Kiley and Cummings, Circuit Judges, and Morgan, District Judge.*fn1 Kiley, C.j., (concurring).
This cause arose upon a complaint filed under the provisions of Section 1 of the Civil Rights Act of 1871, 42 U.S.C. 1983. The complaint alleged that plaintiff's constitutional rights had been violated by the action of the defendant, Board of Education, denying him a teaching contract for the 1969-70 school year.
A trial of the cause ended with a judgment adverse to plaintiff, based upon the trial court's findings that the defendants had acted in good faith in denying a contract to plaintiff and that his constitutional rights had not been abridged. This appeal followed.
The constitutional principles asserted in this case are well established. A public employee cannot be discharged or otherwise penalized because of his exercise of the right of freedom of speech as guaranteed by the First Amendment to the Constitution of the United States. E.g., Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968); Muller v. Conlisk, 429 F.2d 901, 904 (7 Cir. 1970); McLaughlin v. Tilendis, 398 F.2d 287, 288-289 (7 Cir. 1968). Any immunity which public officials enjoy in dealing with their employees is limited by the requirement that their actions vis-a-vis such employees be taken in good faith. McLaughlin v. Tilendis, supra at 290-291.
The principal thrust of plaintiff's argument is that the reasons stated by the Board for his dismissal are untenable and that, therefore, it must be inferred that plaintiff was, in fact, dismissed because of his exercise of First Amendment rights. He invokes the established rule that this court must make an independent examination of the whole record to determine whether his constitutional rights were abridged. Such examination, however, cannot be a trial de novo as plaintiff seems to imply. Our examination is limited to the determination whether the findings of fact upon which the judgment rests are supported by the evidence. We may not re-examine findings of fact by the court below which are supported by substantial evidence. General Motors Corp. v. Washington, 377 U.S. 436, 441-442, 12 L. Ed. 2d 430, 84 S. Ct. 1564 (1964).
The thrust of that argument also requires that we define the limits of our review at the outset of this opinion. The applicable State statute and its interpretation are significant only as a part of the factual background of the controversy.*fn2 Whether there was, or was not, compliance with the statute in this instance is a question of state law without federal significance. Our only province, as respects the reasons given by the Board for plaintiff's dismissal, is to determine whether such reasons are so wanting in evidentiary support that it must be said that they are, in effect, a smoke screen hiding some undisclosed reason which was the real basis for defendants' action in dismissing plaintiff.
Plaintiff, who is certified by the State of Illinois as a school teacher, was employed by the defendant Board of Education as a counselor at Lockport West High School for the school years 1967-68 and 1968-69. Had he not been refused a contract for the 1969-70 school year, he would have attained tenure under the Illinois statute.*fn3 In February, 1969, the principal of Lockport West delivered a written recommendation to the defendant Board that plaintiff not be awarded a tenure contract. That recommendation was based upon the assertion that plaintiff had refused to perform duties not included within his contract without extra compensation. That conclusion was followed by factual recitals of instances of such refusal and the statement that, "I have received cooperation from Mr. Simcox only when great pressure has been brought to bear."
The Board accepted that recommendation on March 27, 1969. Plaintiff was advised of that action by a letter from the District Superintendent on March 29, 1969. The first paragraph thereof stated:
"This is to inform you that by official School Board action of March 27, 1969, the recommendation not to award you a third year contract was accepted. The stated reasons are lack of self-direction and lack of cooperation with administration in following prescribed procedures."
The letter continued with references to "your resistance" to attendance at evening parent meetings, refusal to submit weekly guidance reports, refusal to assist in an identification photo project, and failure to assume compensated extra teaching duties in emergency situations.*fn4 Plaintiff stresses those four factual recitals as the only "reasons" given for his dismissal. Individual decapitation of each is attempted by argument and recitation of certain evidence. The argument culminates with the conclusion that each of such four "reasons" must fall, and, ergo, it must be inferred that plaintiff was discharged because of his activities which were protected by the First Amendment.
We must reject the argument. Emphasis upon the supporting recitals ignores the clear import of the dismissal notice and the stated reasons for dismissal therein contained. It also ignores the import of the evidence adduced in the court below upon which this judgment rests.
The evidence quite clearly reveals the following background facts. During plaintiff's employment at Lockport, there were several areas of contention between school officials and the counselors, in general, and plaintiff in particular. Counselors were expected by the school officials to attend evening parent meetings at junior high schools within the District. It appears from the evidence that several counselors were erratic in their attendance at such meetings, and that plaintiff refused to attend one such meeting when requested to attend. He later told the principal that he had refused to attend because attendance was a duty not included in his contract.
A second area of contention related to the school's requirement that counselors submit weekly guidance reports to school officials. The record clearly supports the conclusion that all counselors at Lockport West were opposed to these reports because the required content thereof was quantitative only, and they believed that the reports could serve no useful purpose. At one meeting of plaintiff and another counselor with the District Guidance Director, the Director was told that if he wanted such written reports to put the directive to that effect in writing. A written directive was issued, but neither plaintiff nor the second counselor who had made the demand were ...