UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS N. BIRD,
Plaintiff-Appellant,

v.

BLAND COUNTY SCHOOL BOARD;
STEPHEN L. KELLEY, personally and
in his official capacity as chairman
of the Bland County School Board,
Route 1, Bland County, Virginia
24315; TOMMY R. KITTS, personally
and in his official capacity as vice-
chairman of the Bland County
School Board, Route 1, Bland,
Virginia 24315; PAUL D. LOONEY,
personally and in his official
capacity as a member of the Bland
                                        No. 98-2455
County School Board, Nationwide
Insurance Company, Bland,
Virginia; LARRY S. BALL, personally
and in his official capacity as a
member of the Bland County
School Board, Rocky Gap, Virginia,
Defendants-Appellees,

and

D. JACK GOLD, personally and in his
official capacity as superintendent
of the Bland School Division,
Office of the Superintendent Bland
County School Board, Bland,
Virginia 24315,
Defendant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-97-604-R)

Argued: September 22, 1999

Decided: January 14, 2000

Before MURNAGHAN, MICHAEL, and KING, Circuit Judges.

_________________________________________________________________

Reversed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Paul Graham Beers, GLENN, FELDMAN, DARBY &
GOODLATTE, Roanoke, Virginia, for Appellant. John Dickens Eure,
JOHNSON, AYERS & MATTHEWS, Roanoke, Virginia, for Appel-
lees. ON BRIEF: Joseph A. Matthews, Jr., Lori E. Jones, JOHNSON,
AYERS & MATTHEWS, Roanoke, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Thomas Bird, a tenured high school teacher, sued the Bland County
(Virginia) School Board, the four members of the board, and the
county school superintendent under 42 U.S.C. § 1983, alleging that
the defendants violated his due process right to an impartial decision

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on his termination. A jury concluded that the board had prejudged
Bird's case and awarded him $71,900 in lost wages and $5,000 for
emotional distress. After the jury returned its verdict, the district court
granted the defendants' Fed. R. Civ. P. 50(b) motion for judgment as
a matter of law. Bird appeals and we reverse.

I.

In our plenary review of a district court's ruling on a Rule 50
motion, we review the evidence (and draw all reasonable inferences)
in the light most favorable to the non-movant, here Bird. See Price
v. City of Charlotte, North Carolina, 93 F.3d 1241, 1249 (4th Cir.
1996).

Bird was a high school math teacher in the Bland County, Virginia,
school system for fourteen years (from 1981 to 1995). He had tenure,
which meant that he was "entitled to continuing contracts during good
behavior and competent service." Va. Code Ann.§§ 22.1-303, 22.1-
304 (Michie 1997). By all accounts, Bird was a dedicated and talented
classroom teacher. In addition, he was generous in giving his time to
support students in their extracurricular activities. On the last day of
the 1994-95 school year at Bland High School, Bird finally lost his
composure in dealing with one student, who was a bully, and he
(Bird) was fired as a result.

The troublemaker was Sammy Blankenship, a strong, 220-pound
lineman on the high school football team. During his senior year
Blankenship went out of his way to provoke Bird. Blankenship dis-
turbed Bird's classes by squeaking his tennis shoes and whistling out-
side Bird's classroom door. During one incident when Blankenship
was disruptive, Bird ordered him to class. Blankenship refused to go
and cursed Bird. Bird reported the incident to the principal, who sus-
pended Blankenship for a day. Later, when Bird was admonishing
another student for cursing in a school hallway, Blankenship inter-
rupted and began yelling at Bird. When Bird told Blankenship that he
was being rude, Blankenship said "let's go outside," indicating that he
wanted to settle their differences with a fistfight. Bird then instructed
Blankenship to go to the principal's office, but Blankenship refused.
When Bird reported this incident to the principal, he got little support.

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The principal simply told Bird to "try to stay away from the situa-
tion."

On June 2, 1995, the last day of school, as Bird was driving to
Bland High, Blankenship (who was driving another car) passed Bird.
As Blankenship passed, he gave Bird the finger for five to ten sec-
onds. Bird motioned for Blankenship to pull off the road. Blankenship
pulled into a large driveway within sight of the high school, and Bird
pulled in beside him. Bird rolled down his car window and said,
"What's the problem, Sammy?" Blankenship then got out of his car
and said to Bird, "Get out of the car." Bird complied, and Blankenship
came toward Bird with his fists clenched, saying"I'm getting tired of
taking this sh-- off of you." Blankenship then bumped Bird with his
chest, knocking Bird backwards. Blankenship bumped Bird a second
time and kept pressing toward him. At this point, Bird threw up his
right hand and hit Blankenship on the chin, "not very hard, not very
forcefully." A very one-sided fight ensued. Blankenship gave Bird a
severe beating that lasted for five to ten minutes. Blankenship hit Bird
repeatedly about the face and head, and Bird landed only three or four
ineffective punches. When another student finally broke up the fight,
Bird was bleeding from his mouth and nose, and his face was badly
bruised. Bird had to see a doctor, who treated him and ordered him
to rest at home for four days. Blankenship was unhurt.

On June 28, 1995, the Bland County Superintendent of Schools,
Dr. Jack Gold, notified Bird that he (Gold) was recommending that
the school board dismiss Bird because of his altercation with
Blankenship. Bird requested a hearing before the board, which he was
entitled to under Virginia law. See Va. Code Ann. § 22.1-310. The
hearing was set for September 7, 1995. In the meantime, Bird was
temporarily reassigned to the school system's central office and
placed on administrative leave pending his hearing.

Bird's fate became entangled with efforts to improve Bland High
School's new (and struggling) football program. Beginning in 1994
two of Bland's coaches, Roger Beaman and Andy Selfe, began
recruiting John Chmara, a popular and highly successful high school
football coach, to join Bland High's coaching staff. Chmara had
coached two state championship teams in West Virginia, and he was
the winningest coach in Bluefield High School's history. Although

                    4
Chmara was then teaching middle school social studies, he had
recently completed a ten-year stint as athletic director at Fauquier
High School in Virginia. Throughout the 1994-95 school year,
Coaches Beaman and Selfe pressed Chmara to consider coming to
Bland High School. At their invitation Chmara visited Bland High to
look at the athletic facilities. Coach Beaman arranged for Chmara to
meet with the school board chairman, defendant Stephen Kelley, to
discuss the Bland County football program. Chmara eventually indi-
cated that he would be willing to join the football coaching staff at
Bland High, but only if he was awarded a regular teaching contract.
Coach Beaman then urged the principal of Bland High to try to find
a teaching position for Chmara. Although Chmara was certified to
teach math, he had never taught that subject in nearly forty years of
coaching and teaching.

On August 3 and 10, 1995, Dr. Gold ran a newspaper advertise-
ment for a high school math teacher to replace Bird. The school sys-
tem received about eighteen applications, including Chmara's, for the
position. Despite the fact that Chmara had never taught math, only he
was interviewed for the job.

Bland High's football practice started on August 7, 1995, and
Chmara began coaching on August 9, the third day of practice. The
school board formally hired Chmara at its August 15, 1995, meeting.
He was given two contracts, one to teach and one to coach football.
The board also decided at the August 15 meeting that Bird would not
be returned to the classroom. The board members, however, all main-
tain that they were told by Dr. Gold that there was money available
in the budget to employ Bird in the central office if he was retained
after his hearing. However, there was no open position in the central
office, and within the next twelve months the board was forced to lay
off seven employees because of budget shortfalls.

Bird's dismissal hearing was held on September 7, 1995. At the
hearing the school administration's lawyer said that the question
before the board was whether Bird would be fired or returned to the
classroom. No one contradicted the lawyer; in other words, no one
said that employment in the central office was an option. Bird was
fired after the hearing.

                    5
Bird then sued the Bland County School Board, its four members,
and the county superintendent alleging that they had violated his
Fourteenth Amendment right to procedural due process by prejudging
his case prior to the hearing. The jury agreed and awarded Bird dam-
ages totaling $76,900. The district court set the verdict aside on the
grounds (1) that the evidence was insufficient to show that the board
prejudged Bird's case and (2) that Bird waived his right to an impar-
tial decisionmaker because he knew of the board's bias before the
hearing and did not object. Bird appeals.*

II.

Bird first argues that the district court erred in concluding post-trial
that he "failed to present sufficient evidence to prove that the Board
members had irrevocably closed their minds prior to the Hearing."
Bird v. Bland County School Bd., Civ. No. 97-0604-R, mem. op. at
9 (W.D. Va. Sept. 16, 1998). We agree with Bird.

Bird had a Fourteenth Amendment due process right to an impartial
hearing, without prejudgment of his case, by the school board on the
question of whether he should be terminated. See Schweiker v.
McClure, 456 U.S. 188, 195 (1982); Satterfield v. Edenton-Chowan
Bd. of Educ., 530 F.2d 567, 574-75 (4th Cir. 1975). In response to
special interrogatories, the jury found that Bird had "proven by a pre-
ponderance of the evidence that [each board member] prejudged the
facts to the extent that he irrevocably closed his mind to retaining
[Bird] in the School Board's employ, whether as a teacher or in some
other capacity, before [the board member] actually heard the matter
on September 7, 1995."

The district court's decision was anchored on the testimony of each
board member that he was told that there was a fully funded central
office position available for Bird if he was retained and that the board
had not reached a decision before the hearing. However, the jury
rejected the testimony of the board members and, in rendering a ver-
dict for Bird, concluded that the board had prejudged his case. We
must reinstate the jury's determination if there is evidence on which
_________________________________________________________________
*Bird does not appeal the district court's dismissal of superintendent
Gold from the case.

                     6
a reasonable jury could have returned a verdict in favor of Bird. Price
v. City of Charlotte, North Carolina, 93 F.3d at 1249-50. There was
such evidence here.

There is direct evidence that on August 15, 1995, the board gave
the new football coach, John Chmara, a contract to fill Bird's old
position as math teacher and that the board decided on the same day
that Bird would not be returned to the classroom. The issue is whether
there is evidence to support a finding that the board also decided
before Bird's hearing that he would not be given an administrative
position. There is direct evidence (1) that the school administration's
lawyer said at the hearing that the only question for the board was
whether Bird would be fired or returned to the classroom (there was
no mention of an administrative job); (2) that there was no position
open in the central office that was suitable for Bird; and that (3)
within the twelve months following Bird's dismissal, seven (non-
teacher) employees were laid off because of budget shortfalls. A rea-
sonable jury could infer from this evidence that the board had decided
prior to the hearing not to retain Bird in any position. See Sales v.
Grant, 158 F.3d 768, 780 (4th Cir. 1990). The evidence was therefore
sufficient to support the jury's finding that the board prejudged his
case.

III.

Bird next argues that the district court erred in concluding (as a
matter of law) that he waived his right to an impartial decisionmaker
because he knew the school board had prejudged his case prior to the
hearing on September 7, 1995. We review the waiver issue de novo,
see Fraser v. Merrill Lynch, 817 F.2d 250, 253 (4th Cir. 1987), and
we disagree with the district court's conclusion.

The district court based its waiver decision on a letter, dated Sep-
tember 5, 1995, that Bird wrote to defendant Stephen Kelley, the
chairman of the Bland County School Board. The letter establishes
that prior to the hearing Bird knew the following: that Chmara had
already been hired and was initially assigned to teach the algebra
classes that Bird would have taught; that Dr. Gold, the superintendent,
did not want Bird teaching at Bland High School; and that Dr. Gold
would likely contend that he could "reassign[Bird] as he pleases."

                    7
The substance and tone of Bird's letter, however, did not indicate that
he believed the board had prejudged his case. For example, Bird
argued to Kelley that he should be reassigned to Bland High School.
Bird suggested that Chmara could be reassigned, perhaps to teach
social studies. Finally, Bird said that once the hearing was over, he
"again want[ed] to walk the halls of Bland High with my head held
high with students and teachers alike knowing that I'm not a villain;
that I have the faith and confidence of the Bland County School
Board." Bird was trying to make the case that he should be restored
to the classroom at Bland High School. His letter does not either say
or indicate that he believed the board had prejudged his case. In short,
Bird did not waive his right to an impartial decisionmaker.

IV.

The district court's order of September 16, 1998, granting the
renewed motion of the Bland County School Board and its four mem-
bers for judgment as a matter of law is reversed.

REVERSED

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