Holcomb v. Kenosha Unified School District No 1 et al

Filing 4

DECISION AND ORDER signed by Judge Rudolph T Randa on 4/20/07 denying 1 plaintiff's motion for a temporary restraining order. (cc: all counsel) (nm)

Holcomb v. Kenosha Unified School District No 1 et al

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Case 2:07-cv-00359-RTR

Filed 04/20/2007

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

E D I E L. HOLCOMB, P l a i n t i f f, v. K E N O S H A UNIFIED SCHOOL DISTRICT NO. 1, ERIC OLSON, PAM STEVENS, J. DAVID FOUNTAIN, BERNARD E. ENGLUND, MARK HUJIK, GILBERT OSTMAN and MARK STALKER, Defendants. C a s e No. 07-C-359

DECISION AND ORDER

O n April 16, 2007, the plaintiff, Edie Holcomb ("Holcomb"), filed this lawsuit in K e n o sh a County Circuit Court, alleging that the defendants breached her employment c o n tr a c t and violated the Due Process Clause of the Fourteenth Amendment. Holcomb also f ile d a motion for a temporary restraining order ("TRO") with her complaint. On April 18, 2 0 0 7 , the defendants filed a Notice of Removal, which places the pending motion for a TRO b e f o re this Court. A c c o rd in g to the complaint, Holcomb was hired in 2005 by the Kenosha Unified S c h o o l District No. 1 ("KUSD") to be the Executive Director of Curriculum and Instructional S e rv ic e s ("Executive Director"). When KUSD hired Holcomb, they executed an

e m p lo ym e n t contract that gave Holcomb a two year term beginning July 1, 2005, and ending J u n e 30, 2007 ("2005 Employment Contract"). The 2005 Employment Contract contains a

Dockets.Justia.com

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p ro v is io n that gives the Superintendent sole discretion to transfer Holcomb to another p o s itio n if the Superintendent deems a transfer to be in "best interest of the District." On January 23, 2007, the KUSD School Board approved a motion to give Holcomb a n o th e r two year term as Executive Director, beginning on July 1, 2007. However, on April 3 , 2007, the KUSD School Board reassigned Holcomb to be principal of Bose Elementary S c h o o l effective July 1, 2007. Holcomb alleges that the School Board's decision was a b re a ch of contract because the 2005 Employment Contract only permits the Superintendent to transfer Holcomb. Furthermore, because the School Board made its decision without g iv in g Holcomb notice or an opportunity for a hearing, she also alleges that she was denied h e r property interest without due process of law. O n Monday, April 23, 2007, the KUSD School Board will meet, and it may appoint a successor to Holcomb for the Executive Director position. Holcomb seeks a TRO to enjoin th e KUSD School Board from appointing her successor until the Court is able to conduct a h e a rin g on her motion for a preliminary injunction. T h e Court will only grant a TRO if "it clearly appears from specific facts shown by a f f id a v it or by the verified complaint that immediate and irreparable injury, loss, or damage w ill result to the applicant before the adverse party or that party's attorney can be heard in o p p o s itio n . " Fed. R. Civ. P. 65(b). Implicit in the requirement that irreparable injury be s h o w n is the requirement that there be some likelihood of success on the merits. See Lerch v . City of Green Bay, 2005 WL 1058889, *1 (E.D. Wis. May 3, 2005).

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H o l c o m b fails to meet her burden. First, she has not shown that she is likely to su c c e e d on the merits. The 2005 Employment Contract that gave the Supervisor sole d is c re tio n to transfer Holcomb expires on June 30, 2007. Holcomb's reassignment, though, w ill become effective on July 1, 2007, immediately after the expiration of the 2005 E m p lo ym e n t Contract. While it is true that the KUSD School Board on January 23, 2007, a p p ro v e d a motion to give Holcomb another two year term as Executive Director, Holcomb d id not provide the Court with the written terms of that contract. It is unclear, therefore, w h e th e r the KUSD School Board has a contractual right to reassign Holcomb effective July 1 , 2007. In addition, Holcomb has not established that she would be irreparably harmed if the K U S D School Board appointed her successor at the April 23, 2007 meeting. Such a decision w o u ld not become effective until July 1, 2007. Also, Holcomb still may collect money d a m a g e s and potentially could be reassigned even she succeeds in this litigation, regardless o f what the KUSD School Board decides at its April 23, 2007 meeting. N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: Holcomb's Motion for a Temporary Restraining Order (Docket No. 1 ) is DENIED. D a te d at Milwaukee, Wisconsin, this 20th day of April, 2007. B Y THE COURT: s /R u d o lp h T. Randa H O N . RUDOLPH T. RANDA C h ie f Judge

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