Webber v. First Student, Inc. et al

Filing 55

ORDER: Magistrate Judge Clarke's Report and Recommendation 49 is adopted in part and not adopted in part. Plaintiff's state law claims are dismissed. Defendants' motions for summary judgment 28 and 32 are granted. Signed on 2/26/2013 by Judge Owen M. Panner. (dkj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
KENNETH WEBBER,
Case No. 1:11-cv-3032-CL
Plaintiff,
v.

FIRST STUDENT, INC., et al.,

ORDER

Defendants.

PANNER, District Judge:

Kenneth Webber was terminated by his employer, First Student,
Inc., for insubordination after he refused to remove a 3-by-5 foot
Confederate flag from his pickup truck while the truck was parked
on property of the Jackson County School District.

Webber claims

First Student's termination violated his First Amendment rights.
He brings this civil rights action against First Student; Jonel
Todd, his supervisor at First Student; the Jackson County School
District (also known as the Phoenix-Talent School District); and
Ben Bergreen, the School District superintendent.
1

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Defendants move for summary judgment.

Magistrate Judge Mark

D. Clarke has filed a Report and Recommendation (R&R)

recommending

defendants' motions be denied.
Defendants object to the R&R, so I have reviewed this matter
de novo.

28 U.S.C.

§

636(b) (1) (C); McDonnell Douglas Corp. v.

Commodore Bus. Mach., Inc.,

656 F. 2d 1309, 1313 (9th Cir. 1981).

Because First Student was not acting under color of state law when
it terminated Webber, I grant defendants' motions for summary
judgment.
DISCUSSION
I.

Factual Background

First Student, a private employer doing business in about
forty states, has a contract with the Jackson County School
District to transport students.

First Student operates on

property it leases from the School District.
Webber worked as a school bus driver for First Student.
Starting in 2009, he kept a 3-by-5 foot Confederate flag,
emblazoned with the word "Redneck," hanging from an antenna on his
pickup truck.

Webber parked his truck in First Student's employee

parking lot, which is owned by the School District.
There were no complaints about the flag until February 22,
2011, when Bergreen, the School District superintendent, noticed
the flag while walking by Webber's truck.

Bergreen asked Todd,

Webber's supervisor, to remove the flag from District property.
Bergreen states, "I knew the students would see the flag as
they traveled to the Future Farmers of America facility behind the

2

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bus barn.

eJ

The presence of the flag in a location where

students could see it would erode the progress the District has
made to ease the racial tension within the District and be a
detriment to education within the District."

Bergreen Decl.

~

20.

Bergreen told Todd that the Confederate flag violated School
District policy because students had used the flag as a symbol of
white supremacy.

As the R&R notes, it is undisputed that the

School District has experienced racist incidents, both before and
after Webber's termination.

R&R at 25-26.

Several of these

incidents have been associated with the Confederate flag,
including the flag's use by students identifying with a white
supremacist gang called the Crazy White Boys.

R&R at 26.

Todd states, "Bergreen asked me to ask the driver of the
truck to take the flag down while parked on District property.
I agreed to ask the driver of the truck to take down the
flag.

That driver was plaintiff."

Todd Decl.

~

9.

The next day, Todd told Webber that the School District
wanted the flag removed from its property.
Todd explained, "Well,

According to Webber,

[Bergreen] doesn't want people to think

that, like, racist people work here or that it has to do with
racists."

Guest Decl., Ex. 1, at 6.

nothing to do with racism.

Webber replied, "My flag has

. So I am not going to take it

down .hecause one person has a different thought about it."

Id.

On March 1, 2011, Webber asked Todd to see First Student's

1

Each week, about twenty students in the Future Farmers of
America program walked within fifteen feet of the flag.
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- ORDER

policy prohibiting the display of the Confederate flag.

Todd sent

Bergreen an email:
Good afternoon, Do you have a policy in writing that you
can send me on the "flag issue" HR tells me if there is
a written policy we can get this put to rest.
I am
tired of arguing with this driver.
Thank you!
Boardman Decl., Ex. 5.

Bergreen responded to Todd the next day:

Jonel:
Board policy .
. harassment addresses objects
that are offensive and demeaning to protected
individuals and groups.
The Confederate flag is a
symbol of many racists [sic] hate groups.
The fact that
a member of your organization called immediately to
complain about my request not to display the flag on
school property is disturbing as is the fact I was
identified as the person making the request to remove
the flag.
I would have expected a more professional,
proactive and sensitive response from you on the issue.

Todd responded to Bergreen's email:
Ben, I sincerely apologize.
I did not tell the driver
that it was you who asked.
I did tell him it was ~
request from the School District because of a policy and
the bus barn is on School District property, and as our
client he was to comply.
He was one of the drivers that
was in the drivers room when you came over.
I did wait
until the next day to talk to him, and I heard that it
had been reported to a TV station.
I called him and
asked him what was going on.
And he told me it was
another driver who had called, not him.
I do not
believe him.
I am truly sorry that I did not handle
that in a more professional manner.
Id., Ex. 12 at 8.
Todd met again with Webber.

Todd told Webber that he would

be suspended if he refused to take down the flag.

Webber rejected

options offered by Todd, such as taking the flag down while the
truck was on School District property, parking the truck on a coworker's property nearby, or rolling up or covering the flag.
Webber understood the restriction on displaying the flag applied
4

- ORDER

only when the flag was on School District property.
Todd suspended Webber for one day for refusing to comply with
her order.

The suspension was reported in the news media.

Van Criddle, First Student's regional operations manager,
emailed Bergreen on March 2, 2011:
I hope that Jonel [Todd] has contacted you regarding the
course of action we are taking with regard to the flag
person.
Our HR department has directed us to have him
park the truck out of site [sic] until they could
discuss the matter.
This morning he was given a direct
instruction to remove the flag.
He refused to do so.
He has been suspended with intent to terminate.
He has
threatened to contact the media.
We have contacted our
media department and asked them to make contact with the
local media and inform them that we asked him to remove
the flag while on our property and he refused so we
terminated his employment.
We intend to take full
responsibility for his termination and not mention the
district or district policy at all.
I apologize for any
issues this has caused the District or you and Doug
personally.
Bergreen Decl., Ex. 6B, at 1.

The contract between First Student

and the School District provides that the School District has no
authority over First Student's employment practices, and no power
to discharge or discipline First Student's employees.
Ex . 1, at

<[

21 .

Todd Decl.,

The contract also provides, "Contractor further

agrees that District or its Superintendent shall have the right to
require that any specific employee of the Contractor not furnish
service to District under this Agreement."

Id.

On March 3, 2011, Webber met with Todd and Rowdy Bates, a
manager for First Student based in Grants Pass.

Bates and Todd

suggested that Webber take one of the options Todd had previously
offered, such as rolling up the flag while on School District
property.
5

- ORDER

Webber testified that he "knew Jonel [Todd] did try to

find the solution to it, but all the solutions came up with either
taking down or hiding it [or parking off site]."
1, at 38.

Guest Decl., Ex.

Todd told Webber he would be suspended for three days,

and warned that. he would be terminated if he continued to disobey
her orders.
On March 4, 2011, Bergreen responded to Todd's email:
Jonel, in a perfect world when you asked Mr. Webber to
take down the flag he would have said yes, and that
would have been the end of it.
Of course, that is what
I was thinking would happen.
One thing I will do as
much as possible in the future is communicate with you
in person, person-to-person, or at least by phone during
difficult situations.
E-mail especially during times of
stress does not work well for me.
So I apologize for
being abrupt.
I didn't realize my request could
generate such a huge controversy.
I genuinely
appreciate the work you do for the District and the
great job you do in keeping the transportation system
running smoothly.
Sorry for the delay in getting back
to you and for not being more sensitive to your
situation.
It has been a challenging week on many
fronts.
Smith Decl., Ex. 12 at 10.
Bergreen emailed Criddle, First Student's regional manager:
Reactions to the flag issue appear to be on the
decrease.
The next time we get together, it may be
worth it to take some time to analyze how to best deal
with difficult issues between our two organizations.
I
am always looking to profit from going through difficult
situations and the lessons to be learned for next time I appreciate your -support and speedy response
- if any.
to my concerns.
Sorry for the delay in getting back to
you -- I had several other challenging issues this week
as well.
Thanks.
Bergreen,Decl., Ex. 6B, at 1.
Criddle replied to Bergreen:
I would appreciate the opportunity of how to deal with
difficult circumstances in the future.
I will have let
you know when I will be down there next so we can see if
we can find a mutually agreeable time to get together.
6

- ORDER

Hope this week is better than last for both of us.
Bergreen Decl., Ex. 6B, at 1.
Webber testified that on March 8, 2011, Todd told him, "Well,
I got tc ask you again.

Are you going to take the flag down?"

Guest Decl., Ex. 1, at 43.

Webber said, "Nope."

Webber

understood the options previously offered by First Student were
still available to him.

Todd told Webber he was terminated for

insubordination.
II.

First Student Was Not Acting Under Color of State Law

Plaintiff claims that First Student, a private corporation,
violated his First Amendment rights.

"But the First Amendment

protects individuals only against government, not private,
infringements upon free speech rights."
Work Furlough,

George v. Pacific-esc

91 F.3d 1227, 1229 (9th Cir. 1996)

(per curiam).

Webber must show First Student's termination "somehow constitutes
state action."

Id.

He must overcome the presumption that a

private actor's conduct is not state action.

Florer v.

Congregation Pidyon Shevuyim, N.A., 639 F.3d 916,
2011), cert. denied, 132 S. Ct. 1000 (2012).

922

(9th Cir.

As the R&R notes,

although there may be issues of fact regarding the extent of state
involvement, the ultimate determination on state action is a
question of law for the court.
Yarestsky, 457 U.S. 991,

997

R&R at 8 (citing Blum v.

(1982)).

A. Determining Whether a Private Actor Acts Under Color of
State Law

"State action may be found if, though only if, there

lS

such

a close nexus between the State and the challenged action that
7

- ORDER

seemingly private behavior may be fairly treated as that of the
State itself."

Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d

950, 955 (9th Cir. 2008)

(en bane)

(citing Brentwood Acad. v.

Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)).
The Ninth Circuit uses four approaches to determine whether
private conduct is attributable to the state:
function;

(2)

joint action;

(3) governmental compulsion or

coercion; and (4) governmental nexus."
F.3d 1088, 1092

"(1) public

(9th Cir. 2003)

Kirtley v. Rainey, 326

(quotation omitted).

These are

"simply factors that may be considered in a flexible approach to
state action."
B.

Villegas, 541 F.3d at 957 n.4.

Webber's Termination Was Not Under Color of State Law

1.
The Public Function and Governmental Nexus Tests Do
Not Apply

The R&R correctly concludes that neither the public function
nor the governmental nexus tests applies here.
2.

There Is No Joint Action

The R&R concludes disputed issues of material fact exist
whether Webber's termination was the result of joint action
between First Student and the School District.

The R&R correctly

states there is no evidence of a conspiracy between First Student
and the School District.

R&R at 14-15.

The R&R then concludes,

however, that issues of fact exist whether the School District
"'has so far insinuated itself into a position of interdependence
with [the private party] that it must be recognized as a joint
participant in the challenged activity.'"
Collins v. Womancare, 878 F.2d 1145, 1154
8

- ORDER

R&R at 15 (quoting
(9th Cir. 1989)

(R&R

omits citation and quotation marks)).
For joint action to exist, there must be willful,

joint

participation between the state and private actors in which "the
state knowingly accepts the benefits derived from unconstitutional
behavior." Florer,
omitted).

639 F.3d at 926 (citations and quotations

"The joint action test is not satisfied absent willful

joint participation,

. where the state was in 'a position of

interdependence with the private entity.'"

Id. at 927

(citations

omitted).
The School District and First Student did not jointly
participate in terminating Webber.

There is no evidence from

which a reasonable jury could find Bergreen, or anyone else from
the School District, asked First Student to terminate Webber, or
even to discipline him.

Under its contract with First Student,

the School District had no right to terminate or discipline First
Student's employees.

Only First Student could do so.

The R&R notes First Student relied on the School District's
policy when it required Webber to remove the Confederate flag
while his truck parked was on School District property.

The

School District's policy against the display of demeaning,
disruptive symbols did not require Webber's termination.

Webber's

termination was solely First Student's decision.
The R&R cites Webber's arguments that the School District
"used First Student to indirectly violate his First Amendment
rights" and "provided the impetus for the constitutional violation
and took no action to dissuade First Student from engaging in the

9

- ORDER

course of action effecting that violation."

R&R at 16.

No

reasonable jury could construe the School District's inaction as
evidence of joint participation in First Student's termination of
Webber.
3.

There Is No Coercion

"Under the state compulsion approach, a private entity acts
0

as the state when some state law or custom requires a certain
course of action."

George,

91 F.3d at 1232.

As the R&R correctly

notes, the facts relevant to the compulsion test are undisputed.
R&R at 11-12.

I agree with the R&R that there is no "direct

evidence that [the School District] caused Webber's termination."
R&R at 13.

In arguing that the School District coerced First

Student into terminating Webber, Webber resorts to speculation and
unjustified inferences.
Bergreen asked First Student to remove the Confederate flag
from School District property.

The exchange of emails shows

Bergreen never threatened First Student with any consequences if
the flag was not removed, such as canceling the School District's
contract with First Student.

A reasonable jury could find

Bergreen acquiesced in First Student's decision to terminate
Webber, but the state's acquiescence in, or even approval of, a
private actor's conduct is not coercion.

Caviness v. Horizon

Community Learning Center, Inc., 590 F.3d 806, 817

(9th Cir. 2010)

("' [a]ction taken by private entities with the mere approval or
acquiescence of the State is not state action'")

(quoting Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999)).

10 - ORDER

The R&R cites the agreement between First Student and the
School District, which gives the School District "the right to
require that any specific employee of [First Student] not furnish
service to District under this Agreement."

As the R&R correctly

notes, this provision does not allow the School District to
terminate or discipline a bus driver employed by First Student,
only to require that a particular bus driver not work in the
District.

The contractual right to preclude a specific employee

from providing service to the School District (a right that the
School District did not invoke here) does not show the School
District compelled First Student to terminate Webber.

See George,

91 F.3d at 1231 (terminated employee could not show state action
even though the state "retain[ed] the right to dismiss" the
employee, because the state had "neither legally regulated nor
contractually specified the manner in which [the private actor]
disciplines or terminates its own employees").
In a recent decision, the First Circuit concluded there was
no state action when a state agency exercised a similar
contractual right.
(1st Cir. 2012).

Mead v. Independence Ass'n, 684 F.3d 226, 230
There, the private employer operated fifteen

assisted living facilities under a contract with the state agency.
The plaintiff, Mead, was director of all the facilities.

After an

investigation, the state agency invoked its contractual right to
require that the private employer replace Mead as director of one
of the facilities.

Mead was later terminated by the private

employer, based in part on the agency decision.

11 - ORDER

The First Circuit affirmed the dismissal of § 1983 claim
because Mead did not allege the state agency ordered that she be
"terminated from her employment, which is the essence of Mead's
claim.

So far as [the agency] was concerned, Mead could have

continued to work in some capacity [at the facility], as well as
remained in her position as administrator of [the employer's]
fourteen other assisted living facilities."

Id.

The court

concluded that the private employer's "choice to fire Mead cannot
be 'deemed to be that of the State,' and [the employer] cannot be
held accountable for that choice under § 1983."
v. Yaretsky, 457 U.S. 991, 1004

(1982)).

Id.

(quoting Blum

The same logic applies

here.
The R&R also states that "while First Student argues it acted
alone in imposing the progressive disciplinary actions against
Webber and ultimately terminated his employment, the credibility
of this argument is undermined by the fact that First Student was
aware of Webber's flag for 18 months and took no action against
him until Bergreen's demand."

R&R at 13.

First Student's

inaction until Bergreen complained about the flag shows only that
First Student was unaware of the School District policy or of
Webber's flag.

Once Bergreen brought the School District policy

to Todd's attention, First Student attempted to comply with it.
Webber also argues that "Bergreen did not attempt to dissuade
or discourage First Student from acting against Webber using the
District's policy, but rather expressed his thanks and
appreciation and suggested that the parties analyze the situation

12 - ORDER

for 'lessons to be learned for next time.'"

R&R at 13.

No

reasonable jury could find compulsion under these facts.
Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164

See

(1978).

Because Webber cannot show his termination was under color of
state law, I do not address his claim that the termination
violated-his First Amendment rights.

See George, 91 F.3d at 1230

("Demonstrating state action is a necessary threshold which George
must cross before we can even consider whether Pacific infringed
upon his First Amendment rights to free speech.").
CONCLUSION

Magistrate Judge Clarke's Report and Recommendation (#49) is
adopted in part and not adopted in part.
claims are dismissed.

Plaintiff's state law

Defendants' motions for summary judgment

(#28, #32) are granted.
IT IS SO ORDERED.
DATED this

~day

of February, 2013.

~rl~~1f&{~/
OWEN M. PANNER
U.S. DISTRICT JUDGE

(

13- ORDER