# Appendix — Brewer v. Clarke County School District > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1532%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 514 U.S. 1111 ## 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. —————