Tinch v. Jefferson County Public School System et al

Filing 107

MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 4/18/2016 - Defendants' Motion for Summary Judgment 91 is GRANTED. The Clerk of Court shall STRIKE Defendant Joshua Tinch's Sur-Reply 106 from the record. A separate judgment will issue this date. cc: Counsel(DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
JOSHUA TINCH,

Plaintiff,

v.

Civil Action No. 3:12-cv-844-DJH

JEFFERSON COUNTY PUBLIC SCHOOL
SYSTEM, et al.,

Defendants.

* * * * *
MEMORANDUM OPINION AND ORDER
The Jefferson County Board of Education fired Joshua Tinch from his job as a high
school instructor after he was accused of inappropriate contact with a student. Tinch then
sued JCBE and several individuals who played a part in his firing. He alleges that JCBE
failed to provide him adequate due process. He also asserts claims of defamation. The
defendants have moved for summary judgment.

(Docket No. 91)

Because the Court

concludes that Tinch received adequate due process, and because the defendants enjoy
governmental and qualified state immunity against his defamation claims, the defendants’
motion for summary judgment will be granted.
I.

BACKGROUND

The Jefferson County Board of Education hired Tinch on August 15, 2011, to work at
Iroquois High School as an “Instructor III.” (D.N. 91-1, PageID # 789) Two weeks later,
Defendant Chris Perkins, the school’s principal, suspended Tinch indefinitely. (Id., PageID
# 790-91) Perkins based the suspension on a handwritten statement prepared by a minor
student, R.D., alleging that she and Tinch had inappropriate contact. (Id.) Immediately after
receiving the note, Perkins called Tinch into his office, told him about the allegations, and

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suspended him without pay pending the outcome of a personnel investigation. (D.N. 100,
PageID # 972)
Defendant Mike Mulhall, who works as an investigator for JCBE, conducted the
investigation. On September 22, 2011, Tinch and his counsel met with Mulhall so that Tinch
could present his side of the story. (Id.; D.N. 91-1, PageID # 792) Mulhall showed Tinch and
his counsel a photo of R.D. and 35 pictures of text messages between Tinch and R.D. (D.N.
100, PageID # 973) Tinch acknowledged some of the text messages but denied knowingly
sending inappropriate or sexual text messages to R.D.; Tinch claimed that he thought Katie
Colvin, “a fling friend,” sent the text messages deemed to be of a sexual nature. (D.N. 91-1,
PageID # 793) At the meeting, Tinch also provided Mulhall with a written statement. (Id.) A
few days later, Tinch’s counsel sent Mulhall a detailed copy of Tinch’s cell phone records.
(Id.) Mulhall concluded that Tinch had thirteen outgoing calls to R.D., and that he had sent
102 text messages, as well as one picture video text, to R.D. (Id., PageID # 794; D.N. 91-7,
PageID # 868)
Mulhall interviewed R.D. on November 6, 2011. She not only confirmed Mulhall’s
findings regarding her text communications with Tinch, but she also alleged that she and
Tinch had sexual contact.1 (D.N. 91-1, PageID # 795) After hearing R.D.’s allegations,
Mulhall concluded that there was substantial evidence to support the finding that Tinch had
inappropriate contact with R.D. (Id., PageID # 798) He communicated his findings and
submitted Tinch’s written statement to JCBE’s Director of Human Resources. (Id.; D.N. 917, PageID # 875)

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Apparently, local authorities later found R.D.’s claim of sexual contact to be
unsubstantiated. (D.N. 100-9, PageID # 1038-39)
2

After reviewing the results of Mulhall’s investigation, Principal Perkins sent Tinch an
“intent-to-discharge” notice on November 20, 2011. (D.N. 91-1, PageID # 798) Around this
time, Lauren Roberts, JCBE’s Public Information Officer, released Mulhall’s report in
response to a request under Kentucky’s freedom of information law, the Open Records Act,
Ky. Rev. Stat. Ann. § 61.870 et seq. (D.N. 84, PageID # 772) Roberts believed that the
notification to Tinch was a “final action,” and once Perkins confirmed that he had sent the
notice, she released the record. (Id., PageID # 773) She also discussed the investigation on
television with a news reporter at least once. (Id.)
The decision to terminate Tinch was reported to JCBE at its regular meeting on
January 9, 2012. (D.N. 91-1, PageID # 798) On March 19, 2012, JCBE Superintendent
Donna Hargens sent Tinch a letter explaining the basis for his termination. (Id.) The letter
included a copy of JCBE’s “Communication Procedures for Employees Exempt from
Representation.”2 (Id.) In accordance with those procedures, Tinch elected to have a posttermination hearing. (Id., PageID # 799)
At the hearing—which was before JCBE Labor Management and Employee Relations
Director Rob Tanner, also a defendant—Tinch and his counsel were afforded the opportunity
to present any evidence refuting Mulhall’s report. (Id.) Tinch presented two affidavits: one
from Katie Colvin and another from Jeremy Walls, Colvin’s boss. (Id., PageID # 800)
Colvin’s affidavit discussed her relationship with Tinch. (Id.) Walls’s affidavit simply

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The purpose of this procedure is to “provide employees classified as exempt from
representation by a recognized employee organization an opportunity to formally bring to the
attention of appropriate administrative staff their concerns/complaints regarding the effect on
them of the application of a policy, procedure, or rule.” (D.N. 91-15, PageID # 940) In other
words, Tinch had the right to challenge his firing in a post-termination hearing.
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discussed Colvin’s employment, which was an inconsequential point of contention.3 Tinch
did not call any witnesses. (Id.) After hearing the evidence presented, Tanner concluded that
Tinch’s termination was appropriate. (Id.)
Tinch sued JCBE4, Principal Perkins, Investigator Mulhall, Superintendent Hargens,
and Director Tanner in state court. (D.N. 35) Tinch claimed that the defendants violated his
due process rights by terminating him and by publicly announcing “the allegations against
[him] and his purported discharge.” (D.N. 1-1, PageID # 14; D.N. 35) The defendants
removed the case to this Court (D.N. 1), and now move for summary judgment. (D.N. 91)
II.

STANDARD

The Court may only grant a motion for summary judgment if “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 must identify the basis for its motion and the parts of
the record that demonstrate an absence of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies this burden, the non-moving
party must point to specific facts demonstrating a genuine issue of fact for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The Court must view the evidence in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Still, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the

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When Tinch initially mentioned Colvin to Mulhall during the September meeting, Mulhall
went to find Colvin, but could not. (D.N. 91-1, PageID # 793 n.7) However, Walls’s
affidavit states that she did work where Tinch said she did.
4
Tinch’s original complaint was against “Jefferson County Public School System,” by and
through the Jefferson County Board of Education. (D.N. 1-1) In Tinch’s amended complaint,
however, he correctly identified the defendant as Jefferson County Board of Education. (D.N.
35)
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material facts.” Id. The non-moving party must present specific facts demonstrating that a
genuine issue of fact exists by “citing to particular parts of materials in the record” or by
“showing that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.
R. Civ. P. 56(c)(1). Moreover, the non-moving party must establish a genuine issue of
material fact with respect to each element of each of his claims. Celotex, 477 U.S. at 322-23.
The mere existence of a scintilla of evidence in support of the non-moving party’s position
will be insufficient; instead, the non-moving party must present evidence upon which the jury
could reasonably find for him. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996) (citing
Anderson, 477 U.S. at 252).
III.

DISCUSSION

A. Due Process
The defendants gave Tinch adequate notice and an opportunity to be heard prior to his
termination. “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.
Central Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950)). Tinch had a one-year contract
with JCBE to work at Iroquois High School, and the parties do not dispute that this was a
valid property interest. (D.N. 91-1, PageID # 803); see Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972). Principal Perkins provided the requisite notice to Tinch when he
called Tinch into his office to explain Tinch’s indefinite suspension due to an allegation of
inappropriate contact with a student. (D.N. 91-1, PageID # 790) Without citing any support,
Tinch contends that this notice was inadequate because he deserved a more robust explanation
and to know the extent of the evidence against him. (D.N. 100, PageID # 973) But he was

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only entitled to “oral or written notice of the charges against him.” Loudermill, 470 U.S. at
546. The notice Principal Perkins provided was sufficient.
Thereafter, Tinch was entitled to, and indeed received, an opportunity to be heard. In
Loudermill, the Supreme Court found that a pretermination hearing need not be elaborate.
470 U.S. at 545. “The opportunity to present reasons, either in person or in writing, why
proposed action should not be taken” is all that is necessary. Id. at 546 (emphasis added).
Tinch received an opportunity to meet in person with Investigator Mulhall and explain his
side of the story. (D.N. 91-1, PageID # 792) Tinch also presented a written statement to
Mullhall. (Id.) At the interview, Mulhall summarized and showed Tinch the evidence against
him. (Id.) Though Mulhall did, as Tinch contends, go on to collect more evidence that Tinch
did not review prior to his termination, the evidence he collected was merely corroborative:
The text messages that insinuated a sexual encounter between Tinch and R.D. were discussed
and Mulhall heard Tinch’s explanation. (Id., PageID # 793) Mulhall then communicated his
findings and submitted Tinch’s written statement to JCBE’s Director of Human Resources.
(D.N. 91-1, PageID # 798; D.N. 91-7, PageID # 875)

Thus, Tinch received adequate

pretermination due process.
Further, though Tinch’s pretermination due process was adequate under the Fourteenth
Amendment, Tinch also received a post-termination hearing. This procedure is significant
because “[d]epending on the circumstances, a pre-termination hearing, although necessary,
may not need to be elaborate, as long as the plaintiff is entitled to a full hearing with the
possibility of judicial review at the post-termination stage.” Brickner v. Voinovich, 977 F.2d
235, 237 (6th Cir. 1992). “Post-termination hearings . . . ‘serve to ferret out bias, pretext,
deception and corruption by the employer in discharging the employee.’”

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Mitchell v.

Fankhauser, 375 F.3d 477, 480 (6th Cir. 2004) (quoting Duchesne v. Williams, 849 F.2d
1004, 1008 (6th Cir. 1988)). To meet minimal standards, a post-termination hearing must
permit attendance by the terminated employee with assistance of counsel, the ability to call
witnesses and produce evidence on his behalf, and the opportunity to “challenge the evidence
against him.” Carter v. W. Reserve Psychiatric Habilitation Ctr., 767 F.2d 270 (6th Cir.1985)
(per curiam); see Mitchell v. Fankhauser, 375 F.3d 477, 480-81 (6th Cir. 2004). Tinch
received a full post-termination hearing: He attended the hearing with counsel; he had the
opportunity to present evidence and witnesses; and he was given the opportunity to challenge
the evidence against him. (D.N. 91-1, PageID # 799-800) Though unnecessary to satisfy the
Loudermill standard, JCBE afforded Tinch a post-termination hearing, which bolstered his
protection against a Fourteenth Amendment violation.
Tinch contends that the defendants did not give him the opportunity to present his case
in front of an impartial and disinterested tribunal. (D.N. 100, PageID # 975) To satisfy due
process, “both the appearance and reality of fairness” are necessary. Marshall v. Jerrico, 446
U.S. 238, 242 (1980); see Yashon v. Hunt, 825 F.2d 1016, 1027 (6th Cir. 1987) (applying
Marshall in the employment context and finding no due process violation).

JCBE’s

procedures pass this test. Perkins put Tinch on notice of the allegations against him; JCBE
investigated the allegations; Tinch presented his side both orally and in writing prior to his
termination; and JCBE also provided Tinch with a post-termination hearing, which afforded
him a final opportunity to present his side of the case. (D.N. 91-1, PageID # 791-800)
Principal Perkins, Investigator Mulhall, Superintendent Hargens, and Director Tanner
concluded that termination was appropriate. (Id.) The JCBE process utilized here satisfies

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the Marshall requirements of “both the appearance and reality of fairness.” See 446 U.S. at
242. The Court therefore grants summary judgment as to Tinch’s due process claim.
B. Defamation
Tinch contends that his defamation claim arises out of the Fourteenth Amendment to
the U.S. Constitution. (D.N. 100, PageID # 977) If so, then Tinch argues that granting
governmental immunity under Kentucky law to JCBE for his defamation claim violates the
Supremacy Clause. (Id.) But even if Tinch’s defamation claim arises from the Fourteenth
Amendment and warrants protection under the Due Process Clause, as Tinch contends it does,
JCBE afforded him adequate due process, as discussed above. See supra Part III.A.; (D.N.
100, PageID # 970 (citing Paul v. Davis, 424 U.S. 693, 708 (1976) (“Where a person’s good
name, reputation, honor, or integrity is at stake because of what the government is doing to
him, notice and an opportunity to be heard are essential.” (quoting Wis. v. Constantineau, 400
U.S. 433, 437 (1971)))) And even though Tinch is correct that the alleged defamatory act
occurred prior to the post-termination hearing, the pretermination due process Tinch received
was sufficient under Loudermill. 470 U.S. at 545. This leaves only a defamation claim based
upon state law.
To the extent that Tinch alleges a state defamation claim, as opposed to a Fourteenth
Amendment defamation claim—his complaint is unclear—JCBE correctly contends that it is
immune. (See D.N. 35) Kentucky law recognizes governmental immunity for local boards of
education. Yanero v. Davis, 65 S.W.3d 510, 526-27 (Ky. 2001). Local boards are entitled to
governmental immunity if the action subject to tort liability is performance of a governmental
function—i.e., carrying out a function integral to state government, as opposed to a

8

proprietary function.5 Id. at 520, 527. Earlier in this case, the late Senior Judge John G.
Heyburn II found that JCBE employee Roberts released Mulhall’s report to media
organizations pursuant to a Kentucky Open Records Act request. (D.N. 84, PageID # 773);
see Ky. Rev. Stat. Ann. § 61.870 et seq. JCBE is required under Kentucky law to respond to
such requests. Id. Responding to open records requests is a government function, and
consequently, JCBE is immune from Tinch’s state-law defamation claims.

Summary

judgment will therefore be granted as to as to Tinch’s Kentucky law defamation claims
against JCBE.
The four remaining individual defendants are also immune. A state employee is
entitled to qualified immunity against damages when the act subject to tort liability is
discretionary in nature, as opposed to ministerial in nature. Haney v. Monsky, 311 S.W.3d
235, 240 (Ky. 2010). Discretionary acts can be “performed in one or two or more [lawful]
ways” and involve “the exercise of discretion and judgment, or personal deliberation,
decision, and judgment.” Haney, 311 S.W.3d at 240; See also Yanero, 65 S.W.3d at 522.
Conversely, ministerial acts are acts that “require ‘only obedience to the orders of others, or
when the officer’s duty is absolute, certain, and imperative, involving merely execution of a
specific act arising from fixed and designated facts.” Haney, 311 S.W.3d at 240 (quoting
Yanero, 65 S.W.3d at 522). Because “few acts are purely discretionary or purely ministerial,”
the Court looks for “the dominant nature of the act.” Id. (emphasis in original).

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“[G]overnmental immunity is the public policy, derived from the traditional doctrine of
sovereign immunity, that limits imposition of tort liability on a government agency.” Yanero,
65 S.W.3d at 519 (quoting 57 Am. Jur. 2d Municipal, County, School and State Tort Liability
§ 10 (2001)). It is distinguishable from official immunity, or state qualified immunity, which
protects “a government official in making decisions involving the exercise of discretion.” Id.
at 521.
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Tinch argues that Perkins did not act with discretion in suspending and terminating
him; that Mulhall did not act with discretion in investigating him; that Hargens did not act
with discretion in determining Tinch’s termination was merited; and that Tanner did not act
with discretion in conducting the post-termination hearing and upholding his termination.
(D.N. 100, PageID # 981-84) He focuses on the fact that these individuals were performing
their job functions and, in doing so, were considering guidelines found in written policies or
advice from others. (Id.) His arguments, however, are meritless.
How Principal Perkins decided to act when R.D. accused Tinch of misconduct was
discretionary. See Marson v. Thomason, 438 S.W.3d 292, 299 (Ky. 2014) (“looking out for
children’s safety is a discretionary function for a principal, exercised most often by
establishing and implementing safety policies and procedures.”).
Mulhall

utilized

discretion

when

conducting

his

Likewise, Investigator

investigation

and

writing

recommendation; the process involved deliberation and the exercise of judgment.

his
See

Yanero, 65 S.W.3d at 522. How Superintendent Hargens decided to act once she received the
necessary information also involved deliberation and judgment. See id. And Director Tanner,
who presided over the post-termination hearing, engaged in an easily recognizable
deliberative process. See Haney, 311 S.W.3d at 240. Therefore, each individual defendant is
entitled to state qualified immunity, and summary judgment will be granted as to Tinch’s
remaining state law claims.
C. Tinch’s Sur-Reply
Magistrate Judge Colin H. Lindsay entered an order giving Tinch “up to and including
February 19, 2016” to file a Sur-Reply to the defendants’ motion for summary judgment.
(D.N. 104) Tinch failed to comply with that order by filing a Sur-Reply out of time, on

10

March 24, 2016. (D.N. 106) He also failed to request a further extension of the deadline.
Accordingly, the Court will strike Tinch’s Sur-Reply as untimely.
IV.

CONCLUSION

The defendants afforded Tinch adequate due process prior to terminating his
employment for inappropriate contact with a student. Moreover, the defendants are entitled to
governmental and qualified immunity against any remaining state-law claims Tinch asserts.
Accordingly, and the Court being otherwise sufficiently advised, it is hereby
ORDERED as follows:
(1)

Defendants’ Motion for Summary Judgment (D.N. 91) is GRANTED.

(2)

The Clerk of Court shall STRIKE Defendant Joshua Tinch’s Sur-Reply (D.N.

106) from the record.
(3)

A separate judgment will issue this date.

April 18, 2016

David J. Hale, Judge
United States District Court

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