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02/16/88 DIANE WERBLO v. BOARD SCHOOL TRUSTEES

Filed: February 16, 1988.

DIANE WERBLO, PLAINTIFF-APPELLANT,
v.
BOARD OF SCHOOL TRUSTEES OF THE HAMILTON HEIGHTS SCHOOL CORPORATION, AND SYLVIA KAY HARTLEY, V. RAY MOSBAUGH, LAWRENCE C. BECK, KEITH SCHULENBURG, AND RONALD E. MCGILL, INDIVIDUALLY AND IN THEIR CAPACITY AS MEMBERS OF THE BOARD OF SCHOOL TRUSTEES OF HAMILTON HEIGHTS SCHOOL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Hamilton Superior Court, Room No. 1, The Honorable Thomas G. Wright, Special Judge, Cause No. 1S84-386

Ratliff, C.j., Robertson, J., Neal, J., concur.

Author: Ratliff

RATLIFF, C.J.

STATEMENT OF THE CASE

Diane P. Werblo appeals from the Hamilton Superior Court's dismissal of her claim brought under 42 U.S.C. § 1983, and affirmance of the Board of School Trustees of Hamilton Heights School Corporation's (School Board) decision to dismiss her for insubordination. We affirm in part and reverse in part.

FACTS

Diane P. Werblo taught English and Latin at Hamilton Heights High School during the 1983-84 school year as a tenured teacher. As part of the English course Werblo led her class through a movie version of "Romeo and Juliet" in preparation for a test on the Shakespearean play. The students were scheduled to view the final third (1/3) of the play on April 11, 1984. However, a convocation entitled "Sportsworld" which contained religious materials was scheduled on the same day. On April 10, 1984, Werblo discussed the conflicting schedule with Eugene Pitts, the school principal, and sought permission for her class to view the final third (1/3) of the play, rather than attend the convocation. A resolution to the conflict was not reached at that time. Werblo again discussed the conflict with Pitts on April 11, 1984, and further explained that the video was on loan and could not be secured for another time. Pitts considered the situation and then directed Werblo to attend the convocation with her students. Subsequently, Pitts made an announcement on the school's public address system. The announcement discussed the convocation, noted the speaker's career as a football player, and advised that the convocation would include religious content. The announcement also indicated that anyone who did not wish to attend the convocation for religious or "any other reasons" was to report to the principal's office or Pitts in the hallway.

Werblo interpreted this later announcement as a way for her class to view the movie, rather than attend the convocation. Accordingly, Werblo gave her students the individual option of attending the convocation or viewing the movie. Werblo and sixteen (16) of thirty (30) students chose to view the movie. In accordance with the announcement Werblo and the sixteen (16) students reported to the office and objected to attending the convocation. Werblo objected on religious grounds. Thereafter, Werblo and the students went to the library and viewed the movie.

On April 18, 1984, the School Board notified Werblo that a meeting would be held on May 21, 1984, to consider the cancellation of her indefinite teacher contract. The notice provided also that Werblo had a right to request a hearing. On April 25, 1984, Werblo requested a written statement of the reasons for the consideration of cancellation and requested a hearing. On April 30, 1984, the School Board notified Werblo that the consideration of cancellation was based upon, "alleged insubordination by [Werblo] with regard to the required attendance of [Werblo's] class at a school convocation to have been held on April 11, 1984, and these actions by [her] with regard to that incident [were] being considered a willful refusal to obey reasonable rules of the School." Record at 255. The School Board also notified Werblo that the hearing would be held on May 14, 1984, at 7:30 P.M. in the School Board room.

At the hearing, the School Board accepted evidence, and heard testimony from witnesses called by both Pitts and Werblo. A teacher's union representative assisted and acted on behalf of Werblo. After the hearing, School Superintendent Dr. Bob A. Carnal recommended termination of Werblo's contract. On May 21, 1984, the School Board met again, issued findings of fact and Conclusions of law and determined that Werblo's actions constituted a willful refusal to obey a reasonable rule or direction from the principal which amounted to insubordination. Based upon this determination the School Board cancelled Werblo's contract, effective May 22, 1984.

On October 23, 1984, Werblo filed a complaint against the School Board and its individual members in three counts. Count I of Werblo's complaint alleged a violation of her constitutional and civil rights and was brought under 42 USC § 1983. In addition to reinstatement, back pay, and damages, Count I also sought attorney's fees under 42 U.S.C. § 1988. In Counts II and III Werblo alleged that the School Board breached her contract and violated Indiana's Tenured Teacher Act, Indiana Code sections 20-6.1-4-10, 11 and 12. Count II requested the trial court to issue a mandate requiring the School Board to reinstate Werblo and to pay Werblo back pay. Count III sought Fifty Thousand Dollars ($50,000) in damages.

On November 20, 1985, the School Board filed a Motion for Summary Judgment. The School Board argued that Werblo's Count I should be dismissed for failure to provide notice pursuant to Indiana's Tort Claim Act, Indiana Code section 34-4-16.5-1 et seq. (hereinafter ITCA). The School Board argued also that summary judgment was appropriate under Counts II and III because the School Board complied with the Tenured Teachers Act and because substantial evidence of probative value existed to support the termination. Thereafter, the trial court requested and the School Board provided a transcript of the termination hearing. Werblo filed a motion to strike the transcript and argued that the School Board altered the transcript. The trial court denied Werblo's motion to strike and granted the School Board's Motion for Summary Judgment. The trial court dismissed Count I of Werblo's complaint for failure to comply with the ITCA, found that no material issues of fact existed as to Count II and III of Werblo's complaint, and held that the School Board was entitled to judgment as a matter of law. Werblo appeals these rulings.

ISSUES

While Werblo presents three (3) issues for review, two (2) ...


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