Elizabeth Fujiwara v. Charles G. Clark, Etc.

703 F.2d 357 Elizabeth FUJIWARA, Plaintiff-Appellant, v. Charles G. CLARK, etc., et al, Defendants-Appellees. No. 82-4095. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 10, 1982. Decided Feb. 2, 1983. Rehearing and Rehearing En Banc Denied April 1, 1983. Paul Alston, Paul, Johnson & Alston, Honolulu, Hawaii, for plaintiff-appellant. Christobel K. Kealoha, Lawrence Kumabe, Honolulu, Hawaii, for defendants-appellees. Appeal from the United States District Court for the District of Hawaii. Before MERRILL, WRIGHT and TRASK, Circuit Judges. MERRILL, Circuit Judge: 1 Plaintiff-Appellant Elizabeth Fujiwara was discharged from a position she held with the Department of Education of the State of Hawaii ("DOE"). She contends that she was discharged for exercising rights of free speech guaranteed by the First and Fourteenth Amendments of the Constitution of the United States. She has brought this action for injunctive relief under 42 U.S.C. Sec. 1983 against two officers of the DOE and the members of the Board of Education. She also sought damages from the two DOE officers, Appellees Yamashita and Clark. 2 The District Court granted Appellant's request for an…

Plaintiff-Appellant Elizabeth Fujiwara was discharged from a position she held with the Department of Education of the State of Hawaii (“DOE”). She contends that she was discharged for exercising rights of free speech guaranteed by the First and Fourteenth Amendments of the Constitution of the United States. She has brought this action for injunctive relief under 42 U.S.C. § 1983 against two officers of the DOE and the members of the Board of Education. She also sought damages from the two DOE officers, Appellees Yamashita and Clark.

The District Court granted Appellant’s request for an injunction, and Appellant has been restored to her former position. 477 F.Supp. 794 (D.Hawaii 1978). In granting this relief, the District Court reserved the question of Appellant’s right to recover damages against the two officers of the DOE. Later, on motion brought by the officers, the District Court granted them summary judgment against Appellant, holding that as matter of law the doctrine of qualified immunity protected them from personal liability for damages. 477 F.Supp. 822 (D.Hawaii 1979). This appeal is taken from that judgment and presents the question whether, under the facts of this…

ORDER DENYING REHEARING

Before MERRILL, WRIGHT and TRASK, Circuit Judges.

In their Petition for Rehearing Defendants-Appellees argue that the proper question under the third prong of Procunier is whether at the time of the termination decision they knew or should have known that they could not prevail in their contention that Appellant’s employment was properly terminated. They assert that a finding against one party does not per se eliminate the possibility that his contention to the contrary was in good faith.

There may be cases where this contention would have merit — cases where critical factual issues were disputed in good faith. This is not such a case. Here there simply was no dispute upon the critical Mt. Healthy issues at the time the injunction was granted.

It could hardly be denied that the protected conduct figured substantially in the discharge. Of the eight grounds upon which Appellees based the discharge in their notice to Appellant, six were related to the protected conduct. As to whether Appellees would have discharged Appellant absent the protected conduct, apparently they had given no thought to the question and were not aware of its significance. Certainly…