Opinion
No. 8:99 CV 77.
September 14, 2001.
MEMORANDUM AND ORDER Introduction
Before me are 1) the motion for summary judgment, Filing No. 91, filed by the individual defendants in their individual capacities, and 2) the motion for summary judgment, Filing No. 89, filed by the school district and the individual defendants in their official capacities. The defendants filed indexes of evidence, Filing Nos. 92 and 96 (referencing Filing Nos. 31 and 35), and submitted supporting briefs. The plaintiff submitted a brief opposing the motions and filed an index of evidence, Filing No. 100 (referencing Filing No. 42). Having reviewed the record, the applicable law, and the parties' briefs, indexes of evidence, and arguments made at a hearing held on July 13, 2000, I find that the defendants' motions should be granted, but only to the extent allowed in this order.
Pablo Garcia, the former superintendent of the Walthill Public Schools and a Native American, filed a nine-count amended complaint, Filing No. 25, against School District 13, Thurston County, Nebraska (Walthill Public Schools), and several members of the school board (Stan Modlin, Walter Juhlin, Kenneth Baudette II, and Mark English), both individually and in their official capacities, after the school board voted to cancel his contract. Garcia brought suit in this court in March 1999 and amended the complaint in August 1999. He alleges that in terminating his employment contract, the defendants deprived him of equal protection and due process, slandered him, conspired against him, and discriminated against him on the basis of his race and the exercise of his First Amendment rights. In an earlier order, Filing No. 83, the court granted the defendants' motion for summary judgment on the third (substantive due process only), fourth, fifth, and sixth causes of action. The defendants now seek summary judgment on the remaining cause of actions.
Factual Background
Nearly all the students attending the Walthill Public Schools are Native American. Garcia was hired in June 1996 as the school superintendent for the 1996-1997 school year. The time line of events leading to this suit is as follows.
In February 1997, the school board voted 4-2 to consider non-renewal of Garcia's contract at the end of the 1997 school year. The board sent Garcia a letter setting out nine reasons justifying the motion to reconsider. They include taking action without board approval; failing to advertise vacancies before filling them, including one situation in which Garcia hired his own son as a tutor and junior high basketball coach without advertising the position; failing to attend board meetings; promulgating rules for staff, but then failing to enforce those rules; failing to maintain a good relationship with the teaching staft excessive absences; failing to issue a student handbook, thereby leaving the district without a student disciplinary code; and poor organizational skills that resulted in overly-long board meetings. The board nevertheless voted 5-2 to offer Garcia a contract for the following year at the same salary. He signed the contract in March 1997.
In June 1997, Garcia filed an employment discrimination suit with the NEOC/EEOC. Around the same time, three white board members who had voted to reconsider Garcia's contract resigned from the board. Three Native Americans were appointed to fill the vacancies left by the resignations. The six member board had a Native American majority for the first time.
In January 1998, the board voted to settle Garcia's discrimination claims by paying him $52,000 and extending his contract through the 2001 school year. In exchange, Garcia agreed to release the district and its officers from all employment claims then pending before the NEOC and the EEOC. The $52,000 represented a ten percent pay raise. Garcia signed a three-year employment contract in July 1998.
Defendant Modlin and several others in the community were vocally unhappy that the board settled with Garcia. Garcia alleges that by March 1998, Modlin was actively campaigning for election to the board with a promise to remove Garcia from the superintendent position.
During the summer of 1998, the board's president, a white farmer who had supported the settlement, was recalled. In August, two Native Americans, Joe and Marcia Ross, were appointed. Three Native Americans filed for the four seats open on the board. Garcia alleges that Modlin recruited the other individual defendants, who are all white, to run against the Native American candidates. Garcia also alleges that Modlin participated in, if not managed, the petition drive to have the names of defendants English, Beaudette, and Juhlin placed on the ballot.
In the November election, the individual defendants defeated the Native American candidates. Garcia alleges that once sworn in, the individual defendants immediately put into play their previously conceived plans to get rid of him. Modlin was elected board president on a 4-2 vote. At the very first meeting of the newly constituted board on January 11, 1999, Modlin announced that he did not approve of the contract provision allowing Garcia to attend two conferences of his choice each year, and the board thereafter voted to discuss matters involving Garcia's contract. On January 25, 1999, the board invalidated all actions taken by the prior board after August 1998 and through December 1998 on the ground that one of the previous members apparently was ineligible to serve on the board because she was not a registered voter.
At the January 25, 1999, meeting, the board voted to remove the four percent pay raise it had granted Garcia in December 1998.
In February 1999, the board again criticized Garcia for alleged work-related deficiencies such as failure to keep regular office or work hours and failure to notify the board when he would be absent from the district. The board issued several specific directives, including the requirement that Garcia be on school grounds attending to district business from 7:30 to 4:30, Monday through Friday; that any deviation from this schedule receive prior approval from the board; that the board president approve emergency absences; that any expenditures to attend conferences or professional events receive prior approval from the board; that Garcia maintain a detailed log of his daily activities during business hours; and that the school district's business manager keep a record of the times Garcia was not on school grounds.
In March 1999, the board voted 4-2 to send Garcia a proposed amended contract because it believed it did not have a legally effective written employment contract with Garcia, contrary to state law. Garcia alleges that this attempt to amend his contract was illegal because the board did not give him the notice or opportunity for hearing required by state law. Garcia refused to sign the contract.
Garcia filed this lawsuit on March 8, 1999.
On April 13, 1999, the board evaluated Garcia's performance. Garcia alleges it was a pro forma evaluation undertaken merely to comply with a Nebraska requirement that a certified employee can be terminated only after evaluation and time to correct deficiencies since three days later, the board sent
Garcia a letter announcing that it was considering the non-renewal or termination of his contract. It detailed the dates and times he allegedly had been absent from school grounds during business hours without the board's prior approval, and stated that such disregard for the board's directives "could be construed to be conduct that is unprofessional, insubordinate, and conduct that otherwise substantially interferes with and inhibits the continued performance" of Garcia's duties. The letter also told Garcia that he was entitled to a hearing at which he could have a representative, present evidence on his behalf cross-examine the district's witnesses, and subpoena witnesses. On April 21, Garcia requested such a hearing.
In May 1999, the board went into executive session over Garcia's objection and then adopted the resolution that Garcia be suspended with pay for insubordination in failing to comply with the board's directives.
In July 1999, the board and a hearing officer conducted a hearing about the possible termination of Garcia's contract. Garcia was represented by counsel. While the board members provided Garcia with affidavits attesting that they could be fair in deciding his claims, Garcia alleges that he was not allowed to question board members about their bias even though he had subpoenaed them in accordance with state law. The board denied his request that they recuse themselves for bias.
The board voted 4-2 that Garcia's contract should be canceled immediately. The board's "Resolutions, Findings and Determinations" stated that the reasons for the board's decision to cancel the contract were based on the evidence presented at the hearing, and asserted that the reasons had nothing to do with Dr. Garcia's race, sex, age, color, religion, marital status, any alleged disability, national origin or free speech, [nor were they] in retaliation for Dr. Garcia having exercised his rights pursuant to Title VII and the Civil Rights Laws or with any other impermissible reasons. . . .
Garcia did not appeal the board's decision to state district court with a petition in error. See Neb. Rev. Stat. § 25-1901 et seq., and Neb. Rev. Stat. § 84-917(2)(a). Nor did Garcia file any further charges with the NEOC/EEOC. He did, however, amend his complaint in this action. See Filing No. 25.
Legal Standard
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). Furthermore, the court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250.
If the nonmoving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256; Krenik v. County of LaSueur, 47 F.3d 953, 957 (8th Cir. 1995). Generally, a genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson, 477 U.S. at 248. Since employment discrimination cases often depend on inference rather than direct evidence, however, summary judgment should not be granted lightly. "[T]he court must be particularly deferential to the party opposing summary judgment." Bell v. Conoco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999).
Discussion Defendants in Their Individual Capacities
First, Second and Third Causes of Action . Garcia's first three causes of action assert that the defendants violated his Fourteenth Amendment rights to equal protection and procedural due process and his First Amendment right of free speech. The claims are brought before the court pursuant to 42 U.S.C. § 1983. Filing No. 25, Amended Complaint at 7, ¶¶ 61-72 ("Amended Complaint").
Section 1983 grants a cause of action to anyone deprived of "any rights, privileges, or immunities secured by the Constitution" by another acting "under color of any statute, ordinance, regulation, custom, or usage of any State or Territory. . . ." 42 U.S.C. § 1983 (emphasis added). The statute's "under color of state law" requirement prevents a section 1983 plaintiff from bringing suit to attack a defendant's purely private conduct. The same state action requirement holds true for suits brought under the Fourteenth Amendment. National Ass'n. of Collegiate Athletics v. Tarkanian, 488 U.S. 179, 191 (1988) (because the defendant was not a state actor and was not acting under color of state law, no constitutional violation); United States v. Price, 383 U.S. 787, 794 n. 7 (1966) (in section 1983 cases, "under color of has consistently been treated as the same thing as the `state action' required under the Fourteenth Amendment."). An action is taken under color of state law when it is a "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326 (1941).
The individual defendants contend that because much of the conduct about which the plaintiff complains took place before they were elected to the school board, they were private citizens whose actions cannot be attributable to the state nor, consequently, have been under color of state law. While it is occasionally true that governmental authority may dominate an activity to such an extent that its [private] participants must be deemed to act with the authority of the government and, as a result, be subjected to constitutional constraints, Edmondson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991), no such governmental authority dominated the pre-election conduct of these individual defendants.
To determine whether particular conduct by a private actor is governmental in character, courts may consider "the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a traditional governmental function; and whether the injury caused is aggravated in a unique way by the incidents of governmental authority." Id. at 621-22 (citations omitted). The pre-election conduct of which Garcia complains meets none of these factors. Rather, it reflects the often personal nature of the issues in local political campaigns.
In the factual portion of the amended complaint, Garcia objects to the allegedly discriminatory nature of defendant Modlin's "anti-Garcia" platform during his campaign for election to the school board; Modlin's circulation of a recall petition to remove one member of the board supportive of Garcia; Modlin's recruitment of other like-minded citizens — the individual defendants — to also run for election to the board and his subsequent circulation of petitions to place their names on the ballot; and the defendants' "conspiracy to get elected" with the express purposes of removing Garcia from his post as superintendent. See Amended Complaint at 3, ¶¶ 16-25. While Garcia may have found it unpleasant to be the target of such an intense campaign, the defendants were exercising their rights as private citizens to speak out on issues of community concern, to criticize a public official — Garcia — for his perceived failings as an administrator, and to attempt to persuade other voters to their position. That the defendants were ultimately successful in getting themselves elected over other school board candidates who supported Garcia is because they did a better job of campaigning than their opponents — not because the individual defendants were "clothed with the authority of state law."
Garcia now concedes that the defendant's pre-election conduct cannot create liability under section 1983, but observes that their conduct "give[s] background and show[s] intent for the actions taken after they were elected to the Board." Plaintiffs Opposing Brief at 9-10.
Accordingly, the individual defendants' motion for summary judgment on the first, second, and third causes of actions is granted to the extent those causes of action concern their pre-election conduct.
Ninth Cause of Action. The defendants argue that, for the same reasons, their motion for summary judgment on the ninth cause of action should also be granted. In the ninth cause of action, Garcia alleges that "after January 1999," the defendants were "public servants" within the meaning of
Neb. Rev. Stat. § 28-926(1). Amended Complaint at 9, ¶ 95. Section 28-926(1) gives treble damages to anyone injured by a "public servant or peace officer who, by color of or in the execution of his office, shall designedly, willfully, or corruptly injure, deceive, harm or oppress . . . [or] commit oppression under color of office." Neb. Rev. Stat. Ann. § 28-926(1) (Michie 1995) (emphasis added). Section 28-926 thus also has a state action requirement since it requires the injured party to establish that the offending conduct was done willfully by a public servant under "color of his office." See LaBenz Trucking, Inc. v. Snyder, 519 N.W.2d 259, 260 (Neb. 1994). Since claims under this statute can only be brought against public servants, Garcia's claims against the individual defendants in their unofficial capacities for their pre-election conduct fail. The individual defendants' motion for summary judgment on the ninth cause of action is therefore granted to the extent the cause of action concerns the individual defendants' pre-election conduct.
Defendants in Their Official and Individual Capacities and Defendant Walthill Public Schools
The defendants collectively argue that Garcia states in his amended complaint that the defendants canceled his contract in retaliation for his NEOC/EEOC discrimination charge and the former board's decision to settle that charge by paying him $52,000 and extending his contract. See, e.g., Amended Complaint at 3, ¶¶ 17, 25; at 7, ¶ 62. retaliation claims such as Garcia's, the defendants argue, fall within Title VII of the Civil Rights Act of 1964, which makes it an unlawful employment practice to discriminate against an employee who has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3 (a). The defendants contend that because Garcia failed to exhaust his Title VII administrative remedies with the NEOC/EEOC before proceeding with this suit, he must forfeit the claims made pursuant to 42 U.S.C. § 1983 and 1985(3) in the first, second, third, and seventh causes of action insofar as they are based on the defendants' alleged retaliation in violation of 42 U.S.C. § 2000e-3 (a). The court resolves these issues as follows.
Seventh Cause of Action: 42 U.S.C. § 1985 (3) . 42 U.S.C. § 1985 (3) permits an individual to sue two or more persons who have conspired to deprive that individual of civil rights. Complainants cannot avoid the congressionally-created administrative rigors of Title VII by instead bringing their employment discrimination claims under section 1985(3). See Great Amer Fed. SL Assn. v. Novotny, 442 U.S. 366, 378 (1979) ("Unimpaired effectiveness can be given to the plan put together by Congress in Title VII only by holding that deprivation of right created by Title VII cannot be the basis for a cause of action under § 1985(3)."). The defendants' motions for summary judgment on the seventh cause of action are therefore granted insofar as that cause is based on 42 U.S.C. § 1985 (3), but only to the extent that the cause alleges that the defendants retaliated against Garcia for the prior exercise of his rights in violation of 42 U.S.C. § 2000e-3 (a).
First, Second, and Third Causes of Action: 42 U.S.C. § 1983 . "[A] plaintiff may use section 1983 to enforce not only rights contained in the Constitution, but also rights that are defined by federal statutes." Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999), cert granted in part on other issues, Alsbrook v. Arkansas, 528 U.S. 1146, cert. dismissed, 529 U.S. 1001 (2000) (en banc) (citing Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980); Arkansas Med. Soc'y, Inc. v. Reynolds, 6 F.3d 519, 523 (8th Cir. 1993)). Section 1983 itself creates no substantive rights, but only provides a federal remedy for violations of federally protected rights. See, e.g., Riley v. St. Louis Cnty., 153 F.3d 627, 630 (8th Cir. 1998); Foster v. Wyrick, 823 F.2d 218, 221 (8th Cir. 1987). Similar to their argument with regard to 42 U.S.C. § 1985 (3) in the preceding section, the defendants here contend that Garcia's employment discrimination claims based on retaliation under 42 U.S.C. § 2000e-3 (a) cannot be brought under section 1983 because Congress has provided a separate comprehensive remedial scheme for such retaliation claims in Title VII.
While the United States Supreme Court has not directly ruled that Title VII precludes retaliation claims under section 1983, it has ruled in other contexts that section 1983 cannot be used to remedy violations of federal law when Congress has enacted separate comprehensive remedial statutes. See, e.g., Middlesex Cnty. Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1 (1981) (Federal Water Pollution Control Act and Marine Protection, Research, and Sanctuaries Act); Smith v. Robinson, 468 U.S. 992 (1984) (Education of the Handicapped Act). In a similar analogous vein, the Eighth circuit has ruled that a comprehensive remedial scheme such as that contained in the American with Disabilities Act bars an employee's section 1983 claims against commissioners in their individual capacities. Alsbrook v. City of Maumelle, 184 F.3d at 1011 ("Courts should presume that Congress intended that the enforcement mechanism provided in the statute be exclusive.")
The Eighth Circuit has taken a more direct approach with regard to the relationship between Title VII and section 1983, however, ruling that Title VII provides the exclusive remedy for certain types of employment discrimination claims. See, e.g., Greenwood v. Ross, 778 F.2d 448, 455 (8th Cir. 1985) (adopting the Fifth Circuit's position in Irby v. Sullivan, 737 F.2d 1418, 1427-29 (5th Cir. 1984), that 42 U.S.C. § 2000e3(a) "may not be the basis for a retaliatory discharge claim in a § 1983 action"); Hervey v. City of Little Rock, 787 F.2d 1223, 1233 (8th Cir. 1986) (ruling that since "[w]e do not feel . . . that the employment rights created by Title VII, 42 U.S.C. § 2000e-2, can be enforced through § 1983," the plaintiff could not use section 1983 to bring a sex discrimination claim after she failed to timely file her Title VII claim); and Foster v. Wyrick, 823 F.2d 218, 222-223 (8th Cir. 1987) (failure to file Title VII disparate impact claim with EEOC bars federal suit under 42 U.S.C. § 1983).
Garcia was well aware of Title VII administrative procedures, having settled one NEOC discrimination claim against the school board in 1998. Yet when the board voted to cancel his contract in 1999, he did not bring any further claims to the NEOC/EEOC. Instead, he elected to proceed with the complaint already filed in this suit, seeking a remedy for alleged equal protection, due process, and first amendment violations with an action brought pursuant to section 1983. This failure to exhaust administrative remedies with the NEOC/EEOC dooms Garcia's section 1983 claims in the first three causes of actions to the extent they are based on allegations that the defendants retaliated against him for having sought relief from the NEOC/EEOC in 1998. The defendants' motions for summary judgment on the first, second, and third causes of action are therefore granted insofar as they are based on 42 U.S.C. § 1983, but only to the extent those causes allege that the defendants retaliated against Garcia for the prior exercise of his rights in violation of 42 U.S.C. § 2000e-3 (a).
Issue and Claim Preclusion. Finally, for purposes of preserving the record the defendants collectively renew their argument that Garcia is barred by the doctrines of collateral estoppel and res judicata from relitigating his section 1983 claims in the first, second, and third causes of action. For the reasons stated on the record at oral argument, the defendants' motion is overruled.
IT IS THEREFORE ORDERED
1. The motion for summary judgment, Filing No. 91, filed by the individual defendants in their individual capacities is granted on the first, second, third, and ninth causes of action to the extent those causes of action concern the individual defendants' pre-election conduct;
2. The motion for summary judgment, Filing No. 89, filed by the school district and the individual defendants in their official capacities is granted on the first, second, third, and seventh causes of action insofar as those causes are based on either 42 U.S.C. § 1983 or 1985(3), but only to the extent those causes of action allege that the defendants retaliated against Garcia for the prior exercise of his rights in violation of 42 U.S.C. § 2000e-3 (a); and
3. The defendants' motions for summary judgment, Filing Nos. 89 and 91, are denied on any grounds other than those allowed by this memorandum and order.