United States Court of Appeals,
Fifth Circuit.
No. 85-1015.
Norman JETT, Plaintiff-Appellee,
v.
DALLAS INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.
Nov. 29, 1993
Appeal from the United States District Court for the Northern
District of Texas.
On Remand From the Supreme Court of the United States.
Before KING and GARWOOD, Circuit Judges.*
GARWOOD, Circuit Judge:
This case is before us on remand from the United States
Supreme Court. Jett v. Dallas Independent School District, 491
U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).
The facts and procedural posture of the case are reflected in
the Supreme Court's opinion and in our earlier opinions herein.
Jett v. Dallas Independent School District, 798 F.2d 748, rehearing
denied, 837 F.2d 1244 (5th Cir.1988). For present purposes, it
suffices to note that plaintiff-appellee Norman Jett (Jett),
formerly a teacher, coach, and athletic director at South Oak Cliff
High School (South Oak Cliff) in the Dallas Independent School
District (DISD), brought this suit under 42 U.S.C. §§ 1981 and 1983
against the DISD and the South Oak Cliff principal, Dr. Frederick
Todd (Principal Todd), complaining that his transfer from South Oak
Cliff to a teaching position without any coaching duties at another
*
This decision is rendered by a quorum pursuant to 28 U.S.C.
§ 46(d).
DISD school violated his constitutional rights to equal protection
of the laws and freedom of speech. The transfer was made on the
recommendation of Principal Todd and was ordered and approved by
the DISD superintendent, Dr. Linus Wright (Superintendent Wright),
who was not made a defendant. Principal Todd did not purport to
order the transfer and he had no authority to do so. No action
respecting the transfer was taken by the DISD board of trustees,
nor was that matter ever brought, or sought to be brought, before
the board of trustees. Jett, who is white, claimed that Principal
Todd, who is black, was improperly motivated in making his transfer
recommendation by racial considerations and by Jett's exercise of
his First Amendment rights, and that he, Jett, had told
Superintendent Wright, before Wright approved the transfer
recommendation, that Principal Todd's real reason for recommending
the transfer was that he wanted to replace Jett with a black
coach.1
The case was tried to a jury, which awarded Jett damages
against the DISD and Principal Todd individually, finding that
Principal Todd's transfer recommendation was substantially
motivated by both Jett's race and his exercise of First Amendment
rights and that the DISD's transfer of Jett "was based solely on
Defendant Todd's recommendation without any independent
investigation." Following remittitur of some of the damages,
1
As noted in our prior opinion, Todd testified race played no
part in his recommendation, and Wright testified that neither
Jett's race nor his having made statements to the media played any
part in his decision and that he was unaware that Todd had based
his recommendation on remarks Jett made to the media. Jett, 798
F.2d at 761.
judgment on the verdict was entered for Jett and against the DISD
and Principal Todd.
On the appeal to this Court by the DISD and Principal Todd, we
affirmed the district court insofar as it held Principal Todd
liable for making his transfer recommendation on the basis of
Jett's race and First Amendment protected speech.2 We reversed and
remanded Jett's section 1983 equal protection and First Amendment
claims against the DISD because the district court's jury
instructions failed to state that the DISD "could be bound by the
principal or superintendent only if he was delegated policy making
authority (or if he participated in a well settled custom that
fairly represented official policy and actual or constructive
knowledge of the custom was attributable to the governing body or
an official delegated policy making authority)." Jett, 798 F.2d at
759.3 We further held that the same standards applied to
2
Jett also alleged in the district court, and the jury found,
that he had a property interest in his position at South Oak Cliff
which the DISD deprived him of without due process of law, and that
the DISD constructively discharged him from its employment. We
reversed and rendered judgment against Jett on these claims,
holding that as a matter of law Jett was not constructively
discharged and that his transfer from South Oak Cliff did not
deprive him of a property interest as his full agreed compensation
was continued. These matters are no longer at issue. Nor is
Principal Todd's personal liability any longer at issue, as he and
Jett settled while the case was pending rehearing in this Court.
See Jett, 491 U.S. at 707-709, 109 S.Ct. at 2708.
3
We further held that the charge was deficient even if it were
assumed that Superintendent Wright, having the final authority in
deciding whether a given transfer of a particular teacher-coach
would be made, also had the requisite policymaking authority in
respect to such transfers, because nothing in the charge required
the jury to find "that Wright's decision was in fact improperly
motivated or that Wright knew or believed that (or was consciously
indifferent to whether) Todd's recommendation was so motivated."
Id. at 760. We noted in this connection that "Todd clearly was not
a policymaker." Id. at 761.
governmental liability under section 1981, and accordingly reversed
and remanded Jett's section 1981 claim against the DISD. Id. at
761-763.
The Supreme Court granted Jett's petition for certiorari on
the section 1981 issue and also granted the DISD's cross-petition.
488 U.S. 940, 109 S.Ct. 363, 102 L.Ed.2d 353 (1988). As to the
former, the Court held that:
"... the express "action at law' provided by § 1983 for the
"deprivation of any rights, privileges, or immunities secured
by the Constitution and laws,' provides the exclusive federal
damages remedy for the violation of the rights guaranteed by
§ 1981 when the claim is pressed against a state actor. Thus
to prevail on his claim for damages against the school
district, petitioner must show that the violation of his
"right to make contracts' protected by § 1981 was caused by a
custom or policy within the meaning of Monell [v. New York
City Dept. of Social Services, [436 U.S. 658] 98 S.Ct. 2018
[56 L.Ed.2d 611] (1978) ] and subsequent cases." Jett, 491
U.S. at 735, 109 S.Ct. at 2722.4
The Court accordingly affirmed our judgment "to the extent that it
holds that the school district may not be held liable for its
employees' violation of the rights enumerated in § 1981 under a
theory of respondeat superior." Id. 491 U.S. at 738, 109 S.Ct. at
2724.
With respect to the DISD's sections 1981 and 1983 liability
under the standards of Monell and subsequent cases, the Supreme
Court determined, as we had, that the jury charge in this respect
"was manifest error" because it assumed that either Principal Todd
or Superintendent Wright was a DISD policymaker or that respondeat
4
The Court had earlier "assume[d] ... without deciding, that
petitioner's rights under § 1981 have been violated by his removal
and reassignment" since the DISD had never argued "that § 1981 does
not reach petitioner's employment injuries." Id. 491 U.S. at 711,
109 S.Ct. at 2710.
superior was applicable. Id. 491 U.S. at 737, 109 S.Ct. at 2723.
The Court then reviewed the standards for "determining where
policymaking authority lies for purposes of section 1983" as
enunciated in the plurality opinion in St. Louis v. Praprotnik, 485
U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Jett 491 U.S. at
737, 109 S.Ct. at 2723. It stated that " "whether a particular
official has "final policymaking authority" is a question of state
law,' " id. (quoting Praprotnik, 485 U.S. at 122-24, 108 S.Ct. at
924, quoting Pembaur v. Cincinnati, 475 U.S. 469 at 483-84, 106
S.Ct. 1292 at 1300 (1986) (plurality opinion)), that "the
identification of those officials whose decisions represent the
official policy of the local governmental unit is itself a legal
question to be resolved by the trial judge," and that:
"Reviewing the relevant legal materials, including state and
local positive law, as well as " "custom or usage" having the
force of law,' Praprotnik, supra [485 U.S.] at 124, n. 1, 108
S.Ct. at 924, n. 1, the trial judge must identify those
officials or governmental bodies who speak with final
policymaking authority for the local governmental actor
concerning the action alleged to have caused the particular
constitutional or statutory violation at issue." Jett, 491
U.S. at 737, 109 S.Ct. at 2723.
The Court noted that the DISD "urges us to review Texas law and
determine that neither Principal Todd nor Superintendent Wright
possessed the authority to make final policy decisions concerning
the transfer of school district personnel" and that "Jett seems to
concede that Principal Todd did not have policymaking authority as
to employee transfers ... but argues that Superintendent Wright had
been delegated [such] authority...." Id. 491 U.S. at 738, 109
S.Ct. at 2723. The Court then concluded by stating:
"We decline to resolve this issue on the record before us. We
think the Court of Appeals, whose expertise in interpreting
Texas law is greater than our own, is in a better position to
determine whether Superintendent Wright possessed final
policymaking authority in the area of employee transfers, and
if so whether a new trial is required to determine the
responsibility of the school district for the actions of
Principal Todd in light of this determination.... We remand
the case to the Court of Appeals for it to determine where
final policymaking authority as to employee transfers lay in
light of the principles enunciated by the plurality opinion in
Praprotnik and outlined above." Id. 491 U.S. at 738, 109
S.Ct. at 2724 (emphasis added).
Preliminarily, we observe that the Court's remand order
focuses on whether Superintendent Wright, not Principal Todd, had
the requisite relevant policymaking authority. There is no
evidence that Principal Todd had such authority, and Jett does not
claim otherwise. We further note that the Court adverted to the
possibility of a new trial only if it were determined that
Superintendent Wright had such policymaking authority.5 In this
connection, there is no evidence or claim of any practice or custom
of transferring DISD personnel on the basis of race, the exercise
of First Amendment rights, or similar constitutionally proscribed
basis. The only evidence of official DISD policy in this respect
was that it proscribed any such action.6 Thus, the only possible
5
A new trial might be required in that instance—indeed would
be under our prior opinion—because the jury charge did not
condition DISD's liability on a finding (and the evidence did not
establish as a matter of law) that "Wright knew or believed that
(or, perhaps, was consciously indifferent to whether) Todd's
recommendation was ... based" on Jett's race or exercise of First
Amendment rights. Jett, 798 F.2d at 761. See note 3, supra.
6
The only evidence of DISD policy on discrimination was a
written policy adopted by the DISD board of trustees that included
the following:
"On the basis of an individual's race, color, religion,
sex, national origin, or age, the District shall not fail
or refuse to hire or discharge, nor shall it otherwise
discriminate against any individual with respect to
compensation, terms, conditions, or privileges of
basis for DISD liability is if Superintendent Wright "possessed
final policy making authority as to employee transfers," a question
that the Court has directed be decided "in light of the principles
enunciated by the plurality opinion in Praprotnik and outlined
above." Jett, 491 U.S. at 738, 109 S.Ct. at 2724.
The Praprotnik plurality and the Supreme Court's opinion in
Jett make clear that this is a question of state law. Texas law is
clear that final policymaking authority in an independent school
district, such as the DISD, rests with the district's board of
trustees. Texas Education Code § 23.01 provides that "The public
schools of an independent school district shall be under the
control and management of a board of seven trustees."7 The
Education Code further provides that "[t]he trustees shall have the
exclusive power to manage and govern the public free schools of the
district," id. § 23.26(b) (emphasis added), and that "[t]he
trustees may adopt such rules, regulations, and by-laws as they may
employment; nor shall the District limit, segregate, or
classify its employees, or applicants for employment, in
any way that would deprive or tend to deprive any
individual of employment opportunities or otherwise
affect the individual's status as employee."
The only evidence respecting DISD policy concerning basing
employee transfers on their First Amendment protected speech
was the following testimony of Superintendent Wright on
examination by Jett's counsel:
"Q. Surely, Mr. Wright, it is not consistent with your
own policy and the policy of the DISD to use as a reason
for demotion or transfer the public speech or remarks
made by one of your employees, is it?
A. Not at all."
7
Section 23.023 provides that districts "with 64,000 or more
students in average daily attendance shall be under the management
and control of a board of nine trustees."
deem proper." Id. § 23.26(d). Nothing in the Texas Education Code
purports to give the Superintendent any policymaking authority or
the power to make rules or regulations, whether as to teacher or
teacher/coach transfers or otherwise.8 It is to be noted that the
Education Code gives the board of trustees not only what might be
described as a form of legislative power over the district they
serve—the power to make "rules, regulations and by-laws"—but also
a form of executive power, the power to "control" and the
"exclusive" power to "manage" as well as to "govern" the district.
This has been recognized in Texas appellate court decisions.
Thus, in Pena v. Rio Grande City Consolidated Independent School
District, 616 S.W.2d 658 (Tex.Civ.App.—Eastland, 1981, n.w.h.) the
court held that the superintendent of an independent school
district was not an "officer" of the district for purposes of
Tex.Rev.Civ.Stat.Ann. art. 5996a (Vernon Supp.1980-81), which
prohibited "any officer of any ... school district" from voting
for, confirming, or appointing to "any ... employment or duty ...
any person" within a certain degree of relationship to the officer.
To determine "officer" status, the court applied the test of
whether the individual's exercise of governmental power was "
"largely independent of the control of others.' " Id. at 660. It
held that the superintendent did not meet that test. It also
stated in this connection that "[a] superintendent is merely an
employee or agent of the school board," id. at 659 (emphasis
8
After the events here in issue, the Texas legislature enacted
section 13.351 of the Education Code (Acts 1984, 68th Leg., 2nd
C.S., ch. 28, art. III, part F, § 1), which provides that "[t]he
superintendent is the educational leader and the administrative
manager of the school district."
added), and "[a] school superintendent merely performs functions
delegated to him by the trustees who do not by such delegation
abdicate their statutory authority or control." Id. at 660
(emphasis added). The Pena opinion was cited with approval in
Hinojosa v. State, 648 S.W.2d 380 (Tex.App., Austin, 1983,
discretionary review refused), where another Texas appellate court
stated "the Education Code ... gives the trustees the exclusive
power to manage and govern the school district. The superintendent
and his subordinates were but employees or agents of the trustees."
Id. at 386 (emphasis in original). We are aware of no decision
which holds that under Texas law a school superintendent has
policymaking authority. Indeed, Jett does not argue to the
contrary.
Jett does contend that the DISD trustees had delegated final
policymaking authority as to employee transfers to Superintendent
Wright. He points to the fact that a DISD policy adopted by the
board of trustees made the superintendent the final decisionmaker
on an employee's challenge to his or her proposed transfer,9 and to
9
This six-page policy governed both voluntary and involuntary
transfers. Provisions respecting involuntary transfers included
those arising from reduced enrollment or budget (providing, inter
alia, for selection "based on the amount of seniority within
certified fields, subject to departmental/extracurricular duties"
and for restoration to position if justified by subsequent
enrollment or budget increase before instruction had begun) and
those for other reasons. As to the latter, the policy provides:
"Any time during a school year that an immediate
supervisor wishes to request the transfer of an employee
for the ensuing school year, he or she shall complete the
prescribed form, conduct a conference with the employee,
secure the signature of the employee and forward the form
to the office of the Subdistrict assistant
superintendent. The Subdistrict assistant superintendent
shall receive the request and issue an approval or
Superintendent Wright's testimony that he was the final
denial. If the request is approved, it shall then be
forwarded to the personnel services department for
processing, pending vacancies."
The policy provides for appeal as follows:
"For the purpose of this policy, the appeal procedure is
available only for those receiving involuntary transfers
and shall not be deemed a formal grievance. District
intent is to provide an expedited hearing for employees
involuntarily transferred who feel that District policies
were violated, action was arbitrary or capricious, or
that constitutionally protected rights were violated.
Formal appeals shall be heard at the General
Superintendent level, and the General Superintendent
shall exercise final jurisdiction. Employees requesting
hearings shall do so in accordance with the following
guidelines:
1. Within ten days after receipt of involuntary transfer
notice, employees shall call or write the employee
relations office to schedule an appointment to
discuss the transfer and related concerns for the
appeal.
2. The employee relations office shall make every effort
to resolve the problem informally.
3. If efforts to resolve the problem informally are not
successful, an appeal committee shall be
established. The committee shall be composed of:
a. One classroom teacher.
b. One principal.
c. One ombudsperson appointed by the General
Superintendent.
4. The committee shall conduct a hearing that affords
all parties the right to present information
according to procedures prescribed by the
committee.
5. The committee shall issue an advisory decision to the
General Superintendent.
6. The General Superintendent shall review the advisory
decision of the committee and issue a decision that
shall be final and binding."
decisionmaker in instances where a teacher/coach objected to his
proposed transfer.
However, that Superintendent Wright may have been delegated
the final decision in the cases of protested individual employee
transfers does not mean that he had or had been delegated the
status of policymaker, much less final policymaker, respecting
employee transfers. In Pembaur and Praprotnik the Court carefully
distinguished between those having mere decisionmaking authority
and those having policymaking authority. Pembaur first noted that
"municipal liability may be imposed for a single decision by
municipal policymakers under appropriate circumstances," id. 475
U.S. at 480, 106 S.Ct. at 1298, and that "where action is directed
by those who establish governmental policy, the municipality is
equally responsible whether that action is to be taken only once or
to be taken repeatedly." Id. 475 U.S. at 481, 106 S.Ct. at 1299.
Pembaur went on, however, to emphasize that, for the municipality
to be liable, the decision (whether or not one of policy) must be
made by an official with final policymaking authority in respect to
the matter decided, viz:
"Municipal liability attaches only where the decisionmaker
possesses final authority to establish municipal policy with
respect to the action ordered. [footnote omitted] The fact
that a particular official—even a policymaking official—has
discretion in the exercise of particular functions does not,
without more, give rise to municipal liability based on an
exercise of that discretion. [citation and footnote omitted]
The official must also be responsible for establishing final
government policy respecting such activity before the
municipality can be held liable.12"
—————
12
Thus, for example, the County Sheriff mmay have discretion
to hire and fire employees without also being the county
official responsible for establishing county employment
policy. If this were the case, the Sheriff's decisions
respecting employment would not give rise to municipal
liability, although similar decisions with respect to law
enforcement practices, over which the Sheriff is the official
policymaker, would give rise to municipal liability. Instead,
if county employment policy was set by the Board of County
Commissioners, only that body's decisions would provide a
basis for county liability. This would be true even if the
Board left the Sheriff discretion to hire and fire employees
and the Sheriff exercised that discretion in an
unconstitutional manner; the decision to act unlawfully would
not be a decision of the Board. However, if the Board
delegated its power to establish final employment policy to
the Sheriff, the Sheriff's decisions would represent county
policy and could give rise to municipal liability." Id. 475
U.S. at 484 & n. 12, 106 S.Ct. at 1299-1300 & n. 12.
The example of the County Sheriff and Board of County
Commissioners clearly reflects that the Court sharply distinguished
between decisionmakers and final policymakers. This example was
elevated from footnote to text in Praprotnik, where the Court held
that it was error to base liability on the employment decisions of
officials lacking final policymaking authority in that area, viz:
"This case therefore resembles the hypothetical example in
Pembaur: "[I]f [city] employment policy was set by the [Mayor
and Aldermen and by the Civil Service Commission], only
[those] bod[ies'] decisions would provide a basis for [city]
liability. This would be true even if the [Mayor and Aldermen
and the Commission] left the [appointing authorities]
discretion to hire and fire employees and [they] exercised
that discretion in an unconstitutional manner....' 475 U.S.,
at 483, n. 12, 106 S.Ct., at 1300, n. 12." Praprotnik, 485
U.S. at 130, 108 S.Ct. at 927.
Praprotnik similarly states that "the authority to make municipal
policy is necessarily the authority to make final policy.... When
an official's discretionary decisions are constrained by policies
not of that official's making, those policies, rather than the
subordinate's departures from them, are the act of the
municipality," id. 485 U.S. at 127, 108 S.Ct. at 926 (emphasis in
original), and that "[s]imply going along with discretionary
decisions made by one's subordinates, however, is not a delegation
to them of the authority to make policy." Id. 485 U.S. at 130, 108
S.Ct. at 927. The Court then observed:
"It would be a different matter if a particular decision by a
subordinate was cast in the form of a policy statement and
expressly approved by the supervising policymaker. It would
also be a different matter if a series of decisions by a
subordinate official manifested a "custom or usage' of which
the supervisor must have been aware. See supra, 485 U.S. at
127, 108 S.Ct. at 926. In both those cases, the supervisor
could realistically be deemed to have adopted a policy that
happened to have been formulated or initiated by a
lower-ranking official." Id. 485 U.S. at 130, 108 S.Ct. at
926-27.
Finally, Praprotnik expressly rejected the concept of "de facto
final policymaking authority." Id. 485 U.S. at 129, 108 S.Ct. at
927.10
While Praprotnik and Pembaur do not expressly use the word
"final" in their examples of officials who have decisionmaking but
not policymaking authority, that much seems clearly implied in the
description of the situation as one where the policymaking
authority "left the [decisionmaking official] discretion to hire
and fire employees," there being no suggestion of any qualification
such as "initial" discretion or the decisionmaker's action being
subject to appeal or the like. The same conclusion follows from
Praprotnik 's statement as to discretionary decisions of an
official being constrained by policies not of his own making, as
10
"Nor do we believe that we have left a "gaping hole' in §
1983 that needs to be filled with the vague concept of "de facto
final policymaking authority.' Post [485 U.S., at 144, 108 S.Ct.],
at 935. Except perhaps as a step towards overruling Monell and
adopting the doctrine of respondeat superior, ad hoc searches for
officials possessing such "de facto' authority would serve
primarily to foster needless unpredictability in the application of
§ 1983." Id.
that applies even to individual decisions which are not reviewable.
The Seventh Circuit expressly took this view of the matter in
Auriemma v. Rice, 957 F.2d 397 (7th Cir.1992), where it held that
the Chicago Superintendent of Police, Fred Rice, was not a city
policymaker respecting police officer demotions that were allegedly
racially motivated, notwithstanding that he had final authority to
make the complained of demotions.11 We took essentially the same
11
The Auriemma Court observed:
"On the plaintiffs' own theory, the buck stops with Fred
Rice. (The complaint alleges that Rice cleared his
decisions with Harold Washington, then the mayor, but
this is immaterial; the mayor is an executive, not
legislative, official in Chicago's system of government.)
Unless an entirely executive decision establishes
municipal policy because it is final, the plaintiffs must
lose.
To state the issue in this way is to imply the
answer. For what can it mean to say "no vicarious
liability' unless there is a distinction between creation
and implementation of rules? Any city acts exclusively
through agents; the city is just a name for a complex of
persons. If it were enough to point to the agent whose
act was the final one in a particular case, we would have
vicarious liability. Action in the course of one's duty
is the basis of vicarious liability. That a particular
agent is the apex of a bureaucracy makes the decision
"final' but does not forge a link between "finality' and
"policy'.... One may doubt the footing of Monell ... but
that decision is not to be sabotaged by calling the chief
bureaucrat who signs off on a particular action the
city's "policymaker' for that action." Id. at 399-400.
" "[R]esponsibility for making law or setting policy'—the
objective under Praprotnik of our search through local
law—is authority to adopt rules for the conduct of
government. Authority to make a final decision need not
imply authority to establish rules. In Chicago it does
not. The Superintendent of Police in Chicago had no
power to countermand the statutes regulating the
operation of the department. The chief has "complete
authority to administer the department in a manner
consistent with the ordinances of the city, the laws of
the state, and the rules and regulations of the police
board.' ... If, in the course of selecting senior staff,
approach in the en banc opinions in Bennett v. City of Slidell, 728
F.2d 762, 735 F.2d 861 (5th Cir.1984), where "we rejected the line
of authority ... which would permit policy or custom to be
attributed to the city itself by attribution to any and all
officers endowed with final or supervisory power or authority."
Id. 735 F.2d at 862.12
Although several policies of the DISD board of trustees were
put in evidence,13 none purported to grant Superintendent Wright
policymaking authority respecting employee transfers. Nor is there
any other evidence that the DISD granted Superintendent Wright such
policymaking authority.
Jett relies on the testimony of Superintendent Wright that he
considered whether the DISD policy on employee transfers set out in
note 9 above applied to those, such as Jett, who were coaches as
well as teachers, as opposed to applying only to those who were
Rice discriminated on account of race and politics, he
violated rather than implemented the policy of Chicago."
Id. at 401.
12
We specifically identified this rejected line of authority
as that "discussed in part 3 [of our initial en banc opinion, 728
F.2d 762] and represented in particular by our opinion in Schneider
v. City of Atlanta, 628 F.2d 915 (5th Cir.1980)." Bennett, 735
F.2d at 862. Part 3 of our initial en banc opinion in Bennett, 728
F.2d 762 at 766, described Schneider as follows:
"We stated in Schneider v. City of Atlanta, 628 F.2d
915 (5th Cir.1980), that in those areas where a city
officer "is the final authority or ultimate repository of
[city] power his official conduct and decisions must
necessarily be considered those of one "whose edicts or
acts may fairly be said to represent official policy" for
which the [city] may be held responsible under § 1983.'
Id. at 920."
13
These included those identified in notes 6 and 9, supra, and
the DISD's one hundred-plus-page "Professional Personnel Guide."
merely teachers, to be "a gray area" in which he "had developed
some practices" he "attempted to follow."14 This does not suffice
14
Superintendent Wright's testimony in this respect includes
the following:
"Q. And you were then of the opinion and still are that
that was the only procedure, that is the informal meeting
and conference that had transpired that existed within
the D.I.S.D. to deal with the Jett situation?
A. No, it was not the only procedure but it just happened
that the end results would have ended up the same because
it would still have to come to me for the final decision.
Coach Jett could have had the opportunity—whether he was
aware of it or not I am not sure—of appealing the
decision of Dr. Todd and [sic] which time I would have
appointed a panel to hear that. They would have still
made the recommendation to me. Since Coach Jett came to
me directly as Mr. Santillo directed him then that
procedure was bypassed.
Q. Are you in agreement with Dr. Todd's testimony
yesterday however that under the written transfer policy
of the District that Coach Jett actually would have been
entitled to a hearing [sic] this matter?
A. If he had asked for it before he came to me and if he
had wanted it then we could have gone through a formal
hearing process but I considered that he considered he
was having his hearing when he was there with me.
Q. Okay. I see. Well, in fact—let me just find that
policy real quickly. Looking at Plaintiff's Exhibit 9
under your Provisions for Involuntary Transfer it states
that the first thing that has to be done is that the
immediate supervisor shall complete the prescribed form,
conduct a conference with the employee, secure the
signature of the employee and forward the form to the
office of the sub District Superintendent, doesn't it?
A. In that case they are talking about teachers.
Q. Excuse me. Is that what it says?
A. That is what it says, yes.
Q. And it doesn't say teacher. It says any employee,
right?
A. Right.
Q. And if the transfer provisions were pertinent just as
Dr. Todd said yesterday he didn't follow that, did he?
A. Not per se, no.
Q. Well, he didn't do any of that, did he?
A. He made a recommendation to his immediate supervisor
that Dr. Todd be involuntarily transferred to another
position.
Q. I think you misspoke. You said Dr. Todd. You mean
Dr. Todd made a recommendation to his supervisor that he
be transferred?
A. Yes, sir.
Q. Yes, sir. But it doesn't say to his supervisor, does
it? It says it shall be sent to the office of the sub
District Assistant Superintendent, doesn't it?
A. In the case of a teacher that would apply. In the
case of a Coach or an Athletic Director it would go to
the Athletic Department.
Q. First of all, I thought you told us a few minutes ago
that the policy of the District where they say teachers
are customarily applied to Coaches and Athletic
Directors?
A. Except that we have a gray area that is not covered
here, Mr. Hill, in that Area Superintendents don't make
the decision on Athletic Directors and Coaches per se.
That is left up between the Athletic Department and the
principal and myself.
Q. Is there any written statement of that?
A. No, sir, there is not.
Q. Well, in addition to that Coach Jett was being
transferred involuntarily and a teacher too, wasn't he?
A. Correct.
Q. So these policies would be pertinent to Coach Jett,
wouldn't they?
A. That is what I meant a moment ago that he could have
made such a request if he was aware of it. I doubt he
was aware of it.
to establish that the DISD board of trustees had delegated to
Q. Now, with respect to Coaches and Athletic Directors I
believe you have indicated several times here there is no
specific policy that covers that?
A. Not per se, no.
Q. But you have developed some practices that you attempt
to follow within the District when those problems arise?
A. That is correct.
Q. And typically how is that situation handled?
A. Well, we try to follow the same procedures of trying
to make sure that employees' considerations, employees
are considered and the person making the recommendation
considered and in the case of Athletic Director and Coach
then it generally goes to the Administrator of Athletics
which is Mr. John Kincaid and the principal to help work
out those differences and then if it can't be resolved
there then it is supposed to go to their immediate
supervisor and then on up the ladder to me which I am the
end of the appeal just like I am with teachers or anyone
else.
Q. (By Mr. Townend) Superintendent Wright, when a problem
arises between a principal and a Head Coach such as with
Dr. Todd and Mr. Jett, can you describe the normal
approaches or the normal ways in which that problem is
dealt with within the District?
[Court overrides objection by Jett's counsel.]
A. Well, it is not only normal policy and practice but it
is not stipulated personnel policy but it is stipulated
in other administrative policies that any problem that
arises as far as an employee, it goes through channels.
In the case of athletics it goes from the principal to
the Administrator for Athletics and to the Assistant
Superintendent for district wide programs who has the
responsibility for Athletics and from that person to the
Superintendent.
If it is a teacher problem it goes from the principal to
the Area Administrator to the Area Assistant
Superintendent to the Superintendent so there is a
channel for any problem that occurs that would be handled
and that is not only normal but it is prescribed by
policy under administration, not only personnel."
(Emphasis added).
Superintendent Wright final policymaking authority concerning
employee transfers. Wright's testimony contains no such assertion.
He was merely interpreting or applying the written policy of the
DISD trustees, and, apparently, he was doing so erroneously, as the
parts of the policy addressed (see note 9, supra ) speak of
"employee" or "employees," not teachers or coaches or
teacher/coaches.15 Moreover, Wright's testimony in this regard is
plainly directed only to the particular administrative channel to
be initially followed by the supervisor requesting a transfer be
made, namely whether the request is to go to "the Subdistrict
assistant superintendent" as the policy says (see quotation at end
of first paragraph of note 9, supra ) or whether, as Wright
construed it, that did not apply to coaches (or teacher/coaches)
and that instead in such a case the supervisor's request would
initially go to the DISD's Athletic Department.16 Even if Wright
had the authority to provide for such a bureaucratic channel for
teacher/coach transfer requests to initially follow, this would not
suffice to show that he had relevant substantive policymaking
authority respecting teacher/coach transfers, which is the only
issue here.
Jett contends that Wright had a policy of approving
involuntary transfers sought by a principal even though the
15
In other parts of the policy it does refer to "teachers" and
to "coaches," and, indeed, to "nurses," thus also indicating that
the broader word "employee" or "employees" was used advisedly.
16
Wright did not testify that the three-person hearing
committee procedures (see quoted material in last paragraph of note
9, supra ) were different for coaches or teacher/coaches than for
teachers.
principal was motivated by the employee's race or exercise of First
Amendment rights, so long as there was an irreconcilable
personality conflict between the principal and the employee.
Assuming, arguendo, that there was sufficient evidence for the jury
to infer that such a consideration motivated Wright's action in
respect to Jett, it was certainly not the basis Wright articulated
for his decision,17 and there is no evidence that it was his policy.
Jett relies on Wright's testimony that "[w]e had something here
17
Principal Todd made various specific complaints about Jett,
including Jett's poor attendance at faculty meetings, equipment
purchasing policies, and lesson plan preparation. Wright testified
that he discussed these matters with Jett, who told Wright "he
[Jett] thought ... that whenever he [Todd] forced him [Jett] to
come to teachers' meetings or faculty meetings and keep records of
inventory and things like that that he [Jett] thought that was
unreasonable," and that Wright then told Jett "I don't consider
that unreasonable." Wright further testified:
"... I told Coach Jett that I felt that Dr. Todd was only
carrying out his responsibilities as principal and that
those were the kinds of things I expected him to do and
that if, you know, if he was being unreasonable that was
one thing but as far as the actual accountability of
expecting an accounting for money and requiring him not
make unauthorized purchases and requiring him to attend
faculty meetings or requiring he have lesson plans, all
of those were in the area of expectation of the teacher
or Coach or any other employee in that building."
Wright further testified:
"Q. (By Mr. Townend) In your first conference did Mr.
Jett suggest to you that Dr. Todd be transferred?
A. Yes, sir, he did. He felt that Mr. McWhorter had been
unsuccessful and had been transferred and that he had
such a successful record that he felt that Dr. Todd was
the one in error. That is when I came to the conclusion
that there were differences that were not resolvable and
I told Coach Jett at the time that if I have to make a
decision between the principal and the coach it is
obvious that the principal is responsible for the school
and would be the one to stay unless he was in error
himself and I hadn't found anywhere where Dr. Todd was in
error." (Emphasis added).
that is unfortunate that happens a lot of time between two people
and when it occurs someone has to give and I have to make that
judgment decision as to who has to go and in this case it was coach
Jett." This is not inconsistent with Wright's testimony (see note
17) that he approved the Jett transfer because the differences were
irreconcilable "and I haven't found anywhere where Dr. Todd was in
error," and certainly does not support an inference that Wright
generally approved transfer recommendations despite their being
unconstitutionally motivated. More significantly, such would be
contrary to the policies of the DISD board of trustees and there is
nothing to suggest that they knew or can be assumed to have known
that Wright acted on such a basis. As previously observed, there
is no evidence of any other unconstitutionally motivated employee
transfer (or other personnel action) being taken or approved by
Wright. This is a single incident case.
The evidence is simply not sufficient to support a finding
that Superintendent Wright possessed final policymaking authority
in the area of employee transfers. Under Texas law such
policymaking authority rested exclusively with the DISD board of
trustees, and there is no evidence they had delegated it to
Superintendent Wright. Jett in substance argues for the kind of
"de facto final policymaking authority" rejected in Praprotnik.
485 U.S. at 129, 108 S.Ct. at 927. Moreover, there is no evidence
that Superintendent Wright's decision in Jett's case either "was
cast in the form of a policy statement and expressly approved by
the" DISD board or that "a series of decisions by" Wright in this
area "manifested a "custom or usage' of which the" DISD board "must
have been aware." Praprotnik, 485 U.S. at 130, 108 S.Ct. at 926-
27.
Accordingly, the judgment against the DISD and in favor of
Jett is reversed and the cause is remanded with directions to enter
judgment in favor of the DISD as respects all of Jett's claims
against it.
REVERSED and REMANDED with DIRECTIONS
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