Diss v. Portland Public Schools et al

Filing 56

OPINION & ORDER: Defendants' Motion for Summary Judgment 34 is Granted. Signed on 11/22/16 by Magistrate Judge Paul Papak. (gm)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
WILLIAM C. DISS,
No. 3:14-cv-01649-PK
Plaintiff,

OPINION AND ORDER

v.
PORTLAND PUBLIC SCHOOLS,
et al.,
Defendants.

PAPAK, Magistrate Judge:
Plaintiff William C. Diss brings this employment discrimination action against
defendants Portland Public Schools (the School District); Carol Campbell, the principal at
Benson Polytechnic High School (Benson) from 2011to2013; Jeandre' Carbone, a vice
principal at Benson; and Frank Scotto, the School District's regional director for human
resources. 1 Plaintiff, who was a teacher at Benson, asserts that Defendants disciplined and
ultimately terminated him because of his religious beliefs, in particular because of his
opposition to Planned Parenthood. Plaintiff brings claims under the First Amendment and the
Equal Protection Clause, and under federal and state statutes prohibiting discrimination based
on religion.

I. Plaintiff voluntarily dismissed the other defendants named in his complaint. Plaintiff has
abandoned his claims for due process violations, hostile environment, whistle-blowing, and
wrongful discharge.

1 - OPINION AND ORDER

Defendants now move for summaty judgment on all of Plaintiffs claims. After
reviewing the briefs and suppo1iing exhibits, I grant Defendants' Motion for Summary
Judgment.
The key issue underlying all of Plaintiffs claims is Defendants' motivation for
te1minating Plaintiff. Plaintiff contends that Defendants "unfairly target[ed)" him "because of
his religious beliefs." Pl. Opp'n. 2, ECF No. 41. I conclude, however, that Defendants have
shown that they had valid, non-discriminatory reasons to discipline and terminate Plaintiff.
The record contains multiple repo1is from administrators and colleagues describing Plaintiffs
ineffective and rigid teaching style, as well as a pattern of complaints about Plaintiffs
disrespectfol and demeaning conduct towards his students, colleagues, and administrators. In
response, Plaintiff has not presented evidence from which a reasonable ju1y could find that
Defendants retaliated against Plaintiff because of his religion.

BACKGROUND
Plaintiff is a devout Catholic who follows "all of the church's teachings about sexual
health and morality, and observe[s] the church's teachings on defending and promoting the
dignity oflife from the moment of conception until natural death." Diss Deel.

~

2, ECF No.

42. Plaintiff joined "a coalition ofreligious and community organizations to educate the
public about the evils of abortion and Planned Parenthood." Diss Deel.~ 4. Plaintiff has
organized protests against Planned Parenthood and abo1iion, and he is a leader of Precious
)

Children of Portland, which "promotes the sanctity of human life and opposes abo1iion." Diss
Deel.~

13.
Plaintiff began teaching at Benson in August 2002. He initially taught computer

science and technology, electronics, and drafting.
Starting in the 2006-07 school year and continuing throughout his tenure at Benson,
Plaintiff was repeatedly disciplined by administrators for making derogatory comments to
students. Plaintiff now asse1is that he "never attempted to demean or insult students -- only to

2 - OPINION AND ORDER

motivate their behavior and improve their conduct." Pl. Trial Br. 6, ECF No. 53. Plaintiffs
own testimony, however, indicates a different approach. Plaintiff was asked at his deposition,
"if a student feels demeaned by the teacher, ... that's not a good thing, is it?" Plaintiff
responded, "No. I think it's great. I felt demeaned quite a few times in school of how a
teacher treated me, but then I knew that I had to kind of get my act together." Depo. Trans., at
3, ECF No. 51-1. Plaintiff explained, "I think eve1y teacher has to use terms that might seem
harsh, demeaning, you know, pick your favorite adjective, to make sure there's good order in .
. . a classroom and to let people know the consequences of their behavior." Depo. Trans., at 3.
The record indicates that Plaintiff adhered to this philosophy during his teaching career at
Benson.
In September 2006, Benson principal Christie Plinski, who had hired Plaintiff,
reprimanded Plaintiff for his "instructional style and denigrating language toward students."
Norwood Deel., Ex. 1, at 154-55, ECF 36-2. Plinski noted that "this was not the first
conversation -- and indeed warning -- about this type ofbehaviOr in your classroom." Plinski
stated, "In responding to my questions, you conceded that you had wanted to make an
impression on the students and to warn them to be 'on their best behaviors' for a substitute
teacher. You stated that you often used te1ms like 'bum, slacker, loser' with the students to
'get them to realize the future is looking down on them' and that 'In a few years, rubber meets
the road and its [sic] imp011ant to stmi working on things.' You further stated that you often
used these tenns 'in jest."' Plinski explained that "at no time is it appropriate to use
pejorative terms with students along the lines of 'bum, slacker, loser,' and that words such as
these do not motivate students, but rather denigrate and demean them." Plinski stated that she
had warned Plaintiff about his use of denigrating words the previous summer. Plinski
concluded that Plaintiffs denigrating behavior towards students must stop immediately.
In April 2007, Plaintiff"organize[d] a protest against Planned Parenthood building a
new facility in No1iheast Portland." Diss Deel.

3 - OPINION AND ORDER

if

4. During that time, Plinski reprimanded

Plaintiff for using a school telephone during working hours to call a neighborhood coalition to
complain about a proposed Planned Parenthood facility. Plinski told Plaintiff to use his own
time and resources when promoting personal and political beliefs, and warned Plaintiff not to
represent himself as a public school employee when promoting those beliefs. Ex. 162, ECF
No. 43-14.
In November 2007, vice principal Susan Schenk wrote Plaintiff a letter of reprimand,
ordered him to "stop using demeaning te1ms such as looser [sic], slacker, ugly and stupid.
You will stop engaging in put downs in which you make fun of students and they are allowed
to make fun of you in response." Norwood Deel., Ex. 1, at 156. Schenk noted that Plaintiffs
teaching style made students "perceive that you dislike them because you insult them or their
classmates. They feel angry, unsafe and unmotivated."
In December 2007, a local reporter recognized Plaintiff as a teacher at Benson while
Plaintiff was leading an anti-ab01iion rally. Schenk warned Plaintiff not to associate Benson
or the School District with his political or religious activities. Schenk reminded Plaintiff that
he had agreed not to identify himself as a School District employee during his anti-abo1iion
activities. Schenk attached a copy of the School District's rules and guidelines governing
political conduct by its employees.
In 2009, vice principal Ba11'y Phillips twice issued letters of warning to Plaintiff. In an
April 2009 letter, Phillips stated that Plaintiff told a student "that you're going to end up in
front of a judge and go to prison, be a bum, and that he better start filling out his cardboard
box sign." Norwood Deel., Ex. 1, at 157. Phillips ordered Plaintiff not to "communicate to
any student in a derogatory or disrespectful manner."
Phillips later testified that when Plaintiff staiied teaching math at Benson, "complaints
started coming in ... frantically. Like every day almost. Several per week [from different
students]." Norwood Deel., Ex. 1, at 122.
In another April 2009 letter to Plaintifl: Phillips stated that Plaintiff had failed to

4 - OPINION AND ORDER

respond to several complaints from parents of students in Plaintiffs classes. Norwood Deel.,
Ex. 1, at 158. Plaintiff then failed to appear at a scheduled meeting with a parent, resulting in
the meeting starting almost 20 minutes late. Phillips stated that Plaintiffs ignoring or
minimizing the meeting "reflects poorly on you, Benson H.S., and [is] extremely discourteous
to the student's family and very unprofessional."
In May 2009, Phillips issued a second warning to Plaintiff, ordering him to "cease and

desist" "telling students they should join the 'do nothing club' and battle out who should be
president, announcing how many assignments any student has turned in [in] front of the entire
class." Norwood Deel., Ex. 1, at 159. Phillips concluded, "The expectation for the future is
that you will not communicate to any student in a manner considered degrading, humiliating,
harmful, unprofessional, derogatory or in a disrespectful manner."
Also in May 2009, then-principal Steve Olczak evaluated Plaintiff based on his
personal observation of Plaintiffs teaching methods. Olczak noted Plaintiffs "continuous
use of sarcasm, and supposed humorous remarks to students that are negative by nature and
tend to draw like responses from students." Norwood Deel., Ex. 1, at 196. Although Plaintiff
told Olczak that his comments were meant to challenge students, Olczak observed "many
students are offended and do not respond well to these confrontational, and derogatory
remarks." Norwood Deel., Ex. 1, at 196. Olczak noted, "Calling students stupid, or bums,
does not earn student respect. Likewise, inte1jecting specific opinions about individual
[students'] behavior that is confidential information, and e-mailing the entire staff, [most of
whom] do not even know the student is both disrespectful and professionally unacceptable."
Norwood Deel., Ex. 1, at 196.
Plaintiff added a handwritten note to the evaluation, stating that it was "ve1y unfair,"
and added, "I will be praying for all of those at this district and the school who seem to enjoy
harassing Mr. Diss." Norwood Deel., Ex. 1, at 199, Plaintiff now states that he "believe[s]
the evaluation was largely based on the publicity that smTounded my political activities at the

5 - OPINION AND ORDER

time." Diss Deel.

~

9. Other than Plaintiffs own speculation, however, there is no evidence

that Olczak's negative evaluation in 2009 was linked in any way to Plaintiffs religion or his
political activities.
Plaintiff filed a grievance challenging the 2009 evaluation. Based on an unrelated
settlement agreement between the School District and the union, the evaluation was later
removed from Plaintiffs personnel file, along with about ten other employee evaluations.
Fargey Deel., Ex. 7, ECF No. 43-7.
Defendant Carol Campbell began working as the principal at Benson in the 2011-12
school year. Campbell is Catholic and had worked 14 years as a teacher and administrator at a
private Catholic high school before taking a teaching job at Grant High School in Po11land.

See Defs. Witness Statements 3, ECF No. 49. Defendant Jeandre'. Carbone started as vice
principal at Benson at the same time.
Campbell first met Plaintiff in the summer of 2011, when he visited her in her office.
At that time, Plaintiff was not assigned to a particular school.
In October 2011, the School District notified Campbell that Plaintiff would be
assigned to teach math full-time at Benson. Phillips had previously told Campbell that based
on his experience with Plaintiff, Campbell should not accept Plaintiff as a math teacher,
noting that Plaintiff was the subject of multiple student complaints and requests to transfer out
of his class. Norwood Deel., Ex. 1, at 122, ECF No. 36-1. There is no evidence in the record
that Campbell was aware at this time of Plaintiffs religion or his opposition to Planned
Parenthood. Campbell emailed the School District on October 11, 2011, asking to replace
Plaintiff with another math teacher. Campbell stated that Plaintiff"is not a good fit for this
position and has proven himself incapable of being an effective teacher." Norwood Deel., Ex.

1, at 201.
Plaintiff sent Campbell an email using the phrase "God bless." Campbell told Plaintiff
to refrain from using such religious phrases in professional emails to parents or School

6 - OPINION AND ORDER

District employees. Campbell was told by her predecessor that a parent had complained about
Plaintiff's use of religious phrases in an email. Another parent complained during Campbell's
tenure about Plaintiffs use of religious phrases in his communications.
During the 2011-12 school year, Campbell observed Plaintiffs computer science class.
She worked with Plaintiff to improve his teaching skills. She noted that Plaintiff was
disorganized and did not plan lessons or prepare to use class time effectively. Campbell also
noted that an unusually high munber of students had dropped or transferred out of Plaintiffs
computer science class. Norwood Deel., Ex. 1, at 11. Although Campbell worked with
Plaintiff throughout the school year, she saw no improvement.
For the 2012-13 school year, Campbell decided to assign Plaintiff to teach a computer
science class and a tutorial class with computers available, in an attempt to use Plaintiffs
strengths and avoid assigning him to math classes. Norwood Deel., Ex. 1, at 12.
In September 2012, Campbell arranged for presentations to encourage students, with
parental pe1mission, to join the Teen Outreach Program (TOP), a voluntary federal program
intended to reduce academic failures and teen pregnancies. TOP was presented to students by
facilitators, who were trained to ensure that the program is essentially the same nationally.
For the 2012-13 school year, defendant Campbell chose to move TOP from the health
class to tutorial class, to avoid cutting into instructional time. She also dete1mined that TOP
would not include any sex education, because that was already covered in health class.
Students who chose to participate in TOP \\'.ould be dismissed from tutorial classes to attend
TOP meetings in another classroom.
On September 11, 2012, Carbone emailed Plaintiff and the other tutorial teachers
explaining that TOP facilitators would be visiting tutorial classrooms on September 17 and
18, 2012, to talk to students. Carbone's email did not mention that the TOP presenters would
be employees of Plauned Parenthood, and there is no evidence that Carbone or Campbell
knew Planned Parenthood employees would be involved until the day the TOP presenters

7 - OPINION AND ORDER

anived at Benson.
On September 17, 2012, as scheduled, TOP facilitator Austin Lea entered Plaintiffs
tutorial classroom with TOP brochures and posters. Plaintiff read a letter from TOP directed
to parents, describing TOP as an evidence-based, youth development program administered by
the Northwest Coalition for Adolescent Health and its member Planned Parenthood Columbia
Willamette. The letter stated that TOP focused on "supp01iing healthy behaviors," developing
life skills," and "finding a sense of purpose." The letter did not mention sexuality or ab01iion.

Plaintiff became very upset by the presence of Planned Parenthood employees.
Plaintiff interrupted Lea and asked him to step outside the classroom, where he told Lea to get
out of his classroom because Lea worked for Planned Parenthood. Plaintiff claimed that
Planned Parenthood was racist and practiced eugenics. Another TOP presenter then went to
Campbell's office and asked for her assistance in dealing with Plaintiff.
Campbell went to the class and asked Plaintiff why he had interrupted the program.
Plaintiff said that TOP was against his religious beliefs, and that he opposed it. Plaintiff
refused to discuss the issue futiher without a union representative. Campbell stated that she
did not know Plaintiffs religious beliefs. Plaintiff told Campbell that he was sick to his
stomach and went home.
That night, Campbell emailed Plaintiff, stating that she respected his religious beliefs,
but TOP was approved by the School District and was not religious. Campbell told Plaintiff
that he needed to allow the TOP presentation at his tutorial class the next day.
The next day, September 18, 2012, TOP presenters came to Plaintiffs tutorial class.
Plaintiff again did not cooperate with the presentations. One of the presenters sought
Campbell's help. Campbell observed Plaintiff harassing the presenters by repeatedly asking
them who they worked for and following them around the room.
On September 19, 2012, Campbell, Carbone, and Scotto met with Plaintiff, who was
8 - OPINION AND ORDER

represented by an attorney who appeared by phone. Defendants discussed Plaintiffs refusal
to allow the TOP presenters into his tutorial class. Plaintiff asserted that TOP concerned
family planning, contraception, and abortion. Defendants responded that Plaintiff did not
understand TOP, which was not religious. Defendants ordered Plaintiff to allow TOP
presentations in his classroom. Plaintiffs attorney advised him to obey that directive.
Later that day, at another TOP presentation, Plaintiff spent more than 20 minutes
taking attendance, although there were only 10-15 students. Carbone arrived to see whether
Plaintiff was complying with Defendants' orders to allow TOP presentations. According to
Carbone, when she started to introduce the TOP presenters, Plaintiff interrupted, asking loudly
whether he could finish taking attendance. Carbone said that she thought he was finished, and
Plaintiff became louder and said, "What, are you saying I'm slow?" Norwood Deel., Ex. 1, at
44. When the TOP presentation was done, Plaintiff asked Carbone in front of the students
whether she thought he had been rude. Carbone asked Plaintiff to discuss the matter at
another time, and Plaintiff responded, "I think I have a right to know if you think I was rude or
not." Norwood Deel., Ex. 1, at 47. Plaintiff moved very close to Carbone and raised his
voice. Carbone was concerned that Plaintiff had repeatedly yelled at her in front of students.
On September 20, 2012, Carbone returned to Plaintiffs tutorial class to confirm that
he would allow the TOP presentation to proceed. Plaintiff again used 20 minutes to take
attendance. When the TOP presenters began to speak, Plaintiff intenupted and asked Carbone
whether he could talk to the class. Plaintiff told the students he was sorry to disappoint them
but that the multiplication table lesson would be postponed because the TOP guests had
priority. Norwood Deel., Ex. 1, at 147. Carbone asked Plaintiff to talk to her later in private
about the multiplication tables, reminding Plaintiff that the tutorial class was to be for
independent study, not math class. Plaintiff repeatedly intenupted Carbone, stating, "Put it in
writing" several times. Norwood Deel., Ex. 1, at 148. Carbone left the class in frustration.
On September 26, 2012, Campbell issued a written reprimand to Plaintiff for his
9 - OPINION AND ORDER

obstruction of the TOP presentations. Norwood Deel., Ex. 1, at 145. Campbell directed
Plaintiff to comply with administrative directives; to notify the administration ifhe had
difficulty complying with a directive; and to stop verbally attacking TOP presenters by calling
them "racist" or other insults.
After receiving "a number" of emails from Plaintiff using the phrase "God bless you,"
on September 26, 2012, Carbone told Plaintiff not to use religious phrases in his professional
communications with staff or students. Norwood Deel., Ex. 1, at 50, 144. Carbone stated that
she had learned that public school teachers "are required to remain religious neutral" in
official communications. Norwood Deel., Ex. 1, at 50.
On October 8, 2012, Campbell issued a letter of reprimand to Plaintiff for his
harassment and other unprofessional behavior towards Carbone. Campbell wrote that when
she met with Plaintiff earlier that day, Plaintiff indicated he "did not view [his] actions as
disrespectful and/or unprofessional," but he assumed Campbell and Carbone thought he was
disrespectful or rude. Norwood Deel., Ex. 1, at 148.
Campbell stated that Carbone felt "intimidated, bullied and harassed" during her
interactions with Plaintiff. Campbell noted that Plaintiff had refused to talk with Carbone in
private, away from students, and interrupted her several times. Campbell stated that
Plaintiffs conduct undermined Carbone's ability to keep the respect of students, and that his
conduct violated the School District's anti-harassment policy. Campbell issued directives to
Plaintiff: requiring that he behave professionally at all times; communicate with colleagues
and administrators in a respectful, professional tone; and not attempt to harass or intimidate
administrators or colleagues.
That evening, Carbone attended a Benson football game as an administrator. During
the game, Plaintiff confronted Carbone in the stands, yelling at her, "Hey, I'm really sorry if
you thought I was rude to you a few weeks ago, but I thought you were really rude too."
Plaintiff now alleges that he "attempted to apologize to Ms. Carbone over the loud

10 - OPINION AND ORDER

football game -- I never intended to shout or be rude -- I was being genuine. . . . I had to
speak loudly to her because of the football-volumed cheers of the students." Diss Deel.~ 22.
Carbone, and several witnesses, had a different impression of Plaintiff's conduct. Carbone
thought that Plaintiffs apology was sarcastic, and she was shocked that he would confront her
this way in front of parents and students. Carbone considered Plaintiffs behavior aggressive
and disrespectful to her. At least two parents who witnessed the event thought Plaintiff was
unprofessional. One parent stated in an email to the school that she "was appalled that this
had even happened, that another staff member would act this way in front of a crowd in such
an arrogant and rude manner." Norwood Deel., Ex. I, at 202, ECF No. 36-2.
On October 15, 2012, Plaintiff, his union representative, and an attorney met with
Campbell, Carbone, and Scotto about Plaintiffs conduct at the football game. Plaintiff
characterized his conversation with Carbone to be "somewhat private" because of the noise at
the football game. Norwood Deel., Ex. 1, at 150.
In a subsequent warning letter to Plaintiff dated October 18, 2012, Campbell stated
that she believed Plaintiff was "intentionally harassing" Carbone. Norwood Deel., Ex. 1, at
150. Campbell noted that Plaintiff had been reprimanded on the day of the football game for
similar conduct, raising his voice and undermining Carbone's authority in front of students.
Campbell stated that Plaintiffs conduct at the football game had also undermined Carbone's
authority, noting that students "sitting in the area were laughing." Norwood Deel., Ex. 1, at
150. Campbell stated that Plaintiffs "tone and body language was intimidating and rude.
Considering the meetings, directives and reprimands that have occurred in the past few weeks,
I would expect you to make every effort to ensure you conduct yourself in a professional
manner. Instead, you seem to be intentionally seeking oppo1tunities to be unprofessional and
disrespectful." After recounting the recent letters ofreprimand against Plaintiff, Campbell
stated that this was Plaintiffs final warning. She suspended Plaintiff for one day without pay,
October 22, 2012.

11 - OPINION AND ORDER

Carbone evaluated Plaintiffs teaching during the 2012-13 school year. She observed
Plaintiff teaching Introduction to Computers in October 2012, and Advanced Algebra and
Geometry in November 2012. Carbone states that she received "a high volume" of written
and oral complaints about Plaintiffs "rigid instructional style; the complaints were frequently
accompanied by requests to transfer out of his classes." Carbone Deel.~ 6, ECF No. 35.
Concerned about the number of complaints, Carbone again observed Plaintiffs teaching, and
noted that he had not implemented most of the recommendations from her previous
evaluations. Plaintiff was "among the least compliant of all teachers at Benson" in submitting
lesson and unit plans. Carbone Deel. ~ 10.
In her evaluation of an algebra class on November 15, 2012, Carbone noted Plaintiff
required students to memorize multiplication tables, and gave a quiz at the beginning of each
class, even though multiplication tables are not part of the Oregon requirements for algebra.
Carbone Deel., Ex. 2, at 5. Carbone again gave Plaintiff specific recommendations to
improve his teaching.
Between November 13, 2012, the first day of Plaintiffs math class, and Janumy 8,
2013, Carbone received written complaints from 16 students and their parents. Many of the
complaints requested transfers from his class, and criticized Plaintiffs requirement that
students memorize multiplication tables in an advanced algebra class.
Plaintiff contended that Campbell and Carbone believed students' complaints rather
than accepting Plaintiffs version of the events. In response, Carbone asked Joshua Curtis,
who taught in a classroom next to Plaintiff, to report on Plaintiffs teaching style.
Curtis stated that Plaintiff "yelled at students to get the classes attention, during
confrontations with students and when he appears to have lost control of his behavior.
[Plaintiff] does not appear to have any other means of getting students attention, or managing
the class. He will yell at a whole class several times a week before taking attendance."
Norwood Deel., Ex. 1, at 167.

12 - OPINION AL"\/D ORDER

Curtis noted that Plaintiff "will also get into confrontations with students" for "minor
misbehavior" such as talking quietly to a neighboring student or drinking water from a
fountain in the classroom. Plaintiff did not tell students his expectations at the beginning of
the class, so students were unaware that they were misbehaving until Plaintiff yelled at them.
Curtis cited specific examples, such as Plaintiff yelling at a student for not retrieving a pencil
fast enough, or calling another student "disgusting" because the student was unprepared for
class. Cmiis concluded that Plaintiffs behavior caused many students to drop Plaintiffs
courses.
In an evaluation dated Februmy 4, 2013, Carbone summarized her observations of
Plaintiff's teaching. She noted his "instructional rigidity," with every student required to do
the same problem, the same way, regardless of background or experience. On the first day of
advanced algebra class, Plaintiff required that students write, "Mr. Diss is the boss and all
problems need to be worked how Mr. Diss says." Carbone noted that Plaintiff was
inconsistent in managing student behavior, either "strict and oppressive, not allowing students
to speak at all, or he is inattentive and seems unaware that students have finished their work
and are off task." Carbone Deel., Ex. 8, at 3.
At a meeting with School District administrators on February 12, 2013, Plaintiff was
notified about the evidence of his poor classroom conduct, as rep01ied by students and Cmiis.
Plaintiff admitted some but not all of the conduct.
On Februmy 28, 2013, Campbell issued a second final warning, directing Plaintiff to
stop behaving unprofessionally towards students.
On March 1, 2013, a student named Ivan told Amy Slaughter, a teacher, that Plaintiff
given a geometly test question that named Ivan as a person trapped in a burning building. The
student was in tears and seemed upset by the question. Slaughter found Plaintiffs decision
use the student's name in the math problem to be "completely" inappropriate. Norwood
Deel., Ex. 1, at 131.

13 - OPINION AND ORDER

Plaintiff states that the question was intended to get the student, who was very passive,
involved in the class. Plaintiff states that the student "liked it," showing excitement about
being named in the question, and that it was the only question the student answered. Diss
Deel.

~

29.
On March 19, 2013, Plaintiff was placed on paid administrative leave. Norwood

Deel., Ex. 1, at 204, ECF No. 36-2. On December 16, 2013, the Board of Education approved
the dismissal of Plaintiff, effective the next day. Norwood Deel., Ex. 1, at 191.
STANDARDS
The court must grant summary judgment if there are no genuine issues of material fact
and the moving pa1iy is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). If the
moving pmiy shows that there are no genuine issues of material fact, the nonmoving paiiy
must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving pa1iy's burden "is not a light one ....
The non-moving party must do more than show there is some 'metaphysical doubt' as to the
material facts at issue." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
The substantive law governing a claim or defense determines whether a fact is
material. ivfiller v. Glenn 1Hiller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). A dispute as
to a material fact is genuine "'if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'" Vi/liarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061
(9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The
court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477
U.S. at 255. A "mere disagreement or the bald assertion that a genuine issue of material fact
exists" is not sufficient to preclude the grant of summary judgment. Harper v. Wallingford,
877 F.2d 728, 731 (9th Cir. 1989).

14 - OPINION AND ORDER

DISCUSSION
I. First Amendment Claims
Plaintiff brings three claims under the First Amendment, asserting that Defendants
retaliated against him in violation of his rights to free speech, to free association, and to the
free exercise of religion. To establish a retaliation claim for asserting rights under the First
Amendment, Plaintiff must show that (I) he was subjected to an adverse employment action;
(2) he engaged in protected speech; and (3) the protected speech was a "substantial motivating
factor" for the adverse employment action. See Ulrich v. City & Cty. ofSan Francisco, 308
F.3d 968, 976 (9th Cir. 2002).
Because Plaintiff was a public employee, his First Amendment retaliation claims are
evaluated under the test described in Pickering v. Board ofEducation, 391 U.S. 563, 568
(I 968). The First Amendment "protects a public employee's right, in certain circumstances, to

speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410,
417 (2006). On the other hand, the First Amendment "does not empower [public employees]
to 'constitutionalize the employee grievance."' Id. at 420 (quoting Connickv. i\Iyers, 461
U.S. 138, 154 (1983)).
This comi uses a five-part balancing test to evaluate First Amendment claims asserted
by public employees. See Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009) ("unravel[ing]"
and clarifying the Pickering test). The balancing test provides:
First, the plaintiff bears the burden of proof at trial of showing (1) that she
spoke on a matter of public concern; (2) that she spoke as a private citizen
rather than a public employee; and (3) that the relevant speech was "a
substantial or motivating factor in the adverse employment action." [Eng, at
1070-71.] If the plaintiff establishes such a prima facie case, the burden of
proof shifts to the government to show that (4) "the state had an adequate
justification for treating the empfoyee differently from other members of the
general public"; or (5) "the state would have taken the adverse employment
action even absent the protected speech." Id. at 1070-72.
Coomes v. Edmonds School Dist. No. 15, 816 F.3d 1255, 1259 (9th Cir. 2016) (footnote

omitted). "[B]ecause these are sequential steps, a plaintiffs failure to satisfy a single one
15 - OPINION AND ORDER

necessarily concludes [the Court's] inquiry." Johnson v. Poway Unified Sch. Dist., 658 F.3d
954, 961-62 (9th Cir. 2011) (internal quotation marks and citations omitted).

A. First Amendment Claim Based on Free Speech
In Plaintiffs first claim for relief, he asserts that Defendants retaliated against him for
exercising his rights to free speech under the First Amendment. Defendants are entitled to
summmy judgment on this claim because the First Amendment "does not protect speech by
public employees that is made pursuant to their employment responsibilities -- no matter how
much a matter of public concern it might be." Coomes, 816 F.3d at 1260. When public
employees speak pursuant to their ofiicial duties, they are not speaking as private citizens
"'and the Constitution does not insulate their communications from employer discipline.'" Id.
(quoting Garcetti, 547 U.S. at 421). Here, it is undisputed that the speech Plaintiff asserts is
protected "owes its existence" to Plaintiffs position as a teacher, so Plaintiff necessarily
"spoke as a public employee, not as a citizen." Id. (citations and quotation marks omitted).
For example, Plaintiffs objections to the TOP presenters stemmed from his position as a
teacher. Similarly, Plaintiffs statements to Carbone in his tutorial class stem from his role as
a teacher. Plaintiffs loud apology to Carbone at the football game was not on a matter of
public concern, but rather addressed a personal dispute. In any event, a teacher necessarily
acts as a teacher "for purposes of a Pickering inquiiy when at school or a school function, in
the general presence of students, in a capacity one might reasonably view as official."

Johnson, 658 F.3d at 967.
Even assuming Plaintiff could show that he spoke as a private citizen, he has not
produced evidence that Defendants disciplined him because of his protected speech.
"Speculation as to [a defendant's] improper motive does not rise to the level of evidence
sufficient to survive summmy judgment." Karam v. City of Burbank, 352 F.3d 1188, 1194
(9th Cir. 2003). It is undisputed that Plaintiff was the subject of multiple complaints based
both on his unprofessional conduct and his flawed teaching style. I agree with the Third

16 - OPINION AND ORDER

Circuit that "it is generally appropriate to consider the reactions of students and parents to an
educator's speech under the Pickering balancing test." 1vlunroe v. Central Bucks Sch. Dist.,
805 F.3d 454, 475-76 (3rd Cir. 2015) (noting agreement with decisions from the Second and
Seventh Circuits). Although Plaintiff disputes the validity of some, but not all, of the
complaints against him, the accuracy of the complaints is not relevant to determining
Defendants' motivation for disciplining Plaintiff. Plaintiff has not shown any evidence
indicating that his te1mination was based on his religion or opposition to Planned Parenthood.
Even if Plaintiff had evidence of a discriminat01y motive, Defendants have presented
evidence showing that Plaintiff would have been terminated anyway, given his repeated
defiance of directives to act professionally towards colleagues, administrators, and students.

B. First Amendment Claim Based on Free Association
Plaintiff claims that Defendants retaliated against him because of his association with
a group that opposed Planned Parenthood. Plaintiff has failed to show that Defendants
retaliated against him because of his association. Instead, as discussed in the background
section, Defendants had ample reasons to terminate Plaintiff based on his continued
unprofessional and harassing behavior, which he refused to modify despite repeated
opportunities to do so.

C. First Amendment Claim Based on Free Exercise of Religion
Plaintiff claims that Defendants violated his First Amendment rights to freely exercise
his religion by (1) requiring him to supervise his tutorial class during the TOP presentations;
(2) asking him to refrain from using religious phrases such as "God bless" in professional
communications; and (3) creating an environment that chilled his ability to exercise his
religious beliefs. Defendants are entitled to summary judgment on this claim.
The speech in question generally concems Plaintiffs official duties as a teacher,
precluding protection under the Pickering test. This covers Plaintiffs objections to the TOP
presenters in the tutorial class. As the Ninth Circuit has held, "school teachers have no First

17 - OPINION AND ORDER

Amendment right to influence curriculum as they so choose." Downs v. Los Angeles Unified
Sch. Dist., 228 F.3d 1003, 1015-16 (9th Cir. 2000); Johnson, 658 F.3d at 962-63 (classroom
instruction is part of teacher's official duties and is therefore unprotected employee speech).
Defendants acted properly in directing Plaintiff to avoid religious phrases in his
professional, school-related communications. Public schools "have a constitutional duty to
ensure that public school teachers do not give the impression that the school prefers one
religion or even religion in general." Williams v. Vidmar, 367 F. Supp. 2d 1265, 1273 (N.D.
Cal. 2005); see also Peloza v. Capistrano Unified School Dist., 37 F.3d 517, 522 (9th Cir.
1994) (high school students likely to equate views of a teacher with those of the school).
As to Plaintiffs claim that Defendants created an environment that chilled his ability
to exercise his religion, Plaintiff has not shown that Defendants acted improperly. I agree
with Defendants that Plaintiff has not shown that requiring him to allow employees of
Planned Parenthood into his tutorial class to promote a federally funded program burdened his
religious activities, or permitted him to obstruct the presenters. The presenters were
encouraging students to enroll in the program, not operating the program itself in the class.
In Williams v. California, 990 F. Supp. 2d 1009, 1024 (C.D. Cal. 2012), ajf'd, 764
F.3d 1002 (9th Cir. 2014), the court addressed a similar free exercise claim. There, care
providers for developmentally disabled clients challenged statuto1y requirements that they
accompany clients to religious services, claiming that being present at Jehovah's Witness
services would conflict with their own and their employees' religious beliefs and practices.
The district court rejected the First Amendment claim, reasoning that the regulations would
not "require Plaintiffs to adopt any pmticular religious beliefs or to worship, engage in prayer,
or otherwise participate in any religious services. Insofar as the regulations require Plaintiffs
to merely be present at Jehovah's Witness services, and thus inhibit their own practice of
religion because that is something that their religion allegedly prohibits, we cannot say that
this is the 'primary effect' of the regulations." Id Similarly, here Defendants required only

18 - OPINION AND ORDER

that Plaintiff be present while the TOP presenters described the program to students.

II. Qualified Immunity
As an alternative holding, I conclude that the individual defendants are entitled to
qualified immunity. Even if Plaintiff could show a violation of his constitutional rights, he
has not shown that reasonable officials in the individual defendants' positions would have
known that their actions would violate Plaintiffs constitutional rights.
"Qualified immunity shields government actors from civil liability under 42 U.S.C. §
1983 if 'their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known."' Castro v. Cty. ofLos Angeles, 833 F.3d
1060, 1066-67 (9th Cir. 2016) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In
ruling on qualified immunity, the court asks "(1) whether the officer's conduct violated a
constitutional right, and (2) whether that right was clearly established at the time of the
incident." Id. (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
Here, I conclude that Plaintiffs asserted First Amendment right to engage in the
speech at issue was not clearly established. "Because the underlying determination pursuant
to Pickering whether a public employee's speech is constitutionally protected turns on a
context-intensive, case-by-case balancing analysis, the law regarding such claims will rarely,
if ever, be sufficiently 'clearly established' to preclude qualified immunity." 1vforan v. State

of Wash., 147 F.3d 839, 847 (9th Cir. 1998) ("today we join the chorus of voices from other
circuits that have specifically observed the difficulty of finding clearly established law under

Pickering,"). I conclude that Campbell, Carbone, and Scotto are entitled to qualified
immunity as to Plaintiffs First Amendment claims.

III. Equal Protection Claim
Plaintiff brings a claim under the Equal Protection Clause. To prevail on an equal
protection claim, Plaintiff must show that Defendants acted in a discriminatory manner and
that the discrimination was intentional. Reese v. Jefferson Sch. Dist. No l 4J, 208 F.3d 736,
19 - OPINION AND ORDER

740 (9th Cir. 2000). Discrimination is intentional ifthe defendant's action were motivated, at
least in part, by the plaintiffs protected status. Serrano v. Francis, 345 F.3d 1071, I 082 (9th
Cir. 2003).
Here, Plaintiff has failed to present evidence that any similarly situated teacher with a
comparable record of complaints and conduct violations was not dismissed. Nor has Plaintiff
submitted evidence that any defendant was anti-Catholic or otherwise opposed to Plaintiff's
religious beliefs. Defendants are entitled to summary judgment on Plaintiffs equal protection
claim.
IV. The School District Is Entitled to Summary Judgment
A. Civil Rights Claims Under 42 U.S.C. § 1983
The School District may not be held vicariously liable under 42 U.S.C. § 1983 for the
actions of its subordinates. 1vlonell v. Dep't a/Social Servs., 436 U.S. 658 (1978). Instead, to
show that the School District is liable, Plaintiff must present evidence of"'a direct causal link
between a [School District] policy or custom and the alleged constitutional deprivation."'
Castro, 833 F.3d at 1075 (quoting City a/Canton v. Harris, 489 U.S. 378, 385 (1989)).

Here, Plaintiff has failed to present evidence that the School District had a custom or policy of
disciplining or tenninating employees in retaliation for the exercise of First Amendment
rights. Nor has Plaintiff presented evidence that the School District had a custom or policy of
treating Catholic teachers differently than other teachers.
B. Religious Discrimination Claims Under State and Federal Statutes
Plaintiff brings claims for religious discrimination against the School District under
Title VII, 42 U.S.C. § 2000e-2, and under Or. Rev. Stat. § 659A.030. The resolution of the
Title VII claim determines the resolution of the state claim. See Heller v. EBB Auto Co., 8
F.3d 1433, 1441 n.2 (9th Cir. 1993) ("state statutory claim succeeds or fails with [the
plaintiff's] Title VII claim"). To prevail, Plaintiff must show that he suffered an adverse
employment action because of his religion. Id at 1437 (citing 42 U.S.C. § 2000e-2(a)(l)).
20 - OPINION AND ORDER

Here, undisputed evidence shows that Plaintiff was disciplined and ultimately
terminated because of his continued unprofessional conduct. Plaintiff has not shown that he
was te1minated because of his religion. Benson administrators reprimanded Plaintiff for his
demeaning teaching style in 2006, before Plaintiffs 2007 protest of a Planned Parenthood
facility. Plaintiff has not shown that Carbone or Campbell were aware of his opposition to
Planned Parenthood before the TOP presenters anived at Benson in September 2012.
I also conclude that Plaintiff not shown facts suppo1iing his claim that the School
District failed to accommodate his religion. There is no indication that Plaintiff ever
requested accommodation, even though he was represented by counsel at several meetings
with Defendants. Even if Plaintiff had requested an accommodation, he has not presented
evidence that any religious observance or practice conflicted with his official duty as a teacher
to allow the TOP presenters in his tutorial class. Plaintiffs personal antipathy towards
Planned Parenthood and its employees is not sufficient to show the need for a religious
accommodation.

CONCLUSION
Defendants' Motion for Summaiy Judgment, ECF No. 34, is GRANTED.
IT IS SO ORDERED.
DATED this 2.Zt..J...day ofN

21 - OPINION AL"\!D ORDER

ember, 2