Bostwick v. Baxter et al
Filing
55
ORDER signed by Judge Rudolph T. Randa on 2/9/2015 GRANTING IN PART and DENYING IN PART 36 Defendants' Motion for Summary Judgment (see Order for details). Motions in limine due 3/13/2015; responses thereto due 3/27/2015. (cc: all counsel) (cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SCOTT BOSTWICK,
Plaintiff,
-vs-
Case No. 13-C-1036
WATERTOWN UNIFIED SCHOOL
DISTRICT, BOARD OF EDUCATION
OF THE WATERTOWN UNIFIED
SCHOOL DISTRICT, KATE LAPIN,
CASSANDRA SCHUG, IVAN THOMPSON,
DOUGLAS KEISER, ROBERT BAXTER
and PAUL VANCE,
Defendants.
DECISION AND ORDER
Scott Bostwick alleges that he lost his job as Principal of Watertown
High School because of an orchestrated campaign to replace him with a
younger woman. In his amended complaint, Bostwick brings claims for
discrimination and retaliation under Title VII and the Age Discrimination in
Employment Act (“ADEA”); a procedural due process claim under 42 U.S.C. §
1983; an equal protection “class of one” claim; and state law claims for breach
of contract, misrepresentation, breach of fiduciary duty, tortious interference
with contract, defamation, intentional infliction of emotional distress, and
conspiracy.
Now before the Court is the defendants’ motion for summary judgment.
For the reasons that follow, the vast majority of Bostwick’s claims survive
summary judgment.
BACKGROUND1
Bostwick became the Principal of Watertown High School in May 2002.
Until the events at issue in this litigation, Bostwick’s employment record was
perfect. His personnel file did not contain a single complaint or disciplinary
reprimand. During his tenure as principal, Bostwick received glowing and
unqualified letters of recommendation from Superintendent Douglas Keiser,
Human Resources Manager Jim Martin, and Human Resources Manager
Robert Baxter.
Cassandra Schug became Superintendent for the Watertown Unified
School District in the summer of 2011, replacing Keiser. Schug was recruited
for and placed in the Superintendent position by Baxter, the District’s thenretiring Human Resources Manager. Baxter told Martin that with the new
Superintendent (Schug) there would be “changes in the leadership at the
[Watertown] High School and at the middle school.”
By Fall 2011, Bostwick heard suggestions that Schug intended to
The following background is largely compiled from Bostwick’s proposed findings
of fact. The defendants object to and dispute many of Bostwick’s findings on various
grounds. The Court will not address each and every objection or dispute. Suffice it to
say, the Court is persuaded that Bostwick has more than enough admissible evidence to
bring his case to a jury.
1
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replace him. Bostwick was concerned for his job so he approached Schug about
her alleged plans. Schug denied that she wanted to replace Bostwick. Still
concerned, Bostwick reached out to Schug in early 2012 to learn – purely for
information purposes – what options might be available to him if he retired
early. By early 2012, Bostwick was close to completing a superintendent’s
certificate and intended to pursue a superintendent opportunity with another
district after his “retirement” from the District, a common practice for school
administrators.
Schug, along with Ivan Thompson, met with Bostwick on February 17,
2012. At this time, Thompson was the District’s new Human Resources
Manager. Previously, Thompson was the principal at Watertown High School,
but he was replaced by Bostwick when Bostwick took the position in 2002.
During Thompson’s tenure as principal, there were problems with student
discipline, teacher accountability and academics. Bostwick replaced Thompson
to address these deficiencies.
At the February 17 meeting, Schug and Thompson presented Bostwick
with a proposed agreement to retire at the end of the school year in exchange
for accelerated vesting of benefits. Bostwick indicated that he was not
prepared to retire until he identified another job opportunity. Schug told
Bostwick that the District would not accommodate that request. Bostwick
explained that he did not want to retire. In response, Schug told Bostwick that
-3-
she wanted him to know that he was under investigation for unspecified
misconduct “so that he would be able to consider what he wanted to do.”
Schug told Bostwick that it was in his best interests to sign the early
retirement document and that the investigation would end if he signed it.
Schug said the investigation included many staff members and that it “did not
look good” for Bostwick. Schug said, “If you make a decision to retire early, we
won’t continue this investigation.”
Confused and taken aback, Bostwick asked about the allegations.
Schug and Thompson left the room to call the District’s lawyer, Mary
Hubacher. When they returned, Schug and Thompson told Bostwick that he
was being accused of mistreating older female staff on the basis of age and
gender. Bostwick denied any discriminatory conduct. In response, Thompson
said, “it looks like you are guilty.” Schug said, once again, that “things did not
look good” for Bostwick. At this point, neither Schug nor Thompson had heard
Bostwick’s side of the story. They refused to give Bostwick any details
regarding the charges against him.
After the February 17 meeting, Bostwick was convinced that Schug
and Thompson were trying to force him into involuntary retirement. At the
time, Bostwick was 52 years old. Bostwick knew that he had never
discriminated against anyone or committed serious misconduct during his
tenure. Therefore, he was confused and thought this might be a
-4-
misunderstanding, and if he could just tell his side of the story, the whole
matter would be dismissed. However, he was also scared because he spent his
entire career in education and if he was driven out of his job because of
alleged misconduct, that career would be over.
On February 22, Bostwick sent an e-mail to Schug complaining about
his treatment at the February 17 meeting, and requesting permission to bring
a complaint to the Board. According to published policy, an employee can
initiate such a complaint, but when the complaint is against the
Superintendent, it must be taken to the Board President. When Bostwick
asked Schug whether he could talk to Board President Dennis Rambo about
the February 17 meeting and his concerns, Schug forbade him from doing so,
saying that “it is imperative that you not speak with any Board members at
this time.”
Bostwick still wanted to register his complaint in writing, so on March
5, he wrote an additional e-mail to Schug outlining his concerns. Schug
responded by agreeing to meet with him on March 23. Jim Martin, the
District’s HR Manager for 17 years before Baxter retired in 2006 (spanning
several years of Bostwick’s tenure), agreed to attend as a third-party witness.
At the beginning of the March 23 meeting, Schug and Thompson gave
Bostwick a written set of options – if he wanted to resign or retire with some
benefits, he had to agree to sign an irrevocable letter of intent within one
-5-
week (in which case he could work through the end of the school year) or the
investigation would continue. However, the District still refused to give
Bostwick any notice of the allegations or evidence against him. Martin
expressed concern that the District’s proposal made no sense – if the District
really felt like Bostwick behaved improperly, the District had a duty to
complete the investigation and not just “pretend like it never happened” and
let Bostwick finish out the school year. Concerned about confidentiality,
Martin asked Thompson whether former District HR Manager Baxter knew
about the ongoing investigation against Bostwick. Earlier that month,
Thompson was in Florida and stayed overnight at Baxter’s home. In response
to Martin’s question, Thompson ultimately conceded that Baxter knew about
the investigation. In response, Schug acted surprised, pushed back her chair
and said “oh, my gosh” or “oh, my God!”
Martin took detailed notes of the March 23 meeting. At the conclusion
of the meeting, Martin was convinced that Schug and Thompson “were trying
to get rid of [Bostwick] and were going to use pretty much any method they
could.”
On May 11, Bostwick was called to a meeting by Thompson to discuss
details of the investigation. David Vitale, Director of Curriculum Instruction,
attended this meeting to take notes for the District. Martin also attended as a
third-party witness for Bostwick. Thompson read through a list of questions
-6-
involving more than 40 alleged incidents or issues dating all the way back to
Bostwick’s first weeks on the job a decade earlier. Thompson would not give
Bostwick a copy of the charges he was reading from or even time for Martin
to take complete notes. Thompson also refused to answer any clarifying
questions and would not let Martin speak even though he had firsthand
knowledge of several of the issues from when he was HR Manager.
To Martin, it appeared that the investigation was a witch hunt because
Thompson was not asking “whether” Bostwick had done certain things, but
“why” he did them. Because of the nature of the questions he was asking,
Martin concluded that Thompson had already “come to the conclusion that
Scott is guilty.” Based on Thompson’s conduct and the alleged “charges,”
Martin was appalled and could not believe the vast majority of the items
would be included in any reasonable investigation. Many of the claims were
speculative, based solely on hearsay, had no times or dates, and led Martin to
wonder “what were they doing here?” Before the meeting, Martin was
concerned that perhaps Bostwick had committed some serious misconduct,
but after the meeting Martin was “relieved that there wasn’t anything” and
that none of the allegations warranted the kind of investigation that had
allegedly been going on.
After the May 11 meeting, Bostwick was stuck in limbo due to Schug’s
instruction not to communicate with the Board. Eventually, Bostwick felt he
-7-
had no choice but to violate that instruction. On June 5, Bostwick sent a
letter through counsel to Board President Kate Lapin at her home registering
his complaint of harassment, and pleading for assistance. Lapin forwarded
the letter to Schug and Thompson – the same people that Bostwick claims
were harassing him. Lapin claims that she never actually read the letter
until her deposition two years later.
On June 7, Bostwick’s counsel received a response from Attorney
Hubacher. Hubacher scolded Bostwick’s attorney for contacting the Board
and demanded that any future attempt to communicate with the Board be
directed to her. On June 12, the District, in a letter written by Schug,
responded to Bostwick’s complaint by suspending him with pay and warning
him, once again, that Bostwick and his counsel were forbidden from having
contact with Board members.
On June 14, Bostwick lodged another complaint with the Board.
Because Bostwick was not allowed to contact Lapin directly, the June 14
letter was presented through Attorney Hubacher. Bostwick asked for an
independent investigation and that the full Board be provided with a copy of
his complaint. In the months that followed, Bostwick repeatedly inquired
about the status of his complaint through correspondence between his
counsel and Attorney Hubacher. At the same time, Bostwick was attempting
to defend himself in connection with the charges set forth in the first version
-8-
of Thompson’s Findings and Conclusions. In correspondence between
Bostwick’s counsel and District counsel, Bostwick provided information to the
best of his ability regarding what he could understand of the charges against
him.
Eventually, the District agreed to allow Bostwick to come to a meeting
with Thompson and Schug (along with counsel for both sides) to go through
each of the 42 complaints. These meetings took place on July 27 and August
1. After these meetings, the District responded by expanding the scope of the
investigation. This resulted in the District producing four different versions
of the Findings and Conclusion, which progressively increased from 25 pages
to 51 and from 19 witnesses to 46. Eventually, with the final version of the
Findings and Conclusions on August 23, Schug formally recommended
Bostwick’s termination to the Board. Bostwick appealed the determination,
and his hearing before the Board was scheduled for September 25-26.
***
On July 22, 2012, the District engaged Paul Vance to conduct an
investigation into Bostwick’s complaint against Schug and Thompson. After
meeting with Schug to discuss Bostwick’s complaint, Vance wrote the
following e-mail:
Hello Cassandra. Thank you for your time this morning. I
know how hard this case is for you as a superintendent. It can
be such a distraction from your passion of educating children
-9-
but you are an obviously strong person and you will prevail. I
have some creative ideas I will convey to Mary [Hubacher].
Stay strong and feel free to call me or email me at any time.
Been down the path. Paul.
After multiple attempts by Bostwick’s counsel, Vance eventually
agreed to meet with Bostwick. Vance limited the meeting to less than an hour
and, among other things, indicated that he was not prepared to discuss
specifics in the Findings and Conclusions. Bostwick explained to Vance that in
order for him to understand the harassing nature of the investigation it was
necessary to go through the report and discuss the reasons why the
complaints were unsupported and/or involved matters that would never be the
subject of a legitimate investigation. Vance emphasized that he was a truly
independent third party, that he would be fair and impartial and that he had
not prejudged the situation or reached any conclusions.
According to Bostwick, Vance agreed to meet again in the future.
However, Vance proceeded to ignore several urgent requests from Bostwick’s
counsel to communicate. For whatever reason, Vance determined that he did
not need to meet with Bostwick a second time as part of his investigation.
On September 12, less than two weeks before Bostwick’s termination
hearing, Vance met with the Board in closed session. In his report, Vance
concluded that the decision to initiate the investigation of allegations
concerning Bostwick’s behavior was required by Board policy and state and
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federal law. Vance also concluded that the District’s investigation into
Bostwick’s actions was conducted without discrimination or harassment
against Bostwick. The Board adopted Vance’s findings and conclusions, voting
to dismiss Bostwick’s complaint.
***
Bostwick’s termination hearing began at 5:30 p.m. on September 25,
2012. At midnight, the School Board continued the hearing to the next day.
On September 26, the hearing ran from 5:30 p.m. to 10:00 p.m.. Each side was
allowed five hours to present their case. The School District called five
witnesses. Bostwick, through counsel, cross-examined each of those witnesses.
Bostwick did not call any witnesses on his own behalf. Instead, Bostwick’s
legal counsel made a presentation and Bostwick made a brief statement to the
School Board.
After
deliberating
for
nearly
three
hours,
the
School
Board
unanimously decided to terminate Bostwick’s employment contract effective
immediately. The Board determined that Bostwick engaged in ten different
actions that violated School Board policies, as enumerated in the Board’s
eventual written decision. The Board members determined that Bostwick’s
behaviors
were
unprofessional,
demonstrated
poor
judgment,
were
inappropriate for a person in a leadership position, were divisive, undermined
the relations among and between administrators as well as staff, and affected
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staff morale for no legitimate purpose. Additionally, the Board considered the
fact that Bostwick did not recognize or admit to his actions or the impact of
his behavior.
***
In the fall of 2011, soon after Schug became Superintendent and
around the time Bostwick started to become concerned about his own job
security, Watertown High School Assistant Principal Daniela Stuckey had a
meeting with Schug to tell her she was considering applying to be a principal
in another district. Stuckey wanted to know if she fit into Schug’s “vision” for
the future. Schug encouraged Stuckey to stay, indicating that she would
support Stuckey’s professional growth and that Stuckey “fit in with her
philosophy.” Stuckey did not apply for the outside position.
Prior to firing Bostwick, the Board viewed Stuckey as a possible
replacement for Bostwick but was mindful that such a move would appear
improper. When the District was looking to fill the Principal position on a
permanent basis, Schug offered the job to Stuckey. At the time, Stuckey was
one of multiple candidates, but Schug told Stuckey the job was hers if she
wanted it because “the Board designates to me those sorts of hiring decisions.”
However, Schug also proposed that instead of taking the High School
Principal job, Stuckey should become Middle School Principal, a position then
held by Kent Jacobson (also an older male), who could be moved to one of the
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elementary schools. Stuckey agreed, and the switch was made with Jacobson.
ANALYSIS
Summary judgment should be granted if “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The plain language of the
rule “mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court accepts as true the
evidence of the nonmovant and draws all justifiable inferences in his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A
party
resisting
summary
judgment
must
present
evidence
“demonstrating that there is a genuine issue for trial.” Wheeler v. Lawson, 539
F.3d 629, 634 (7th Cir. 2008). Bostwick has done so on nearly all of his claims.
I.
Age and Sex Discrimination/Retaliation
To establish an ADEA violation, Bostwick “must show that age actually
motivated the adverse employment action at issue. Put differently, age must
have played a role in the employer’s decision-making process and had a
determinative influence on the outcome.” Mullin v. Temco Mach., Inc., 732
- 13 -
F.3d 772, 776 (7th Cir. 2013). ADEA and Title VII2 retaliation claims require
a showing of but-for causation. Barton v. Zimmer, Inc., 662 F.3d 448, 455 (7th
Cir. 2011) (“Under the ADEA retaliation must be a but-for cause of a
materially adverse action, not merely a contributing factor”) (citing Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167 (2009)); Univ. of Tex. Sw. Med. Ctr. v.
Nassar, --- U.S. ----, 133 S. Ct. 2517, 2534 (2013) (the “text, structure, and
history of Title VII demonstrate that a plaintiff making a retaliation claim …
must establish that his or her protected activity was a but-for cause of the
alleged adverse action by the employer”). To succeed on his Title VII gender
discrimination claim, Bostwick must prove that his gender was a motivating
factor in his termination. Lewis v. City of Chi., 590 F.3d 427, 437-38 (7th Cir.
2009).
Under the direct method of proof, Bostwick can survive summary
judgment by presenting direct or circumstantial evidence that is sufficient to
create an inference of intentional discrimination. Montgomery v. Am. Airlines,
Inc., 626 F.3d 382, 393 (7th Cir. 2010). Similarly, Bostwick can survive
summary judgment on his retaliation claim if he provides evidence of a causal
connection between his protected activity and his termination (or other
adverse employment action). Silverman v. Bd. of Educ. Of Chi., 637 F.3d 729,
It is unclear whether Bostwick brings a claim for Title VII retaliation, but the
distinction is irrelevant for present purposes.
2
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740 (7th Cir. 2011). Direct evidence would require something like an
admission that Bostwick was terminated because of his age or gender (or
because he complained about such discrimination). Bostwick, like most
litigants, doesn’t have this kind of evidence. Instead, Bostwick uses
circumstantial evidence to construct “a convincing mosaic” that “allows a jury
to infer intentional discrimination by the decision maker.” Collins v. Am. Red
Cross, 715 F.3d 994, 1000 (7th Cir. 2013).
In retaliation and discrimination cases, courts recognize three
categories of circumstantial evidence available to a plaintiff using the
“convincing
mosaic”
approach.
First,
“suspicious
timing,
ambiguous
statements oral or written, … and other bits and pieces from which an
inference of [discriminatory or retaliatory] intent might be drawn.” Coleman v.
Donahoe, 667 F.3d 835, 860 (7th Cir. 2012). Second, “evidence, but not
necessarily rigorous statistical evidence, that similarly situated employees
were treated differently.” Id. Third, “evidence that the employer offered a
pretextual reason for an adverse employment action.” Id. “Each type of
evidence is sufficient by itself (depending of course on its strength in relation
to whatever other evidence is in the case) to support a judgment for the
plaintiff; or they can be used together.” Troupe v. May Dep’t Stores Co., 20
F.3d 734, 736 (7th Cir. 1994).
The evidence put forth by Bostwick easily supports the inference that
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he was fired because of his age and also his gender. Schug, the new
Superintendent, wanted to make personnel changes in administration.
Schug’s discussions with Stuckey suggest that Schug wanted to promote
younger women, and in turn, that Bostwick was targeted because he is male
and older (aside from age and gender, Stuckey was similarly situated to
Bostwick in all material respects). The easiest way to make the Watertown
High School principal position available would be to convince Bostwick to
voluntarily retire, but if Bostwick refused, Schug needed leverage to force him
out the door. Thus, when Bostwick declined the offer for early retirement,
Schug and Thompson threatened Bostwick with a continued investigation into
previously undisclosed allegations of wrongdoing. When Bostwick dug in his
heels, Schug and Thompson embarked upon a summer-long investigation to
justify Bostwick’s eventual termination to the Board.
The same inferences can be drawn with respect to Bostwick’s
retaliation claim. Bostwick engaged in protected activity in February and
March of 2012 when he sent e-mails to Schug complaining about his
treatment, and also in June when he filed a formal harassment claim with the
Board. Bostwick’s refusal to retire and his complaints about his treatment at
the hands of Schug and Thompson would seem to go hand-in-hand. If
Bostwick took the retirement offer and went away quietly (in lieu of
complaining about mistreatment), he would not have been terminated.
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Therefore, a jury could find a causal connection between Bostwick’s
complaints and his termination.3
Defendants argue that all of the foregoing is irrelevant because the
Board – not Schug or Thompson – made the ultimate decision to terminate
Bostwick. This argument fails for two reasons. First, there is evidence that
the Board deferred to Schug on personnel decisions. See, e.g., Mateu-Anderegg
v. Sch. Dist. of Whitefish Bay, 304 F.3d 618, 624 (7th Cir. 2002) (“Depending
on how a particular school district operates, it seems likely that a principal or
superintendent can be a decisionmaker”).
Second, and for similar reasons, the Board may be liable under the
“cat’s paw” theory. In the “fable of the cat’s paw, … a monkey who wants
chestnuts that are roasting in a fire persuades an intellectually challenged cat
to fetch the chestnuts from the fire for the monkey, and the cat does so but in
the process burns its paw.” Cook v. IPC Int’l Corp., 673 F.3d 625, 628 (7th Cir.
2012). Using this metaphor, employment discrimination law recognizes that
“a
final
decision-maker’s
reliance
on
an
improperly
motivated
recommendation from a subordinate may render the … employer liable
because the subordinate acts as the firm’s agent.” Smith v. Bray, 681 F.3d
888, 897 (7th Cir. 2012); see also Staub v. Proctor Hosp., 562 U.S. 411 (2011)
Bostwick can also show a causal connection between his initial complaints to
Schug and the District’s failure to properly investigate his formal complaint against
Schug and Thompson.
3
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(endorsing the cat’s paw theory in employment discrimination context).
Bostwick’s evidence suggests that once he refused to retire, Schug and
Thompson4 embarked upon an odyssey to find as much Bostwick-related dirt
as possible in an effort to ensure that the Board would approve Bostwick’s
eventual termination. Thus, Bostwick can proceed to trial under the cat’s paw
theory. See, e.g., Dey v. Colt Const. & Dev’t Co., 28 F.3d 1446, 1459 (7th Cir.
1994) (“Summary judgment generally is improper where the plaintiff can
show that an employee with discriminatory animus provided factual
information or other input that may have affected the adverse employment
action”); Willis v. Marion Cnty. Auditor’s Office, 118 F.3d 542, 547 (7th Cir.
1997) (employer liable where subordinate “is able to manipulate the
decisionmaking process and to influence the decision”).
II.
Procedural Due Process
This claim is brought against Schug, Thompson, and Board President
Kate Lapin in their individual and official capacities. Defendants mistakenly
argue that Bostwick did not plead individual capacity claims. See Amended
Complaint, ¶ 105 (“While acting individually and in a supervisory capacity,
Defendants Schug, Thompson, and Lapin failed to provide Bostwick with
Thompson’s motivations may have been more personal – as noted above,
Thompson was demoted in favor of Bostwick years prior. For present purposes, all that
matters is that Thompson assisted Schug, and there is evidence to suggest that Schug
had an impermissible motive.
4
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adequate procedural protection …”). In the alternative, defendants request an
opportunity to fully brief the issue of qualified immunity. Defendants waived
the defense because they failed to raise it in their motion for summary
judgment, nor did they raise it in any of their pleadings. Narducci v. Moore,
572 F.3d 313, 324 (7th Cir. 2009) (if defendants “felt entitled to terminate the
proceedings because of qualified immunity,” they were “required to bring that
issue to the district court’s attention” in their motion for summary judgment).
To succeed on a procedural due process claim under Section 1983,
Bostwick must show (1) that he had a constitutionally protected property
interest; (2) that defendants deprived him of that interest; and (3) that the
deprivation occurred in a way that violated due process. Price v. Bd. of Educ.
Of City of Chi., 755 F.3d 605, 607 (7th Cir. 2014). Defendants do not dispute
the first element – that Bostwick had a property interest in his continued
employment as Watertown High School principal.
Under the second element, Bostwick’s official capacity claims are, in
essence, claims against the School District, acting through the School Board.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). It is undisputed that the
Board was vested with final decisionmaking authority with respect to
Bostwick’s termination. Thus, the District may be subject to municipal
liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-92 (1978);
Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 468 (7th Cir.
- 19 -
2001) (for purposes of municipal liability, the question is “whether the
promulgator, or the actor, as the case may be – in other words, the
decisionmaker – was at the apex of authority for the action in question”).
To impose individual liability, Bostwick must show that Schug,
Thompson and Lapin caused or participated in the deprivation. Bray, 681 F.3d
at 899. For the reasons already stated, Schug and Thompson can be held
individually liable under the “cat’s paw” theory of liability. Id. (noting that
there is “precedent from five other circuits for imposing individual liability on
the unlawfully motivated subordinate (the monkey, in the cat’s paw fable)
under § 1983”). Lapin can be individually liable because she directly
participated in the Board’s vote to terminate Bostwick’s employment in her
capacity as Board President. Lapin knew or had reason to know that the
process was infected since she was privy to Bostwick’s harassment complaint
against Schug and Thompson. T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir.
2010) (supervisors may be subject to individual liability if they “know about
constitutional conduct and facilitate it, approve it, condone it, or turn a blind
eye for fear of what they might see”).
Finally, the Court must analyze whether Bostwick was given
constitutionally adequate due process. Generally, this means notice and an
opportunity to respond. See, e.g., Salas v. Wis. Dep’t of Corr., 493 F.3d 913,
927 (7th Cir. 2007); Staples v. City of Milwaukee, 142 F.3d 383, 385 (7th Cir.
- 20 -
1998) (due process requires (1) oral or written notice of the charges, (2) an
explanation of the employer’s evidence, and (3) an opportunity to tell his side
of the story). Bostwick does not dispute that he was afforded these basic
procedures – notice of the charges against him, and the opportunity to present
evidence and cross-examine witnesses at a 10-hour, two-day hearing.
However, for many of the reasons already stated, Bostwick contends that the
game was rigged, and his hearing was nothing more than a show trial. Purvis
v. Oest, 614 F.3d 713, 718 (7th Cir. 2010) (“fundamentally biased process is
not due process”); Schacht v. Wis. Dep’t of Corr., 175 F.3d 497, 503 (7th Cir.
1999) (“sham procedures do not satisfy due process”).
Oest is instructive. In Oest, a teacher named Purvis was accused of
engaging in improper sexual relations with a student. The Dean of Students,
Vicini, was appointed to play a leading role in investigating the allegations. At
the time, Vicini was aware that Purvis had previously lodged a harassment
complaint against him. The Seventh Circuit noted that it was “axiomatic that
an individual accused of sexual harassment by a fellow teacher, and who was
informed of the identity of the accuser, might harbor some resentment against
that accuser.” 614 F.3d at 718. Since Vicini exercised “at least some influence”
over the course of the investigation, the court held it “fair at the summaryjudgment juncture to characterize the school’s investigation of Purvis as
fundamentally biased.” Id.
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The Court has already emphasized that Thompson was potentially
biased against Bostwick because Bostwick replaced Thompson as Watertown
High Principal. Moreover, at the initial February 12 meeting with Bostwick,
Schug and Thompson made ominous statements about the outcome of a
potential investigation (“it does not look good,” “it appears that you are
guilty”). This was before hearing Bostwick’s side of the story – indeed at that
point, Schug and Thompson refused to give Bostwick any details about the
allegations against him. Moreover, Schug and Thompson continued to direct
and conduct the investigation against Bostwick even after Bostwick filed a
harassment complaint against them with the Board – a complaint they
became aware of when it was forwarded to them by Lapin. As in Oest, the
inference of bias is clear (perhaps more so).
The Board’s hearing did not, as the defendants suggest, somehow
purify the biased investigation that informed the hearing in the first instance.
In this regard, the defendants’ reliance on Trejo v. Shoben, 319 F.3d 878 (7th
Cir. 2003) is misplaced. In Trejo, the bias of the initial investigator was
trumped by “two separate, independent faculty committees which conducted
their own investigations of the charges and likewise came to the conclusion
that Trejo’s misconduct warranted his removal from the faculty.” Id. at 888.
Here, as in Oest, there is an issue of fact as to whether the Board was
sufficiently independent from the investigation that formed the basis for the
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hearing. Oest at 720. Thus, the Board can still be considered a cat’s paw even
though it held a hearing and heard evidence prior to terminating Bostwick.
See, e.g., Kramer v. Logan Cnty. Sch. Dist. No. R-1, 157 F.3d 620, 624-25 (8th
Cir. 1998) (“The question of whether the school board accurately [assessed]
Kramer’s situation or performed a perfunctory review and ‘rubber stamped’
the recommendation to non-renew was appropriately presented to the jury”).
Finally, prejudgment is also an issue in this case. Schacht, 175 F.3d at
502 (“One of the most basic guarantees of fair procedure is an unbiased
decisionmaker”). In April of 2012, Schug made a presentation to a closed
session of the Board. The “gist” of her presentation was that “this was not
looking good for Mr. Bostwick.” Plaintiff’s Proposed Findings of Fact, ¶ 121.
Board Member Dennis Rambo testified as follows:
Q: How did you as of that point in time, a closed door
meeting, and up until the time that you got the first draft
report, how did you know that the allegations were actually
serious?
A: I believe we would have gotten a report from Cassandra
Schug – or not necessarily a report – there would have been a
conversation that things were looking bad and that Mr.
Bostwick’s future could be in question.
Q: I understand that you were told by Ms. Schug that it was
a serious situation and that Mr. Bostwick’s future might be in
jeopardy. But how did you know whether what she was telling
you was true?
A: The reason I would have known it was true is because I
have trust in Cassandra Schug. I do not believe she would have
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told me something that was not true.
ECF No. 47-6, Rambo Dep. at 109 (emphasis added). Thus, there is evidence
in the record that at least one Board member pre-judged the case against
Bostwick because of his faith and trust in Schug. This is sufficient to
undermine the integrity of the Board in its entirety. Stivers v. Pierce, 71 F.3d
732, 748 (9th Cir. 1995) (“where one member of a tribunal is actually biased,
or where circumstances create the appearance that one member is biased, the
proceedings violate due process”).
III.
State Law Claims
As an initial matter, the defendants incorporate by reference the
arguments made in support of their motion to dismiss Bostwick’s state law
claims for conspiracy, defamation and intentional infliction of emotional
distress pursuant to the exclusivity provision of the Wisconsin Worker’s
Compensation Act. The Court rejected this argument because it was “unable
to conclude that any or all of [Bostwick’s] injuries coincided with a time during
which he was acting in the course of employment.” ECF No. 13, December 4,
2013 Decision and Order at 7. Now, in their motion for summary judgment,
the defendants offer nothing to suggest or establish that Bostwick’s injuries
occurred when he was acting in the course of employment. For the reasons
previously stated, Bostwick’s claims are not barred by the exclusivity
provision.
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A.
Breach of Contract
Breach of contract consists of three elements: the existence of a valid
contract, a violation or breach of the terms of that contract, and damages.
Steele v. Pacesetter Motor Cars, Inc., 672 N.W.2d 141, 144 (Wis. Ct. App.
2003). Defendants do not dispute that Bostwick had a valid employment
contract with the School District. Nor do the defendants question Bostwick’s
ability to prove damages. The only relevant issue is breach.
Pursuant to the terms of his contract, Bostwick was entitled to
procedural due process prior to any termination during the term of his
contract, and he could only be terminated for reasons that were not arbitrary
or capricious. ECF No. 47-10, Employment Contract. As the Court already
explained, there is an issue of fact as to whether Bostwick’s termination was
the result of a biased investigation and a pre-judged hearing process. A jury
could also conclude that Bostwick’s termination was arbitrary and capricious
in light of evidence suggesting that Bostwick was fired for unlawful,
discriminatory reasons. Clark v. Waupaca Cnty. Bd. of Adjustment, 519
N.W.2d 782, 785 (Wis. Ct. App. 1994) (“A decision of a board is arbitrary or
capricious if it is unreasonable or without a rational basis”). Therefore,
Bostwick can proceed to trial on his breach of contract claim.
B.
Misrepresentation/Breach of Fiduciary Duty
Bostwick brings claims for negligent and intentional misrepresentation
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against Paul Vance. All misrepresentation claims share the following required
elements: (1) the defendant must have made a representation of fact to the
plaintiff; (2) the representation of fact must be false; and (3) the plaintiff must
have believed and relied on the misrepresentation to his detriment or damage.
Tietsworth v. Harley-Davidson, Inc., 677 N.W.2d 233, 299 (Wis. 2004). An
intentional
misrepresentation
claim
includes
the following
additional
elements: (4) the defendant must have made the misrepresentation with
knowledge that it was false or recklessly without caring whether it was true
or false; and (5) the defendant must have made the misrepresentation with
intent to deceive and to induce the plaintiff to act on it to his detriment or
damage. Id. Negligent misrepresentation, of course, requires negligence in
making the misrepresentation. Grube v. Daun, 496 N.W.2d 106, 115 (Wis. Ct.
App. 1992); see also Ollerman v. O’Rourke Co., Inc., 288 N.W.2d 95, 99 (Wis.
1980) (“In negligence, the defendant need only fail to exercise ordinary care in
making a misrepresentation or in ascertaining the facts but like other cases of
negligence, it requires a duty of care or a voluntary assumption of a duty”)
(quoting Whipp v. Iverson, 168 N.W.2d 201 (Wis. 1969)).
Liability for misrepresentation must be based on a false statement of
present or pre-existing fact, not an unfulfilled promise or statement as to
future events that turns out to be mistaken. Badger Pharmacol, Inc. v.
Colgate-Palmolive Co., 1 F.3d 621, 627 (7th Cir. 1993). However, an exception
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exists “where the promisor, at the time the promise or representation was
made, had a present intention not to perform.” Id. at 628 n.7 (citing Hartwig
v. Bitter, 139 N.W.2d 644, 647 (Wis. 1966)). The exception applies here
because while Vance insisted that he would be fair and impartial, the evidence
suggests just the opposite. Vance met with Bostwick and his counsel to
discuss the allegations only once and only for an hour, and then refused to
meet with them again because he deemed it unnecessary. More remarkable is
Vance’s supportive email message assuring Schug that she would “prevail.”
This suggests, rather directly, that Vance never intended to conduct an
unbiased, independent investigation.5
Also against Vance, Bostwick states a claim for breach of fiduciary
duty. Vance argues that he did not owe Bostwick such a duty, but as the Court
previously explained, a “fiduciary duty can arise when a party assumes an
obligation to act as a third-party neutral.” December 4, 2013 Decision and
Order at 8. Vance’s conduct during his supposedly impartial investigation –
meeting with Bostwick once for only an hour; leading Bostwick to believe that
they would meet again; ignoring Bostwick’s repeated requests to meet again;
then meeting with the Board in secret to recommend dismissing Bostwick’s
In this context, Bostwick’s claim makes more sense as one for intentional
misrepresentation, not negligent misrepresentation. Badger Pharmacal, Inc., 1 F.3d at
628 n.7 (“While some cases have touched upon this exception in the context of claims for
negligent and strict responsibility misrepresentation, it would appear that if one
making misrepresentations had a present intention not to perform them, the aggrieved
party’s claim would properly and logically be one for intentional misrepresentation”).
5
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complaint – is enough to raise an issue of fact as to whether he breached this
duty. Bostwick can also prove damages because Vance’s conduct, if true,
deprived Bostwick of the opportunity to contest the legitimacy of the
investigation that resulted in his termination. Berner Cheese Corp. v. Krug,
752 N.W.2d 800, 809 (Wis. 2008) (listing elements for claim).
C.
Tortious Interference with Contract
To succeed on this claim, Bostwick must show (1) that he had a
contractual relationship with the District; (2) that the defendants interfered
with that contractual relationship; (3) that the interference was intentional;
(4) that a causal connection exists between the interference and Bostwick’s
damages; (5) and that the defendants were not justified or privileged to
interfere. Wolnak v. Cardiovascular & Thoracic Surgeons of Cent. Wis., 706
N.W.2d 667, 675 (Wis. Ct. App. 2005). For many of the reasons already stated,
the Court agrees that Bostwick has enough evidence to proceed to trial on
such a claim against Schug, Thompson, Vance, Lapin and the Board. Bostwick
puts forth evidence that these defendants “acted from ill will or an improper
motive,” which would negate the good faith privilege. Wolf v. F&M Banks, 534
N.W.2d 877, 885 (Wis. Ct. App. 1995).
Regarding Baxter and Keiser, Bostwick argues that they “intentionally
made false, damaging statements that they either knew or reasonably should
have known could lead to Bostwick’s employment contract being terminated.”
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ECF No. 49, Brief at 55. In a later section discussing defamation, Bostwick
explains that during his entire tenure, Keiser and Baxter “only even raised
the possibility of corrective action on one occasion. In that case, not only did
Bostwick receive no discipline, Keiser and Baxter also agreed that any
documentation regarding the matter would be permanently removed from his
personnel file.” Id. at 56. However, Bostwick asserts that Keiser and Baxter
“falsely stated to Thompson that they had not agreed to permanently remove
from Bostwick’s personnel file any documentation regarding the matter. This
false and misleading statement regarding Bostwick’s employment record was
communicated to the District and used to justify accepting the premise of, as
well as the credibility of many of the charges within, the 42 charges set forth
in Thompson’s investigative report.”
The problem with this argument is that, so far as the Court can
ascertain, there is no evidence in the record to suggest that Keiser or Baxter
actually made these statements to Thompson. The Court looked beyond the
proposed findings of fact and into the underlying record,6 but to no avail.
Therefore, the Court has no choice but to conclude that Bostwick’s claims
against Keiser and Baxter cannot survive summary judgment.
This was above and beyond the Court’s duty in deciding the instant motion. See,
e.g., Gross v. Town of Cicero, Ill., 619 F.3d 697, 702 (7th Cir. 2010) (“Judges are not like
pigs, hunting for truffles buried in the record”).
6
- 29 -
D.
Defamation
The elements of a defamation claim are a false and defamatory
statement concerning another, an unprivileged publication to a third party,
and fault amounting to at least negligence on the part of the publisher. Bay
View Packing Co. v. Taff, 543 N.W.2d 522, 529 (Wis. Ct. App. 1995). A
defamatory statement is one that “tends to harm one’s reputation so as to
lower him or her in the estimation of the community or to deter third persons
from associating or dealing with him or her.” Mach v. Allison, 656 N.W.2d
766, 771 (Wis. Ct. App. 2003).
For the reasons already stated, there is no evidence in the record that
either Baxter or Keiser made any defamatory statements about Bostwick.
Moreover, while Bostwick’s amended complaint alleges a defamation claim
against Vance, it appears from Bostwick’s brief that he has abandoned such a
claim.
As for the rest of the defendants, Bostwick points to statements
contained in Thompson’s Findings and Conclusions (all four versions), as well
as the Board’s final order terminating Bostwick’s employment. The
defendants do not dispute that there is evidence in the record suggesting that
they knew or should have known that many of the statements contained
therein were false. Defendants argue that their statements are protected by
absolute privilege because Bostwick’s termination hearing qualifies as a
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“quasi-judicial” proceeding, but the defendants fail to explain how this is so.
See Vultaggio v. Yasko, 572 N.W.2d 450, 456 (Wis. 1998) (“the adequacy of
procedural safeguards which will minimize the occurrence of defamatory
statements is a factor used in many cases to determine whether to grant or
withhold absolute privilege”). Defendants also attempt to invoke a conditional
privilege, but even if one were applicable here, there is an issue of fact as to
whether they abused it. Zinda v. Louisiana Pacific Corp., 440 N.W.2d 548,
553 (Wis. 1989) (privilege may be forfeited “because of the defendant’s
knowledge or reckless disregard as to the falsity of the defamatory matter”).
E.
Intentional Infliction of Emotional Distress
This claim has the following elements: (1) the defendant’s conduct was
intentional; (2) the defendant’s conduct was extreme and outrageous; (3) the
defendant’s conduct caused the injury; and (4) the plaintiff suffered an
extreme and disabling emotional response to the conduct. Alsteen v. Gehl, 124
N.W.2d 312, 318 (Wis. 1963). The evidence suggests that the defendants
engaged in a months-long campaign to ruin Bostwick’s career and well-earned
reputation. Therefore, the Court agrees that there is sufficient evidence in the
record to prove all of these elements – except with respect to Baxter and
Keiser, for the reasons already stated.
F.
Conspiracy
To succeed on a statutory conspiracy claim, Bostwick must prove (1)
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that the defendants acted together; (2) with a common purpose to injure the
plaintiff’s reputation or profession; (3) with malice; and (4) the acts financially
injured the plaintiff. Wis. Stat. § 134.01; Virnich v. Vorwald, 664 F.3d 206,
213 (7th Cir. 2011).
While this claim was pled against all of the defendants, it appears from
reading Bostwick’s brief that his conspiracy claim is directed only at Schug
and Thompson. The Court agrees that there is enough evidence for a jury to
conclude that Schug and Thompson maliciously conspired against Bostwick.
Virnich, 664 F.3d at 213 (malice in a § 134.01 claim means “doing a harm
malevolently for the sake of the harm as an end in itself, and not merely as a
means to some further end legitimately desired [such as hurting someone
else’s business by competition]”).
CONCLUSION
To summarize, the Court finds as follows with respect to Bostwick’s
claims:
I.
Breach of Contract. This claim can proceed to trial against
Bostwick’s former employer, the Watertown Unified School
District.
II.
Tortious Interference with Contract. This claim can proceed to
trial against Kate Lapin, Cassandra Schug, Ivan Thompson,
Paul Vance, and the Board of Education of the Watertown
- 32 -
Unified School District.
III.
Conspiracy. This claim can proceed to trial against Schug and
Thompson.
IV.
Defamation (Slander/Libel). This claim can proceed to trial
against Thompson, Schug, Lapin, the School Board, and the
School District.
V.
Breach of Fiduciary Duty. This claim can proceed to trial against
Vance.
VI.
Intentional and Negligent Misrepresentation. This claim can
proceed to trial against Vance.
VII.
Intentional Infliction of Emotional Distress. This claim can
proceed to trial against Thompson, Schug, Lapin, Vance, the
School Board, and the School District.
VIII. Section 1983: Procedural Due Process. This claim can proceed to
trial against Schug, Thompson and Lapin.
IX.
Section 1983: Equal Protection. Bostwick abandoned this claim.
X.
Age Discrimination and Retaliation (ADEA). This claim can
proceed to trial against Bostwick’s former employer, the School
District.
XI.
Gender Discrimination (Title VII). This claim can proceed to trial
against Bostwick’s former employer, the School District.
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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
1.
The defendants’ motion for summary judgment is GRANTED-
IN-PART and DENIED-IN-PART, consistent with the foregoing opinion;
and
2.
Motions in limine are due to be filed on or before March 13,
2015. Responses are due March 27, 2015.
Dated at Milwaukee, Wisconsin, this 9th day of February, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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