Huiner v. Arlington School District, et al.

Filing 66

ORDER granting in part and denying in part 35 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 9/26/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JACQUE HUINER,
Plaintiff,
vs.
ARLINGTON SCHOOL DISTRICT;
CHRIS LUND, individually and in
his official capacity as
superintendent of Arlington
School District; and
RHONDA GROSS, individually
and in her official capacity as
principal of Arlington School
District,
Defendants.

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CIV. 11-4172-KES
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ORDER GRANTING IN PART AND
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DENYING IN PART DEFENDANTS’
) MOTION FOR SUMMARY JUDGMENT
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Plaintiff, Jacque Huiner, filed suit against defendants, Arlington School
District, Chris Lund, and Rhonda Gross, for alleged violations of the Americans
with Disabilities Act (ADA), her constitutionally protected First Amendment
rights under 42 U.S.C. § 1983, her statutorily protected right to be free from
retaliation following her discipline of a student, and state-law claims of
intentional infliction of emotional distress and negligent infliction of emotional
distress. Defendants move for summary judgment on all claims. Huiner agrees
to the dismissal of her retaliation claim following her discipline of a student.

Huiner resists defendants’ motion with respect to all other claims. For the
following reasons, the motion is granted in part and denied in part.1
BACKGROUND
The facts, viewed in the light most favorable to Huiner, the nonmoving
party, are as follows:
Huiner graduated in 2002 from South Dakota State University with a
Bachelor’s degree in art education. Huiner was hired by the Arlington School
District to teach K-12 art in January 2003 following interviews with
Superintendent Lund and Principal Gross. She attained tenure status in 2007.
Huiner’s teaching contract for the 2010-2011 school year required her to teach
K-12 art and serve as the yearbook coordinator. No deficiencies were noted on
Huiner’s annual reviews prior to the 2010-2011 school year.
Although not specifically set out in her contract, Huiner was also
required to teach the credit recovery class in the 2010-2011 school year. The
credit recovery class allowed students to recover credit for classes previously
taken but failed. The parties dispute what responsibilities Huiner had with
respect to the credit recovery class. Huiner alleges she instructed students in

1

Also pending before the court is Huiner’s motion for spoliation
sanctions. Docket 48. In her motion and accompanying briefs, Huiner argues
defendants engaged in the spoliation of electronic evidence in their data
systems. Huiner requests the court deny defendants’ motion for summary
judgment because of her spoliation allegations. The information Huiner claims
may have been stored in defendants’ data systems would not alter this order.
This order relies on the undisputed facts currently in the record, and the court
will take up Huiner’s motion for spoliation sanctions at a later time.
2

the various subjects, gave students grades, and ultimately awarded the
students academic credit. Because she is only certified to teach art, Huiner
does not believe she was qualified to teach the credit recovery class.
During a teacher in-service on August 17, 2010, Huiner approached
Gross in Gross’s office and expressed concern about being assigned to teach
the credit recovery class. Huiner believed she was not qualified to teach the
class because she is only certified to teach art. Huiner also expressed concern
that she would not have any planning time in her daily schedule to prepare her
curriculum for her K-12 art courses. Gross told Huiner that she should speak
with Cindy Hansen, the person who had been in charge of the credit recovery
program during the previous two school years. No action was taken by Gross or
Lund following this meeting, and Huiner was expected to continue teaching the
credit recovery class.
Huiner alleges Gross put her under intense scrutiny following their
meeting in Gross’s office. On September 23, 2010, Huiner admonished Gross’s
daughter for talking during a quiz. When Gross first heard about the incident
from her daughter, Gross took written statements from three students in the
class and Huiner. Huiner’s statement mentioned another student who had
used inappropriate language during the class. Gross did not follow up with
Huiner about the incident with Gross’s daughter and instead spoke with
Huiner about the inappropriate language conduct.

3

Five days later, Gross sent a letter to Huiner to communicate concerns
with Huiner’s teaching performance. There were four major areas of concern:
(1) displaying a negative attitude toward students and staff; (2) not holding
students accountable for swearing and intimidating others; (3) time on task
during art; and (4) poor planning which leads to too much down time.
Gross conducted formal evaluations of Huiner’s art classes on
December 10 and December 13, 2010. Gross noted several deficiencies in her
evaluation and chose to place Huiner on a plan of assistance, which was
implemented on December 20, 2010. The plan of assistance set out areas where
Huiner was expected to improve and created a deadline of March 1, 2011, to
achieve such improvement. Gross would routinely observe Huiner’s classes to
see if progress was being made. Gross was scheduled to complete a formal
written evaluation and make the decision to recommend renewal or nonrenewal
of Huiner’s teaching contract to the school board on March 1, 2011.
On December 17, 2010, Huiner met with her physician’s assistant, Karen
Buman, regarding her anxiety. Buman diagnosed Huiner with anxiety and
depression, likely stemming from her concerns about possibly getting fired.
Huiner again met with Buman on January 7, 2011. Huiner’s anxiety and
depression had not improved. Huiner was unable to maintain her nutritional
needs, was having difficulty caring for her children, and had sleep pattern
deficits. Huiner lost over thirty pounds from September 7, 2010, to June 29,
2011.
4

At the request of Huiner, Buman drafted a letter dated February 8, 2011,
to the school administration requesting certain accommodations for Huiner.
The letter noted Huiner’s stress, anxiety, weight loss, and inability to sleep. The
accommodations requested in the letter were:
- limit observations of her in the classroom to one 50
minute class period per week.
- always include another impartial representative in any
meeting.
- allow telephone calls during work hours to medical
clinicians or others for needed support.
- provide positive reinforcement and feedback.
- provide specific examples in writing of how to improve in
the areas of deficiency.
- encourage her to walk away from stressful confrontations
with supervisors.
- allow her to take a 10 minute break and go to a place
where she feels comfortable to use relaxation techniques or
contact a support person.
- divide large assignments or expectations into smaller
tasks or with specific goals.
- restructure job to include only essential functions if
stressful situations continue to negatively impact her.
- allow a flexible work environment with flexible scheduling,
modified break schedule, and time to leave for counseling
appointments.
- allow her to play soothing music using a computer or
music player.
- plan for and allow uninterrupted work time.
5

- provide coverage if she becomes overwhelmed with stress
from the work environment and needs to leave.
Docket 38-2 at 2-3.
Lund and Gross first responded to Huiner’s request for accommodations
through a letter dated February 15, 2011. They indicated that they understood
Huiner was asking for reasonable accommodations pursuant to the Americans
with Disabilities Act. They also responded to each of the accommodation
requests, agreeing to provide some, rejecting some, and requesting clarification
as to others.
On February 24, 2011, Huiner responded to the February 15 letter by
hand delivering her own letter, which provided the sought after clarification of
her requested accommodations. Lund and Gross responded with another letter
on February 28, 2011. No further communications occurred among Huiner,
Gross, and Lund regarding Huiner’s request for accommodations. In fact, the
three letters were the only communications about Huiner’s requested
accommodations; the parties never spoke face to face about Huiner’s request.
On March 1, 2011, Gross performed the final written evaluation under
the plan of assistance. After noting areas of concern, Gross concluded the
evaluation by recommending nonrenewal of Huiner’s teaching contract. Lund
then provided Huiner with notice of his intent to recommend nonrenewal of her
contract on March 15, 2011. Huiner took a medical leave of absence on
April 13, 2011, which lasted the remainder of the school year.

6

School board hearings were held on April 27, 2011, and May 10, 2011, to
take up the issue of whether to renew Huiner’s teaching contract following
Gross and Lund’s nonrenew recommendations. On July 11, 2011, the Arlington
School Board issued Findings of Fact and Conclusions of Law and determined
not to renew Huiner’s contract because of her neglect of duty and poor job
performance. Huiner appealed this decision to the Third Circuit Court of the
State of South Dakota. The Third Circuit affirmed the school board’s decision.
On June 20, 2011, Huiner filed a charge of discrimination with the South
Dakota Division of Human Rights against defendants on the basis of disability.
The South Dakota Department of Labor denied Huiner’s charge of
discrimination, and the United States Equal Employment Opportunity
Commission issued a notice of right to sue on October 14, 2011.
STANDARD OF REVIEW
Summary judgment is appropriate if the movant “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party can meet this
burden by presenting evidence that there is no dispute of material fact or that
the nonmoving party has not presented evidence to support an element of her
case on which she bears the ultimate burden of proof. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). “The nonmoving party may not ‘rest on mere
allegations or denials, but must demonstrate on the record the existence of
specific facts which create a genuine issue for trial.’ ” Mosley v. City of
7

Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. County of
Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)).
Summary judgment is precluded if there is a dispute in facts that could
affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). For purposes of a summary judgment motion, the court views the
facts and the inferences drawn from such facts “in the light most favorable to
the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 588 (1986).
ANALYSIS
I.

Americans with Disabilities Act–Failure to Accommodate
Huiner alleges Arlington School District violated the ADA2 by failing to

make a reasonable accommodation. An employer’s failure to make a reasonable
accommodation to a disabled employee is a form of prohibited discrimination
under the ADA. Fenney v. Dakota, Minnesota & Eastern R. Co., 327 F.3d 707,
711 (8th Cir. 2003) (“The ADA mandates that companies . . . provide reasonable
accommodations to the known physical limitations of an otherwise qualified
individual with a disability who is an employee[.]”). A failure to accommodate
claim is analyzed under a “modified burden-shifting analysis” as opposed to the

2

Congress enacted amendments to the ADA in 2008, which became
effective January 1, 2009. ADA Amendments Act (ADAAA) of 2008, Pub. L. No.
110-325, § 8, 122 Stat. 3553, 3559 (2008). The ADAAA “broadened the
definition of what constitutes a disability[.]” Nyrop v. Indep. Sch. Dist. No. 11,
616 F.3d 728, 734 n.4 (8th Cir. 2010). The ADAAA is applicable here because
the events involved occurred after the ADAAA became effective.
8

McDonnell Douglas burden-shifting analysis. Id. at 712. Under the modified
burden-shifting analysis, Huiner must make a facial showing that she has an
ADA disability, has suffered an adverse employment action, and is a qualified
individual.3 Id. A qualified individual must possess the requisite skill,
education, experience, and training for her position and be able to perform the
essential job functions, with or without reasonable accommodation. Id. If the
employer disputes that the employee is able to perform the essential job
functions, then the burden shifts to the employer to put on evidence of the
essential job functions. Id.
Further, if the employee cannot perform the essential functions of
the job without an accommodation, [s]he must only make a facial
showing that a reasonable accommodation is possible. The burden
of production then shifts to the employer to show that it is unable
to accommodate the employee. If the employer can show that the
employee cannot perform the essential functions of the job even
with reasonable accommodation, then the employee must rebut
that showing with evidence of h[er] individual capabilities. At that
point, the employee’s burden merges with [her] ultimate burden of
persuading the trier of fact that [s]he has suffered unlawful
discrimination.
Fenney, 327 F.3d at 712 (internal quotations and citations omitted).
An employer has no duty to accommodate if the applicant fails to make a
request for an accommodation. Bradley v. Little Rock Wastewater Util., No. 12-

3

Under the modified burden-shifting analysis, Huiner does not need to
make a prima facie showing that the adverse employment action was the result
of intentional discrimination. Instead, the discrimination occurs when the
employer fails to abide by the legally imposed duty of providing a reasonable
accommodation. Peebles v. Potter, 354 F.3d 761, 766 (8th Cir. 2004).
9

1405, 2013 WL 535794, at *3 (8th Cir. Feb. 14, 2013) (citing Ballard v. Rubin,
284 F.3d 957, 962 (8th Cir. 2002) (holding that an employee must provide his
employer with “enough information that, under the circumstances, [the
employer] can be fairly said to know that [the employee] sought accommodation
for his disability”)). But when a disabled applicant requests an accommodation,
the employer must engage in an interactive process to determine whether the
parties can find and agree upon a reasonable accommodation. Fjellestad v.
Pizza Hut of America, Inc., 188 F.3d 944, 952 (8th Cir. 1999).
Arlington School District argues Huiner’s failure to accommodate claim
fails for three reasons: (1) Huiner is not disabled under the ADA; (2) Huiner did
not request accommodations within the meaning of the ADA; and (3) Arlington
School District made a good faith effort to assist Huiner in making any
requested accommodations.4
A. Disability Under the ADA
The ADA defines disability as “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1). The definition of disability “shall be

4

Arlington School District’s reply also contends Huiner is collaterally
estopped from asserting her ADA failure to accommodate claim because of the
decision of the school board. But in the same paragraph defendants note that
Huiner did not raise any ADA issues at the school board hearing. If the issue
was never raised before, then it cannot be precluded now.
10

construed in favor of broad coverage of individuals . . . to the maximum extent
permitted[.]” Id. at § 12101(4). A person has an actual disability if she “has (1) a
physical or mental impairment that (2) substantially limits one or more major
life activities of the individual.” Christensen v. Titan Distrib., Inc., 481 F.3d 1085,
1094 (8th Cir. 2007) (internal quotations omitted). Major life activities include,
but are not limited to, “caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, . . . learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A). With the passage of the
ADAAA, the main focus in cases brought under the ADA “should be whether
covered entities have complied with their obligations and whether
discrimination has occurred, not whether the individual meets the definition of
disability.” 29 C.F.R. § 1630.1(c)(4).
Arlington School District argues Huiner has not shown she suffers from
an ADA disability because she has failed to introduce evidence showing her
anxiety substantially limits one of her major life activities. Huiner responds by
claiming her anxiety and associated panic attacks substantially limit her ability

11

to maintain her nutritional needs, care for her children, work, and sleep.5 She
relies on Buman’s testimony and medical records to support her contentions.
When asked what activities of daily living Huiner was unable to perform,
Buman stated she was unable to maintain her nutritional needs, had difficulty
caring for her children, and had sleep pattern deficits. Docket 55-4 at 4. The
medical records from Huiner’s appointments with Buman correspond to
Buman’s testimony. See, e.g., Docket 55-11 at 3 (detailing Huiner’s fatigue,
decreased concentration, sleep disturbances, and lack of appetite). Huiner’s
difficulty maintaining her nutritional needs is further evidenced by her
significant weight loss during that time period; she lost over thirty pounds from
September 7, 2010, to June 29, 2011. Docket 55-11 at 3. Based on this
evidence, the court finds Huiner has come forth with sufficient facts to make a
prima facie showing that her anxiety constitutes a disability under the ADA.
This is especially the case when considering the relaxed standards imposed
under the ADAAA for determining what constitutes a disability.

5

Arlington School District takes issue with the fact that Huiner claims
her anxiety limits her ability to maintain her nutritional needs, care for her
children, and sleep because she did not allege these facts in her complaint.
Arlington School District has not cited authority that requires a plaintiff who is
asserting an ADA failure to accommodate claim to plead in her complaint every
single limitation that the alleged disability places on the plaintiff. Such a
stringent pleading requirement runs counter to the current notice pleading
system in place. Thus, the court will not require Huiner to comply with such a
stringent requirement.
12

B. Request for Reasonable Accommodation
Arlington School District argues Huiner did not request reasonable
accommodations within the ADA. “A reasonable accommodation should provide
the disabled individual an equal employment opportunity, including an
opportunity to attain the same level of performance, benefits, and privileges
that is available to similarly situated employees who are not disabled.” Kiel v.
Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999). Reasonable
accommodations may include “job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition or modification of
equipment or devices, appropriate adjustment or modifications of
examinations, training materials or policies, the provision of qualified readers
or interpreters, and other similar accommodations for individuals with
disabilities.” 42 U.S.C. § 12111(9).
The accommodations Huiner requested, through the letter written by
Buman and given to defendants, were:
- limit observations of her in the classroom to one 50
minute class period per week.
- always include another impartial representative in any
meeting.
- allow telephone calls during work hours to medical
clinicians or others for needed support.
- provide positive reinforcement and feedback.
- provide specific examples in writing of how to improve in
the areas of deficiency.
13

- encourage her to walk away from stressful confrontations
with supervisors.
- allow her to take a 10 minute break and go to a place
where she feels comfortable to use relaxation techniques or
contact a support person.
- divide large assignments or expectations into smaller
tasks or with specific goals.
- restructure job to include only essential functions if
stressful situations continue to negatively impact her.
- allow a flexible work environment with flexible scheduling,
modified break schedule, and time to leave for counseling
appointments.
- allow her to play soothing music using a computer or
music player.
- plan for and allow uninterrupted work time.
- provide coverage if she becomes overwhelmed with stress
from the work environment and needs to leave.
Docket 38-2 at 2-3. Arlington School District contends that these
accommodations are not modifications to the work place that would allow
Huiner to perform the essential functions of her job. The court disagrees. For
example, providing specific samples in writing of how to improve in areas of
deficiency was a modification to how Huiner received feedback and would allow
her to better understand the expectations surrounding the essential functions
of her job. With an understanding of the essential functions of the job, Huiner
would be able to perform such functions. A jury could find one or more of the
above accommodations reasonable and falling within the ADA.

14

Even if the accommodations requested by Huiner were unreasonable and
do not fall within the ADA, the simple act of requesting the accommodations
required defendants to initiate an interactive process with Huiner to determine
the appropriate reasonable accommodation. Fjellestad, 188 F.3d at 952. Thus,
Huiner met her burden of requesting an accommodation.
C. Good Faith Effort
Arlington School District argues it made a good faith effort to provide the
requested accommodations and engage in the necessary interactive process.
Huiner disagrees and must demonstrate that (1) Arlington School District knew
about her disability; (2) she requested accommodations or assistance for her
disability; (3) Arlington School District did not make a good faith effort to assist
her in seeking accommodations; and (4) she could have been reasonably
accommodated but for Arlington School District’s lack of good faith. Ballard,
284 F.3d at 962. Buman’s letter in which she informed defendants of Huiner’s
disability and requested accommodations establishes the first two required
showings. And Arlington School District does not argue that Huiner could not
have been reasonably accommodated. Thus, the only issue is whether Arlington
School District made a good faith effort to assist Huiner in seeking
accommodations.
Following Huiner’s request for accommodations, Arlington School District
had a duty to initiate an informal interactive process to determine whether the

15

parties could find and agree upon reasonable accommodations. Fjellestad, 188
F.3d at 952. The interactive process requires both parties to act in good faith,
analyze the job duties and the employee’s specific limitations, and then identify
potential accommodations. Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723,
727 (8th Cir. 1999).
Arlington School District claims it acted in good faith and attempted to
engage in an interactive process. It directs the court to three letters that
included a dialogue between Huiner and Arlington School District. The first
letter, dated February 15, 2011, was the initial response provided to Huiner
following her request for accommodations, which occurred on February 8,
2011. In the response, Arlington School District responded to the various
accommodations requested by Huiner, agreeing to some, rejecting some, and
asking for further clarification on others. The second letter was Huiner’s
response to Arlington School District’s letter, and it was hand delivered on
February 24, 2011. This letter responded to Arlington School District’s position
on her initial requests, noting agreement to some of Arlington School District’s
accommodations and also providing the sought after clarification. The third
letter was Arlington School District’s follow up to Huiner’s letter and was sent
on February 28, 2011. There was no further communication, written or verbal,
by Huiner or Arlington School District regarding her disability or
accommodations therefor.

16

Arlington School District relies heavily on Huiner’s failure to respond to
the February 28, 2011, letter. By not responding, Arlington School District
argues Huiner broke down discussions about any possible accommodations
and thus ended the interactive process. What Arlington School District fails to
consider, however, is the fact that on March 1, 2011, just one day after receipt
of Arlington School District’s letter, Gross advised Huiner that she would be
recommending nonrenewal of her contract. Docket 39-8 at 4. Because a
principal’s recommendation on whether to renew a teacher’s contract carries a
considerable amount of weight, a reasonable jury could conclude that Arlington
School District was not acting in good faith and any further participation in the
interactive process at that time would have been useless.
Huiner argues Arlington School District’s actions following her request for
accommodations demonstrate that it did not act in good faith. Huiner claims
her workload could have been reduced by not having her teach the credit
recovery class until she had her disability under control. Because teaching the
credit recovery class was not specifically called for in her teaching contract, a
reasonable jury could find that allowing Huiner time away from teaching the
credit recovery class was a reasonable accommodation.
Huiner also takes issue with the fact that Arlington School District did
not meet with her face to face to discuss her disability and how it could be
accommodated, especially because she was under the plan of assistance at the

17

time and a decision on whether her contract would be renewed was soon
approaching. The court agrees. The entirety of Arlington School District’s efforts
to engage in the interactive process is the contents of two letters. Moreover, the
decision to recommend nonrenewal was made just fourteen days after Arlington
School District’s first attempt at participation in the interactive process. A
reasonable jury could find that Arlington School District’s attempt to engage in
the interactive process was not done in good faith.
After reviewing the record, the court finds Huiner has made a facial
showing that Arlington School District failed to make a good faith effort to
assist her in seeking accommodation. Therefore, summary judgment is denied
with respect to Huiner’s failure to accommodate claim.
II.

First Amendment Claim Under § 1983
Defendants Gross and Lund argue Huiner cannot establish a First

Amendment retaliation claim.6 To establish a § 1983 claim for retaliation in
violation of her right to free speech under the First Amendment, Huiner must

6

Defendants also argue issue preclusion applies to Huiner’s First
Amendment retaliation claim because the school board decision and the Third
Circuit Court opinion that affirmed the school board decision preclude Huiner
from arguing that her teaching contract was nonrenewed for any reason other
than her neglect of duty and poor performance. Typically a court will decide
whether issue preclusion applies before analyzing the merits of a claim. Here,
however, an analysis of whether issue preclusion applies is unnecessary
because the court finds plaintiff’s First Amendment retaliation claim fails as a
matter of law.
18

show: (1) she engaged in protected speech; (2) defendants Gross and Lund7
responded with adverse action that would chill a person of ordinary firmness
from continuing with such speech; and (3) the adverse action was motivated by
Huiner’s protected speech. Beaulieu v. Ludeman, 690 F.3d 1017, 1025 (8th Cir.
2012). Specifically, defendants contend Huiner did not engage in protected
speech.
As a public employee, Huiner’s speech is entitled to First Amendment
protection if: (1) she spoke as a citizen, and not as an employee, on a matter of
public concern, and (2) her right to free speech outweighs defendants’ interest
in promoting the efficiency of its public services. Davenport v. Univ. of Ark. Bd.
of. Tr., 553 F.3d 1110, 1113 (8th Cir. 2009). Whether Huiner spoke as a citizen
on a matter of public concern is a question of law for the court. McGee v. Pub.
Water Supply, Dist. No. 2 of Jefferson Cnty., Mo., 471 F.3d 918, 920 (8th Cir.
2006). “Whether an employee’s speech addresses a matter of public concern
must be determined by the content, form, and context of the speech, and that
speech must relate to some matter of political, social or other concern to the
community.” Buazard v. Meridith, 172 F.3d 546, 548 (8th Cir. 1999) (internal
quotations omitted).

7

Huiner’s First Amendment retaliation claim is against Gross and Lund;
Huiner excluded Arlington School District from this claim in her complaint.
19

Huiner argues she engaged in protected speech because she was
speaking on a matter of public concern when she pointed out that she was not
qualified to give grades and academic credit to students in the credit recovery
class. She claims her motivation was to inform the public that children are not
being given the quality of education to which they are entitled to by law. “When
speech relates both to an employee’s private interests as well as matters of
public concern, the speech is protected if it is primarily motivated by public
concern.” Altonen v. City of Minneapolis, 487 F.3d 554, 559 (8th Cir. 2007). If
the employee’s main motivation for the speech was to further her “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.”
Id.
After examining the content, form, and context of Huiner’s speech, the
court finds she was not engaging in protected speech when she expressed
concern about being assigned to the credit recovery class. First, the content of
the speech involved the duties and responsibilities of Huiner’s position.
Huiner’s stance was that she was not qualified to perform the work assigned to
her. There is no indication Huiner voiced concern about the general idea of an
unqualified teacher teaching kids, as she now claims. Indeed, she also
expressed concern that the credit recovery class would not allow her adequate
time in her daily schedule to prepare her curriculum for her other classes.

20

Huiner’s speech was entirely focused on her specific job responsibilities and her
specific qualifications, which leads to the conclusion that her speech was
motivated by private interests. See McGee, 471 F.3d at 921 (“A public
employee’s speech is not protected by the First Amendment if its ‘owes its
existence’ to [her] professional responsibilities.”).
Second, the form and context of the speech shows Huiner was attempting
to further her private interests and not attempting to raise an issue of public
concern. The incident occurred during a break at an in-service for Arlington
School District teachers. It was spoken in a private office and was directed to
one individual, Gross, who was Huiner’s supervisor. The speech did not take
place in a public forum but rather occurred in a private isolated office during
working hours. Moreover, the speech was not directed to a broad audience but
was directed to a single individual—Huiner’s supervisor. These circumstances
do not show Huiner was attempting to provide the public with information.
Rather, the form and context of the speech further support the conclusion that
Huiner’s speech was motivated by private interests.
Huiner’s speech was motivated by her private interests and therefore did
not address a matter of public concern. As such, the speech is not protected by
the First Amendment and her claim for retaliation fails as a matter of law.

21

III.

Intentional Infliction of Emotional Distress
Gross8 argues Huiner’s claim for intentional infliction of emotional

distress also fails. To prove intentional infliction of emotional distress under
South Dakota law,9 Huiner must show: (1) an act by the defendant amounting
to extreme and outrageous conduct; (2) intent on the part of the defendant to
cause the plaintiff severe emotional distress; (3) the defendant’s conduct was
the cause in fact of plaintiff’s distress; and (4) the plaintiff suffered an extreme
disabling emotional response to defendant’s conduct. Anderson v. First Century
Fed. Credit Union, 738 N.W.2d 40, 51-52 (S.D. 2007). Defendant’s conduct
“must be so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and be regarded as atrocious, and utterly
intolerable in a civilized community.” Harris v. Jefferson Partners, L.P., 653
N.W.2d 496, 500 (S.D. 2002). The question of whether defendant’s conduct was
extreme and outrageous is initially for the court to decide. Id.
Huiner complains of the following actions taken by Gross:
- Gross required Huiner to teach the credit recovery class
even though Huiner was not certified to teach the class and
Huiner had alerted Gross of her lack of state certification;

8

Huiner’s claim for intentional infliction of emotional distress was
against Gross only. Docket 1 at 12.
9

The parties agree that South Dakota law applies to plaintiff’s state-law

claims.
22

- Gross talked to Huiner about a student swearing in
Huiner’s class after Huiner admonished Gross’s daughter
for talking during a quiz;
- Gross sent an “Areas of Concern” memo to Huiner that
accused Huiner of displaying a negative attitude,
improperly handling student swearing in class, poor use of
time in class, and poor planning;
- Gross observed Huiner’s classes for long periods of time;
- Gross had an inordinate number of contacts with Huiner;
- Gross put Huiner on a Plan of Assistance; and
- Gross changed the requirements under the Plan of
Assistance.
None of these actions, whether taken individually or together, constitute
conduct that can be described as so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Rather, these are all
common actions taken by a principal when the principal believes that a
teacher’s performance is below standards. Even if Gross actually believed
Huiner’s performance was up to standards and she only took these actions to
harass Huiner, such actions still do not rise to the level of extreme and
outrageous conduct that is necessary for a plaintiff to prevail on an intentional
infliction of emotional distress claim. Liability for intentional infliction of
emotional distress will not extend to mere “annoyances, petty oppression, or
other trivialities.” Id. at 500. At most, Huiner’s alleged facts show Gross’s

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conduct may be repugnant to public policy, but the South Dakota Supreme
Court has determined that such conduct gives rise to a contract cause of action
and not to a tort cause of action. Johnson v. Kreiser’s, Inc., 433 N.W.2d 225,
227 (S.D. 1988). Because Gross’s conduct was not extreme and outrageous,
Huiner’s claim for intentional infliction of emotion distress fails as a matter of
law.
IV.

Negligent Infliction of Emotional Distress
To establish a claim for negligent infliction of emotional distress under

South Dakota law, Huiner must show: (1) negligent conduct on the part of the
defendants; (2) emotional distress suffered by the plaintiff; and (3) physical
manifestations suffered by the plaintiff from the distress. Reynolds v. Ethicon
Endo-Surgery, Inc., 454 F.3d 868, 874 (8th Cir. 2006) (citing Nelson v. WEB
Water Dev. Ass’n, 507 N.W.2d 691, 699 (S.D. 1993)). “The three necessary
elements of actionable negligence are: (1) A duty on the part of the defendant;
(2) a failure to perform that duty; and (3) an injury to the plaintiff resulting
from such a failure.” Id.
Defendants argue Huiner cannot establish a duty owed to her by
defendants. Huiner asserts defendants’ duty arises out of the No Child Left
Behind Act of 2001 (NCLBA). Huiner states the NCLBA mandates instruction be
given by a “highly qualified teacher,” which is someone who has obtained full
state certification and demonstrates competence in all the academic subjects in

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which she teaches. Huiner also claims she was not qualified to teach the credit
recovery class. Thus, she argues defendants had a duty not to make her teach
the credit recovery class.
Huiner has not cited any authority to support imposition of such a duty
on defendants. This is not surprising because if the provisions referenced by
Huiner did create a duty, that duty would be owed to the students of the
classes in which instruction was given, not to the instructors. Moreover, the
NCLBA does not confer any type of private right of action. See, e.g., Horne v.
Flores, 557 U.S. 433, 456 n.6 (2009); Blakely v. Wells, 380 F. App’x 6, 8 (2d Cir.
2010) (noting the No Child Left Behind Act does not provide a private right of
action). Thus, Huiner has not established a duty owed to her by defendants.
Because Huiner has failed to establish a duty owed to her by defendants,
defendants are entitled to summary judgment on Huiner’s claim for negligent
infliction of emotional distress.
CONCLUSION
Defendants move for summary judgment on Huiner’s ADA failure to
accommodate, First Amendment retaliation, intentional infliction of emotional
distress, and negligent infliction of emotional distress claims. Huiner
established that genuine issues of material fact exist with respect to her ADA
failure to accommodate claim. But Huiner failed to present sufficient evidence
to support her claims for First Amendment retaliation, intentional infliction of

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emotional distress, and negligent infliction of emotional distress. Accordingly, it
is
ORDERED that defendants’ motion for summary judgment (Docket 35)
on plaintiff’s ADA failure to accommodate claim is denied.
IT IS FURTHER ORDERED that defendants’ motion for summary
judgment on plaintiff’s First Amendment retaliation, intentional infliction of
emotional distress, and negligent infliction of emotional distress claims is
granted.
Dated September 26, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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