Robinson v. Bridgeport Pub. Sch.

PATRICK ROBINSON, Plaintiff, v. BRIDGEPORT PUBLIC SCHOOLS, a public school district in Nebraska, Defendant.

8:16CV177

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

September 26, 2016

MEMORANDUM AND ORDER

This action stems from the termination of the pro se Plaintiff's employment as a curriculum and assessment coordinator for Bridgeport Public Schools ("BPS"). On July 15, 2016, the court conducted an initial review (Filing 6) of Plaintiff's Complaint (Filing 1) and granted Plaintiff leave to amend his Complaint to attach the August 5, 2014, Charge of Discrimination he filed with the EEOC¹ and to properly allege sexual discrimination under Title VII, age discrimination under the ADEA,² and a hostile work environment based on Plaintiff's age or sex. The court found that Plaintiff sufficiently stated a claim for retaliation, but dismissed all defendants except BPS because the individual defendants could not be held liable under Title VII or the ADEA. The court must now determine whether summary dismissal of Plaintiff's Amended Complaint is appropriate under 28 U.S.C. § 1915(e)(2).

Plaintiff's Amended Complaint (Filing 7) contains substantially similar factual allegations as those contained in his original Complaint, and they will not be repeated here. (See Filing 6 at CM/ECF pp. 1-5 (factual allegations summarized).) In hisAmended Complaint, Plaintiff has asserted the following additional claims: denial of procedural due process under 42 U.S.C. § 1983; tortious interference with employment; fraudulent misrepresentation; and negligence. Plaintiff has abandoned his ADEA and Title VII claims based on gender and age, but has reasserted his Title VII retaliation claim.

A. § 1983 Claim for Violation of Procedural Due Process Rights

1. Municipal Liability

Liberally construed, Plaintiff's Amended Complaint alleges that BPS deprived him of his property interest in employment with the school district and his liberty interest in his good name and reputation. The only remaining defendant after initial review of Plaintiff's first Complaint is Bridgeport Public Schools. Municipalities and other local governmental units like school districts and school boards are considered "persons" to whom 42 U.S.C. § 1983 applies. Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658 (1978); Doe v. School Dist. of City of Norfolk, 340 F.3d 605, 613 (8th Cir. 2003) (school district can be sued under § 1983); Manning v. Dakota Cty. Sch. Dist. No. 22-0011, 782 N.W.2d 1, 9 (Neb. 2010) (school boards can be sued under § 1983; citing Monell).

While Plaintiff makes allegations that various teachers, a counselor, a principal, and two superintendents participated in the deprivation of his constitutional rights, § 1983 does not allow municipal liability under a theory of respondeat superior, which means that a school district cannot be liable simply for employing someone who violates a plaintiff's constitutional rights. To state a claim against a school district for acts of its employees, a plaintiff must allege that a municipal policy or custom caused the unconstitutional acts of its employees. Monell, 436 U.S. at 691.

"Official policy involves 'a deliberate choice to follow a course of action made from among various alternatives' by an official who has the final authority to establish governmental policy." Jane Doe A By and Through Jane Doe B v. Special Sch. Dist. of St. Louis Cnty., 901 F.2d 642, 645 (8th Cir. 1990) (quoting Pembaur v City of Cincinnati, 475 U.S. 469, 483 (1986)). In order to establish the existence of a governmental custom, a plaintiff must prove:

1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees;

2) Deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and

3) That plaintiff was injured by acts pursuant to the governmental entity's custom, i.e., that the custom was the moving force behind the constitutional violation.

Jane Doe, 901 F.2d at 646. See also Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003) (plaintiff need not plead the "specific existence of an unconstitutional policy or custom," but must contain "allegations, reference, or language by which one could begin to draw an inference that the conduct complained of . . . resulted from an unconstitutional policy or custom of the School District").

Here, Plaintiff does not allege facts from which one could draw an inference that his suspension and termination resulted from a BPS policy or custom, nor does he assert that BPS employees were acting in accordance with such a policy or custom. The Amended Complaint alleges no facts suggesting that BPS employees have a custom or pattern of violating their colleagues' procedural due process rights in a way that could be characterized as a continuing, widespread, persistent pattern of misconduct. Rather, Plaintiff's allegations describe isolated incidents of misconductdirected at him alone. Therefore, Plaintiff fails to state a claim against BPS insofar as he seeks to hold BPS liable for the misconduct of its employees.

Plaintiff's Amended Complaint also asserts that two superintendents and the school board itself committed unconstitutional acts. Municipal liability under § 1983 may result from a "single decision to take unlawful action made by municipal policymakers" where "a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 481 & 483 (1986) ("where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly"). See also Hollingsworth v. City of St. Ann, 800 F.3d 985, 992 (8th Cir. 2015) (municipality can be liable under § 1983 when municipal action itself violates federal law); Crawford v. Van Buren County, 678 F.3d 666, 669 (8^th Cir. 2012) ("Although rare, a public official's single incident of unconstitutional activity can establish the requisite policy if the decision is taken by the highest officials responsible for setting policy in that area of the government's business." (internal quotation marks and citation omitted)); Angarita v. St. Louis Cty., 981 F.2d 1537, 1546 (8th Cir. 1992) (same).

Therefore, Plaintiff may assert a claim against BPS under 42 U.S.C. § 1983 to the extent he alleges that two superintendents and the school board—as the highest officials responsible for setting policy in the areas of employee suspensions and terminations—violated the Constitution when they did not provide Plaintiff due process before suspending and terminating Plaintiff's employment.³

2. Procedural Due Process

Plaintiff alleges a procedural due process claim against BPS under § 1983. In order to state a claim for violation of one's right to procedural due process, a plaintiff must allege that the defendant (1) deprived the plaintiff of life, liberty, or property (2) without sufficient process. Clark v. Kansas City Missouri Sch. Dist., 375 F.3d 698, 701 (8th Cir. 2004).

Due process is a flexible concept, requiring only "such procedural protections as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). The fundamental requirement of due process "is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Id. at 333, 96 S. Ct. 893 (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965)). When a state employee's unauthorized, random acts deprive a person of property, the state employee's acts do not violate "the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). SeeParratt v. Taylor, 451 U.S. 527, 543-44, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981).

Clark, 375 F.3d at 702.

a. Deprivation of Liberty Interest

In Board of Regents v. Roth, 408 U.S. 564 (1972), the Court stated that a nontenured teacher's liberty interest might be implicated if the teacher's integrity, honor, or good name was at stake—as when a state, in declining to renew a teacher'scontract, makes a charge against the teacher of dishonesty or immorality that might seriously damage his associations or standing in the community, or the state imposes a "stigma or other disability that foreclose[s] his freedom to take advantage of other employment opportunities." In such cases, "notice and an opportunity to be heard are essential." Id. at 573 (internal quotation marks and citations omitted).

To state a claim for deprivation of Plaintiff's liberty interest in his good name and reputation, Plaintiff must allege that: "(1) an official made a defamatory statement that resulted in a stigma; (2) the defamatory statement occurred during the course of terminating the employee; (3) the defamatory statement was made public; and (4) an alteration or extinguishment of a right or legal status." Crews v. Monarch Fire Prot. Dist., 771 F.3d 1085, 1091-92 (8th Cir. 2014) (internal quotation marks and citation omitted). The "stigma" must be "significant" and usually involves a "character-demeaning charge." Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 802 (8th Cir. 2004) (to establish liberty interest due process claim, plaintiff must prove that school district made public accusations about her behavior and her subsequent change in employment that make it difficult for employee to escape stigma).

Damage to reputation alone is insufficient to support a claim for a due process...