Miller v. Amusement Enterprises, Inc. Supplemental Brief for Appellants on Rehearing

    NO. 17,498.

IN TH E

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT.

MRS. ELVIRA S. ROLFE and MRS. BERNICE L. PEEBLES, 
Plaintiffs-Appellees,

vs.
COUNTY BOARD OF EDUCATION OF LINCOLN COUNTY, TEN ­
NESSEE, A. G. JENNINGS, JR.; J. C. KING; THOMAS SMITH; TOM 
PORTER; FRANK ERWIN; JOE TA FT; CHARLES DELAP; EDWIN 
FLINT; TOM M Y WARREN; Individual Board Members Who Acting 
Together Constitute the Said LINCOLN COUNTY BOARD OF 
EDUCATION and EVERETT C. NORMAN, Supt. of Schools of 

Lincoln County, Tennessee, 
Defendants-Appellants.

Appeal from  the United States District Court for the Eastern 
District of Tennessee, W inchester Division.

BRIEF FOR DEFENDANTS-APPELLANTS.

ROBERT W. STEVENS,
STEVENS and BAGLEY,

Jarvis Building— East College Street, 
Fayetteville, Tennessee 37334, 

Attorneys for Defendants-Appellants.

St. Lotus L aw  Printing Co., Inc., 415 N. Eighth Street. CEntral 1-4477.



STATEMENT OF QUESTIONS INVOLVED.

I.

Should a District Court decide that two Negro school 
teachers had been wrongfully discharged because of their 
race some seven months previous to the filing of their 
complaint and order a mandatory injunction requiring 
the defendant board of education and school superintend­
ent to forthwith reinstate them to their most recent posi­
tions and salaries and continue such employment, unless 
the Court on good cause shown modifies the injunction 
to permit their dismissal, and to establish within 90 
days and comply with definite standards in the in the 
employment and retention of teachers when said decision 
and order are made after only a preliminary hearing 
pursuant to a show cause order before any answer is 
filed and without any full evidentiary hearing on issues 
developed by pleadings?

The District Court answered this question “Yes” .
The Appellants contend that it should have been an­

swered “No” .

II.
Were two Negro non-tenure teachers wrongfully dis­

charged because of their race when approximately two 
weeks after the beginning of the 1965-1966 school term 
they were discharged because of lack of enrollment at 
their school, a Negro high school, which resulted from the 
implementation of a plan for the desegregation of the 
schools of the county and (1) they had been elected and 
assigned to their position before the adoption of the 
desegregation plan, (2) the school board had no way of 
anticipating the loss in enrollment or what courses of



study the remaining students would require, (3) there 
were no vacancies in any other schools in the county for 
which they were qualified, (4) it was too late to compare 
their qualifications with other teachers in county and dis­
charge the latter to create position for them, (5) one was 
certified as a high school mathematics teacher and, upon 
a vacancy occurring, her qualifications were compared with 
those of another non-tenure mathematics teacher and the 
other teacher employed because of her superior qualifica­
tions and thereafter the discharged teacher failed to 
report for another position when called, and (6) the 
other discharged teacher was certified as a high school 
science teacher and as an elementary school teacher hut 
no vacancies occurred for a high school science teacher 
and she did not inform the school superintendent of her 
elementary certificate f

The District Court answered this question “Yes” .
Appellants contend that this question should have been 

answered “No” .

m .
Should any award of damages for a school teacher’s 

discharge be reduced by such sums as she could have 
earned from other employment of a similar nature?

The District Court answered this question “No” .
The appellants contend it should be answered “ Yes” .

T V .
Should a school board be required to contribute to the 

plaintiffs’ attorneys’ fees in an action for alleged wrong­
ful discharge of teachers when the board has not been 
guilty of unreasonableness or obdurate obstinancy.

The District Court answered this question “Yes” .
The appellants contend it should be answered “No” .



INDEX.

Page
Statement of questions involved ...........................Prefaced
Statement of facts ..........................................................  1
Argument .......................................................................... 12
Relief ..................................................................................  28

Cases Cited.
Bradley v. The School Board of the City of Richmond, 

Virginia, C. A. 4th (1965), 345 F. 2d 3 1 0 ...............  28
Chambers v. The Hendersonville City Board of Edu­

cation, 4 cir. (June 6, 1966), . . .  F. 2 d ...................  15
Communications Workers of America, AFL-CIO v. 

Ohio Bell Telephone Co., 160 F. Supp. 822, 823 
(N. D. Ohio), affirmed, 265 F. 2d 221 (CA 6th), 
cert, denied, 361 U. S. 814, 80 S. Ct. 52, 42 L. Ed.
2d 61 ..............................................................................  13

Dunn v. Retail Clerks Inters. Ass’n., AFL-CIO, Local 
1529, 299 F. 2d 873 .....................................................  13

Franklin v. County School Board of Giles County, 
Virginia (4 Cir. 1966), 360 F. 2d 325 .....................  21

Godson v. MacFadden, 162 Tenn. 528, 531, 39 S. W.
2d 287 ..........................................................................  26

Joseph Bancroft & Sons Co. v. Shelley Knitting Mills,
Inc., C. A. 3d, 1959, 268 F. 2d 569 ............................. 12

Pastrana v. Folding Box, Corrugated Box and Display 
Workers Local 381, D. C. N. Y., 1962, 212 F. Supp.
639 .................................................................................. 13

Ryan v. Mineral County High School Dist., 27 Colo.
App. 63, 146 Pac. 792 26



11

Seagrams Distillers Corp. v. New Cut Rate Liquors,
221 F. 2d 815, cert, denied, 76 S. Ct. 59, 350 U. S.
828, 100 L. Ed. 740 .......................................................  13

Smith v. The Board of Education of Morrilton School 
District No. 32, 8 Cir. (Sept. 14, 1966), . . .  F. 2d
.........................................................................................24,27

Snowden v. Hughes, 321 U. S. 1, 88 L. Ed. 497, 64
S. Ct. 778 ..................................................................... 20

Tanner Motor Livery, Limited v. Avis, Inc. (C. A.
Cal. 1963), 316 F. 2d 804, cert, denied, 84 S. Ct. 59,
357 U. S. 821, 11 L. Ed. 2d 55 ..................................  13

Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 
(1893, CC Ohio), 54 F. 730, 19 LRA 387 .................  13

W. A. Mack, Inc. v. General Motors Corp., 260 F. 2d
886 .............................................................................. 12

Winton Motor Carriage Co. v. Curtis Publishing Co. 
(1912, D. C. Pa.), 196 F. 906 ......................................  13

Statutes Cited.

Tennessee Code Annotated, Section 49-1112............ 17,18
Tennessee Code Annotated, Section 49-1306 ............. 18, 24
Tennessee Code Annotated, Section 49-1410 ...............  16
Tennessee Code Annotated, Section 49-1411 ............. 21
42 U. S. C., Section 2000e-5 (g) ....................................  27

Treatises Cited.

35 Am. Jur., p. 490, Master and Servant, Section 57 26



I l l

TABLE OF CONTENTS OF APPENDIX.

Page
Docket entries ................................................................. la
Complaint ......................................................................... 7a

Motion for temporary restraining order and/or pre­
liminary injunction .....................................................  21a

Order to show cause why temporary restraining order 
and/or preliminary injunction should not issue .. 22a

Answer to Motion for temporary restraining order 
and/or preliminary injunction and response to show 
cause order ..............................................    23a

TRANSCRIPT OF TESTIMONY AND PRO­
CEEDINGS ON HEARING ON 

ORDER TO SHOW CAUSE.
Caption in the District C ou rt................................  26a

Appearances .............................................................  27a

Proceedings ...............................................................  27a

Plaintiffs’ Evidence.
Mrs. Elvira S. Rolfe—

Direct examination .................................................. 30a
Cross-examination .................................................... 42a
Redirect examination .............................................. 49a

Mrs. Bernice T. Peebles—
Direct examination .................................................. 50a
Cross-examination ...................................................  60a
Redirect examination .............................................. 62a

Mrs. Elvira Smith Rolfe (Recalled)—
Direct examination .................................................  63a



Defendants’ Evidence.

Everett C. Norman—
Direct examination .................................................. 65a
Cross-examination .................................................... 80a
Eedirect examination ..............................................  98a
Eecross-examination .................................................100a

A. G. Jennings, Jr.—
Direct examination ...................................................101a

Plaintiffs’ Rebuttal Evidence.

Mrs. Elvira S. Eolfe—
Direct examination .................................................  102a
Cross-examination .................................................... 103a

Proceedings ........................................................................104a

Collective Exhibit No. 1 .................................................108a
Answer of defendants, County Board of Education of 

Lincoln County, Tennessee et al.................................122a
Memorandum opinion on hearing on motion .............. 128a

Motion for leave to amend answ er............................... 140a

Amendment to answer .....................................................141a
Order filed August 15, 1966 ...........................................  141a

Pretrial order ..................................................................  144a
Exceptions to pretrial o rd e r .......................................... 151a

TEANSCEIPT OP TESTIMONY AND PEO- 
CEEDINGS AT TEIAL, AUGUST 26, 1966.

Caption ....................................................................... 152a

Appearances................................................................152a

Proceedings ................................................................152a

iv



V

Defendants’ Evidence.
Everett Norman—

Direct examination ...................................................163a
Offer of proof out of hearing of Court .............. 172a
Cross-examination .................................................... 180a
Redirect examination ...............................................192a

Marian McAfee—
Direct examination .................................................. 193a
Cross-examination .................................................... 197a
Redirect examination .............................................. 198a
Recross-examination ................................................ 198a
Redirect examination .............................................198a

Louise Maddox—
Direct examination .................................................. 199a
Cross-examination .................................................... 200a
By the Court ..............................................................205a
Cross-examination . ...............................................206a

Nathaniel Almon (Deposition)—-
Direct examination .................................................. 208a
Cross-examination .................................................... 212a

Everett Norman (Recalled)—
Direct examination .................................................. 219a
Cross-examination .................................................... 219a
Redirect examination .............................................. 220a
By the C ou rt..............................................................220a

Plaintiffs’ Evidence.

Mrs. Bernice L. Peebles—
Direct examination .................................................. 222a
Cross-examination .................................................... 223a
Redirect examination .............................................. 224a
Recross-examination ................................................ 224a

Mrs. Elvira Rolfe—
Direct examination .................................................. 225a
Cross-examination .................................................... 230a



Ezekial Bell (Deposition)—
Direct examination .................................................. 234a
Cross-examination .................................................... 236a

Memorandum opinion on trial of August 26, 1966 .. ,238a

Judgment ......................................................................... 240a

Notice of appeal................................................................241a

vi



NO. 17,498.

IN THE

UNITED STATES COURT OF APPEALS
FOR TH E SIXTH CIRCUIT.

MRS. ELVIRA S. ROLFE and MRS. BERNICE L. PEEBLES, 
Plaintiffs-Appellees,

vs.
COUNTY BOARD OF EDUCATION OF LINCOLN COUNTY, TEN ­
NESSEE, A. G. JENNINGS, JR.; J. C. KING; THOMAS SMITH; TOM 
PORTER; FRANK ERWIN; JOE TAFT; CHARLES DELAP; EDWIN 
FLINT; TOM M Y WARREN; Individual Board Members Who Acting 
Together Constitute the Said LINCOLN COUNTY BOARD OF 
EDUCATION and EVERETT C. NORMAN, Supt. of Schools of 

Lincoln County, Tennessee, 
Defendants-Appellants.

Appeal from  the United States District Court for the Eastern 
District of Tennessee, W inchester Division.

BRIEF FOR DEFENDANTS-APPELLANTS.

STATEMENT OF FACTS

This is an action brought by Mrs. Elvira S. Rolfe and 
Mrs. Bernice L. Peebles against the County Board of 
Education and the Superintendent of Schools of Lincoln 
County, Tennessee, on behalf of themselves and of all 
other persons in the State similarly situated, alleging that 
they were Negroes who had formerly been employed by



— 2 —

the defendant as teachers at an all Negro high school, 
but had been discharged after the beginning of the 1965- 
1966 school year as a result of discriminatory practices 
on the part of the defendants. The complainant prayed 
for an injunction requiring the defendants to re-instate 
them, pay them their regular pay for the school year and 
to continue to do so pending further orders of the court, 
that the court enjoin the defendants from any discrim­
inatory practices relative to the teachers and supporting 
personnel of the County and that counsel fees be awarded 
their attorneys (App. 7a).

On the same day that the complaint was filed, April 4, 
1966, the plaintiffs also filed a motion for a “ temporary 
restraining order and/or preliminary injunction”  requir­
ing the defendants to immediately reinstate and recog­
nize the plaintiffs as teachers in the Lincoln County 
School System, and to pay them salaries as prayed in 
the complaint as aforesaid (App. 21a).

On April 6, 1966, process was issued in this action and 
also on said date the District Judge ordered the defend­
ants to appear April 15th and show cause why “ the 
temporary restraining order and/or preliminary injunc­
tion”  should not issue (App. 22a).

A copy of this order and the complaint were served 
(acknowledged) on April 11th but the defendants re­
quested additional time to prepare the records required 
by subpoenas duces tecum and the hearing on the show 
cause order was reset April 20, 1966, at Greenville, Ten­
nessee (App. 128a).

The defendants appeared and in response to said order 
contended that the order did not, in fact, seek a restrain­
ing order or temporary injunction but a mandatory in­
junction, that the relief sought was not to maintain the 
status quo, that there was presented no necessity for an 
injunction at that juncture of the case, and that it would



not be equitable to deprive the defendants of a trial or 
full evidentiary hearing on the issue of fact (App. 23a). 
The Court, however, proceeded to hear testimony (App. 
27a).

The Court indicated that the issue was whether the 
plaintiffs were discharged in the implementation of the 
desegregation plan adopted and filed by the Board with 
the Department of Health, Education and Welfare solely 
because of their race or for some other reason (App. 76a).

The evidence at the preliminary hearing showed that 
the plaintiffs in the school year 1964-1965 taught at the 
West End High School in Fayetteville, which had an all 
Negro faculty and an all Negro student body (App. 32a). 
The defendants in compliance with State~ law re-elected 
their teachers in April, 30 days before expiration of the 
school term (App. 32a, 69a), including the plaintiffs 
(App. 69a).

It was further shown that Lincoln County had in 1964- 
1965, in addition to said West End High School, a white 
high school at Fayetteville, the Lincoln County Central 
High School, white schools with both high school and 
elementary grades (grades 1 through 12) at Blanche, 
Boonshill, and Flintville and other elementary schools, 
both white and colored. The evidence showed that on 
May 10, 1965, the Board adopted a desegregation plan 
for compliance with the requirements of the Department 
of Health, Education, and Welfare under the 1964 Civil 
Bights Act (App. 116a). The said plan for school de­
segregation (App. 108a) provided that the students in 
the “ Central School area”  (the Fayetteville area) be 
given a freedom of choice as to what school they wished 
to attend (App. 116a) and the remainder of the county 
was zoned geographically, without regard to race, but 
principally according to bus routes (App. 67a) so that no 
student would be transported past a school (App. 113a).

•— 3 —



— 4 —

The said Plan for School Desegregation provided that 
integration of teachers and other school personnel would 
begin with the 1965-1966 school term, inservice training 
meetings, workshops, planning committees on curriculum, 
book adoption and other phases have already been inte­
grated (App. 110a, 111a).

In May, 1965, the School Superintendent, at the request 
of the teachers at West End High School, appeared be­
fore them and in answer to their questions told them 
that the “ chances were”  that West End High School 
would lose some of its teachers as a result of the desegre­
gation plan for 1965-1966 (App. 82a).

There being many teacher positions in the county that 
needed filling to serve its 5,000 or more students (App. 
192a), in addition to the teachers re-elected, the Board 
employed fourteen new teachers in the spring and sum­
mer of 1965 (App. 69a), most of these being for the 
elementary schools (App. 69a).

The desegregation plan was complied with and resulted 
in 54 per cent of Negro students attending previously 
all white schools and 9 of the 19 Negro teachers being 
assigned to previously all white faculties (App. 66a).

None of the freedom of choice letters mailed to any of 
the Negro students in the Central area were answered 
and none responded to pre-registration, so that the de­
fendants had no way of knowing what choice they would 
make until the schools in Fayetteville started August 
23, 1965 (App. 66a, 67a, 176a, 177a).

The County’s total enrollment for 1965-1966 dropped 
approximately 200 (App. 68a); by the 10th or 12th day 
of school West End High School had lost approximately 
75 or 76 of its previous enrollment of approximately 150 
or 200 students due to various causes, one being the 
integration of surrounding counties from which students



•— 5 —

liad previously been commuting to Lincoln County Schools 
(App. 68a, 70a, 37a).

The maximum number of teachers at a given school 
depended upon the number of students (average daily 
attendance) at that school and not upon the total enroll­
ment in the county school system (App. 92a).

At the regular Board meeting September 7, 1965, upon 
review of the student-teacher ratio at the schools (App. 
70a), it appeared that the enrollment at West End High 
School did not justify as many teacher positions as had 
been assigned there (App. 71a). Five positions at the 
high school were therefore necessarily abolished. Two of 
the teachers thus displaced had tenure status under Ten­
nessee Law and had to be given preference. They were 
transferred to all white elementary schools (App. 71a), 
another of the displaced teachers was soon employed at 
a position that became available at the Superintendent’s 
office (App. 72a).

It had always been necessary to discharge teachers, both 
white and Negro, when there was a lack of sufficient en­
rollment at their school (App. 72a). Later in the year 
a white teacher was discharged for the same reason 
(App. 90a).

One of the plaintiffs, Mrs. Peebles, was certified to 
teach high school mathematics. At the time of the aboli­
tion of her position there was no vacancy in any school 
in the county for which she was certified to teach (App. 
72a, 84a) but when a vacancy did occur in December, 
1965, her record and that of another unemployed former 
high school teacher were compared and the record of the 
latter was found to be superior (App. 72a, 73a, 74a). 
Later Mrs. Peebles was informed of another position in 
the system with the same salary and requested to come 
to the Superintendent’s office or call him but she failed 
to do either (App. 75a, 60a, 61a).



— 6 —

The other plaintiff, Mrs. Rolf'e, held a certificate ena­
bling her to teach science in high school (App. 31a). 
There were no high school vacancies for which she was 
certified (App. 71a). She was not considered for an ele­
mentary school position. Although the Superintendent was 
unaware of the fact that she had a certificate to teach in 
elementary schools (App. 78a), she did have such a cer­
tificate which she stated had been on file in the Super­
intendent’s office. Mrs. Rolfe went back to her home in 
Nashville (App. 46a), and never applied for an elementary 
teaching position with the Lincoln County School System 
(App. 45a). At the time of this hearing no vacancy had 
occurred in any high school position for which she was 
certified (App. 76a).

After the introduction of the evidence on the prelim­
inary hearing the Court instructed counsel to file briefs 
and thereafter filed a memorandum opinion deciding ad­
versely to the defendants on the merits of the case and 
that a mandatory injunction issue forthwith to reinstate 
the plaintiffs to their most recent positions and salaries 
and that the defendants continue such employment of 
each plaintiff unless the Court, on good cause shown, 
modifies the injunction to permit dismissal of one or both, 
that the injunction also require the defendant Board, 
within 90 days of its issuance, to establish definite ob­
jective standards for the employment and retention of 
teachers and to apply such standards to all tenure teach­
ers, on the one hand, and non-tenure teachers, on the 
other, consistently with the due process and equal pro­
tection clauses of the Constitution of the United States, 
and the opinion further provided that the case be placed 
on the trial docket for a trial (and pre-trial conference) 
“ on the issue of the compensation to which each plain­
tiff is entitled,”  that an order be entered in accordance 
with the opinion and that said order provide that this 
action shall remain open for the Court’s supervision until 
compliance with said plan of desegregation (App. 128a).



7

An order was entered in accordance with the opinion 
(App. 141a).

Pending the Court’s decision after the preliminary 
hearing the defendants filed their answer, which, among 
other tilings, denied the allegations of the complaint to 
the effect that the defendants had been guilty of racial 
discrimination, that the plaintiffs were tenure teachers 
and they had been discharged solely because of their race. 
The answer further averred that Mrs. Peebles, after dis­
missal, failed to report to the defendants for another posi­
tion when requested to do so, that neither of the plain­
tiffs applied for or made any effort to obtain re-employ­
ment with the defendants and that they had not used 
reasonable diligence to obtain employment elsewhere 
(App. 122a).

Following the pre-trial conference the Court filed an 
order stating, among other things, that “ The contested 
issue of fact remaining for decision is: to what damages 
or compensation is each of the plaintiffs entitled?”  (App. 
148a).

The pre-trial order further provided that “ The con­
tested issue of law which may not be fully explicit in 
the foreign issue of fact is: what is the proper measure 
of damages for the breach of a contract of employment 
as a public school teacher, when the said teacher is wrong­
fully discharged?”  (App. 148a).

The defendants excepted or objected to the pre-trial 
order because it did not contain the issue: “ Whether the 
plaintiffs were wrongfully discharged solely because of 
their race”  (App. 151a). This exception was overruled 
(App. 159a).

On the trial of the case the Court held that, since the 
only issue was what damages or compensation were the 
plaintiffs entitled and since the amount of the salaries 
they would have earned if they had not been discharged



was stipulated, the burden of proof was on the defend­
ants.

On the trial of the case the Superintendent testified 
that he had no knowledge of Mrs. Rolfe’s elementary 
certificate when he dismissed her as a highschool teacher 
and not until the preliminary hearing (App. 164a). Miss 
Louise Maddox, Accountant and Personnel Clerk in the 
Superintendent’s office, testified that Mrs. Rolfe did not 
leave the certificate with her; nor was it ever in the office 
(App. 199a-207a). It was proven without contradiction 
that a vacancy occurred in an elementary position in 
the system which Mrs. Rolfe could have had on November 
1, 1965 (App. 165a, 196a), and which would have paid 
the same salary as she was receiving as a highschool 
teacher (App. 167a) if she had made know her elementary 
certificate. Mrs. Rolfe would have received $3272.00 at 
the elementary position for the remainder of the school 
year (App. 167a).

The Superintendent further testified that the position 
of “ visiting teacher”  which was created after Mrs. 
Peebles’ dismissal and about which she was called would 
have paid the same salary as that she was receiving as 
a highschool teacher (App. 168a, 169a). This position 
was available February 15, 1966, and in addition to the 
salary it paid travel expenses (App. 169a). Miss Marion 
McAfee, Supervisor of Instruction, Lincoln County Schools, 
testified that she called Mrs. Peebles in February, 1966, 
and told her of the visiting teacher position and the 
nature of the duties of same and urged her to contact 
the Superintendent if she was interested (App. 193a).

It was also shown that there was on or about March 
1, 1966, a mathmematics teaching position at a colored 
highschool at Huntsville, Alabama, to which city Mrs. 
Peebles had moved in February, 1966, that she could have 
had if she had applied for it and the salary for the re­

— 8 —



— 9 —

mainder of school year would have been $1749.43 (App. 
209a-212a).

The Superintendent further testified that all teachers, 
including the plaintiffs, were elected in April of the pre­
ceding school year and assigned to particular schools 
about a week later (App. 170a).

The defendants offered to prove, but the Court ex­
cluded, evidence that the contracts that the plaintiffs had 
for the school year 1964-1965 provided:

“ It is further agreed that should school attend­
ance decrease to the extent that the teaching position 
is terminated because it cannot be justified under 
rules and regulations of State Board of Education, 
this contract may be cancelled at the discretion of 
the Board of Education”  (App. 173a);

that their contracts for the year 1965-1966 which had 
been prepared for their signatures but which were never 
signed contained the same provision (App. 173a-174a); 
that their contracts contained the same provisions as those 
of all the other teachers (App. 174a); that when these 
teachers were dismissed there were no other non-tenure 
high school science teachers in the county (App. 174a), 
that there was only one other non-tenure high school 
mathematics teacher in the county and he was a teacher 
in a school which had begun the third Monday in July 
and his qualifications and scholastic record was described 
by the Superintendent and was obviously superior to 
those of Mrs. Peebles (App. 174a); the qualifications of a 
Mr. Wood, a mathematics teacher at Central High School 
were also enumerated by the witness and shown to be 
superior to those of Mrs. Peebles (App. 175a); that at 
the time Mr. Wood was employed it was not known that 
there would be an extra mathematics teacher at West 
End High School (App. 175a); that the defendants had 
no way of knowing what students might attend and what



students might not attend West End High School prior 
to the beginning of the Fayetteville school terms (App. 
175a-177a); that no information was received from sur­
rounding counties from which Negro students had pre­
viously been coming to Lincoln County, that their schools 
would be integrated (App. 176a) and there was no way 
to anticipate the loss of enrollment at West End High 
School until one week after the school had started; that 
there was no increase in the student body at Central High 
School (App. 177a); that there were no vacancies in any 
high school in the county for which the plaintiffs were 
certified at the time of their dismissal (App. 177a), that 
Mrs. Rolfe was one of the last two high school science 
teachers employed in the county (App. 178a); and that 
upon the resignation of Mr. Wood in the fall of 1965, the 
records and qualifications of Mrs. Peebles and those of 
Mrs. Martha Crawford (which were both described in 
detail by the witness) were compared and it was obvious 
that Mrs. Crawford was better qualified to fill the vacancy 
(App. 178a-180a).

The Court found that Mrs. Rolfe would have received 
$3,988.56 for the remainder of the school year 1965-1966 
if she had not been discharged (App. 238a). Although 
the Court found that Mrs. Rolfe did not carry the burden 
of the proof that she delivered her elementary certificate 
to the Superintendent’s office, he did not charge her with 
what she would have earned as an elementary teacher but 
only with the $1,425.25 she actually earned after return­
ing to her home in Nashville (App. 238a) and gave her 
judgment for $2,563.31 (App. 240a).

The Court gave Mrs. Peebles a judgment for all that 
she would have earned had she not been dimissed, 
$3,173.00 (App. 241a).

The Court further ordered that $250.00 be taxed as costs 
in favor of each plaintiff as contributions toward their 
counsel fees (App. 241a).

— 10 —



— 11 —

The defendants appealed from both the judgment de­
ciding the case and granting the injunction and the judg­
ment awarding the damages or compensation and at­
torney fees (App. 241a).

The defendants contend that the District Court com­
mitted three primary errors, to wit: (1) deciding the 
merits of the case after only a preliminary hearing, (2) 
finding that the teachers were wrongfully discharged and 
(3) not reducing their recoveries by the sums they could 
have earned in other similar employment. The Court 
also, we think, erred in awarding counsel fees.



— 12 —

ARGUMENT.

Question I.

Should a District Court decide that two Negro school 
teachers had been wrongfully discharged because of their 
race some seven months previous to the filing of their 
complaint and order a mandatory injunction requiring 
the defendant board of education and school superin­
tendent to forthwith reinstate them to their most recent 
positions and salaries and continue such employment, un­
less the Court on good cause shown modifies the injunc­
tion to permit their dismissal, and to establish within 90 
days and comply with definite standards in the employ­
ment and retention of teachers when said decision and 
order are made after only a preliminary hearing pursuant 
to a show cause order before any answer is filed and 
without any full evidenciary hearing on issues developed 
by pleadings? The District Court answered this question 
“ Yes” . The Appellants contend that it should have been 
answered “ No” .

When the plaintiffs sought the “ temporary restraining 
order and/or preliminary injunction”  it had been ap­
proximately seven months since the dismissals complained 
of (App. 7a, 13a), the plaintiffs were threatened with no 
irreparable damage because they could be (and later 
were) compensated for their alleged wrongful discharge, 
and, in fact, no grounds for a preliminary injunction of 
any nature were shown. Certainly the mandatory in­
junction actually sought (App. 21a) and granted (App. 
139a, App. 142a) was not justified as a preliminary in­
junction.

A mandatory injunction will rarely be granted before 
final hearing. Joseph Bancroft & Sons Co. v. Shelley 
Knitting Mills, Inc., C. A. 3d, 1959, 268 F. 2d 569; W. A. 
Mack, Inc. v. General Motors Corp., 260 F. 2d 886.



— 13 —

In order to justify the issuance of a preliminary man­
datory injunction such relief must be necessary in order 
to preserve the status quo. Seagrams Distillers Corp. v. 
New Cut Rate Liquors, 221 F. 2d 815, certiorari denied, 
76 S. Ct. 59, 350 U. S. 828, 100 L. Ed. 740; Winton Motor 
Carriage Co. v. Curtis Publishing Co. (1912, D. C. Pa.), 
196 F. 906; Toledo, A. A. & N. M. R. Co. v. Pennsylvania 
Co. (1893, CC Ohio), 54 F. 730, 19 LRA 387.

Preliminary injunction relief which seeks not to pre­
serve the status quo but to restore the status quo ante 
should be sparingly granted. Pastrana v. Folding Box, 
Corrugated Box and Display Workers Local 381, D. C. 
N. Y., 1962, 212 F. Supp. 639.

A court should not by a mandatory injunction grant 
temporary relief which will finally dispose of case on the 
merits. Communications Workers of America, AFL-CIO 
v. Ohio Bell Telephone Co., 160 F. Supp. 822, 823 (N. D. 
Ohio), affirmed 265 F. 2d 221 (CA 6), cert, denied, 361 
U. S. 814, 80 S. Ct. 52, 42 L. Ed. 2d 61; Dunn v. Retail 
Clerks Inters. Ass’n., AFL-CIO, Local 1529, 299 F. 2d 
873.

A hearing on a motion for a preliminary injunction 
should not be transformed into a trial of the merits of 
the action and it is not usually proper to grant the moving 
party full relief to which he might be entitled if successful 
at the conclusion of a trial, especially where the relief 
afforded, rather than preserving the status quo, com­
pletely changes it. Tanner Motor Livery, Limited v. Avis, 
Inc. (C. A. Cal. 1963), 316 F. 2d 804, Certiorari denied 
84 S. Ct. 59, 357 U. S. 821, 11 L. Ed. 2d 55.

That the Court finally decided the merits of the case 
after only the preliminary hearing is not only to be 
gathered from his memorandum opinion (App. 128a) but 
also from the pre-trial order (App. 144a) and the Court’s 
overruling the defendant’s exception thereto because it



— 14 —

did not set forth that one of the issues at the trial would 
be “ Whether the plaintiffs were wrongfully discharged 
solely because of their race”  (App. 151a, 159a). If this 
had been an issue at the trial the defendants not only 
could have relied upon the evidence introduced at the 
preliminary hearing and that introduced at the trial but 
that which was excluded by the Court as irrelevant to the 
issues (App. 172a).

Question II.

Were two Negro non-tenure teachers wrongfully dis­
charged because of their race when approximately two 
weeks after the beginning of the 1965-1966 school term 
they were discharged because of lack of enrollment at 
their school, a Negro high school, which resulted from 
the implementation of a plan for the desegregation of the 
schools of the county and (1) they had been elected and 
assigned to their positions before the adoption of the 
desegregation plan, (2) the school board had no way of 
anticipating the loss in enrollment of what courses of 
study the remaning students would require, (3) there 
were no vacancies in any other schools in the county for 
which they were qualified, (4) it was too late to compare 
their qualifications with other teachers in county and dis­
charge the latter to create positions for them, (5) one was 
certified as a high school mathematics teacher and, upon 
a vacancy occurring, her qualifications were compared 
with those of another non-tenure mathematics teacher and 
the other teacher employed because of her superior quali­
fications and thereafter the discharged teacher failed to 
report for another position when called, and (6) the other 
discharged teacher was certified as a high school science 
teacher and as an elementary school teacher but no vacan­
cies occurred for a high school science teacher and she 
did not inform the school superintendent of her elementary 
certificate? The District Court answered this question



— 15 —

“ Yes” . Appellants contend that this question should have 
been answered “ No” .

The District Judge was of the opinion that the case of 
Chambers et al. v. The Hendersonville City Board of 
Education, 4 Cir. (June 6, 1966), . . .  F. 2d . . . ,  was the
determinative precedent for the adjudication of this case, 
but that case is to be distinguished on the facts from the 
case at bar, to such an extent as to render it inapplicable. 
In that case the enrollment at the Negro school concerned 
dropped at the end of the previous school year (1964- 
1965) and in the case at bar the enrollment did not drop 
until after the beginning of the school year concerned 
(1965-1966).

Furthermore, in the reported case, in May, 1965, the 
Superintendent advised the Negro teachers which ones 
would be retained. In the case at bar the defendants 
had no way of knowing at the time teachers were em, 
ployed and assigned for the 1965-1966 term to what ex­
tent the enrollment at West End Highschool might drop 
or to what schools its students might transfer. The 
Lincoln County Board, therefore, not only could not know 
the number of teachers that the enrollment at West End 
Highschool would justify under the Tennessee teacher- 
pupil ratio but it could not know what qualifications 
(types of certificates) they would have to have to meet 
the needs of those students remaining at that school. 
There was no reasonable basis, therefore, for either dis­
charging or transferring the members of the West End 
Highschool faculty until after the beginning of the 1965- 
1966 school term.

The District Court’s opinion in this case says:
“ There was a sharp decrease in enrollment at West 

End School and an attendant decrease in the average 
daily attendance, to the extent that state aid was



— 16

available for only eleven teachers there, instead of 
the previous allotment of 15 teachers. When this 
occurred, the Board summarily declared the positions 
abolished” (Emphasis added).

Tennessee Code Annotated, Section 49-1410, provides: 
“ When it becomes necessary to reduce the number 

of teaching positions in the system because of a 
decrease in enrollment or for other good reasons, 
the board shall be empowered to dismiss such teach­
ers as may be necessary. The board shall give the 
teacher written notice of dismissal explaining fully 
the circumstances or conditions making her dismissal 
necessary. A tenure teacher who has been dismissed 
because of abolition of position shall be placed on 
a preferred list for reemployment in the first vacanacy 
he is qualified by training and experience to fill, pro­
vided, however, nothing in this section shall be con­
strued to deprive the board of the power to determine 
the fitness of such teacher for reemployment in such 
vacancy on the basis of the board’s evaluation of such 
teacher’s competence, compatibility and suitability 
to properly discharge the duties required in such 
vacancy considered in the light of the best interest 
of the students in the school where the vacancy 
exists. ’ ’

The contracts under which the plaintiffs taught in 1964- 
1965 and the contracts which had been prepared for their 
execution for the 1965-1966 term contained the following 
provision:

“ It is further agreed that should school attendance 
decrease to the extent that the teaching position is 
terminated because it cannot be justified under rules 
and regulations of State Board of Education, this 
contract may be cancelled at the discretion of the 
Board of Education”  (App. 173a).



— 17

The plaintiffs were not tenure teachers (App. 64a, 147a).

Tennessee Code Annotated, Sec. 49-1112, provides:
“ All teachers of any type of high school provided 

in this chapter shall be qualified by education or 
otherwise for giving instruction in the subjects of 
the course of study, and no person shall be employed 
to teach any subject, or subjects, in said schools who 
does not hold a certificate issued by the state com­
missioner of education authorizing him, or her, to 
teach said subjects.”

There were no vacancies in any of the other schools 
of the county for which plaintiffs were certified (App. 
71a), and Mrs. Rolfe was the only non-tenure high school 
science teacher in the county (App. 135a, 174a) and 
there were only two non-tenure high school mathematics 
teachers, other than Mrs. Peebles, in the county. Their 
schools had already started (174a) and they were undei; 
contract or entitled to contracts because the Board had 
no authority to discharge them. The Board certainly 
could not have been expected to discharge without cause 
other teachers in order to provide positions for the plain­
tiffs who had no contracts for the year concerned.

In the reported case it is made clear that the Board and 
Superintendent in that case concluded before the end of 
the 1964-1965 school term that the Negro teachers concerned 
had “ lost their jobs” and that this was because they 
thought the Negro pupils should have “adequate repre­
sentation at the teacher level” . In the case at bar when the 
defendants were faced with a necessary reduction in the 
faculty at West End High School race played no part 
in the action taken by the Board in placing teachers in 
other positions as they were or became available (App. 
71a, 74a). The record also shows that the next position 
in the system to be abolished was that of a white teacher 
and she was likewise discharged (App. 99a).



— 18 —

In the reported case the number of Negro teachers was 
reduced from 24 to 8. In the case at bar, although it was im­
mediately necessary to discharge 5 Negro teachers, only 
two out of 19 were not re-employed.

The opinion in the reported case emphasizes that unfair 
comparisons were made between the Negro teachers and 
the white teachers before the former were discharged. 
In the case at bar there was no opportunity for a com­
parison before the plaintiffs’ positions were abolished.

The defendant board could not wait until the effects of 
desegregation were known to re-elect its teachers for the 
1965-1966 school term. Tennessee Code Annotated, Sec. 
49-1306 provides:

“ Teachers in service and under control of the 
public elementary and high schools of Tennessee shall 
continue in such service until they have received 
written notice, from their board of education, of their 
dismissal or failure of re-election at least thirty (30) 
days prior to the close of the school term; provided 
the board of education may transfer any teacher 
from one position to another at its option; provided 
that nothing contained in this section shall affect any 
rights that may have accrued, or may hereafter accrue, 
in behalf of any teachers or principals in any county 
under any law providing a tenure of office for said 
teachers and principals.”

When it was known that the plaintiffs’ positions must 
be eliminated after the 1965-1966 school term began they 
could not be transferred to any position for which they 
were not certified to teach. Tennessee Code Annotated, 
Sec. 49-1112 (quoted above).

The District Court in this case infers by a quotation 
from said reported case that the defendants were guilty 
of discrimination in originally assigning the plaintiffs to



— 19

West End High, School where there was an all Negro 
faculty. The plaintiffs did not complain of their em­
ployment or assignment to West End. In fact, it appears 
that Mrs. Rolfe would never have been employed at all if 
there had not been a special need for a teacher of her 
qualifications at that particular school (App. 31a, 46a 
132a). This is not a suit for damages for employing the 
plaintiffs or assigning them to West End but for their 
discharge.

The District Judge held in this case that the defendants 
operated under a compulsory bi-racial system in open 
defiance of the law. The record, on the contrary, shows 
that the defendants went on record to comply with the 
law and, although they took no affirmative steps to de­
segregate its student bodies as a whole, it permitted the 
only Negro students who sought admission to a previ­
ously all-white school to attend the same (App. 109a).

We must respectfully submit that the Memorandum 
Opinion is in error in stating that 37 Negro students' 
registered at the formerly all-Caucasian Central High 
School in Fayetteville before the commencement of the 
new term (App. 80a). Thirty-one, not ninety, Negro 
students left West End High and went to Central High 
School after the term started (App. 80a). Ten followed 
suit.

We would further point out that the Board had not 
flaunted its own desegregation plan by assigning only 
Negro teachers to West End School. Although the plan 
called for desegregation of the students of the county by 
taking immediate action, the Department of Health, Edu­
cation and Welfare was only assured that faculty deseg­
regation would begin with the 1965-1966 school year and 
assignments and considerations of new applications would 
not be based upon race (App. 110a, 111a). The Depart­
ment apparently permitted the Board to go about the im­



20 —

plementation of desegregation of schools in an orderly 
manner instead of undertaking to re-shuffle all of its 
faculties and re-assign all teachers for the 1965-1966 
school year before the effect of the desegregation of the 
pupils could be determined.

The District Court holds that the defendants lacked 
good faith because they did not take affirmative action to 
desegregate its schools until this became necessary in or­
der to comply with the requirements of the Department 
of Health, Education, and Welfare pursuant to Title VI 
of Civil Rights Act and then only after some ingenious 
method could be devised to penalize “ the Negroes of Lin­
coln County, locally prominent, through members of their 
race who are in the teaching profession” . There is no 
proof to support this finding. A discriminatory purpose 
is never presumed, Snowden v. Hughes, 321 U. S. 1, 88 
L. Ed. 497, 64 S. Ct. 778. In this case the Supreme Court 
said:

“ The unlawful administration by state officers of a 
state statute fair on its face, resulting in its unequal 
application to those who are entitled to be treated 
alike, is not a denial of equal protection unless there 
is shown to he present in it an element of intentional 
or purposeful discrimination. This may appear on 
the face of the action taken with respect to a particu­
lar class or person, cf McFarland v. American Sugar 
Ref. Co., 241 U. S. 79, 86, 87, 60 L. Ed. 899, 904, 36 
S. Ct. 498, or it may only be shown by extrinsic evi­
dence showing a discriminatory design to favor one 
individual or class over another not to be inferred 
from the action itself, Yick Wo v. Hopkins, 118 IT. S. 
356, 373, 374, 30 L. Ed. 220, 227, 228, 6 S. Ct. 1064. 
But a discriminatory purpose is not presumed, Tar- 
rance v. Florida, 188 IT. S. 519, 520, 47 L. Ed. 572, 
573, 23 S. Ct. 402, there must be a showing of ‘ clear 
and intentional discrimination’, Gundling v. Chicago,



— 21

177 U. S. 183, 186, 44 L. Ed. 725, 728, 20 S. Ct. 633; 
see Ah Sin v. Wittman, 198 U. S. 500, 507, 508, 49 
L. Ed. 1142, 1145, 1146, 25 S. Ct. 756; Dailey v. Ala­
bama, 219 U. S. 219, 231, 55 L. Ed. 191, 197, 31 St. Ct. 
145.”

The memorandum opinion contains many critical ref­
erences to the defendants’ desegregation plan but it is 
hard to see what better plan the school board could have 
adopted without immediately abolishing West End High 
School entirely. The Department of Health, Education 
and Welfare did not require this for the 1965-1966 school 
term, apparently recognizing the practical difficulties of 
such a “ crash”  program. The defendant Board was how­
ever, able to accomplish this for the 1966-1967 term (App. 
221a). In any event, the Department of Health, Educa­
tion and Welfare approved the plan and even the District 
Judge did not disapprove it but retained the case “ for 
the Court’s supervision until the compliance of the de­
fendants with the defendant Board’s plan of desegrega­
tion of May 10, 1965”  (App. 143a).

We respectfully wish to disagree with the Court’s state­
ment that “ the defendants contend that teachers are 
elected for employment within the system, as opposed to 
a particular school”  (App. 133a). The Lincoln County 
School System was not homogeneous as was the system in 
Franklin v. County School Board of Giles County, Vir­
ginia (4 Cir. 1966), 360 F. 2d 325, cited in Court’s opinion 
in this case. Teachers were re-elected and assigned to par­
ticular schools (App. 170a) and the Superintendent could 
not transfer teachers from one school to another without 
the approval of the Board of Education. Tennessee Code 
Annotated, Sec. 1411, provides:

“ The superintendent, with the approval of the 
board, when necessary to the efficient operation of the 
school system, may transfer a ‘ teacher’ from one lo­



— 22 —

cation to another within the school system, or from 
one type of work to another for which he is qualified 
and certified. Such a transfer can be made only by 
the concurrent action of the superintendent and the 
board . . . ”

The principal difference between the case of Franklin 
v. County School Board of Giles County and this case, 
however, is that in that case the Negro school was closed 
in the spring when there was ample time to reassign its 
teachers to other schools but instead the Board in that 
case discharged them and employed white teachers.

The Court in this case pointed out that, although Mrs. 
Rolfe “ was the junior science instructor in the system”  
the superintendent admitted that there were non-tenure 
teachers in the elementary schools with less qualifications 
than those possessed by Mrs. Rolfe and eight teachers 
were junior to her in point of service. As previously 
shown it was too late in the school year to discharge these 
other teachers to give preference to Mrs. Rolfe. Further­
more, she was not considered for an elementary school 
position because she had never informed the defendants 
of the fact that she was so certified. The Court in this 
opinion seems to find that the Superintendent did know of 
her elemetnary certificate, but after the final trial of the 
case he reversed this finding and held that “ Mrs. Rolfe 
has not now carried the burden of proving that she deliv­
ered her certification to teach in the elementary grades to 
the office of the defendant Mr. Norman in the Spring of 
1965”  (App. 238a).

It is true that in the summer of 1965 the Superintend­
ent engaged a mathematics teacher for Lincoln County 
Central High School but at that time the Superintendent 
could not know that there would be an extra mathematics 
teacher at West End High School for the reasons hereto­
fore mentioned. When this teacher, however, resigned



— 23 —

and created the first vacancy for which Mrs. Peebles was 
certified her qualifications were compared with another 
high school teacher of the county, Mrs. Martha Crawford. 
The opinion indicates that this was not a fair comparison 
because Mrs. Crawford’s qualifications were only “ a little 
better . . . than Mrs. Peebles. Included in the comparison 
was the fact that Mrs. Crawford had passed one course 
in calculus which Mrs. Peebles had been required to repeat 
several times in college, although Central High School has 
never offered, and does not now offer, calculus.”  The Su­
perintendent testified at the preliminary hearing that Mrs. 
Crawford had more years of experience, was a graduate 
of Peabody College, where she was given an excellent rat­
ing and had taught modern math, “ which we were actu­
ally looking for at that time” . At the trial the defend­
ants offered the testimony of the Superintendent which 
was that Mrs. Crawford’s transcript was compared with 
that of Mrs. Peebles; Mrs. Crawford had done mathe­
matics work at both Peabody and Vanderbilt University, 
had graduated with the Founder’s Medal in Mathematics, 
had eight years successful experience; and that, on the 
other hand Mrs. Peebles graduated from A. & I. Univer­
sity with a major in mathematics, her work in the Lin­
coln County system was not outstanding, she had not had 
an opportunity to teach modern mathematics; that Mrs. 
Crawford’s courses were “ certainly over and above what 
it took to certify her in the field, wherein Mrs. Peebles’ 
record shows she took most of the courses that would just 
certify her; no enrichment courses”  (App. 178a-179a).

The District Court found that in this case there was “ a 
history of racial discrimination”  and that the burden of 
proof was upon the defendants. Although the defend- 
aants had never taken any affirmative action to desegre­
gate the County schools, they had never denied any Negro 
student admission to a white school. In fact a small 
number of Negro students had attended Lincoln County



— 24 —

Central High School for a time in 1964. The vocational 
class and trade school was integrated, the adult classes 
were integrated in August, 1964, the program for home- 
bound students was integrated, industrial training classes 
were integrated, as well as other programs under the de­
fendants’ supervision (App. 109a-110a).

Clearly, although the defendants had not previously 
desegregated its schools it was not guilty of “ a history 
of racial discrimination” .

A reported case more nearly similar to the case at bar 
than the case of Chambers v. The Hendersonville City 
Board of Education referred to in the District Court’s 
opinion is the case of Smith v. The Board of Education 
of Morrilton School District No. 32, 8 Cir. (Sept. 14, 
1966), . . .  F. 2d . . . .  This case, however, differed from 
the case at bar in the following important respects: (1) 
in that case the school board knew from the results of 
returned freedom of choice forms by May 27, 1965, that 
the Negro school concerned would be closed and on May 
28 informed its faculty of the abolition of their positions, 
(2) 13 other teachers of that system resigned or retired 
during the following summer, (3) Arkansas has no tenure 
law and there was no contractual relationship between 
the school board and its teachers, whereas, in the case at 
bar, as aforesaid, by the time it became known that the 
plaintiffs’ positions had to be abolished other teachers in 
the county, whose positions were justified by the enroll­
ment at their schools, were entitled to contracts under 
the continuing contract law of Tennessee (TCA, Sec. 49- 
1306) and to discharge them would have been a breach 
of contract and (4) the manner of filling vacancies in the 
Arkansas case constituted an unconstitutional selection 
because race was taken into consideration, “ some of the 
standards applied were improper.”  Further under Ten­
nessee law the plaaintiffs could not have been given posi­



— 25

tions other than those for which they were certified—a 
consideration not mentioned in the reported case.

We think it apparent that, but for the factual differ­
ences between the reported case and the case at bar, the 
8th Circuit Court of Appeals would have affirmed the 
District Court’s dismissal of the complaint.

We submit that to hold that the plaintiffs were wrong­
fully discharged merely becaause the defendaants did not 
sooner desegregate their schools is to hold that Negro 
teachers were to have been given preference over white 
teachers because, if the defendant board had desegregated 
its schools in 1955 as it did in 1965, the results would 
have been exactly the same if its freedom of choice let­
ters were not answered and pupils from surrounding 
counties had transferred to other schools when the school 
term began without the defendants having any prior 
notice that this would occur.

Question III.

Should any award of damages for a school teacher’s 
discharge be reduced by such sums as she could have 
earned from other employment of a similar nature! The 
District Court answered this question “ No” . The appel­
lants contend it should be answered “ Yes” .

The witness, Louise Maddox, testified that Mrs. Rolfe 
had never filed her elementary certificate with the de­
fendants (App. 199a-207a), the Superintendent testified 
that he would have recommended her for a position in 
an elementary school that became vacant on November 1, 
1965, which would have paid her the same salary as her 
previous position if he had known of her elementary 
certification and that the Board usually accepts his recom­
mendations (App. 165a-167a). The Court held that Mrs. 
Rolfe had failed to carry the burden of proof of the fact 
that she had filed her certificate at the Superintendent’s



•— 26

office as claimed by her, but did not reduce her recovery 
by the amount she would have earned from November 1, 
1965, to the close of the school year but only reduced by 
sums she actually earned in Nashville (App. 238a).

It was shown that Mrs. Peebles was called by the 
Supervisor of Instruction in the Superintendent’s office 
before Mrs. Peebles moved to Huntsville, Alabama, Feb­
ruary 12, 1965 (App. 195a, App. 51a) and told of a posi­
tion then available and to let the Superintendent know 
if she was interested; this position was described to Mrs. 
Peebles and she was urged to contact the Superintendent 
(App. 194a). It would have paid the same salary as Mrs. 
Peebles would have received at her former position (App. 
169a, 195a) and was a position similar to the position 
from which she had been dismissed (App. 169a, 198a, 
219a, 220a). Mrs. Peebles did not accept this position 
(App. 61a). After she moved to Huntsville, Mrs. Peebles 
could have had on or about March 1, 1966, a position of 
the same nature as that from which she had been dis­
charged at a better salary if she had applied for a position 
with the Madison County, Alabama, school system (App. 
208a-212a).

It is a well-settled principle that upon the breach of a 
contract of employment calling for personal services by 
the wrongful discharge of the employee, the latter is re­
quired to use reasonable efforts to obtain other employ­
ment of like nature for the purpose of lessening or mini­
mizing the damages, 35 Am. Jur., p. 490, Master and 
Servant, Sec. 57.

This is the Tennessee rule applying to teachers, God­
son v. MacFadden, 162 Tenn. 528, 531, 39 S. W. 2d 287.

In Ryan v. Mineral County High School Dist., 27 Colo. 
App. 63, 146 Pac. 792, it was held that the principal of 
a high school wrongfully discharged was obliged to ac­
cept a position as principal of an elementary school.



27 —

42 U. S. C., Sec. 2000e-5 (g) provides:
“ Interim earnings or amounts earnable with rea­

sonable diligence by the person or persons discrim­
inated against shall operate to reduce the back pay 
otherwise allowable.”

We realize that said statute does not directly apply to 
employment practices of a political subdivision but we 
submit that the same principle applies in awarding dam­
ages.

In speaking of the question of damages in cases of this 
nature the Court in Smith v. The Board of Education of 
Morrilton School District No. 32 (Supra), said:

“ Of course, the normal rules of mitigation shall 
apply to these damage determinations.”

Question IV.

Should a school board be required to contribute to the 
plaintiffs ’ attorneys ’ fees in an action for alleged wrongful 
discharge of teachers when the board has not been guilty 
or unreasonableness or obdurate obstinancy. The District 
Court answered this question “ Yes” . The appellants con­
tend it should be answered “ No” .

There is no statute authorizing the award of attorney 
fees in a case of this kind.

For all practical pruposes this is a lawsuit by two in­
dividuals for redress of alleged private wrongs in the 
nature of breaches of contract under the guise of an in­
junction proceedings to redress public wrongs (complaint). 
The defendants had already implemented the approved 
desegregation plan of their school when the complaint was 
filed and by the time this case was tried, August 26th, 
1966, not only the student bodies but the faculties had 
been desegregated (App. 221a).



— 28 —

In Bradley v. The School Board of the City of Rich­
mond, Virginia, C. A. 4th (1965), 345 F. 2d 310, the court 
said:

“ It is only in the extraordinary case that such an 
award of attorneys’ fees is requisite. In school cases 
throughout the country, plaintiffs have been obtain­
ing very substantial relief, but the only case in which 
an appellate court has directed an award of attorneys’ 
fees is the Bell case in this Circuit. Such an award 
is not commanded by the fact that substantial relief 
is obtained. Attorneys’ fees are appropriate only 
when it is found that the bringing of the action 
should have been unnecessary and was compelled by 
the school board’s unreasonableness, obdurate obsti- 
nancy. . . . ”

RELIEF.

The appellants contend that both judgments of the Dis­
trict Court should be reversed and, since the appellees 
treated the preliminary hearing as a trial on the merits 
and all of their evidence is in the record, the complaint 
should be ordered dismissed and the injunction dissolved 
for the reasons hereinbefore stated and, in the alternative, 
that said decisions of the District Court be reversed and 
the case remanded for a full evidentiary trial on its merits.

STEVENS and BAGLEY,
By: ROBERT W. STEVENS,

220 East College Street, 
Fayetteville, Tennessee, 

Counsel for Appellants.



98