Mary E. JONES, Appellant, v. The PITT COUNTY BOARD OF EDUCATION, a public body corporate of Pitt County, North Carolina, and Arthur S. Alford, Superintendent of the Pitt County Board of Education Public Schools, Appellees, 528 F.2d 414

FIELD, Circuit Judge: In this action brought under 42 U.S.C. § 1983 the plaintiff sought damages and equitable relief, alleging that her employment as a teacher in the Pitt County School System was terminated because of her race and without according her a due process hearing. The defendants moved for

summary judgment which was granted by the district court on the due process issue. The court, however, concluded that the equal protection issue required plenary consideration. Upon the evidence presented by the parties the district court made detailed findings of fact which may be summarized as follows: The plaintiff who is a black school teacher began her teaching career in 1958. She had received a Bachelor of Science degree in Home Economics from North Carolina College in 1956 and was recertified to teach in 1958 when she received a Bachelor of Science degree in Education from Shaw University.

From 1960 until 1970 the plaintiff taught in the Pitt County School System for ten consecutive years at the W. H. Robinson School in Winterville, North Carolina, an all-black school. Upon integration of the school system, she was assigned to teach the fifth grade in Pactolus Elementary School for the 1970-71 school year. Pactolus had previously been an all-white school. During the 1970-71 school year Principal Bryant Tripp had occasion to observe the plaintiff’s classroom conduct on three occasions. His overall evaluation was that she was a weak teacher with particular difficulty in instruction and discipline.

Tripp discussed these problems with the plaintiff and requested that she attend a Board of Education workshop to improve her teaching methods but she refused to do so. While Tripp later noted some improvement in discipline, he still regarded her performance as weak. On April 26, 1971, Tripp advised the plaintiff that he was dissatisfied with her performance, and his annual professional evaluation which was filed in May of 1971 reflected weaknesses in eight different categories. During the 1970-71 school year the plaintiff’s performance was also observed by Patsy S. James, a Supervisor in the School System.

The overall evaluation of the plaintiff by Mrs. James was that she was a weak teacher, particularly in the areas of discipline and teaching methods. In appraising Mrs. James testimony, the district judge stated that while some of her evaluations were subjective in nature, the reasons given in support thereof were valid and impartial, and there was no indication of any racial discrimination or bias. On April 22, 1971, Mr. Tripp gave an unfavorable report on the plaintiff to the Pactolus School Advisory Council and the Council voted not to recommend her for reemployment.

The plaintiff was not reemployed by the Board of Education at the conclusion of that year. This action of the Board was made upon the recommendation of Superintendent Alford whose recommendation was based upon the evaluations of Tripp and Mrs. James as well as a review of the file and teaching record of the plaintiff. On May 27, 1971, Alford advised the plaintiff by letter that her contract would be terminated and advised her of her right to a hearing.

On June 24, 1971, the plaintiff, together with her attorney, attended a hearing before the Pactolus School Advisory Council which was composed of six whites and three blacks. All of the members of the Council with the exception of one black were present at the meeting. The Council voted unanimously to reaffirm its prior decision not to recommend retention of the plaintiff. Thereafter, in July of 1971, the Board of Education afforded a hearing to the plaintiff and her counsel, and at the conclusion thereof unanimously decided not to reemploy her.

Tripp and the Advisory Council recommended that a black teacher be hired to fill the vacaney created by the plaintiff’s termination. Miss Grace Brown was employed in that position and was rated as a capable teacher during the 1971-72 school year. Miss Brown resigned and Ms. Ebron replaced her and also received excellent ratings in the position. Both Miss Brown and Ms. Ebron are black. The district judge specifically found that the race of the plaintiff did not influence, Tripp, James and Alford in their evaluations of her teaching performance, nor did it play any

part in the decision of the Board of Education. Based upon his subsidiary factual findings, the district judge concluded that the defendants had demonstrated by clear and convincing evidence that the discharge of the plaintiff was not racially motivated, and had established that the sole reason for the non-retention of the plaintiff was her professional incompetence. Upon this appeal the plaintiff contends that the record does not support this ultimate finding of the district court.

It is conceded that in its appraisal of the evidence the district court was well aware that the School Board was charged with “the burden of justifying its conduct by clear and convincing evidence.” This evidentiary standard has been described as “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.

It does not mean clear and unequivocal.” The fact that this higher standard of proof was required of the defendants in the district court does not expand the scope of our appellate review, however, and we are not at liberty to set aside the factual findings of the district court “unless clearly erroneous”.

Rule 52(a), Federal Rules of Civil Procedure. “It is not enough that we might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent. * * * We are not given those choices, because our mandate is not to set aside findings of fact ‘unless clearly erroneous.’ ” United States v. Real Estate Boards, 339 U.S. 485, 495, 70 S.Ct. 711, 717, 94 L.Ed. 1007 (1950).

Primarily the plaintiff challenges the evaluation reports of Tripp and James, contending that they were based upon subjective criteria and were internally inconsistent. Counsel suggests than an analysis of each “assigned reason” in the reports demonstrates that it was merely pretextual. This insistence of plaintiff’s counsel that we analyze the minutia of the various evaluations of the plaintiff’s teaching performance would require us, in effect, to consider and decide the factual issues de novo.

This, in our opinion, would require an excursion outside the appropriate limits of our appellate review which were stated by the Court in Zenith Corp. v. Hazeltine, 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969): “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.

The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence.” We recognize that we are not bound by the factual determinations of the district court merely because they are supported by substantial evidence, and that a finding may be rejected as “ ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v.

U. S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). This does not mean, however, that we may substitute our judgment for that of the district court. This was recognized by Judge Sobeloff in Jersey Insurance Company of New York v. Heffron, 242 F.2d 136, 139 (4 Cir. 1957): “While the Court of Appeals has broader powers in reviewing a District Judge’s findings of fact than in reviewing the findings of a jury * * it will not disturb his findings merely because it may doubt their correctness.

It is required that the Court of Appeals be satisfied that the District Judge is clearly in error before it will set his findings aside.” (Citations omitted). Upon our review of the record we cannot say that the district judge was clearly in error in his finding that the defendants had justified their conduct by clear and convincing evidence. Nor are we “left with the definite and firm conviction that a mistake has been committed.” Accordingly, the judgment below is affirmed. Affirmed. . The action of the district court on the due process issue is not challenged on this appeal. .

Prior to the non-renewal of her teaching contract Miss Jones had earned twenty-four hours of credit toward a graduate degree. Since that time, she has earned a Master of Science degree in Guidance, Personnel and Counseling at Kansas State University. . Although the plaintiff received a below average rating at W. H. Robinson School for the 1968-69 school year, she attended St. Augustine’s that summer and received improved ratings for 1969-70. . Keyes v. School District No. 1, Denver Colo., 413 U.S. 189, 209, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1974), quoting from Chambers v.

Hendersonville City Board of Education, 364 F.2d 189, 192 (4 Cir. 1966) (en banc). . Hobson v. Eaton, 399 F.2d 781, 784 n. 2 (6 Cir. 1968). . See Oburn, et al., v. Shapp et al., 521 F.2d 142, 149 n. 18 (3 Cir. 1975). . In making his findings of fact the district judge specifically referred to his observations of the demeanor of the witnesses Tripp, James and Alford in determining whether their evaluations of the plaintiffs teaching performance were valid or merely pretextual. Rule 52(

a) recognizes the importance of such observations, and they are of more than passing relevance since “[fjindings as to the design, motive and intent with which men act depend peculiarly upon the credit given to witnesses by those who see and hear them.” United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949). . Absence of invidious racial motivation is evidenced by the fact that the high ratings which were accorded to Miss Brown and Ms. Ebron appear to have been based upon the same criteria which had been applied to the plaintiff. .

Several circuits subscribe to the proposition that a finding that is supported by substantial evidence cannot be clearly erroneous. However, the cases equating “substantial evidence” with the “clearly erroneous” rule have been uniformly criticized. See Wright & Miller, Federal Practice and Procedure: Civil § 2585 at 735. A full and interesting discussion of the subject is found in Judge Lay’s concurring opinion in Jackson v. Hartford Acc. & Indem. Co., 422 F.2d 1272, 1275-78 (8 Cir. 1970). While there is language in our opinion in Glasscock v.

United States, 323 F.2d 589, 591 (1963), which appears tp follow the “substantial evidence” principle, we think the prevailing rule in this circuit is to the contrary.