Manning v. Dakota County Sch. Dist. No. 22-0011

279 Neb. 740

782 N.W.2d 1

Bethany MANNING, appellee,v.DAKOTA COUNTY SCHOOL DISTRICT No. 22-0011, also known as South Sioux City Community Schools, a political subdivision of the State of Nebraska, appellant.

No. S-09-714.

Supreme Court of Nebraska.

April 23, 2010.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

2. Attorney Fees. Attorney fees and expenses may be recovered in a civil action only where provided for by statute or

when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

3. Civil Rights: Attorney Fees. If 42 U.S.C. § 1983 (2006) would have been an appropriate basis for relief, then the plaintiff in such action is entitled to attorney fees under 42 U.S.C. § 1988 (2006).

4. Civil Rights: Attorney Fees. A litigant cannot obtain attorney fees simply by an incantation of 42 U.S.C. § 1983 (2006).

5. Municipal Corporations: Civil Rights: Liability. Respondeat superior is an insufficient basis for establishing liability of a municipality under 42 U.S.C. § 1983 (2006), and municipal liability under § 1983 is limited to actions for which the municipality is actually responsible.

6. Negligence: Liability: Municipal Corporations: Public Officers and Employees. A municipality is liable under 42 U.S.C. § 1983 (2006) only when the execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.

7. Due Process. Procedural due process is flexible and calls for such protections as the particular situation demands.

8. Due Process. Where a state must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirement of the Due Process Clause.

9. Due Process: Public Officers and Employees. In the case of random, unauthorized deprivations by state employees, due process does not require a predeprivation hearing; rather, postdeprivation state tort remedies are sufficient.

Kelley Baker, Lincoln, and Steve Williams, of Harding & Schultz, P.C., L.L.O., for appellant.

Scott J. Norby, of McGuire & Norby, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

The Dakota County School District No. 22-0011 (the school district) appeals from a judgment against it in an action brought by Bethany Manning for backpay, reinstatement of employment, and attorney fees and costs. The school district had hired Manning to fill a vacancy for a full-time teaching position, but because of concerns about her qualifications, the school district designated her as a “long-term substitute.” This designation deprived Manning of any contractual rights under the collective bargaining agreement and statutory rights granted to “probationary certificated employees” under the Nebraska tenure statutes.¹ Manning's employment was eventually terminated without notice and hearing as provided for under § 79-828 for probationary certificated employees.

BACKGROUND

The facts leading up to the current appeal are largely undisputed and can be found in the related opinion of South Sioux City Ed. Assn. v. Dakota Cty. Sch. Dist.² When a full-time teacher for the school district resigned after several years of service, the school district needed to fill the vacancy before the start of the 2007-08 school year. The position involved teaching students who are deaf or hard of hearing. Three people were involved in the hiring process: the student services director, the assistant superintendent, and the principal. Three people applied for the job, but only Manning had the required qualifications.

Despite Manning's qualifications, the student services director was not convinced that Manning was a good fit for the teaching position. Because of these doubts, the student services director and the assistant superintendent decided to offer Manning the position as a “long-term substitute.” They believed that as a “long-term substitute,” Manning did not fall under the terms of the teachers' collective bargaining agreement with the school district or under the statutory protections granted to certificated employees.³ Thus, the school district could continue to look for better candidates for the job and replace Manning in the manner and at the time it saw fit.

The student services director offered Manning a reduced “substitute teacher” salary for the first 20 days and a standard salary based on her education level and years of experience thereafter. In an e-mail, the assistant superintendent of the school district told Manning she would not be entitled to sick leave or any of the other benefits provided to teachers who are covered by the collective bargaining agreement. And at the end of the first semester, the school district would reopen interviews for the position and Manning could “reapply” at that time. No formal contract was presented to Manning or approved by the school board.

Manning accepted the offer and began her employment at the beginning of the school year. At the end of the first semester, she reapplied for the position. By that time, however, one of the previously unsuccessful applicants had acquired the required certification to also be qualified for the job. On December 11, 2007, the student services director informed Manning that the school district had found someone else to fill the position and that the last day her services would be required was December 13.

The South Sioux City Education Association initiated a grievance against the school district, alleging that Manning was a “full-time certificated teacher” and demanding that she be issued a standard contract and be prospectively and retroactively granted all the economic and fringe benefits of the collective bargaining agreement.

The South Sioux City Education Association brought an action before the Commission of Industrial Relations (CIR), which found that the act of treating Manning as a substitute teacher rather than as a certificated employee was a prohibited practice under Neb.Rev.Stat. § 48-824(2)(a) and (f) (Reissue 2004). The CIR concluded that Manning was a “certificated employee” as defined by § 79-824 and was therefore covered by the collective bargaining agreement.

Section 79-824 states in relevant part that a certificated employee means and includes all teachers, “other than substitute teachers, who are employed one-half time or more.” ⁴ A “[p]robationary certificated employee” is a teacher who has served under a contract with the school district for less than 3 successive school years.⁵ The CIR reasoned that someone cannot “substitute” for an open position, i.e., where the previous teacher's absence is permanent. It also rejected the school district's contention that Manning was only “one-half time,” because when it fired her, she happened to have served only 83.5 service days out of a total of 188 teacher service days in 2007-08. The CIR reasoned that it undermined teachers' statutory rights to allow the school district to unilaterally convert otherwise probationary certificated teachers into substitutes by not allowing them to work at least half the year. The CIR awarded Manning backpay and the value of her benefits through December 13, 2007, and it ordered the school district to cease and desist from implementing unilateral deviations from the collective bargaining agreement.

The school district appealed the CIR's order, and, in South Sioux City Ed. Assn. v. Dakota Cty. Sch. Dist., we affirmed.⁶ We agreed that Manning was a probationary certificated employee as defined by Neb.Rev.Stat. § 79-101(9) (Reissue 2008) and § 79-824. We agreed generally with the reasoning of the CIR. We also explained that Manning was not a “ ‘[s]ubstitute employee’ ” as defined by Neb.Rev.Stat. § 79-902(38) (Reissue 2008), because she was not hired due to the “temporary absence of a regular employee.” ⁷

During the pendency of the CIR action, Manning brought this action, in a “Complaint for Declaratory Relief,” against the school district in the district court for Dakota County. Manning alleged that she was a probationary certificated employee under § 79-824(1) and (3) and that as a result, she was entitled to a teacher's contract under Neb.Rev.Stat. § 79-817 (Reissue 2008); salary and benefits as negotiated by the collective bargaining agreement; and notice and hearing before termination, as provided by § 79-828. Manning asked for reinstatement with a written contract until such time as the school district followed proper notice and hearing procedures to terminate her employment. Manning also asked for backpay and consequential damages.

Manning requested attorney fees and costs pursuant to 42 U.S.C. § 1988 (2006). Manning alleged that the school district violated her federal due process rights by canceling her employment without notice and hearing.

The district court issued an order in favor of Manning on all counts. The court granted Manning reinstatement until such time as the school district followed correct statutory procedures for her termination of employment, and it ordered that the school district provide her with a written teacher's contract. The court granted Manning $6,321.37 in backpay and benefits for the first semester, $27,507.38 in backpay from December 14, 2007, to May 23, 2008, and $53,396 for what she would have earned in the 2008-09 school year. After Manning submitted an application and affidavit demonstrating attorney fees and costs, the district court granted her $25,872.75 in attorney fees and $841.38 in costs pursuant to § 1988. The school district appeals.

ASSIGNMENTS OF ERROR

The school district asserts that the district court erred when it determined that (1) Manning...