Thompson v. Central Valley School District No 365

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6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF WASHINGTON

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9 RANDEY THOMPSON, No. 2:21-CV-00252-SAB

10 Plaintiff,

11 v.

12 CENTRAL VALLEY SCHOOL

13 DISTRICT NO. 365; BEN SMALL,

14 individually as Superintendent of the ORDER GRANTING

15 Central Valley School District; CENTRAL DEFENDANTS’ MOTION FOR

16 VALLEY SCHOOL DISTRICT NO. 365 SUMMARY JUDGMENT

17 BOARD OF EDUCATION and in their

18 individual capacity BOARD OF

19 EDUCATION MEMBERS and

20 DIRECTORS DEBRA LONG, MYSTI

21 RENEAU, KEITH CLARK, TOM

22 DINGUS, and CYNTHIA MCMULLEN,

23 Defendants.

24

25 Before the Court are Defendants’ Motion for Summary Judgment, ECF No.

26 71 and Plaintiff’s Motion for Partial Summary Judgment, ECF No. 76. Plaintiff is

27 represented by Michael Love, Megan Clark, Samir Dizdarevic-Miller, and Robert

28 Greer. Defendants are represented by Michael McFarland, Jr., Christopher Kerley,

1 and Rachel Stanley. The motions were heard without oral argument.

2 Defendants ask the Court to grant summary judgment in favor of them

3 because a reasonable jury would not find that Plaintiff suffered a constitutional

4 violation. Defendants assert that Plaintiff’s use of derogatory language online and

5 at school did not constitute speech on a matter of public concern; Plaintiff spoke as

6 a public employee; Plaintiff’s transfer to a teaching position was not motivated by

7 protected First Amendment speech; Defendants had adequate justification for the

8 transfer; and the reasons for Plaintiff’s transfer were not pretextual.

9 Plaintiff asks the Court to grant summary judgment in favor of him because

10 a reasonable jury could not find that Defendants did not violate his First

11 Amendment rights after they unlawfully retaliated against him by placing him on

12 administrate leave, investigating and ultimately demoting him because he made a

13 private political Facebook post related to the 2020 Democratic National

14 Convention.

15 Motion Standard

16 Summary judgment is appropriate “if the movant shows that there is no

17 genuine dispute as to any material fact and the movant is entitled to judgment as a

18 matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue for trial unless

19 there is sufficient evidence favoring the non-moving party for a jury to return a

20 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

21 (1986). The moving party has the initial burden of showing the absence of a

22 genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

23 If the moving party meets its initial burden, the non-moving party must go beyond

24 the pleadings and “set forth specific facts showing that there is a genuine issue for

25 trial.” Anderson, 477 U.S. at 248.

26

27 1Pursuant to Local Rule 7.1(i)(3)(B)(iii), the Court has determined that oral

28 argument is not warranted.

1 In addition to showing there are no questions of material fact, the moving

2 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of

3 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled

4 to judgment as a matter of law when the non-moving party fails to make a

5 sufficient showing on an essential element of a claim on which the non-moving

6 party has the burden of proof. Celotex, 477 U.S. at 323. The non-moving party

7 cannot rely on conclusory allegations alone to create an issue of material fact.

8 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). When considering a

9 motion for summary judgment, a court may neither weigh the evidence nor assess

10 credibility; instead, “the evidence of the non-movant is to be believed, and all

11 justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

12 When considering cross motions for summary judgment, the Court views the

13 evidence for each of the motions in the light most favorable to the nonmoving

14 party for that motion and determines whether there are any genuine issues of

15 material fact and whether the non-moving party is entitled to judgment as a matter

16 of law. Wallis v. Princess Cruises, Inc., 306 F.3d 827, 832 (9th Cir. 2002).

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1 Underlying Facts

In August 2020, Plaintiff, an assistant principal at Evergreen Middle School

in the Central Valley School District (CVSD), watched the Democratic National

Convention. After watching the convention, he made the following Facebook post:

5

ia] ae Pe Se ee Pe ee

Hy Randey Thompson

a" Id «

Demtard convention opens and the only facts spoken

8 | were the names. Lie after lie. The fact checkers

| could retire on Michelle Obama's rant alone. What 8

| hatefull racists bitch. If you need to lie to try and win

9 | you are just shit. If you believe them you are even

| worse. Wake the fuck up America. You are being

played by a fake media, athleats and performers (who

1 0 are really clueless and flyers with pedophile man)

and the former DNC, now just the little bitch of

| Marxist BLIM, Antifa, and Soroas socialist. You are

1 1 | missing out on a great country and the rest of usare

| sick and tired of your act and going to take you to the

woodshed for a proper education. May God help you

1 2 to pull your heads out of your asses so we will net

| have too. Time for the red tide. Lets see how long

l 3 | until the FB liberal defenders take this one down.

| □□□ 6 Comments

14 | Like © Comment @) Send

15 Plaintiff maintains the post appeared on his private Facebook account. He

16|| asserts this post was sent to 12 close conservative Facebook friends, and he did not

17|| intend to send the post to other individuals outside these personal friends.

18 He states that later, the following post was substituted for the original post:

19

iia a me Se ee = Pe — en: ee □□

8:09 ATET % #4 9545 “

20 é 2:

21 Sen eon eniecee

lie after lie, The fact checkers could

22 ean Tyaimetss ney ol ae

win you are just shit. If you belleve a

23 Okina vuwsbang git

played by a fake media, athlete and Pa

performers (who are really clueless ye $5

24 oie Ope

puppet Marxist BLM, Antifa, and

Son cialist. You issini

2 5 sLacae Gaak cous ine ‘one

of us are sick and tired of your act

26 eoralir □□□ wae:

May Ged help you to pull your heads:

out of your asses. Time for the red

ide wave. Lets see how long unti

2 7 the FB tberal defenders tehe this

one down.

28

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY

1 Plaintiff explained that while he posted the second post his account was

2 hacked and someone else posted the first example of the post to Facebook.

3 It is undisputed, however, that the first post was seen by a CVSD employee

4 who forwarded it to another employees, who forwarded it to another employee

5 until it was forwarded to CVSD Superintendent Ben Small.

6 Two days later, in the evening on August 19, 2021, Plaintiff received a

7 phone call from Jay Rowell, Assistant Superintendent of CVSD, asking if he had

8 made a post on his Facebook account about the Democratic National Convention.

9 Plaintiff said that he did. He told Mr. Rowell it was a political post on his private

10 Facebook account, and it had only been sent to a very few of his close personal

11 friends and relatives who share similar political beliefs, and the post was made on

12 his own computer and on his own free time.

13 Mr. Rowell informed Plaintiff that he was being placed on administrative

14 leave immediately and he was not allowed on CVSD property and was not allowed

15 to contact CVSD employees, teachers, parents, and students. Plaintiff states he was

16 incredibly humiliated and was terrified that he was going to lose his job and his

17 ability to ever work in education again.

18 Mr. Rowell indicates in his declaration that he placed Plaintiff on

19 administrative leave due to the use of the word “Demtard,” the profanity, and the

20 potential racial overtones and because of the reported concerns from the employees

21 who had either seen or had been forwarded the post. At this point, CVSD had no

22 idea how widely the post had been disseminated.

23 Right after Plaintiff spoke with Mr. Rowell, he deleted his Facebook post.

24 The next morning, Plaintiff called his union representative, Ty Larsen, to discuss

25 the matter. He also deactivated his Facebook account. Later that day, he checked

26

27 2 This screen shot did not come from Facebook. Rather, Plaintiff was able to find it

28 on his phone.

1 and his Facebook account was still active, so he deactivated it again. It became

2 active again around 7:00 p.m., so he changed his password, deactivated the

3 account. It stayed down.

4 On August 20, 2020, CVSD retained attorney Amy Allen to perform an

5 independent third-party investigation into the Facebook post. During her

6 investigation, which took place between August 24, 2020 and August 26, 2020,

7 Ms. Allen learned that previously and while on school grounds, Plaintiff referred to

8 Governor Inslee as “Governor Short Bus,” frequently used the term “short bus”

9 when discussing special needs students, asked a Black student whether he felt he

10 had been treated differently than the “normal students, and referred to students in

11 derogatory terms, including “Tide Pod Challenge Kids” and “Snowflakes.”

12 On August 22, 2020, CVSD sent Plaintiff a letter indicating that he was

13 being placed on administrative leave due to unprofessional conduct. He was

14 instructed that while on leave he was not to report to work or come on any district

15 property unless specifically directed to do so. He was to avoid retaliatory conduct

16 toward others and avoid any contact with others that could be considered

17 interfering with the investigation or that could be considered an attempt to

18 influence the investigation. He was prohibited from having written or verbal

19 contact with students.

20 In September 2020, Plaintiff was removed from the School Superintendent’s

21 Administrator email list, and as a result he was not made aware of multiple open

22 positions for principals in CVSD and he was not able to apply for positions outside

23 the District because two of the three references would or could no longer supply a

24 recommendation.

25 From September 8, 2020 to September 15, 2020, Mr. Rowell conducted

26 Impact Interviews to determine the potential impact of Plaintiff’s Facebook

27 statements and the statements he made while working at CVSD. He interviewed

28 two Board Members, two in-district administrators, two in-district teachers and

1 two parents of current CVSD students. Mr. Rowell found that overall the

2 interviewees expressed shock and concern about the statements and found these

3 statements to be insensitive and detrimental to Plaintiff’s relationship with staff,

4 students and the community.

5 On September 23, 2020, a Notice and Opportunity hearing was held online

6 with CVSD representatives Jay Rowell, Kent Martin and Sue Brown, along with

7 Plaintiff and union rep Ty Larsen. The two allegations discussed at the meeting

8 were: (1) Plaintiff posted an inappropriate and offensive comment on Facebook

9 recently; and (2) he made derogatory and insensitive comments while at work.

10 At the meeting, Plaintiff stated he believed he sent the Facebook post to only

11 12 select friends that share similar political opinions with him and he didn’t learn

12 other people outside this group had seen the post until his sister told him two days

13 later. Plaintiff also stated he did not write the Facebook post that was sent to Mr.

14 Small. Rather, he wrote a different, but similar post that did not have any profanity,

15 did not have any spelling errors, and had a few word changes. He believed his

16 friends groups contained a couple of people he had not accepted. CVSD believed

17 Plaintiff actually posted it to his Facebook page for broad dissemination, rather

18 than Plaintiff “sending” the post to certain people.

19 Plaintiff stated he was just sharing his political frustration when he posted

20 the comment; he did not regret making the comments; and he felt comfortable

21 saying what he did within his small group.

22 Because Plaintiff indicated his Facebook account had been compromised, on

23 October 6, 2020, Mr. Rowell contacted a Forensic Examiner, Joshua Michel, to

24 investigate whether this was true.

25 Plaintiff responded to CVSD’s allegations in a written document dated

26 October 21, 2020. In it, Plaintiff stated he believed a hacker changed who saw his

27 posts and also changed the post itself. He referred to the post that was ultimately

28 viewed by Mr. Small as the “hacked” post.

1 Another meeting was scheduled with Mr. Larson, Plaintiff, Mr. Martin and

2 Mr. Rowell for October 22, 2020 so Plaintiff could provide context to his written

3 statement.

4 On December 15, 2020, Mr. Michel completed his forensic investigation. He

5 found no evidence of unauthorized use of Plaintiff’s Facebook account. Mr. Michel

6 reported that Plaintiff had been very reluctant to provide his electronic devices and

7 Facebook data history. Plaintiff refused to give Mr. Michel his login credentials

8 and after much resistance provided only an incomplete history of his Facebook

9 data. It appeared to Mr. Michel that Plaintiff was not entirely cooperative or

10 forthcoming with him. Based on this report, Mr. Rowell believed that Plaintiff was

11 not being truthful.

12 On January 21, 2021, CVSD offered Plaintiff a transfer to a teaching

13 position if he signed a release and agreed to not sue CVSD. It indicated that if he

14 agreed to the transfer, CVSD would end its investigation and not terminate him. He

15 would receive a new contract to begin September 1, 2021, and a supplemental

16 contract for July and August 2021. Mr. Rowell stated that CVSD proposed the

17 Transfer Agreement in part to avoid having to address the allegation that Plaintiff

18 had lied and continued to lie about having his account hacked, which could have

19 possibly led to more serious consequences.

20 Plaintiff rejected the transfer offer on February 10, 2021.

21 On April 23, 2021, a Notice and Opportunity hearing was scheduled via

22 Zoom, and when Mr. Rowell saw that Plaintiff’s attorneys were accompanying him

23 at the hearing, he refused to go forward that day and rescheduled the meeting.

24 On May 6, 2021, a Notice and Opportunity hearing was scheduled, and

25 Plaintiff’s attorneys did not accompany him. Mr. Rowe, Mr. Martin, Mr. Brown,

26 Plaintiff and Mr. Larsen participated.

27 At the hearing, Plaintiff was asked about Mr. Michel’s report and why he did

28 not cooperate with him. He indicated he believed that a Facebook employee was

1 the one who did the alleged hacking because in the past he has proved the

2 Facebook fact checkers wrong. He believed that Facebook has a habit of

3 “washing” people who disagree with them. He indicated he did not file a “hack

4 claim” with Facebook because he does not believe Facebook cares and Facebook

5 stands to gain financially. Plaintiff acknowledged he was still using Facebook.

6 On May 17, 2021, Plaintiff received a letter from CVSD dated May 10, 2021

7 informing him that he was being transferred to a teaching position. The letter

8 identified seven reasons for the transfer: (1) Plaintiff’s behavior while serving as

9 an administrator had disrupted harmony among building staff and District

10 representatives, to the point that returning him to a position as an administrator

11 supported a reasonable prediction of disruption; (2) his comments could reasonably

12 be perceived as insensitive at best and contrary to the District’s mission of creating

13 an inclusive culture, which cause significant concerns about Plaintiff’s ability to be

14 the type of administrator that serves the District’s best interests; (3) Plaintiff’s

15 behavior, including his lack of inclusiveness, caused a lack of confidence by

16 administrators (and others) and caused concern about his willingness to promote or

17 even embrace the District’s interest in an inclusive learning and working

18 environment; (4) Plaintiff’s behavior interfered with his ability to do his job,

19 especially as a student disciplinarian and staff evaluator; (5) there is good reason to

20 believe Plaintiff interfered with a District investigation about his behavior and he

21 was not entirely truthful during the investigation, (6) his response to District

22 concerns about his behavior demonstrate a lack of awareness and insight needed

23 for a school administrator, and (7) in balancing of all circumstances, the overall

24 best interest of the District would be served by transferring Plaintiff from an

25 administrative position to a non-administrative certificated teaching position.

26 Plaintiff requested a hearing before the CVSD School Board, pursuant to

27 Wash. Rev. code 28A.405.230. Plaintiff met with the CVSD Board on June 14,

28 2021. At the meeting, Plaintiff asserted that his posts were protected by the First

1 Amendment.

2 On June 25, 2021, Plaintiff received a letter indicating the Board upheld the

3 superintendent’s decision to transfer him to a certified teaching position. On June

4 29, 2021, Plaintiff received a letter indicating he was assigned to teach World

5 History and Health and Fitness at Ridgeline High School, although he was not

6 certified to teach World History.

7 First Amendment Retaliation

8 The First Amendment forbids government employers from retaliating

9 against employees for speaking out on matters of public concern. Pickering v. Bd.

10 of Educ. of Township High Sch. Dist., 391 U.S. 563, 564 (1968). That said,

11 government employers may impose certain restraints on the speech of its

12 employees that would be unconstitutional if applied to the general public. Riley’s

13 Am. Heritage Farms v. Elsasser, 32 F.4th 707, 721 (9th Cir. 2022) (quotation

14 omitted). As the Supreme Court explained, the government has “interests as an

15 employer in regulating the speech of its employees that differ significantly from

16 those it possesses in connection with the regulation of the speech of the citizenry in

17 general. Pickering, 391 U.S. at 568.

18 Moreover, when an employee speaks pursuant to their official duties, such

19 speech is not protected by the Constitution. Dahlia v. Rodriguez, 735 F.3d 1060,

20 1067 (9th Cir. 2013). Cases subsequent to Pickering have developed a framework

21 to balance the competing interests between the government employer and

22 employee. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 527-28 (2022).3

23

24 3 Recently, the Supreme Court suggested the Pickering/Garcetti and related cases

25 analysis proceeds in two steps: first, courts should conduct a threshold inquiry into

26 the nature of the speech at issue and whether the speech was made pursuant to

27 official duties or as a citizen addressing matters of concern; and then, courts should

28 attempt to engage in “a delicate balancing of the competing interests surrounding

1 If a plaintiff’s retaliation claim is subject to the Pickering framework, the

2 Court must apply a two-step burden-shifting approach when reviewing a motion

3 for summary judgment. Riley’s, 32 F.4th at 721. First, a plaintiff must establish a

4 prima facie case of retaliation by showing (i) they engaged in expressive conduct

5 that addressed a matter of public concern; (ii) the government employer took an

6 adverse action against them; and (iii) their expressive conduct was a substantial or

7 motivating factor for the adverse action. Id.

8 In doing so, the plaintiff must show causation and the defendants’ intent. Id.

9 In the case of First Amendment retaliation, the plaintiff must show that the

10 government employer acted with a retaliatory motive and that the defendants’

11 “retalitatory animus” was the “but-for” cause of their injury, that is, the adverse

12 action against them would not have been taken absent the retaliatory motive.

13 Nieves v. Bartlett, 587 U.S. 391, 389 (2019).

14 If the plaintiff carries its burden of showing these three elements, the burden

15 shifts to the government employer to show either that its “legitimate administrative

16 interests in promoting efficient service-delivery and avoiding work-place

17 disruption” outweigh the plaintiff’s First Amendment interests, or that it would

18 have taken the same actions in the absence of the plaintiff’s expressive conduct.

19 Riley’s, 32 F.4th at 721.

20 The Supreme Court has recognized several factors in evaluating the impact

21 of an employee’s speech on the government agency’s operation: (1) whether the

22 statement impairs discipline by superiors or harmony among co-workers; (2)

23 whether the speech has a detrimental impact on close working relationship for

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25 the speech and its consequences, including considering whether an employee’s

26 speech interests are outweighed by the interest of the State, as an employer in

27 promoting the efficiency of the public services it performs through its employees.

28 Id. at 527-28 (quotation omitted).

1 which personal loyalty and confidence are necessary; or (3) whether the speech

2 impeded the performance of the speaker’s duties and interferes with the regular

3 operation of the enterprise. Rankin v. McPherson, 483 U.S. 378, 388 (1987). While

4 the government can meet its burden by showing a reasonable prediction of

5 disruption, it cannot rely on mere speculation that an employee’s speech will cause

6 disruption. Brewster v. Bd. of Educ. Of Lynwood Unified Sch. Dist., 149 F.3d 971,

7 979 (9th Cir. 1998).

8 Courts give the government employer’s reasonable prediction of disruption

9 greater deference than the justifications used to restrict the public’s speech. But

10 “[v]igilance is necessary to ensure that public employers do not use authority over

11 employees to silence discourse, not because it hampers public functions but simply

12 because superiors disagree with the content of the employees’ speech.” Rankin,

13 483 U.S. at 384.

14 Thus, an employer must provide some evidence for the court to evaluate

15 whether the government’s claims of disruption appear reasonable. Moser v. Las

16 Vegas Metro. Police Dep’t, 984 F.3d 900, 909 (9th Cir. 2021) (citing Craig v. Rich

17 Twp. High Sch. Dist. 227, 736 F.3d 1110, 1119 (7th Cir. 2013) (“[A]n employer’s

18 assessment of the possible interference caused by the speech must be reasonable—

19 the predictions must be supported with an evidentiary foundation and be more than

20 mere speculation.” (quotation marks and citation omitted)).

21 “In the limited context of the Pickering balancing test, courts may consider

22 the content of that speech to determine how much weight to give the employee’s

23 First Amendment interests.” Moser, 984 F.3d at 906 (citing to Connick v. Myers,

24 461 U.S. 138, 146-47 (1983)). Thus, a sliding scale may be applied in which the

25 state’s burden in justifying a particular adverse employment action varies

26 depending upon the nature of the employee’s expression. Moser, 984 F.3d at 906.

27 //

28 //

1 Plaintiff’s Prima Facie Case

2 In the summary judgment contest, the first step this court must address is

3 whether Plaintiff has established a prima facie case of First Amendment

4 retaliation.4

5 (i) Nature of the Speech

6 In this regard, the Court finds that Plaintiff’s Facebook post was private

7 speech on a matter of public concern. See Rankin, 483 U.S. at 387 (noting that

8 “inappropriate or controversial character of a statement is irrelevant to the question

9 whether it deals with a matter of public concern.”); Riley’s, 32 F.4th at 723 (“There

10 is no genuine issue of disputed fact that Riley engaged in such expressive conduct.

11 Riley’s tweets discussed matters that fall within the core of protected First

12 Amendment activity including politics, religion, and issues of social relations.”);

13 see also Anthoine v. N. Central Counties Consortium, 605 F.3d 740, 748 (9th Cir.

14 2010) (noting the public concern inquiry is a question of law).

15 On the other hand, Plaintiff’s alleged speech in referring to Governor Inslee

16 as “Governor Short Bus,” frequently using the term “short bus” when discussing

17 special needs students, asking a Black student whether he felt he had been treated

18 differently than “normal students” and referring to students in derogatory terms,

19 including “Tide Pod Challenge Kids” and “Snowflakes” was speech made pursuant

20 to his official duties and therefore, not constitutionally protected speech.

21 (ii) Adverse Employment Action

22 It is undisputed that because of the Facebook post, Mr. Small and CVSD

23 placed Plaintiff on paid administrative leave and initiated an internal investigation.

24 In Dahlia, the Ninth Circuit recognized that placing an employee on administrative

25

26 4 Because the Court must consider the merits of Plaintiff’s constitutional claim in

27 light of his request for injunctive relief, the Court will determine first whether

28 Plaintiff’s First Amendment rights were violated.

1 leave may constitute an adverse employment action if such action was “reasonably

2 likely to deter” the employee form engaging in constitutionally protected speech.

3 735 F.3d at 1079. In Dahlia, the Circuit suggested that the inability to take a

4 promotional exam, loss of pay, and opportunities for investigative experience, as

5 well as the general stigma resulting from placement on administrative leave”

6 would appear “reasonably likely to deter employees from engaging in protected

7 activity.” Id.

8 In this case, Plaintiff asserts that being placed on administrative leave barred

9 him from contacting any fellow coworkers, District employees, parents or students

10 and prohibited him from entering School District properly. There was also a

11 general disgrace associated with being placed on leave. Moreover, Plaintiff was

12 removed from the School District’s Administrator’s email list.

13 A reasonable jury could find that placing Plaintiff on administrative leave

14 and initiating an investigation because of his Facebook post could constitute an

15 adverse employment action. Thus, Plaintiff has met its burden regarding the second

16 prong of his prima facie case.

17 (iii) Substantial or Motivating Factor

18 To show retaliation for the speech was a substantial or motivating fact

19 behind an adverse employment action, a plaintiff can (1) introduce evidence that

20 the speech and adverse action was proximate in time, such that a jury could infer

21 that the action took place in retaliation for the speech; (2) introduce evidence that

22 the employer expressed opposition to the speech; or (3) introduce evidence that the

23 proffered explanations for adverse action were false and pretextual. Anthoine, 605

24 F.3d at 750. This step is purely a question of fact. Id.

25 A reasonable jury could find that Plaintiff was transferred from an

26 administrative position to a teaching position because of his Facebook post. The

27 record is undisputed that he was transferred in part because of his use of the terms

28 “Demtard” his use of profanity, and the potential racial overtones in the Facebook

1 post. Because the entire post is protected speech, this is sufficient to meet the third

2 prong of Plaintiff’s prima facie case.

3 Burden Shifting

4 Because Plaintiff has met his burden of establishing a prima facie case, the

5 burden then shifts to Defendants to show its interest in providing a safe and

6 inclusive educational environment outweighs Plaintiff’s First Amendment rights or

7 that it would have made the same decision absent the protected speech.

8 (iv) Justification for Adverse Employment Action

9 CVSD asserts it has a legitimate interest in protecting the learning

10 environment at CVSD and ensuring its administrators foster a safe and inclusive

11 educational environment. It argues that Plaintiff’s use of belittling and insulting

12 language undermines the school’s commitment to a safe and supportive learning

13 environment. It provided evidence from its focus groups to support its assertions

14 that Plaintiff’s statements were viewed as insensitive and detrimental to the

15 relationship between staff, students, and the community.

16 In weighing Plaintiff’s First Amendment rights against CVSD’s interest in

17 protecting the learning environment at CVSD, the Court applies a sliding scale in

18 which CVSD’s burden in justifying the transfer depends on the nature of Plaintiff’s

19 speech. Moser, 984 F.3d at 906.

20 Here, in applying the sliding scale, the use of the term “demtard” and other

21 profanities outweighs CVSD interests justifying Plaintiff’s transfer and less in

22 favor of Plaintiff’s interest in using derogatory terms on Facebook. It provided

23 evidence that supported its concern for disruption and did not rely on mere

24 speculation. Thus, CVSD has met its burden of showing that its legitimate interest

25 in fostering a safe and inclusive educational environment outweighs Plaintiff’s

26 First Amendment interest in using the term “demtard” and other derogatory terms

27 in his Facebook post.

28 As such, Plaintiff cannot show that Defendants violated his First

1 Amendment rights.

2 (v) Same Action Absent Protected Speech

3 CVSD has met its burden of showing that it would have taken the same

4 action absent Plaintiff’s Facebook speech. “A plaintiff cannot establish

5 unconstitutional retaliation ‘if the same decision would have been reached’ absent

6 the protected conduct, even if ‘protected conduct played a part, substantial or

7 otherwise’ in motivating the [school district’s] action.” Riley’s, 32 F.4th at 721.

8 Here, the record is undisputed that CVSD transferred Plaintiff because of

9 Plaintiff’s use of derogatory terms in his Facebook post, his alleged derogatory

10 statements made during the course of his employment, his alleged obstructive

11 behavior and perceived dishonesty during the investigation, and his unwillingness

12 to appreciate the negative connotations of the words he used. Notably, the majority

13 of Plaintiff’s speech that was the cause of concern for CVSD was not

14 constitutionally protected speech. No reasonable fact finder could find that CVSD

15 transferred Plaintiff because he was critical of the Democratic Convention or the

16 Democratic Party.

17 No reasonable fact finder could find that Defendants’ reasons for

18 transferring him are pretext for violating Plaintiff’s First Amendment rights. See

19 Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 752 (9th Cir. 2001)

20 (finding the plaintiff’s failure to produce any evidence that the employer expressed

21 opposition to their speech, or that the proffered reasons for the reassignment were

22 false or pretextual, failed to create a genuine issue of material fact on whether the

23 adverse employment action was motivated by the plaintiff’s speech).

24 As such, Plaintiff cannot show that Defendants violated his First

25 Amendment rights.

26 Qualified Immunity

27 A Government official is entitled to qualified immunity from a claim for

28 damages unless the plaintiff raises a genuine issue of fact showing (1) “a violation

1 of a constitutional right,” and (2) that the right was “clearly established at the time

2 of [the] defendant’s alleged misconduct.” Ballentine v. Tucker, 28 F.4th 54, 61 (9th

3 Cir. 2022) (quotation omitted). The Court may analyze these elements in any order.

4 Id.

5 “A Government official’s conduct violates clearly established law when, at

6 the time of the challenged conduct, ‘the contours of a right are sufficiently clear’

7 that every ‘reasonable official would have understood that what he is doing

8 violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). It is not

9 necessary that a case is directly on point, instead existing precedent must have

10 placed the statutory and constitutional question beyond debate. Id.

11 The Supreme Court has repeatedly instructed that courts must not define

12 clearly established law at a high level of generality. Ballentine, 28 F.4th at 64

13 (quotation omitted). “The right allegedly violated must be established, not as a

14 broad general proposition, but in a particularized sense so that the contours of the

15 right are clear to a reasonable official.” Reichle v. Howards, 566 U.S. 658, 665

16 (2012) (quotations omitted); see also Riley’s, 32 F.4th at 729 (“The right to be free

17 from First Amendment retaliation cannot be framed as ‘the general right to be free

18 from retaliation for one's speech.’ Rather, the right must be defined at a more

19 specific level tied to the factual and legal context of a given case.”)

20 As the Ninth Circuit observed, “[t]here will rarely be a case that clearly

21 establishes that the plaintiff is entitled to prevail under the fact-sensitive, context-

22 specific balancing required by Pickering.” Riley’s, 32 F.4th at 729.

23 Here, the individual Defendants are entitled to qualified immunity because it

24 was not clearly established that transferring an assistant principal to a teaching

25 position after an investigation revealed the assistant principle used derogatory

26 language in a Facebook post, as well as during the course of his employment as a

27 school administrator, where school officials believed the assistant principal lied

28 during the investigation, could violate the assistant principal’s First Amendment

1 rights.

2 More specifically, the Court finds it was not clearly established that placing

3 an employee on administrative leave in response to a Facebook post that contained

4 derogatory language embedded within a political post would constitute an adverse

5 employment action for First Amendment purposes. As Dahlia and subsequent case

6 law indicates this is a factually intensive inquiry and Mr. Small was not put on

7 notice that placing Plaintiff on paid administrative leave based on the facts known

8 to him at the time would constitute an adverse employment action. Thus, Mr.

9 Small is entitled to qualified immunity with respect to his decision to place

10 Plaintiff on administrative leave.

11 Similarly, it was not clearly established that conducting an investigation

12 after other employees complained about a Facebook post that contained derogatory

13 language would constitute an adverse employment action for First Amendment

14 purposes. Mr. Small is entitled to qualified immunity with respect to his decision to

15 initiate an investigation.

16 Conclusion

17 Summary judgment in favor of Defendants is appropriate because Plaintiff

18 has not shown his First Amendment rights were violated when CVSD transferred

19 him from being an assistant principal to being a certified teacher. Additionally, the

20 individual Defendants are entitled to qualified immunity because it was not clearly

21 established under the facts of this case that transferring Plaintiff to a teaching

22 position could violate his First Amendment rights.

23 Accordingly, IT IS HEREBY ORDERED:

24 1. Defendants’ Motion for Summary Judgment, ECF No. 71, is

25 GRANTED.

26 2. Plaintiff’s Motion for Summary Judgment, ECF No. 76, is DENIED.

27 3. Plaintiff’s Motion to Supplement the Summary Judgment Record,

28 ECF No. 99 and Motion to Expedite, ECF No. 103, are DENIED, as moot.

1 4. All pending motions are terminated.

5. The Clerk of Court is directed to enter judgment in favor of

3|| Defendants and against Plaintiff.

IT IS SO ORDERED. The Clerk of Court is directed to enter this Order,

5|| forward copies to counsel, and close the file.

DATED this 15th day of August 2024.

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11 Su £ 7 C iin

12 Stanley A. Bastian

13 Chief United States District Judge

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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY