Opinion
Civil Action No. 99-1344 Section "L"
August 17, 2001
ORDER AND REASONS
Pending before the Court is the motion of Defendant Jefferson Parish School Board ("School Board"), Melissa Caudle, Sharon Suffered, and Ron Cerutti for summary judgment on the claims of plaintiffs Paula Griffin, Joyce G. Harrell and David Reynaud. After reviewing the pleadings, the applicable law, and the Court's rulings at the oral argument in this matter, the Court finds as follows:
Defendants' Motion for Summary Judgment as to Joyce G. Harrell's claims of retaliation is GRANTED.
Defendants' Motion for Summary Judgment as to Joyce G. Harrell's claim for violations of her due process rights is DENTED.
Defendants' Motion for Summary Judgment as to David Reynaud's claims of retaliation is GRANTED.
Defendants' Motion for Summary Judgment as to David Reynaud's claim for violations of his due process rights is DENIED.
Defendants' Motion for Summary Judgment as to Paula Griffin's claims of retaliation is GRANTED.
Defendants' Motion for Summary Judgment as to Paula Griffin's claim for violations of her due process rights is DENTED.
I. BACKGROUND
At the relevant time, Plaintiffs were employed at John H. Martyn High School by the defendant School Board. Plaintiffs were among 23 individuals who signed a grievance dated October 21, 1998, that alleged, among other things, racial prejudice on the part of school administrators. The grievance was revised and re-signed on October 22, 1998. On December 7, 1998, a group of employees signed a memorandum stating that the complaints in the grievance had been resolved. The Plaintiffs in this consolidated case did not sign the December 7, 1998, memo. Plaintiffs believe that they were retaliated against and harassed by the Defendants for signing the grievance and for failing to sign the memorandum. Plaintiffs are seeking compensatory damages, back pay and benefits with interest, punitive damages, costs and attorney's fees.
Defendants School Board, Melissa Caudle, the principal at John H. Martyn High School, and Sharon Suffered, assistant principal at John H. Martyn High School (the "Defendants"), move for summary judgment on the claims of Plaintiff Joyce Harrell. These Defendants, along with defendant Ron Cerutti, the Director of Personnel for the School Board, have moved for summary judgment on the claims of Plaintiffs David Reynaud and Paula Griffin.
II. ANALYSIS A. Summary Judgement Standard
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] "genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
B. Motion for Summary Judgement on the Claims of Joyce Harrell
Joyce Harrell brings claims against Melissa Caudle and Sharon Sofford both in their individual and official capacities, and the School Board as her employer. Harrell was employed by the Jefferson Parish School Board from October 1988, to June 2, 1999, and was a teaching assistant for most of that time. She was employed as a teacher from May 1995, to June 1997. She believes that she was fired as a result of discrimination and retaliation by her employer for signing the grievance letter and for not signing the December 1998 memo. She argues that these incidents caused her emotional distress that manifests itself as headaches, high blood pressure, difficultly sleeping and nosebleeds. Harrell brought claims for (1) retaliation under 42 U.S.C. § 1981 and 42 U.S.C. § 1983, (2) violations of her due process rights under 42 U.S.C. § 1983, and (3) claims of harassment under 42 U.S.C. § 1981 and 42 U.S.C. § 1983. The Court heard oral argument on these claims and summary judgment was granted as to the harassment claims at that time.
Retaliation
Harrell believes that the Defendants' retaliatory actions included: completing "special conference forms" that described Harrell's allegedly improper conduct, changing her bathroom hall duty assignment, suspending her without pay and, ultimately, terminating her employment with the School Board.
Defendants argue that their actions were warranted by Harrell's conduct and that she was ultimately fired because (1) she failed to properly supervise her students when she left two students at another school after a class trip, and (2) she violated the chain of command by making complaints directly to the Regional Executive Director, Paul Emenes.
To establish a prima facie case of retaliation under § 1981, a plaintiff must show: (1) she participated in a statutorily protected activity; (2) an adverse employment action occurred; and (3) that causal connection exists between the protected activity and the adverse action. Thomas v. Exxon, U.S.A., 943 F. Supp. 751, 763 (S.D. TX 1996), aff'd, 122 F.3d 1067 (5th Cir. 1997).
The parties disagree as to whether Harrell has shown she participated in a statutorily protected activity. Defendants allege that signing the grievance complaining about racially discriminatory conduct that was submitted to the Plaintiff's union, and refusing to sign the December 1998 memo are not protected activities for purposes of § 1981 retaliation claims. Defendants would like to limit § 1981's protection to filing an EEOC complaint or a civil rights lawsuit. Harrell argues, on the other hand, that filing the grievance is protected conduct through analogy to Title VII cases. See Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998) (finding that conduct opposing any practice made an unlawful employment practice by Title VII is protected against retaliation under Title VII). However, the Court need not reach this issue because even if signing a grievance is a statutorily protected activity, Plaintiff has not shown a causal connection between the protected activity and the adverse action.
Harrell certainly suffered an adverse employment action when she was terminated from her employment. To prevail on this § 1981 claim, however, Plaintiff must demonstrate that her opposition to unlawful activities was a motivating or determining factor in the adverse employment action, i.e., she would not have been subjected to the adverse action "but for" signing the grievance. Thomas, 943 F. Supp. at 763.
The Defendants have provided evidence of legitimate reasons for Harrell's termination. They assert that Harrell was fired because she went outside the chain of command with her complaints and because she left two students under her supervision at another school after a class trip. The summary judgment evidence shows that on March 3, 1999, Harrell left two students under her care at Riverdale High School. Harrell stated she believed that the students were in a cab that she saw pulling away from Riverdale. Upon her return, she did not notify school administrators that she returned without the two students.
Harrell submitted her own affidavit stating that in early 1999 a teacher left students at a playground across the street from the school and was not disciplined and that another teacher left students behind on a school trip in 1996-97 and was not written up. Other than Harrell's own statements, she has submitted no evidence that the reasons stated for her termination were pretextual. This evidence is simply insufficient to show that the Defendant's stated reasons are merely pretextual and that the cause of her suspension and termination was retaliation for signing the grievance.
Harrell next alleges claims for retaliation under 42 U.S.C. § 1983, arguing that she was retaliated against because she signed a grievance complaining about racial employment discrimination and racially discriminatory treatment of students. To prevail on a First Amendment claim under § 1983, a plaintiff must prove: (1) the employee suffered an adverse employment decision; (2) the employee's speech involved a matter of public concern; (3) the employee's interest in community or matters of public concern outweighs the defendant's interest in promoting efficiency; and (4) the employee's speech must have motivated the defendant's action. See Bradshaw v. Independent Sch. Dist., 207 F.3d 814, 815-16 (5th Cir. 2000).
Again, Plaintiff cannot make her prima facie case because she cannot prove that signing the grievance was the motivation for the adverse personnel actions. Plaintiff makes the same causation arguments for her § 1983 claim that she asserts for her § 1981 claim and, again, these arguments are unpersuasive.
Due Process
Harrell argues that the Defendants violated her due process rights when her position was terminated. According to the Personnel Policy Manual in use at the time of this incident, a nontenured, non-contract employee is entitled to a conference with the Director of Personnel Relations, or his designee, before being terminated or suspended without pay. The Manual further states that the employee's response to a recommendation for termination or suspension without pay will be forwarded to the Superintendent. Harrell believes that the Defendants violated these polices because she was not given an appropriate conference after the recommendation for termination was made, and that Defendants added an additional reason for her termination after she participated in a conference with Caudle and Sofford. Further, Harrell argues that a representative from the personnel office should have attended the conference.
A public employee must have a property interest in their continued employment to state a claim for violation of due process upon termination. See Cabrol v. Town of Youngsville, 106 F.3d 101, 105-06 (5th Cir. 1997). The property interest must stem from state law, operation of contract or other independent source. See id. Harrell, as a non-tenured employee, did not have a constitutionally protected property interest in her employment in excess of the protection afforded by the School Board's policies. Scott v. Ouachita Parish Sch. Bd., 768 So.2d 702, 708 (La.App. 2 Cir. 2000).
Plaintiff insists that the Personnel Policy Manual entitle a non-tenured, non-contract employee to a conference with the Director of Personnel Relations or his designee after the employee is recommended for termination. See Harrell's Opp. Summ. J. at 18.
It appears that the last conference Harrell attended prior to her termination was held on April 12, 1999, and was attended by Harrell, her union representative, Laura Harper, Caudle, Sofford, and Cynthia Butler-Blucher, the Personnel Administrator for Classified Staffing. It appears that the recommendation for termination was made after this conference and Harrell was not afforded another conference post-recommendation. As Plaintiff's evidence demonstrates a question of fact as to whether Defendants followed their own policies in regard to her termination, Defendants Motion for Summary Judgment as to Harrell's due process claims is denied.
C. Motion for Summary Judgment on the Claims of David Reynaud
David Reynaud started working as a teacher for Jefferson Parish in 1993 and began teaching at John Martyn High School in the fall of 1997. Reynaud alleges that he suffers from obsessive compulsive disorder and depression complicated by that disorder. Reynaud claims that Defendants retaliated against him for signing the grievance and refusing to sign the December memorandum.
Defendants argue that Reynaud had a history of performance deficiencies and a serious attendance problem. Defendants state that Reynaud came to work for approximately two weeks after the grievance was filed and then simply stopped coming to work for the remainder of the school year. Defendants argue that the documentation they received from Reynaud's doctor was insufficient. Defendants sent Reynaud a certified letter on February 3, 1999, stating that he was released from his employment. Reynaud subsequently completed the appropriate sick leave requests and his request for extended sick leave was approved retroactively. The Defendants then rescinded Reynaud's release from employment. Defendants state that Reynaud was transferred to West Jefferson High School for the 1999-2000 school year, but that he stopped reporting to work there as well. Eventually, the Defendants granted Reynaud's request for an extended sick leave from January 1, 2000 to January 1, 2001, and at the time of argument in this case he remained on medical sabbatical.
Retaliation Claims
In his complaint, Reynaud brings claims against Caudle and Sofford in their individual and official capacities and the School Board as his employer. He alleges that the following five retaliation claims constitute adverse employment actions:
1. The day after the grievance was filed, Sofford wrote up Reynaud when she claimed she saw a cloud of cigarette smoke in his classroom.
2. On December 1, 1998, Reynaud received a special conference form signed by Caudle who wrote him up for 15 policy violations including excessive absences, failure to maintain student Individual Education Plans, making racial slurs to black teachers.
3. On January 7, 1999, Caudle sent Reynaud a letter noticing a special conference upon his eventual return to work at which disciplinary action might be recommended.
4. In January 1999, Caudle and Sofford held a special conference with Reynaud pursuant to Caudle's letter of January 7, 1999. At the conference, Caudle wrote up the plaintiff for some or most of the violations from December as well as new ones and put him on Professional Assistance Level I for three months.
5. Caudle changed Reynaud's assignment from a classroom teacher of American history and a special education curriculum to a "floater" teaching social skills without a classroom.
Plaintiff Reynaud alleges that he was retaliated against for signing the grievance letter and for failing to sign the December, 1998 memorandum. To prevail on his First Amendment retaliation claim, Reynaud must show that (1) his speech involved a matter of public concern, (2) he suffered an adverse employment action for exercising his First Amendment rights, and (3) that his exercise of free speech was a substantial or motivating factor in the adverse employment action. Benningfield v. City of Houston, 157 F.3d 369, 375 (5th Cir. 1998); Bradshaw v. Pittsburg Indep. Sch. Dist., 207 F.3d 814, 815-16 (5th Cir. 2000).
In his complaint, Reynaud makes claims for retaliation under 42 U.S.C. § 1983 and 42 U.S.C. § 1981. However, in his Response to Opposition memorandum filed with this Court he appears to abandon all claims except the retaliation under 1983 ("the only cause of action Reynaud might have is under sec. 1983/First Amendment.").
In First Amendment retaliation cases, "[a]dverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands." Benningfield, 157 F.3d at 376. The Fifth Circuit has noted that "[a] federal court is not the appropriate forum in which to seek redress over `faculty disputes concerning teaching assignments, room assignments, administrative duties, classroom equipment, teacher recognition, and a host of other relatively trivial matters.'" Harris v. Victoria Ind. Sch. Dist., 168 F.3d 216, 220-21 (5th Cir. 1999). Even if the actions Reynaud complains of could be "adverse employment actions," he has not provided any evidence that supports his belief that the actions were motivated by his signing the grievance letter. Instead, the Defendants provide evidence that their actions were motived by Reynaud's failure to report to work, and his failure to submit leave requests and documentation for his extended absences. Without evidence of a link between the Defendant's actions and the speech Reynaud alleges is protected, i.e. signing the grievance, Defendants' Motion for Summary Judgment on these retaliation claims must be granted.
Due Process Claims
The next issue is whether the School Board's actions regarding Reynaud's account at the Jefferson Parish School Board Employees Credit Union ("Credit Union") comports with the due process requirements of the Fourteenth Amendment. Reynaud names the School Board and Ronald Cerutti, the Director of Personnel for the School Board, in his individual and official capacities, as the defendants for the due process claim.
On February 10, 1999, Reynaud's Credit Union account was debited for the amounts he was paid while he was on unapproved leave. At that time, Reynaud alleges that the Credit Union orally notified him that the Board had seized his entire account of $220 and debited him for more than $4,000 for the pay he received while on the allegedly unauthorized sick leave. Reynaud argues he did not received prior notice or opportunity for a hearing before his account was seized. The money was restored to his account in March, 1999.
The parties do not explain the relationship between the Credit Union and the School Board. However, Courts have found that even a private bank's right to apply its account holder's funds to the payment of a debt must comport with the Fourteenth Amendment's due process. FDIC v. Perry, 854 F. Supp. 1248, 1270-73 (E.D. TX 1994). Further, the Supreme Court instructs that absent extraordinary situations a property owner is entitled to notice or an opportunity to be heard prior to a seizure of wages. See Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969).
Defendants argue that Reynaud was notified by certified mail multiple times that he had exhausted his sick leave and was in danger of being considered inactive if he did not submit appropriate documentation. It appears that on January 14, 1999, Reynaud was notified via certified mail that he would no longer be paid because he was not reporting to work and was not on approved leave. On February 3, 1999, Defendants sent Reynaud a certified letter stating that he was released from employment and that he could pursue his due process rights if he so desired. However, the February 3, 1999, letter does not make any reference to Reynaud's Credit Union account or any wages that had been deposited into that account.
Defendants next argue that Reynaud was not entitled to the money because he did not earn it due to the unauthorized absences. However, the Credit Union account was restored sometime in mid-March and Reynaud did not suffer any permanent loss of wages.
Considering that it appears the Defendants did not give Reynaud any notice that his Credit Union account would be seized prior to the seizure, and that in most circumstances an account holder is entitled to some due process protections prior to the seizure of the property in an account, the Defendants' Motion for Summary Judgment on this claim is denied.
D. Motion for Summary Judgment on the Claims of Paula Griffin
Paula Griffin began teaching at John Martyn High School in the fall of 1997. She suffers from MS, a neurological condition which she states makes her incontinent and makes it difficult for her to walk long distances and endure heat.
Defendants argue that Griffin worked for one week after the grievance was signed and that she failed to report to work for the rest of the year. Defendants state that they did not receive any documentation regarding her absences until February 4, 1999. The documentation was a letter from Griffin's doctor dated December 11, 1998, stating she had been ill but also releasing her to return to work. On February 8, 1999, Defendants sent Griffin a certified letter stating that the physician's letter was insufficient to excuse her absences.
On February 25, 1999, Griffin requested and was granted extended sick leave for her absences. Plaintiff requested and was granted additional extended sick leave from February 8, 1999, through June 3, 1999. She was transferred to West Jefferson High School for the 1999-2000 school year. Defendants allege that she worked there only one day but has recently returned from medical leave and now works at Bonnabel High School.
ADA Retaliation Claims
At the oral argument on this motion, the Court granted Defendants' motion for summary judgment as to Griffin's retaliation and harassment claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213. However, the Court took under advisement Plaintiff's retaliation claims under 42 U.S.C. § 1983 and for retaliation under the ADA. In order to place this matter in proper focus, this opinion includes the Court's analysis of Griffin's ADA claims. To show unlawful retaliation under the ADA, a plaintiff must establish a prima facie case that (1) she was engaged in an activity protected by the ADA, (2) that an adverse employment action was taken against her, and (3) that there was a causal connection between the protected act and the adverse action. See Seaman v. CSPH, Inc., 179 F.3d 297 (5th Cir. 1999) (citing Americans with Disabilities Act of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq.).
Since the oral argument in this case, the Fifth Circuit has established that a cause of action for harassment exists under the ADA. See Flowers v. Southern Reg'l Physicians Servs. Inc., 247 F.3d 229, 233 (5th Cir. 2001). To prevail on a claim of disability-based harassment, the plaintiff must prove:
(1) that she belongs to a protected group; (2) that she was subjected to unwelcome harassment; (3) that the harassment complained of was based on her disability or disabilities; (4) that the harassment complained of affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action.Id. at 235-36.
The Court finds that Griffin cannot survive summary judgment on her claim for ADA harassment under the Flowers standard. Plaintiff has not provided any evidence that the harassment complained of was based on her disability, i.e. her MS and, therefore, the Court declines to reverse its earlier ruling on Griffin's ADA harassment claim.
In counts III, IV, and VII of her complaint, Griffin alleges that she was retaliated against for activities protected under the ADA.
The retaliation is described as:
1. On September 24, 1998, Caudle cumulated in one "write up" five instances of Griffin allegedly being late to sign in for work. Plaintiff alleges that she was subject to three more "write ups" later that same day for failing to report to work or notify' the principal of pending absences, failing to report to cafeteria duty, and for excessive absences.
2. On October 14, 1998, Sofford gave Griffin 4 more "write-ups."
3. Caudle and Sofford observed Griffin's classes more frequently than the classes of other employees and often interrupted her classes.
4. On December 1, 1998, Griffin received a report of a conference held in Griffin's absence that addressed issues of Griffin's absences, tardiness, failure to complete forms and to otherwise successfully perform her duties.
Again, these allegations do not amount to adverse employment actions for ADA purposes. See Darby v. Hinds County Dep't of Human Servs., 83 F. Supp.2d 754, 760 (S.D. MS 1999) (citing Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995) for the proposition that the anti-retaliation provisions of the ADA were designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions).
Even if there actions amounted to adverse employment actions, the burden-shifting framework for retaliation claims under ADA is provided by the employment discrimination framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Sherrod v. American Airlines, Inc., 132 F.3d 1112 (5th Cir. 1998). Therefore, Plaintiff's prima facie case is dissolved if the Defendants articulate a legitimate, nondiscriminatory reason for the employment decision. See Thomas v. Exxon, U.S.A., 943 F. Supp. at 759 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The burden shifts back to the plaintiff to show that the reason articulated by the employer is merely a pretext for discrimination. See id. Once the burden shifts back, the defendant is entitled to summary judgment unless the plaintiff produces sufficient evidence to create a genuine issue of material fact that impermissible discrimination caused the employer's action.
Here, Defendants argue that these actions were undertaken due to Griffin's significant history of excessive absences, excessive tardiness, and incomplete paperwork. See Defs. Mot. for Summ. J. at p. 10. Other than conclusory allegations, Plaintiff does not provide evidence that refutes this legitimate explanation and, therefore, Griffin's ADA retaliation claims cannot survive summary judgment.
Retaliation Claims
To prevail on his First Amendment retaliation claim, Griffin must show that (1) her speech involved a matter of public concern, (2) she suffered an adverse employment action for exercising her First Amendment rights, and (3) that her exercise of free speech was a substantial or motivating factor in the adverse employment action. Benningfield v. City of Houston, 157 F.3d 369, 375 (5th Cir. 1998); Bradshaw v. Pittsburg Indep. Sch. Dist., 207 F.3d 814, 815-16 (5th Cir. 2000). The application of this test to the facts in Griffin's situation is the same as in Plaintiff Reynaud's. Even if the Defendants actions amount to "adverse employment actions" for the purposes of a First Amendment retaliation claim, Griffin has not provided evidence that supports her argument that the actions were motivated by her signing the grievance letter. Some of the alleged "retaliation" occurred prior to Griffin's signing the October 21, 1998 grievance. Defendants argue that the actions were motivated by Griffin's excessive absences and her failure to submit leave request forms for those absences. Because Griffin has not established any causal relationship between her signing the grievance ("her speech") and the Defendants actions, Defendants' Motion for Summary Judgment on Griffin's retaliation claims is granted.
Due Process
Griffin brings a claim for violation of her due process rights against the School Board and Ronald Cerutti, the Director of Personnel for the School Board, in his individual and official capacities. The summary judgment evidence shows that on February 10, 1999, funds were deducted from Griffin's Credit Union account for wages she received while on allegedly unapproved leave. Plaintiff states that her loss from this seizure was approximately $1,550 plus interest. Plaintiffs complaint states that some, but not all, of the seized funds were restored on February 26, 1999.
As stated in the analysis of Plaintiff Reynaud's Due Process claim in Section C above, it appears that Plaintiff was entitled to some preseizure notice before her Credit Union account was seized and, therefore, Defendants' Motion for Summary Judgment on this claim is denied.
III CONCLUSION
For the foregoing reasons:
Defendants' Motion for Summary Judgment as to Joyce G. Harrell's claims of retaliation is GRANTED.
Defendants' Motion for Summary Judgment as to Joyce G. Harrell's claim for violations of her due process rights is DENIED.
Defendants' Motion for Summary Judgment as to David Reynaud's claims of retaliation is GRANTED.
Defendants' Motion for Summary Judgment as to David Reynaud's claim for violations of his due process rights is DENTED.
Defendants' Motion for Summary Judgment as to Paula Griffin's claims of retaliation is GRANTED.
Defendants' Motion for Summary Judgment as to Paula Griffin's claim for violations of her due process rights is DENTED.