Nixon et al v. Greenup County School District et al
Filing
65
MEMORANDUM OPINION & ORDER, overruling 31 MOTION for Summary Judgment as it pertains to Count 1 of the complaint 2) dfts motion for s/j is sustained as to the remaining claims alleged and 3) dfts motion for s/j as it pertains to dft Randy Houghs in his Individual Capacity and dft Thomas J. Kouns in his individual capacity. Signed by Judge Henry R. Wilhoit, Jr on 9/12/12.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
Civil Action No. lO-67-HRW
LONNIE NIXON and WENDY NIXON,
and
LONNIE NIXON and WENDY NIXON,
as Parents, Guardians and Next Friends of
AUDRIE NIXON,
v.
PLAINTIFFS,
MEMORANDUM OPINION AND ORDER
GREENUP COUNTY SCHOOL DISTRICT, et al.,
DEFENDANTS.
This matter is before the Court upon Defendants' Motion for Summary
Judgment [Docket No. 31].
I.
FACTUAL AND PROCEDURAL HISTORY
A.
Audrie Nixon
At the time this civil action was filed, Audrie Nixon was attending the
second grade at McKell Elementary School, in Greenup County Kentucky. She is
a Type I diabetic. On September 5,2008, the school adopted a plan for
accommodating Audrie's condition pursuant to Section 504 of the Rehabilitation
Act of 1973,29 U.S.C. 794. A plan such as this is commonly referred to as a "504
plan."
The first such 504 Plan for Audrie was adopted on September 5,2008 and
again adopted, with some modification, on August 13,2009 [Docket No. 48,
Exhibits 4 and 7]. Among other things, the plans required: (1) a trained staff
member and nurse were to be present at all times; (2) Audrie was to be "dosed" for
all carbohydrate food; (3) boluses, blood glucose testing and ketone testing were
to be administered by the nurse or a parent; (4) ifblood sugar level was above 250
and/or ketones were present, the parent was to be notified; (5) blood testing was
required whenever Audrie was suspected of having low blood sugar; (6) a parent
was to be notified if Audrie's blood sugar tested less than 50 on one reading or
less than 75 on two consecutive readings; (7) a parent was to be notified if
Audrie's blood glucose exceeded 300 at any time or exceeded 250 on two
consecutive readings if ketones were present; and (8) in an emergency, Glucagon
was to be administered, 911 called and a parent notified [Docket No, 48-4].
B.
Wendy and Lonnie Nixon
Audrie's parents, Wendy and Lonnie Nixon were employed by the Greenup
County School District as teachers at McKell Elementary. Wendy Nixon taught at
McKell Elementary from July 2008 until May 2009. Lonnie Nixon was hired on
limited contracts for four separate school years 2006-2007 through 2009- 2010.
Both were non-tenured employees.
On May 5, 2009, both Wendy and Lonnie Nixon were advised, in writing,
that their contracts would not be renewed for the 2009-2010 school year [Docket
2
No. 22-2, pg.3 and Docket No. 21-1, pg. 33]. According to the record, all non
tenured teachers receive non-renewal letters which may be rescinded, depending
upon the evaluation by the school principal [Docket No. 27, pg. 8-9].
By letter dated June 1, 2009, Lonnie Nixon was notified that his notification
of non-renewal had been rescinded and that he would, in fact, having a teaching
position at McKell Elementary during the 2009-2010 school year [Docket No. 21
1, pg. 43]. Wendy Nixon did not receive such a letter.
On August 14,2009, Wendy Nixon filed a Complaint with the Office of
Civil Rights regarding Audrie's 504 Plan. Wendy Nixon alleged that the school
was not following the plan and, thereby, endangering Audrie's health and
welfare[Docket No. 22-1, pg. 7-8].
On January 15,2010, Wendy Nixon filed a similar complaint with the
American Diabetes Association [Docket No. 21-1, pg. 9-10].
A letter in the same regard was sent to the Kentucky Educational Standards
Board from Lonnie Nixon on January 15,2010 [Docket No. 22-1, pg. 14].
By letter dated April 21, 2010, Lonnie Nixon was advised that his contract
would not be renewed for the 2010-2011 school year [Docket No. 21-1. Pg.33].
During the summer of 20 10, the Nixons moved from South Shore, Kentucky
to Supply, North Carolina where Lonnie Nixon had accepted employment in the
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Brunswick County School District.
C.
The Complaint
Lonnie Nixon and Wendy Nixon instigated this civil action on July 7, 2010
against Defendants, Greenup County School District, Randy Hughes, and Thomas
J. Kouns.
Plaintiffs state in their Complaint that Audrie Nixon was covered by a
504 Plan with the Defendant, Greenup County School District, to enable her to
participate in the educational opportunities at McKell Elementary and to safeguard
her health and life while at McKell Elementary. They allege that the Defendants
repeatedly violated the 504 Plan, thereby jeopardizing Audrie's health, welfare,
safety and life. They allege that as a result of these violations they suffered severe
emotional distress as they were greatly concerned for their daughter's well being.
They further allege that Defendant ignored all complaints, failed to comply with
the 504 Plan and acted in reckless disregard, and that the Greenup County School
District intentionally discriminated against Audrie Nixon by failing to comply
with her 504 Plan.
In addition, they claim that their respective employments
were terminated without legitimate reason or rationale, but, rather in retaliation for
their attempts to protect Audrie's rights under her Section 504 Plan.
Defendants deny all the allegations and seek judgment as a matter of law on
all claims asserted against them.
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II.
STANDARD OF REVIEW
In 1986, the United States Supreme Court set forth the standard for
summary judgment in a trilogy of cases: Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), Celotex v. Cartett, 477 U.S.
317. 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Matsushita Electric Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Following this precedent and Fed.R.Civ.P. 56, the moving party is entitled to
judgment as a matter of law when "[t]he pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that
there is no genuine issue of material fact." Summary judgment is mandated
against a party who has failed to establish an essential element of his or her case
after adequate time for discovery. In such a situation, there is no genuine issue of
material fact as the failure to prove an essential fact renders all other facts
irrelevant. Celotex v. Cartett, 477 U.S. at 322-323.
III. ANALYSIS
A.
Factual issues preclude summary judgment as to Plaintiffs' claim
that Defendants' violated the 504 Plan.
In Count I of their Complaint, Plaintiffs allege that Defendants intentionally
discriminated against Audrie by failing to comply with the 504 Plan [Docket No.
5
1, 'if 30].
§ 504 of the Rehabilitation Act and the Kentucky Civil Rights Act prohibit
discrimination on the basis of disability. Under both statutes, the elements are of a
claim are essentially the same: l (1) Plaintiff must be a person with a disability; (2)
Plaintiff must be "otherwise qualified" for participation in the relevant program;
and (3) Plaintiff must be excluded from participation in or denied the benefits of
that program or otherwise subjected to discrimination by reason of his or her
disability. See generally, Brahm v. JH Properties, Inc., 149 F.3d 517 (6th Cir.
1998).
For the purposes their motion, the Defendants agree that Plaintiff Audrie
Nixon is a person with a disability and is otherwise qualified for participation in
the general educational program offered by Defendants. Therefore, this Court's
inquiry is focused on the third prong, to-wit, whether Audrie was discriminated
against by reason of her disability.
Plaintiffs claim that Defendants did not comply with the agreed upon
accommodations, set forth in the 504 Plan, and, thus, discriminated against
Audrie.
Under the Rehabilitation Act, there is the additional requirement that the
Defendant must be an entity receiving federal funds. That element is uncontested
here.
1
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In seeking summary judgment, Defendants rely upon the testimony of
Sharon Moore, former 504 Coordinator and Director of Special Education of the
Pike County School District. Ms. Moore opined that the Greenup County School
District did not ignore the Nixon's complaints or fail to comply with Audrie
Nixon's 504 Plan during the 2009-10 school year. There were several meetings
held throughout the school year to revise the 504 Plan and at each meeting the
complaints presented by Mr. and Mrs. Nixon were addressed and changes were
made to the 504 Plan several times. As these complaints were single or occasional
incidents, it is Ms. Moore's opinion that these incidents do not constitute
intentional discrimination against Audrie Nixon.
In support of her opinion, Ms.
Moore noted that the Greenup County School District assigned a school nurse,
Nurse Bradley, to McKell Elementary School full-time at the beginning of the
2009-10 school year and employed additional substitute nurses who could be
called when the full-time nurse was absent. Additionally, an aide, Leisa
Timberlake, was assigned to Audrie all day to assist with monitoring blood sugar
levels, assisting with snacks, and other diabetes care activities. Beginning August
12,2009, a Daily Dietary/Blood Sugar Log was kept and documented for lunch
and snack carbohydrate count and insulin amount, Blood Sugar Checks with time
and reading and notes as to snack or other action taken, ketone checks and calls
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and/or contacts with parents. The logs were sent home daily. A review of the logs
show that Audrie's blood sugar was monitored frequently throughout the day by
the assigned aide and/or nurse with actions taken based upon the readings.
Defendants argue that, in light of their expert's testimony, Plaintiffs fail to
demonstrate any evidence of record that Defendants were deliberately indifferent
to Audrie's rights or that a violation was the obvious consequence of the School
District's actions.
Plaintiffs dispute the validity of Ms. Moore's opinion by pointing out that it
was based upon a misunderstanding of certain key facts. They contend that Ms.
Moore wrongly assumed that Nurse Bradley worked solely at McKell Elementary,
wherein fact, Nurse Bradley testified that her time was divided amongst three
schools during the pertinent time [Docket No. 33, pg. 7-8]. Plaintiffs further aver
that Ms. Moore assumed that the aide assigned to Audrie, Leisa Timberlake, had
no other duties but to attend to Audrie. Ms. Timberlake testified that she had
many other duties [Docket No. 39, pg. 15-16]. Plaintiffs also point out that Ms.
Moore testified that the August 13,2009504 Plan, did not include the checking of
ketones. A misconception she recognized later in her deposition.
Further, Plaintiffs emphasize their repeated complaints of the school's
failure to comply with the Plan. The record, specifically the deposition transcripts
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of Wendy and Lonnie Nixon, set forth numerous instances of their reports to the
school in this regard. This testimony is in direct conflict with that of Defendant's
expert witness.
As such, factual issues abound with regard to whether and to
what extent Defendants failed to comply with the 504 Plan. As such, summary
judgment as to this claim is not warranted.
B.
Plaintiffs' Equal Protection, Due Process and First Amendment
claims fail as a matter of law.
1..
Equal Protection and Due Process
In Count IV of their Complaint, Plaintiffs claim that Defendants violated the
Fourteenth Amendment of the United States Constitution. They specifically state
that Defendants violated Audrie Nixon's civil rights by "denying her access to
services and educational opportunities and by endangering her health, safety,
welfare and life" and "depriving her property interest in education without due
process of law due to their repeated non-compliance with the 504 Plan" [Docket
No. 1, ~ 44-45].
Although Plaintiffs allege a violation of constitutional rights, that is not
sufficient to raise a due process or equal protection claim under the Fourteenth
Amendment. While Audrie Nixon may have a protected interest in her education,
she cannot and has not demonstrated that the Defendants deprived her of a public
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education without due process. See e.g. Long v. Board ofEducation ofJefferson
County, Kentucky, 121 F.Supp.2d 621 (W.D.Ky. 2000)(recognizing that a due
process claim may be properly stated when a student is barred from attending
school by way of a suspension). In this case, there is no allegation, or evidence,
that Defendants took any action to prevent Audrie from attending school or
availing herself of the administrative process appurtenant to the 504 Plan.
Nor can Plaintiffs maintain a due process claim with regard to the
emploYment of Wendy and Lonnie Nixon. It is undisputed that both were non
tenured teachers. By definition, therefore, they do not have a protected property
interest in continued employment. Therefore, they cannot claim a violation of due
process with regard to their employment.
11.
First Amendment
Plaintiffs Lonnie and Wendy Nixon allege that Defendants terminated their
employment in retaliation for their exercise of their First Amendment rights.
An analysis of this claims beings with determining whether Plaintiffs were,
in fact, engaging in activity protected by the First Amendment. Whether a public
employee plaintiff engages in constitutionally protected speech depends on
whether he or she is speaking as a citizen on a matter of public concern, and
whether his or her interest in so speaking outweighs the State's interest in
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promoting effective and efficient public service. If the answer to both inquiries is
yes, the speech is protected. See Condiff v. Hart County School District, 770
F.Supp.2d 876, 888 (W.D.Ky. 2011) (citations omitted).
In this case, the speech at issue is Plaintiffs Wendy and Lonnie Nixon's
dissatisfaction with the 504 Plan and concern for their daughter, Audrie.. They are
parents, speaking on behalf of their child. While this speech is important, it is not
entitled to Constitutional Protection.
Even if Plaintiffs were to describe their speech as part of their duties as
teachers at McKell Elementary, it stills falls outside the purview of the First
Amendment. "When public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications from employer
discipline." Id. (citations omitted). Therefore, characterizing their speech as part
of their duties as teachers does not bring the speech within the ambit of the First
Amendment.
Therefore, Plaintiffs cannot maintain their claims under the First
Amendment.
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c.
Factual issues preclude summary judgment as to Lonnie Nixon's
claims of retaliation and intentional infliction of emotional
distress.
In Counts III and VI of their Complaint, Plaintiffs claim that Lonnie
Nixon's employment was terminated in Counts III and VI of their Complaint,
Plaintiffs claim that Lonnie Nixon's employment was termination in retaliation for
his efforts to protect Audrie's rights under the 504 Plan and that Defendants
conduct was designed to intentionally inflict severe emotional distress upon him
[Docket No.1, ~39 and 57].
1...
Retaliation
In order to state a prima facie case for Section 504 retaliation, Lonnie Nixon
must establish that (1) he was engaged in a protected activity, (2) he suffered an
adverse action and (3) the adverse action was taken because of the protected
activity. Penny v. United Parcel Service, 128 F.3d 408,417 (6 th Cir. 1997).2
If he successfully presents a prima facie case of retaliation, the burden shifts
Penny addresses retaliation under the Americans with
Disabilities Act. However, the Sixth Circuit has held that "because the
purpose, scope and governing standards of the acts are largely the same,
cases construing one statute are instructive in construing the other." Doe
v. Woodford County Board ofEducation, 213 F.3d 921. 925 (6th Cir.
2000). The Kentucky Civil Rights also uses the ADA / Section 504
analysis. Brohm, 149 F.3d at 51 7.
2
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to the Defendants to show by a preponderance of the evidence that there was a
legitimate, non-discriminatory
reason for the adverse employment action. Boger v. Wayne County, 950 F.2d 316,
322 (6th Cir. 1991). The burden then shifts back to the Plaintiffs to establish that
Defendants' proffered reason for the adverse employment action was merely
pretextual. See Abbott v. Crown Motor Co., Inc., 348 F.3d 537 (6 th Cir. 2003).
In this case, Lonnie Nixon claims that was not hired for the 2010-2011
school year in retaliation for his advocacy for Audrie.
Defendants argue that he was not re-hired because the family had decided to
move. Plaintiffs urge that Lonnie Nixon's complaints regarding the 504 Plan
motivated the Defendants to terminate his emplOYment. Defendants insist they
were not and the adverse employment action would have been taken irrespective
the disagreements concerning the 504 Plan.
This is a classic "he said - he said" scenario, which is to be resolved by a
jury, not by a Court by way of summary judgment.
11.
Intentional infliction of emotional distress
Lonnie Nixon's claim of emotional distress alleged in Count VI, however,
does not require resolution by a jury. The plaintiffs burden of establishing a
prima facie case of intentional infliction of emotional distress ("lIED")
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IS
extremely difficult. Kentucky courts have instructed that, in order for a plaintiff to
recover for the intentional infliction of emotional distress, a plaintiff must show
that: "(1) the wrongdoer's conduct was intentional or reckless, (2) the wrongdoer's
conduct was outrageous and intolerable, (3) there is a causal connection between
the conduct and the emotional distress, and (4) the emotional distress suffered is
severe." Benningfieldv. Pettit Envtl., Inc., 183 S.W.3d 567,572 (Ky. Ct. App.
2005) (citation omitted).
"[N]ot every upset plaintiff can recover for emotional distress," however.
First and Farmer's Bank a/Somerset, Inc. v. Henderson, 763 S.W.2d 137, 143
(Ky. Ct. App. 1988).
Rather, Kentucky courts have looked to the commentary to section 46 of the
Restatement (Second) a/Torts for guidance in defining the type of acts that will
justify tort recovery. That commentary provides:
The cases thus far decided have found
liability only where the defendant's conduct
has been extreme and outrageous. It has not
been enough that the defendant has acted
with an intent which is tortious or even
criminal, or that he has intended to inflict
emotional distress, or even that his conduct
has been characterized by "malice," or a
degree of aggravation which would entitle
the plaintiff to punitive damages for another tort.
Liability has been extreme in degree, as to
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go beyond all bounds of decency, and to be
regarded as atrocious, and utterly intolerable
in a civilized community. Generally, the case
is one in which the recitation of the facts to
an average member of the community would
arouse his resentment against the actor, and lead
him to exclaim, "Outrageous!"
Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781,789 (Ky. 2004) (citing
Restatement (Second) a/Torts § 46(1) cmt. d (1965)).
Kentucky courts have allowed recovery for intentional infliction of
emotional distress in instances in which a defendant:
( 1) harassed the plaintiff "by keeping her under surveillance at
work and home, telling her over the CB radio that he would put
her husband in jail and driving so as to force her vehicle into an
opposing lane of traffic"; (2) intentionally failed to warn the
plaintiff for a period of five months that defendant's building,
in which plaintiff was engaged in the removal of pipes and
ducts, contained asbestos; (3) engaged in "a plan of attempted
fraud, deceit, slander, and interference with contractual rights,
all carefully orchestrated in an attempt to bring [plaintiff] to his
knees"; (4) committed same-sex sexual harassment in the form
of "frequent incidents of lewd name calling coupled with
multiple unsolicited and unwanted requests for homosexual
sex"; (5) was a Catholic priest who "used his relationship [as
marriage counselor for] the [plaintiff] husband and the wife to
obtain a sexual affair with the wife"; (6) agreed to care for
plaintiffs long-time companion animals, two registered
Appaloosa horses, and then immediately sold them for
slaughter; and (7) subjected plaintiff to nearly daily racial
indignities for approximately seven years.
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Stringer, 152 S.W.2d at 789-790 (footnotes and citations omitted). Under this
strict standard, "[m]ere termination clearly does not rise to the level of outrageous
conduct required to support an lIED claim." Benningfield, 183 S.W.3d at 572.
Nor does actions which are immature, petty, and destructive of an efficient
working environment. Stringer, 152 S.W.2d at 789-790
Indeed, as this court has held in a case seeking recovery under similar Ohio
tort law, "an employee's termination, even if based upon discrimination, does not
rise to the level of
'extreme and outrageous conduct' without proof of something more." Godfredson
v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999).
In this case, nothing in the record, as a matter of law, comes close to
approaching the level of outrageous behavior necessary to support a claim for
intentional infliction of emotional distress under established Kentucky law.
Indeed, Plaintiffs do not specifically address this claim in response to Defendants'
dispositive motion. The Court finds that Lonnie Nixon's claim for intentional
infliction of emotional distress fails as a matter of law.
D.
Wendy Nixon's claims are barred by the statute of limitations.
In Counts II and VI of the Complaint, Wendy Nixon alleges retaliation for
her efforts to protect Audrie's rights under the 504 Plan and intentional infliction
16
of emotional distress at the hands of the Defendants [Docket No.1, ~35 and 57].
The statute of limitations for an action alleging a violation of civil rights,
under either federal or Kentucky law, is one year. KRS § 413.140(1)(1) and Dixon
v. Clem, 492 F.3d 665,671 (6 th Cir. 2007).
Wendy Nixon was advised of her non-renewal on May 5, 2009. Plaintiffs
filed this lawsuit over one year later, on July 7, 2010. Therefore, Wendy Nixon's
claim falls outside the statute of limitations.
Plaintiffs maintain that the critical date is the first day of the 2009-2010
school year, which was August 10, 2009. They contend that until the first day of
school, Wendy Nixon reasonably believed she could be re-hired. Therefore,
Plaintiffs argue that the statute did not begin to run until August 10, 2009 and that
her claim did not accrue until August 10, 2010.
The Court finds that the date of termination, the critical date is May 5,
2009. Plaintiffs belief that her termination as not final does not affect the
analysis. As such, Wendy Nixon's claims are untimely.
E.
Defendants Hughes and Kouns Are Entitled to Immunity In Their
Individual Capacities.
"Government officials who perform discretionary functions are generally
protected from liability for civil damages as long as their conduct does not violate
17
'clearly established statutory or constitutional rights of which a reasonable person
would have known.' " Holzemer v. City o/Memphis, 621 F.3d 512,518-9 (6th
Cir.20 10). The inquiry outlined by the Sixth Circuit requires that the Court
determine, "whether, based upon the applicable law, the facts viewed in the light
most favorable to the plaintiff show that a constitutional violation has occurred."
Holzemer, 621 F.3d at 519. In this case the individual named Defendants have not
violated the Constitution and are, thus, entitled to immunity.
F.
The Greenup County School District is Not Entitled To
Immunity.
Under Kentucky law, a board of education is an agency of state government
and is cloaked with governmental immunity; thus, it can only be sued in a judicial
court for damages caused by its tortious performance of a proprietary function, but
not its tortious performance of a governmental function, unless the General
Assembly has waived its immunity by statute. Yanero v. Davis, 65 S.W.3d 510,
526-527 (Ky. 20010. The record indicates that the District did not perform or fail
to perform any act or function in any manner that could be construed as negligent.
Negligence is a question of fact.
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V.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED:
(1) Defendants' Motion for Summary Judgment as it pertains to Count lof
the Complaint are OVERRULED;
(2) Defendants' Motion for Summary Judgment is SUSTAINED as to the
remaining claims alleged and
(3) Defendants' Motion for Summary Judgment is SUSTAINED as it
pertains to Defendant Randy Houghs in his Individual Capacity and Defendant
Thomas J. Kouns in his Individual Capacity.
This is an INTERLOCUTORY and NON- APPEALABLE ORDER.
This 12th day of September, 2012.
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