Shoals student
athlete, J.C., had been changed to make the
student eligible for football competition.? On
1 Nancy Congor, who is in charge of
special education referrals at _ CSHS,
C-3
November 1, 1989, Chris Good, an investigator
for the Professional Practices Commission
("PPC")?, received a telephone call from Mr.
Randall Ponder, who was the administrator in
charge of no pass/no participate at the Georgia
Department of Education. Mr. Ponder informed Mr.
Good that he had received a report of violations
of the No Pass/No Participate rule at CSHS and
that he and Regional Director Jim Gurley were
going to Cedar Shoals on November 7, 1989, to
begin an investigation. Mr. Ponder then asked
Mr. Good to accompany then.
On November 7, 1989, Good, Gurley and
testified that she made an anonymous phone
call at the end of October 1989. ppc
hearing at 634, 646.
2 The PPC is an agency of the State
of Georgia authorized to investigate
alleged violations of rules, regulations,
Or policies of the state board, the
commission or a local board by an
educator. 0.C.G.A. § 20-2-796 (a)(1)-(4).
C-4
Ponder visited CSHS.? While visiting CSHS,
Chris Good spoke with Plaintiff for
approximately five minutes.* On the same day,
Gurley and Ponder visited Dr. Carroll Purvis and
informed them of their investigation.* The next
day Dr. Purvis met with Mr. Doug McLaughlin, the
principal of CSHS, regarding the grade changing
incident. |
On November 8, 1989, Mr. Fordham called Mr.
Good to inform him that GHSA would hold a
hearing on Nov. 9, 1989 on the allegations of
GHSA’s regulations by CSHS. Mr. Fordham granted
Mr. Good’s request to attend as an observer for
informational purposes. Although the PPC did not
receive a written request to conduct an
investigation into the grade changing incident
3 ppc hearing, Testimony Chris Good,
p. 694.
4 Id. at 698.
5 PPC hearing, Testimony Carol
Purvis, p. 136.
C-5
until Nov. 13, 1989®, it instigated an official
investigation on Nov. 9, 1989’, which involved
one or more interviews with approximately
twenty-five people.®
© PPC Hearing, Respondent’s Exh. No.
6. The letter from Dr. Hall Rogers,
Associate State Superintendent, though
dated Nov. 8, 1989, is stamped "Received
November 13, 1989." Chris Good testified
that Mr. Ponder told him when they left
CSHS on November 7, that he would receive
a referral the next day. Id. at 855.
7’ Chris Good testified that he was
conducting a "preliminary" investigation
on behalf of the PPC at the invitation of
the State Board of Education when he
visited CSHS on November 7, #41989. PPC
hearing at 852.
8 Stroud Affidavit, Exh. "E",. The
first day "official" interviews were
conducted at CSHS was Nov. 13, 1989.
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On November 9, 1989, Coach Brewer observed
Chris Good talking with Mr. Alan Connell,
attorney for the GHSA, and William C. Fordham
before the GHSA hearing began.? During the
hearing Coach Brewer testified that he had no
interest or knowledge of any grade changes
involving J.C. Mr. Connell turned and asked Mr.
Good if Coach Brewer had indicated the same in
earlier interviews. Mr. Good replied that Coach
Brewer told him that Coach Osborne _ had
approached him and said "Here’s the deal. I’ve
talked to all the teachers. I think they
understand. It wouldn’t hurt for you to talk to
them."
On November 14, 1989, Mr. Hans J. Schacht,
Executive Director of the PPC, and Mr. Good
visited Dr. Purvis to inform him of the PPC
investigation. During the meeting, Schacht
advised Dr. Purvis that it would be "improper
for Purvis or the Clarke County Board of
9 Affidavit of Ken Brewer, dated Aug.
16, 2902. 2B. 42.
C-7
Education to investigate the grade changing
Situation" since the board had a "legal arm of
the state who was doing the investigating" and
that any local investigation should be put on
hold,1°
On January 23, 1990, Mr. Schacht advised
Dr. Purvis of the ppc Executive Committee’s
finding that probable cause existed to believe
that Plaintiff had committed an act or acts
warranting the Suspension of his teaching
certificate. On January 24, 1990, pr. Purvis
telephoned Chris Good and asked for
Clarification concerning the ppc Executive
Committee’s findings and recommendations.
On February 1, 1990, Mr. Schacht presented
the PPC’s investigative report to the CCSD in an
Open meeting attended by the media.1! rn the
report Mr. Good recommended that Coach Brewer’s
teaching certificate be Suspended for two years.
10 purvis deposition, dated Jan. 17,
1991, pp. 26-27.
11 purvis Affidavit at P. 11.
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Schacht also instructed the Board to "use the
report for study, deliberation, and to make
decisions about employees and their contract
tenure that are ethically and legally
defensible."12 Schacht was quoted in the local
newspaper as telling the school board and public
that the reason he gave the local school system
the report was because they might not be able to
enforce its no pass/no play policy since it was
invalid.}?
DISCUSSION
Plaintiff alleges that Good’s and Schacht’s
actions deprived him of his property interest in
12 Exh. D to Plaintiff’s Opposition to
PPC’s motion for summary judgment.
13 In Kitchens v State, 198 Ga App.
284, 401 S.E.2d 552 (1991), the Georgia
Court of Appeals held that state school
policy, including the no pass/no play rule
was invalid because it had not _ been
promulgated by the Administrative
Procedure Act.
C-9
\
his teaching and coaching positions without due
process of law and his liberty interest in his
reputation without due Process of law.
Defendants contend they are entitled to
qualified immunity.
In its previous order, this Court held that
Brewer had not been deprived of his property
interests/4 without due process of law in his
teaching position and that he did not have a
property interest in his coaching position.
Thus, the Only issue is whether the Defendant’s
actions deprived Plaintiff of his liberty
interest in his reputation.
The Eleventh Circuit employs a two part
analysis in applying the objective
14 The Only other potential property
interest that the Plaintiff has is his
teaching certificate. that interest,
however, is the Subject of Plaintiff's
Claims against the PPC and Good and
Schacht in their official Capacities,
which were remanded to the State court.
C-1¢
reasonableness test for qualified immunity:
first, the defendant public official must
prove that ‘he was acting within the scope
of his discretionary authority when the
allegedly wrongful acts occurred, second,
the plaintiff must show a lack of good
faith on the defendant’s part. Lack of
faith may be proved by showing that the
public officials actions violated clearly
established constitutional laws.
Williams v City of Albany, 936 F.2d 1256, 1259
(llth Cir. 1991) (per curium) (citations
omitted). Thus, defendants must first show that
they were acting within the scope of their
discretionary authority as officials of the PPC
when the alleged actions occurred.
"[A] government official can prove he acted
within the scope of his discretionary authority
by showing ‘objective circumstance which would
compel the conclusion that his actions were
undertaken pursuant to the performance of his
duties and within the scope of his authority."
ee me rere
C-1i
Rich v Dollar, 841 F.2d 1558, 1564 (11th Cir.
1988) (quoting Barker vy. Norman, 651 F. 1107,
1121 (Sth Cir. 1981)). The ppc is authorized to
investigate alleged violations of its code of
ethics by certified school personnel for the
purpose of making recommendations to the State
Board of Education, the local board, the
Professional Standards Commission or any
combination thereof, which may accept or reject
Such recommendations. 0.C.G.A. § 20-20796(2).
While the PPC cannot initiate its own
investigation, it may conduct an investigation
at the request of a local board, the state
board, the Professional Standards Commission or
a state resident. 0.C.G.A. § 20-20-796(b).
Finally, once an investigation is finished the
PPC may provide its findings of fact or
recommendations to the local board, the state
board or the Professional Standards Commission.
0.C.G.A. § 20-2-797(a). Thus an investigator for
the PPC, defendant Good was acting within his
lawful authority when he visited Cedar Shoals
C-iz
High School on November 7, 1989, at Ponder’s
request and when he attended the GHSA hearing
for informational purposes.+° Additionally,
Defendant Schacht was acting within his
authority when he presented the report to the
Clarke County School Board. ?® Consequently,
the burden of production shifts to the Plaintiff
to establish that the defendants violated
Clearly established constitutional rights as a
matter of law.
a5 Although the written request from
the state board is stamped as received on
November 13, 1989 and even though the
"official" request was not made until
after November 7, the statute does not
require a written request from the parties
listed in 0O.C.G.A. § 20-20-796(b) to
initiate an investigation.
16 plaintiff appears to concede the
first prong of the test since his
supplemental brief focuses on the
violation of a clearly established right.
C-iZ
Plaintiff contends that Good violated
0.C.G.A. § 20-2-796(c), which requires the PPC
to provide a local board with written notice
specifying the names of the parties making the
complaint, the teachers to be investigated and
explanation of the complaint against the subject
under investigation and 0.C.G.A. § 20-2-797(a).
he further asserts that Schacht also violated
O.C.G.A. § 20-2-797 (a). "’[NJeither federal not
state officials lose their [qualified] immunity
by violating the clear command - of federal or
state law - unless that state statute or
regulation provides the basis for the cause of
action sued upon.’" Childress v. Small Business
Administration., 825 F.2d 1550, 1553 (1ith Cir.
1987) (quoting Davis v Scherer, 468 U.S. 183,
194 n. 12, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139
(1984). The violation of these statutes does not
provide the basis for the cause of action sued
upon. Thus, Good’s failure to notify the CCSD of
his investigation, his testimony at the GHSA
hearing and Schacht’s presentation of the report
C-14
do not establish that they violated clearly
established constitutional rights. Nonetheless,
they may still be held liable if their conduct
violated minimum constitutional requirements of
due process.
As a result of the GHSA hearing. Cedar
Shoals was required to forfeit any games won
during the 1989-90 school year in which the
eligible student had played, pay a $1,000 fine
and be on one year of probation. As state in
this Court’s previous order, Plaintiff did not
have a property interest in the games CSHS won.
Moreover, Plaintiff was not terminated at the
hearing so his liberty interest was not
implicated. The Eleventh Circuit standard for
determining whether the deprivation of a liberty
interest has occurred requires the plaintiff to
prove: (1) a false statement (2) of a
stigmatizing nature (3) attending a governmental
employees discharge (4) made public (5) by the
governmental employer (6) without a meaningful
opportunity for employee name clearing. Buxton
C-15
v Plant City, 871 F.2d 1037, 1042 (llth Cir.
1989). Even if, however, Plaintiff had a liberty
interest or property interest at stake, he has
been unable to show that Good’s limited
involvement in the GHSA hearing violated minimum
Standards of due process.
Plaintiff also contends that Good did not
notify CCSB before he began his (investigation]
[sic] November 7, 1989. The Court is unaware of
any case,and plaintiff has not provided any
case, which holds that the failure to notify the
school board that one of its teachers is being
investigated violates the teacher’s due process
rights. Additionally, even if it did, plaintiff
cannot establish that the failure to do so
implicated his liberty interest in his
reputation. See Buxton, at 1042. Consequently,
the Court concluded that Good is entitled to
qualified immunity.
Finally, plaintiff contends that Schacht’s
furnishing of the investigative report to the
C-i6
CCSB before the investigation was complete?’
violated 0.C.G.A. § 20-2-797(a) as did his
direction that the school board take action
against the Plaintiff. Plaintiff cannot
establish that Schacht’s actions deprived him of
due process in his liberty interest because
Schacht was . not his employer. See _ Id.
Consequently, the court concluded that defendant
Schacht is entitled to qualified immunity.
CONCLUSION
Accordingly, for the reasons stated above,
Defendant Schacht’s and Defendant Good’s motion
for Summary Judgment is GRANTED.
SO ORDERED, this 15th day of 1993.
s |
Durdss Fitzpatrick, Judge
United States District Court
a7 Plaintiff contends the
investigation was not complete because the
PPC had not conducted a hearing on the
alleged violations when the report was
provided.
Se Pee LY ER ee ae eT PEROT D REE RAT
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