Tucker v. Decker

Filing 50

RULING granting 45 Motion for Summary Judgment. Signed by District Judge J. Garvan Murtha on 3/23/2016. (esb)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MARTHA TUCKER,
Plaintiff,
v.
LYLE DECKER,
Defendant.
____________________________________

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File No. 1:14-cv-163-jgm

RULING ON MOTION FOR SUMMARY JUDGMENT
(Doc. 45)
I.

Introduction
In July 2014, Plaintiff Martha Tucker commenced this action against Defendant Lyle

Decker, a Vermont state police officer, alleging malicious prosecution, defamation, and invasion of
privacy torts under 42 U.S.C. § 1983 and state common law. (Doc. 1.) Following the Court’s ruling
on his motion to dismiss (Doc. 10), Decker moves for summary judgment on the remaining federal
claim of defamation and the state law claims. (Doc. 45.) Tucker opposes the motion (Doc. 46), and
Decker has filed a reply. (Doc. 49.) For the following reasons, Decker’s motion is granted.
II.

Background
A.

Procedural

On December 17, 2014, the Court granted in part and denied in part Decker’s motion to
dismiss. (Doc. 10.) The motion was granted as to Tucker’s constitutional claims based on malicious
prosecution and invasion of privacy because he was entitled to qualified immunity. Tucker’s
constitutional claim for defamation survived the motion to dismiss because whether the claim could
prevail depended on facts to be determined in discovery. See Doc. 10 at 9-10. The motion was also
denied as to Tucker’s state law claims for malicious prosecution, defamation, and invasion of privacy

because Decker sought to dismiss them solely based on the assumption all the federal law claims
would be dismissed and the Court would be deprived of supplemental jurisdiction over the state law
claims. As one federal claim remained, the Court retained supplemental jurisdiction under 28 U.S.C.
§ 1367(a), and, while Tucker’s federal constitutional claims for malicious prosecution and invasion of
privacy were dismissed, federal qualified immunity does not protect Decker from her analogous
state law claims. (Doc. 10 at 13-14.)
B.

Factual1

Plaintiff Martha Tucker was the Superintendent of Schools for the Caledonia Central
Supervisory Union (“CCSU”) from July 2008 to June 2014. On April 29, 2013, she learned J.B., a
student at K-12 Danville School, a member of CCSU, claimed she had been subjected to inappropriate physical contact by a teacher. Tucker did not report the claim to the Department for Children
and Families (“DCF”) within 24 hours. J.B’s parents reported the allegation to DCF, which
contacted the Vermont State Police (“VSP”). Defendant Lyle Decker, a VSP trooper, investigated
the report of abuse. Tucker disputes Decker’s claim that a Deputy State’s Attorney for Caledonia
County told him to charge Tucker and notes Decker wrote and signed the Affidavit of Probable
Cause that provided the basis for charging her. Compare Doc. 45-1 ¶ 5 with Doc. 46-2 ¶ 5.
On July 8, 2013, Decker cited Tucker for failure to report child abuse or neglect, under
Vt. Stat. Ann. tit. 33, § 4913, and neglect of duty by a public officer, under Vt. Stat. Ann. tit. 13,
§ 3006. Decker went to Tucker’s office to deliver the citation, but she was not available. When she
called, he asked her to come to the VSP barracks in St. Johnsbury to receive the citation. Upon her
arrival at the barracks, Decker fingerprinted and photographed Tucker.

1

The facts are gleaned from the parties’ submissions, specifically their respective statements
of fact and responses. (Docs. 45-1, 46-2.) The Court notes instances in which the parties disagree.
2

Decker prepared an initial draft of a press release about the allegations against Tucker and
sent it to VSP’s Public Information Officer (“PIO”). While Decker states the PIO edited the draft,
Tucker states she does not have knowledge of revisions to the press release made by the PIO.
Compare Doc. 45-1 ¶ 11 with Doc. 46-2 ¶ 11. The press release, as drafted by Decker, stated, in
full:
The Vermont State Police began an investigation of a Danville High School student
that reported to have been inappropriately touched twice by a Danville School
Teacher on April 29, 2013. This case was reported to Noah Noyes, principle [sic],
who also notified Martha Tucker, the superintendent. Noyes and Tucker never
reported this to the Department of Children and Families (DCF) as required as
mandated reporters within 24 hours. On May 8, 2013, DCF learned of this incident
through student’s parents. This allegation of the alleged inappropriate contact
between the teacher and the student is still being investigated and the details will not
be released at this time.
(Doc. 45-6 at 2.) The PIO sent the press release via e-mail to media outlets and attached the
photograph of Tucker. The PIO’s email inserted the “title” of “Arrests for Failure to Report Child
Abuse and Neglect, and Neglect of Duty by a Public Officer,” and, among other changes, included
an additional paragraph: “Noyes and Tucker were cited and released. They are both scheduled to
appear on August 12th, 2013 [at] Caledonia Criminal Court to answer to the charges of Failure to
Report Child Abuse and Neglect of Duty by a Public Officer.” Id. at 4. Media outlets reported the
citation and ensuing prosecution. Tucker answered affirmatively at her deposition when asked if the
press coverage indicated that she would fight the charges. (Doc. 46-3 (“Tucker Dep.”) 135:2-4.)
She, however, disputes that this was so in her statement of disputed material facts. (Doc. 46-2 ¶ 14.)
On July 23, 2013, Tucker’s contract with CCSU was fully executed twice by her (as employee
and Superintendent) and the Board chair, extending her position as Superintendent from July 1,
2013 through June 30, 2015. (Doc. 45-9.) The contract provided CCSU could terminate the
contract for just and sufficient cause without notice or pay. Without just cause, CCSU could

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terminate for any reason, but Tucker would be entitled to notice and her full salary under the
contract. The contract could also be terminated at any time by mutual agreement of the parties.
On August 8, 2013, the Caledonia Criminal Court found probable cause to issue the
citations. Tucker asserts the probable cause was based on Decker’s misleading affidavit. See
Doc. 46-2 ¶¶ 5, 30.
After Tucker was cited, she applied for a position as Superintendent of the Addison
Northwest Supervisory Union. She was employed by CCSU at the time, but had given notice that
she was leaving. Tucker Dep. 42:6-10. Tucker was not offered the Addison Northwest position and
the search consultant told her the committee found her to be defensive when asked about the
allegations and resulting citation.
Sometime before January 28, 2014, Tucker advised the CCSU Board Chair she would not be
returning as Superintendent for the 2014-2015 school year and, on January 28, sent a letter to school
employees with the same information. CCSU did not terminate Tucker or ask her to resign.
Following her rejection for the Addison Northwest position, Tucker has not sought or been offered
employment as a superintendent since leaving CCSU. She currently works as a consultant. No one
has requested a copy of her criminal record from the Agency of Education and she has not
undergone a criminal background check since she left CCSU.
On April 1, 2014, Tucker moved to dismiss the criminal charges under Vermont Rule of
Criminal Procedure 12, arguing insufficient evidence, and under Rule 48, arguing the interests of
justice. Tucker argued six factors weighed in favor of a Rule 48 dismissal, one of which was
Decker’s personal animus, including that Decker had no right to fingerprint her or take her mugshot
under state law or VSP policy. Ultimately, the court dismissed the charges, finding the State did not

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have sufficient evidence to prove Tucker was required to report the claim to DCF. The court stated
it did not find evidence of animus and did not dismiss the case on that basis.
III.

Discussion
A.

Legal Standard

Summary judgment is appropriate only where the parties’ submissions show there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56. The Court must resolve ambiguities and draw inferences in favor of the nonmoving party. Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) (citation omitted). The
court's function is not to resolve disputed issues of fact but only to determine whether there is a
genuine issue of material fact to be tried. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). “If, as to the issue on which
summary judgment is sought, there is any evidence in the record from which a reasonable inference
could be drawn in favor of the opposing party, summary judgment is improper.” Fischl v. Armitage,
128 F.3d 50, 56 (2d Cir. 1997) (internal quotation marks and citation omitted). Credibility
assessments, choices between conflicting versions of the events, and the weighing of evidence are
matters for the jury, not for the court on a motion for summary judgment. See, e.g., Fed. R. Civ. P.
56(e) 1963 advisory committee’s note; Anderson, 477 U.S. at 255.
State officials are entitled to qualified immunity when their alleged conduct does not “violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982.) To determine whether an official is
entitled to qualified immunity, courts engage in a two-pronged inquiry asking whether (1) the facts
show the officer’s conduct violated a federal right, and (2) whether the right in question was clearly
established at the time of the violation. See Tolan v. Cotton, 134 S. Ct 1861, 1865-66 (2014).

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“Courts have the discretion to decide the order in which to engage these two prongs.” Id. at 1866.
“Although a mere mistake in the performance of an official duty may not deprive the officer of
qualified immunity, the doctrine does not shield performance that either (a) was in violation of
clearly established law, or (b) was plainly incompetent.” Manganiello v. City of New York, 612 F.3d
149, 165 (2d Cir. 2010); see also Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2085 (2011) (qualified
immunity “protects all but the plainly incompetent or those who knowingly violate the law”).
“Ultimately, the question is not what a lawyer would learn or intuit from researching case law, but
what a reasonable person in the defendant’s position should know about the constitutionality of the
conduct.” Velez v. Levy, 401 F.3d 75, 100 (2d Cir. 2005) (internal quotation and citation omitted).
The defendant bears the burden of establishing qualified immunity. See Vincent v. Yelich, 718 F.3d
157, 166 (2d Cir. 2013).
B.

Federal Defamation Claim

Decker seeks summary judgment on Tucker’s Fourteenth Amendment defamation claim
arguing he is entitled to qualified immunity. (Doc. 45 at 7-13.) Tucker argues Decker is not entitled
to qualified immunity because she can show a constitutional violation and that the constitutional
right was clearly established. (Doc. 46 at 4-10.)
To state a Fourteenth Amendment defamation claim, a plaintiff must show “stigma plus,”
which requires “the utterance of a statement sufficiently derogatory to injure [plaintiff’s] reputation,
that is capable of being proved false, and that he or she claims is false,” plus a “material stateimposed burden or state-imposed alteration of the plaintiff’s status or rights.” Vega v. Lantz,
596 F.3d 77, 81 (2d Cir. 2010). If plaintiff can show the deprivation of a protected liberty interest
through a stigma-plus injury, due process usually requires some form of hearing prior to the liberty

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deprivation or, in some instances, a post-deprivation hearing. See DeBlasio v. Novello, 244 F.3d
292, 302, (2d Cir. 2003).
The facts do not show Decker’s statement is capable of being proved false. Tucker argues
the title of the press release--“Arrests for Failure to Report Child Abuse and Neglect, and Neglect of
Duty by a Public Officer”--was false because Tucker was never arrested. (Doc. 46 at 5.) The press
release as drafted by Decker does not contain a title; the “title” appears as the subject of and the first
line of text in the email sent by the PIO. See Doc. 45-6. Tucker also argues the statement that
“neither Noyes or Tucker reported the incident to DCF, as required by law as mandated reporters
within 24 hours”2 is false because a failure to report cannot occur without a duty to report and
“Tucker was not ‘required’ to report unless she had reasonable cause to believe that abuse
occurred.” (Doc. 46 at 5.) Tucker does not dispute she did not report the incident to DCF or that
she was a mandated reporter. As the press release announced charges, and, as sent to media outlets,
included information regarding a court date to “answer the charges,” the statement read in context
was not false. To the extent that Decker’s statements in the press release could be deemed to be
misleading or overbroad, the doctrine of qualified immunity “gives ample room for mistaken
judgments.” Zieper v. Metzinger, 474 F.3d 60, 71 (2d Cir. 2007).
In ruling on the motion to dismiss, the Court stated Tucker could not state a constitutional
claim by alleging she was denied a position because of her public reputation, but noted she could
“state a defamation claim if she [could] show the defamation at issue ‘occurred in the course of
dismissal or refusal to rehire the individual as a government employee or during termination or
alteration of some other legal right or status.’” (Doc. 10 at 9 (quoting Neu v. Corcoran, 869 F.2d

2

The press release, as draft by Decker, stated: “Noyes and Tucker never reported this to
[DCF] as required as mandated reporters within 24 hours.” (Doc. 45-6 at 2.)
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662, 667 (2d Cir. 1989).) Accordingly, the Court held it could not dismiss her defamation claim on
qualified immunity grounds at that point because whether her claim would ultimately prevail
depended on the facts surrounding her resignation from the CCSU Superintendent position and her
attempts to seek employment in another comparable position. Id. at 10.
Assuming Tucker has demonstrated stigma by pointing to statements she attributes to
Decker in the July 2013 press release, she must also show a “plus.” She argues her “constructive
discharge” from her employment as Superintendent at CCSU satisfies the plus prong of the test.
(Doc. 46 at 6-7.) Even if the statements in the press release were attributable to Decker and were
false, Tucker has not demonstrated a genuine issue with regard to deprivation of a liberty interest
rising to the level of a constitutional claim because the defamation did not occur at the time of her
termination. See Neu, 869 F.2d at 667; Doc. 10 at 9. In fact, she was not terminated. Tucker
admits she resigned her position after the CCSU Board had entered a new contract with her to serve
as Superintendent after the state charges and press release issued. In these circumstances, it is
unclear to the Court how the CCSU Board could have offered her a pre-termination hearing as
required due process.
Tucker’s attempt to create a material dispute of fact regarding the plus element by asserting
she has been told she is “unemployable as a Superintendent in Vermont” is insufficient. See
Doc. 46 at 9. Other than the Addison Northwest Supervisory Union Superintendent position for
which she was rejected, Tucker has not sought or been offered employment as a superintendent
since leaving her position with CCSU. She asserts she has been told by the Executive Director of
the Vermont Superintendents Association and the former Deputy Commissioner of the Agency of
Education she is unemployable in Vermont. (Doc. 46-1 ¶ 24.) As the Court has noted, Tucker
cannot state a constitutional claim by alleging she was denied a position because of her reputation.

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Accordingly, evidence her reputation would preclude her from being hired if she applied to a
position cannot support a constitutional claim. Sadallah v. City of Utica, 383 F.3d 34, 40 (2d Cir.
2004) (“[D]eleterious effects flowing directly from a sullied reputation, standing alone, do not
constitute a ‘plus’ under the ‘stigma plus’ doctrine.” (internal quotation marks and citation omitted)).
Further, even if Tucker had demonstrated a “plus,” she has not shown the stigma and the
plus are “sufficiently proximate.” This proximity is present where the stigma and plus appear, to a
reasonable observer, connected and the actor imposing the plus explicitly or implicitly adopted the
stigmatizing statements. Velez, 401 F.3d at 89. Where the stigma and plus originate with different
actors, it is possible that “one or more defendants whose actions collectively implicate a liberty
interest may not be liable for the deprivation of that liberty interest.” Id. at 89 n.12. For example,
where a particular defendant lacks the power to provide process to the plaintiff in connection with
the liberty deprivation, that defendant cannot be liable for deprivation. See id. at 93. Even if
Decker caused the stigma, he is not alleged to have imposed the plus nor could he have because he
did not have legal authority to remove her from her position as Superintendent or power to provide
her process. Accordingly, Tucker cannot show the presumed stigma is sufficiently proximate to any
plus to state a claim against Decker.
The facts do not show Decker violated a federal right of Tucker’s and he is entitled to
qualified immunity. Decker’s motion for summary judgment is granted as to Tucker’s Fourteenth
Amendment defamation claim.
Even if Tucker had demonstrated a stigma-plus claim, the Court could not hold that the
right in question was clearly established at the time of the violation. As the Second Circuit has
noted, Supreme Court precedent establishes “no name-clearing hearing [is] required . . . when [a]
state employer defames [an] employee ‘who continues to be an employee.’” Baden, 799 F.2d at 830

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(quoting Paul v. Davis, 424 U.S. 693, 710 (1976)). As discussed above, Tucker continued to be
CCSU Superintendent for many months after Decker’s alleged defamation.
C.

Pendent State Law Tort Claims

Each federal claim has now been dismissed on qualified immunity grounds. Decker also
moves for summary judgment on the state law tort claims asserting he is entitled to qualified
immunity under Vermont law. (Doc. 45 at 13-23.) The Court did not decide state law qualified
immunity because it was not specifically raised by the motion to dismiss. See Doc. 10. Decker
argues the Court should not dismiss the state law claims on jurisdictional grounds at this stage,
because qualified immunity should be decided at the earliest possible moment and principles of
fairness and efficiency counsel the Court not to decline jurisdiction at this late stage where discovery
has been conducted and a dispositive motion is pending. (Doc. 49 at 10-11 (citing cases).) Tucker
asserts the state law claims should be addressed in state court if the federal claim for defamation
does not survive summary judgment. (Doc. 46 at 10 (citing cases).)
The Court retains jurisdiction over the state law claims, notwithstanding the cases Tucker
cites. Her citation to Leone v. Creighton, 948 F. Supp 192 (E.D.N.Y. 1996), is unavailing as the
Leone Court retained supplemental jurisdiction of the state law claims though it had dismissed all
plaintiff’s federal claims, noting it is within a district court’s discretion to keep them. Id. at 197.
While the Sadallah Court instructed the district court to decline supplemental jurisdiction over any
state law claims upon remand, in that case it was unclear whether plaintiff’s complaint asserted
claims under state law and the federal claims had been dismissed early in the litigation at the motion
to dismiss stage before discovery. Sadallah, 383 F.3d at 39-40. The decision to retain jurisdiction is
within the Court’s discretion and, considering judicial economy, convenience, and fairness, the
Court retains supplemental jurisdiction of Tucker’s state law claims. See Kroshnyi v. U.S. Pack

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Courier Servs., Inc., 771 F.3d 93, 102 (2d Cir. 2014); see also Cook v. Nelson, 712 A.2d 382, 384
(Vt. 1998) (noting the Vermont Supreme Court encourages early resolution of immunity claims).
1.

State Qualified Immunity

In Vermont, “[a] police officer is immune from tort liability when he is performing a
discretionary act in good faith during the course of his employment and is acting within the scope of
his authority.” Livingston v. Town of Hartford, 979 A.2d 459, 463-64 (Vt. 2009). In applying
qualified immunity to state tort law claims, Vermont courts “use the federal objective good faith
standard to prevent exposing state employees to the distraction and expense of defending
themselves in the courtroom.” Cook, 712 A.2d at 384; see also Stevens v. Stearns, 833 A.2d 835,
840 (Vt. 2003) (“We use the Harlow standard to evaluate whether an official acted in good faith.”).
Thus, if an official’s conduct does not violate clearly established rights of which a reasonable person
would have known, the official is protected by qualified immunity from tort liability. Stevens,
833 A.2d at 840; Cook, 712 A.2d at 384.
2.

Malicious Prosecution

The Court previously determined Decker did not act unreasonably in charging Tucker with
violating the reporter statute because it was not unreasonable for him to believe she had violated the
statute since courts have not construed the state statute such that its meaning was clearly established.
(Doc. 10 at 5-8.) Accordingly, Decker is entitled to qualified immunity under state law as well
because Decker’s conduct did not violate a clearly established right. Stevens, 833 A.2d at 843
(giving preclusive effect to federal court’s determination and therefore finding defendants entitled to
qualified immunity as a matter of law).

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3.

Invasion of Privacy

The Court previously determined Tucker had no reasonable expectation of privacy in her
fingerprints and photographs and, because she could not show she had a right to not be
fingerprinted and photographed, Decker did not violate her rights. (Doc. 11-13.) Accordingly,
Decker is entitled to qualified immunity under state law as well because Decker’s conduct did not
violate Tucker’s rights.
4.

Defamation

The Court determined above Decker is entitled to qualified immunity against Tucker’s
federal defamation claim. See supra III.B.
Under Vermont law, to state a defamation claim, Tucker must establish the following
elements: “(1) a false and defamatory statement concerning another; (2) some negligence, or greater
fault, in publishing the statement; (3) publication to at least one third person; (4) lack of privilege in
the publication; (5) special damages, unless actionable per se; and (6) some actual harm so as to
warrant compensatory damages.” Russin v. Wesson, 949 A.2d 1019, 1020 (Vt. 2008) (internal
quotation marks and citation omitted).
As determined above, the facts do not show Decker’s statements in the press release are
capable of being proved false. “[I]t is now generally agreed that it is not necessary to prove the
literal truth of the accusation in every detail, and that it is sufficient to show that the imputation is
substantially true, or, as it is often put, to justify the ‘gist,’ the ‘sting,’ or the ‘substantial truth’ of the
defamation.” Weisburgh v. Mahady, 511 A.2d 304, (Vt. 1986) (internal quotation marks and citation
omitted) (holding media accounts “substantially accurate” notwithstanding an error in reporting the
value of stolen coins at $50,000 instead of $500 because the sting of the report was plaintiff’s arrest
for receiving stolen property). Here, the sting of the press release was that Tucker was charged with

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failure to report child abuse. That statement is substantially true: Tucker was charged with, as she
alleges, “a criminal violation of her duty as a mandatory reporter under 33 V.S.A. Section 4913.”
Compl. ¶ 20.
Further, Tucker’s argument that Decker’s statements--if false--were made with malice, and
therefore the second element is satisfied, relies on the premise that the charges against her were not
supported by probable cause. (Doc. 46 at 16.) This argument must fail because the Court has
determined Decker had probable cause to believe Tucker violated the mandatory reporter statute,
Vt. Stat. Ann. tit. 33, § 4913, because Tucker had learned of the claim of sexual abuse and failed to
report it. See Doc. 10 at 7. Accordingly, Decker is entitled to qualified immunity under state law as
well because Decker’s conduct did not violate Tucker’s rights.
IV.

Conclusion
Defendant Decker’s Motion for Summary Judgment (Doc. 45) is GRANTED.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 23rd day of March, 2016.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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