O'Neal v. Batesville School District No 1 et al

Filing 48

ORDER granting 27 Motion for Summary Judgment ; denying 36 Motion for Partial Summary Judgment. Signed by Judge Kristine G. Baker on 2/15/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

RICHARD O’NEAL
v.

PLAINTIFF
No. 4:11-cv-221 KGB

BATESVILLE SCHOOL DISTRICT NO. 1,
BY ITS BOARD OF DIRECTORS, DR. PAUL HANCE,
JENNIFER EMERY, RODNEY STROUD,
GEORGE LATUS, LEONARD THARP, SCOTT WOOD,
AND SCOTT FREDRICK, INDIVIDUALLY
AND IN THEIR OFFICIAL CAPACITIES AND
DR. RANDY WILLISON, SUPERINTENDENT

DEFENDANTS

OPINION AND ORDER
Plaintiff Richard O’Neal, a former employee of the Batesville School District No. 1 (the
“District”), brings this 42 U.S.C. § 1983 action against the District, members of the District’s
board of directors, individually and in their official capacities, and the District’s superintendent,
Dr. Randy Willison. Mr. O’Neal alleges various constitutional violations related to the District’s
termination of his employment contract. He also alleges conspiracy and various state law claims
for breach of contract, defamation, and conspiracy. This matter is before the Court on the
parties’ cross-motions for summary judgment (Dkt. Nos. 27, 36). For the reasons that follow,
defendants’ motion for summary judgment is granted as to Mr. O’Neal’s substantive due
process, procedural due process, and First Amendment claims (Dkt. No. 27). Mr. O’Neal’s
conspiracy claim under federal law is dismissed without prejudice for failure to state a claim, and
his state law breach of contract, defamation, and conspiracy claims are dismissed without
prejudice, as this Court declines to exercise jurisdiction over those claims. Mr. O’Neal’s motion
for summary judgment is denied (Dkt. No. 36).

I.

Factual Background

The following facts are undisputed unless stated otherwise.1 Mr. O’Neal was employed
by the District for 29 years. At the time of his termination, he served as the director of the
District’s physical plant. Mr. O’Neal was employed annually by written contract. In April 2010,
the District’s school board hired Dr. Randy Willison as superintendent for the 2010-2011 school
year. Dr. Willison replaced Ted Hall. Mr. Hall had served as the District’s superintendent for
the previous ten years.
While he was superintendent, Mr. Hall allowed Mr. O’Neal to live on District property in
the Gaston house in consideration for Mr. O’Neal being on call 24 hours a day. The District
acknowledges that Mr. Hall allowed Mr. O’Neal to live in the Gaston house rent free but
disputes that Mr. O’Neal was required to be on call 24 hours a day. It is undisputed that living in
the Gaston house was not a part of Mr. O’Neal’s written contract.
At the time the District was considering candidates to replace Mr. Hall, Mr. O’Neal told
Paul Hance, the president of the District’s board of directors, that he would move out of the
Gaston house if Mr. Hance thought it would help the District hire a superintendent. Mr. Hance
agreed that doing so would be a benefit to the District.
Mr. O’Neal intended to be out of the Gaston house by June 30, 2010, but he was
informed that the District needed the house sooner than that. After his hire, Dr. Willison
intended to move into the house. Mr. Hall agreed to help Mr. O’Neal move out of the house and
to “get him whatever he needed.” Mr. Hall gave Mr. O’Neal permission to store his personal

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The undisputed facts are taken from defendants’ statement of undisputed material facts
(Dkt. No. 28), Mr. O’Neal’s response to defendants’ statement of undisputed material facts (Dkt.
No. 32), Mr. O’Neal’s statement of undisputed material facts (Dkt. No. 35), and defendants’
response to Mr. O’Neal’s statement of undisputed material facts (Dkt. No. 44) unless otherwise
noted by specific citation.
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property at the old school bus shop and to use an old trailer that belonged to the District. The
parties dispute whether Mr. O’Neal discussed storage of his personal property with Mr. Hance.
On August 11, 2010, Dr. Willison met with Mr. O’Neal and shared with him that
someone had written a letter outlining anonymous complaints about him. One of the complaints
was that Mr. O’Neal was storing his personal belongings on school property and another was that
he was using school property for personal use. Dr. Willison advised Mr. O’Neal verbally and by
memo that he was not saying these accusations were true but that Mr. O’Neal should make sure
they were not. Mr. O’Neal acknowledged receipt of the memo by email.
In October 2010, Mr. O’Neal used a District-owned tractor and loader to move an air
conditioner to his new residence. He also used the District’s bush hog and scissor jack for
personal business.
The last item to be moved from the Gaston house was an old safe owned by the District.
Mr. O’Neal’s ex-wife used the safe to store District records; she worked part-time for the
District. Mr. O’Neal claims that, at the time he moved from the Gaston house, he told Larry
Hawkins to call special programs to find out where to put the safe. He claims he then told Mr.
Hawkins to store it at Cushman High School. The District claims that Mr. O’Neal was aware the
safe was stored in his son’s garage.
On October 19, 2010, Dr. Willison met with Mr. O’Neal and showed Mr. O’Neal pictures
he had received of Mr. O’Neal using the District’s tractor. Mr. O’Neal told Dr. Willison that he
was just using the equipment to help with his move. During the meeting, Dr. Willison asked Mr.
O’Neal where the safe was. Mr. O’Neal told him it was at Cushman High School. Mr. O’Neal
claims he would later learn that the safe had been taken to his son’s house.

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Dr. Willison notified Mr. O’Neal by letter dated October 25, 2010 that he was
recommending to the school board that Mr. O’Neal’s contract be terminated. The letter sets
forth Dr. Willison’s reasons for the recommendation and explains Mr. O’Neal’s right to a
hearing. Specifically, the letter accuses Mr. O’Neal of insubordination for his continued use of
school property for non-school purposes after the August 11, 2010 meeting. The letter states that
the District had come into possession of photographs of Mr. O’Neal using a District-owned
tractor for non-school purposes and that the District had discovered additional school equipment
that Mr. O’Neal had used for non-school purposes during an inspection of Mr. O’Neal’s
property. The letter references the August 11, 2010 memo from Dr. Willison to Mr. O’Neal.
The letter also accuses Mr. O’Neal of providing Dr. Willison with false information
regarding the whereabouts of the safe. The letter states that Mr. O’Neal told Dr. Willison that
the safe had been moved to Cushman High School sometime in June 2010. Dr. Willison claims
he later learned that Mr. O’Neal had had the safe moved to Cushman High School the morning
of the October 19, 2010 meeting.
Mr. O’Neal requested a public hearing. The hearing was held on November 11, 2010.
Both the District and Mr. O’Neal presented evidence and witness testimony. During the hearing,
Mr. O’Neal testified that the District had a long-standing policy of loaning school equipment to
its employees, a fact to which the District stipulated. The record evidence before the Court
includes a transcript of the hearing. At the end of the hearing, the School Board voted to
terminate Mr. O’Neal’s contract.
II.

Summary Judgment Standard

Summary judgment is appropriate if the evidence, when viewed in the light most
favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and

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that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The initial burden is on the moving party to demonstrate the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the non-moving party to
establish by “specific facts” that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). An issue of fact is material only if it could
affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986).
III.

Analysis
A.

Substantive Due Process Claim

The Due Process Clause of the Fourteenth Amendment contains a substantive component
that protects individual liberty against certain government actions regardless of the fairness of
the procedures used to implement them. Collins v. City of Harker Heights, 503 U.S. 115, 125
(1992). To establish a substantive due process violation, a plaintiff “must demonstrate both that
the official’s conduct was conscience-shocking, and that the official violated one or more
fundamental rights that are deeply rooted in this Nation’s history and tradition, and implicit in
the concept of ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.” Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 816 (8th Cir. 2011) (quoting Norris
v. Engles, 494 F.3d 634, 638 (8th Cir. 2007)). “The constitutional right to substantive due
process includes a right to be ‘free from discharge for reasons that are arbitrary and capricious,
or in other words, for reasons that are trivial, unrelated to the education process, or wholly
unsupported by a basis in fact.’” Herts v. Smith, 345 F.3d 581, 587 (8th Cir. 2003) (quoting
North Dakota State Univ. v. United States, 255 F.3d 599, 605 (8th Cir. 2001)). “This is a high
standard, as ‘[s]ubstantive due process is concerned with violations of personal rights so severe .

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. . so disproportionate to the need presented, and . . . so inspired by malice or sadism rather than a
merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of
official power literally shocking to the conscience.’” Christiansen v. West Branch Community
Sch. Dist., 674 F.3d 927, 937 (8th Cir. 2012) (alterations in original) (quoting C.N. v. Willmar
Pub. Sch., Independent Sch. Dist. No. 347, 591 F.3d 624, 634 (8th Cir. 2010)). “The Due
Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised
personnel decisions.” Bishop v. Wood, 426 U.S. 341, 350 (1976).
The District’s termination of Mr. O’Neal was not conscience-shocking. The reasons
given for Mr. O’Neal’s termination were neither trivial nor wholly unsupported by a basis in
fact. See Herts, 345 F.3d 581 (holding that school district’s failure to renew teacher’s contract
did not rise to the level of conscience-shocking). Therefore, defendants are entitled to summary
judgment on Mr. O’Neal’s substantive due process claim.
B.

Procedural Due Process Claim

To establish a procedural due process violation, a plaintiff must first establish a
constitutionally protected property or liberty interest. Christiansen, 674 F.3d at 934. The parties
do not dispute that Mr. O’Neal, by virtue of his written contract with the District, had a property
interest in his job. Mr. O’Neal also claims a liberty interest in his reputation.
“A public employee with a protected property interest in continued employment receives
sufficient due process if he receives notice, an opportunity to respond to the charges before his
termination, and post-termination administrative review.” Id. (quotation marks omitted). The
procedural due process rights of an employee fired under circumstances placing a stigma on his
reputation “are vindicated by a name-clearing hearing at a meaningful time during which the

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employee can respond to the employer’s accusations.” Winskowski v. City of Stephen, 442 F.3d
1107, 1110 (8th Cir. 2006) (quotation marks omitted).
The Eighth Circuit recently confirmed that Cleveland Board of Education v. Loudermill,
470 U.S. 532 (1985), does not require an elaborate pre-termination hearing. “‘The tenured
public employee is entitled to oral or written notice of the charges against him, an explanation of
the employer’s evidence, and an opportunity to present his side of the story.’” Sutton v. Bailey,
702 F.3d 444, 447 (8th Cir. 2012) (quoting Loudermill, 470 U.S. at 545-46). The hearing serves
as “‘an initial check against mistaken decisions. . . .’” Id. (alternation in original) (quoting
Loudermill, 470 U.S. at 545).
Pursuant to the Arkansas Public School Employee Fair Hearing Act, Ark. Code Ann. § 617-1701 et seq., the District provided Mr. O’Neal with timely notice of Dr. Willison’s
recommendation that Mr. O’Neal’s contract be terminated and the reasons for this
recommendation. The District informed Mr. O’Neal of his right to a hearing before the school
board. During the hearing, Mr. O’Neal was allowed to present evidence and testimony. The
Eighth Circuit has held that a state statute containing similar requirements provides “fairly
elaborate pre-termination process.” Christiansen, 674 F.3d at 937.
Mr. O’Neal contends that the hearing was a “sham with a foregone conclusion.”
However, “[d]ue process . . . does not require predecision hearings.

It only requires an

opportunity to be heard prior to the termination of benefits.” Sutton, 702 F.3d at 448 (alteration
in original) (quoting Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir. 1988)).
Mr. O’Neal was afforded that opportunity.
Finally, Mr. O’Neal contends that he had a protected liberty interest in his reputation. To
establish a procedural due process violation based on the deprivation of a protected liberty

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interest in a public employee’s reputation, a plaintiff must demonstrate that (1) an official made a
defamatory statement that resulted in a stigma; (2) the defamatory statement occurred during the
course of terminating the employee; (3) the defamatory statement was made public; and (4) an
alteration or extinguishment of a right or legal status. Crooks v. Lynch, 557 F.3d 846, 849 (8th
Cir. 2009). He must also prove that he requested and was denied a name-clearing hearing. Id.
“An employee’s liberty interest is implicated where the employer levels accusations at the
employee that are so damaging as to make it difficult or impossible for the employee to escape
the stigma of those charges.” Shands v. City of Kennett, 993 F.2d 1337, 1347 (8th Cir. 1993).
Assuming without deciding that Mr. O’Neal had a protected liberty interest, cf. Allen v.
City of Pocahontas, 340 F.3d 551 (8th Cir. 2003) (holding that allegations of insubordination and
complaints are not sufficiently stigmatizing to implicate a liberty interest), he cannot establish a
procedural due process violation because he requested and was provided a pre-termination nameclearing hearing. That is all that due process requires.
C.

First Amendment Claim

The First Amendment prohibits the government from retaliating against a public
employee based on the employee’s speech or associations. Morris v. City of Chillicothe, 512
F.3d 1013, 1018 (8th Cir. 2008). To establish a prima facie case of retaliation under the First
Amendment, a plaintiff must show that his conduct was constitutionally protected and that the
protected conduct was a substantial or motivating factor in the defendant’s decision to terminate
him. Id. Whether a public employee’s speech is protected by the First Amendment involves a
two-step analysis. The Court first determines whether the employee’s speech, based on its
content, form, and context as revealed by the whole record, can be “‘fairly characterized as
constituting speech on a matter of public concern.’” Shands, 993 F.2d at 1342 (quoting Connick

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v. Myers, 461 U.S. 138, 146 (1983)). If the speech is on a matter of public concern, the Court
must then balance the “‘interests of the [employee], as a citizen, in commenting upon matters of
public concern and the interests of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.’”

Id. (alteration in original) (quoting

Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)). “Both of these questions are questions
of law for the court.” Id.
“When a public employee’s speech is purely job-related, that speech will not be deemed a
matter of public concern.” Buazard v. Meridith, 172 F.3d 546, 548 (8th Cir. 1999). The speech
must relate to some matter of political, social, or other community concern to qualify for First
Amendment protection. Kozisek v. County of Seward, 539 F.3d 930, 936 (8th Cir. 2008).
Speech is not protected simply because the public might have an interest in the topic of the
speech. Bailey v. Department of Elementary & Secondary Educ., 451 F.3d 514, 518 (8th Cir.
2006). The focus is “‘on the role the employee . . . assumed in advancing the particular
expressions: that of a concerned public citizen, informing the public that the state institution is
not properly discharging its duties . . .; or merely as an employee, concerned only with internal
policies or practices which are of relevance only to the employees of that institution.’” Id.
(alteration in original) (quoting Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668, 672 (8th Cir.
1986)).
Mr. O’Neal alleges that he was terminated for exercising his right to a public hearing. He
contends that “whether the District would pursue a policy represented by O’Neal’s termination
and the motives underlying the act is of the utmost public concern” and that “the District’s
support of Dr. Willison was a chilling reminder to the District’s employees, teaching staff as well
as maintenance personnel, of who was in control.” While that may be, Mr. O’Neal has presented

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no evidence that he was speaking primarily as a concerned public citizen. The record supports
the District’s contention that Mr. O’Neal requested the hearing after Dr. Willison made the
recommendation to terminate him. The purpose of the hearing was to challenge Dr. Willison’s
recommendation. The hearing was job-related. Mr. O’Neal has not established a prima facie
case of retaliation.
Even if Mr. O’Neal had met his burden of establishing a prima facie case, defendants
presented legitimate nondiscriminatory reasons for Mr. O’Neal’s termination.
McPhillips, 276 F.3d 988, 991-92 (8th Cir. 2002).

Duffy v.

It is undisputed that Dr. Willison

recommended termination based on acts predating the hearing. The burden then shifts back to
Mr. O’Neal to establish that defendants’ reasons for his termination were pretextual.

Id.

Meeting the burden to establish pretext is more difficult than at the prima facie stage because
evidence of pretext and discrimination are viewed in the light of the employer’s justification.
Smith v. Allen Health Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002). Mr. O’Neal has not provided
a basis upon which a reasonable jury could find that defendants’ justifications were pretextual.
For these reasons, defendants are entitled to summary judgment on the First Amendment claim.
D.

Conspiracy Claim

Mr. O’Neal alleges that Dr. Willison and members of the District’s school board
conspired to terminate Mr. O’Neal for exercising federally protected rights. The District has
moved to dismiss these allegations for failure to state a claim upon which relief may be granted.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). While
a complaint should not be dismissed because it “strikes a savvy judge . . . that a recovery is very

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remote and unlikely,” Twombly, 550 U.S. at 556, the plaintiff must allege facts that “allow the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement
to relief.’” Id.
To the extent Mr. O’Neal attempts to rely on federal law, it appears that Mr. O’Neal is
attempting to allege a claim under 42 U.S.C. § 1985. To prevail on a § 1985 claim, a plaintiff
must prove: “(1) that the defendants did ‘conspire,’ (2) ‘for the purpose of depriving, either
directly or indirectly, any person or class of persons of equal protection of the laws, or equal
privileges and immunities under the laws,’ (3) that one or more of the conspirators did, or caused
to be done, ‘any act in furtherance of the object of the conspiracy,’ and (4) that another person
was ‘injured in his person or property or deprived of having and exercising any right or privilege
of a citizen of the United States.’” Larson by Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir.
1996) (quoting 42 U.S.C. § 1985(3)). “The ‘purpose’ element of the conspiracy requires that the
plaintiff prove a class-based ‘invidiously discriminatory animus.’” Id. Mr. O’Neal has not
alleged or presented evidence of a class-based invidiously discriminatory animus. The Court
finds that Mr. O’Neal’s conspiracy allegations do not state a plausible claim for relief under
federal law.
E.

Qualified Immunity

The doctrine of qualified immunity “protects a government official ‘from liability for
civil damages in so far as the official’s conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Stepnes v. Ritschel, 663
F.3d 952, 960 (8th Cir. 2011). “In a qualified immunity inquiry, the first question is: Taken in

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the light most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?” Wimbley v. Cashion, 588 F.3d 959, 961 (8th Cir. 2009).
The second question is whether the right was clearly established. Id. at 963. The Court may
consider these questions in either order. Pearson v. Callahan, 555 U.S. 223, 235 (2009).  
The Court has already determined that Mr. O’Neal has failed to establish a deprivation of
a constitutional right. Therefore, the individual defendants are entitled to qualified immunity.
F.

State Law Claims

Pursuant to 28 U.S.C. § 1367, the Court declines to exercise supplemental jurisdiction
over Mr. O’Neal’s state law breach of contract, defamation, and conspiracy claims. See Birchem
v. Knights of Columbus, 116 F.3d 310, 314 (8th Cir. 1997) (“In most cases, when federal and
state claims are joined and the federal claims are dismissed on a motion for summary judgment,
the pendent state claims are dismissed without prejudice to avoid ‘[n]eedless decisions of state
law . . . as a matter of comity and to promote justice between the parties.’”).
IV.

Conclusion

For the foregoing reasons, the District’s motion for summary judgment is granted. Mr.
O’Neal’s substantive due process, procedural due process, and First Amendment claims are
dismissed with prejudice. Mr. O’Neal’s conspiracy claim and his state law breach of contract,
defamation, and conspiracy claims are dismissed without prejudice. Mr. O’Neal’s motion for
summary judgment is denied.
SO ORDERED this 15th day of February, 2013.

____________________________________
Kristine G. Baker
United States District Judge

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