Pacheco v. Waldrop et al

Filing 19

MEMORANDUM OPINION & ORDER denying 3 Motion for TRO. Signed by Senior Judge Thomas B. Russell on 6/10/2013. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:13-CV-00044-TBR
SHAWNDA PACHECO

Plaintiff

v.
NANCY WALDROP,
individually and in her official capacity as Superintendent of the
McCracken County School System,
and
VICTOR ZIMMERMAN,
individually and in his official capacity as Principal of Reidland
High School

Defendants

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Plaintiff Shawnda Pacheco’s Motion for
Temporary Restraining Order.

(Docket No. 3.)

Defendants Nancy Waldrop,

individually and in her official capacity as superintendent of the McCracken County
School System, and Victor Zimmerman, individually and in his official capacity as
principal of Reidland High School, have responded in opposition, (Docket No. 11), and
Pacheco has replied, (Docket No. 15.) This matter is now ripe for adjudication. For the
reasons that follow, Pacheco’s Motion will be DENIED.
BACKGROUND
This litigation arises out of the termination of Plaintiff Shawnda Pacheco from
her teaching position at Reidland High School (RHS). Pacheco filed this action on
March 21, 2013, pursuant to 42 U.S.C. § 1983 and the Kentucky Whistleblower Act,

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Ky. Rev. Stat. § 61.102 et seq. (See Docket No. 1.) Pacheco alleges that she was
wrongfully terminated by Defendant Nancy Waldrop in violation of her First
Amendment Right to Free Speech. Pacheco also alleges that Waldrop and Defendant
Victor Zimmerman together violated the Kentucky Whistleblower Act by terminating
her employment because of certain statements she made. 1
Waldrop is the superintendent of the McCracken County School District
(District). At the time of Pacheco’s termination, the District was comprised of six
elementary schools, three middle schools, and three high schools, among which was
RHS.

RHS serves students from Reidland Middle School, which is physically

connected to RHS. Zimmerman was, at the time of Pacheco’s termination, the principal
of RHS. Pacheco taught Spanish at RHS for some ten years prior to her termination on
January 18, 2013.

RHS had approximately 450 students and, in addition to

Zimmerman, had an assistant principal, Jodi Butler, and a District resource officer,
Bruce Watson.
Although the parties’ specific accounts vary, sometime early in the week of
December 10, 2012, Taylor Ballard, another RHS teacher, reported to Watson that two
female students in one of his classes had overheard two male students in that same class
talking about a bomb and possessing some sort of a map or drawing showing where the
bomb might be placed. Watson took the two male students to Principal Zimmerman’s
office, where Zimmerman had each separately write a statement about what had

1

Pacheco’s instant Motion is premised on the alleged violation of her First Amendment Rights, not
her claim brought under the Kentucky Whistleblower Act. As such, the Court will limit its discussion
here to Pacheco’s First Amendment claim.

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occurred in Ballard’s class. The two students wrote similar statements describing a
videogame they had played and explained that they had modeled a location they created
in that game on the floor plan of RHS. Watson researched the videogame and reported
to Zimmerman that the videogame did involve building locations where battles could
then take place. Zimmerman and Watson also interviewed the two female students who
had initially reported the matter to Ballard. By the end of that school day, Zimmerman
and Watson were satisfied that there was no imminent threat or plan to harm the school
or its students, concluding that the two male students had, in fact, been discussing a
videogame and that their overheard conversation had been misinterpreted. Zimmerman
thereafter informed Butler of the situation and together they contacted the parents of the
students who had been investigated as well as the students who had made the report.
Zimmerman then relayed the incident to Larry Zacharetti, the District’s safety
director, and Russ Tilford, the District’s director of student personnel. Zimmerman
called Waldrop and left a message about the incident, and Tilford conveyed
Zimmerman’s conclusions to Waldrop. Tilford agreed with Zimmerman that the two
male students had not violated any code of conduct and that no disciplinary action was
warranted. Based on the information she received, Waldrop understood that two male
students had been overheard discussing bombs and a map of RHS, which had been
investigated as a perceived threat. It was Waldrop’s understanding that the matter had
been investigated and determined not to involve an actual threat but merely a
misinterpreted discussion of a videogame. Waldrop considered the matter closed, and
no disciplinary action was taken against either of the investigated students.

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One of the two male students, whom the parties refer to as “Student 1,” was
absent the day after the investigated incident but was in attendance later that week on
Friday, December 14, 2012. Notably, December 14 was also the day of the elementary
school shooting in Newtown, Connecticut.

That morning, Zimmerman observed

Pacheco talking to another teacher, Michael Wood, in the hallway.

Wood told

Zimmerman that he had seen a student, whose name Wood did not know, carrying a
large bag with something dangerous in it. Zimmerman subsequently saw Student 1
carrying an oversized bag and, due to Wood’s concern, asked Student 1 to come to his
office. Student 1 allowed Zimmerman to search the bag, and Zimmerman determined
that the bag contained only school-related items and nothing dangerous.
Later that day, Pacheco met with another RHS student, whom the parties refer to
as “Student 2,” and asked him to write a letter to the Paducah Sun newspaper telling the
newspaper that a student who had twice brought weapons to school had been overheard
talking about plotting a bomb attack at RHS and had prepared a map of the school
relative to that plot. Pacheco dictated the letter to Student 2 as he typed it on a RHS
laptop computer and then printed the letter on a printer in RHS’s library. Pacheco then
asked Student 2 to sign his name to the letter. Pacheco says she asked Student 2 to sign
the letter using his name and phone number because she was “hoping to personally
avoid the wrath of Waldrop.” (Docket No. 3-1, at 8.) Pacheco mailed the letter to the
Paducah Sun the next day, Saturday, December 15. That letter stated, in its entirety:
Dear sir,
As a student at Reidland High School, I see fights dealt with
promptly, tobacco abuse punished according to school regulations,
and even profanity is dealt with promptly. But we have a student,
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someone who sits in class with us, who has brought weapons twice
and most recently plotted a map of bomb and gun attack sites
around the school area. The student has yet to be punished for
anything. Is it that Doctor Waldrop, the Superintendent, is afraid to
enforce school rules? Is he being protected because of some
minority status? Although he’s not a minority. Is he special ed?
Regardless the rest of us sit in class with him knowing he’s
dangerous. What would you do Mr. Editor?
(Docket No. 1-1.)
The letter reached the Paducah Sun on Monday, December 17. That evening,
Waldrop was contacted by Zacharetti, who informed her that the McCracken County
Sheriff’s office had been contacted by the Paducah Sun after having received a letter
containing a serious threat regarding RHS. Later that evening, Waldrop met with
Zacharetti, several law enforcement representatives, the attorney for the District, and the
Commonwealth Attorney. The Paducah Sun had released the content of the letter to law
enforcement but initially refused to release the name and contact information for the
letter’s author. The sheriff’s department informed Waldrop that without the author’s
name, they were unable to conduct a complete investigation of the threat referenced in
the letter. Based on Waldrop’s meeting with law enforcement, the decision was made to
close RHS the following day, December 18. Because it is physically connected to RHS,
Reidland Middle School was also closed December 18.
Law enforcement conducted a search for weapons at RHS while the school was
closed on December 18 and ultimately determined the building to be safe. Also on
December 18, law enforcement obtained the name of the letter’s author.

After

completing their investigation, law enforcement met with Zimmerman that evening and

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advised him that there was no threat and that the letter related to the videogame incident
the week before.

Also during that meeting, Captain Matt Carter of the sheriff’s

department informed Zimmerman that the letter had been written by Student 2 at
Pacheco’s direction and that Pacheco had subsequently mailed the letter.
RHS and Reidland Middle School resumed classes the next day, December 19.
December 18 and 19 were originally scheduled for final exams, with the holiday break
beginning on December 20. Due to the closure, final exams scheduled for December 18
were administered when the school resumed classes in January, and RHS and Reidland
Middle School held a makeup day on Presidents’ Day, February 18. (Other District
schools did not hold classes on Presidents’ Day.) When classes resumed on December
19, Zimmerman distributed to the RHS staff a copy of the letter to the editor and a press
release from the McCracken County Sheriff’s office regarding the incident.
Zimmerman also read that information over the intercom to address the students’ and
faculty’s concerns.

Jon Hedges, the teacher whose class Student 1 was in when

Zimmerman read that information, reported to Zimmerman that other students were
looking at Student 1 and talking about him. Hedges was reportedly concerned about
Student 1 being bullied and asked Zimmerman how he should respond.
Waldrop thereafter asked the assistant superintendent, Johnna DeJarnett, to
investigate the circumstances surrounding the letter. DeJarnett arranged for interviews
of RHS personnel, and Zimmerman arranged for an interview of Student 2, the student
who had signed the letter to the editor. During his interview, Student 2 reported being
asked by Pacheco to write the letter to the editor. Student 2 indicated he did not know

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who the student was that Pacheco was concerned about and had not heard rumors about
bombs or a map of the school. Student 2 told Zimmerman that he felt he should write
the letter for Pacheco because Pacheco was a teacher whom he respected. Prior to the
District taking any disciplinary action against Pacheco, Waldrop also conducted her own
interview of Pacheco. Based on that interview, Waldrop made a number of findings,
which are detailed in her affidavit, (see Docket No. 11-1, at ¶ 14), and ultimately
decided to terminate Pacheco on the bases of insubordination and conduct unbecoming
a teacher.

Regarding the latter, Waldrop found that Pacheco’s conduct violated a

number of school board policies and Kentucky statutes and regulations, including:
•

•

•

•

16 Ky. Admin. Reg. 1:020, which provides, with respect to
students, that school personnel have the obligation to “take
reasonable measures to protect the health, safety, and emotional
well-being of students”; “not use professional relationships or
authority with students for personal advantage”; “keep in
confidence information about students which has been obtained in
the course of professional service, unless disclosure serves
professional purposes or is required by law”; “not knowingly make
false or malicious statements about students or colleagues”; and
“refrain from subjecting students to embarrassment or
disparagement.”
Ky. Rev. Stat. § 160.720, which provides, with certain exceptions,
that it is impermissible to release or disclose records, reports or
identifiable information on students to third parties.
Board Policy 03.1325, which provides that any employee engaging
in behavior which disrupts the educational process (defined to
include conduct “that disrupts delivery of instructional services or
interferes with the orderly administration of the school and schoolrelated activities or District operations”) may be subject to
disciplinary action, including termination of contract.
Board Policy 08.2323, which requires that employees use
electronic mail and other District technology resources “for
purposes directly related to work-related activities” and provides

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•

•

•

that violations subject personnel to disciplinary action, up to and
including termination.
Board Policy 03.14, which requires employees to “report any
conditions they believe to be unsafe to their immediate supervisor.”
Board Policy 03.133, which specifies that employees are expected
to use sound judgment in the performance of their duties and to
take reasonable measures to protect the health, safety, and wellbeing of others, as well as District property.
Pacheco’s acknowledged obligation to immediately report any
threat or warning signs to supervisors, law enforcement or 911.

(Docket No. 11-1, at ¶ 16.)
By letter of January 18, 2013, Waldrop terminated Pacheco and explained the
reasons for her termination. (See Docket No. 1-2.) Pacheco initially exercised her
right, pursuant to Ky. Rev. Stat. § 161.790, to appeal her termination. A tribunal hearing
was scheduled for February 28, 2013 before a three-member panel appointed by the
Kentucky Department of Education, and a prehearing conference was scheduled for
February 6. Prior to that prehearing conference, Pacheco filed suit in this Court against
Waldrop and Zimmerman asserting a claim under § 1983 and also alleging that Waldrop
and Zimmerman conspired to deprive her of due process of law. See Pacheco v.
Waldrop et al., No. 5:13-CV-00016-TBR, Docket No. 1. Then on February 8, Pacheco
moved to dismiss that lawsuit without prejudice, id., Docket No. 9, and the Court
granted her motion that same day. Id., Docket No. 10. On February 15, Pacheco
withdrew her request for an administrative hearing to appeal her termination. The
instant action was then filed on March 21, 2013. (See Docket No. 1.)

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STANDARD
Although the instant Motion before the Court is styled as one seeking a
temporary restraining order, the parties agreed to a briefing schedule, (see Docket No.
8), and Defendants have been afforded an opportunity to respond, (see Docket No. 11).
As such, the Court will treat Pacheco’s Motion as one seeking a preliminary injunction.
See Fed. R. Civ. P. 65(a), (b); see also Ky. ex rel. Cabinet for Workforce Dev. Ky. Dep’t
for the Blind v. U.S. ex rel. Panetta, 2012 WL 5289659, at *3 n.6 (W.D. Ky. Oct. 23,
2012) (treating a motion for temporary restraining order as one for a preliminary
injunction where the defendant had been afforded an opportunity to respond).
“A preliminary injunction is an extraordinary remedy which should be granted
only if the movant carries his or her burden of proving that the circumstances clearly
demand it.” Overstreet v. Lexington–Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th
Cir. 2002). Accordingly, “[t]he granting or denial of a preliminary injunction is within
the sound judicial discretion of the trial court.” Mason Cnty. Med. Ass’n v. Knebel, 563
F.2d 256, 260–61 (6th Cir. 1977).
In determining whether to issue a preliminary injunction, the
district court is required to consider four factors: (1) whether the
movant is likely to prevail on the merits; (2) whether the movant
would suffer an irreparable injury if the court does not grant a
preliminary injunction; (3) whether a preliminary injunction would
cause substantial harm to others; and (4) whether a preliminary
injunction would be in the public interest.
Abney v. Amgen, Inc., 443 F.3d 540, 547 (6th Cir. 2006) (quoting Deja Vu of Nashville,
Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001)).
“These factors are not prerequisites that must be met, but are interrelated considerations

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that must be balanced together.” Mich. Coal. of Radioactive Material Users, Inc. v.
Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).
Although no single factor is controlling when determining whether a preliminary
injunction should issue, the likelihood of success on the merits is often the predominant
consideration. See Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir.
2000) (“[A] finding that there is simply no likelihood of success on the merits is usually
fatal.”); Mich. State AFL–CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997) (“[W]hile,
as a general matter, none of [the] four factors are given controlling weight, a
preliminary injunction issued where there is simply no likelihood of success on the
merits must be reversed.”). With respect to this first element—a showing of a strong
likelihood of success on the merits—the Sixth Circuit advises that “the proof required
for the plaintiff to obtain a preliminary injunction is much more stringent than the proof
required to survive a summary judgment motion.” Leary v. Daeschner, 228 F.3d 729,
739 (6th Cir. 2000); accord Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir.
2005) (“As a preliminary injunction is an extraordinary remedy, the right to relief must
be clear and unequivocal.”).
Furthermore, “[d]espite the overall flexibility of the test for preliminary
injunctive relief, and the discretion vested in the district court, equity has traditionally
required such irreparable harm before an interlocutory injunction may be issued.”
Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 103 (6th Cir. 1982). To
establish immediate and irreparable harm there must be an actual, viable, presently
existing threat of serious harm. Cabinet for Workforce Dev., 2012 WL 5289659, at *3

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(citing Mass. Coal. of Citizens with Disabilities v. Civil Def. Agency & Office of
Emergency Preparedness of Mass., 649 F.2d 71, 74 (1st Cir. 1981)). A plaintiff must
show injury that is not remote or speculative, but is actual and imminent. United States
v. W.T. Grant Co., 345 U.S. 629, 633 (1953); Abney, 443 F.3d at 552. The injury must
be of such imminence that there is a clear and immediate need for relief in order to
prevent harm. Evans v. Wilson, 2011 WL 5509543, at *2 (W.D. Ky. Nov. 10, 2011)
(citing Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir.
1985).
DISCUSSION
The Court has closely scrutinized the parties’ respective briefs and the affidavits
submitted with those briefs, and has concluded that a hearing is not necessary to
properly adjudicate the instant Motion before the Court. The Court discussed this issue
with the parties on May 15, 2013, and the parties are in agreement that no additional
evidence need be produced. On May 17, 2013, the Court entered an Order submitting
this matter to the Court for decision. Accordingly, the Court now will proceed to
address whether Pacheco has carried her burden of demonstrating that injunctive relief
is in order.
I.

Whether Pacheco is Likely To Succeed on the Merits
The first factor the Court must consider is Pacheco’s likelihood of success on the

merits of her First Amendment claim. In an action brought under § 1983, a plaintiff
must demonstrate the deprivation of a right secured by the Constitution or laws of the
United States that was caused by a person acting under color of law. See Westmoreland
v. Sutherland, 662 F.3d 714, 718 (6th Cir. 2011) (citing West v. Atkins, 487 U.S. 42, 48
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(1988)). To establish a prima facie case for her First Amendment retaliation claim,
Pacheco must show three things: (1) that she engaged in constitutionally protected
speech, (2) that she suffered an adverse employment action likely to chill a person of
ordinary firmness from continuing to engage in protected speech, and (3) that the
adverse action was motivated at least in part by her protected speech. 2 Dye v. Office of
the Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012) (citing Scarbrough v. Morgan
Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006)), reh’g and reh’g en banc denied,
(6th Cir. Mar. 19, 2013); see also Thaddeus–X v. Blatter, 175 F.3d 378, 399 (6th Cir.
1999) (en banc). If the plaintiff can establish each of these three elements, then the
burden shifts to the defendant to show that “he would have taken the same action in the
absence of the protected activity.” Thaddeus–X, 175 F.3d at 399. However, “[u]nlike in
the McDonnell Douglas burden-shifting framework, the burden does not shift back to a
plaintiff to show pretext in First Amendment retaliation claims.” Dye, 702 F.3d at 295.
The first element of Pacheco’s prima facie First Amendment retaliation claim—
whether she engaged

in

constitutionally protected

2

speech—requires

several

Interestingly, in regard to the third element, there appear to be two parallel approaches to the
standard for First Amendment retaliation claims in this Circuit. One approach frames the third element as
requiring that the adverse action “was motivated at least in part” by the claimant’s protected speech. This
approach was adopted by the Sixth Circuit en banc in Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.
1999) (en banc). And in 2012, this language was used by the Sixth Circuit in at least four decisions. See
Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012); Buchko v. Cnty. of Monroe, No.
10-2476, 2012 WL 5896550, at *4 (6th Cir. Nov. 21, 2012); Handy-Clay v. City of Memphis, Tenn., 695
F.3d 531, 539 (6th Cir. 2012); Akers v. Cnty. of Bell, 498 F. App’x 483, 486 (6th Cir. 2012). A second
approach, which was also used in several decisions last year, frames the third element as requiring that
protected speech be a “substantial or motivating factor” in the employer’s decision to take adverse action
against the employee. See Upton v. City of Royal Oak, 492 F. App’x 492, 498 (6th Cir. 2012); Kiessel v.
Oltersdorf, 459 F. App’x 510, 513 (6th Cir. 2012). This approach appears to be founded on the language
used by the Supreme Court in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977). Finally, at least one decision last year employed both “motivated at least in part by” and
“substantial or motivating factor.” See Webb v. Ky. State Univ., 468 F. App’x 515, 522-23 (6th Cir. 2012).
In practice, there may not be a functional difference between the two; however, for purposes of this
Opinion, the Court will follow the en banc Sixth Circuit’s language in Thaddeus-X, which also seems to
be the prevailing approach.

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considerations. In Garcetti v. Ceballos, the Supreme Court recognized that citizens who
enter government service “must accept certain limitations on [their] freedoms,”
including limitations on the scope of their First Amendment rights. 547 U.S. 410, 418
(2006). Observing that public employees “do not surrender all their First Amendment
rights by reason of their employment,” the Supreme Court held that the interest of a
public employee “in commenting on matters of public concern” must be balanced
against the interest of governmental employers “in promoting the efficiency of the
public services it performs through its employees.” Id. at 417. Thus, for a public
employee’s statements to receive First Amendment protection, the public employee
must (1) speak as a citizen, (2) address matters of public concern, and (3) the
employee’s interest as a citizen in speaking on the matter must outweigh the state’s
interest, as an employer, in “promoting the efficiency of the public services it performs
through its employees.” Handy-Clay, 695 F.3d at 540 (quoting Garcetti, 547 U.S. at
417-18); see also Fox v. Traverse City Area Pub. Schs. Bd. of Educ., 605 F.3d 345, 348
(6th Cir. 2010); Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542 (6th Cir. 2007).
1.

Speaking as a private citizen

In Garcetti, the Supreme Court clarified what it means for a public employee to
speak as a private citizen for purposes of the First Amendment, stating that “when
public employees make statements pursuant to their official duties, the employees are
not speaking as citizens for First Amendment purposes.” 547 U.S. at 421. Thus, “even
employee speech addressing a matter of public concern is not protected if made
pursuant to the employee’s official duties.” Weisbarth, 499 F.3d at 545. The question
whether a statement was spoken as a public employee or as a private citizen for First

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Amendment purposes, according to the Supreme Court, is “a practical one,” which
requires a fact-specific inquiry into the “duties an employee actually is expected to
perform.” Garcetti, 547 U.S. at 424-25. Several factors relevant to this determination
include: (1) the employee’s duties, (2) the impetus for the speech, (3) the setting of the
speech, (4) the speech’s audience, and (5) the subject matter of the speech. See HandyClay, 695 F.3d at 540; Weisbarth, 499 F.3d at 546.
Pacheco insists she was speaking as a private citizen rather than as a part of her
official duties as a teacher at RHS. She reasons that her comments were not made in
her capacity as a teacher pursuant to her official duties and were made to the newspaper
addressing a matter of public concern. She further insists that her comments were
motivated in part by the fact that she had two children who attended RHS for whose
safety she was concerned.
In applying the factors laid out in Handy-Clay, the Court finds, for purposes of
this Opinion, that Pacheco’s speech was made a private citizen. The Court reads the
letter to the editor, in effect, as complaining that no disciplinary action has been taken
against an RHS student despite his having twice brought weapons to school and plotted
a map of bomb and gun attack sites around the school. The letter was addressed to, and
published by, the local newspaper, and the message it conveys is that school officials
have failed to take appropriate action against a student who poses a dangerous threat.
Pacheco’s duties as a teacher, pursuant to express Board Policy, included reporting any
conditions believed to be unsafe to her immediate supervisor, taking reasonable
measures to protect the health and safety of others and of District property. Pacheco
also acknowledged that she had an obligation to report any immediate threats to her

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supervisors or to law enforcement. Thus, to the extent it was Pacheco’s official duty to
report any perceived threat either up the chain of command or to the appropriate
authorities, this she did not do. Instead, she went outside the chain of command and
expressed an opinion in a public forum. Accordingly, for purposes of this Opinion, the
Court will assume that these considerations weigh in favor of finding that Pacheco’s
speech was made as a private citizen rather than a public employee.
2.

Matter of public concern

Whether a public employee’s speech addresses a matter of public concern is
determined by the content, form, and context of that speech. See Connick v. Myers, 461
U.S. 138, 147-48 (1983). Speech usually addresses a matter of public concern when it
relates to matters of political, social, or other concern to the community as opposed to
matters of personal interest to the employee. See id. at 146-47. Still, courts must look
beyond the general topic of the speech because, as another circuit court put it, the
speech must “not merely relate generally to a subject matter that is of public interest,
but must ‘sufficiently inform the issue as to be helpful to the public in evaluating the
conduct of government.’”

Schrier, 427 F.3d at 1263.

Moreover, speech that is

knowingly or recklessly false is not a matter of public concern. Westmoreland, 662 F.3d
at 720-21 (discussing See v. City of Elyria, 502 F.3d 484, 493 (6th Cir. 2007)). In this
regard, “[a] public employee is not required to prove the truth of his speech in order to
secure the protections of the First Amendment”; instead, “it is the defendants’ burden to
establish that [plaintiff] knew or was recklessly indifferent to the fact that his speech
was false.” Id. (alterations in original) (quoting Chappel v. Montgomery Cnty. Fire
Prot., 131 F.3d 564, 576 (6th Cir. 1997)).

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Pacheco argues that her statements involved a matter of public concern because
“nothing could be more important to community interests than safety and welfare of its
children.” (Docket No. 3-1, at 16.) To this end, she reasons that “it is difficult to
imagine a case that is stronger on the issue of ‘public concern.’” (Docket No. 3-1, at
16.) With this much, the Court agrees. However, the crux of Pacheco’s speech was that
a student “plotted a map of bomb and gun attack sites around the school area [but] has
yet to be punished for anything,” and, thus, posed a danger that is a matter of public
concern.

(Docket No. 1-1.)

On this point, Defendants have come forward with

evidence in the form of Waldrop’s and Zimmerman’s affidavits showing that the factual
predicate underlying Pacheco’s statement was false—that is, that there was no plot to
bomb the school and no real safety risk to RHS or its students. These affidavits show
that Pacheco had no personal knowledge of any plot, that Pacheco was not involved in
the investigation of Student 1, and that Pacheco had no knowledge of the outcome of
that investigation. Instead, the evidence suggests that she simply assumed the plot was
real and that RHS administration had done nothing about it. Defendants argue that
Pacheco could have sought additional information and obtained the truth but did not.
This, they urge, demonstrates a reckless indifference to the truth of her assertions.
Whether Pacheco’s statements in the letter to the editor were made with reckless
indifference likely presents a question of fact and, even if not, need not be decided as a
matter of law at this juncture. Nevertheless, the Court acknowledges that Defendants
have produced some evidence tending to show that Pacheco’s statements could be
recklessly indifferent to the truth such that those statements would fall outside the
protection of the First Amendment. This evidence, to the extent it has an effect on the

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resolution of Pacheco’s instant Motion for injunctive relief, raises a factual dispute that,
if anything, cuts against Pacheco’s showing that she is likely to prevail on the merits of
her First Amendment claim.
3.

Pickering’s Balancing Test

Assuming that Pacheco can demonstrate that she was speaking as a private
citizen about a matter of public concern, the Court will proceed to the third step of
determining whether her speech was constitutionally protected. At this step, the Court
must decide whether Pacheco’s First Amendment interests outweigh her employers’
interests in promoting the efficiency of the public services performed by RHS. See,
e.g., City of Elyria, 502 F.3d at 492 (applying Pickering v. Board of Educ. of Twp. High
Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568 (1968)). The Sixth Circuit outlines
several factors relevant to this analysis, including whether the speech: (1) relates to an
issue of public concern, (2) was likely to foment controversy and disruption, (3)
impeded the department’s general performance and operation, (4) affected the loyalty
and confidence necessary to the department’s proper functioning, (5) was false and the
employer could not have easily rebutted or corrected the errors, (6) was directed toward
a person whom the speaker normally contacted during the course of work, and (7) was
truthful. See id. (discussing Soloman v. Royal Oak Twp., 842 F.2d 862, 865 (6th Cir.
1988); Pickering, 391 U.S. at 569-70).
In balancing the interests here, the Court finds that the Defendants’ interest in
promoting the efficiency of the services provided by RHS outweighs Pacheco’s First
Amendment right to comment publicly on her concerns. First, even assuming her
statements were not made with knowing or reckless disregard for the truth, they were

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ultimately false insofar as there was never any actual plot to bomb the school. At this
point in the Court’s analysis, it is irrelevant whether Pacheco actually believed her
statements to be true. See City of Elyria, 502 F.3d at 493-94. Second, although Pacheco
insists that her statements were not meant to foment controversy or disruption, the facts
remain that she mailed the letter the next day after the Newtown, Connecticut, school
shooting and that the letter did cause significant disruption. Third, Defendants have
presented evidence that attendance the day school reopened on December 19 was
roughly 10% lower than their typical attendance rate. While this drop in attendance
may be attributable to other factors (such as the impending holiday break), it also
implies that Pacheco’s statements affected the confidence of students and their parents
in RHS’s efforts to provide a safe school environment. Fourth, Pacheco’s erroneous
fear that a student was plotting a bomb attack easily could have been dispelled. She
states that she “approached Assistant Principal Jodi Butler and inquired as to what
discipline had been imposed [and] was informed that the matter was given to [Waldrop
and Zimmerman].” (Docket No. 15, at 11.) However, Pacheco did not approach either
Waldrop or Zimmerman and inquire further, nor did she approach Watson, who had
been part of investigating the threat in the first instance. Fifth, and perhaps most
importantly, Pacheco’s speech significantly impeded the performance and operation of
both RHS and Reidland Middle School in that both schools shut down due to the threat
conveyed by Pacheco’s letter. Final exams had to be rescheduled after the holiday
break, and the schools had to make up the missed day on a holiday when other District
schools were closed. All in all, some 900 students and their families were affected by
the closures.

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With these factors in mind, the Court cannot conclude that Pacheco’s First
Amendment right to express publicly her concerns outweighs the interests of the
Defendants in promoting the efficiency of the educational services provided by RHS
and other District schools. Therefore, the Court finds that, at this stage in the litigation,
Pacheco has not established the first element of a prima facie First Amendment
retaliation claim—i.e., that she engaged in constitutionally protected speech. As such,
the Court need not address the second and third elements of a prima facie claim, or
whether Defendants have met their burden of showing that the same adverse action
would have been taken in the absence of the protected activity.
***
Accordingly, the Court finds that for purposes of her instant Motion, Pacheco
has not shown a strong likelihood of success on the merits. Pacheco has not altogether
failed to show any possibility of success, and genuine factual issues appear to remain
yet unresolved. However, as noted above, the Sixth Circuit advises that, relative to a
showing of likelihood of success on the merits, “the proof required for the plaintiff to
obtain a preliminary injunction is much more stringent than the proof required to
survive a summary judgment motion.” Leary, 228 F.3d 739. Perhaps further discovery
could alter this analysis; however, at this preliminary stage, Pacheco has not met this
burden. For these reasons, the Court finds that the first factor of consideration whether
to grant Pacheco the injunctive relief she seeks weighs against her and in favor of
Defendants.

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II.

Whether Pacheco Will Suffer Immediate and Irreparable Injury
Pacheco argues that she will suffer immediate and irreparable injury if she is not

immediately reinstated. She argues that “the Court cannot grant complete relief to the
plaintiff or in fact any relief to the plaintiff for the time she misses work,” reasoning that
“[t]he time she misses is lost forever.” (Docket No. 3-1, at 14-15.) Defendants respond,
arguing that Pacheco has not been working as a teacher at RHS since her termination in
January and stating that her students have long since adjusted to a new teacher.
Defendants also argue that there is no evidence that Pacheco’s being unable to teach in
the District during this litigation will cause any irreparable harm.
The Court finds Pacheco’s argument here unpersuasive and the single authority
she references, Hudson v. Barr, 3 F.3d 970 (6th Cir. 1993), inapposite to this case. The
Sixth Circuit has held that a preliminary injunction is not necessary where a plaintiff
had not shown a substantial likelihood of succeeding on his First Amendment claim and
where his injuries were primarily economic in nature. See Bonnell v. Lorenzo, 241 F.3d
800, 825 (6th Cir. 2001). Based on the Court’s foregoing analysis above in Part I, the
Court does not believe that Pacheco has shown a substantial likelihood of succeeding on
the merits of her First Amendment claim. The Court further finds that the injuries
Pacheco claims are primarily, if not entirely, economic in nature. Should Plaintiff
ultimately prevail on her claims, the Court finds no reason why her injuries would not
be properly compensable by monetary damages.

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III.

Whether Issuance of an Injunction Would Cause Harm to Others and
Whether the Public Interest Would be Served
On these third and fourth factors, Pacheco summarily argues that because she

has been teaching for 10 years and has never been the subject of disciplinary action,
should the Court grant the injunctive relief she seeks, allowing her to continue to teach
would pose no threat to the school or the public. Regardless whether these factors weigh
in Pacheco’s favor, the Court finds the factors discussed above in Parts I and II
dispositive as to the overarching issue of whether injunctive relief is warranted.
CONCLUSION AND ORDER
For the foregoing reasons, and upon considering the four factors outlined in
Abney v. Amgen, Inc., 443 F.3d 540, 547 (6th Cir. 2006), the Court finds that Pacheco
has not carried her burden of proving that the circumstances here demand injunctive
relief. See Overstreet, 305 F.3d at 573. Therefore, the Court will decline to issue a
preliminary injunction as Pacheco requests.

Accordingly, having considered the

Plaintiff’s instant Motion and being otherwise sufficiently advised;
IT IS HEREBY ORDERED that Plaintiff Shawnda Pacheco’s Motion for
Temporary Restraining Order, (Docket No. 3), which the Court has treated as a motion
for preliminary injunction, is DENIED.
IT IS SO ORDERED.
Date:

cc:

June 10, 2013

Counsel

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