Davis v. Shawnee Mission School District et al
Filing
203
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that Defendants' Motion For Judgment On The Pleadings Or, In The Alternative, Summary Judgment (Doc. # 190 ) filed July 13, 2018 is SUSTAINED. John McKinney and Ginny Lyon, are entitled to qualified immunity on plaintiff's claims. IT IS FURTHER ORDERED that for reasons stated in the Memorandum And Order (Doc. # 153 ) filed April 5, 2018, Shawnee Mission School District's Motion For Summary Judgment (Doc. # 134 ) filed October 31, 2017 is SUSTAINED. The Unified School District No. 512, known as Shawnee Mission School District, is entitled to judgment as a matter of law on plaintiff's claims. Signed by District Judge Kathryn H. Vratil on 8/15/2018. (ydm)
N THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RUBYE L. DAVIS,
Plaintiff,
v.
UNIFIED SCHOOL DISTRICT NO. 512
K/A SHAWNEE MISSION SCHOOL DISTRICT,
Defendant.
RUBYE L. DAVIS,
Plaintiff,
v.
JOHN MCKINNEY, et al.,
Defendants.
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CIVIL ACTION
No. 15-9160-KHV
CIVIL ACTION
No. 18-2206-KHV
MEMORANDUM AND ORDER
Rubye L. Davis brings suit against Unified School District No. 512, known as Shawnee
Mission School District (the “District”), John McKinney and Ginny Lyon. Under 42 U.S.C. § 1983,
plaintiff asserts that based on race, defendants reassigned her teaching position from Shawnee
Mission East High School (“SME”) to Shawnee Mission West High School (“SMW”) in violation
of 42 U.S.C. § 1981. The case is set for jury trial beginning September 4, 2018. This matter comes
before the Court on Defendants’ Motion For Judgment On The Pleadings Or, In The Alternative,
Summary Judgment1 (Doc. #190) filed July 13, 2018 and Shawnee Mission School District’s Motion
1
McKinney and Lyon seek judgment on the pleadings, but their arguments rely on
matters outside the pleadings. See, e.g., Defendants’ Memorandum (Doc. #190-1) at 7-12,
(continued...)
For Summary Judgment (Doc. #134) filed October 31, 2017. For reasons stated below, the Court
sustains both motions.
I.
Background Information
Plaintiff originally asserted claims against only the District. See Complaint (Doc. #1) filed
July 8, 2015 in Case No. 15-9160-KHV.2 On April 5, 2018, regarding the District’s motion for
summary judgment, the Court found that plaintiff had not demonstrated a genuine issue of material
fact whether under Section 1983, the District is liable for her claims. See Memorandum And Order
(Doc. #153) at 2-6. More specifically, the Court noted that plaintiff asserted that McKinney and/or
Lyon had decided to reassign her to SMW, but she did not show that either of them acted as a final
policy maker or that the District was otherwise liable for their decision. See id. The Court found that
any complaint about discriminatory conduct by McKinney and/or Lyon belonged in a suit against
them personally. See id. The Court noted that Magistrate Judge K. Gary Sebelius had entered an
order which allowed plaintiff to amend the complaint to include claims against McKinney and Lyon
but thereafter, for reasons not reflected in the record, plaintiff stipulated to dismiss the individual
claims without prejudice. See id. at 6-7. The Court directed Magistrate Judge James P. O’Hara to
revisit the stipulation and determine whether the Court should recall the stipulation and reinstate
1
(...continued)
Statement Of Material Facts ¶¶ 6-15, 17-23, 25. Accordingly, the Court considers their alternative
motion for summary judgment. See Rule 12(c), Fed. R. Civ. P. (if matters outside pleadings are
presented and not excluded, court must treat motion for judgment on pleadings as one for summary
judgment).
2
Plaintiff also sued Jim Hinson, superintendent of the District, in his individual and
official capacities. See Complaint (Doc. #1) at 2, ¶ 4. On March 15, 2017, for reasons not apparent
in the record, plaintiff agreed to dismiss with prejudice all claims against Hinson. See Stipulation
Of Dismissal (Doc. #80).
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plaintiff’s claims against McKinney and Lyon individually. See id. at 7-8.
On April 20, 2018, Judge O’Hara recommended that the Court enforce the parties’
stipulation and not allow plaintiff leave to amend the final pretrial order to include individual claims
against McKinney and Lyon. See Report And Recommendation (Doc. #160) at 2. Judge O’Hara
noted that it appeared that nothing precluded plaintiff from filing the individual claims in a separate
lawsuit. See id. at 10-11. He recommended that if by April 26, 2018, plaintiff filed a new action
asserting individual claims against McKinney and Lyon, the Court immediately consolidate the new
action with the case against the District to promote efficient use of Court and party resources. See
id. at 12-13.
On April 26, 2018, plaintiff filed a separate suit asserting individual claims against
McKinney and Lyon. See Complaint (Doc. #1) in Case No. 18-2206-KHV. On May 2, 2018, the
Court adopted the magistrate judge report and recommendation and ordered that the two cases be
consolidated, with all future filings to be made in the lead case bearing a consolidated case caption.
See Memorandum And Order (Doc. #163) at 5. The Court ordered that all discovery conducted in
the lead case be available to the parties in the second case and not be duplicated. See id.
II.
Legal Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hill v. Allstate Ins. Co., 479 F.3d 735,
740 (10th Cir. 2007). A factual dispute is “material” only if it “might affect the outcome of the suit
under the governing law.” Liberty Lobby, 477 U.S. at 248. A “genuine” factual dispute requires
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more than a mere scintilla of evidence in support of a party’s position. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Nahno-Lopez v. Houser, 625 F.3d
1279, 1283 (10th Cir. 2010). Once the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters
for which the nonmoving party carries the burden of proof. Applied Genetics Int’l, Inc. v. First
Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To carry this burden, the nonmoving party may
not rest on the pleadings but must instead set forth specific facts supported by competent evidence.
Nahno-Lopez, 625 F.3d at 1283.
The Court views the record in the light most favorable to the nonmoving party. See
Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). It may
grant summary judgment if the nonmoving party’s evidence is merely colorable or is not
significantly probative. See Liberty Lobby, 477 U.S. at 250-51. In response to a motion for
summary judgment, a party cannot rely on ignorance of facts, speculation or suspicion, and may not
escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith,
853 F.2d 789, 794 (10th Cir. 1988); Olympic Club v. Those Interested Underwriters at Lloyd’s
London, 991 F.2d 497, 503 (9th Cir. 1993). The heart of the inquiry is “whether the evidence
presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that
one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52.
-4-
III.
Motion For Summary Judgment by McKinney And Lyon
A.
Facts
In support of their motion for summary judgment, McKinney and Lyon present an
abbreviated statement of material facts. See Defendants’ Memorandum In Support Of Their Motion
For Summary Judgment On The Pleadings Or, In The Alternative, Summary Judgment
(Doc. #190-1) filed July 13, 2018 at 1-4. To provide necessary context, the Court incorporates the
factual record regarding the District’s motion for summary judgment.
See Appendix 1 to
Memorandum And Order (Doc. #153) at 12-21. In addition, the following facts are uncontroverted,
deemed admitted or construed in the light most favorable to plaintiff.3
SMW has a reputation of having more minority students than SME. Memorandum And
Order (Doc. #153) at 13. For the 2015-16 school year, SME enrollment was 87 per cent white, and
13 per cent black, Hispanic and other minority students. Id. For the same school year, SMW was
56 per cent white and 44 per cent black, Hispanic and other minority students. Id. Students refer
to SMW as a “ghetto” school. Id. This is primarily based on lower-income apartment housing that
is close to the school, students coming in from neighboring cities, single-parent households, and a
higher ratio of low socioeconomic students and families. Id. SMW students have a reputation of
being more disruptive and having more behavioral issues than students at SME. Id.
Until the spring of 2015, the District assigned plaintiff to teach Biology I and Human
Anatomy/Physiology at SME.4 Plaintiff was the only Human Anatomy/Physiology teacher at SME.
3
The Court includes only those facts which are material to defendants’ motion and
disregards any facts which are not supported by record citations.
4
Biology and Anatomy/Physiology are in the life science departments at SME and
(continued...)
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As part of the Human Anatomy/Physiology class, plaintiff instructed students in the dissection and
examination of organs and internal parts of animal cadavers.
Students regarded her
Anatomy/Physiology class as a preparatory class for pursuing college education and careers in
human health sciences. In addition, plaintiff generally taught two to three biology classes each year.
Plaintiff’s schedule fluctuated such that in one year she taught more anatomy/physiology classes and
in another year she taught more biology classes.
In March of 2015, McKinney, principal of SME, and Lyon, director of certified professional
staff for the District, reassigned plaintiff from SME to SMW for the 2015-16 school year.
Memorandum And Order (Doc. #153) at 16-17, 19. Upon reassignment to SMW, plaintiff was
assigned to teach Basic Biology I and Introductory Freshman Biology – not the academically
advanced and college preparatory course of Human Anatomy/Physiology that she had taught at
SME.5 Memorandum And Order (Doc. #153) at 19. As a result of the reassignment, plaintiff’s
credentials and stature would be diminished. Id. Also, plaintiff could no longer be involved with
4
(...continued)
SMW. From an academic standpoint, Anatomy/Physiology is immensely more complex than
Biology I. Affidavit of Rubye L. Davis ¶ 3, Exhibit 1 to Plaintiff’s Response To Defendants Ginny
Lyon And John McKinney’s Motion For Summary Judgment Or In The Alternative Judgment On
The Pleadings and Suggestions In Support (Doc. #193) filed July 26, 2018. Anatomy/Physiology
consists of college material. Biology I is a prerequisite for Anatomy/Physiology. Id. To effectively
teach Human Anatomy/Physiology, in addition to knowing anatomy and physiology, a teacher must
know chemistry, biochemistry, microbiology and organic chemistry.
5
Defendants assert that they did not know what courses plaintiff would be assigned
to teach at SMW. Defendants’ Memorandum In Support Of Their Motion For Summary Judgment
On The Pleadings Or, In The Alternative, Summary Judgment (Doc. #190-1) filed July 13, 2018
at 4, ¶ 24. Plaintiff points out that the reassignment form which Lyon signed on March 23, 2015
states that plaintiff would teach biology at SMW. See Exhibit 2 to Plaintiff’s Response (Doc. #193).
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the Brain Bee program which she sponsored at SME.6 Id. In plaintiff’s view, the reassignment was
tantamount to reassigning a calculus teacher to teach basic math. Id.
On August 3, 2015, prior to performing any duties at SMW, plaintiff voluntarily resigned.
Had plaintiff not resigned, she would have received the same salary and benefits that she did at
SME.
Plaintiff did not want to transfer to SMW because she wanted to continue to teach
Anatomy/Physiology as she had for the past eight years at SME. Davis Affidavit ¶ 4. In addition,
due to documented disciplinary problems with students at SMW, plaintiff had a serious concern
regarding whether she could teach effectively there. Id.
B.
Analysis
Under 42 U.S.C. § 1983,7 plaintiff asserts that on account of race, defendants reassigned her
to SMW in violation of 42 U.S.C. § 1981.8 Amended Pretrial Order (Doc. #189) filed July 5, 2018
6
At SME, plaintiff was a sponsor for “Brain Bee,” i.e. a regional, state and national
contest where students compete in answering questions about the brain and human nervous system.
Brain Bee is also a forum where students can network with science and health care professionals to
secure internships and employment in the health science field in high school and college.
Memorandum And Order (Doc. #153) at 14.
7
Section 1983 states as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress[.] ***
42 U.S.C. § 1983.
8
Section 1981(a) states as follows:
(continued...)
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at 13-14. Defendants seek summary judgment on grounds that (1) the reassignment did not
constitute adverse employment action, so plaintiff cannot establish a prima facie case of race
discrimination; (2) defendants are entitled to qualified immunity; and (3) the applicable statute of
limitations bars plaintiff’s claims. See Defendants’ Memorandum (Doc. #190-1) at 5-13.
1.
Adverse Employment Action
Defendants assert that plaintiff cannot establish a prima facie case of race
discrimination. The burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), applies to plaintiff’s claims. See English v. Colo. Dep’t of Corr., 248 F.3d
1002, 1007 (10th Cir. 2001). Under this framework, plaintiff bears the initial burden of establishing
a prima facie case, i.e. that (1) she belongs to a protected class; (2) she suffered adverse employment
action; and (3) the adverse employment action occurred under circumstances which give rise to an
inference of discrimination. See McDonnell Douglas, 411 U.S. at 802; Hysten v. Burlington N. &
Santa Fe Ry. Co., 296 F.3d 1177, 1181 (10th Cir. 2002). The burden then shifts to defendants to
provide a legitimate, nondiscriminatory reason for the action. McDonnell Douglas, 411 U.S. at 802.
If defendants successfully do so, the burden shifts back to plaintiff to show that defendants’ stated
reason is a pretext for discriminatory intent. Id. at 804.
Defendants assert that plaintiff cannot establish the second element of a prima facie case,
8
(...continued)
All persons within the jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be subject
to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and
to no other.
42 U.S.C. § 1981(a).
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i.e. that her reassignment to SMW constituted adverse employment action. See Defendants’
Memorandum (Doc. #190-1) at 7-8. Whether a particular reassignment is materially adverse
depends on the circumstances of the particular case, judged from the perspective of a reasonable
person in plaintiff’s position. Daniels v. UPS, Inc., 701 F.3d 620, 635 (10th Cir. 2012) (quoting
Burlington, 548 U.S. at 71). For purposes of a discrimination claim, adverse employment action
requires “a significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a significant change
in benefits.” Daniels, 701 F.3d at 635 (emphasis omitted) (quoting Piercy v. Maketa, 480 F.3d 1192,
1203 (10th Cir. 2007)). Not every perceived indignity rises to the level of adverse employment
action. EEOC v. C.R. England, Inc., 644 F.3d 1028, 1041 (10th Cir. 2011) (quoting Haynes v. Level
3 Commc’n, LLC, 456 F.3d 1215, 1222 (10th Cir. 2006)). A “mere inconvenience” or alteration
of job responsibilities does not qualify as adverse action. Piercy, 480 F.3d at 1203 (no adverse
action regarding shift-bidding policies where all shifts had similar duties and responsibilities).
Regarding the District’s motion for summary judgment, the Court rejected a similar
argument. Specifically, the Court found that plaintiff presented evidence sufficient to create a
genuine fact issue whether the reassignment constituted adverse employment action.
See
Memorandum And Order (Doc. #153) at 8-10 n.11. The Court noted that plaintiff presented
evidence that SMW students are more disruptive and have more behavior issues than SME students
and that defendants reassigned her to teach Introductory Freshman Biology, which is less
academically advanced and less prestigious than Human Anatomy/Physiology. See id. at 9 n.11.
The Court found that construed in the light most favorable to plaintiff, the record presented a
genuine fact issue whether the reassignment constituted adverse employment action. See id. at 9-10
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n.11 (citing Stinnett v. Safeway, Inc., 337 F.3d 1213, 1217 (10th Cir. 2003) (fact issue whether job
reassignment requiring reduced responsibility and lesser degree of skill constituted adverse action);
Drape v. UPS, Inc., No. 12-2172-KHV, 2013 WL 6804214, at *10 (D. Kan. Dec. 23, 2013) (fact
issue whether transfer in job assignment constituted adverse action); Walker v. Bd. of Cty. Comm’rs
of Sedgwick Cty., No. 09-1316-MLB, 2012 WL 1190820, at *13 (D. Kan. April 10, 2012) (fact
issue whether therapist’s building transfer constituted adverse action); Ratts v. Bd. of Cty. Comm’rs,
141 F. Supp.2d 1289, 1308 (D. Kan. 2001) (transfer of city employee radically altered duties even
though salary remained same); cf. Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1214 (10th Cir.
2003) (no adverse action where work on new project was similar to old work and sometimes more
sophisticated); Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998) (teacher
reassignment from fourth grade to second grade at another school purely lateral where commute
increased but salary and benefits remained same; no special circumstances showed anything beyond
mere inconvenience or alteration of job responsibilities)). The Court applies the same analysis here.
Defendants are not entitled to summary judgment on this ground.
2.
Qualified Immunity
Defendants assert that they are entitled to qualified immunity because at the time of
the alleged violation, the law did not clearly establish that reassigning plaintiff to teach at SMW
constituted adverse employment action. See Defendants’ Memorandum (Doc. #190-1) at 9-11.
Qualified immunity protects government officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It balances two
important interests – “the need to hold public officials accountable when they exercise power
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irresponsibly and the need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). When defendants
assert qualified immunity on summary judgment, the burden shifts to plaintiff to show that
(1) defendants violated a federal statutory or constitutional right and (2) the statutory or
constitutional right was clearly established.9
Martinez v. Beggs, 563 F.3d 1082, 1088
(10th Cir. 2009). The Court asks whether, taken in the light most favorable to plaintiff, the facts
demonstrate that defendants violated a statutory or constitutional right and whether the right was
clearly established. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (quoting
Saucier v. Katz, 533 U.S. 194, 201 (2001)). To be clearly established, a right must be sufficiently
clear such that every reasonable official would have understood that what he or she is doing violates
that right. See Mullenix v. Luna, — U.S. —, 136 S. Ct. 305, 308 (2015) (per curiam). Put simply,
qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.
Mullenix, 136 S. Ct. at 308.
As discussed, the record presents a genuine fact issue whether reassigning plaintiff to teach
at SMW constituted adverse employment action. See Memorandum And Order (Doc. #153) at 8-12
n.11. Construed in the light most favorable to plaintiff, the evidence suggests that as a result of
reassignment, plaintiff’s pay and benefits remained the same but she would teach Introductory
Freshman Biology – which is less academically advanced and less prestigious than Human
Anatomy/Physiology – to students with more disruptive behavioral issues. To defeat the qualified
immunity defense, plaintiff must show that on the facts of this case, the law clearly established that
9
The Court has discretion to address the two prongs in any order. Becker v. Bateman,
709 F.3d 1019, 1022 (10th Cir. 2013).
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the reassigning her to teach at SMW constituted adverse employment action. See, e.g., Bailey v.
Indep. Sch. Dist. No. 69 of Canadian Cty. Okla., — F.3d —, 2018 WL 3543064, at *5 (10th Cir.
July 24, 2018).
Plaintiff asserts that the law clearly established that Section 1981 prohibits employment
discrimination based on race. See Plaintiff’s Response (Doc. #193) at 3-4. On the facts of this case,
a general prohibition against racial discrimination will not suffice. The Supreme Court has
repeatedly instructed that courts must not define clearly established law “at a high level of
generality.” White v. Pauly, — U.S. —, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft, 563 U.S. at
742). Except in an obvious case, a general test defining the elements of a statutory or constitutional
violation will not provide clearly established law. Id. (quotation omitted). Instead, the jurisprudence
upon which plaintiff relies must be “particularized to the facts of the case.” White, 137 S. Ct. at 552
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Plaintiff asserts that the law clearly established that regardless whether an employee suffers
“a tangible employment detriment,” Section 1981 prohibits an employer from making job
assignments based on race. Plaintiff’s Response (Doc. #193) at 4 (citing Plaintiff’s Response To
Defendant Shawnee Mission School District’s Motion For Summary Judgment And Memorandum
In Support (Doc. #145) filed December 7, 2017). In other words, plaintiff asserts that any job
assignment based on race is per se unlawful, and therefore she need not show that the reassignment
constituted adverse employment action. See Plaintiff’s Response (Doc. #193) at 4; Plaintiff’s
Response To Defendant Shawnee Mission School District’s Motion For Summary Judgment
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(Doc. #145) at 26-27. The cases which plaintiff cites involved direct evidence of discrimination.10
Here, plaintiff relies on indirect or circumstantial evidence of discrimination, which requires
application of the McDonnell Douglas burden-shifting framework. See OneSource Commercial
Prop. Servs., Inc. v. City & Cty. of Denver, 535 Fed. Appx. 740, 748 (10th Cir. 2013). Thus, to
prevail on her claims, plaintiff must show that the reassignment constituted adverse employment
action.
To overcome the qualified immunity defense, plaintiff must show that at the time of the
alleged violation, on the facts of this case, the law was clearly established such that every reasonable
school official would have understood that reassigning her to SMW constituted adverse employment
action. In order for the law to be clearly established, ordinarily there must be a Supreme Court or
Tenth Circuit decision on point, or the clearly established weight of authority from other courts must
have found the law to be as plaintiff maintains. Zia Trust Co. ex rel. Causey v. Montoya,
597 F.3d 1150, 1155 (10th Cir. 2010). A case with identical facts is not required, but existing
precedent must have placed the statutory or constitutional issue “beyond debate.” Mullenix,
— U.S. —, 136 S. Ct. at 308 (quoting Ashcroft, 563 U.S. at 741).
Plaintiff has failed to come forward with any authority which clearly establishes that the
reassignment constituted adverse employment action. See Plaintiff’s Response (Doc. #193) at 4;
10
Plaintiff cites the following cases: Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472
(11th Cir. 1999) (direct evidence of disparate treatment established prima facie case of
discrimination); Knight v. Nassau Cty. Civil Serv. Comm’n, 649 F.2d 157, 162 (2d Cir. 1981)
(employer conceded racially-based job assignment); Chaney v. Plainfield Healthcare Ctr.,
612 F.3d 908, 913-15 (7th Cir. 2010) (employer’s willingness to accede to patient’s racial
preferences created racially hostile environment); Rodriguez v. Bd. of Educ. of Eastchester Union
Free Sch. Dist., 620 F.2d 362, 364 (2d Cir. 1980) (direct evidence that school district transferred
plaintiff based on gender). See Plaintiff’s Response To Defendant Shawnee Mission School
District’s Motion For Summary Judgment (Doc. #145) at 26-27.
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Plaintiff’s Response To Defendant Shawnee Mission School District’s Motion For Summary
Judgment (Doc. #145) at 26-27. Accordingly, defendants are entitled to qualified immunity on
plaintiff’s claims. See, e.g., Bailey, 2018 WL 3543064, at *6. As discussed, construed in the light
most favorable to plaintiff, the record suggests that as a result of the reassignment to SMW,
plaintiff’s pay and benefits remained the same but she would teach Introductory Freshman Biology
– which is less academically advanced and less prestigious than Human Anatomy/Physiology – to
students with more disruptive behavioral issues. Whether a particular reassignment is materially
adverse depends on the circumstances of the particular case, judged from the perspective of a
reasonable person in plaintiff’s position, considering all the circumstances. Daniels, 701 F.3d at
635.
The case law in this area is highly fact-specific and reveals a hazy backdrop against which
defendants acted. In particular, cases in the Tenth Circuit have reached mixed results regarding
whether job reassignments in similar circumstances constituted adverse employment action. See
Chung v. El Paso Sch. Dist. No. 11, 659 Fed. App’x 953, 955-56 (10th Cir. 2016) (no adverse action
for teaching reassignment from language arts to drama where no change in pay or benefits; no
evidence supported allegations that reassignment damaged reputation as literacy expert and involved
poor work conditions); Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ. 595 F.3d 1126, 1133
(10th Cir. 2010) (teaching reassignment which directly led to reduction in compensation constituted
adverse action); McCrary v. Aurora Pub. Sch., 57 Fed. App’x 362, 369 (10th Cir. 2003) (no adverse
action for proposed teaching transfer from third grade to classroom support; no evidence that job
responsibilities significantly differed); Sanchez, 164 F.3d at 532 (no adverse action for teaching
reassignment from fourth grade to second grade at another school where commute increased but
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salary and benefits remained same; no special circumstances showed anything beyond mere
inconvenience or alteration of job responsibilities); see also Daniels, 701 F.3d at 635 (no adverse
action for job reassignment from day shift to night shift; no evidence showed duties differed
significantly); Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1279-80 (10th Cir. 2010) (reassignment
of school district executive director to elementary school principal constituted adverse action where
salary remained same for one year then decreased); Ratts, 141 F. Supp.2d at 1308-09 (adverse action
prong satisfied even though salary remained same where job transfer from administrative work to
shelving books in library resulted in radically altered job duties).11
On this record, plaintiff has not shown that settled law clearly established that reassigning
her to teach freshman biology at SMW constituted adverse employment action. Because the law did
not establish “beyond debate” that defendants’ actions were unlawful, McKinney and Lyon are
11
Cases in other circuits are equally mixed. See, e.g., Campbell v. Hawaii Dep’t of
Ed., 892 F.3d 1005, 1015 (9th Cir. 2018) (no evidence that assignment to teach remedial math
altered term or condition of employment); Fiorentini v. William Penn Sch. Dist., 665 Fed. App’x
229, 234-35 (3rd Cir. 2016) (plaintiff’s subjective belief that teaching reassignment was demotion
insufficient to create fact issue regarding adverse action); Oller v. Roussel, 609 Fed. App’x 770, 774
(5th Cir. 2015) (undesirable teaching assignment not adverse action); Lore v. City of Syracuse,
670 F.3d 127, 170 (2d Cir. 2012) (transfer from elite position to less prestigious position with little
opportunity for professional growth sufficient to infer adverse action); Francis v. Elmsford Sch.
Dist., 263 Fed. App’x 175, (2d Cir. 2008) (assignment to teach in hallway with diminished teaching
responsibilities constituted adverse action); Freeman v. Potter, 200 Fed. App’x 439, 443 n.2 (6th Cir.
2006) (given fact-specific nature of inquiry, many cases have concluded that lateral transfer did not
constitute adverse employment action and many have found such action adverse); Lee v. Ariz. Bd.
of Regents, 25 Fed. App’x 530, 533 (9th Cir. 2001) (transfer to different teaching schedule may
constitute adverse employment action for retaliation claim); Galabya v. N.Y.C. Bd. of Educ.,
202 F.3d 636, 641 (2d Cir. 2000) (no adverse action where no evidence that change in teaching
responsibilities constituted setback to career); Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 412
(3rd Cir. 1999) (fact issue whether transfers resulting in lost opportunity to teach physics and being
in “difficult school” constituted adverse action); Johnson v. Chattanooga Bd. of Educ., No. 90-5593,
1991 WL 24709, at *2 (6th Cir. Feb. 27, 1991) (plaintiff did not show transfer from teaching second
grade to teaching third grade was adverse action).
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entitled to qualified immunity on plaintiff’s claims.12
IV.
Motion For Summary Judgment By Shawnee Mission School District
As noted, regarding the District’s motion for summary judgment, the Court previously found
that plaintiff had not demonstrated a genuine issue of material fact whether the District was liable
for her claims. See Memorandum And Order (Doc. #153) at 2-6. On May 2, 2018, the Court
ordered the parties to show cause in writing why it should not sustain the District’s motion for
summary judgment and enter judgment in favor of the District. See Memorandum And Order And
Order To Show Cause (Doc. #163) at 6. The Court stated that it was not inviting new argument on
the analysis in its Memorandum And Order (Doc. #153), and the parties should address only whether
there was any reason not to enter judgment under Rule 54, Fed. R. Civ. P. See Memorandum And
Order And Order To Show Cause (Doc. #163) at 6.
In response to the show cause order, the District asserts that the Court should sustain the
summary judgment motion and enter judgment in its favor. See Shawnee Mission School District’s
Reply To Plaintiff’s Response To The Court’s Show Cause Order (Doc. #171) filed May 8, 2018
at 1-2. Plaintiff, on the other hand, attempts to challenge the Court’s analysis that she has not shown
a genuine issue of material fact regarding whether defense counsel’s letter of May 1, 2015
demonstrates that the Board ratified the reassignment decision. See Plaintiff’s Response To The
Court’s Show Cause Order (#163) (Doc. #170) filed May 8, 2018 at 1-2; Memorandum And Order
(Doc. #153) at 4-5 n.6. Plaintiff asserts that based on attorney ethical rules and the fact that the
District has not denied that counsel was authorized to speak on its behalf, the Court may infer that
12
In light of this conclusion, the Court does not address defendants’ argument that the
statute of limitations bars plaintiff’s claims.
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counsel was authorized to respond on the District’s behalf. See Plaintiff’s Response To The Court’s
Show Cause Order (#163) (Doc. #170) at 1-2. Plaintiff’s argument misses the mark. The Court
found that standing alone, counsel’s letter did not establish a genuine fact issue regarding whether
the Board had ratified the reassignment decision. See Memorandum And Order (Doc. #153) at 4-5
n.6. It did not address whether counsel was authorized to speak on behalf of the District.13
Moreover, as noted, the Court did not invite the parties to present new argument regarding its
analysis in the Memorandum And Order (Doc. #153). See Memorandum And Order And Order To
Show Cause (Doc. #163) at 6. On this record, the Court finds that the District’s motion for summary
judgment should be sustained.
IT IS THEREFORE ORDERED that Defendants’ Motion For Judgment On The Pleadings
Or, In The Alternative, Summary Judgment (Doc. #190) filed July 13, 2018 is SUSTAINED.
John McKinney and Ginny Lyon, are entitled to qualified immunity on plaintiff’s claims.
IT IS FURTHER ORDERED that for reasons stated in the Memorandum And Order
(Doc. #153) filed April 5, 2018, Shawnee Mission School District’s Motion For Summary Judgment
(Doc. #134) filed October 31, 2017 is SUSTAINED. The Unified School District No. 512, known
as Shawnee Mission School District, is entitled to judgment as a matter of law on plaintiff’s claims.
13
The Court notes that plaintiff does not assert that the Board authorized counsel to
“speak with final policymaking authority.” McMillian v. Monroe Cty., Ala., 520 U.S. 781, 784-85
(1997); see also Robinson v. City of Arkansas City, Kan., 896 F. Supp.2d 1020, 1043 (D. Kan. 2012)
(quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (trial judge must identify officials
who speak with final policymaking authority concerning action alleged to cause particular violation
at issue). Standing alone, counsel’s statements regarding the District’s position regarding plaintiff’s
claims do not constitute Board ratification of the actions of McKinney and Lyon. See, e.g., Taylor
v. City of Bixby, Okla., No. 12-CV-0066-CVE-FHM, 2012 WL 6115051, at *15 (N.D. Okla.
Dec. 12, 2012) (for purposes of Section 1983 municipal liability, attorney statements made after
close of discovery regarding city’s defenses or claims does not constitute ratification of employee’s
action).
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IT IS FURTHER ORDERED that the Clerk enter judgment in favor of defendants, Unified
School District No. 512, known as Shawnee Mission School District, John McKinney and Ginny
Lyon, on all claims.
Dated this 15th day of August, 2018 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge
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