Shuck v. Academy School District 20 et al

Filing 58

ORDER denying 51 Defendants Partial Motion for Summary Judgment by Magistrate Judge Kathleen M. Tafoya on 9/29/2017. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 15–cv–02124–KMT
DIANE H. SHUCK,
Plaintiff/Counterclaim Defendant,
v.
ACADEMY SCHOOL DISTRICT 20,
Defendant/Counterclaim Plaintiff,
and
LINDA VAN MATRE,
TRACEY JOHNSON,
CATHERINE BULLOCK,
LARRY BORLAND,
GLENN STREBE,
DAVID PEAK,
SUSAN FIELD, and
TORIA MCGILL, in their official and individual capacities,
Defendants.

ORDER

This matter is before the court on “Defendants’ Partial Motion for Summary Judgment.”
(Doc. No. 51 [“Mot.”].) Plaintiff filed a Response (Doc. No. 54 [“Resp.”]), to which Defendants
replied. (Doc. No. 56 [“Reply”].)

Facts1
Plaintiff began her employment with Defendant Academy School District 20 (ASD20)
for Air Academy High School (“AAHS”) in 1992 as a part-time physical education teacher.
(Doc. No. 51-1 at pp. 35-36.)2 Plaintiff was responsible for familiarizing herself with and
abiding “by federal and state laws and regulations relevant to their work as well as district
administrative policies of the Board of Education as posted on the district intranet.” (Id. at 42;
Doc. No. 51-3 at 1.) Plaintiff held the part time physical education teacher position for eight
years, and also ran student government and acted as activities director. (Id. at 36-37.) Plaintiff
became an athletic coordinator for AAHS in 1998-99 and reported directly to the AAHS
Principal. (Id. at 37-38.) Plaintiff obtained her principal license in 2002 and was named AAHS
Assistant Principal/Athletic Director in 2003. (Id. at 38.) Plaintiff held that position until 2015.
(Id. at 73.)
On January 23, 2015, the AAHS Principal, Defendant Toria McGill, gave a mid-year
review to AAHS’s new bookkeeper, Deborah Elges. (Doc. No. 51-4 at 70-71.) During that
review, Ms. Elges raised a concern regarding Plaintiff. Ms. Elges began by explaining Plaintiff
had previously told her that ASD20 and Defendant McGill were upset with Plaintiff because
some assistant coaches had worked with kids without first going through a background check.
(Id. at 72.) One of them, Eric Goldberg, who was the baseball coach’s son, had subsequently
failed his background check due to DUIs on his record. (Id. at 72-73.) Sometime after that
conversation but before January 23, 2015, Plaintiff asked Ms. Elges to write a check to Doug

1

The following facts are undisputed unless specifically noted otherwise.
When citing deposition testimony, the court uses the page references in the original deposition
transcript.
2

2

Goldberg, the baseball coach, in order to pay Eric Goldberg. (Id. at 73.) Ms. Elges testified she
refused and told Defendant McGill during her review that the request made her uncomfortable.
(Id.)3 Ms. Elges also told Defendant McGill that Plaintiff’s son had previously been paid for
work he had done for the hockey team. (Doc. No. 51-5 at 111-12.) Defendant McGill halted the
review, telling Ms. Elges that they would need to reschedule the remainder. (Id. at 112-13.)
Defendant McGill called her supervisor, Deputy Superintendent Karin Reynolds, and Defendant
David Peak, Assistant Superintendent of Human Resources. (Id.)
Later the same day, Defendant McGill called Plaintiff into her office for a meeting with
Defendant Peak and her. (Doc. No. 51-1 at 79.) Defendant McGill raised concerns regarding
paying Plaintiff’s son and paying volunteers who had not completed the district mandated
process. (Id.) Following the meeting, Defendant McGill placed Plaintiff on administrative leave
and took Plaintiff’s keys and badge. (Id.)
After the meeting, Defendant Peak directed his staff to check the status of background
checks of individuals mentioned by Ms. Elges. (Doc. No. 51-7 at 84-85.) Defendant Peak and
Tom Gregory, the Chief Financial Officer, spoke with Defendant McGill, Ms. Elges, Plaintiff’s
Administrative Assistant, Krystal Whitson, and Austin Lee, an AAHS teacher and co-sponsor of
student council. (Id. at 85-86.) Mr. Gregory also initiated an internal audit. (Id. at 86; Doc. No.
51-8 at 66-67.)
Plaintiff had a second meeting on January 30, 2015 with Defendants Peak and McGill.
(Doc. No. 51-1 at 100.) Upon arriving at the meeting, Defendant McGill read to Plaintiff a list of

3

Plaintiff disputes Ms. Elges’ version of these events. Plaintiff testified that when she told Ms.
Elges that they would have to pay Doug Goldberg and let him pay Eric Goldberg, Ms. Elges
agreed to do so and stated she would plead new bookkeeper ignorance. (Doc. No. 51-1 at 84.)
3

concerns, including Plaintiff requiring an assistant to work overtime, not completing evaluations
on time, failure to follow proper Purchasing Card (“P-Card”) procedures, the cash box being
short, the Make-A-Wish box being short, paying her sons to work athletic events, and using the
$10 and $5 Dick’s Sporting Good gift cards as tournament awards. (Id. at 100-05.)4 Plaintiff
tried to respond to each allegation during the meeting. (Id. at 101.)
ASD20’s Policy GBEA Staff Ethics/Conflict of Interest provides, in relevant part, “No
district employee shall participate in the selection or employment of any person who is a member
of his/her family.” (Doc. No. 51-12.) The record indicates that since July 2012, Plaintiff signed
45 checks to her son, Jared, and 21 checks to her son, Tyson, for work they performed as game
workers at AAHS athletic events. (Doc. No. 51-1 at 102.) Plaintiff was not aware this was a
violation of ASD20 policy. (Id.) Plaintiff contends “my principal, [Defendant] McGill, was
fully aware of it and personally approved check requests to pay her sons for working at such
events. See, e.g., ASD20_000126 (Tyson) and ASD20_000168 (Jared).” (Doc. No. 51-13 at 2.)
Plaintiff further contends “asking family members to step in to work games was a common
practice in the District high schools, and other workers with family relationships, including but
not limited to, [Defendant] McGill’s husband, worked at AAHS athletic events.” (Id.)
ASD20’s P-Card Program permitted ASD20 to provide credit cards to approved District
employees who are authorized to purchase goods and services. (Doc. No. 51-14 at 3.) P-Cards
issued to Principals had a $500.00 transaction limit. (Id. at 6.) The P-Card program prohibits
split purchases made in order to circumvent the transaction limit. (Id. at 5.) Records show that
on December 6, 2012, Plaintiff made three different purchases of cheerleader boots in amounts
4

The record does not contain any indication beyond the general allegations leveled during the
January 30, 2015 meeting as to when Plaintiff’s evaluations were untimely.
4

of $487.40, $487.40, and $97.48. (Doc. No. 51-15.) Plaintiff purchased King Soopers gift cards
in the amount of $735.00 in transactions amount of $500.00 and $235.00. (Doc. No. 51-1 at
215.) She testified this was the result of a brain lapse. (Id.)
Colorado High School Activities Association (“CHSAA”) Bylaw 2010.1 provides, in
relevant part:
Individuals participating in any interscholastic athletic/activity sponsored and/or
approved by the Association shall not accept cash or merchandise awards. Awards
must be symbolic in nature with no functional or intrinsic value such as, but not
limited to, letters, plaques, trophies, medals, ribbons, certificates and letter
adornments and shall not exceed $50.00 in value exclusive of engraving. “Cash”
includes such things as, but not limited to, remuneration in any form such as cash,
money orders, gift certificates, scholarships (cash/check payment to school of
choice is approved, not to student recipient), free or reduced price meals.
(Doc. No. 51-16.) During athletic tournaments, AAHS provided gift cards to Dick’s Sporting
Goods store in the amount of $10.00 to first place and $5 to second place. (Doc. No. 51-1 at
105-06.) Plaintiff denies this was a violation of CHSAA Bylaw 2010.1 because they did not see
them as over the amateur status rule and it was essentially like a trophy for the tournament. (Id.
at 105.) They had previously provided t-shirts to tournament and/or event winners. (Id.)5

5

The court notes Defendants submitted a Summary Transaction Report related to AAHS athletic
fundraising accounts over a five year time period, 2010-2015. (Doc. No. 51-17.) Defendants
purport that the report shows monies raised by athletic programs in the course of fundraisers
were never distributed to the appropriate charities. (Mot. at 7.) Defendants offered no
explanation in interpreting the report. From what the court can discern in examining it, over a
five year time span, two of fifteen fundraising accounts reflect a possible failure to distribute the
total money raised in a fundraiser (offset by fundraiser expenses) to the appropriate charities.
(Id.) Plaintiff testified she was the ultimate authority over the fundraising efforts. (Doc. No. 511 at 141.) She also testified that “sometimes [the athletic groups] are doing their part turning
money in and I never see the monies going in and out because the process doesn’t cross my desk,
so I wasn't always aware if, in fact, they had been doing a fundraiser.” (Id.) In any event, as
Defendants offered no explanation as to this report and the court cannot determine with certainty
it is interpreting the report correctly, this exhibit will not be treated as establishing an
uncontroverted fact.
5

Plaintiff remained on leave after the January 30th meeting. (Id. at 118.) An Internal
Review Summary of Recommendations (“Summary”), signed by two Internal Reviewers and
dated February 5, 2015, indicates the internal investigation found numerous policy violations by
Plaintiff. (Doc. No. 51-19.)6 Another meeting occurred on February 10, 2015 and in attendance
were Plaintiff, Plaintiff’s counsel, Defendant Peak, Defendant McGill, and counsel for ASD20.
(Doc. No. 51-1 at 119.) At this meeting, Plaintiff was informed that she was being removed
from her position as Athletic Director/Assistant Principal and being placed in the position of
Student Interventionist. (Id. at 120.) Dr. Peak read from a prepared statement, stating that it was
unnecessary to “rehash their concerns in detail again, but our most prominent issues involve the
expenditure of funds to athletes in violation of CHSAA rules, failure to adequately oversee
athletic and activity funds, and failure to ensure that personnel procedures are followed to protect
the safety and welfare of students.” (Id. at 121; Doc. No. 51-20.) Plaintiff did not get a chance
to respond. (Id. at 121.) Plaintiff and her counsel requested a copy of the prepared statement as
well as the “source documents” pertaining to the investigation but AAHS would not provide
them. (Doc. No. 51-1 at 120-21.) Plaintiff began in her position as Student Interventionist on
February 18, 2015. (Id. at 123.)7

6

Plaintiff argues the Summary is hearsay and therefore, inadmissible. (Resp. at 3.) To the
extent the Summary is offered not for the truth of the matter asserted, but for the limited purpose
of establishing the information presented to Defendants following the internal audit, the
Summary is admissible. Murphy v. Pagosa Lakes Prop. Owner’s Ass’n, No. 13-cv-03445-PABNYW, 2015 WL 1816573, at *3 n.3 (D. Colo. April 20, 2015).
7
Throughout the briefing, Defendants argue Plaintiff’s move to this position was a “transfer,”
rather than a demotion. Though the distinction makes little difference to the analysis herein,
Plaintiff was moved from Athletic Director/Assistant Principal to Student Interventionist,
accompanied by a decrease in salary, as a result of allegations of policy violations. An argument
that this action did not constitute a demotion is disingenuous at best. Thus, for the sake of
simplicity, in this Order, the court refers to this move as a demotion.
6

On April 16, 2015, after Plaintiff was already in the Student Interventionist position,
Krystal Whitson, Plaintiff’s Secretary when she was Athletic Director, prepared a letter stating
that Plaintiff directed her to take small amounts of cash, $10.00 to $20.00, out of the athletic
event gate receipts throughout the year in order to pay for alcoholic beverages at the coaches’
end of year banquet. (Doc. No. 51-21.) She further stated that she had previously saved
anywhere from $300-$500 for this event. (Id.) Ms. Whitson submitted another letter dated May
27, 2015, in which she stated that after the Glenn Peterson Track meets, Plaintiff invited the meet
workers and coaches to dinner. (Doc. No. 51-22.) Using the gate receipts from the track meet,
Plaintiff paid for the dinner and alcoholic drinks. (Id.)8
On May 5, 2015 at 11:54 a.m., Ms. Elges sent an email to Defendant McGill stating that
the soccer coach had asked her to locate $3,000.00 Plaintiff had transferred out of the boys’
soccer account. (Doc. No. 51-23.)9 In the email, Ms. Elges stated that on June 30, 2012, the
previous bookkeeper, Susan Avila, had transferred $3,000.00 from the boys’ soccer account to
the general athletics account to cover the negative balance. (Id.) While Ms. Elges was looking
for the $3,000.00 transfer, she discovered that on June 30, 2012, Ms. Avila also made five other
transfers between athletic accounts in order to cover negative balances. (Id.) Ms. Avila has

8

Plaintiff objects to the consideration of Ms. Whitson’s letter as inadmissible hearsay. The court
construes the letter such that, if called as a witness, Ms. Whitson could testify at trial to her own
actions as described in the letter. To that extent, the court considers the letter’s content. See
Murphy, 2015 WL 1816573, at *3 n.3. See also Thomas v. IBM, 48 F.3d 478, 485 (10th Cir.
1995) (stating that a party need not produce evidence in a form that would be admissible at trial,
but the substance of the evidence must be admissible).
9
Plaintiff also objects to the consideration of Ms. Elges’ email as inadmissible hearsay. Similar
to Ms. Whitson’s letter, if called as a witness, Ms. Elges could testify at trial to her actions and
findings as described in the email and the soccer coach could testify as to his own request to Ms.
Elges to locate a $3000.00 transfer. To that limited extent, the court considers the email’s
content. See Murphy, 2015 WL 1816573, at *3 n.3; Thomas, 48 F.3d at 485.
7

testified she came up with the idea of transferring funds between accounts because she did not
like seeing negative balances. (Doc. No. 51-24 at 49.) Plaintiff approved the transfers and stated
that they created a paper trail so they would remember to later transfer the funds back. (Id.; Doc.
No. 51-1 at 204.) Ms. Elges’ email indicates the described transfers were not returned to the
original accounts. (Doc. No. 51-23.)
Policy GBK sets forth an appeal procedure for employees who seek to resolve “a concern
or complaint not associated with concerns regarding discrimination or harassment.” (Doc. No.
51-25.) On April 14, 2015, Plaintiff submitted a Level 2 appeal regarding her demotion and
addressed twelve allegations based solely on memory. (Doc. No. 51-26.) Pursuant to Policy
GBK, Level 2 appeals are heard by the “Principal or Designee”. (Doc. No. 51-25 at 1.) Because
Plaintiff’s appeal involved a decision made by her Principal, Defendant McGill, her appeal was
escalated to a Level 3. (Doc. No. 51-1 at 131.) Level 3 appeals are usually heard by a
“Principal’s supervisor.” (Doc. No. 51-25 at 1.) Because the Superintendent had already chosen
the Principal’s Supervisor, Defendant Karin Reynolds, for Plaintiff’s Level 4 appeal, see Doc.
No. 51-7 at 195-97, Defendant Susan Field, an Assistant Superintendent over Learning Services,
was chosen. (Id.; Doc. No. 51-1 at 131.)
Dr. Field met with Plaintiff on April 21, 2015 from 3:45 p.m. to 5:15 p.m. (Doc. No. 5128 at 47-48.) Plaintiff drafted a set of talking points that she took with her to the meeting and
referred to from time to time. (Doc. No. 51-1 at 147-48.) Dr. Field drafted a letter denying
Plaintiff’s appeal and showed the draft to Defendant Peak. (Doc. No. 54-1 at 57.) She does not
recall whether there were multiple drafts but she describes it as a working draft and testified that
the two of them spent time on it. (Id.)

8

On May 5, 2015, Dr. Field issued the letter to Plaintiff concluding, “While your
intentions may have been in good faith, your actions were in violation of many District 20
policies and procedures . . . . Your transfer from assistant principal/athletic director to teacher at
Air Academy High School is within the statutory authority of the school district. In my
investigation, I have found no violation, misapplication, or misinterpretation of school district
policy.” (Doc. No. 51-29 at 1, 3.) She testified that several provisions were included at the
request of Mr. Cohn and Defendant Peak. (Doc. No. 54-1 at 130-31.) Additionally, the letter
included multiple allegations of which Plaintiff had been previously unaware. (Doc. No. 51-18;
Doc. No. 51-29 at 2; Doc. No. 51-20.)
Defendant Field’s letter is dated the same day as Ms. Elges’ email to Defendant McGill
reporting the June 30, 2012 transfers of monies between accounts. (Doc. No. 51-29.) The
allegations regarding the transfers are included in full in Defendant Field’s letter, wherein she
stated that her own investigation revealed these transfers. (Doc. No. 51-29 at 2.) In her letter,
Defendant Field stated that Plaintiff had chosen not to respond to the allegations against her at
the January 30, 2015 and the February 10, 2015 meetings. (Id. at 1; Doc. No. 51-1 at 101.) At
the request of Mr. Cohn, Defendant Field included the statements, “During our April 21, 2015
meeting, you verbally requested remedy for administrative salary reinstatement for the remainder
of the 2014-2015 school year. This request is denied as you are currently working as a teacher.”
(Doc. No. 51-29 at 3; Doc. No. 54-1 at 130-31.)
Upon request of Defendant Peak, Defendant Field’s letter also included reference to
Plaintiff’s failure to timely evaluate coaches from July 2008-2010. (Doc. No. 51-29 at 2; Doc.
No. 54-1 at 114.) Plaintiff’s performance evaluation for the 2010-11 school year included the

9

same criticism but stated, “Diane had not been evaluating coaches according to board policy in
the last year or so but recommitted to those evaluations with gusto this year. Her teacher and
coach evaluations were detailed and complete.” (Doc. No. 54-1 at 113.) Additionally, Plaintiff’s
performance evaluation for the 2011-12 school year includes praise for, inter alia, evaluating
coaches in a timely manner. (Doc. No. 54-1 at 2) (“She completed all her coaching evaluations
in a timely manner and her feedback was measured and honest.”) Defendant Field also included
the allegation regarding Plaintiff’s violation of CHSAA bylaws because Dr. Peak asked her to do
so. (Id.; Doc. No. 51-29 at 2.)
Plaintiff subsequently filed her Level 4 appeal, which was being heard by Ms. Reynolds.
(Doc. No. 51-30.) In that appeal, Plaintiff points out several allegations from the Level 3 denial
regarding which she could not respond or properly appeal because she did not have sufficient
information. (Id.) During the appeal, Ms. Reynolds met with Plaintiff for approximately one
and one-half hours. (Doc. No. 51-1 at 163, 170.) Plaintiff again went through her talking points
and each of the allegations of which she was aware, explaining how she understood the events
that had occurred and her own actions. (Id. at 163-64.) On June 9, 2015, Ms. Reynolds issued a
letter summarily denying Plaintiff’s appeal, stating that she “found no policy violation in your
transfer from assistant principal/athletic director to teacher at Air Academy High School as such
a transfer is within statutory authority of the school district per Colorado Revised Statutes 22-63106.” (Doc. No. 51-31.)10
Plaintiff next filed a Level 5 appeal with the ASD20 Board of Education. (Doc. No. 5132.) Board President, Defendant Van Matre, requested the Superintendent compile “some
10

The court presumes Ms. Reynolds intended to refer to Colo. Rev. Stat. § 22-63-206 which
allows a teacher in an administrative position to be transferred to a teacher position.
10

information for the [B]oard so that we could see for ourselves what some examples were of some
of the concerns,” specifically financial concerns, regarding Plaintiff. (Doc. No. 51-33 at 13, 5253.) She further requested that such information be provided in a paper copy in a binder that
would be left in a locked room in the boardroom. (Id. at 54.) At the July 23, 2015 Board
meeting, the Board resolved to decide Plaintiff’s Level 5 appeal on the basis of the documents
submitted. (Doc. No. 51-34 at 2.)
The Board members were not required to review any of the information submitted
pursuant to Defendant Matre’s request and she is only aware of two other Board members,
Defendant Johnson and Defendant Strebe, that did so. (Id.) Defendant Van Matre reviewed the
documents for less than thirty minutes and did not look through all of the documents. (Doc. No
54-1at 58-59, 83.) She is not aware how long Defendants Johnson and Strebe reviewed them.
(Doc. No. 54-1 at 58-59.) Upon reviewing the materials, Defendant Van Matre did not come to a
conclusion on whether Plaintiff had mishandled finances and she was not concerned about the
appeal process. (Id. at 66, 68, 71, 73, 76, 83.)
Q. Okay. And based on your looking at that, then did you come to a conclusion
regarding whether [Plaintiff] had mishandled finances in any way?
A. No, not a conclusion. I simply saw that there was enough evidence that I
could understand why – why this process had happened, and that’s all I was really
looking for.
Q. You were – were you looking for in that sense some validation that you felt
the previous levels of the appeal process had – had made a proper determination
on whether there had been a violation of the board policy?
A. No. I wasn’t concerned with the appeal process.

11

(Id. at 66.) Defendant Van Matre thought her only “responsibility in this was to determine
whether the [B]oard had a concern with [the Superintendent]’s performance in terms of
adherence to policy.” (Id. at 83.)
The Board received a letter on August 4, 2015 from Plaintiff in which she resigned her
position, effective immediately, with ASD20 after accepting employment with Douglas County
High School as Assistant Principal/Activities Director. (Doc. No. 51-1 at 30, 33; Doc. No. 5135.) At the August 6, 2015, Board meeting the Board approved Plaintiff’s resignation. (Doc.
No. 51-36 at 3.) The Board never discussed the matter, the allegations, and/or the appeal. (Doc.
No. 54-1 at 62-63.) At the same meeting, the Board resolved Plaintiff’s Level 5 appeal as
follows, “That the Academy School District 20 Board of Education, following a careful review
of the information forwarded to the Board regarding the Level 3 Complaint, has determined that
there has been no violation, misapplication, misinterpretation, or inequitable use of any of the
provisions of Board of Education, or administrative policies, and request that the President
prepare a response in accordance with this motion.” (Id. at 6.) On August 10, 2015, Defendant
Van Matre sent a letter to Plaintiff reflecting the same. (Doc. No. 51-38.)
Legal Standard
Summary judgment is appropriate if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the initial burden of showing an absence of evidence to support
the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the
moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a
genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & Cnty. of Denver, 36

12

F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may
not rest solely on the allegations in the pleadings, but must instead designate “specific facts
showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P.
56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper
disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the
evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party.
Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S.
at 248).
When ruling on a motion for summary judgment, a court may consider only admissible
evidence. See Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1209–10 (10th Cir. 2010). The
factual record and reasonable inferences therefrom are viewed in the light most favorable to the
party opposing summary judgment. Concrete Works, 36 F.3d at 1517. Moreover, because
Plaintiff is proceeding pro se, the court, “review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United
States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404
U.S. 519, 520–21 (1972) (holding allegations of a pro se complaint “to less stringent standards
than formal pleadings drafted by lawyers”). At the summary judgment stage of litigation, a
plaintiff’s version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584
F.3d 1304, 1312 (10th Cir. 2009). “When opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court

13

should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312.
Analysis
1. Procedural Due Process
Plaintiff’s primary allegation in this case is that Defendants demoted her without due
process in violation of the Fourteenth Amendment. To make this claim, Plaintiff must first show
she had a property interest in continued employment with ASD20. Langley v. Adams Cnty.,
Colo., 987 F.2d 1473, 1480 (10th Cir. 1993). In its order denying the individual Defendants’
Motion to Dismiss, this court concluded Plaintiff had a property interest in her continued
employment pursuant to Policy GCQF, which provides a licensed staff member “shall not be
subject to disciplinary proceedings . . . for actions which were in good faith and in compliance
with the district’s administrative policies and procedures.” (Doc. No. 37-2; Doc. No. 49 at 7-11).
Thus, the question now before the court is whether Plaintiff received adequate due process prior
to being demoted. Langley, 987 F.2d at 1480.
“An essential principle of due process is that a deprivation of life, liberty, or property ‘be
preceded by notice and opportunity for hearing appropriate to the nature of the case.’” Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 313 (1950)). “‘The essence of procedural due process is fair play;
hence, the fundamental due process requirement is the opportunity to be heard at a meaningful
time and in a meaningful manner.’” Crow v. City of Colo. Springs, No. 13–cv–02842–RBJ,
2014 WL 1775552, at *6 (D. Colo. May 5, 2014) (quoting Patrick v. Miller, 953 F.2d 1240,
1244 (10th Cir. 1992)).

14

Due process requires that plaintiff have had an opportunity to be heard at a
meaningful time and in a meaningful manner before termination. This
requirement includes three elements: 1) an impartial tribunal; 2) notice of charges
given a reasonable time before the hearing; and 3) a pretermination hearing except
in emergency situations.
Langley, 987 F.2d at 1480 (internal citations and quotations omitted). There is no bright line rule
determining the sufficiency of due process. The employee is entitled to “some kind of hearing”
prior to the adverse employment action depriving her of her liberty interest. Loudermill, 470
U.S. at 542 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 569-70 (1972)). “The procedural
requisites and formality of pre-termination procedures vary depending on the importance of the
interests involved and the nature of post-termination proceedings.’” Crow, 2014 WL 1775552,
at *6 (quoting Langley, 987 F.2d at 1480). “[T]he adequacy of pre-termination procedures must
be examined in light of available post-termination procedures.” Id.
a. Pre-Demotion Proceedings
Plaintiff attacks on many fronts the due process afforded her during the pre-demotion
proceedings. First, she contends she was not presented with the charges against her within a
reasonable time. (Resp. at 6-8.) As with due process in general, there is not a specific amount of
time in which an employee must be provided notice of to the charges against them. Instead,
“what constitutes timely notice is inevitably context-specific.” Crow, 2014 WL 1775552, at *7.
This court has noted that two days could constitute too short a timeframe for proper notice but
found otherwise in a case in which the plaintiff was able to not only attend a pre-termination
meeting with such notice but was also able to submit documents during the meeting that
supported his position. Id. The Tenth Circuit has held that “[t]he necessary notice may come at

15

the hearing itself.” Merrifield v. Bd. of Cnty. Comm’rs for Cnty. of Santa Fe, 654 F.3d 1073,
1078 (10th Cir. 2011).
Nothing in Loudermill suggests, nor do we hold, that a public employee is entitled
to some type of ‘pre-notification notice’ of the charges against her or him.
Likewise, Loudermill does not imply that, in conducting the pretermination
hearing, there must be a delay between the ‘notice’ and the ‘opportunity to
respond’ accorded to the public employee.
Id. (quoting Powell v. Mikulecky, 891 F.2d 1454, 1459 (10th Cir. 1989)). “[T]he Tenth Circuit
has upheld ‘informal proceedings, such as pretermination warnings and an opportunity for a
face-to-face meeting with supervisors, and even a limited conversation between an employee and
his supervisor immediately prior to the employee’s termination,’ as sufficient to satisfy due
process requirements.” Hays v. Park City Sch. Dist., 214 F. Supp. 3d 1162, 1184 (D. Utah 2016)
(quoting West v. Grand Cnty., 967 F.2d 362, 367 (10th Cir. 1992)). The sufficiency of notice is
determined on a case-by-case basis. Crow, 2014 WL 1775552, at *7.
During the initial meeting on January 23, 2015, Plaintiff was told only that there were
concerns regarding paying her son and paying volunteers who had not completed the district
mandated process. (Doc. No. 51-1 at 79.) At the second meeting, held on January 30, 2015, the
allegations against Plaintiff had expanded significantly to include Plaintiff requiring an assistant
to work overtime, not completing evaluations on time, failure to follow proper P-Card
procedures, the cash box being short, the Make-A-Wish box being short, paying her sons to work
athletic events, violation(s) of the CHSAA policy prohibiting cash gifts to athletes, and
misrepresenting that she checked three references prior to hiring a custodian who was later
investigated for improper conduct with a student. (Id. at 100-05; Doc. No. 51-18.) At the
February 10, 2015 meeting, Plaintiff was informed that she was being moved to the position of

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Student Interventionist and was not given a chance to respond to allegations against her. (Doc.
No. 51-1 at 121.) The prepared statement from which Dr. Peak read at the meeting indicates the
purpose of the meeting was to inform Plaintiff that she was being moved to the Student
Interventionist position, not to gain a response from Plaintiff regarding the allegations. (Doc.
No. 51-20.)
The court finds troubling the sheer volume of allegations relayed only verbally and for
the first time to Plaintiff during the January 30, 2015 meeting that essentially represented her
only opportunity to respond. (Doc. No. 51-1 at 100-05; Doc. No. 51-18.) These circumstances
could create a question of fact as to whether Plaintiff was afforded sufficient due process in her
pre-demotion proceedings. Notably though, the court does not consider the adequacy of
Plaintiff’s notice and pre-demotion proceedings in a vacuum and instead must examine them in
light of the available post-demotion procedures, addressed below. See Crow, 2014 WL 1775552,
at *6.
Plaintiff also argues she was not afforded an impartial tribunal during the pre-demotion
proceedings. (Resp. at 8-9.) Specifically, Plaintiff contends Defendant McGill, as her
immediate supervisor and the person recommending her demotion, and Defendant Peak, who
investigated the allegations against her and also recommended her demotion, were not impartial
decision-makers in light of their respective roles. (Id. at 8.)
The court finds this does not violate Plaintiff’s due process rights because Plaintiff’s
allegations do not prove either Defendants McGill or Peak were biased. “The mere showing that
a supervisor initially recommended a [demotion] and then met with the employee prior to that
employee’s [demotion] is ordinarily insufficient to establish a constitutional violation.” Riggins

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v. Goodman, 572 F.3d 1101, 1114 (10th Cir. 2009) (citing Grand Cnty., 967 F.2d at 368 (finding
that a meeting with the supervisor, who ultimately terminated the employee, provided “sufficient
notice and opportunity to respond to satisfy the pretermination due process requirements”); see
also Locurto v. Safir, 264 F.3d 154, 173–74 (2d Cir. 2001) (collecting cases and concluding that
a neutral adjudicator is not a necessary component of due process at a pretermination hearing, so
long as the plaintiff is afforded a hearing before a neutral adjudicator after termination); 2 Isidore
Silver, Public Employee Discharge & Discipline § 17.06 (3d ed. 2001) (noting that the
supervisor officiating at the initial pretermination meeting need not be impartial as it is often
assumed that the supervisor who best knows the charges, and who perhaps has even brought
them, is the most appropriate initial decision-maker.).
Finally, Plaintiff complains the January 23, 2015 and January 30, 2015 meetings were not
adequate for pre-demotion due process. (Resp. at 9-10.) In arguing these meetings were
sufficient, Defendants rely on cases in which the court found far less than full evidentiary
hearings prior to termination as sufficient due process. (Mot. at 15-18) (citing Hennigh v. City of
Shawnee, 155 F.2d 1249, 1256 (10th Cir. 1998); Grand Cnty., 967 F.2d at 368-69). Plaintiff does
not argue she should have been afforded a full evidentiary hearing. Instead, she states, “In a case
like this one [], which involved numerous, fact-dependent issues spanning several years, fairness
clearly required something more than a brief meeting with a supervisor.” (Resp. at 9.)
Plaintiff’s concerns in this regard are not without legitimacy. Nevertheless, “the [pre-demotion]
hearing need not definitively resolve the propriety of the discharge. It should be an initial check
against mistaken decisions—essentially, a determination of whether there are reasonable grounds
to believe that the charges against the employee are true and support the proposed action.”

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Loudermill, 470 U.S. at 545–46. Most significantly, “[t]he standards for a pretermination
hearing are not stringent because of the expectation that a more formal post-termination hearing
will remedy any resulting deficiencies.” West, 967 F.2d at 367. Thus, the court must analyze the
post-demotion proceedings before determining whether Plaintiff was afforded due process.
b. Post-Demotion Proceedings
(i) Level 3 Appeal
In their Motion, Defendants accurately explain that a plaintiff is not entitled to extensive
pre-termination proceedings due to the safeguards provided by post-termination proceedings.
(Mot. at 17.) Then, they cite Benavidez v. City of Albuquerque, 101 F.3d 620 (10th Cir. 1996)
for the proposition that “when the employee has had a meaningful opportunity to explain his
position and challenge his dismissal in pre-termination proceedings, the importance of the
procedures in the post-termination hearing is not as great. In this type of post-termination
hearing, simply giving the employee ‘some opportunity’ to present his side of the case will
provide a meaningful hedge against erroneous action.” (Id.) Defendants cannot have it both
ways. They cannot argue minimal pre-demotion proceedings are sufficient because of the postdemotion proceedings available and then argue the same as to post-demotion proceedings. At
some point, an employee must be provided sufficient procedural due process.
Here, Plaintiff was able to appeal her demotion through three levels of appeal, pursuant to
ASD20 policy. In Plaintiff’s first appeal, she addressed twelve allegations based solely on
memory as Defendants never provided anything in writing related to the various allegations
leading to her demotion. (Doc. No. 51-26.) In the May 5, 2015 letter denying Plaintiff’s appeal,

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Dr. Field stated that while Plaintiff may have been acting in good faith, her actions violated
many ASD20 policies. (Doc. No. 51-29 at 1.)
It is not the court’s duty, when considering whether a plaintiff was afforded adequate due
process, to second guess the employer’s conclusions and/or decision-making. In other words, the
court does not decide whether the employer made the right decision in demoting or terminating
an employee. See Laird v. Gunnison Cnty., No. 04–cv–00687–PSF–BNB, 2007 WL 108391, at
*9 (D. Colo. Jan. 10, 2007) (“[I]t is not within the employee’s right to challenge the wisdom of
the employer’s decision, nor is it for this Court to review the prudence of such a decision.”).
However, the court does note certain anomalies in Defendant Field’s letter denying Plaintiff’s
appeal that bring the due process afforded her into question.
In the letter, Defendant Field repeatedly refers to her “investigation” of the allegations.
(Doc. No. 51-29 at 2.) In her deposition, though, Field stated that other than the meeting with
Plaintiff, her process was limited to speaking with Dr. Peak, a decision-maker in Plaintiff’s
demotion, and Mr. Gregory. (Doc. No. 54-1 at 54, 57, 59, 102-03.) Defendant Field testified
that she did not have any documents in her possession that she was going through when writing
her decision. (Id. at 102-03.) Yet, she stated in her letter that her “investigation revealed six
transfers initiated and approved by you that moved funds from specific team athletic accounts to
‘gate receipts’ and ‘general athletics’ to cover negative balances” on June 30, 2012. (Doc. No.
51-29 at 2.) Notably, Ms. Elges discovered the six transfers and reported them to Defendant
McGill for the first time on May 5, 2015, the same date as Defendant Field’s letter. (Doc. No.
51-23; Doc. No. 51-29.) Aside from the difficulty in understanding how Defendant Field was
aware of these transfers early enough to include them in a letter dated the same date Ms. Elges

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first reported the same, Plaintiff was certainly not afforded notice and an opportunity to respond
to this allegation prior to Defendant Field’s decision.
Additionally, Defendant Field provided an initial draft of her decision letter to Dr. Peak.
(Doc. No. 54-1 at 57.) Dr. Peak specifically asked Defendant Field to include a statement that
although Plaintiff claimed she “never asked your secretary to work past her work hours, she
reports that she often worked past the scheduled hours and was never reimbursed for her
overtime work.” (Doc. No. 51-29 at 2; Doc. No. 54-1 at 120.) Defendant Field never spoke with
Plaintiff’s assistant or saw anything documenting such a statement. (Doc. No. 54-1 at 120.)
Instead, Defendant Field testified that Dr. Peak asked her to add it and that he had made that
finding in his own investigation. (Id.) Defendant Field also included allegations related to
Plaintiff’s completion of coaching evaluations and violations of CHSAA bylaws because Dr.
Peak asked her to do so. (Doc. No. 51-29 at 2.)
Dr. Peak was one of the decision-makers in Plaintiff’s demotion and this was an appeal
from that decision. His level of involvement in determining aspects of this appeal raises many
concerns, not the least of which is whether Plaintiff was afforded an impartial tribunal. The
court notes the Tenth Circuit’s holding that “[i]nvolvement of tribunal members in earlier
proceedings in the same case does not overcome the presumption of honesty and integrity.”
Riggins, 572 F.3d at 1113-14 (quotations omitted). However, in the present case, Defendant
Peak’s involvement in this regard is concerning for two reasons. First, it is not clear from the
record Defendant Field conducted her own investigation and/or reached her own conclusions
regarding various matters raised in Plaintiff’s appeal. Second, it does not appear Defendant

21

Peak’s involvement was publicly known, and certainly not to the extent he seemingly
participated.
It is undisputed Defendants never provided Plaintiff any documentation related to the
allegations against her, their investigation, or a statement listing the reasons for her demotion.
Along the same vein, there is a pattern throughout Plaintiff’s appeals wherein she seems to get
notice of the allegations against her in piecemeal fashion. As noted, she filed her Level 3 appeal
noting that she was responding to the allegations that she could recall as she was not provided
any documentation. In Dr. Field’s letter, there are additional allegations about which Plaintiff
had not been previously made aware. For example, Dr. Field states, “It was reported that you
received cash boxes directly from all ticket sellers with completed reconciled reports, however,
you failed to retain or forward those reports to the bookkeeper.” (Doc. No. 51-29 at 2.) This
allegation was not a part of the prepared statements read to Plaintiff during the January 30, 2015
and February 10, 2015 meetings. (Doc. Nos. 51-18, 51-20.) Also included in Dr. Field’s letter
was the allegation that Plaintiff used “funds from the athletic activities cash boxes and spent said
funds on alcoholic beverages at local restaurants to entertain coaches.” (Doc. No. 51-29 at 2.)
This allegation was not included in any previous communication to Plaintiff. (Doc. Nos. 51-18,
51-20.) Indeed, this allegation was not asserted by anyone until April 16, 2015, well after
Defendant Field’s meeting with Plaintiff, when Ms. Whitson submitted her letter including these
allegations. (Doc. No. 51-21.) These issues raise considerable questions regarding Plaintiff’s
notice of the allegations against her, as well as whether she was provided a reasonable
opportunity to be heard.

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(ii) Level 4 Appeal
Plaintiff complains Ms. Reynolds, who heard her Level 4 appeal, was not an impartial
tribunal because she was in Plaintiff’s direct chain of command, had signed off on Plaintiff’s
performance evaluations, Ms. Reynolds and Defendant McGill had discussed Plaintiff’s job
performance, and Ms. Reynolds had been kept abreast of Defendant McGill’s investigation and
demotion of Plaintiff from the outset. (Resp. at 15.) As previously noted, however, even direct
involvement in earlier proceedings does not disqualify an individual from participating in an
employee’s appeal. Riggins, 572 F.3d at 1114. Moreover, “‘exposure to evidence presented in
nonadversary investigative procedures is insufficient in itself to impugn the fairness’ of a later
adversary hearing.” Id. (quoting Mangels v. Pena, 789 F.2d at 838). See also Hicks v. City of
Watonga, Okla., 942 F.2d 737, 747 (10th Cir. 1991) (“Mere familiarity with the facts of a case
gained by an agency in the performance of its statutory role does not disqualify a
decisionmaker.”).
In her Level 4 appeal, Plaintiff repeatedly notes allegations set forth in her Level 3 denial
to which she cannot respond and/or properly appeal because she does not have enough
information. (Doc. No. 51-30 at 1-6.) As one example, in her letter denying Plaintiff’s Level 3
appeal, Dr. Field stated that an internal audit indicated that from July 1, 2012 – January 23, 2015,
there were 175 transactions that were not consistent with audit expectations and include at least
one violation each. (Doc. No. 51-29 at 3.) Defendants never provided Plaintiff any
documentation regarding the audit performed and none of the previous statements read to her
included this information. (Doc. Nos. 51-18, 51-20.) Thus, Defendant Field’s letter represents

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the first time Plaintiff was presented with this information. In her Level 4 Appeal, Plaintiff, not
surprisingly, stated:
12. District internal audit. This finding is completely unclear. Is Dr. Field
claiming that during that time Ms. Shuck herself had 175 transaction errors? Are
these athletic department errors, or does she mean AAHS as a whole? Ms. Shuck
was never made aware of any violation of auditing expectations by the
bookkeeper, the principal or the district auditor. The audit reports are never
shared with her, but go to the principal and bookkeeper. We cannot respond to
this allegation without a significant amount of additional information.
(Doc. No. 51-30 at 5.)
(iii) Level 5 appeal
Plaintiff’s final appeal to the Board of Education raises additional concerns for the court.
The denial of her Level 4 appeal did not include any substantive information regarding the
allegations against her. Thus, Plaintiff’s notice of the allegations against her remained
unchanged. More concerning to the court is Defendant Van Matre, the Board President’s,
description of the appeal. She stated that in hearing the Plaintiff’s appeal, which was limited to
the documentation she and two other board members reviewed, she was not concerned with the
appellate process or whether Plaintiff actually did the things of which she was accused. Instead,
she was concerned solely with whether the Superintendent, Dr. Hatchell, had violated any
policies during the demotion and/or appellate process. (Doc No. 54-1 at 66, 83.) However, Dr.
Hatchell played no role whatsoever in Plaintiff’s demotion and subsequent appeal. His only
participation was to delegate his appellate review to Ms. Reynolds. Thus, Defendant Van
Matre’s explanation, which was unrelated to the merits of Plaintiff’s appeal, is nonsensical and
leaves questions regarding whether Plaintiff was provided a meaningful opportunity to be heard.

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Although establishing procedural due process is not a particularly high burden to meet, in
light of the piecemeal fashion in which Plaintiff was provided notice of the allegations against
her, lack of information provided to Plaintiff regarding the allegations and/or the subsequent
investigation, as well as the court’s concerns regarding whether Plaintiff had a meaningful
opportunity to be heard, the court finds Plaintiff has established a question of fact regarding
whether she was afforded sufficient due process with regard to her demotion. See, c.f., Gale v.
Unintah Cnty., No. 2:13-cv-725-TC, 2015 WL 4645024, at *14 (D. Utah Aug. 4, 2015) (finding
question of fact as to whether plaintiff was afforded procedural due process prior to termination
based on fact he did not receive his personnel file until four days after the evidentiary hearing as
his job performance would have been relevant to the allegations against him as well as his
inability to take the testimony of certain witnesses prior thereto).
[O]nce a plaintiff establishes a constitutional violation, the burden shifts to the defendant
to show by a preponderance of the evidence that it would have reached the same result absent the
violation.” McClure v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1213 (10th Cir. 2000) (citing
Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 285–87 (1977) (once plaintiff shows
infringement of constitutional right, defendant must “show [ ] by a preponderance of the
evidence that it would have reached the same decision . . . even in the absence of the
[constitutional violation].”); Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 270–71 & n.21 (1977) (proof of constitutional violation shifts to defendant the “burden of
establishing that the same decision would have resulted even had [the constitutional violation not
occurred]”)).

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Although Defendants state repeatedly that Plaintiff’s demotion was based on violations of
policy, which indisputably occurred, they bear the burden to offer evidence that the demotion
would have occurred even if Plaintiff had received full due process. Defendants offered no such
evidence in their briefing. See, c.f., Leardini v. Charlotte-Mecklenberg Bd. of Educ., No. 3:09–
CV–264, 2012 WL 1828897, at *3 (W.D.N.C. May 18, 2012) (affirming trial court’s refusal to
give jury instruction on affirmative defense that the plaintiff would have been terminated even if
he had received a hearing where one witness stated that she had “no idea” whether he would
have been terminated following a hearing. “In no way did Defendants present evidence, by way
of testimony or document, that met the evidentiary burden necessary to require this Court to give
an instruction on the § 1983 affirmative defense.”).11
2. Defendant Field
Defendants request Defendant Field be dismissed because she had no involvement in
Plaintiff’s demotion. (Mot. at 19-20; Reply at 7-8.) However, Plaintiff’s procedural due process
claim focuses on whether she was provided due process before and after her demotion. The
claim is not based upon whether in fact she should have been demoted. Dr. Field, along with Dr.
Peak, was the reviewing authority on Plaintiff’s Level 3 appeal and therefore, directly
participated in the due process provided to Plaintiff.

11

The court notes had Defendants met their burden and shown by a preponderance of the
evidence that they would have reached the same decision, Plaintiff’s claim would still survive for
trial because “the employee may still obtain damages for emotional distress attributable to the
deficiencies in procedure if the employee can convince the trier of fact that the distress is
attributable to the denial of procedural due process itself rather than to the justified termination.”
Montgomery v. City of Ardmore, 365 F.3d 928, 937 (10th Cir. 2004) (quotations omitted).
Plaintiff has requested damages for emotional distress in relation to her due process claim, see
Doc. No. 6 at 6-7, and Defendants do not address this issue in their request for summary
judgment.
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Although they fail to cite any legal authority supporting this request in their Motion,
Defendants cite to Dill v. City of Edmond, Okla. 155 F.3d 1193 (10th Cir. 1998) in their Reply
indicating that the Tenth Circuit affirmed judgment in favor of Defendant Preston as to the
plaintiff’s procedural due process claim because there was no evidence he participated in the
decision to transfer the plaintiff. Id. at 1207. However, Dill is distinguishable from the present
case. In Dill, the plaintiff asserted procedural due process, tortious interference with business
relations, and conspiracy claims against Defendant Preston in relation to an employment transfer.
Id. at 1201. The trial court granted judgment as a matter of law against the plaintiff’s procedural
due process claim, and the Tenth Circuit affirmed, based on a finding that the complained of
change to the plaintiff’s employment resulting from the transfer did not trigger procedural due
process protections. Id. at 1207. Additionally, the procedural due process claim was based upon
a requirement that the plaintiff could not be transferred without cause. Id. at 1206. Thus, unlike
the present case, the lack of participation in the subject transfer negated a procedural due process
claim as the transfer was the only action relevant to the same. Id.
“The personal participation required to hold a person accountable in a § 1983 action is
personal participation in the alleged constitutional violation.” See Stovall v. Raemisch, No. 14–
cv–02069–KMT, 2015 WL 5280908, at *3 (D. Colo. Sept. 10, 2015). As discussed in detail
above, Defendant Field was personally involved in the due process Plaintiff alleges was
inadequate. Thus, she is a proper party to this case.

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Therefore, it is
ORDERED that “Defendants’ Partial Motion for Summary Judgment” (Doc. No. 51) is
DENIED.
Dated this 29th day of September, 2017.

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