Russell v. Nebo School District et al
Filing
167
MEMORANDUM DECISION AND ORDER-denying 104 Motion for Summary Judgment ; Motions terminated: 104 MOTION for Summary Judgment and Memorandum in Support filed by Angie Killian, Nebo School District. See Order for details. Signed by Judge David Sam on 10/17/18. (jmr)
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
**********************************************************
COLLETTE RUSSELL,
)
MEMORANDUM DECISION
Plaintiff,
)
AND ORDER
vs.
NEBO SCHOOL D DISTRICT,
ET AL.,
)
)
)
Defendants.
Case No. 2:16-CV-00273- DS
**********************************************************
I. INTRODUCTION
Before the Court is the Motion for Summary Judgment of Defendant Nebo School
District (“Nebo”) and Defendant Angie Killian. (ECF No. 104). Plaintiff Collette Russell
is a former Nebo employee who worked as a Resource Technician at Mount Loafer
Elementary School in Salem, Utah. She alleges that Defendant Bruce Moon, who worked
as a custodian at the same school, subjected her to various acts of sexual harassment.
Ms. Russell generally alleges that while employed by Nebo she was subjected to sexual
harassment and discrimination, and ultimately retaliated against because of her complaints
of harassment and discrimination in violation of federal law.1
Ms. Russell’s Amended Complaint (ECF No. 5) lists five federal law claims for relief
against either Nebo and/or Ms. Killian: (1) Title VII Sexual Harassment against Nebo; (2)
Title VII Sexual Discrimination against Nebo: (3) Title VII Retaliation against Nebo; (4)
Section 1983 Equal Protection/Free Speech violations against Nebo and Killian; and, (5)
Title IX violation against Nebo. The Amended Complaint also lists two state law claims
against Mr. Moon: (6) assault and battery; and, (7) intentional infliction of emotional
distress.
1
Nebo and Killian move for summary judgement on all claims alleged against them.2
They contend that based on the undisputed material facts Russell cannot demonstrate:
1. Moon’s advances were unwelcome and unwanted;
2. Nebo’s negligence;
3. An adverse employment action as required for her claims of Title VII
discrimination, Title IX discrimination, Title VII Equal Protection/First Amendment
violations, and Title IX retaliation;
4. A clearly established Equal Protection retaliation claim;
5. An Equal Protection violation; or
6. A First Amendment violation.
II. SUMMARY JUDGEMENT STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is proper only when
the pleadings, affidavits, depositions or admissions establish there is no genuine issue
regarding any material fact and the moving party is entitled to judgment as a matter of law.
When applying this standard, the court views the evidence and draws inferences in the
light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625 F. 3d 1279,
1283 (10th Cir. 2010). The burden of establishing the nonexistence of a genuine issue of
material fact is on the moving party.3 E.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
In considering Defendants’ Motion, the Court has reviewed Defendants’
Evidentiary Objections (ECF No. 158) and Plaintiff’s Response and Objections (ECF No.
164). The Court has given consideration to the relevant and material evidence of record
that it deems appropriate under the applicable rules of procedure and evidence, and will
not address individually the numerous objections noted by the parties.
2
Whether a fact is material is determined by looking to relevant substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242.
3
2
This burden has two distinct components: an initial burden of production on the moving
party, which burden when satisfied shifts to the nonmoving party, and an ultimate burden
of persuasion, which always remains on the moving party. See 10A C. Wright, A. Miller
& M. Kane, Federal Practice and Procedure § 2727 (2d ed. 1983).
The central inquiry is "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law." Id. If the nonmoving party cannot muster sufficient evidence to make out
a triable issue of fact on his claim, a trial would be useless and the moving party is entitled
to summary judgment as a matter of law. Celotex, 477 U.S. 242.
III. DISCUSSION
A. Consent
Asserting that consent is at the heart of this case, Defendants first urge, contrary
to Ms. Russell’s allegations, that the “overwhelming evidence demonstrates she
welcomed and consented to Moon’s actions.” ECF No 104 at 23. In support they point
to such things as emails and text messages between the two, gifts that Russell gave Moon,
kissing and other intimate conduct, and Russell going to Moon’s house on one occasion.
See ECF No. 104 at 23-25. Ms. Russell counters that significant evidence exists to show
that Moon’s conduct towards her was unwelcome.
Disputed issues of material fact preclude summary judgment on the issue of
Russell’s consent. Ms. Russell cites factual allegations in the record from which a jury
3
could conclude that some or all of Moon’s alleged conduct was unwelcome.4 See ECF No.
149 at 55-57 (citing factual allegations such as the following: Russell was threatened by
Moon; she told Moon daily to leave her alone; she reported Moon’s conduct to school
officials; she refused his sexual advances and invitations; she did not reciprocate when
he hugged and kissed her; and she jerked away when Moon forcefully tried to place her
hand on him). Other objective evidence also could be viewed by a jury as supporting the
same or similar conclusion. See id. at 57 (citing, for example, the following factual
allegations: Russell complained twice to school personnel about Moon’s conduct; Pruitt,
the school secretary, acknowledged she knew Russell was bothered by Moon’s conduct
when Russell complained to Pruitt in October of 2013; Moon harassed both Killian, the
the school principal, and Pruitt; Russell never personally interacted with Moon outside of
school until December 23, 2013; and Moon changed his story regarding the alleged
consensual acts).
B. Title VII Sexual Harassment - Employer Negligence (First Claim)
Russell’s First Claim in the Amended Complaint is against Nebo for Title VII
sexual harassment based on Nebo’s alleged negligence.5 To prove sexual harassment
based on a theory of employer negligence liability a plaintiff “must establish that (1) the
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 68 (1986) (“[T]he fact that
sex-related conduct was ‘voluntary,’ in the sense that the complainant was not forced to
participate against her will, is not a defense to a sexual harassment suit brought under Title
VII. The gravamen of any sexual harassment claim is that the alleged sexual advances
were ‘unwelcome’. 29 C.F.R. § 1604.11(a) (1985).”).
4
“Under the negligence theory, an employer is liable only ‘if it knew or should have
known’ about the sexually harassing conduct of a non-supervisory employee and failed to
stop it.” Dunlap v.Spec. Pro., Inc., 939 F. Supp. 2d 1075, 1085 (D. Colo. 2013) (quoting
Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 759 (1998).
5
4
employer had actual knowledge or constructive knowledge of the harassment and (2)
the employer’s remedial and preventative responses to the harassment were
inadequate.” Dunlap v.Spec. Pro., Inc., 939 F. Supp. 2d 1075, 1085 (D. Colo. 2013)
(citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998); see also
Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001) (citation omitted),
cert. denied, 535 U.S. 970 (2002) (“[t]o protect against imposing strict liability upon
employers, [courts] apply a negligence analysis asking whether the organization ‘fail[ed]
to remedy or prevent a hostile or offensive work environment of which managementlevel employees knew, or in the exercise of reasonable care should have known’”).
Nebo asserts that because it neither had actual or constructive knowledge of Moon’s
harassment, and because its remedial actions were prompt and effective, it is entitled to
judgment on Russell’s First Claim.
1. knowledge
Ms. Russell alleges that when she reported Moon’s conduct, Angie Killian, the
school principal, was not in the office so she reported Moon’s harassment to Lisa Pruitt,
the school secretary. Nebo contends that the only person to whom Russell allegedly
reported Moon’s harassment before December 26, 2013, was Pruitt, and, therefore, the
report was inadequate because Pruitt was not a management level employee.6 It also
contends the report itself was inadequate.
“In assessing whether an employer was negligent in dealing with known
harassment, ‘[a]ctual knowledge will be demonstrable in most cases where the plaintiff has
reported harassment to management level employees.’” Kramer v. Wasatch County
Sheriff’s Office, 743 F. 3d 726, 755 (10th Cir. 2014) (citation omitted).
6
5
A management-level employee “for the purposes of imputing knowledge of coworker harassment to the employer, need only be someone who has at least some
authority over the plaintiff, or at least some control over the working environment.”
Kramer v. Wasatch County Sheriff’s Office, 743 E. 3d 755, n. 19 (citing Lockard v. Pizza
Hut, Inc., 162 F.3d 1062, 1074 (10th Cir. 1998)). Nebo’s policy also allows an employee
to submit a claim to someone with supervisory responsibility. ECF No. 105, pp. 124,
127, 128.
Russell identifies factual allegations from which a jury could conclude that Pruitt
had supervisory responsibility and/or some control over the working environment for
purposes of receiving a sexual harassment complaint. The following are examples:
discipline issues and workplace complaints were reported to Pruitt; time cards were
submitted to Pruitt; employees leaving the building would check in and out with Pruitt;
Pruitt is over or assists with finances, budgets, purchase orders, and inventory; and,
she dispenses controlled medicine to students. See ECF No. 149, ¶¶ 73 & 78, pp. 3233, 34-35. And according to Killian, Pruitt is the “face of Mt. Loafer”. ECF No. 105-4, p.
47. “She [Pruitt] helps enroll students, register students, she helps with scheduling, she
helped with placing student teachers, or students in teachers’ classes, she answered
questions of parents when they called.” Id. It is undisputed that Nebo did not have a
policy identifying a chain of command at Mt. Loafer Elementary, and it did not have a
policy identifying Russell’s supervisor. ECF No. 149, ¶ 78, p. 34.
In any event, Russell also alleges facts from which a jury could find that Pruitt
told Killian of Russell’s complaint. See ECF No. 149, ¶ 67, pp. 30-31.. Moreover, there
is evidence from which a jury could find that Killian had actual notice of Russell’s
6
complaint based on information other than that reported by Russell. Factual allegations
in the record reflect that Pruitt complained to Killian about Moon’s pinching, back rubs,
hugs and language as early as August 2013, prior to Russell’s complaint. ECF No.
105-4, pp. 114-116. Evidence also reflects that Killian personally experienced conduct
that could be construed as harassment and, thus, was aware of such conduct. See
ECF No. 149, ¶ 61, pp. 27-28; ECF. No. 105-4, p. 109.
Nebo’s position, that Russell’s conversation with Pruitt was not a proper report
because it was too vague and because Russell did not approach Pruitt with the
intention of reporting sexual harassment, is rejected for purposes of the present motion.
Russell’s intent upon approaching Pruitt is immaterial so long as she conveyed that she
was being harassed.7 There are factual allegations that Russell told Pruitt what was
happening, who was doing it, and that she wanted it to stop. ECF No. 149, ¶¶ 74-77,
pp. 33-34. There is also evidence that Pruitt understood from her conversation with
Russell that Russell was bothered by Moon’s conduct. ECF No. 105-7 at 60.
2. remedial action
Whether Nebo took effective remedial action, likewise, is a question for the jury
in this case. See Turnbull, 255 F.3d at 1244-45 (court found that whether an employer
See Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 785 (10th Cir.
1995), abrogated on other grounds by Burlington Indus. v. Ellerth, 524 U.S. 742 (1998),
and Faragher v. City of Boca Raton, 524 U.S. 775 (1998)) (dismissing argument that a
report of harassment was merely a “casual conversation between friends” and the
employee had “no intent to make a formal sexual harassment complaint” as “no more than
a disputed issue of fact – a proper question for the finder of fact.”); see also Gentry v.
Export Packaging Co., 238 F.3d 842, 849 (7th Cir. 2001) (“there is no legal mandate that
an employee use the term ‘sexual harassment’ in order to inform his or her employer about
a harasser in the workplace”).
7
7
acted reasonably was an issue of fact for the jury to decide where there was evidence
showing an employer should have and could have taken additional measures to ensure
the safety of its staff). Although Nebo outlines various actions it allegedly took in
response to Moon’s conduct, see ECF No. 104, pp. 29-32, Russell alleges facts from
which a finder of fact could conclude that Nebo’s responses failed in being either
remedial or preventative. See ECF No. 149, ¶¶ 47-63 at pp. 20-29, & pp. 64-67
(discussing numerous factual allegations regarding Moon’s alleged history of harassing
conduct).
In sum, because there are issues of disputed fact as to whether Nebo had actual
or constructive notice of Moon’s harassment, and whether Nebo’s remedial actions
were prompt and effective, Nebo’s motion for summary judgment as to Russell’s First
Claim against Nebo for Title VII sexual harassment is denied.
C. Title VII Sex Discrimination - Adverse Action (Second Claim)
Russell’s Second Claim in the Amended Complaint is against Nebo for Title VII
sexual discrimination. It is undisputed that to prevail on her claim for gender
discrimination, Russell must prove an adverse action. For her adverse action Russell
alleges that she was constructively discharged from her employment. Nebo’s position
is that Russell cannot show she was constructively discharged because she voluntarily
resigned and because the conditions she complained about were no longer present
when she resigned.
To establish constructive discharge, Russell must prove that her employer’s
“illegal discriminatory acts has made working conditions so difficult that a reasonable
person in [her] position would feel compelled to resign. EEOC v. PVNF, L.L.C. 487 F.3d
8
790, 805 (10th Cir. 2007) (citation & internal quotation marks omitted). See also
Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1133 (10th Cir. 2013)
(quoting Strickland v. United Parcel Serv., Inc., 555 F. 3d 1224, 1228 (10th Cir. 2009))
(“‘Constructive discharge occurs when an employer unlawfully creates working
conditions so intolerable that a reasonable person in the employee’s position would feel
forced to resign’”). This is an objective standard and “‘the employer’s subjective intent
and the employee’s subjective views on the situation are irrelevant.’” Id. (quoting
Strickland, 555 F.3d at 1228). And whether there has been a constructive discharge is
a question of fact. Id.; see also Acrey v. American Sheep Industry Ass’n, 981 F. 2d
1569, 1573-74 (10th Cir. 1992) (finding sufficient facts to support constructive discharge
where plaintiff reasonably believed she was at risk of losing her job, including where the
supervisor asked her to quit on two occasions).
Russell has placed in dispute factual issues, regarding whether she suffered an
adverse employment action based on constructive discharge, sufficient to defeat
summary judgment. For example, she made factual allegations such as the following:
Killian was openly hostile towards her; Killian would not speak to her; Killian closely
scrutinized Russell’s work, but not that of others; Killian glared at her; Killian accused
Russell of lying about her complaint and Killian’s knowledge of Moon’s conduct; Killian
claimed Russell’s husband wrote her statement; Killian accused Russell of making
things up as the investigation went on and changing her story; text messages between
Pruitt and Killian reflected open hostility towards Russell; Killian confronted Russell in
the school hallway waiving a sticky note in Russell’s face telling her she wanted Russell
out of her school, that there were two jobs available in the District and she wanted
9
Russell gone when she returned from her meeting; Killian told Russell she could be
fired because she filed a complaint; and, Killian instructed Russell not to talk about her
complaint. See ECF No. 149, ¶ ¶ 112 & 115 at pp.43-48 & pp. 70-72 (setting forth
factual allegations of harassment, complaints of discrimination, as well as Nebo’s
alleged response and treatment of Plaintiff following her complaints of harassment).
Because of these disputed factual issues, Nebo’s Motion for Summary Judgment as to
Russell’s second claim is denied.
D. Retaliation Claims - Adverse Action (Third, Fourth & Fifth Claims)
In her Third Claim against Nebo for Title VII Retaliation, Russell alleges that she
“engaged in protected activity by opposing the treatment she received from Moon and
Killian and others ... [and] Nebo School District’s response to [her] protected activity ...
and its constructive termination of Russell, in response to her opposing and reporting
discrimination, harassment and retaliation, constitutes retaliation prohibited by Title VII.”
ECF No. 5, ¶¶ 63-64. Nebo contends Russell cannot prove she was retaliated against
for purposes of her Title VII claim due to lack of an adverse action. Nebo directs the
same argument at Russell’s Fourth Claim for Section 1983 Equal Protection/ First
Amendment violation of rights, and her Fifth Claim for Title IX discrimination.8
The elements of a prima facie case of Title VII retaliation are: “(1) that [the
employee engaged in protected opposition to discrimination, (2) that a reasonable
employee would have found the challenged action materially adverse, and (3) that a
Defendants acknowledge that whether an employment action is adverse is
analyzed the same for Russell’s section 1983 and Title IX claims as it would be under Title
VII. ECF No. 104, pp. 46-47.
8
10
causal connection existed between the protected activity and the materially adverse
action.” Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1202 (10th
Cir. 2006). Materially adverse, “in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.’” Id. at n. 2
(citation omitted). The allegations must arise above trivial harms. Burling Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). “Context matters. ‘The real social
impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships which are not fully captured by a simple
recitation of the words used or the physical acts performed.’” Id. at 69 (citation omitted).
As discussed above, disputed issues of material fact as to whether Nebo
engaged in retaliatory conduct resulting in Russell’s constructive discharge precludes
the Court from granting summary judgment on this issue.9 See Section III. C; see also
ECF No. 149, ¶ 112 at pp. 43-47 (setting forth disputed factual allegations).
E. Section 1983 Equal Protection/Free Speech Violations (Fourth Claim)
Russell’s Fourth Claim is against both Nebo and Killian for Equal Protection and
First Amendment violations under 42 U.S.C. § 1983.
1. Qualified Immunity
Defendants urge that Killian is entitled to qualified immunity with respect to
Russell’s Fourth Claim, which they characterize as “appear[ing] to assert Killian violated
the Equal Protection clause by failing to stop Moon’s harassment.” ECF No.104, p. 43.
“Russell concedes that a retaliation claim under the Equal Protection Clause has
not been clearly established in the Tenth Circuit, of by the Supreme Court.” ECF No. 149,
p.69 n.10
9
11
Defendants note that “[t]he standard for supervisory liability is such cases requires
evidence of ‘personal direction or actual knowledge and acquiescence.’” Id. (citation
omitted).
“The qualified immunity doctrine shields government officials from individual
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Kramer v. Wasatch Co. Sheriff’s Office, 743 F. 3d 726, 758 (10th Cir. 2014) (internal
quotation marks and citation omitted). Once raised as a defense, the plaintiff must
show that : (1) the official violated a statutory or constitutional right; and (2) the law was
clearly established at the time of the challenged conduct. Woodward v. City of
Worland, 977 F. 2d 1392, 1396 (10th Cir. 1992), cert denied, 509 U.S. 923 (1993). The
Court first decides whether a constitutional violation has been alleged, and then
considers whether the law was clearly established such that a reasonable defendant
would know his conduct violated the plaintiff’s right. Maestas v. Lujan, 351 F.3d 1001,
1007 (10th Cir. 2003).
For purposes of the present motion, the Court concludes that Ms. Russell
alleges a constitutional violation. She asserts in her Amended Complaint that Nebo
and Killian “discriminated and retaliated against [her] following her complaints about
Moon’s discrimination and harassment and her complaints about retaliation, in violation
of the Equal Protection Clause and the First Amendment, and other federal statutes ....”
ECF No. 5, ¶ 72. As Defendants note, the standard for supervisor liability can be met
by creating an inference that Killian knew about specific acts of harassment and
tolerated those acts. Murrell v. School Dist. No.1, Denver Colorado, 186 F. 3d 1238,
12
1250 (10th Cir. 1999) (“supervisory employee may be held liable under section 1983
upon a showing of deliberate indifference to known sexual harassment”). Russell cites
factual allegations from which a jury could conclude that Killian knew about Moon’s
harassment of Pruitt, Russell, Killian and others, and did nothing to stop such conduct.
See ECF No. 149, ¶ 67 at pp. 30-31; see also id. at pp. 62-63. If true, Killian’s conduct
could constitute a constitutional violation.
With regard to whether the law was clearly established, “[t]he right to be free
from sexual harassment is clearly established under the Equal Protection Clause of the
Fourteenth Amendment. Kramer, 743 F.3d at 758. Russell acknowledges that an
Equal Protection “retaliation” claim has not been clearly established in either the Tenth
Circuit or by the United States Supreme Court. See ECF No. 149, p. 69 n. 10. The
right to be free from retaliation for the exercise of First Amendment rights to speak on
matters of public concern is also clearly established. Couch v. Board. of Trustees of
Memorial. Hosp. Of Carbon Co., 587 F. 3d 1223, 1235 (10th Cir. 2009); Wren v.
Spurlock, 798 F. 2d 1313, 1317 (10th Cir. 1986).10
Accordingly, for purposes of the present Motion, the Court cannot conclude that
Killian is entitled to qualified immunity.
2. Equal Protection Claim
Defendants’ next assert that Russell fails to state an Equal Protection Claim
because she fails to allege she was treated differently from any other similarly situated
person. Plaintiff, however, references authority that she is not required to point to
It is worth noting that It is undisputed that sexual harassment and retaliation are
violations of Nebo’s policy.
10
13
comparators to prove her claim of sexual harassment under the Equal Protection
Clause. See Kramer, 743 F. 3d at 759 (elements of claim include (1) impermissible
custom or policy; (2) causation: and (3) deliberate indifference). The Court concludes
that Defendants’ brief argument on this point does not satisfy their burden of
persuasion.
Likewise, the Court is not persuaded by Defendants’ argument that Russell’s
Equal Protection Claim fails because it is a class of one. Gender based equal
protection claims do not require assertion of any action taken against a class. See
Hunt v. Central Consol. School Dist., 951 F. Supp. 2d 1136,1190 (D.N.M. 2013) (it is
“not necessary, for a plaintiff in a protected class pleading a class-based equal
protection claim , to allege that similarly situated individuals were treated differently”).
Here Russell alleges a class based equal protection based claim and that she is a
member of a protected class. ECF No. 5, ¶¶ 69 & 71.11 Defendants’ brief argument on
this point does not satisfy their burden of persuasion.
Defendants also urge that Russell’s claim fails because she cannot establish an
official policy or custom.12 Defendants point to Nebo’s policy prohibiting discrimination,
harassment, and retaliation. However, “[u]nwritten customs not ‘formally approved by
Plaintiff alleges in her Amended Complaint that she “engaged in constitutionally
protected expression by opposing Moon’s gender discrimination and harassment, and
taking actions to protect other women and students from Moon’s conduct as alleged above,
and opposing Defendant Nebo School District’s and Killian’s retaliation against her” and
that she “is female and thus a member of a protected class under the Equal Protection
Clause ....” ECF No. 5, ¶¶ 69 & 71.
11
See e.g. Murrell v. School Dist. No. 1, 186 F.3d 1238, 1249 (10th Cir. 1999) (to
establish liability on a § 1983 claim “a plaintiff must demonstrate that a state employee’s
discriminatory actions are representative of an official policy or custom” of the school).
12
14
an appropriate decision maker’ can suffice to create municipal liability ‘if the practice is
so widespread as to have the force of law.’” Kramer 743 F.3d at 759 (citation omitted);
see also Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir.
2013) (an official policy or custom may take many forms, including “deliberately
indifferent training or supervision”). Russell alleges that “[o]ver a two-year period,
more than twenty employees of the District were subjected to repeated acts of
harassment and discrimination by Moon, yet Moon’s reign of terror remained
unchecked (See response to SOF Nos. 36-79.)”. ECF No. 149 at p. 73; see also id. at
pp. 18-35. The Court concludes that Defendants have not met their burden of
persuasion and/or there are disputed issues of material fact regarding this issue which
preclude summary judgment.
3. Free Speech
Finally, Defendants, contend that Russell cannot demonstrate a First
Amendment violation because her speech was not a matter of public concern and,
therefore, not protected. See Couch, 587 F.3d at 1235 (discussing five-prong
Garcetti/Pickering test used when analyzing a free speech claim based on retaliation by
15
an employer).13 Referencing only the second prong of the Garcetti/Pickering test,
Defendants, with little analysis of that test, simply contend that Russell’s complaints are
personal grievances, not matters of public concern and, therefore, not protected
speech.
Defendants have not met their burden as the moving party on this issue.14 And,
therefore, Defendants’ motion for summary judgment as to Russell’s claim for section
1983 First Amendment violation is denied.
IV CONCLUSION
For the reasons stated, as well as generally for those reasons set forth by
13
The five prongs of the test are
(1)whether the speech was made pursuant to an employee’s official duties;
(2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the public
service are sufficient to outweigh the plaintiff’s free speech interests; (4)
whether the protected speech was a motivating factor in the adverse
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct. The
first three “prongs” are said to be issues of law to be decided by the court;
the last two are factual issues to be decided by the factfinder.
Dixon v. Kirkpatrick, 553 F. 3d 1294. 1302 (10th Cir. 2009).
Russell asserts that “[c]omplaints about the efforts of the District to cover-up
Moon’s sexual harassment, the sexual harassment of staff and the District’s continued
employment of an employee with a history and track record of harassment is something
the community would understandably be concerned about.” ECF No. 149 at 74-75. See,
e.g., Wren v. Spurlock, 798 F.2d at 1317 (affirming trial court’s ruling that speech was a
matter of public concern where it involved discussion of high faculty turnover and sexual
harassment of students and teachers).
14
16
Plaintiff in her opposition pleading, the Motion for Summary Judgment of Defendants’
Nebo School District and Angie Killian (ECF No. 104) is denied.
IT IS SO ORDERED.
Dated this 17th day of October, 2018
BY THE COURT:
DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?