dissenting.
The majority opinion recognizes “the Supreme Court has held repeatedly that the property interest in a person’s means of livelihood is one of the most significant that an individual can possess.” See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). Giving full value to this holding, I believe that the majority opinion is in error in remanding this case to state court when in fact it states a cause of action based upon discriminatory conduct in relation to the employer Board of Education.
Ramsey was a school teacher in Whitley County, Kentucky who at the end of 30 years of service was entitled to retire. As of that period (the end of 1986), she had accumulated 142 days of sick leave on the records as kept by the Board of Education. There is no dispute but that in 1981 the state had acted to give local school boards the authority for compensating teachers for their accumulated sick leave. In 1985, however, the school board decided to limit the number of days of sick leave a teacher could accumulate. The Board then reviewed appellant’s record and she was notified that it had been “corrected” from 142 days to 29 days by the elimination of the days of sick leave which had been credited to her in excess of the statutory maximum. Four school board teachers had, however, been granted pay for sick leave in excess of the statutory maximum upon which the school board now seeks to rely to bar plaintiff’s claim. In turn, appellant claims discrimination under 42 U.S.C. § 1983.
In my view, Barbara Ramsey, has stated a case of employment discrimination under 42 U.S.C. § 1983 which should be heard by the District Court and decided on the facts which are developed rather than being determined by summary judgment. I would remand to the District Judge for that purpose.