Tesar v. Union R-XI School District et al
OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Gary Vogel and Jennifer Davis Motion to Dismiss Count III of Plaintiffs Amended Complaint, [Doc. No. 50 ], is granted. IT IS FURTHER ORDERED that Defendant Trakas Motion to Dismis s, [Doc. No. 44 ], is granted. IT IS FURTHER ORDERED that Defendant Trakas is dismissed from this action. (Ernest Trakas (in his individual and offical capacity as Attorney for Union R-XI School District ) terminated.) Signed by District Judge Henry Edward Autrey on 2/9/17. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNION R-XI SCHOOL DISTRICT, et al.,
) Case No: 4:15CV943 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants Gary Vogel. And Jennifer
Davis’ Motion to Dismiss Count III of Plaintiff’s Amended Complaint, [Doc. No.
50] and Defendant Trakas’ Motion to Dismiss Plaintiff’s First Amended
Complaint, [Doc. No. 44]. Plaintiff opposes the motions. On January 26, 2017,
the Court heard oral arguments on the motions. For the reasons set forth below,
the Motions are granted.
Facts and Background
Plaintiff filed her First Amended Complaint on April 25, 2016. Plaintiff
alleges violations of the Rehabilitation Act (Count I), of Titles II and V of the
Americans with Disabilities Act, (Count II), an invasion of privacy claim under
Missouri State Law against Defendants Davis, Vogel and Trakas in their official
capacity, (Count III).
Defendants move to dismiss Count III arguing that Plaintiff has failed to
sufficiently state a cause of action for common law invasion of privacy.
Plaintiff alleges the following with respect to her invasion of privacy claim:
In October of 2012, Plaintiff became the case manager for JT, a student at ClarkVitt with a generalized anxiety disorder, ADHD and a learning disability in the
areas of reading comprehension, reading fluency, math calculation, math reasoning
and written expression. The foregoing are disabilities or handicaps as those terms
are defined by the Rehabilitation Act and the ADA, as well as the Individuals with
Disabilities Education Act, 20 U.S.C. §1401 et seq. JT’s disabilities substantially
interfered with major life activities, including attending school and learning.
On April 1, 2014, Erica Talley, the mother of JT, filed a due process complaint
with the Missouri Department of Elementary and Secondary Education regarding
the amount of time that JT would be outside of the regular classroom education.
Because the District refused to provide CWC [Class Within Class] and inclusion
services, all of the special education services the District proposed for JT were
outside of the general education setting. Specifically, at an IEP meeting in March
2013, the District proposed to modify his IEP from spending only 33% of his
education minutes outline the general education setting to 48%.
As JT’s case manager, Plaintiff was in attendance at this IEP meeting along with
Defendant Davis and Defendant Vogel. When questioned why JT could not receive
some amount of instruction within the classroom using supplemental aides such as
CWC or inclusion services, Dr. Davis replied, “We don’t offer that.” Mrs. Talley
objected to the District’s blanket refusal to provided CWC services and refusal to
provide special education services to JT in his least restrictive environment. After
the meeting, Plaintiff informed Mrs. Talley that the District would not offer CWC
and inclusion services to students at Clark-Vitt for financial reasons as had been
previously explained to her by Defendant’s Vogel and Davis.
After filing her due process complaint, Mrs. Talley submitted her pre-hearing
conference statement, pursuant to Regulation V(6) Missouri State Plan for Special
Education Implementing Part B of the IDEA, to the Administrative Hearing
Commission and to Defendants on April 11, 2013. In her pre-hearing conference
statement, Mrs. Talley listed Plaintiff as a witness she intended to call during the
due process hearing set for June 24, 2013. Specifically, Mrs. Talley indicated
Plaintiff would testify:
…that a person of support within the classroom would allow [JT] to progress
successfully…that Jennifer Davis stated on 3/20/13 that the school district does not
offer CWC at his grade level and will testify to the lack of continuum services
between the general education setting and pull out instruction and that on 3/22/13
Gary Vogel…stated that a CWC was not an option for [JT] due to services already
being provided via pull out instruction against his current IEP…
On April 19, 2013 Defendants submitted their amended pre-hearing conference
statement to Mrs. Talley and to the Administrative Hearing Commission.
Defendants also identified Plaintiff as a witness who would be called for the
District at the due process hearing. Defendants indicated Plaintiff would testify:
…regarding the District’s regular and special education process and procedures,
educational programming, communications regarding the student’s programming,
meetings of the student’s IEP Team, educational records and data, observations
regarding the student’s progress and performance in special education provided by
Ms. Tesar, the Case Management procedures for the student, the student’s needs,
and the proposed educational placement.
Defendants also identified the documents they intended to offer at the due process
hearing in the Pre-Hearing Conference Statement; however, none of the documents
identified had anything to do with Plaintiff or the contents of her personnel file.
After the Pre-Hearing Statements were filed, Plaintiff discussed Mrs. Talley’s
identification of her as witness as well as Mrs. Talley’s description of Plaintiff’s
anticipated testimony with Defendant Davis, Defendant Vogel, Defendant Trakas
and other agents for the District at various times. During these discussions,
Defendants asked Plaintiff to testify that JT did not need CWC and inclusion
services and that he would be better served in a special education setting. Plaintiff
informed Defendants she did not agree with such an assessment and she believed
JT’s least restrictive environment for the special education minutes in question was
the general education classroom with either CWC or inclusion instruction. Plaintiff
informed Defendants she would not lie for the District in the course of her
On or about June 18, 2013, Defendants and Mrs. Talley exchanged their final
witness list and copies of the exhibits they intended to use at the due process
hearing. Defendant Trakas sent the witness list and exhibits to Mrs. Talley via
facsimile, e-mail and certified mail. Defendants removed Plaintiff from the
District’s witness list; however portions of Plaintiff’s confidential personnel file
were sent to Mrs. Talley as proposed “exhibits” for the District.
The portions of the file sent to Mrs. Talley included the incident report from
November 12, 2012 and the recent negative evaluations and negative reports of
“Educator Effectiveness” performed on Plaintiff. These confidential personnel
documents were sent to Mrs. Talley without the consent by Plaintiff and Plaintiff
never waived her right to privacy with regard to her employment records.
Upon receiving the exhibits, Mrs. Talley immediately notified Plaintiff as well as
Union R-IX Board of Education members Karen Tucker and Virgil Weideman of
the District’s improper disclosure of Plaintiff’s personnel records and of what Mrs.
Talley believed to be the District’s attempt to intimidate Plaintiff from testifying
on JT’s behalf.
Plaintiff was humiliated to learn that her confidential records, which included what
she believed to be a false report of discrimination, had become public without her
consent or knowledge. Plaintiff was further concerned that Defendants’ disclosure
would damage her reputation within the community and cause potential harm to
her employment prospects as she had resigned from the District in 2013.
Defendants submitted the portions of Plaintiff’s confidential personnel with the
intent to intimidate and humiliate her. Defendants’ actions would dissuade a
reasonable employee from advocating for a student’s rights under the IDEA, ADA,
§ 504 and the Civil Rights Act.
Defendants did not submit as exhibits any portions of the confidential personnel
records of the five other District employees identified in Mrs. Talley’s Pre-Hearing
Conference Statement and on her witness list. However, Defendants did attempt to
strike the only other witness identified on Mrs. Talley’s witness list that was not on
the District’s payroll – her advocate Lindsey Traffas.
On June 20, 2013, after Mrs. Talley’s notification to the Board and after the
hearing officer denied the District’s motion to strike Ms. Traffas’ testimony, the
District offered a resolution to Mrs. Talley to settle the due process matter that
included every provision Mrs. Talley included in her due process complaint. The
matter settled shortly thereafter.
While JT’s due process matter was resolved, Plaintiff Erin Tesar has suffered, and
continues to suffer emotional distress and anguish and loss of her civil rights as a
result of the foregoing actions and the pattern and practice of discrimination
implemented by the District and its agents.
The District has implemented various policies regarding personnel records:
The files of an individual employee will be considered confidential
information and a closed record, to the extent allowed by the law, and will
only be available to authorize administrative personnel, the Board of
Education, and the employee. Individually identifiable personnel records,
performance ratings or records pertaining to employees or applicants for
employment are closed records under the Missouri Sunshine Law to the
extent allowed by law.
Building administrators may maintain a working file on employees. All
performance-related documents must be transferred to Central Office at the
end of each year.
Personnel records are closed, as authorized by law. Only authorized school
officials shall have access to an employee's personnel records without the
written consent of the employee.
Board members will have access to an employee's personnel file only when
necessary for Board business as determined by the Board.
The Board members, employees and others in attendance are honor bound
not to disclose the details or discussions of the closed meetings, records or
votes or any other information that is deemed confidential by law, Board
policy or district procedures. It is an essential job function of every
employee in the district to follow confidentiality laws and the district's
policies and procedures regarding confidential information. District
employees who fail to keep closed information or closed meetings
confidential may be disciplined or terminated… Board members who violate
the law, Board policy or district procedures regarding confidentiality may be
removed from all district committees and publicly admonished by the Board,
and the Board may take legal action against the member by seeking an
injunction or monetary damages. The Board may also seek legal action from
the local prosecutor or the Missouri Attorney General's Office. In addition, it
is a crime, punishable by a fine of up to $500 or a year in jail, for any School
Board member or employee of a school district to willfully neglect or refuse
to perform a duty imposed by certain state statutes applicable to school
districts, some of which contain confidentiality requirements.
All Board members, employees, students and patrons are required to follow the
Board of Education's policies and the district's rules and procedures.
The principal or director will ensure that the Board policies, rules, and
By June 18, 2013, well after the end of the 2012-2013 school year, any
performance related documents maintained by Defendant Vogel and Defendant
Davis should have been transferred to the Central Office.
After the 2012-2013 school year ended, neither Defendant Vogel, Davis, nor
Defendant Trakas had authorization to access Plaintiff’s personnel file.
Plaintiff Defendants Vogel, Davis, and Trakas unreasonably obtained portions of
Plaintiff’s personnel file and published those documents without Plaintiff’s
The documents were in turn disseminated to members of the Board of Education
absent a formal request from the Board to review the documents for the purpose of
The portions of Plaintiff’s personnel file that were unreasonably obtained and
published by Defendants had a likelihood of becoming public knowledge at the
time of their dissemination.
Defendants Vogel, Davis, and Trakas obtained and published Plaintiff’s personnel
file maliciously and in bad faith.
Missouri has recognized the common law tort of invasion of privacy since 1911.
Munden v. Harris, 153 Mo.App. 652, 659-60, 134 S.W. 1076, 1078 (1911); see
also Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942).
Plaintiff has a fundamental right to privacy in her employment records. State ex
rel. Delmar Gardens N. Operating, LLC v. Gaertner, 239 S.W.3d 608, 609 (Mo.
2007) (citing State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 343 (Mo. banc
1998) and State ex rel. Tally v. Grimm, 722 S.W.2d 604, 605 (Mo. banc 1987)).
Plaintiff’s employment records contain secret and private information.
Defendants invaded Plaintiff’s fundamental right to privacy when they improperly
intruded upon those protected records and improperly obtained the confidential
information contained therein.
Defendants further invaded Plaintiff’s fundamental right to privacy when they
published, or caused to be published, documents containing private facts
concerning Plaintiff, that had a likelihood of becoming public knowledge.
Plaintiff did not give Defendants permission to invade her privacy in this manner
nor did Plaintiff waive her right to privacy regarding the published information.
The conduct of Defendants was offensive and motivated by a desire to cause her
humiliation and shame.
The purpose of a Rule 12(b)(6) motion to dismiss is to test the legal
sufficiency of a complaint so as to eliminate those actions “which are fatally
flawed in their legal premises and designed to fail, thereby sparing litigants the
burden of unnecessary pretrial and trial activity.” Young v. City of St. Charles, 244
F.3d 623, 627 (8th Cir.2001) quoting Neitzke v. Williams, 490 U.S. 319, 326–27,
109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A complaint must be dismissed for
failure to state a claim upon which relief can be granted if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 554, 570 (2007)(abrogating the prior “no set of facts”
standard set forth in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957)). Courts “do not require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face.” Id., 550 U.S. at
555. A complaint must set forth factual allegations which are enough to “raise a
right to relief above the speculative level.” Id. However, where a court can infer
from those factual allegations no more than a “mere possibility of misconduct”, the
complaint must be dismissed. Cole v. Homier Distributing Co., Inc., 599 F.3d 856,
861 (8th Cir.2010)(citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868.1950 (2009)).
In passing on a motion to dismiss, a court must view the allegations of the
complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S.
232 (1974); Kottschade v. City of Rochester, 319 F.3d 1038, 1040 (8th Cir.2003).
While a complaint challenged by a Rule 12(b)(6) motion does not need detailed
factual allegations, a plaintiff must still provide the grounds for relief, and neither
“labels and conclusions” nor “a formulaic recitation of the elements of a cause of
action” will suffice. Twombly, 550 U.S. at 555. (internal citations omitted).
“Although the pleading standard is liberal, the plaintiff must allege facts—not
mere legal conclusions—that, if true, would support the existence of the claimed
torts.” Moses.com Securities v. Comprehensive Software Systems, Inc., 406 F.3d
1052, 1062 (8th Cir.2005) citing Schaller Tel. Co. v. Golden Sky Systems, 298 F.3d
736, 740 (8th Cir.2002). In viewing the complaint in the light most favorable to the
plaintiff, the court should not dismiss it merely because the court doubts that the
plaintiff will be able to prove all of the necessary allegations. Bennett v. Berg, 685
F.2d 1053, 1058 (8th Cir.1982). The primary issue for a court to consider is not
whether the plaintiff will ultimately prevail in the lawsuit, but whether the
complaint adequately states a claim; and therefore, the plaintiff is entitled to
present evidence in support of that claim. A complaint may not be dismissed based
upon a district court's assessment that the plaintiff will fail to present evidentiary
support for the complaint's allegations or will ultimately fail to prove one or more
claims to the satisfaction of the factfinder. Twombly, 550 U.S. at 556; Neitzke v.
Williams, 490 U.S. at 327 (“What Rule 12(b)(6) does not countenance are
dismissals based upon a judge's disbelief of a complaint's factual allegations.”).
However, “[w]here the allegations show on the face of the complaint there is some
insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v.
Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008). Further, courts “‘are not
bound to accept as true a legal conclusion couched as a factual allegation.’”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868.1950
(2009)(quoting Twombly, 550 U.S. at 555). When considering a motion to dismiss,
a court can “begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 129
S.Ct. at 1950. Legal conclusions must be supported by factual allegations to
survive a motion to dismiss. Id.
Count III attempts to assert a state law claim for invasion of privacy.
Plaintiff alleges that Defendants invaded her privacy when they improperly
intruded upon her protected employment records, improperly obtained confidential
information in them and when they disseminated documents containing private
facts to the public.
Under Missouri law, “[a]n individual's right of privacy is legally protected,
and violation of such right can under given circumstances provide an entitlement to
relief.” Sofka v. Thal, 662 S.W.2d 502, 509 (Mo. banc 1983). The right of privacy
is invaded when there is “(1) unreasonable intrusion upon the seclusion of another;
or (2) appropriation of the other's name or likeness; or (3) unreasonable publicity
given to the other's private life; or (4) publicity that unreasonably places the other
in a false light before the public.” Id. at 510. In Howard v. Frost National Bank,
458 S.W.3d 849 (Mo.App.E.D. 2015), the Court stated:
The tort of invasion of privacy actually consists of four separate causes of
action, (1) intrusion on the plaintiff's seclusion or private affairs; (2) public
disclosure of embarrassing private facts; (3) publically placing plaintiff in a
false light; and (4) the appropriation of plaintiff's name or likeness. St.
Anthony's Medical Center v. H.S.H., 974 S.W.2d 606, 609 (Mo.App.E.D.
Id. at 854.
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Plaintiff attempts to allege claims of invasion of her right to privacy through
the unreasonable intrusion on her private affairs and public disclosure of
embarrassing private facts.
The tort of invasion of privacy includes the “unreasonable intrusion upon the
seclusion of another,” which is defined as the intentional intrusion “physically or
otherwise upon the solitude or seclusion of another or his private affairs or
concerns” in a manner that would be “highly offensive to a reasonable person.”
Sofka, 662 S.W.2d at 510. To establish a claim of unreasonable intrusion upon
seclusion, a plaintiff must prove “(1) the existence of a secret and private subject
matter; (2) a right in the plaintiff to keep that subject matter private; and (3) the
obtaining by the defendant of information about that subject matter through
unreasonable means.” Ruzicka Elec. & Sons, Inc. v. Int'l Bhd. of Elec. Workers,
Local 1, AFL-CIO, 427 F.3d 511, 524 (8th Cir. 2005) (citing Corcoran v.
Southwestern Bell Telephone Co., 572 S.W.2d 212, 215 (Mo. Ct. App. 1978)).
Plaintiff’s Amended Complaint fails to set forth sufficient facts to state a
claim for unreasonable intrusion. The only allegations regarding Plaintiff’s
personnel file are that Defendants improperly intruded upon her protected records
and improperly obtained the confidential information contained therein. There are
no allegations as to how the records were obtained, or how the obtaining of the
records was unreasonable. Rather, Plaintiff’s allegations are conclusions; clearly a
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formulaic recitation of the elements of an invasion of privacy. As such, the claim
fails to satisfy the pleading requirements of the Federal Rules of Civil Procedure.
With respect to Plaintiff’s claim that Defendants published her private
personnel file, Defendants’ Motions are well taken.
In order to state a claim for public disclosure of private facts, Plaintiff must
plead that there was: “(1) publication or publicity by the defendant, to a large
number of persons; (2) the absence of a grant to the defendant of any waiver or
privilege; (3) the disclosure of private matters in which the public has no legitimate
concern; and (4) disclosure in such a way as to bring shame or humiliation to an
individual of ordinary sensibilities.” Maxwell v. Express Scripts, Inc., 2012 WL
996651 at *7, citing Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488, 498–99
(Mo.Ct.App.1990). “Under the first element, publication means communication to
the public in general or to a large number of persons, as distinguished from one
individual or a few.” Doe v. Young, 2009 WL 3680988, at *8 (E.D.Mo. Oct.30,
2009) (internal quotation marks and citations omitted). McNeil v. Best Buy Co.,
No. 4:13CV1742 JCH, 2014 WL 1316935, at *3 (E.D. Mo. Apr. 2, 2014).
Plaintiff claims that the information contained in her personnel record was
distributed to Mrs. Talley, who in turn possibly disclosed the records to two Board
of Education members, or at least disclosed that the records were given to her.
Such disclosure does not rise to the level of the public in general or a large number
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of persons. Likewise, Plaintiff’s speculation that the entire Board was made aware
of the disclosure does not qualify as a publication of Plaintiff’s private matters.
“The alleged threat of some future publication is too speculative to state a
claim, see, e.g., Robinson v. Morgan Stanley, 2008 WL 4874459, at * 6 (N.D.Ill.
Jun.18, 2008) and Wynn v. Wachovia Bank, N.A., 2009 WL 1255464, at *4
(E.D.Va. May 6, 2009) (both addressing the tort of defamation), and so Plaintiff's
claim for public disclosure of private facts must be dismissed.”
McNeil v. Best Buy Co., No. 4:13CV1742 JCH, 2014 WL 1316935, at *4 (E.D.
Mo. Apr. 2, 2014).
Based upon the foregoing, the Court concludes that the Defendants Gary
Vogel, And Jennifer Davis’ Motion to Dismiss Count III of Plaintiff’s Amended
Complaint and Defendant Trakas’ Motion to Dismiss are well taken and should be
IT IS HEREBY ORDERED that Defendants Gary Vogel and Jennifer
Davis’ Motion to Dismiss Count III of Plaintiff’s Amended Complaint, [Doc. No.
50], is granted.
IT IS FURTHER ORDERED that Defendant Trakas’ Motion to Dismiss,
[Doc. No. 44], is granted.
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IT IS FURTHER ORDERED that Defendant Trakas is dismissed from this
Dated this 9th day of February, 2016.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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