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Shirck v. Thomas


April 6, 1973


Swygert, Chief Judge and Fairchild and Stevens, Circuit Judges. Fairchild, Circuit Judge (dissenting).

Author: Stevens

STEVENS, Circuit Judge.

On April 1, 1969, defendants notified plaintiff that she would not be reemployed as a high school teacher for the 1969-1970 academic year. The question is whether that action deprived her of "property" or "liberty" protected by the Fourteenth Amendment.

Plaintiff received notice of the reasons for her nonrenewal as required by Ill. Rev. Stat. Ch. 122, ยง 24-10. As we explained when the case was first before us, those reasons "related to her performance in her work, particularly her failure to coordinate her teaching with that of the other German teacher so that students who needed to transfer at the end of a semester would not be handicapped." 447 F.2d 1025, 1026. Our decision that she was entitled to the kind of hearing required by Roth v. Board of Regents, 446 F.2d 806 (7th Cir. 1971), which was then the law of this circuit, was vacated and we have been directed to reconsider in the light of the Supreme Court's opinion in that case. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548. See Thomas v. Shirck, 408 U.S. 940, 92 S. Ct. 2848, 33 L. Ed. 2d 764. The parties have filed extensive supplemental briefs; we now affirm the summary judgment entered by the district court in favor of defendants.

Plaintiff had no contractual entitlement, either express or implied, to future employment. Since she received notice of nonrenewal before completion of her second year of teaching, she had no statutory tenure. She argues, however, that the Illinois statute requiring that she be given such notice created a sufficient "property" interest to bring the due process clause into play. This argument confuses the decisive distinction between procedure and substance.*fn1 Since the Illinois statutory procedure was observed, that statute affords plaintiff no substantive right.

Plaintiff also contends that the reason assigned by defendants for their nonrenewal decision deprived her of "liberty." She argues alternatively that as a matter of law those reasons imposed a "stigma" sufficient to foreclose her "freedom to take advantage of other employment opportunities," cf. Roth, 408 U.S. at 578, 92 S. Ct. at 2707, or, at the very least, that a question of fact is presented which precludes approval of the summary judgment.

We first note that there is no suggestion that the State has denied her employment to penalize or inhibit her exercise of any constitutionally protected right. Cf. Perry v. Sindermann, 408 U.S. 593, 597-598, 92 S. Ct. 2694, 33 L. Ed. 2d 570, Illinois State Employees Union, et al. v. Lewis, 473 F.2d 561 (7th Cir. 1972). Nor did defendants' action create any legal disability impairing her eligibility for other employment.*fn2 There was no public "posting" of plaintiff's name which might have created the kind of "stigma" upon "her good name, reputation, honor, or integrity" such as the Court condemned in Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 27 L. Ed. 2d 515.*fn3 On the contrary, plaintiff's injury stems entirely from (1) the fact that her employment was not continued, and (2) the reasons assigned by defendants for their decision.

The fact that nonretention has unquestionably made plaintiff less attractive to other employers does not amount to a constitutional deprivation of "liberty." This much is plainly settled by Roth*fn4 and Sindermann.*fn5 In our opinion, the adverse impact of the nonrenewal decision was not aggravated either by the fact that defendants gave plaintiff a written statement of reasons for their action or by the content of that statement.*fn6 Assuming, as the record indicates that those reasons were not published to persons who did not participate in the nonrenewal decision, they could create no greater stigma than if the action had not been explained at all.*fn7

Even assuming, however, that the reasons were divulged to third parties, we are persuaded that they do not contain the kind of impact on "good name, reputation, honor, or integrity" contemplated by Constantineau or the part of Roth on which plaintiff relies. Cf. Lipp v. Board of Education, 470 F.2d 802, 804 (7th Cir. 1972). We therefore conclude that even accepting her allegations and affidavits as entirely true, her claim must fail.




FAIRCHILD, Circuit Judge (dissenting).

I think that it is a question of fact whether the criticisms included in the reasons for nonrenewal imposed a disability of enough substance to foreclose plaintiff's freedom to obtain other employment.

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