Davis v. Chase County School District No. 536
Filing
27
MEMORANDUM AND ORDER - The School District's motion for summary judgment (filing 18 ) is granted. Davis' § 1983 claims are dismissed. This case is remanded to the District Court for Chase County, Nebraska. A separate judgment will be entered. Ordered by Chief Judge John M. Gerrard. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEANN DAVIS,
Plaintiff,
7:17-CV-5007
vs.
MEMORANDUM AND ORDER
CHASE COUNTY SCHOOL
DISTRICT NUMBER 536 A/K/A
WAUNETA-PALISADE PUBLIC
SCHOOLS, et al.,
Defendants.
This matter is before the Court on the defendants' motion for summary
judgment. Filing 18. For the reasons set forth below, the Court will grant that
motion, and Davis' amended complaint will be dismissed.
BACKGROUND
From 2007 until she was terminated on December 2, 2016, the plaintiff,
Deann Davis, worked as an administrative assistant for the primary
defendant, Chase County School District. Filing 20 at 3. During the fall of 2016,
Davis' son, Tyler, was also a student in the Chase County School District.
Filing 20 at 3. Unfortunately, Tyler was accused of engaging in some
questionable behavior. Specifically, Tyler was accused of doing "something
inappropriate with another students' pop can after a football game." Filing 10
at 5. Although Tyler denied those charges, he was not permitted to play in the
next football game. Filing 10 at 5.
After Tyler's temporary football suspension, Davis and her husband met
with Superintendent Rand Geier, Wauneta-Palisade Principal Joseph Frecks,
and a school counselor to discuss Tyler's behavior. Filing 10 at 6. Although the
meeting
appeared
to
go
well,
Tyler
apparently
continued
to
act
inappropriately. Filing 10 at 7-8. Eventually, Tyler was also kicked off the
basketball team. Filing 10 at 7-8. This prompted Davis and her husband to
transfer Tyler to a different school in a different school district. Filing 10 at 7.
A few days after Tyler transferred, Davis' employment with the Chase County
School District was terminated. Filing 10 at 8.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary materials that set
out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to show
that disputed facts are material, the party opposing summary judgment must
cite to the relevant substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir.
2
2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which the
jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
Davis claims that she was unlawfully fired because she advocated for her
son. See filing 10 at 9. That termination, Davis contends, violated the following
constitutional and statutory provisions:
1.
The right to free speech as protected under the First
Amendment of the U.S. Constitution. Filing 10 at 11.
2.
The right to due process pursuant to the Fourteenth
Amendment to the U.S. Constitution.1 Filing 10 at 11.
3.
Various rights under the Equal Opportunity in Education
Act, Neb. Rev. Stat. § 79-2,114 et seq. Filing 10 at 10.
4.
The right to accrued wages under the Nebraska Wage
Payment and Collections Act, Neb. Rev. Stat. § 14–813.
Filing 10 at 12.
1
Davis also raises due process violations pursuant to the Fifth Amendment of the U.S.
Constitution. Filing 10 at 11. But the Fifth Amendment applies to the federal government.
See e.g., Warren v. Gov't Nat. Mortg. Ass'n, 611 F.2d 1229, 1232 (8th Cir. 1980). There are no
federal entities in this lawsuit, so, that allegation has no merit.
3
The School District and its employees have moved for summary
judgment on each of Davis' allegations. For the reasons set forth below, the
Court will grant that motion, and Davis' claims will be dismissed.2
I. CONSTITUTIONAL VIOLATIONS
As noted above, Davis claims that her First and Fourteenth Amendment
rights were violated. Filing 10 at 11. Those constitutional claims are brought
against the School District and the School District's employees in their official
and individual capacities. The Court will first evaluate Davis' official capacity
claims before addressing Davis' claims against Geier and Frecks in their
individual capacities.
OFFICIAL CAPACITY
(A) School District
A local governing body, such as a School District, can be held liable under
§ 1983 only where the local government itself causes the violation at issue. City
of Canton v. Harris, 489 U.S. 378, 385 (1989). Respondeat superior or vicarious
liability will not attach under § 1983. City of Canton, 489 U.S. at 385; Johnson
v. Douglas Cty. Med. Dep't, 725 F.3d 825, 828 (8th Cir. 2013). But local
governing bodies can be sued directly under § 1983 for monetary, declaratory,
or injunctive relief where the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision
2
As the defendants correctly point out, Davis' supporting evidence was stricken at her
request. Filing 24; filing 25. Davis has failed to properly submit the replacement affidavits.
But even if that evidence were properly submitted, Davis' claims would still fail.
4
officially adopted and promulgated by that body's officers. Johnson, 725 F.3d
at 828 (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978)).
Generally speaking, to establish local liability under § 1983, Davis must
prove the existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct or a deliberate indifference to that conduct. Jane
Doe A By & Through Jane Doe B v. Special Sch. Dist. of St. Louis Cty., 901 F.2d
642, 646 (8th Cir. 1990); see also Monell, 436 U.S. at 691. But even in the
absence of an official policy or a custom, the Supreme Court has made clear
that though "an unconstitutional government policy could be inferred from a
single decision taken by the highest officials responsible for setting policy in
that area of the government's business." City of St. Louis v. Praprotnik, 485
U.S. 112, 121 (1988). In that scenario, governmental liability attaches only
where the decisionmaker possesses final authority to establish policy with
respect to the action ordered. Pembaur v. City of Cincinnati, 475 U.S. 469, 481,
(1986) (plurality opinion); Dean v. Cty. of Gage, Neb., 807 F.3d 931, 941 (8th
Cir. 2015); Angarita v. St. Louis Cty., 981 F.2d 1537, 1546 (8th Cir. 1992).
Importantly, the Supreme Court has distinguished final policymaking
authority from final decisionmaking authority. Pembaur, 475 U.S. at 481; see
also Davison v. City of Minneapolis, Minn., 490 F.3d 648, 659 (8th Cir. 2007).
The fact that a particular official—even a policymaking official—has discretion
in the exercise of particular functions does not, without more, give rise to
governmental liability based on an exercise of that discretion. Pembaur, 475
U.S. at 481-82. Nor does the discretion to hire and fire necessarily include
responsibility for establishing related policy. Davison, 490 F.3d at 659;
Greensboro Prof'l Fire Fighters Ass'n, Local 3157 v. City of Greensboro, 64 F.3d
962, 966 (4th Cir. 1995); accord Radic v. Chicago Transit Auth., 73 F.3d 159,
161 (7th Cir. 1996) (noting the plaintiff's argument was flawed because of its
5
failure accurately to distinguish between authority to make administratively
final decisions and authority to establish official government policy.)
The parties do not dispute that Superintendent Geier made the decision
to terminate Davis. Filing 23 at 38-39; filing 19-1 at 2. That decision, however,
gives rise to governmental liability only if Geier also had the authority to create
final employment policy. See Pembaur, 475 U.S. at 481; see also Praprotnik,
485 U.S. at 124. But as the Board's Internal Board Policy makes clear, "[t]he
Board of Education, under law, has the final responsibility of establishing
policies for the district." Filing 19-1 at 22. Specifically, "the Board of
Education . . . determines all questions of general policy to be employed in the
governance of the Wauneta-Palisade Public Schools." Filing 19-1 at 19. And it
is the Board of Education's duty to "initiate questions of policy . . . in matters
of policy, employee employment or dismissal, salary schedules or other
personal regulations . . . ." Filing 19-1 at 18.
Despite this clear language, Davis argues that Geier is the final
policymaker because the superintendent is able to make decisions if there is
no existing board policy. See Filing 19-1 at 7; see also filing 23 at 41. To support
that contention, Davis points to Policy No. 2440. That policy empowers the
Superintendent
"to
make
the
decision
deemed
best
in
the
Superintendent['s] . . . professional judgment." Filing 19-1 at 15. And because
the Superintendent can take action in those circumstances, Davis argues that
the Superintendent is, in essence, creating policy. Filing 23 at 41.
The Court is not persuaded. For example, Policy No. 2440 only references
the Superintendent's authority to make a decision in the absence of policy, but
it does not authorize the Superintendent to actually create policy. Filing 19-1
at 15. And as explained above, that distinction is not insignificant. See
Pembeaur, 475 U.S. at 481; see also Praprotnik, 485 U.S. at 124.
6
More fundamentally though, the remaining provision of Policy No. 2440
actually supports the conclusion that the Board of Education is the final
policymaker. That policy states, in relevant part, that "[d]ecisions made in the
absence of needed policy shall be reported to the Board and the Superintendent
shall develop recommend policy to [the Board] to deal with similar matters in
the future." Filing 19-1 at 15. That means, even when the Superintendent has
the authority to make a decision, he is still expected to report that decision to
the Board––and it is the Board's responsibility to create a policy to handle
those types of decision in the future. See filing 19-1 at 15.
So, although Davis is correct that Geier has some decisionmaking
authority, he does not have final policymaking authority. And without
policymaking authority, no unconstitutional policy can be inferred from Geier's
decision to terminate Davis' employment. See Pembaur, 475 U.S. at 481; see
also Praprotnik, 485 U.S. at 124. As such, the Court will dismiss Davis' § 1983
claims against the School District. Pembaur, 475 U.S. at 481; Dean, 807 F.3d
at 941.
(b) Individual Defendants
The Court's disposition of Davis' claims against the School District is also
dispositive of her claims against Geier and Frecks in their official capacities.
It is well-settled that a suit against a governmental actor in his official capacity
is treated as a suit against the government entity itself. Alexander, 718 F.3d
at 766; Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 673 (8th Cir. 2007).
Accordingly, summary judgment is also appropriate as to the individual
defendants in their official capacities.
7
INDIVIDUAL CAPACITY CLAIMS
Although Davis' constitutional claims against Geier and Frecks in their
official capacities will be dismissed, the plaintiff may proceed against them in
their individual capacities unless they are protected by qualified immunity.
Qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.
Ransom v. Grisafe, 790 F.3d 804, 810 (8th Cir. 2015); Ulrich v. Pope Cty., 715
F.3d 1054, 1058 (8th Cir. 2013); Bernini, 665 F.3d at 1002; Brockinton, 503
F.3d at 671. This immunity applies to discretionary functions of government
actors. Ransom, 790 F.3d at 810. An official is entitled to qualified immunity
unless (1) the evidence, viewed in the light most favorable to the nonmoving
party, establishes a violation of a federal constitutional or statutory right; and
(2) the right was clearly established at the time of the violation. Robinson v.
Payton, 791 F.3d 824, 828 (8th Cir. 2015); Ulrich, 715 F.3d at 1058; Bernini,
665 F.3d at 1002.
To withstand a motion for summary judgment on qualified immunity
grounds, a civil rights plaintiff must (1) assert a violation of a constitutional
right; (2) demonstrate that the alleged right is clearly established; and (3) raise
a genuine issue of fact as to whether the official would have known that his
alleged conduct would have violated the plaintiff's clearly established right.
Brockinton, 503 F.3d at 672; see Reasonover v. St. Louis Cty., Mo., 447 F.3d
569, 580 (8th Cir. 2006).
Here, Davis contends that Geier and Frecks are not protected by
qualified immunity because their conduct violated two clearly established
constitutional rights: the right to speak freely under the First Amendment,
and the right to due process under the Fourteenth Amendment. Filing 23 at
8
37-40. But as the Court will explain in turn below, neither Davis' first
amendment right, nor her right to due process, were actually violated by the
School District's conduct. Thus, the Court will grant the defendant's motion for
summary judgment on immunity grounds.
(a) First Amendment
To establish employer retaliation in violation of the First Amendment, a
public employee must prove: (1) she engaged in activity protected by the First
Amendment; (2) the defendants took an adverse employment action against
her; and (3) the protected conduct was a substantial or motivating factor in the
defendants' decision to take the adverse employment action. Lyons v. Vaught,
875 F.3d 1168, 1172 (8th Cir. 2017). Specifically, in Garcetti v. Ceballos, the
Supreme Court noted two inquiries relevant to determining whether a public
employee speech is protected against employer retaliation:
The first requires determining whether the employee spoke as a
citizen on a matter of public concern. If the answer is no, the
employee has no First Amendment cause of action based on his or
her employer's reaction to the speech. If the answer is yes, then
the possibility of a First Amendment claim arises. The question
becomes whether the relevant government entity had an adequate
justification for treating the employee differently from any other
member of the general public.
547 U.S. 410, 418, (2006) (quotation omitted); see also Lyons, 875 F.3d at 1172.
Fleshing the first prong of that analysis out further, the Eighth Circuit
has found that an employee's speech involves a matter of public concern when
it relates to a matter of political, social, or other community concern. Dahl v.
9
Rice Cty., Minn., 621 F.3d 740, 744 (8th Cir. 2010). But when speech relates
both to an employee's private interests as well as matters of public concern,
the speech is only protected if it is primarily motivated by public concern.
Bailey v. Dep't of Elem. & Secondary Educ., 451 F.3d 514, 518 (8th Cir. 2006).
Stated differently, if the main motivation for the speech was furthering Davis'
private interests rather than to raise issues of public concern, her speech is not
protected, even if the public would have an interest in the topic of her speech.
Altonen v. City of Minneapolis, 487 F.3d 554, 559 (8th Cir. 2007).
An
employee's primary motivation for her speech, is determined based on the
speech's content, form, and context of a given statement, as revealed by the
whole record. Kincade v. City of Blue Springs, Mo, 64 F.3d 389, 396 (8th Cir.
1995).
On the record as a whole, the Court concludes that Davis' speech was
motivated by her private interests, rather than raising an issue of public
concern. Altonen, 487 F.3d at 559. After all, Davis admits that she complained
about Frecks and Geier because she was frustrated with how they handled
Tyler's behavioral issues. Filing 19-4 at 57-58, 84-85. Davis also testified that
because "she wasn't sure what to do with the [Tyler] situation," she attempted
"to get some advice" from some of her co-workers. Filing 19-4 at 58. Davis
elaborated on that, further explaining that she "didn't agree with the way
things [with Tyler] went about," and was vocal about her son's struggles
getting along with Geier and Frecks. Filing 19-4 at 59-60. And ultimately,
Davis stated that she believes "[she] was fired for sticking up for" her son.
Filing 19-4 at 81; see also filing 19-4 at 85.
So, by Davis' own admission, her speech was motivated by her own
interest in understandably voicing her frustration with the situation among
Frecks, Geier, and her son. Cf. Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668,
10
672 (8th Cir. 1986) (finding that matters of public concern to include speaking
about how the state institution is not properly discharging its duties, or is
engaged in some way in misfeasance, malfeasance or nonfeasance); see also
filing 19-4 at 84-85. Thus, because Davis' speech did not involve a matter of
public concern, Davis has no First Amendment protection. Garcetti, 547 U.S.
at 418.
(b) Fourteenth Amendment
Next, Davis claims that she had a right to due process under the
Fourteenth Amendment of the United States Constitution. Davis, however,
fails to clearly identify whether her claim is procedural or substantive in
nature (or both). Nevertheless, the Court construes Davis' complaint broadly
and assumes Davis seeks to allege violations of both procedural and
substantive due process. See filing 10 at 1-2.
(i) Procedural Due Process
Davis appears to argue that she was terminated without adequate
procedural due process. A public employee granted a state-law-protected
property interest in continued employment may not be terminated without due
process. Groenewold v. Kelley, 888 F.3d 365, 372 (8th Cir. 2018). A person must
have a legitimate claim of entitlement to her employment to have a property
interest in it. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). To have a
property interest in her employment, there must be some other basis from
which to claim entitlement to continued employment. Voss v. Hous. Auth. of
the City of Magnolia, Ark., 917 F.3d 618, 625 (8th Cir. 2019).
Typically, this interest arises from contractual or statutory limitations
on the employer's ability to terminate an employee. Id. But here, there is no
11
contractual or statutory limitation that would provide Davis––as a noncertified, at-will employee, see filing 19-1 at 82-83––with a property interest in
continued employment. Groenewold, 88 F.3d at 372. And without any
expectation in continued employment, there can be no due process violation.
Voss, 917 F.3d at 625.
In an attempt to circumvent that shortcoming, Davis argues that
irrespective of the lack of continued expectation in her employment, a due
process violation still occurred. This is true, Davis claims, because the School
District did not comply with the Nebraska Equal Opportunity in Education
Act. Neb. Rev. Stat. § 79-2,118; see also filing 23 at 34-37.
Under that statutory scheme, a person can file a written complaint with
the governing body for any unfair or discriminatory practice allegedly
undertaken by an educational institution. §§ 79-2,116 to 2,118. After receiving
the complaint, the governing body has a few options: it can take the
appropriate action to correct the discriminatory conduct, dispose of the
complaint and notify the claimant of its findings, or it can choose not to act on
the complaint at all, §§ 79-2,118 to 2,121. If the governing body chooses the
last approach, refusing to respond, the claimant may file a lawsuit after 180
days of filing the formal complaint. § 79-2,121.
Here, Davis claims she did not receive adequate due process because the
School District failed to respond to her formal complaint. Filing 23 at 37; filing
19-4 at 211-212. But that failure cannot possibly create a due process violation.
After all, the Act expressly recognizes the School Board's ability not to respond
to a complaint. § 79-2,121. And when this occurs, the legal remedy for that
inaction is to file a lawsuit under that statutory scheme. Id. Nothing in the Act,
or Davis' supporting brief, supports her contention that the School District's
failure to issue a response to her complaint constitutes a procedural due
12
process violation. So, the Court will grant the defendants' motion for summary
judgment on those grounds.
(ii) Substantive Due Process
Next, Davis claims that Frecks and Geier violated her substantive due
process rights. Filing 10 at 11. To establish a violation of substantive due
process, a plaintiff "must demonstrate both that the official's conduct was
conscience-shocking, and that the official violated one or more fundamental
rights that are deeply rooted in this Nation's history and tradition, and implicit
in the concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed." Schmidt v. Des Moines Pub. Sch., 655 F.3d 811,
815 (8th Cir. 2011).
Davis appears to argue that the Frecks and Geier violated her
fundamental "liberty interest in the sanctity of her family." Filing 10 at 11. But
Davis has pointed the Court to no authority supporting her contention that the
sanctity of the family was violated in this case. Cf. Washington v. Glucksberg,
521 U.S. 702, 771 (1997); Griswold v. Connecticut, 381 U.S. 479, 502 (1965).
And to the extent that Davis' substantive due process claim might be based on
her right to engage in a specific profession, that right is not a fundamental
right. See e.g., Robbins v. Becker, 794 F.3d 988, 994 (8th Cir. 2015) (plaintiffs'
allegations that they were deprived of the right to make a living and engage in
their chosen occupation do not shock the conscience for due process purposes);
Wrench Transp. Sys., Inc. v. Bradley, 340 F. App'x 812, 815–16 (3d Cir. 2009)
(intangible employment rights such as the "right to engage in business" are not
entitled to substantive due process protection); Leib v. Hillsborough Cty. Pub.
Transp. Comm'n, 558 F.3d 1301, 1306 n. 4 (11th Cir. 2009) (noting that
13
"employment rights do not enjoy substantive due process protection because
such rights are . . . not 'fundamental' rights created by the Constitution").
Accordingly, the Court will grant the defendants' motion for summary
judgment on these grounds.
II. STATE LAW VIOLATIONS
Davis also asserts various state law violations against the defendants.
The Court recognizes that it may continue to exercise supplemental
jurisdiction over those claims. See 28 U.S.C. § 1367(a) and (c); Carlsbad Tech.,
Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40 (2009). But the Court can also decline
to do so where "the district court has dismissed all claims over which it has
original jurisdiction." § 1367(c)(1). Having considered Davis' state law claims
against School District, and factors such as judicial economy, convenience,
fairness, and comity, see Glorvigen v. Cirrus Design Corp., 581 F.3d 737, 749
(8th Cir. 2009), the Court declines to exercise supplemental jurisdiction.
Accordingly, the Court will remand Davis' remaining state-law claims.
IT IS ORDERED:
1. The School District's motion for summary judgment (filing 18)
is granted.
2. Davis' § 1983 claims are dismissed.
3. This case is remanded to the District Court for Chase County,
Nebraska.
4. A separate judgment will be entered.
14
Dated this 5th day of April, 2019.
BY THE COURT:
John M. Gerrard
Chief United States District Judge
15
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