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Hicks v. Benton County Board of Education

United States District Court, W.D. Tennessee, Eastern Division

December 1, 2016

CASSANDRA HICKS, Plaintiff,
v.
BENTON COUNTY BOARD OF EDUCATION, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          J. DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         The Plaintiff, Cassandra (“Casey”) Hicks, filed her initial complaint against the Defendant, the Benton County, Tennessee, Board of Education (“BCBOE”), on December 22, 2014 (Docket Entry (“D.E.”) 1), and an amended pleading on June 17, 2015 (D.E. 39). She alleged retaliation in violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“§ 504”); Title II of the Americans with Disabilities Act, 42 U.S.C. § 12203 (“ADA”); the First Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983; and the Tennessee Public Protection Act, Tennessee Code Annotated § 50-1-304 (“TPPA”). Plaintiff also averred prior restraint of speech in violation of the First Amendment pursuant to § 1983. Before the Court is the Defendant's motion for summary judgment in accordance with Rule 56 of the Federal Rules of Civil Procedure as to all the claims raised in this case. (D.E. 64.)

         II. STANDARD OF REVIEW

         Rule 56 provides in pertinent part that "[t]he court shall grant summary judgment 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 court must view all evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in her favor. Ondo v. City of Cleveland, 795 F.3d 597, 603 (6th Cir. 2015). "There is a genuine issue of material fact only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (internal quotation marks omitted). "The test is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. (citing Anderson, 477 U.S. at 251-52) (internal quotation marks omitted). The moving party must initially show the absence of a genuine issue of material fact. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The nonmoving party must then "present significant probative evidence to do more than show that there is some metaphysical doubt as to the material facts to defeat the motion." Id. (internal quotation marks omitted).

         III. MATERIAL FACTS

         Hicks worked as a special education teacher's aide/paraprofessional at Big Sandy School (“Big Sandy”) in Benton County from the 2004-05 term until the end of the 2013-14 academic year. According to BCBOE Policy 5.1037, teacher assistants are at-will employees, “with no expectation of continued employment, and their employment may be transferred, suspended, or dismissed by the Director [of Schools] in his/her sole and complete discretion at any time for any reason consistent with the efficient operation of the schools.” (D.E. 93-4 at PageID 4330; see also D.E. 93-3 at PageID 4327 (BCBOE Policy 5.1025) (same).) These employees “may be involved in the instructional program only if they are under direct supervision of a certificated teacher. They shall assist the teacher in achieving the objectives of the instructional program and shall perform such tasks as may be assigned by the teacher.” (D.E. 93-4 at PageID 4330 (internal footnote omitted).)

         Plaintiff's daughter, H.H., who, according to Hicks, functioned at or below a third-grade level, attended Benton County schools and, for at least some of that time, received special education services. Individualized Education Plans (“IEPs”) were prepared for her by the school in the academic years 2010-11, 2011-12, 2012-13, 2013-14 and 2014-15. One item required under the 2013-14 IEP was a study guide for a tenth-grade biology class taught by Dawn Peach. The Plaintiff and her husband, Darrel Hicks, were dissatisfied with Peach's study guide or, rather, the lack thereof, and complained to her and others, including Big Sandy Principal Marty Caruthers and BCBOE Director of Schools Mark Florence.

         The principal had begun to have issues with Hicks beginning in the 2012-13 academic year. During that term, she had conversations with a South American transfer student who had a boyfriend of whom her parents disapproved. After the girl moved out of their home and into that of Michelle Douglas, another special education teacher's aide who permitted her to see the boy, Hicks maintains that she answered questions from the child's parents concerning their daughter's general well-being. The parents, upset over the situation, apparently requested that Douglas be fired. Although the aide was not dismissed, it was Caruthers' stated belief that Douglas thereafter suffered from a hostile working environment because of Plaintiff's statements. According to Hicks, another incident occurred that year involving a severely handicapped student who was being abused at home. She stated in her affidavit filed contemporaneously with her response to the motion for summary judgment that she reported the abuse to Caruthers, who had forbidden her to make direct reports to the Tennessee Department of Children's Services (“DCS”). He failed to pass the report on to the agency and the student later died.

         Caruthers had problems with Hicks, as well as Douglas, into the 2013-14 term. On at least two occasions, he instructed them to cease talking to parents of special education students concerning what was going on in the program. It was his belief that the aides were informing parents that their children were not being served at the school. Hicks acknowledges that she spoke to special education parents about services their students failed to receive. Specifically, she told parents, in response to their questions, that she and Douglas were the only school employees supervising and making lesson plans for severely disabled students and that sensory items previously used as teaching aids had been removed from the premises, resulting in serious problems with the educational services being provided to these students during the 2013-14 year.

         The principal advised Hicks and Douglas that, if a parent had a concern or question, they were to speak to the teacher first and then up the chain of command through him, Special Education Director Pam Chmelik and Florence. He cautioned that he would not tolerate turmoil, ongoing drama and conflict and, if such communication continued, would seek immediate termination of the offending parties. The principal prepared a memorandum in which he stated that Florence had contacted him and expressed concern about the situation. He added that the director of schools asked him to “reiterate to you that you are at will employees. In other words you are not a contracted employee.” (D.E. 65-8 at PageID 2641.)

         In an email dated December 14, 2013, Mr. Hicks sought assistance from Tennessee Education Complaint Investigator Kay Flowers concerning the study guide issue. (D.E. 65-4 at PageID 2216.) On March 6, 2014, the Plaintiff and her husband filed a formal administrative complaint with the Tennessee Department of Education Division of Special Education on behalf of their daughter against Big Sandy. The stated grounds for the complaint were as follows: “She is not being giv[e]n a study guide for Biology. Her IEP stat[e]s that she is to have a study guide for her classes, especially [Biology].” (Id. at PageID 2215.)

         On or about May 1, 2014, the principal, in a letter addressed to Florence, recommended that Plaintiff not be rehired for the 2014-15 academic year. The correspondence contained no reason for the recommendation. The director of schools accepted the recommendation and, in a letter dated May 16, 2014, the BCBOE notified Hicks of its decision not to renew her employment.

         IV. ASSERTIONS OF THE PARTIES AND LEGAL ANALYSIS

         A. Federal Claims

         As noted above, the Plaintiff has asserted claims in accordance with federal law for violation of the ADA, § 504 and, pursuant to § 1983, her rights under the First Amendment. The Court will address those claims seriatim.

         1. Section 1983

         (a) The Statute Generally

         Section 1983 provides a private right of action against any person who subjects "any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights[ or] privileges . . . secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983; Rehberg v. Paulk, 132 S.Ct. 1497, 1501 (2012). The statute "creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere." Flint v. Ky. Dep't of Corr., 270 F.3d 340, 351 (6th Cir. 2001) (citing Okla. City v. Tuttle, 471 U.S. 808 (1985)). A plaintiff suing under the statute must demonstrate the denial of a constitutional right caused by a defendant acting under color of state law. Carl v. Muskegon Cty., 763 F.3d 592, 595 (6th Cir. 2014).

         (b) Municipal Liability

         A political body or subdivision, including a county board of education, is a “person” within the meaning of § 1983 and, therefore, may be subject to liability in actions brought thereunder. See Ford v. Cty. of Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008); Doe v. Claiborne Cty., Tenn. by & through Claiborne Cty. Bd. of Educ., 103 F.3d 495, 505 (6th Cir. 1996). A municipal defendant may only be liable under § 1983, however, “if a custom, policy, or practice attributable to the municipality was the moving force behind the violation of the plaintiff's constitutional rights.” Gohl v. Livonia Pub. Schs. Sch. Dist., 836 F.3d 672, 685 (6th Cir. 2016) (quoting Heyerman v. Cty. of Calhoun, 680 F.3d 642, 648 (6th Cir. 2012)) (internal quotation marks omitted), reh'g en banc denied (Nov. 15, 2016). Respondeat superior or vicarious liability will not establish a claim for damages against a municipality under § 1983. Garner v. Harrod, ___ F.App'x___, 2016 WL 3774062, at *4 (6th Cir. July 15, 2016). A plaintiff may establish a policy or custom through reference to: “(1) the municipality's legislative enactments or official agency policies; (2) actions taken by officials with final decision[]making authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance or acquiescence of federal rights violations.” Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).

         The BCBOE insists that the Plaintiff has failed to establish the existence of a custom or policy of unconstitutional activity and, instead, has shown merely that it employed Caruthers, the alleged tortfeasor. By way of response, Hicks invokes the second approach identified in Thomas. In order for the actions of an official such as a public school principal to impose liability on the municipality, the decisionmaker must have “final authority to establish municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). Whether an official had final policymaking authority is a question of state law. Id. at 483. Therefore, in determining liability of the BCBOE under § 1983, the “court's task is to identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional . . . violation at issue.” McMillian v. Monroe Cty., Ala., 520 U.S. 781, 784-85 (1997) (internal quotation marks omitted); Click v. Thompson, 17 F.Supp.3d 655, 660 (E.D. Ky.), appeal dismissed (6th Cir. Aug. 5, 2014).

         The Plaintiff argues in her responsive brief that Caruthers possessed final policymaking authority with respect to developing school policy and directing aspects of staff/teacher employment, not including hiring and firing.[1] This is true if his decisions were “final and unreviewable and [were] not constrained by the official policies of superior officials, ” Flagg v. City of Detroit, 715 F.3d 165, 175 (6th Cir. 2013), reh'g & reh'g en banc denied (June 18, 2013), or if he had “unfettered discretion, ” Monistere v. City of Memphis, 115 F.App'x 845, 852-53 (6th Cir. 2004).

Under Tennessee law, a school principal is to
(1) [s]upervise the operation and management of the personnel and facilities of the school or schools of which the principal is principal as the local board of education determines; (2) [a]ssume administrative responsibility and instructional leadership under the supervision of the director of schools and in accordance with the written policies of the local board of education for the planning, management, operation and evaluation of the education program of the schools to which assigned; (3) [s]ubmit recommendations to the director of schools regarding the appointment and dismissal of all personnel assigned to the school or schools under the principal's care, and make decisions regarding the specific duties of all personnel assigned to the school or schools under the principal's care; provided, that the duties of teachers shall be within their area of licensure and consistent with the policies, rules or contracts of the board of education; . . . (5) [p]erform such other duties as may be assigned by the director of schools pursuant to the written policies of the local board of education [and] (7)(A) [a]ssign educational assistants to noninstructional supervision of students . . .

Tenn. Code Ann. § 49-2-303(b)(1)-(3), (5), (7)(A). Hicks submits that the BCBOE authorized final decisionmaking by school principals by virtue of its Policy 5.1025, which provides that “[t]he school principal is the immediate supervisor of . . . aides.” (D.E. 93-3 at PageID 4328.) However, § 49-2-303(b)(1) imposes upon the principal the duty of supervision over school personnel only “as the local board of education determines.” Tenn. Code Ann. § 49-2-303(b)(1). Thus, it does not appear to the Court that Caruthers' supervision of teacher's aides was, under state law, final, unreviewable, unconstrained by the official policies of superior officials, or unfettered. BCBOE Policy 5.1023, entitled “Duties and Performance Contract of Principals, ” tracks the language of § 49-2-303(b)(1), permitting the principal to “supervise the operation and management of the personnel . . . of the school . . . of which he/she is principal as the local board of education shall determine.” (D.E. 93-2 at PageID 4325 (emphasis added).) The policy provides, as Hicks points out, for the added responsibility of principals to “hold regular meetings of the professional staff for the purpose of developing and coordinating school policies.” (Id.) This directive does not, as Plaintiff suggests it must, convince the Court that the principal's decisionmaking authority with respect to the development of policy on the issues raised in this case is final and unfettered. The Court's view is bolstered somewhat by the policy's catch-all provision stating that the principal is “[t]o perform other responsibilities as assigned by the Director of Schools.” (Id. at PageID 4326 (emphasis added).)

         A district court in this Circuit specifically applied § 49-2-303(b) in Doe v. Farmer, No. 3:06-0202, 2009 WL 3768906 (M.D. Tenn. Nov. 9, 2009). Therein, a high school physical education teacher had a sexual relationship with a student. Farmer, 2009 WL 3768906, at *1. The school district's sexual harassment policy required that, upon receipt of a report, the principal was to notify the district's human rights officer, who would then appoint an official to investigate the complaint. Id. at *3. The principal became aware of the situation but did not inform school district officials. Id. In ruling on the school district's motion for summary judgment, the district court concluded that the principal, based on the language of § 49-2-303(b)(2), lacked the unfettered discretion to deal with instances of sexual abuse. Id. at *12. Rather, he was required to follow district policy. Id. As he failed to do so, the school district bore no liability. Id.

         Upon review of Tennessee law and the BCBOE policies cited by the Plaintiff, the Court finds that she has failed to demonstrate that Caruthers' authority over the aspects of her employment, not including hiring and firing, was final and unreviewable, and not constrained by the official policies of superior officials. Nor does it find that he was granted unfettered discretion in these areas. Indeed, the Farmer court observed that “courts often find that principals lack the authority to expose school districts to § 1983 liability.” Id.; see also Pendleton v. Fassett, Civil Action No. 08-227-C, 2009 WL 2849542, at *9-11 (W.D. Ky. Sept. 1, 2009) (in § 1983 action involving alleged unreasonable searches of alternative high school students by local police for contraband, claim of municipal liability could not survive summary judgment where plaintiff made no legal argument, and no showing, as to why the school principal, who was aware of the incidents, would have possessed final decisionmaking authority as to searches of students, even though he testified in his deposition that he would have been one who might address issues arising at the school).

         Based on the foregoing, the Court concludes that, to the extent Plaintiff's federal claims are grounded in the actions of Caruthers as a final policymaker for the municipality, they are DISMISSED.

         Hicks also seeks to impose liability upon the BCBOE through the fourth approach enumerated in Thomas, contending that Defendant had a custom of tolerating and acquiescing to violations of First Amendment rights as Florence was, it is alleged, aware of and condoned Caruthers' actions relative to Hicks' IEP and program complaints. This assertion must also fail. Where a plaintiff avers a custom of ignoring constitutional violations, the Sixth Circuit has required her to show “(1) a clear and persistent pattern of misconduct, (2) notice or constructive notice on the part of the municipality, (3) the defendant's tacit approval of the misconduct, and (4) a direct causal link to the violations.” Nouri v. Cty. of Oakland, 615 F.App'x 291, 296 (6th Cir. 2015) (citing Powers v. Hamilton Cty. Pub. Def. Comm'n, 501 F.3d 592, 607 (6th Cir. 2007)) (internal quotation marks omitted). A pattern of misconduct cannot be demonstrated “from the mistreatment of the plaintiff, ” as to do so “risks collapsing the municipal liability standard into a simple respondeat superior standard.” Id. (alterations omitted). Here, Hicks has cited to no evidence that a pattern of retaliation by the BCBOE against employees for speaking out about conditions at the school existed at Big Sandy. Accordingly, her claims against the Defendant cannot be based upon a theory of a custom of tolerance of or acquiescence to federal rights violations.

         (c) Constitutional Violations under the First Amendment

         Before delving into the nuts and bolts of the constitutional claims, the Court notes that, although Defendant purports to seek summary judgment as to all issues raised in this case, the dispositive motion contains no argument concerning the merits of Plaintiff's First Amendment prior restraint claim. The Court assumes the reason for this omission is the BCBOE intended for its assertion that Caruthers' actions could not bind the municipality to dispose of the claim. In light of the Court's determination concerning the principal, the Plaintiff is DIRECTED to advise the Court within ten days of the entry of this order whether she intends to continue to pursue relief for prior restraint of speech. The Court will then consider whether additional briefing is warranted. If the Court does not receive advice from counsel within the allotted time period, it will deem the claim abandoned.

         At this point, the Court turns to Hicks' claim of First Amendment retaliation. It is assumed for purposes of this discussion, because Florence appears to have possessed final authority over hiring and firing of teacher's aides, that municipal liability may exist as to this claim. A claim of retaliation under § 1983 requires proof of three elements: “(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse action was motivated at least in part by the plaintiff's protected conduct.” Bickerstaff v. Lucarelli, 830 F.3d 388, 399 (6th Cir. 2016) (alteration omitted).

         In this case, the protected conduct arises under the First Amendment, which provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. am. I; Heffernan v. City of Paterson, N.J., 136 S.Ct. 1412, 1418 (2016). “[P]ublic employers may not condition employment on the relinquishment of constitutional rights.” Lane v. Franks, 134 S.Ct. 2369, 2377 (2014); see also Holbrook v. Dumas, ___ F.App'x___, 2016 WL 4376428, at *3 (6th Cir. Aug. 17, 2016) (same). As the United States Supreme Court noted in Lane,

[t]here is considerable value . . . in encouraging, rather than inhibiting, speech by public employees[, f]or government employees are often in the best position to know what ails the agencies for which they work. The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it.

Lane, 134 S.Ct. at 2377 (internal alterations, citations & quotation marks omitted).

         On the other hand, “[g]overnment employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services.” Id. The First Amendment “does not empower [public employees] to constitutionalize the employee grievance.” Holbrook, 2016 WL 4376428, at *3 (quoting Garcetti v. Ceballos, 547 U.S. 410, 420 (2006)) (internal quotation marks omitted).

         The United States Supreme Court's decision in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 568 (1968), provided a framework for balancing “the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568. In 2006, in Garcetti, the Court devised a two-step inquiry:

The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.

Garcetti, 547 U.S. at 418 (internal citations omitted).

         In subsequent cases, the so-called Pickering balancing test has been stated thusly: to support a finding that her speech was protected, the public employee must establish that

(1) [s]he was speaking as a private citizen, rather than pursuant to [her] official duties; (2) [her] speech involved a matter of public concern, and (3) [her] interest in commenting on the matter outweighed the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

Tompos v. City of Taylor, 644 F.App'x 678, 680 (6th Cir. 2016) (internal quotation marks omitted). The first two elements are “threshold” questions which, if answered in the affirmative, lead to the balancing test articulated in the third. Miller v. City of Canton, 319 F.App'x 411, 416 (6th Cir. 2009). While the determination of whether an employee's speech is protected or unprotected is often not an easy task, courts are counseled that, when a public employee speaks upon matters of only personal interest, “absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.” Connick v. Myers, 461 U.S.

138, 147 (1983).

         The Plaintiff has identified the speech at issue in this case as falling into three categories: (1) complaints to school and state officials about Big Sandy's alleged violation of H.H.'s IEP, (2) answering parents' questions about the lack of special education services, and (3) arranging for the DCS to be contacted about child abuse the school was attempting to cover up. From a review of her affidavit, it appears the third category encompasses Caruthers' alleged prohibition against her reporting suspected child abuse to DCS directly; his refusal to pass on her reports of abuse to agency officials on at least two occasions; and his threat that, if she made reports to DCS, she would be fired. It is the position of the BCBOE that Hicks has not made the required showings to survive summary judgment on a First Amendment retaliation claim.

         The Court will first address the question of whether Hicks' speech involved matters of public concern. For reasons explained in the following section of this opinion, the Court will consider in this discussion only Plaintiff's speech concerning the study guide.

         “Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Lane, 134 S.Ct. at 2380 (internal quotation marks omitted). “[W]hether an employee's speech is protected as that of a citizen on a matter of public concern is a question of law to be determined by the content, form, and context of a given statement, as revealed by the whole record.”[2] Holbrook, 2016 WL 4376428, at *4 (quoting Connick, 461 U.S. at 147-48 n.7) (internal quotation marks omitted). “In general, speech involves matters of public concern when it involves issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.” Banks v. Wolfe Cty. Bd. of Educ., 330 F.3d 888, 893 (6th Cir. 2003) (internal quotation marks omitted). “Even where an employee speaks out as a private citizen, [her] speech is not protected unless it related to a matter of public concern.” DeBrito v. City of St. Joseph, 171 F.Supp.3d 644, 651 (W.D. Mich. 2016), appeal filed (6th Cir. Mar. 24, 2016).

         In support of summary judgment, the BCBOE maintains that the speech leading to any alleged retaliation against the Plaintiff consisted solely of her complaints about H.H.'s biology study guide, which were not a matter of public concern. The Court agrees to the extent these statements were not matters of public concern. To be sure, a school district's implementation of students' IEPs, or lack thereof, is likely to be of interest to the community at large. However, Hicks' complaints, both to local school officials and the state education agency, related only to the needs of a particular student -- her daughter -- and her IEP. There was no broader purpose. Where the focus or point of the speech advances only a private interest, it is not a matter of public concern. Farhat v. Jopke, 370 F.3d 580, 592-93 (6th Cir. 2004); see also Knaub v. Tulli, 788 F.Supp.2d 349, 356-57 (M.D. Pa. 2011) (special education teacher's advocacy on behalf of a friend's autistic child at an IEP meeting could not form the basis of a First Amendment retaliation claim because she was speaking on behalf of one child, not on a matter of public concern.). Accordingly, the Court finds Plaintiff's First Amendment retaliation claim based on her speech relative to H.H.'s study guide devoid of merit. With respect to this speech, then, the Court need not continue the Pickering analysis. See Garcetti, 547 U.S. at 418 (if the answer to the question whether the employee spoke on a matter of public concern is no, she has no First Amendment cause of action); Crawford v. Columbus State Cmty. Coll., ___F.Supp.3d___, 2016 WL 3670137, at *6 (S.D. Ohio July 11, 2016) (upon a finding that the plaintiff had not spoken on a matter of public concern, the court need not reach Pickering's balancing test).

         As for the remaining categories of speech identified by Hicks as protected, the Court disagrees with the Defendant's characterization of the scope of the speech at issue in this case. Its attempt to narrow the subject matter of Plaintiff's speech to the study guide alone is belied by its own statement of material facts (“SMF”).[3] The movant enumerated therein issues Caruthers had with Hicks, including her counseling of the South American student, who suffered suicidal ideations, and his advice to Plaintiff that such counseling should be conducted by the school counselor. BCBOE stated in the subsequent SMFs, all citing to Caruthers' deposition, as follows:

14. Further, that student, upon turning 18, left her parents' home to live with Ms. Michelle Douglas, a teacher's aide. The parents believed the student was in an inappropriate relationship. The Plaintiff continued to “counsel” the student while informing the student's parents and other parents of the manner in which Michelle Douglas allowed the student to live in Ms. Douglas' home. Mr. Caruthers stated this created a hostile environment in the classroom for Michelle Douglas since the parent requested that Michelle Douglas be fired.
15. Plaintiff was directed at the beginning of the next year to “stop that kind of activity and don't go about getting information on students and stirring that information and ...

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