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Bradley v. Pittsburgh Bd. of Educ.

filed: September 5, 1990.

EARL BRADLEY AND DIANE MURRAY
v.
PITTSBURGH BOARD OF EDUCATION, RICHARD C. WALLACE, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERINTENDENT OF THE PITTSBURGH PUBLIC SCHOOL SYSTEM, LEE B. NICKLOS, INDIVIDUALLY AND IN HER CAPACITY AS DIRECTOR OF PERSONNEL OF THE PITTSBURGH BOARD OF EDUCATION AND WILLIAM FISHER, INDIVIDUALLY AND IN HIS CAPACITY AS PRINCIPAL OF TAYLOR ALLDERDICE HIGH SCHOOL,*FN* EARL K. BRADLEY, APPELANT



On Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Civil No. 86-1433.

Sloviter, Becker, and Stapleton, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge

Plaintiff Earl Bradley filed a civil rights action under 42 U.S.C. § 1983, contending that he was suspended and then terminated from his position as a public high school teacher because defendant school officials disapproved of his use and advocacy of a classroom management technique he had developed. He claims he was suspended without procedural due process and that he was terminated in violation of his rights to free speech, to petition the government, equal protection, and substantive due process. The district court granted summary judgment for defendants. On appeal, we must decide whether Bradley's unsuccessful appeal of his termination through the Pennsylvania state administrative process and state courts precludes him from raising his federal claims here notwithstanding his explicit reservation of these claims. If we find he is not so precluded, we must evaluate the merits of his constitutional claims.

I.

Factual and Procedural Background

The facts recited hereafter are taken from the record in this case and those established in the state proceeding. They are, in the main, undisputed.

Earl Bradley taught in the Pittsburgh public schools from 1964 to 1985, last at Taylor-Allderdice High School. During his tenure he developed and was the leading advocate of a classroom management technique known as Learnball. According to plaintiff, Learnball "is an eclectic gathering of well established ideas and techniques" which "involves students in a democratic model to maintain effective classroom discipline and good morale . . . [and] facilitates teaching and learning by establishing an atmosphere of good sportsmanship and teamwork." Brief for Appellant at 11. As we stated in our recent opinion in Bradley v. Pittsburgh Board of Education (Murray, Appellant), 910 F.2d 1172, slip op. at 3 (3d Cir. 1990), involving the claims of Diane Murray, who was Bradley's co-plaintiff in the district court, "Learnball's basic elements . . . include a sports format, peer approval, dividing each class into teams, student election of team leaders and an assistant teacher, giving students responsibility for establishing class rules and grading exercises, and imposing a system of rewards such as radio playing and shooting baskets with a foam ball in the classroom."

Bradley promoted the use of Learnball through articles in newspapers, academic journals, and a newsletter published by an organization known as the Learnball League, of which he was President. The Learnball method has been adopted by other teachers. In connection with his advocacy of Learnball, Bradley publicly criticized the current Pittsburgh school regime, the high dropout rate and the disparity between students in advance placement classes and those in other classes.

School officials did not approve of Bradley's use of Learnball. In 1979, after the Pittsburgh Board of Education (Board) threatened to discipline Bradley for his persistent use of the method, Bradley agreed not to use Learnball if he was directed not to. Following the settlement, Bradley was transferred to Taylor-Allderdice High School, where William Fisher was the principal. Despite Fisher's subsequent instructions that Bradley not use Learnball exclusively, Bradley continued to use the method every day.

In June 1984, Bradley was given an unsatisfactory rating by Fisher, and the Board considered whether Bradley should be dismissed. On the advice of counsel, the Board declined to dismiss Bradley but directed that he be given clear instructions to cease using Learnball.

Bradley took a sabbatical during the 1984 fall term. Upon his return in January 1985 he was again told to stop using Learnball exclusively and was specifically directed to provide each student with a textbook, to stop using a whistle, to stop playing a radio in class, to stop permitting eating in class, to start giving homework more often, to stop giving students access to the grade book, and to adhere to the curricula mandated by the Board. Bradley switched from using a whistle to using a gavel; he refrained from eating in class but did prepare salads in class, in order, according to his counsel, to provide students with an example of healthy eating habits; and he began to give homework once a week.

On February 20, 1985, approximately one month after Bradley's return, he notified the school officials that he would file a workmen's compensation claim because they had created stress that prevented him from teaching effectively. Fisher and other school officials observed Bradley's class that day, met with him the following day, and then gave him an unsatisfactory rating. After Bradley filed his claim, he did not return to school for the remainder of the school year.

In March 1985, the School Board began dismissal proceedings against Bradley under Section 1122 of the Public School Code of 1949, 24 Pa. Cons. Stat. Ann. § 11-1122 (Purdon 1962), which provides that a professional employee may be dismissed for "persistent negligence . . . [and] persistent and wilful violation of the school laws of this Commonwealth." On August 13, 1985, Bradley received notice of a hearing to be held on his possible dismissal, but a hearing was not held until December 11, 1985. In the interim, Bradley informed school officials in October of 1985 that he wished to return to work. Although he was not officially notified of a suspension or termination, he was not permitted to return.

Bradley received neither sick benefits nor salary from August 1985 until he was dismissed fourteen months later, in September 1986. Bradley had previously applied for another sabbatical for the 1985-1986 school year. He eventually obtained the sabbatical through a union grievance and was thereafter awarded his salary for that year.*fn1

A hearing on Bradley's dismissal was held December 11, 1985 and January 13, 1986 before members of the Board. Bradley attended the December 11 hearing but did not attend its continuation on January 13. Although Bradley had agreed to that date, on January 9 his attorney requested a postponement because he was unable to properly prepare as a result of Bradley's failure to attend two meetings with him and because Bradley was "medically incapable" of attending the hearing. App. at 322. The only evidence of Bradley's medical condition was a handwritten note, allegedly by Bradley's doctor, which stated that in the doctor's opinion "the prudent medical course of action for Dr. Bradley to pursue was not to attend the January 13, 1986 legal hearing." Id. The Board denied the request for a continuance.

Following the hearing, Bradley's attorney requested that the Board reopen the dismissal hearing, representing that Bradley would be able to participate. The Board denied the request, based on Bradley's failure to satisfactorily explain why he could not attend the January hearing.

On July 8, 1986, while the matter was before the Board, Bradley filed this suit in federal court against the Board, Richard Wallace, Superintendent of the Pittsburgh Public School System, Lee Nicklos, Director of Personnel of the Pittsburgh Board of Education, and William Fisher, his principal, alleging that they disciplined him in retaliation for his use and advocacy of Learnball in violation of the First Amendment, that they denied him equal protection of law by forbidding him from using Learnball while other teachers were not limited in the methods they could use, that they denied him due process when they deprived him of his job without affording him an opportunity to be heard, and that they intentionally caused emotional and physical distress. Bradley requested declaratory and injunctive relief as well as compensatory and punitive damages.

In September 1986, the Board formally dismissed Bradley. It determined that Fisher's directive that Bradley refrain from using Learnball was a proper instruction concerning classroom management, that there was no basis in the record to conclude that Fisher's actions were retaliatory, and that Bradley's persistent use of Learnball, his failure to keep up with the curriculum, his eating in class, and his failure to assign homework were insubordinate and "constitute[d] both persistent negligence and a willful and persistent violation of school laws." App. at 329. The Board thus concluded that Bradley should be dismissed under Section 1122 of the Public School Code.

Following his dismissal, Bradley amended his federal complaint to include claims that his dismissal was in retaliation for protected First Amendment activities and violated his substantive due process rights. Thereafter, Bradley also added a claim that Fisher had discriminated against him based on race.

In addition, Bradley followed the statutory procedure for appeal of his dismissal, first appealing to the Secretary of Education. In doing so, Bradley advised the Secretary that he wished to reserve his civil rights claims for adjudication in federal court pursuant to England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 11 L. Ed. 2d 440, 84 S. Ct. 461 (1964), and he submitted a copy of his amended federal complaint. In a decision dated August 12, 1987, the Secretary dismissed the appeal, finding that the record demonstrated a pattern by Bradley of refusal to abide by the principal's directives and that Bradley's acts constituted persistent violations of duty that were a proper basis for dismissal. Pursuant to Bradley's reservation of rights, the Secretary stated that he was "not addressing any issues of discrimination or First Amendment issues." App. at 352. The Secretary continued, "in particular, this Opinion will not address 'Learnball' as a general strategy of classroom management because 'Learnball' is a major issue in the civil rights complaint." Id.

Bradley appealed to the Commonwealth Court, which affirmed the decision, Bradley v. Board of Public Educ., No. 2131 C.D. (Pa. Commw. 1987), and the Pennsylvania Supreme Court denied allocatur, Bradley v. Board of Public Educ., 521 Pa. 631, 558 A.2d 533 (1989).

While Bradley was invoking his state processes, he moved for summary judgment in the federal action on his procedural due process claim. Defendants then moved for a stay of the federal proceedings pending, inter alia, the disposition of Bradley's petition for allocatur to the Pennsylvania Supreme Court, which the district court granted over Bradley's objection.

After the Pennsylvania Supreme Court denied Bradley's petition, the federal trial was scheduled for August 14, 1989. A jury was selected that morning and the district court heard argument in the afternoon on defendants' motions in limine. Two days after the hearing on the motions in limine, the district court sua sponte entered an order granting summary judgment on all counts in favor of defendants. It held that Bradley had failed to state a claim for race discrimination, abuse of process, retaliation for filing a worker compensation claim, taking of a property interest without due process, or equal protection. It held that his First Amendment claim was barred by the preclusive effects of the state proceedings. It also noted in a footnote that the preclusion argument would apply equally to his equal protection and retaliatory discharge claims even if Bradley had stated claims for relief.*fn2 Bradley filed a timely appeal.

He argues that the court's procedure in granting summary judgment after the hearing on the motions in limine was legally flawed, that neither claim preclusion nor issue preclusion bars his federal suit, and that the court erred as a matter of law in ruling in defendants' favor on Bradley's constitutional claims. We will consider these arguments in turn.

II.

Procedure on Summary Judgment

The district court entered summary judgment against Bradley following a hearing on motions in limine rather than in the context of ruling on a motion for summary judgment. In fact, defendants did not move for summary judgment. Thus, the district court order bypassed the process established by Fed. R. Civ. P. 56 which requires 10 days notice in order that the nonmovant may marshall his or her evidence to show that there is a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

Defendants argue that because the motions in limine essentially asked the district court to preclude all evidence that would support Bradley's claims, Bradley must have known that if the motions were granted all his claims would be effectively barred. Furthermore, they note Bradley had two weeks notice of the hearing on the motions, submitted briefs and documentary evidence, and did not ask for additional time. Thus, they contend, a final disposition on the merits was not improper. We disagree.

Unlike a summary judgment motion, which is designed to eliminate a trial in cases where there are no genuine issues of fact, a motion in limine is designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions. See In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1985). In this case, defendants' extensive motions in limine requested the exclusion of testimony of teachers and an expert witness on Learnball, testimony concerning Bradley's loss of salary, and testimony concerning Bradley's emotional stress. Defendants also sought to exclude all evidence concerning any First Amendment right to use Learnball in the classroom on the ground that the district court had already ruled that no such right existed, all evidence on any of Bradley's liability claims on the ground that the state decisions establishing that no rights were violated were binding under the doctrines of res judicata and collateral estoppel, and all evidence concerning his equal protection claim because it failed to state a claim under the relevant federal statutes.

Defendants' position that Bradley was on notice that the grant of these motions would terminate the litigation is not supported by the record. At the hearing, neither the parties nor the judge suggested that the trial, for which the jury had already been picked, would not go forward. To the contrary, the trial judge explicitly declined to rule on the admissibility of some evidence, stating that such rulings could be better made at trial, and he scheduled the jury to return the following day. Most importantly, in the absence of a formal motion for summary judgment, plaintiff was under no formal compulsion to marshall all of the ...


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