Sherrod v. The Sch. Bd. Of Palm Beach County

703 F.Supp.2d 1279

Curtis SHERROD, Plaintiff,v.The SCHOOL BOARD OF PALM BEACH COUNTY, Arthur Johnson, individually, Gloria Crutchfield, individually, Vicki L. Evans-Pare, individually and Jean Marie Middleton, individually, Defendants.

Case No. 07-80217-CIV.

United States District Court S.D. Florida.

March 18, 2010.

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Dedrick D. Straghn, Delray Beach, FL, for Plaintiff.

Sonia Elizabeth Hill, Office of General Counsel, Bruce Alexander Harris, Gerald Alphonso Williams, West Palm Beach, FL, David K. Friedman, Henry B. Handler, Harry Winderman, Seth Adam Kolton, Weiss Handler Angelos & Cornwell PA, Boca Raton, FL, for Defendants.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DANIEL T.K. HURLEY, District Judge.

THIS CAUSE is before the court on the parties' cross-motions for summary judgment directed inter alia, to plaintiff's claim that certain defendants retaliated against him for engaging in speech protected by the First Amendment [DE# 93, 101, 106]. Following oral argument upon the motions, the court invited and received supplemental evidentiary submissions and briefs directed to the issue of whether the public employee speech in question enjoys First Amendment protection as speech made “as a citizen” on a “matter of public concern,” as those concepts have been refined in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).

Having reviewed the parties' respective briefs and supplemental evidentiary submissions, the court concludes that the controversial speech by Mr. Sherrod, a public high school history teacher who spoke at several school board meetings to voice his criticism of perceived deficiencies in the School District of Palm Beach County's implementation of a Florida statute requiring curriculum infusion of African and African-American history, constitutes speech made “as a citizen” on a “matter of public concern” and hence enjoys constitutional protection. Accordingly, with one exception detailed below, the court shall deny the defendants' motion for summary judgment on the plaintiff's First Amendment retaliation claim (Count 2).

As to the remaining claims, the court shall grant the defendants' motion for summary judgment on the claim that defendants Crutchfield and the School Board violated Mr. Sherrod's procedural due process and equal protection rights by prematurely terminating his employment before completion of a remedial site assistance plan (Count 1). Also, the court shall grant the defendants' motion for summary judgment on the claim that defendants Vicki-Evans-Pare and Jean Marie Middleton, lawyers representing the School Board in prior litigation, violated Mr. Sherrod's procedural due process rights by failing to disclose an employment/address change of a key witness before and during original trial proceedings on his First Amendment retaliation claim (Count 3).

I. Fact Background & Procedural History ¹

Curtis Sherrod (“Mr. Sherrod”) began working as a history teacher for the Palm Beach County School District (“the District”) in the 1993-94 academic year. From June, 1995 to May, 2001, he taught world history at Olympic Heights High School in Boca Raton, Florida, where he consistently received “satisfactory” performance evaluations up through the beginning of the 2001-2002 academic year.

On July 15, 2001, a local newspaper published an article questioning the adequacy of the District's implementation of a recently enacted state statute mandating infusion of African and African-American history into the District's history curriculum. The article, printed in The Palm Beach Post ², read in pertinent part:

Seven years after the state ordered educators to teach specific lessons in African-American History, officials believe only 10 percent of Palm Beach County's teachers are doing it. Debbye Raing, program planner in the school district's Equal Opportunity Department, made the ten percent estimate Thursday morning during a week long training course on how to use an African and African-American curriculum developed by her office.... Currently it's up to teachers and principals to make sure students are learning the material. The depth of instruction depends on the school. School board member Dr. Debbie Robinson wants it to be taught more consistently. She suggested the countywide exam, which she wants to be a requirement for graduation.

Mr. Sherrod echoed this concern in a letter dated September 3, 2001 to Esther Bulger, Social Sciences Program Director for the School District of Palm Beach County, in which he complained that the newly proposed district-wide history examination failed to adequately measure the results of the District's African and African-American history infusion efforts.

According to Mr. Sherrod, the next day, Fran Giblin, the principal at Olympic Heights, appeared in his classroom for the first time in six years for a formal observation. Principal Giblin later called Sherrod to task for infusing too much African and African-American history into his classroom presentations. According to Mr. Sherrod, he began infusing African and African-American content into his curriculum as soon as the statute was enacted, and understood that state law required him to expand the curriculum in this fashion.

On October 15, 2001, Mr. Sherrod wrote a letter to then School Board Chairman Tom Lynch, with copies to other Board members, questioning the adequacy of the District's implementation of the infusion statute. Next, on February 2, 2002, he submitted a petition to the School Board requesting an evidentiary hearing upon the issue.

On March 11, 2002, Debbie Raing, the District's program planner for African and African History Studies, submitted a formal report, based on classroom observations, confirming that Mr. Sherrod was teaching within the District's world history curriculum guidelines. The record is unclear as to whether this formal observation was made at request of Mr. Sherrod, Principal Giblin or some other school administrator, or whether it was simply made in the ordinary course of performance review.

Soon after, Mr. Sherrod began making regular appearances at school board meetings to press his concerns about his perception of the District's inadequate infusion efforts. For example, on April 17, 2002, Mr. Sherrod stated:

My name is Curtis Sherrod. I'm here because you have a problem. [Statute] 233.061 was passed in 1994. The Palm Beach County School Board has spent thousands of dollars to implement the program, which for those who don't know is the inclusion of African, African-American history from grades K5 through twelve. Now, I'm still getting tenth graders who the only African Americans, Africans period they've heard about is either Martin Luther King or Frederick Douglas. Maybe some even heard of Malcolm X .... They're teaching black children that basically their history started on slave ships ... I advise you to have Mr. Johnson settle this matter and let's work to put together a program where all children can learn.

On May 16, 2002, Mr. Sherrod received his first unsatisfactory performance evaluation at Olympic Heights from then Vice-Principal Christine Hall. This, in turn, caused the District to place him on a remedial teaching performance plan, known as a “site assistance plan” or “SAP.” According to Mr. Sherrod, the District intentionally structured his SAP so that he had “no reasonable expectation of success,” providing cover for a “set up” to eliminate him allegedly orchestrated by Principal Giblin. In August 2002, the District transferred Mr. Sherrod from Olympic Heights in Boca Raton to Palm Beach Lakes High School in West Palm Beach where he was assigned to serve as a hall monitor.

On August 14, 2002, Mr. Sherrod filed “ Sherrod I,” his initial § 1983 suit against the School District of Palm Beach County and various district employees involved in the decision to transfer and demote him, contending that it constituted a retaliatory action designed to punish him for publicly criticizing the District's poor performance in implementing the African and African-American history infusion statute.

On September 18, 2002, Sherrod again spoke at a public school board meeting and stated:

My name is Curtis Sherrod. Until this year I was the world history teacher at Olympic Heights in Boca Raton, Florida when I was fourteen (sic). In 2002 I filed a (inaudible) ten point five million dollar suit alleging retaliation for exercising my right to freedom of speech against my employer, the Palm Beach County School District.

I am presently assigned to Palm Beach Lakes High School in West Palm Beach, Florida where the taxpayers of Palm Beach County are now paying me forty thousand dollars plus a year to carry a walkie talkie and tell kids to tuck in their shirttails in, while the white teacher with half my expertise is teaching my classes....

The suit that I filed is not just about me or the ridiculous trumped up charges against me .... This is about something much more important. This is about study after study find (sic) the African-American children are even or ahead of the white counterparts, yet by the time they reach third grade, they are falling behind and don't won't (sic) to go to school anymore. That's why I refuse to back down and teach the standard white supremacist version of World History....

This is about teachers and administrators who have to be educated in the racist paradigm down to belittle or altogether our contribution throughout civilization cannot possibly believe that black children can achieve at the same level as whites

.... It's about nothing happening, why I'm being administratively lynched. Palm Beach County School Superintendent Dr. Johnson euphemistically charged institutional resistance. I call it racism of the worst kind since the (inaudible) most of the victims are children.

Later in the 2002-2003 academic year, the District transferred Mr. Sherrod from...