Nielson et al v. Jordan School District
Filing
48
MEMORANDUM DECISION AND ORDER Denying in Part Defendant's Motion for Partial Summary Judgment and Granting Partial Summary Judgment for Plaintiffs. Signed by Judge Robert J. Shelby on 8/17/22. (dla)
Case 2:20-cv-00337-RJS-DAO Document 48 Filed 08/17/22 PageID.1826 Page 1 of 42
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING IN PART
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND
GRANTING PARTIAL SUMMARY
JUDGMENT FOR PLAINTIFFS
AMBER NIELSON, APRIL BOONE, and
SHERI COPIER,
Plaintiffs,
v.
Case No. 2:20-cv-00337-RJS-DAO
JORDAN SCHOOL DISTRICT,
Chief District Judge Robert J. Shelby
Defendant.
Magistrate Judge Daphne A. Oberg
This case concerns whether Defendant Jordan School District’s (JSD) termination of
Plaintiffs Amber Nielson, April Boone, and Sheri Copier violated their implied contract with
JSD and their due process rights.1 Now before the court are Plaintiffs’ Motion for Partial
Summary Judgment2 on their breach of implied contract claim and JSD’s Motion for Summary
Judgment.3 For the following reasons, Plaintiffs’ Motion for Partial Summary Judgment is
DENIED as MOOT, and JSD’s Motion for Summary Judgment is DENIED in part and DENIED
as MOOT in part. The court GRANTS partial summary judgment for Plaintiffs on their
declaratory judgment and statutory due process claims.
BACKGROUND
This matter arises from the June 2018 termination of Plaintiffs—three career educators—
from JSD .4 All Plaintiffs claim their termination, under an alleged Reduction-in-Force (RIF),
1
See Dkt. 26, Amended Complaint.
2
Dkt. 23.
3
Dkt. 32.
4
See Dkt. 26 ¶¶ 4–7; Dkt. 27, Answer to Amended Complaint ¶¶ 4–7.
1
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violated their implied contract with JSD and their constitutional due process rights.5
Additionally, Plaintiff Nielson claims her termination was an act of unlawful retaliation for
exercising her rights under the Family and Medical Leave Act (FMLA) and/or unlawful
discrimination based on her disabilities.6 JSD asserts it did not breach an implied contract with
Plaintiffs or violate their due process rights when it terminated them pursuant to a RIF.7
Additionally, JSD asserts Nielson’s termination was pursuant to a valid RIF and not an act of
retaliation for taking FMLA leave or discrimination based on her disabilities.8
I.
Factual Record for Summary Judgment
At summary judgment, the court reviews the parties’ agreed-upon factual record and
draws all reasonable inferences therefrom in favor of the nonmovant.9 The following facts are
not genuinely in dispute, unless otherwise indicated, 10 and are drawn from the parties’ summary
judgment briefing and attached affidavits and exhibits.11 They are admitted to the record for
summary judgment purposes.
5
See Dkt. 26 ¶¶ 107–35.
6
Id. ¶¶ 136–55.
7
Dkt. 32 at 4.
8
Id.
9
See Doe v. City of Albuquerque, 667 F.3d 1111, 1122 (10th Cir. 2012).
The parties present numerous factual disputes in their respective briefs. See Dkt. 23 at 2–9; Dkt. 30, Defendant’s
Opposition to Plaintiffs’ Motion for Partial Summary Judgment at 2–10; Dkt. 31, Plaintiffs’ Reply in Support of
their Motion for Partial Summary Judgment at 1–4; Dkt. 32 at 7–15; Dkt. 39, Plaintiffs’ Opposition to Defendant’s
Motion for Summary Judgment at 8–34; Dkt. 44, Defendant’s Reply in Support of its Motion for Summary Judgment
at 4–16. To the extent disputed facts are relevant to the parties’ arguments at summary judgment, the court resolves
those disputes herein as they arise. Genuine disputes of material fact are stated as such. The court refrains from
making any judgment on factual disputes that are immaterial in resolving the parties’ summary judgment motions.
10
See Fed. R. Civ. P. 56(c); 28 U.S.C. § 1746; see also Vazirabadi v. Denver Health and Hosp. Auth., 782 F. App’x
681, 687–88 (10th Cir. 2019).
11
2
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Nielson, Boone, and Copier were all career educators12 for JSD during the 2017–18
school year, and each were subjected first to a Reduction-in-Staff (RIS) and ultimately a
Reduction-in-Force (RIF) in 2018.13 Schools within JSD conduct a RIS when their student
enrollment for the next academic year is projected to be less than their current enrollment.14
Teachers subject to a RIS are provided thirty days’ notice that their employment may be subject
to termination.15 ‘RISed’ teachers may apply for other open positions in JSD; but, if not selected
for a new position, their employment is terminated via a RIF.16
Enrollments for each of the three JSD elementary schools where Plaintiffs worked were
projected to decrease between the 2017–18 and 2018–19 school years.17 While these individual
schools projected decreased enrollment, JSD anticipated district-wide enrollment to grow
between the 2017–18 and 2018–19 school years.18
Amber Nielson
During the 2017–18 school year, Plaintiff Nielson was in her fourth year as a Foothills
Elementary School teacher and in her eighteenth year working for JSD. 19 In approximately
2002, Nielson was diagnosed with Crohn’s disease and depression.20 In 2015, Nielson’s
principal at the time, Rebecca Lee, evaluated Nielson according to the district-mandated “Jordan
12
Dkt. 39 at 8.
13
Dkt. 23 at 4.
14
Dkt. 32 at 8.
See Dkt. 39-11, Exhibit J to Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment, JSD Policy
DP327 NEG – Reduction in Licensed Staff, 2016 Revision at 2–3.
15
16
Id.
17
Dkt. 32 at 9, 12, 13.
18
Dkt. 39 at 9.
19
Id. at 14.
20
Id.
3
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Performance Appraisal System” (JPAS).21 The JPAS ratings scale from “Highly Effective,”
“Effective,” “Minimally Effective,” to “Not Effective.”22 Lee rated Nielson as “Highly
Effective” because she demonstrated “exceptional skills” in engaging students in learning,
adjusting instruction to fit student needs, managing student behavior, maintaining relationships,
communicating with parents, collaborating with peers, and participating in out-of-class duties.23
Additionally, Nielson had a record of getting along with her colleagues.24
Late in the summer of 2017, Nielson developed a “massive” kidney stone, which led to
eight major surgeries and prescription of narcotics.25 A stent was placed in her ureter to relieve
the kidney stone.26 Shortly after Nielson returned to teaching in mid-to-late August, she suffered
a severe allergic reaction to the stent and collapsed at work.27 The allergic reaction and narcotic
use caused Nielson to suffer an acute stress disorder, and she was taken to a psychiatric hospital
on approximately August 21, 2017, where she “detoxed.”28 As a result, Nielson took FMLA
leave from August 21 through August 25, missing the first full week of the school year.29
Nielson’s depression symptoms were heightened as she started the 2017–18 school
year.30 Nielson experienced significant mood swings and Principal Wilson recognized a change
21
Id. at 11, 19; Dkt. 44 at 13.
22
Dkt. 39 at 11 n.7.
23
Id. at 19.
24
Id. at 23–24; Dkt. 44 at 14.
25
Dkt. 39 at 14.
26
Id.
27
Id. at 14–15.
28
Id. at 15.
29
Id.
Id.; see also Dkt. 44 at 10. The parties dispute whether Nielson’s depression resulted from her health problems.
However, they do not dispute that Nielson became extremely depressed as she started the 2017–18 school year.
30
4
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in her personality during the fall term.31 On rare occasions, Nielson’s health issues resulted in
her needing to leave school or miss days without the opportunity for advance notice.32
In November 2017, Nielson was diagnosed with thyroid cancer.33 Her doctor
recommended immediate surgery, which Nielson scheduled to occur during winter break to
minimize her absence from the classroom.34 She applied for FMLA leave from January 2
through February 2, 2018 to have time to recover.35 Wilson approved Nielson’s FLMA leave,
and Nielson arranged her own substitute teachers.36 The parties genuinely dispute whether
Nielson provided effective substitute teacher plans before taking FMLA leave.37 Before taking
her FMLA leave, in about December 2017, Nielson voluntarily stepped down from two
leadership positions—the assistant team lead for the first-grade teachers and head of the
Sunshine Committee—because she “didn’t know what the cancer was going to require.”38
During the 2017–18 school year, Foothills had forty teachers in first through sixth
grade.39 Foothills’ projected full-time staffing needs for 2018–19 was 36.5 teachers.40 Based on
Dkt. 39 at 15–16; see also Dkt. 44 at 10–11. The parties dispute whether Nielson’s depression caused her mood
swings. However, they do not dispute that Nielson experienced mood swings and that Wilson noticed a change in
Nielson’s personality in the fall of 2017.
31
32
Dkt. 39 at 15.
Id.; see also Dkt. 44 at 10–11. The parties dispute whether Nielson’s cancer diagnosis exacerbated her depression
and mood swings. However, they do not dispute that Nielson was diagnosed with cancer in November 2017.
33
34
Dkt. 39 at 16; Dkt. 44 at 11.
35
Dkt. 39 at 16; Dkt. 44 at 11.
36
Dkt. 39 at 16; Dkt. 44 at 11.
37
Nielson asserts she prepared daily lesson plans for the substitute teacher prior to taking her FMLA leave in
January 2018. JSD asserts that she did not. Compare Dkt. 39 at 16 with Dkt. 44 at 11. Both parties cite to
conflicting testimony from Nielson’s grievance hearing to support their assertions. See Dkt. 35-3, Exhibit 11 to
Defendant’s Motion for Summary Judgment, Nielson Grievance Hearing Transcript at 194–95; Dkt. 32-13, Exhibit
12 to Defendant’s Motion for Summary Judgment, Wilson Deposition at 112.
38
Dkt. 39 at 15–16; Dkt. 44 at 11.
39
Dkt. 32 at 9.
40
Id.
5
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that projection and factoring in anticipated retirements, Wilson decided to RIS one teacher.41 To
determine which teacher to RIS, Wilson and her assistant principal created a rubric to rate every
Foothills teacher.42 Wilson considered “staffing needs” to create the rubric, including: (1) “what
makes a school run effectively,” (2) “the attributes you need in staff to make a school run great,”
and (3) “what staff bring to the table to make a school great; their professionalism, ability to
communicate, ability to follow District and school goals.”43 Wilson’s rubric contained the
following criteria: (1) “Communicates professionally, effectively, and in a timely fashion with
parents, teachers, staff, and students;” (2) “Works well with others – is a problem solver and a
team player;” (3) “Makes decisions based on what’s best for kids;” (4) “Follows through with
school level assignments and expectations;” (5) “Brings a positive energy to the faculty and
staff;” and (6) “Consistently attends and contributes to collaboration meetings, i.e. meetings with
[] team members.”44 On the back of the rubric, a section entitled “other items to consider” had
space for handwritten notes and an area to mark whether parent requests to “transfer out” of a
teacher’s classroom were “not a problem,” “a rare occasion,” or a “consistent problem.”45
Wilson and her assistant principal rated every Foothills teacher according to the rubric
between February 14 and February 27, 2018.46 They focused on one teacher at a time and rated
on the series of indicators from the rubric.47 Wilson scored Nielson very low on almost all
41
Id.; Dkt. 39 at 22; see also Dkt. 35-3 at 41–43.
42
Dkt. 32 at 9; see also Dkt. 39 at 22.
43
Dkt. 39 at 16.
44
Id. at 16–17.
45
Id. at 17.
46
Id.
47
Dkt. 32 at 9; Dkt. 39 at 22.
6
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criteria on the rubric.48 Wilson based the rubric score in part on a two-to-three-minute classroom
observation, which she conducted with each teacher.49 She observed Nielson’s classroom to be
chaotic with no direct instruction.50 When rating Nielson, Wilson also considered the conflicts
Nielson had with other teachers and unprofessional behavior she displayed toward other
teachers, Wilson, and district personnel during the 2017–18 school year.51
On the back page of Nielson’s rubric, Wilson noted parent requests to “transfer out” of
Nielson’s class were a “consistent problem,” and she handwrote extensive notes in the “other
items to consider” section.52 Some of Wilson’s handwritten notes included: (1) “sub complaints
– no plans,” (2) “FMLA January,” (3) “parent request to move out – always gone sick,” (4) “quit
social committee chair and assistant team lead suddenly,” (5) “very emotional saying she’s not
going to be back,” (6) “anonymous phone call – anger, unstable, not good for kids,” (7) “said she
was overwhelmed . . . , but doesn’t want help,” (8) “mood highs and lows,” (9) “energy at first –
48
Dkt. 39 at 17.
49
Id.
Dkt. 32 at 10. Plaintiffs dispute this fact because “Nielson’s most recent JPAS indicated that she demonstrated
‘exceptional skills’ in ‘engaging students in learning,’ [] ‘presenting information clearly, providing a courteous
climate, and adjusting instruction to fit student needs and interests[]’ [and] . . . in ‘managing student behavior,’
which requires ‘frequently scanning the class to increase awareness of students’ behavior and responding to
observed behavior.’” Dkt. 39 at 24. JSD responds that Plaintiffs’ cited evidence does not dispute the substance of
the fact because “Nielson’s JPAS was completed in January 2015 by Rebecca Lee and does not reflect Wilson’s
observations of Nielson” in 2018. Dkt. 44 at 15. The court agrees with JSD and finds these statements are not
contradictory. The court accepts that Nielson’s 2015 JPAS indicated she had ‘exceptional skills’ in ‘engaging
students in learning,’ ‘presenting information clearly, providing a courteous climate,’ ‘adjusting instruction to fit
student needs and interests,’ and ‘managing student behavior,’ but that Wilson observed her classroom to be chaotic
with no direct instruction in February 2018.
50
Dkt. 32 at 10. Plaintiffs dispute this fact and cite to Nielson’s JPAS, which “states that she demonstrated
‘exceptional skills’ in ‘collaborating with peers,’ and note that Wilson admitted that Nielson had a record of getting
along with her teammates. Dkt. 39 at 23–24. JSD responds that “Nielson’s JPAS was completed in 2015 by
Rebecca Lee and does not reflect Wilson’s observations of Nielson[.] … Moreover, Wilson’s testimony makes clear
that she believed Nielson got along well with colleagues in the past, but that she had been struggling with her
relationships during the [2017–18] school year.” Dkt. 44 at 14. The court finds these statements are not
contradictory and accepts that Nielson had a record of getting along with her teammates, but had conflicts with other
teachers and acted unprofessionally toward other teachers, Wilson, and district personnel in the 2017–18 school
year.
51
52
Dkt. 39 at 17.
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gets overwhelmed/stops no follow through,” (10) “took out full JPAS to interim . . . because of
her mental instability – not doing well,” (11) “lots of personal emergencies – leaves during the
day and teachers take kids – (Fall 2017) – now they don’t do it because of changing dynamics w/
her personality and the team changes.”53 The parties genuinely dispute whether Wilson
considered Nielson’s mood changes, personal emergencies, and parent requests to move out of
Nielson’s class when rating Nielson on the RIS rubric.54 The parties also genuinely dispute
whether Nielson properly entered her days absent in the Skyward timekeeping system.55
After they finished evaluating every Foothills teacher, Wilson and her assistant principal
compiled the rubrics, added up the categories on each rubric to generate a total, and ranked the
teachers from lowest to highest.56 Amber Nielson was the lowest-ranked teacher, prompting the
administration to subject her to a RIS.57 On March 9, 2018, Nielson was notified of her RIS.58
She inquired why the action was being taken but did not learn the basis for her RIS until April
53
Id. at 17–18.
Plaintiffs assert Wilson did consider these factors when rating Nielson, citing to Wilson’s handwritten notes and
testimony that she considered her handwritten notes when scoring teachers. Dkt. 39 at 24–25. JSD asserts that
although Wilson testified that she generally considered her handwritten notes, she specifically testified that she did
not consider Nielson’s moods, personal emergencies, or the parent request to transfer out when scoring Nielson.
Dkt. 44 at 15.
54
JSD cites to Wilson’s testimony in support of the proposition that “Nielson wouldn’t put in her days absent in the
Skyward system.” Dkt. 32 at 10; see Dkt. 32-13 at 38. Plaintiffs dispute this fact because “JSD’s ‘Employee Leave
Summary’ record shows that Nielson reported approximately 8.25 sick days between August 2, 2017 – January 2,
2018. [And] [t]his is consistent with Wilson’s estimate that Nielson took about ‘five to ten’ sick days (apart from
her FMLA leave) between August 2017 and January 2018.” Dkt. 39 at 23. JSD responds that the Employee Leave
Summary “shows the days absent but does not establish that Nielson entered these days into the Skyward system.”
Dkt. 44 at 14. The court finds a genuine dispute exists concerning whether Nielson entered her days absent in the
Skyward system.
55
56
Dkt. 32 at 9.
57
Id.
58
Dkt. 39 at 19; Dkt. 44 at 13.
8
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2019.59 Following her RIS, Nielson applied for at least forty jobs with JSD.60 She did not secure
a position and was terminated pursuant to a RIF, effective June 1, 2018.61
Amber Boone
Plaintiff Boone was a teacher at Riverside Elementary during the 2017–18 school year.62
Based on the 2018–19 student enrollment projections, Ronna Hoffman, Riverside’s principal,
decided to RIS two teachers. 63 In February 2018, Hoffman and her assistant principal created a
rubric to evaluate Riverside’s teachers, with little assistance from the district.64 The rubric
included criteria such as “Contribution to School Climate,” “Supports School Goals,” and
“Reaching Every Child Every Day.”65 Hoffman gave Boone very low scores on the rubric’s
criteria because Boone was “negative” when working with other teachers on her team and “[n]ot
all children feel that she cares about them.”66 Hoffman also indicated concern with Boone’s
“classroom environment” because Boone had “very low rigor” in the classroom and did not
effectively use data to differentiate students.67 Based on the rubric, Hoffman determined Boone
should be one of the teachers subject to the RIS68 and notified Boone on March 9, 2018.69
59
Dkt. 39 at 19; Dkt. 44 at 13.
60
Dkt. 39 at 19.
61
Id.
62
Id. at 10.
63
Dkt. 32 at 13.
64
Dkt. 39 at 10.
65
Id.
66
Id.
67
Id.
68
Id. at 10–11.
69
Id. at 12.
9
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Boone was “stunned” by this decision.70 On her most recent JPAS, Hoffman had rated
Boone as “Effective.”71 And in November 2017, Hoffman had written a letter of
recommendation indicating that Boone was “a very flexible, cheerful person” with a “positive
attitude” and a “great addition” to the kindergarten team.72 Boone asked why she was being
RISed and what aspects of her performance were unsatisfactory, but she never received a copy of
the rubric and did not learn the basis for her RIS until April 2019.73
Following her RIS, Boone applied for at least forty-three positions with JSD.74 She did
not secure another position and was terminated pursuant to a RIF, effective June 1, 2018.75
Sheri Copier
Plaintiff Copier taught at Mountain Shadows Elementary during the 2017–18 school
year.76 Based on the 2018–19 enrollment projection, Mountain Shadows needed to reduce its
number of teachers by one.77 Annette Huff, Mountain Shadows’ principal, created a rubric with
minimal assistance from JSD.78 The rubric contained criteria like “works well with others,”
“brings a positive energy to the faculty and staff,” and “willing to learn and try new things.”79
Huff gave Copier very low scores on the rubric’s criteria because Coper did not work well with
70
Id. at 11.
71
Id.
72
Id.
73
See id. at 11; Dkt. 44 at 7.
74
Dkt. 39 at 12.
75
Id.
76
Id.; Dkt. 32 at 12.
77
Dkt. 32 at 12.
78
Dkt. 39 at 12.
79
Id.
10
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her team members, “got angry” when other people looked at her students’ data, was
disorganized, and “had a problem with classroom management.”80
In May 2014, Copier received a “letter of concern” about her performance, prompting her
to take the letter “seriously” and follow through with all recommendations for improvement.81
After receiving the letter, Copier was given no further discipline and her performance improved
substantially.82 And in December 2015, Huff gave Copier an “Effective” JPAS rating.83
However, Principal Huff chose not to consider the JPAS rating when scoring teachers on the
2018 RIS rubric.84
Copier was notified of her RIS on March 8, 2018.85 After receiving notice, Copier asked
why she was being RISed and what aspects of her performance were unsatisfactory, but she did
not learn the basis for her RIS until April 2019.86 Following her RIS, Copier applied for at least
sixty-six positions with JSD; however, she did not secure a position and was terminated pursuant
to a RIF, effective June 1, 2018.87
JSD’s RIF Policy
In 2018—the year that all Plaintiffs were terminated under a RIF—JSD’s RIF policy
stated: “If a licensed employee is terminated through a RIF, the employee will be given first
consideration for available positions for which they apply online and are qualified within one (1)
80
Id. at 13.
81
Id.
82
Id.
83
Id.
84
Id.
85
Id. at 14.
86
See id. at 14; Dkt. 44 at 10.
87
Dkt. 39 at 14.
11
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year of the date of the RIF. However, there is no guarantee of continued employment.”88 The
policy language was ratified in 2011,89 and thereafter was revised to add the word “online” in
2016.90 No additional language in the 2011 RIF Policy or the 2016 revision interpreted or
defined “first consideration.”91 In January 2019, six months after Plaintiffs were terminated
through the RIF, the JSD School Board ratified an updated RIF Policy, negotiated between JSD
and Jordan Education Association (JEA), that read: “If a licensed employee is terminated
through a RIF, the employee will be contacted and given the opportunity to interview for
available positions for which they apply online and are qualified within one (1) year of the date
of the RIF.”92
Following their respective terminations, Plaintiffs each applied for positions within JSD,
but were not hired for any.93 JSD’s Human Resources Director testified that Plaintiffs received
the “same opportunity that anyone would have to apply” and the treatment they received did not
vary as compared to “anybody off the street” applying for the same jobs.94
88
Dkt. 39-11 at 3; Dkt. 30 at 3–4.
89
Dkt. 23 at 4.
90
Id.; Dkt. 30 at 4.
Plaintiffs purportedly dispute the assertion that “[t]here is no additional language interpreting or defining ‘first
consideration’ in JSD’s policies.” Dkt. 30 at 10; Dkt. 31 at 4. However, Plaintiffs do not appear to contest that there
is no additional language interpreting of defining ‘first consideration’ in the 2011 RIF Policy or its 2016 revision,
which was in effect when Plaintiffs were terminated. Rather, Plaintiffs response adds facts regarding the 2019 RIF
policy. Dkt. 31 at 4. JSD does not contest the content of the updated RIF policy, as ratified by the School Board in
January 2019. See Dkt. 44 at 13–14. Rather, JSD asserts that “subsequent negotiations by the negotiating teams
have no bearing on what was negotiated and agreed upon for the policies in place at the time of the RIF.” Id. To the
extent JSD’s objection sets forth its legal argument regarding the applicability of subsequent revisions to interpreting
the parties’ prior agreement, it is overruled.
91
See Dkt. 31-1, Exhibits to Plaintiffs’ Reply in Support of their Motion for Partial Summary Judgment at 16
(Exhibit X, January 8, 2019, JSD Board of Education Meeting Minutes).
92
93
Dkt. 23 at 7–8.
Dkt. 31 at 1–2; see also Dkt. 30 at 9; Dkt. 23-1, Exhibits to Plaintiffs’ Motion for Partial Summary Judgment at
116–17 (Exhibit L, Nielson Grievance Hearing Transcript).
94
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Plaintiffs’ Grievance Process
Following their respective RISs, Plaintiffs began the five-step grievance process outlined
in JSD’s negotiated grievance policy.95 Pursuant to Step I, a JEA Representative discussed
Copier’s grievances with Principal Huff on May 21, 201896 and Boone’s grievances with
Principal Hoffman on May 22, 2018.97 Both principals indicated that the respective teachers
were RISed because of their low rubric scores and, unless hired for an available position, they
would be terminated under a RIF, effective June 1, 2018.98
Pursuant to Step II of the JSD grievance policy, Nielson, Boone, and Copier each filed
their respective grievances with their immediate supervisors.99 And on June 22, 2018, Plaintiffs
each filed a grievance at Step III, which resulted in an investigation into each teacher’s RIS by an
investigatory committee and the District Grievance Officer, a JSD administrator.100 The District
Grievance Officer determined JSD had not violated Utah statute or any JSD policies with respect
to each Plaintiff’s RIS.101
On July 19, 2019, Plaintiffs filed their respective grievances at Step IV of the JSD
grievance policy, resulting in the joint selection of an impartial hearing examiner.102 The
impartial examiner, who was not a JSD employee or board member, determined that each
Plaintiff’s termination under a RIF violated state law because the RIFs had been based on
95
See Dkt. 23-1 at 52–57 (Exhibit I, DP315 NEG – Grievance Procedure – Licensed).
96
Dkt. 32 at 12; Dkt. 39 at 28–29.
97
Dkt. 32 at 14; Dkt. 39 at 31–32.
98
Dkt. 32 at 12, 14; Dkt. 39 at 28–29, 31–32.
99
Dkt. 32 at 11, 12, 14; Dkt. 39 at 26, 29, 32.
100
Dkt. 32 at 11, 12, 14; Dkt. 39 at 26–27, 29–30, 32.
101
Dkt. 39 at 26–27, 29–30, 32.
102
Dkt. 32 at 11, 13, 14; Dkt. 39 at 27, 30, 32–33.
13
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declining enrollment in a specific school, rather than the entire district, and violated JSD policy
by having no meaningful process for giving RIFed teachers “first consideration.”103
JSD’s Board of Education held a hearing on August 13, 2019, during which Plaintiffs’
counsel made a brief presentation to the Board regarding each Plaintiff’s termination through a
RIF.104 The Board found that JSD had not violated Utah statute or its policies with respect to
Plaintiffs’ terminations.105 Having exhausted their administrative remedies, Plaintiffs initiated
this action.
II.
Procedural History
On May 29, 2020, Plaintiffs filed their Complaint, asserting JSD had breached its implied
contract with Plaintiffs and deprived them of their property interest without due process.106
Plaintiff Nielson also brought an individual claim that JSD had unlawfully retaliated against her
for exercising her rights under the FMLA.107 JSD filed its Answer on October 19, 2020,108 and
filed an Amended Answer on January 29, 2021.109 On August 18, 2021, Plaintiffs filed their
Motion for Partial Summary Judgment on their implied breach of contract claim based on their
allegations that JSD failed to give them “First Consideration” for other positions following their
respective RIFs.110 On August 20, 2021, Plaintiffs filed their Amended Complaint, adding
103
Dkt. 32 at 11, 13, 14; Dkt. 39 at 27, 30, 32–33.
104
Dkt. 32 at 11, 13, 14; Dkt. 39 at 28, 31, 33–34.
105
Dkt. 39 at 28, 31, 33–34; Dkt. 44 at 15–16.
106
Dkt. 2.
107
See id. ¶¶ 136–43.
108
Dkt. 9.
109
Dkt. 13. JSD sought, and the court granted, leave to amend its Answer. See Dkt. 11, Motion to Amend
Defendant’s Answer; Dkt. 12, Order Granting Motion to Amend Answer.
110
Dkt. 23.
14
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Nielson’s individual claim of unlawful discrimination under the Rehabilitation Act.111 On
August 20, 2021, JSD filed its Answer to the Amended Complaint.112 And on November 15,
2021, JSD filed its own Motion for Summary Judgment on all claims.113 Both summary
judgment motions having been fully briefed, oral argument was heard on June 28, 2022, and the
matters were taken under advisement.114
For the reasons described herein, the court concludes Plaintiffs’ Motion for Partial
Summary Judgment is DENIED as MOOT. Jordan School District’s Motion for Summary
Judgment is DENIED in part and DENIED as MOOT in part. The court GRANTS Plaintiffs
summary judgement on their declaratory judgment claim and their statutory due process claims.
LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact” and the moving party is “entitled to judgment as a matter of law.”115 A fact is material if it
“might affect the outcome of the suit under the governing law,” and a dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”116
“Judgment as a matter of law is appropriate when the nonmoving party has failed to make a
111
Dkt. 26 ¶¶ 144–55. Plaintiffs sought, and the court granted, leave to amend their Complaint. See Dkt. 24,
Stipulated Motion to Amend Complaint; Dkt. 25, Docket Text Order Granting Stipulated Motion to Amend
Complaint. Because Plaintiffs’ Amended Complaint added only Nielson’s individual claim under the Rehabilitation
Act, and made no changes to the previously pleaded claims, the court will discuss Plaintiffs’ previously filed Motion
for Partial Summary Judgment in relation to the Amended Complaint. Compare Dkt. 2 with Dkt. 26.
112
Dkt. 27.
Dkt. 32. In their Opposition to JSD’s Motion for Summary Judgment, Plaintiffs “request that the Court [grant]
summary judgment in Plaintiffs’ favor on their declaratory judgment, breach of contract, and deprivation of due
process claims.” Dkt. 39 at 59. However, Plaintiffs’ brief was not filed as a cross-motion for summary judgment
and “[a] party may not make a motion, . . . or a cross-motion in a response or reply. Any motion must be separately
filed.” DICivR 7-1 (a)(3). Therefore, the court will consider Plaintiffs’ Opposition as an opposition, not as a crossmotion for summary judgment.
113
114
Dkt. 47, Minute Entry for Proceedings on June 28, 2022.
115
Fed. R. Civ. P. 56(a).
116
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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sufficient showing on an essential element of [its] case with respect to which [it] has the burden
of proof.”117
“Cross-motions for summary judgment are to be treated separately; denying one does not
require granting another.”118 “[T]he moving party carries the burden of showing beyond a
reasonable doubt that it is entitled to summary judgment.”119 Though a defendant “does not have
the ultimate burden of persuasion at trial,” when moving for summary judgment, a defendant has
“both the initial burden of production . . . and the burden of establishing that summary judgment
is appropriate as a matter of law.”120 This burden may be met by demonstrating “that the
nonmoving party does not have enough evidence to carry its burden of persuasion at trial.”121
Additionally, the court may grant summary judgment for the nonmoving party if “the
facts were fully developed at [] summary judgment” such that “the nonmoving party [is] clearly
[] entitled to a judgment as a matter of law[.]”122 But the court “should not grant summary
judgment in favor of the nonmoving party where the movant has not had the opportunity to
present the applicable facts” or when doing so would result in “procedural prejudice to the
moving party.” 123
When determining whether the evidence is sufficient to support judgment as a matter of
law, “the judge’s function is not himself to weigh the evidence and determine the truth of the
117
Doe, 667 F.3d at 1122 (internal quotation marks and citation omitted).
118
Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979).
119
Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008) (internal quotation marks and citations omitted).
120
Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002) (citation omitted).
121
Id. at 979.
Doña Ana Mut. Domestic Water Consumers Ass’n v. City of Las Cruces, NM, 516 F.3d 900, 912 (10th Cir.
2008).
122
123
Id.
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matter but to determine whether there is a genuine issue for trial.”124 “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.”125 This threshold inquiry ascertains whether
“there are any genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.”126
In ruling on a motion for summary judgment, the court is to “view the evidence and make
all reasonable inferences in the light most favorable to the nonmoving party.”127 Nonetheless,
“the judge must view the evidence presented through the prism of the substantive evidentiary
burden.”128
ANALYSIS
I.
Validity of the RIF
Plaintiffs were each subject to a RIS from their respective schools. Thereafter, unable to
secure another position within JSD, each was subject to termination from JSD under a RIF. The
parties do not dispute that the initiation of Plaintiffs’ RIS and subsequent RIF was consistent
with JSD policy.129 Nor do they dispute that JSD may choose to implement a RIS based on a
school’s declining enrollment without contravening Utah law. Rather, the parties’ dispute
centers on whether JSD policy violates Utah law by permitting JSD to terminate an educator’s
124
Liberty Lobby, 477 U.S. at 249.
125
Id. at 255.
126
Id. at 249.
127
N. Nat. Gas Co. v. Nash Oil & Gas, Inc., 526 F.3d 626, 629 (10th Cir. 2008).
128
Liberty Lobby, 477 U.S. at 254.
129
See Dkt. 32 at 15–16; see also Dkt. 39 at 6–7.
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employment via a RIF when there is decreased enrollment at a school, but not in the district as a
whole.130
Under Utah’s School District and Utah Schools for the Deaf and Blind Employee
Requirements (previously the Public Education Human Resources Act and hereinafter
“PEHRMA”), educators who have attained “career status” are afforded certain employment
protections.131 Generally, career educators may only be terminated “for cause” and are entitled
to statutory due process, in addition to their constitutional due process rights, and the opportunity
for remediation prior to being terminated “for cause” or based on their “unsatisfactory
performance.”132 However, these statutory safeguards do not apply when an educator, regardless
of “career status,” is terminated pursuant to a RIF.133
The parties’ dispute centers on whether PEHRMA’s provision authorizing a RIF because
of “declining student enrollments in the district” permits a district to implement a RIF when
there is a decline in student enrollments at a given school within the district, or only when there
is a decline in total student enrollments district-wide. It is undisputed that student enrollments in
JSD, as a whole, increased between the 2017–18 and 2018–19 school years.134 JSD has not
See Dkt. 39 at 37 n.10 (“[A]lthough JSD correctly states that it may RIS a teacher based on a school’s declining
enrollment, its contention that it may terminate/RIF a teacher based on the school’s declining enrollment is
incorrect.”).
130
131
See UTAH CODE ANN. §§ 53G-11-501 – 53G-11-519 (2018) (PEHRMA).
132
See id. § 53G-11-513 (2018) (dismissal procedures); id. § 53G-11-514 (2018) (nonrenewal or termination of a
career employee’s contract for unsatisfactory performance).
See id. § 53G-11-516 (2018) (“Nothing in this part prevents staff reduction if necessary to reduce the number of
employees because of . . .”); Durfey v. Bd. of Educ. of the Wayne Cnty. Sch. Dist., 604 P.2d 480, 484 (Utah 1979)
(interpreting very similar language from a previous iteration of PEHRMA and concluding: “This language is a clear
exception from the other provisions of the Act. There is nothing in any other section of the Act which would
reasonably imply that the procedural safeguards found elsewhere in the Act apply whenever the termination is for
the budgetary concerns indicated.”).
133
134
See Dkt. 39 at 9; Dkt. 44 at 4.
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alleged other circumstances justifying a RIF.135 Rather, JSD contends that PEHRMA should be
interpreted to allow a RIF “when there are declining enrollments at individual schools” within
the district.136 JSD asserts that “nothing in the Act [] mandates that there be a district-wide
decrease in student enrollment before a school district can RIS [or] RIF teachers.”137 Plaintiffs
contend the plain language of the statute should be interpreted to require district-wide declining
enrollment before a RIF can occur.138 Plaintiffs assert their interpretation is supported by the
plain language, the context of the statute as a whole, and the broader statutory purpose of
PEHRMA.139 For the reasons stated below, the court agrees with Plaintiffs.
Issues of statutory interpretation present questions of law.140 When interpreting Utah
state law, the court looks to Utah courts’ principles of statutory construction for guidance.141
Utah courts’ “primary goal in interpreting statutes is to give effect to the legislative intent, as
evidenced by the plain language, in light of the purpose the statute was meant to achieve.”142 In
doing so, the court “look[s] first to the statute’s plain language, in relation to the statute as a
135
See generally Dkt. 32; Dkt. 44.
136
Dkt. 44 at 18; see also Dkt. 32 at 16–17.
137
Dkt. 32 at 17.
Dkt. 39 at 38. Plaintiffs also assert their interpretation is supported by the Utah Supreme Court’s application of a
prior iteration of the statute in Durfey v. Board of Education of the Wayne County School District. Dkt. 39 at 38–39
(citing 604 P.2d at 482–83). JSD responds that its interpretation is not foreclosed by Durfey because Durfey “did
not involve the interpretation of the Act[.]” Dkt. 44 at 17. The court agrees with JSD. In Durfey, the Utah Supreme
Court did not interpret the justifications for a RIF enumerated in the 1953 predecessor to PEHRMA, but rather found
sufficient evidence in the record to conclude plaintiff had been dismissed based on a RIF rather than his
“competence or [] activities as a President of the Wayne County Education Association[.]” Durfey, 604 P.2d at 482.
138
139
Dkt. 39 at 37–40.
140
United States v. Almaraz, 306 F.3d 1031, 1035 (10th Cir. 2002); see also Regal Ins. Co. v. Canal Ins. Co., 93
P.3d 99, 100 (Utah 2004).
See United States v. Welch, 327 F.3d 1081, 1094 (10th Cir. 2003) (“[W]e interpret the statute consistent with
Utah state law.”).
141
142
State v. Burns, 4 P.3d 795, 799–800 (Utah 2000).
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whole, to determine its meaning.”143 The court interprets the statute “to render all parts of the
statute relevant and meaningful, and thus, [will] presume the legislature used each term
advisedly and according to its ordinary meaning.”144
“When the meaning of a statute can be discerned from its [plain] language, no other
interpretive tools are needed.”145 But, if the statutory language remains ambiguous after
conducting a plain language analysis—meaning “its terms remain susceptible to two or more
reasonable interpretations”—the court will then “resort to other modes of statutory
construction[.]”146
Thus, the starting point is the plain language of PEHRMA’s RIF provision. It states:
(1)
143
Nothing in [PEHRMA] prevents staff reduction if necessary to reduce the
number of employees because of the following:
(a)
declining student enrollments in the district;
(b)
the discontinuance or substantial reduction of a particular service or
program;
(c)
the shortage of anticipated revenue after the budget has been
adopted; or
(d)
school consolidation.
(2)
A school district may not utilize a last-hired, first-fired layoff policy when
terminating school district employees.
(3)
A school district may consider the following factors when terminating a
school district employee:
(a)
the results of an employee’s performance evaluation; and
(b)
a school’s personnel needs.147
Calhoun v. State Farm Mut. Auto. Ins. Co., 96 P.3d 916, 921 (Utah 2004).
144
State v. Maestas, 63 P.3d 621, 632 (Utah 2002); see also Bd. Of Educ. of Jordan Sch. Dist. v. Sandy City Corp.,
94 P.3d 234, 237 (Utah 2004) (“[I]t is axiomatic that a statute should be given a reasonable and sensible construction
and that the legislature did not intend an absurd or unreasonable result.”).
145
Marion Energy, Inc. v. KFJ Ranch Partnership, 267 P.3d 863, 866 (Utah 2001) (internal citation and quotation
marks omitted).
146
Id.
147
UTAH CODE ANN. § 53G-11-516 (2018).
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Plaintiffs assert the plain language of subsection (1)(a) should be interpreted as only
permitting a RIF when there is declining student enrollments in the district as a whole.148
Plaintiffs first argue that, if the Legislature had intended to allow a RIF when there is declining
enrollment at a school within the district, the Legislature could have said that.149 Further,
Plaintiffs note the RIF provision clearly acknowledges that educators are district employees and
the decision to terminate under a RIF occurs at the district level.150 From this, Plaintiffs argue “it
would be nonsensical that a career educator could be RIFed simply because there was declining
enrollment in her school.”151
Relying on similar principles of interpretation, JSD notes “the Act does not state that a
RIF is permissible only if there are declining enrollments district wide.”152 JSD goes on to argue
the Act’s use of the plural, “enrollments,” “recognizes that there are multiple ‘enrollments’ in the
district because there are multiple schools and departments in the district, each having different
needs.”153 JSD also asserts that the RIF provision “does not use any term defined in [PEHRMA],
does not refer to any other parts of [PEHRMA], but rather specifically states that nothing in other
parts of [PEHRMA] prevents staff reduction.”154 JSD concludes, therefore, that “nothing in the
Policy or in the way JSD implements the Policy [] conflicts with [PEHRMA].”155 The court
disagrees.
148
See Dkt. 39 at 38.
Id. (“The Legislature did not state that a staff reduction is allowed if there is ‘declining student enrollments at
school(s) with the district,’ which it could have done had the intent been to allow for the termination of an employee
if that employee’s school suffered declining enrollment.”).
149
150
Id. (citing UTAH CODE ANN. § 53G-11-516(2)–(3) (2018)).
151
Id.
152
Dkt. 44 at 16.
153
Id. at 17.
154
Dkt. 32 at 17.
155
Id.
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First, the disputed language in PEHRMA’s RIF provision does use the defined term
“district.” PEHRMA defines “school district” or “district” to mean “a public school district” or
“the Utah Schools for the Deaf and the Blind.”156 Incorporating this definition, subsection (1)(a)
of PEHRMA’s RIF provision permits a RIF if necessary, because of declining student
enrollments in the public school district.157 Thus, the plain language of this provision accords
with Plaintiffs’ interpretation—it refers to “the district,” defined to mean “the public school
district,” not to “schools” or “schools within the district,” as JSD advocates.158 JSD makes much
of the use of the plural “enrollments” in subsection (1)(a).159 However, as Plaintiffs contended at
oral argument, the court interprets “enrollments” as modifying the word it proceeds—
“student”—referring to the multiple students enrolled in a district rather than alluding to the
multiple schools within a district. JSD’s interpretation would have the court read additional
language into subsection (1)(a) to permit a RIF when student enrollments at schools within the
district decline.160 Thus, the plain language of subsection (1)(a), and its use of the defined term
“district,” supports Plaintiffs’ interpretation.
Looking beyond subsection (1)(a) itself, PEHRMA’s RIF provision, considered as a
whole, also supports Plaintiffs’ interpretation. As Plaintiffs note, the RIF provision repeatedly
“recognizes that educators are employees of their school districts” by referring to RIF
requirements “when terminating school district employees[.]”161 Further, the court observes the
same subsections of the RIF provision recognize that a RIF occurs as a district-level decision,
156
UTAH CODE ANN. § 53G-11-501(12) (2020).
157
Id. § 53G-11-516(1)(a) (2018).
158
See Dkt. 44 at 18.
159
Dkt. 32 at 17; Dkt. 44 at 16–17.
160
See Dkt. 32 at 38.
161
Id. (emphasis in briefing) (citing UTAH CODE ANN. § 53G-11-516(2), (3) (2018)).
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rather than a school-level decision, by giving explicit directives of what “a school district” may
and may not consider when terminating its employees. 162 One factor a school district may
consider when terminating employees pursuant to a RIF is “a school’s personnel needs.”163
Inclusion of this factor evidences two things relevant to interpreting subsection (1)(a). First, the
Legislature understood how to draft provisions directed to the level of individual schools, as
demonstrated by permitting consideration of a school’s personnel needs, rather than the districtlevel, as done in subsection (1)(a). Second, the Legislature likely appreciated the differing
personnel needs of schools within a district and chose to accommodate those needs as something
the district may consider when terminating educators under a RIF—not as something which in
itself permits the initiation of a RIF. Therefore, the court finds the plain language of PEHRMA’s
RIF provision, considered in its entirety, also supports Plaintiffs’ interpretation of subsection
(1)(a) as requiring there to be declining total student enrollments in the district as a whole in
order to initiate a RIF.
Lastly, PEHRMA’s context as a whole enforces Plaintiffs’ interpretation. Different
provisions of PEHRMA regularly set out responsibilities and provide guidance for different
levels of public education administration including the “state board,”164 the “state
superintendent,”165 “local school board[s],”166 “school district[s],”167 the “school district
UTAH CODE ANN. § 53G-11-516(2) (2018) (“A school district may not utilize a last-hired, first-fired layoff policy
when terminating school district employees.”); id. § 53G-11-516(3) (“A school district may consider the following
factors when terminating a school district employee: . . .”).
162
163
Id. § 53G-11-516(3)(b) (2018).
164
See, e.g., id. § 53G-11-510(1) (2020) (“[T]he state board shall make rules . . .”).
See, e.g., id. § 53G-11-511(3) (2020) (“The state superintendent shall include the data reported . . . in the State
Superintendent’s Annual Report . . .”).
165
166
See, e.g., id. § 53G-11-506(1) (2019) (“A local school board shall develop an educator evaluation program . . .”).
167
See, e.g., id. § 53G-11-511(1) (2020) (“A school district shall report to the state board . . .”).
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superintendent,”168 and “principal[s].”169 The Legislature presumably understood the multiple
levels of administration for Utah’s public schools and drafted PEHRMA specifying duties and
directives at distinct levels. PEHRMA’s RIF provision fits into this larger statutory scheme by
setting forth rules for the school district to adhere to in conducting a RIF.170 The Legislature
understood how to delineate what level of administration a given provision applies to, and in
drafting the RIF provision it repeatedly specified that the district is the level where a RIF can be
authorized “if necessary . . . because of . . . declining student enrollments in the district[.]”171
Thus, reading subsection (1)(a) in the context of PEHRMA as a whole lends further support to
Plaintiffs’ interpretation.
Based on the plain language of the RIF provision, read within the context of PEHRMA as
a whole, the court concludes that subsection (1)(a) permits a school district to conduct a RIF
when doing so is necessary because of “declining student enrollments”172 in the “public school
district.”173 JSD’s initiation of Plaintiffs’ RIFs based on declining student enrollments at
Plaintiffs’ respective schools at a time when student enrollments in the school district increased,
was in violation of PEHRMA’s RIF provision. Because JSD advances no other justification for
Plaintiffs’ terminations,174 the court concludes Plaintiffs were not terminated pursuant to a valid
RIF.
168
See, e.g., id. § 53G-11-508(3) (2020) (“[T]he school district superintendent . . . shall appoint a person . . .”).
169
See, e.g., id. § 53G-11-509(1) (2019) (“[T]he principal . . . shall assign a person . . . as a mentor . . .”).
170
See id. § 53G-11-516 (2018).
171
Id. § 53G-11-516(1)(a) (2018).
172
Id.
173
Id. § 53G-11-501(12)(a) (2020).
174
See id. § 53G-11-516(1)(a)–(d) (2018) (enumerating circumstances under which a school district may conduct a
RIF). JSD does not argue Plaintiffs’ RIFs were justified based on “the discontinuance or substantial reduction or a
particular service or program,” “the shortage of anticipated revenue after the budget [was] adopted,” or “school
consolidation. Id.; see Dkt. 32 at 15–18; Dkt. 44 at 16–18.
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JSD nevertheless argues its RIF policy should be permitted to coexist with PEHRMA
because “[t]he Policy does not offend the public policy to which [PEHRMA] gives voice.”175
JSD notes that the RIF provision is an exception to the other PEHRMA provisions and, as such,
is not necessarily encompassed by the same public policy considerations.176 While PEHRMA is
generally informed by a policy goal of improving public education by providing educators with
specific support and feedback,177 JSD argues the RIF provision is “an exception to this
underlying public policy.”178 JSD asserts that “the [L]egislature did not put [the RIF provision]
in place for an employee’s protection, but rather to allow school district[s] to reduce staff without
having to comply with the other sections of the Act.”179
Plaintiffs, on the other hand, argue the RIF provision “must be construed in harmony”
with PEHRMA’s other provisions.180 Plaintiffs emphasize that PEHRMA provides career
educators, like them, with a “reasonable expectation of continued employment” and guarantees
them certain protections and procedures before being terminated for unsatisfactory
performance.181 Plaintiffs argue JSD’s RIF policy “flies in the face of the procedural safeguards
provided under PEHRMA,” and that the Policy cannot coexist with the Act because it “would
eviscerate” the protections guaranteed to career educators before their termination for reasons
other than a valid RIF.182 The court agrees with Plaintiffs.
175
Dkt. 32 at 17–18.
176
Dkt. 44 at 18.
177
See UTAH CODE ANN. § 53G-11-501.5(1) (2019).
178
Dkt. 44 at 18.
179
Id.
180
Dkt. 39 at 40.
181
See id. (quoting UTAH CODE ANN. § 53G-11-501(2) (2020)).
182
Id.
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Utah courts “have generally recognized that ‘an enforceable contract can coexist with a
statute that may conflict with its terms so long as the contract does not offend the public policy to
which the statute gives voice.’”183 But the Utah Supreme Court has “not addressed whether a
government agency may contract with an employee in violation of statutory requirements put in
place for that employee’s protection.”184 This court need not make such a determination today.
JSD’s RIF policy cannot coexist with PEHRMA because, as applied to Plaintiffs, the Policy
contravenes not only the Act’s express terms but also “the public policy to which [it] gives
voice.”185
The public policy animating PEHRMA is “that the effectiveness of public educators can
be improved and enhanced by providing specific feedback and support for improvement through
a systematic, fair, and competent annual evaluation and remediation of public educators whose
performance is inadequate.”186 The RIF provision is indeed an exception to PEHRMA’s other
provisions, allowing for the termination of career educators without adherence to the procedures
and protections to which they are otherwise entitled prior to being terminated for cause.187
However, the RIF provision is a narrowly-delineated exception, allowing a district to terminate
educators without adhering to PEHRMA’s usual procedures only under four specific
circumstances.188 JSD’s Policy, if permitted to stand in contravention of PEHRMA’s terms,
would expand the RIF provision as an exception to PEHRMA’s otherwise applicable protections.
183
Howick v. Salt Lake City Corp., 424 P.3d 841, 844 (Utah 2018) (quoting Lee v. Thorpe, 147 P.3d 443, 447 (Utah
2006)).
184
Id.
185
See Lee, 147 P.3d at 447.
186
UTAH CODE ANN. § 53G-11-501.5(1) (2019).
187
See Durfey, 604 P.2d at 484.
188
UTAH CODE ANN. § 53G-11-516(1)(a)–(d) (2018).
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In summary, the court concludes that Plaintiffs’ interpretation of PEHRMA’s RIF
provision is consistent with the provision’s plain language, the statute as a whole, and its
intended purpose.189 Thus, JSD’s RIF policy, as interpreted by JSD and applied to Plaintiffs,
contravenes PEHRMA. Plaintiffs were not terminated pursuant to a valid RIF because the
circumstances present did not justify a RIF under PEHRMA.190 JSD’s Motion for Summary
Judgment is therefore DENIED with respect to Plaintiffs’ declaratory judgment claim.
Furthermore, because the facts have been fully developed such that it is clear Plaintiffs are
entitled to judgment as a matter of law on their declaratory judgment claim, the court GRANTS
summary judgment for Plaintiffs on that claim.191
II.
Due Process
Plaintiffs’ second cause of action asserts JSD deprived Plaintiffs of their property interest
in continued employment without due process of law.192 Plaintiffs assert JSD failed to provide
them with the procedural due process to which they were entitled to under Utah law and the
United States Constitution.193 The court will address separately Plaintiffs’ claims under Utah
law and under the U.S. Constitution.
a. Statutory Due Process and Remediation
Plaintiffs claim JSD failed to provide them with due process as required under Utah law
by terminating them “under the guise of a []RIF” without adequate pre-termination process,
189
See Burns,4 P.3d at 799–800; Calhoun, 96 P.3d at 921.
190
See UTAH CODE ANN. § 53G-11-516(1) (2018).
191
JSD has had ample opportunity to put forth the facts on this issue and to develop and present its arguments as to
the same. No triable issue of fact remains as to the validity of Plaintiffs’ RIF. Therefore, no procedural prejudice
ensues from granting summary judgment to Plaintiffs on their declaratory judgement claim. See Doña Ana Mut.
Domestic Water Consumers Ass’n, 516 F.3d at 912.
192
See Dkt. 26 ¶¶ 115–128.
193
See id.
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remediation prior to their termination, 194 and “a full and fair post-termination process.”195 JSD
asserts that “neither Utah law nor JSD’s policies require that a teacher be provided with
remediation when she is subject to a []RIF” and that, “throughout [their] entire grievance
process, Plaintiffs had more than adequate opportunity to make arguments and present evidence
regarding their [] RIF.”196
PEHRMA is animated by the Utah Legislature’s finding “that the effectiveness of public
educators can be improved and enhanced by providing specific feedback and support for
improvement through a systematic, fair, and competent annual evaluation and remediation of
public educators whose performance is inadequate.”197 To that end, PEHRMA sets forth various
requirements for the regular performance evaluation of educators198 and processes for the
dismissal of career educators.199 However, PEHRMA’s RIF provision allows for reductions in
staff “if necessary . . . because of . . . declining student enrollments in the district[.]”200
Terminations pursuant to a RIF are exempt from the protections otherwise provided to career
educators under PEHRMA.201
194
Id. ¶ 122.
195
Id. ¶ 123.
196
Dkt. 32 at 26.
197
UTAH CODE ANN. § 53G-11-501.5 (2019).
198
See id. § 53G-11-504 (2020) (evaluation of employee performance); id. § 53G-11-506 (2019) (establishment of
educator evaluation program); id. § 53G-11-507 (2019) (components of educator evaluation program); id. § 53G-11508 (2020) (summative evaluation timelines); id. § 53G-11-510 (2020) (state board to describe a framework for the
evaluation of educators).
199
See id. § 53G-11-512 (2019) (local school board to establish dismissal procedures); id. § 53G-11-513 (2018)
(dismissal procedures); id. § 53G-11-514 (2018) (nonrenewal or termination of a career employee’s contract for
unsatisfactory performance).
200
Id. § 53G-11-516 (2018) (necessary staff reduction not precluded).
Durfey, 604 P.2d at 484 (interpreting similar language in PEHRMA’s predecessor statute, “[n]othing in this act
shall be construed to preclude staff reduction when necessary to decrease the number of teachers because of . . .[,]”
and concluding that the procedural safeguards elsewhere in PEHRMA’s predecessor statute do not apply when an
employee is terminated pursuant to a RIF); see also, e.g., Dkt. 39 at 36 (“PEHRMA allows for a bona fide RIF of
career educators, without remediation or due process[.]”).
201
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The parties do not dispute that PEHRMA mandates different procedures and protections
for career educators terminated under a valid RIF than for those terminated ‘for cause,’ including
unsatisfactory performance.202 JSD contends that Plaintiffs received adequate pre- and posttermination processes to satisfy PEHRMA’s procedural requirements for termination under a
RIF.203 But JSD does not dispute, and the record makes clear, that Plaintiffs did not receive the
statutorily-mandated processes, including remediation, they were entitled to as career educators
terminated for unsatisfactory performance.204
Because the court has concluded that Plaintiffs were not terminated pursuant to a valid
RIF, it follows that Plaintiffs were entitled to the procedural protections PEHRMA grants to
career educators terminated for cause. It is undisputed that Plaintiffs did not receive those
statutorily mandated processes. Therefore, JSD’s Motion for Summary Judgment is DENIED in
part. And, because the facts on this issue have been fully developed at summary judgment and
See Dkt. 39 at 34–36; see also Dkt. 32 at 24–26; Dkt. 44 at 19–20 (JSD’s entire due process argument is
premised on Plaintiffs having been terminated under a valid RIF).
202
Under PEHRMA, career educators “terminated . . for reasons of unsatisfactory performance” are entitled to certain
processes and protections including: “written documentation clearly identifying the deficiencies in performance;”
“notice that [their] contract is subject to nonrenewal or termination if, upon reevaluation . . . , [their] performance is
determined to be unsatisfactory;” and “a plan of assistance . . . to allow [them] an opportunity to improve
performance.” UTAH CODE ANN. § 53G-11-513(2) (2018); id. § 53G-11-514 (2018). Employees terminated for
cause other than unsatisfactory performance are not entitled to a plan of assistance but are still entitled to
PEHRMA’s other procedural protections. See id. § 53G-11-501(15)(b) (2020) (defining conduct constituting cause
for termination other than unsatisfactory performance); id. § 53G-11-512(4) (2019) (outlining dismissal procedures
for educators exhibiting both unsatisfactory performance and other conduct constituting cause for dismissal); id. §§
53G-11-513(5)(a), (5)(d) (2018) (providing generally applicable dismissal procedures). These procedural
protections do not apply to terminations under a valid RIF. See Durfey, 604 P.2d at 484.
203
See Dkt. 32 at 24–26; Dkt. 44 at 19–20.
204
See generally Dkt. 32; Dkt. 39; Dkt. 44.
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Plaintiffs are clearly entitled to judgment as a matter of law,205 the court GRANTS summary
judgment for Plaintiffs on their statutory due process claims.
b. Constitutional Due Process
Plaintiffs also claim JSD violated their due process rights under the U.S. Constitution by
depriving them of property interests without “pre-termination process and a full and fair posttermination process[.]”206 JSD contends that Plaintiffs received constitutionally-sufficient preand post-termination processes which afforded them “more than adequate opportunity to make
arguments and present evidence regarding their [] RIF.”207
JSD’s arguments are premised on Plaintiffs having been terminated under a valid RIF.208
In light of this court’s conclusion that Plaintiffs were wrongfully terminated under a statutorilyinvalid RIF, JSD’s arguments miss the mark and do not address whether Plaintiffs received their
constitutional due process. JSD has not demonstrated it is “entitled to judgment as a matter of
law.”209 Because of this failure of proof, JSD’s Motion for Summary Judgment is DENIED in
part. The court makes no ruling as to the merits of Plaintiffs’ constitutional due process
claims.210
See Doña Ana Mut. Domestic Water Consumers Ass’n, 516 F.3d at 912. JSD has had ample opportunity to
present the applicable facts and the agreed upon record at summary judgment reveals Plaintiffs have not received the
processes due to career educators under PEHRMA for termination of career employees for unsatisfactory
performance. UTAH CODE ANN. §§ 53G-11-513, 514. Thus, granting summary judgment for Plaintiffs does not
result in procedural prejudice to JSD.
205
206
Dkt. 26 ¶ 120.a; see also id. ¶¶ 122.a, 123, 125.
207
Dkt. 32 at 26.
208
See id. at 24–26.
209
Fed. R. Civ. P. 56(a).
210
See Dkt. 26 ¶¶ 120.a, 122.a, 123, 125.
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III.
First Consideration
When Plaintiffs were terminated, JSD policy DP327 stated: “[i]f a licensed employee is
terminated through a RIF, the employee will be given first consideration for available positions
for which they apply online and are qualified within one (1) year of the date of the RIF.
However, there is no guarantee of continued employment.”211 Plaintiffs claim JSD breached this
policy by “[f]ailing to give first consideration to Plaintiffs after they were RIFed on June 1,
2018[.]”212 However, at oral argument, Plaintiffs’ counsel stipulated this claim would be
rendered moot were they to prevail on their declaratory judgment claim. In view of the court’s
decision that summary judgment must be awarded to Plaintiffs on their declaratory judgment
claim, Plaintiffs’ claim for breach of contract is rendered moot. The court will not reach the
merits of whether JSD breached its policies by failing to give Plaintiffs “first consideration.”
Plaintiffs’ Motion for Partial Summary Judgment213 is DENIED as MOOT and JSD’s
Motion for Summary Judgment is DENIED as MOOT in part.214
IV.
Nielson’s Claims Under the FMLA and Rehabilitation Act
In addition to the claims brought by all Plaintiffs, Plaintiff Nielson alleges her RIS and
eventual termination violated the Family Medical Leave Act (FMLA) and the Rehabilitation
Act.215 JSD moves for summary judgment on both of Nielson’s claims.216
211
See Dkt. 39-11 at 3.
212
Dkt. 26 ¶ 112.b.
213
Dkt. 23.
214
Dkt. 32 at 18–23.
215
Dkt, 26 ¶¶ 136–55.
216
See Dkt. 32 at 27–30.
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“The FMLA entitles qualifying employees to take up to twelve weeks of unpaid leave,
without fear of termination[,] for a serious health condition.”217 “It is unlawful for an employer
to retaliate against an employee for taking FMLA leave.”218 Nielson claims JSD unlawfully
retaliated against her for taking FMLA leave because her RIS and eventual termination were
allegedly based, at least in part, on her use of protected leave.219
The Rehabilitation Act provides that “no otherwise qualified individual with a
disability . . . shall, solely by reason of her [] disability, . . . be subjected to discrimination under
any program or activity receiving Federal financial assistance.”220 Nielson claims JSD
discriminated against her “when it subjected her to a RIS, and ultimately a RIF, based at least in
part on her disabilities.”221
Nielson’s claims under both the FMLA and Rehabilitation Act are subject to the burdenshifting framework articulated in McDonnell Douglas Corp. v. Green.222 Under the McDonnell
Douglas analysis, Nielson must first make a prima facie case of retaliation or discrimination.223
If she does, JSD must then offer a legitimate, non-retaliatory, and non-discriminatory reason for
her termination.224 Nielson “then bears the ultimate burden of demonstrating that [JSD’s]
proffered reason is pretextual.”225
217
Smothers v. Solvay Chems. Inc., 740 F.3d 530, 539 (10th Cir. 2014) (internal citations and quotation marks
omitted).
218
Id. at 539–40 (citing 29 U.S.C. § 2615(a)(2)).
219
Dkt. 26 ¶¶ 136–43.
220
29 U.S.C. § 794.
221
Dkt. 26 ¶¶ 144–55.
222
411 U.S. 792 (1973); see also Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006)
(applying McDonnell Douglas framework to retaliation claim under the FMLA); Cummings v. Norton, 393 F.3d
1186, 1189 (10th Cir. 2005) (applying McDonnell Douglas framework to Rehabilitation Act discrimination claim).
223
Metzler, 464 F.3d at 1170.
224
Id.
225
Id. (citations omitted); see also McDonnell Douglas Corp., 411 U.S. at 804–05.
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a. Prima Facie Case of Retaliation Under the FMLA
To establish a prima facie case of retaliation under the FMLA, Nielson must show:
(1) she engaged in a protected activity, (2) JSD took an action that a reasonable employee would
find materially adverse, and (3) the protected activity caused the adverse action.226 Nielson’s
“burden is ‘not onerous,’”227 and she need only present a “small amount of proof necessary to
create an inference” of retaliation.228 The parties do not dispute the first two elements of
Nielson’s prima facie case: (1) Nielson took FMLA leave from January 2 through February 2,
2018—a protected activity under the FMLA; and (2) on March 9, 2018 Nielson was subjected to
a RIS—an action a reasonable employee would find materially adverse.229
To establish the final, disputed element of a prima facie case of retaliation, Nielson “must
show a causal connection between her protected activity of taking FMLA leave” and JSD’s
decision to RIS her.230 “The critical inquiry at this prima facie stage is whether [Nielson] has
demonstrated that [JSD’s] action occurred under circumstances which give rise to an inference of
unlawful [retaliation].”231 Here, Nielson asserts unlawful retaliation may be inferred from the
circumstances surrounding her RIS, including the temporal proximity of her return from FMLA
leave and her notification of the RIS, and Wilson’s handwritten notes on her RIS rubric.232
226
Metzler, 464 F.3d at 1171.
Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005) (quoting Tex. Dep’t of Cmty. Affs. v. Burdine,
450 U.S. 248, 253 (1981)).
227
228
Id. (quoting EEOC v. Flasher Co. Inc., 986 F.2d 1312, 1318 (10th Cir. 1992)); see also EEOC v. Horizon/CMS
Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000) (“At the prima facie stage of the McDonnell Douglas
analysis, a plaintiff is only required to raise an inference of discrimination, not dispel the non-discriminatory reasons
subsequently proffered by the defendant.”).
229
See Dkt. 32 at 27–28 (“JSD does not dispute the first two elements of Nielson’s prima facie retaliation case.”).
230
Metzler, 464 F.3d at 1171.
231
Id. (internal citation and quotation marks omitted).
232
Dkt. 39 at 54–55.
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In demonstrating a causal connection as part of her prima facie case, a plaintiff may rely
on proximity alone when the protected activity is “very close” to the adverse action.233 The
Tenth Circuit has held a period of six weeks between the protected activity and the adverse
employment action is “very close,” such that causation may be inferred.234 Whether proximity is
based on when Wilson scored Nielson’s RIS rubric or when Wilson informed Nielson she was
RISed, at most five weeks elapsed between Nielson’s return from FLMA leave and her RIS from
Foothills Elementary.235
JSD does not dispute the temporal proximity between Nielson’s FMLA leave and the
RIS. Rather, JSD argues temporal proximity is insufficient to establish Nielson’s prima facie
case because JSD’s HR Director, Nick Hansen, was ignorant of Nielson’s FMLA leave.236 JSD
cites Maestas v. Segura, where the defendant’s ignorance of the protected activity barred
temporal proximity from establishing cause.237 JSD argues because Hansen was ignorant of
Nielson’s FMLA leave, cause cannot be inferred from temporal proximity.238 The court
disagrees.
233
Metzler, 464 F.3d at 1171 (emphasis in original).
234
Ramirez v. Okla. Dept. of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994) (finding one-and-a-half months is
close enough to infer causation at the prima facie stage), overruled on other grounds by Ellis v. Univ. of Kans. Med.
Ctr., 163 F.3d 1186, 1194–97 (10th Cir. 1998); see also Metzler, 464 F.3d at 1171 (finding the time span “very
close” when Metzler was terminated within six weeks of her employer learning that she intended to take FMLA
leave and within four weeks of her FMLA protected leave request); Richmond v. ONEOK, Inc., 120 F.3d 205, 209
(10th Cir. 1997) (finding three months was not close enough to infer causation); Salemi v. Colo. Pub. Emps.’ Ret.
Ass’n, 747 F. App’x 675, 700 (10th Cir. 2018) (finding five months between return from FMLA leave and the
adverse action not close enough for temporal proximity alone to establish causation).
Nielson returned from FMLA leave on February 5, 2018. Dkt. 39-16, Exhibit O to Plaintiffs’ Opposition to
Defendant’s Motion for Summary Judgment, Nielson Leave Summaries at 2. Wilson rated Foothills’ teachers on the
RIS rubric between February 14 and February 27, 2018. Dkt. 39 at 17. Nielson was subjected to a RIS, based on
her rubric score, on March 9, 2018. Id. at 19.
235
236
Dkt. 44 at 20–21.
237
Id. at 20 (citing Maestas v. Segura, 416 F.3d 1182, 1189 (10th Cir. 2005) (finding temporal proximity
insufficient to establish cause when the defendant who recommended the adverse action of transferring plaintiffs
was ignorant of plaintiffs’ protected activity)).
238
Id. at 20–21.
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In Maestas, the ignorant defendant was the one who recommended the adverse action.239
Here, Principal Wilson—not Hansen—recommended that Nielson be RISed. Wilson created the
RIS rubric, scored Foothills’ teachers, and ultimately determined Nielson would be RISed based
on her low rubric score.240 JSD has presented no evidence showing Hansen was involved in
deciding which teacher should be RISed from Foothills Elementary.241 As such, Hansen’s
ignorance does not prevent temporal proximity from establishing the causal element of Nielson’s
prima facie FMLA claim. Wilson, the individual recommending adverse action against Nielson,
was indisputably aware of Nielson’s FMLA leave.242
Because less than six weeks elapsed between Nielson’s protected activity and JSD’s
adverse action, the “very close” proximity test is met, and causation may be inferred to establish
Nielson’s prima facie case of retaliation under the FMLA. Because causation is established on
that fact alone, the court need not consider Nielson’s other evidence regarding causation.243
b. Prima Facie Case of Discrimination Under the Rehabilitation Act
To establish a prima facie case for discrimination under the Rehabilitation Act, Nielson
must show: “(1) [s]he was a disabled person under the statute, (2) [s]he was otherwise qualified
for the job regardless of [her] disability, and (3) [s]he was terminated from [her] employment
because of [her] disability.”244 As with Nielson’s retaliation claim, the parties dispute only the
Maestas, 416 F.3d at 1189–90 (finding nothing in the record to indicate defendant was aware of plaintiffs’
whistle blowing activities when he recommended their transfer).
239
240
See Dkt. 44 at 21.
241
See generally Dkt. 32 at 9–12, 27–30; Dkt. 44 at 20–23.
See Dkt. 39 at 16–18; Dkt. 44 at 11–12. It is undisputed that Wilson approved Nielson’s FMLA leave and noted
“FMLA January” in her comments on Nielson’s RIS rubric.
242
However, this evidence also pertains to Nielson’s prima facie case of discrimination under the Rehabilitation Act
and her argument that JSD’s proffered reasons for her termination are pretextual. As such, it is discussed in sections
IV.b and IV.d, infra.
243
244
Cummings, 393 F.3d at 1189.
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final element, causation.245 It is undisputed Nielson had been diagnosed with Crohn’s disease,
major depressive disorder, and cancer—all of which qualify as disabilities under the
Rehabilitation Act—and that she was otherwise qualified for her job.246
To meet the causation prong of her prima facie discrimination claim, Nielson must
present evidence that she was RISed because of her disabilities.247 The Rehabilitation Act
protects disabilities and “disability-caused conduct.”248 When a disability involves a mental
health issue, the Act’s protections extend to the “abnormal behavior” manifesting such a
disability.249 As with her FMLA claim, Nielson need only offer a “small amount of proof” to
create an “inference of discrimination.”250
Nielson asserts discrimination can be inferred based on the handwritten notes Wilson
took while scoring Nielson’s RIS rubric.251 It is undisputed that Wilson noted the following on
Nielson’s RIS rubric: “quit social committee chair and assistant team lead suddenly,” “always
gone sick,” “lots of personal emergencies,” “very emotional,” “overwhelmed,” “mood highs and
lows,” “not doing well,” “changing dynamics with her personality,” and “mental instability.”252
Dkt. 32 at 28 (“JSD only contends that Nielson cannot establish the third element of her prima facie
discrimination case.”).
245
246
Id.; see also 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(j)(1).
247
EEOC v. C.R. England, Inc., 644 F.3d 1028, 1038 (10th Cir. 2011). EEOC v. C.R. England was decided under
the ADA. However, the court notes that “[c]ases decided under section 504 of the Rehabilitation Act are []
applicable to cases brought under the ADA and vice versa, except to the extent the ADA expressly states otherwise.”
Woodman v. Runyon, 132 F.3d 1330, 1339 n. 8 (10th Cir. 1997) (“The ADA . . . extended to private employees
many of the protections afforded the employees of federal grantees under section 504 of the Rehabilitation Act of
1973. . . . [and] the Rehabilitation Act was amended . . . to incorporate into sections 501 and 504 the ADA’s
express provision[.]”). As such, the parties largely use case law applying the McDonnell Douglas framework in
ADA cases in the context of Nielson’s Rehabilitation Act claim. The court will do the same.
248
McKenzie v. Dovala, 242 F.3d 967, 974 (10th Cir. 2001).
249
Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1087 (10th Cir. 1997).
250
Orr, 417 F.3d at 1149 (internal citation and quotation marks omitted) (quoting Horizon/CMS Healthcare Corp.,
220 F.3d at 1193).
251
Dkt. 39 at 54–57.
252
See id. at 17–18; Dkt. 44 at 11–12.
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Because Wilson testified that she generally considered her notes when scoring teachers’ RIS
rubrics, Nielson argues it is reasonable to infer Wilson considered these notes, referencing
Nielson’s disability, when scoring Nielson.253 Thus, Nielson argues there is sufficient evidence
to meet the causation element of her prima facie discrimination claim.254 JSD argues Nielson has
failed to create an inference of discrimination because Wilson testified that she specifically did
not consider her notes related to Nielson’s mental and physical disabilities in evaluating
Nielson’s RIS rubric.255
The court finds that Nielson has met the “relatively lax” burden of establishing her prima
facie case under the Rehabilitation Act.256 To meet her burden at the prima facie stage, Nielson
need only demonstrate the “small amount of proof necessary” for a reasonable jury to infer
discrimination “by a preponderance of the evidence.”257 At summary judgment, the court will
“view the evidence and make all reasonable inferences in the light most favorable to the
nonmoving party,” which on this claim is Nielson.258 But the court will not weigh the evidence
or make credibility determinations.259 The evidence viewed in Nielson’s favor shows that: (1)
Wilson made contemporaneous notes on the RIS rubric while scoring Nielson; (2) the
handwritten notes referenced Nielson’s FMLA leave, her mood changes, and her recent health
emergencies; (3) Wilson generally considered her handwritten notes when scoring Foothills’
teachers; and (4) Nielson’s rubric score resulted in her being subjected to a RIS. The parties
253
Dkt. 39 at 56–57.
254
Id.
255
Dkt. 32 at 29; Dkt. 44 at 21.
Annett v. Univ. of Kan., 371 F.3d 1233, 1241 (10th Cir. 2004); see also Burdine, 450 U.S. at 253 (“The burden of
establishing a prima facie case [in the McDonnell Douglas framework] is not onerous.”).
256
257
Smothers, 740 F.3d at 539.
258
N. Nat. Gas Co., 526 F.3d at 629.
259
See Liberty Lobby, 477 U.S. at 249.
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genuinely dispute the extent Wilson considered her handwritten notes in scoring Nielson’s RIS
rubric260 and whether Nielson’s mood swings were attributable to her depression and cancer
diagnosis.261 Based on the record at summary judgment, the court concludes a reasonable jury
could infer a causal connection between Nielson’s disabilities and her RIS.
c. Legitimate Reason for Termination
Nielson having established her prima facie case, the burden shifts to JSD to “articulate
some legitimate, nondiscriminatory reason” for her RIS.262 JSD’s “burden at this stage is one of
production, not one of persuasion.”263
JSD asserts Wilson had to perform a RIS because of Foothill’s declining enrollment and,
as the teacher with the lowest rubric score, Nielson was RISed. JSD asserts Nielson scored
poorly on the RIS rubric, not because of her FMLA leave or her disabilities, but because: (1)
Nielson did not record her sick time in the Skyward timekeeping system; (2) Nielson was
unprofessional towards other teachers, Wilson, and JSD personnel; (3) Nielson’s classroom was
chaotic; and (4) Nielson did not prepare substitute teacher plans for general emergencies or for
her January FMLA leave.264 JSD has articulated legitimate reasons for Nielson’s RIS, unrelated
to her FMLA leave or her disabilities.
d. Pretext
With the first two McDonnell Douglas steps satisfied, the burden returns to Nielson to
“show that there is a genuine dispute of material fact as to whether [JSD’s] reasons for [RISing]
260
See Dkt. 32 at 10; Dkt. 39 at 18, 24–25.
261
See Dkt. 39 at 15; Dkt. 44 at 10–11.
262
McDonnell Douglas Corp., 411 U.S. at 802.
263
Smothers, 740 F.3d at 539 (quoting Horizon/CMS Healthcare Corp., 220 F.3d at 1191).
264
Dkt. 32 at 29–30.
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her are pretextual.”265 Notably, JSD’s motivation for deciding to RIS Nielson “is itself a factual
question.”266 Nielson may meet her burden “by demonstrating such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in [JSD’s] proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence.”267 The
evidence Nielson may present to establish pretext “may take a variety of forms[;]” she “may not
be forced to pursue any particular means of demonstrating that [JSD’s] stated reasons are
pretextual.”268 One way Nielson may show pretext is by establishing that JSD’s asserted reasons
for her RIS are false.269 Nielson’s “prima facie case, combined with sufficient evidence to find
that [JSD’s] asserted justification[s] [are] false, may permit the trier of fact to conclude that
[JSD] unlawfully discriminated” against Nielson when selecting her for the RIS.270
Nielson argues that JSD’s asserted reasons for her RIS are “unworthy of credence”
because they rely entirely on Wilson’s own testimony, which is “inconsistent with the District’s
own records.”271 Nielson disputes each of JSD’s asserted reasons for her low score on the RIS
rubric and contends: (1) she did record her sick time in Skyward, as reflected by the system’s
accounting aligning with Wilson’s recollection of Nielson’s time off; (2) she maintained positive
265
Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1290 (10th Cir. 2007) (quoting Metzler, 464 F.3d at 1172).
Smothers, 740 F.3d at 538 (“When evaluating an employer’s motives or reasons, motivation is itself a factual
question.”) (internal citation and quotation marks omitted).
266
Id.; see also Lounds v. Lincare, Inc., 812 F.3d 1208, 1234 (10th Cir. 2015) (“[The] critical question regarding this
aspect of the McDonnell Douglas rubric is whether a reasonable factfinder could [] find the employer’s rationale
unworthy of credence and hence infer that the employer did not act for the asserted non-retaliatory reasons.”)
(internal quotation marks and citation omitted).
267
268
Kendrick, 220 F.3d 1220, 1230 (10th Cir. 2000).
269
See id.; see also Cole v. Ruidoso Mun. Schs., 45 F.3d 1373, 1380–81 (10th Cir. 1994) (finding plaintiff may
survive summary judgment by presenting evidence that defendant’s asserted reason for the adverse employer action
was false).
270
Doebele v. Sprint/United Mgmt. Co., 342 F.3d 117, 1135 (10th Cir. 2000) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).
271
Dkt. 39 at 58.
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relationships with coworkers and an engaged, well-managed classroom, as reflected by her most
recent JPAS; and (3) she did prepare substitute teacher plans for both her general absences and
FMLA leave, as reflected by her most recent JPAS and by Nielson’s own attestations.272
The parties genuinely dispute whether Wilson considered her handwritten notes when
scoring Nielson’s RIS rubric, whether Nielson entered her days absent in the Skyward system,
and whether Nielson provided effective substitute teaching plans prior to her absences.273 And,
while not mutually exclusive, the record contains evidence showing both that Nielson had a
history of positive professional relationships, “engaging students in learning[,] [and] . . .
managing student behavior,”274 and that Wilson perceived Nielson to have struggled with her
professional relationships in the year leading up to her RIS and observed her classroom to be
chaotic with no direct instruction.275 This record is thus “sufficient to raise a fact issue as to
whether [JSD’s] reasons for [RISing Nielson] were pretextual and, significantly, does not contain
the requisite ‘abundant and uncontroverted independent evidence that no discrimination had
occurred.’”276 On this record, a reasonable jury could find JSD’s asserted reasons for Nielson’s
RIS unworthy of credence.
272
Id.
273
See Dkt. 32 at 10; Dkt. 39 at 23–25.
JSD further argues the parties only dispute whether Nielson entered her sick days into the Skyward timekeeping
system and it is undisputed that Wilson believed Nielson failed to ender her sick days. Dkt. 44 at 23. JSD argues
the court must “look at the facts as they appear to the person making the decision to terminate the plaintiff[:]”
Wilson. See Dkt. 44 at 22–23 (citing Kendrick, 220 F.3d at 1231). However, in Kendrick, “the undisputed evidence
show[ed] that [the employer] decided to terminate Kendrick based on his belief that Kendrick pushed Tirrell and
then verbally abused him. There was no evidence before [the employer] to suggest that Kendrick had not, in fact,
made physical contact with Tirrell.” 220 F.3d at 1231. Here, the parties dispute whether Nielson properly recorded
her time, citing different evidence in the record. Dkt. 32 at 30; Dkt. 39 at 58. Because properly recording absent
days is a fact external to the parties’ internal beliefs and the record supports both parties’ positions, the court finds
the parties genuinely dispute facts material to JSD’s asserted reason for terminating Nielson.
274
See Dkt. 39 at 58.
275
See Dkt. 32 at 30.
276
Doebele, 342 F.3d at 1139 (quoting Reeves, 530 U.S. at 148).
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At summary judgment, the court must view the record in the light most favorable to the
non-movant—on this claim, Nielson—and draw reasonable inferences from the evidence in her
favor.277 In other words, “all doubts concerning pretext must be resolved in [Nielson’s]
favor.”278 The Tenth Circuit has instructed that summary judgment should be denied when
“there is clearly conflicting evidence in [the] record showing that genuine questions of fact
remain on the material issue[] [of] whether [JSD’s] proffered reason for its action against
[Nielson] was pretextual.”279 Nielson has established that genuine disputes of material facts
remain as to whether JSD’s alleged reasons for RISing her are pretextual.
In sum, the question of JSD’s motivation or reason for selecting Nielson to be RISed
turns on issues of disputed material fact that are properly left to the jury. Because Nielson has
met her prima facie burden as to both her FMLA and Rehabilitation Act claims and has
demonstrated a genuine fact issue as to pretext, the court DENIES JSD’s Motion for Summary
Judgment as to Nielson’s FMLA retaliation and Rehabilitation Act discrimination claims.
CONCLUSION
For the reasons stated, Plaintiffs’ Motion for Partial Summary Judgment280 is DENIED as
MOOT and Jordan School District’s Motion for Summary Judgment281 is DENIED in part and
DENIED as MOOT in part. The court GRANTS summary judgment for Plaintiffs on their
declaratory judgment claim and GRANTS partial summary judgment for Plaintiffs on their due
process claims.
277
See, e.g., Campbell, 478 F.3d at 1287; Doebele, 342 F.3d at 1137.
278
Doebele, 342 F.3d at 1139 (citation omitted).
279
Cole, 43 F.3d at 1380.
280
Dkt. 23.
281
Dkt. 32.
41
Case 2:20-cv-00337-RJS-DAO Document 48 Filed 08/17/22 PageID.1867 Page 42 of 42
SO ORDERED this 17th day of August 2022.
BY THE COURT:
_______________________
ROBERT J. SHELBY
United States Chief District Judge
42
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