Samuelson, Gregory v. LaPorte Community Sc

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-4351

GREGORY G. SAMUELSON,

Plaintiff-Appellant,

v.

LAPORTE COMMUNITY SCHOOL

CORPORATION, KENNETH BLAD,

individually and in his official

capacity as superintendent of

schools, MITCH FEIKES, individually

and in his official capacity as

Trustee, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 05 C 99—Robert L. Miller, Jr., Chief Judge.

____________

ARGUED DECEMBER 6, 2007—DECIDED MAY 22, 2008

____________

Before EASTERBROOK, Chief Judge, and CUDAHY and

RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge. Gregory Samuelson brought this

action under 42 U.S.C. § 1983 in the district court against

LaPorte Community School Corporation (“LSC”). His

2 No. 06-4351

complaint alleged violations of the First and Fourteenth

Amendments and the Indiana Constitution.1 After dis-

covery, Mr. Samuelson and LSC filed cross-motions for

summary judgment. Mr. Samuelson’s response to LSC’s

motion abandoned his claims under the Fourteenth

Amendment and the Indiana Constitution. The district

court granted summary judgment on Mr. Samuelson’s

remaining First Amendment claims. Mr. Samuelson

timely appealed.2 For the reasons stated in this opinion,

we affirm the judgment of the district court.

I

BACKGROUND

Mr. Samuelson became a teacher at LSC in 1992. Over

the years, Mr. Samuelson also had other duties collateral

to his instructional obligations. These duties included

service on a technology committee that provided infor-

mation and recommendations to the Superintendent and

School Board, service as the union representative on a

hiring committee that recommended candidates for a

principal’s position, and coaching at both the middle

school and high school levels. At least some of these

coaching positions were undertaken on the basis of a

separate contractual arrangement with LSC. In 2003, the

Board declined to renew Mr. Samuelson’s contract as

coach of the high school girls’ varsity basketball team.

That decision did not affect Mr. Samuelson’s contract as

a teacher.

1

The district court had jurisdiction over these claims under

28 U.S.C. §§ 1331 and 1367.

2

We have jurisdiction over this appeal under 28 U.S.C. § 1291.

No. 06-4351 3

A.

LSC has a chain-of-command policy. That policy is

embodied in LSC’s guidelines and bylaws. Guideline 1110,

which is entitled “Line and Staff Relations,” states:

All staff members shall be responsible to the Board

through the Superintendent. Each shall refer matters

requiring administrative action to the person in charge

of the department, who shall refer such matters to

the next higher authority, when necessary.

Each staff member is to keep the person s/he is imme-

diately responsible to informed of his/her activities

by whatever means the supervisor deems appropriate.

All staff members have the right to appeal any decision

made by an administrative officer, through approved

procedures as defined by contract, agreements, poli-

cies, administrative guidelines, or by State law.

R.59.

Guideline 1110A, “Definition of Management Team,”

states in part:

The ultimate decision concerning policy in the School

Corporation resides by law with the Board of School

Trustees under the leadership of the Superintendent

of Schools. The management team concept, or shared

decision making, is the process by which a recom-

mendation for Board of School Trustees action is

developed and the decision implemented.

The management team represents a means of establish-

ing orderly lines of organization and communication as

management personnel unite with the Board of Trust-

ees to promote an effective educational program for

the students and the community. It is more than an

4 No. 06-4351

organizational system since it does establish a climate

in which team members are able to experience a

feeling of mutual trust, support and a sense of pro-

fessional dignity.

R.74, Ex. F.

The Guidelines are supplemented by Bylaw 3310,

entitled “Freedom of Speech in Noninstructional Settings,”

which states:

The School Board acknowledges the right of its profes-

sional staff members, as citizens in a democratic

society, to speak out on issues of public concern. When

those issues are related to the Corporation, however,

the professional staff member’s expression must be

balanced against the interests of this Corporation.

In situations in which the professional staff member

is not engaged in the performance of professional

duties s/he should state clearly that his/her expres-

sion represents personal views and not necessarily

those of the School Corporation.

R.74, Ex. G.

The record reveals that Mr. Samuelson expressed

publically his view on issues related to LSC. In some

instances, he addressed his opinions directly to the Board,

to individual Board members or to other community

members without first addressing those concerns to his

supervisor. More precisely, he engaged in four instances

of expression that, he contends, motivated the Board to

decline to renew his contract as head coach of the girls’

varsity basketball team.

First, Mr. Samuelson spoke to the Board about LSC’s

treatment of the girls’ sports programs as compared to the

No. 06-4351 5

boys’ programs. R.39 at 71-80. Beginning in 1993,

Mr. Samuelson spoke with individual Board members,

LSC’s athletic directors, parents and members of the

community about disparities he perceived in the treat-

ment of girls’ sports programs. He also objected to the

pay of coaches involved in those programs as compared

to similar boys’ teams. In the same vein, he provided

an athletic club at LSC with information that he had

obtained from a conference and that may have en-

couraged the club’s subsequent Title IX complaint against

LSC in 1995. In 2003, Mr. Samuelson wrote an e-mail to

Superintendent Blad requesting information on how to

file a Title IX suit against LSC.

Second, in 2000, Mr. Samuelson voiced his disapproval

about the LSC’s selection and hiring of a middle school

principal. R.39. Mr. Samuelson had been appointed to

the hiring committee by the teachers’ union. The com-

mittee recommended that the Board hire Gwen Taylor,

but Mr. Samuelson opposed the recommendation. The

Board called a special meeting to hear the majority and

minority opinions of the committee; at that meeting,

he discussed with the Board his reasons against hiring

Taylor. He also received phone calls from individual

Board members at this time about his opinion and spoke

with them about his conclusions.

Third, in the spring of 2002, Mr. Samuelson spoke to

Board members about proposed technology changes in

the school’s computer platform. At the time, he was a

serving as a member of the middle school technology

committee. He discussed his opposition to the com-

mittee’s proposal with individual Board members.

Fourth, in 2003, Mr. Samuelson spoke with a Board

member, Ruth Minich, about his objections to a proposed

school redistricting plan.

6 No. 06-4351

B.

In 1999, Mr. Samuelson became head coach of LSC’s high

school girls’ basketball team. The team won a Class 4-A

sectional championship in 2000, but it faced internal

troubles. The season after winning that championship,

twenty-eight girls from the basketball program signed a

petition requesting that the Board not renew Mr.

Samuelson’s coaching contract. A second petition con-

taining similar demands was signed by more than 70

representatives of LSC families. Mr. Samuleson refused

to resign as coach, and the Board renewed his contract.

There were other problems as well. After a game in

January 2003, the middle school girls’ basketball coach

engaged Mr. Samuelson in a physical altercation: He

walked up to Mr. Samuelson and forcibly attempted to

drag him off the court and outside of the arena. LSC’s

athletic director intervened and separated the two men.

The day after the incident, every member of the girls’

varsity team signed a petition refusing to play under

Mr. Samuelson, although they in fact continued to compete.

The physical altercation also affected Mr. Samuelson; three

weeks later, he was ordered by his physician not to coach

because of the stress the incident had caused him.

Early in February 2003, Superintendent Blad asked

Athletic Director Gilliland and Principal Handel to pro-

vide him with recommendations about the girls’ basket-

ball program under Mr. Samuelson. Both men recom-

mended that the Board not renew Mr. Samuelson’s con-

tract or the contracts of the assistant coaches. Di-

rector Gilliland’s evaluation criticized Mr. Samuelson’s

coaching technique and work ethic. The recommendations

primarily focused on (1) the unrest among players,

parents and coaches, (2) Mr. Samuelson’s poor fund-

No. 06-4351 7

raising and unauthorized spending of team funds and

(3) his coaching ability.

Superintendent Blad submitted Principal Handel’s and

Director Gilliland’s recommendations to the Board. He

also personally recommended that the Board terminate

Mr. Samuelson’s contract. His memorandum to the Board

stated in part that the girls’ basketball program was “totally

dysfunctional.” R.74, Ex. H. It described the “constant

series of complaints from players and their parents about

Mr. Samuelson” regarding his treatment of players, his lack

of organizational skills and his inability to work coopera-

tively with his assistant coaches. Id. It further stated that

Mr. Samuelson “never follows the appropriate chain-of-

command and frequently gets himself in trouble by doing

things that are outside of the responsibilities of his position

(i.e. Purchasing new team uniforms without the permission

of the Athletic Director or Principal and without the money

to do so.).” Id.

Mr. Samuelson declined an invitation to submit a self-

evaluation to the Board for consideration along with the

other recommendations. On February 14, he e-mailed

Superintendent Blad and Assistant Superintendent

Adams and asked them about the proper method by

which to file a Title IX suit. He also inquired about the

remedies available to him if LSC retaliated against him

in response to his past and present Title IX complaints.

On February 17, Superintendent Blad composed and

transmitted a memorandum to Mr. Samuelson that de-

scribed his concerns with Mr. Samuelson’s conduct as an

employee of LSC. He cited Mr. Samuelson’s speaking to

newspapers, Board members and private citizens about

“harassment” without following the harassment policy

procedures. R.60. He also mentioned Mr. Samuelson’s

8 No. 06-4351

outspoken opposition to the proposed computer plat-

form changes and Mr. Samuelson’s failure to first ad-

dress those concerns to the appropriate staff member. Id.

Additionally, his memorandum focused on his concerns

about Mr. Samuelson’s poor fundraising and excessive

spending, his negative relationship with parents, and his

failure to follow the chain-of-command policy, “specifi-

cally, by calling, visiting, and working behind the scenes

to influence Board member decisions without first dis-

cussing perceived problems with [his] immediate super-

visors” as required by Guideline 1110. R.60 at 1. Superin-

tendent Blad ordered Mr. Samuelson to “comply with

the following directives”:

You will follow the chain-of-command that is out-

line [sic] in Board policy. That means that should you

take issue with an administrative directive or experi-

ence a problem, you will discuss the problem with your

Department Chair, Principal, Personnel Director

and/or Superintendent. If you are still unsatisfied

by the decision, the Superintendent will contact the

Board and establish a meeting at which time all

Board members can hear and decide your complaint.

You will not directly contact Board members with-

out first following the chain-of-command!

R.60 at 2 (emphasis in original). He concluded by

stating that Mr. Samuelson would be disciplined and

possibly terminated if he failed to comply with the direc-

tives. Id.

On February 18, 2003, the Board voted unanimously

not to renew Mr. Samuelson’s coaching contract. One

Board member, Minich, abstained from the vote. Minich

later told Mr. Samuelson that she believed that the motiva-

No. 06-4351 9

tion for his termination came in part from his opposition

to the hiring of Taylor as principal, which he had related

to the Board in 2000. R.39 at 43-46.

C.

On February 17, 2005, Mr. Samuelson filed this sec-

tion 1983 action against LSC. He alleged four causes of

action: that LSC’s chain-of-command policy violated his

First Amendment rights as an unconstitutional prior

restraint; that his coaching contract had not been renewed

in retaliation for his speaking out on matters of public

importance concerning LSC, also in violation of the

First Amendment; that LSC’s actions deprived him of

due process and the privileges and immunities guaran-

teed to him by the Fourteenth Amendment; and that

LSC’s actions had violated his rights under the Indiana

Constitution.

Mr. Samuelson moved for partial summary judgment;

LSC moved for summary judgment on all claims. In

response to LSC’s motion, Mr. Samuelson defended

only his First Amendment claims. Consequently, the

district court determined that Mr. Samuelson had aban-

doned his claims under the Fourteenth Amendment and

the Indiana Constitution by failing to defend them.

With respect to the First Amendment claims, the

court granted summary judgment to LSC. It held that

Guideline 1110 was not an unconstitutional prior re-

straint. It further determined that LSC had not retaliated

against Mr. Samuelson’s exercise of a First Amendment

right because, even if some of Mr. Samuelson’s speech

was protected by the First Amendment and even if LSC

10 No. 06-4351

had been motivated partially by Mr. Samuelson’s pro-

tected speech, Mr. Samuelson had not shown that LSC’s

stated reasons for the non-renewal were pretextual.

II

DISCUSSION

The general principles that guide our review of a

case coming to us on summary judgment are well-estab-

lished. We review de novo a district court’s decision on a

motion for summary judgment. Cherry v. Auburn Gear, Inc.,

441 F.3d 476, 481 (7th Cir. 2006). On cross-motions for

summary judgment, the court construes facts and draws

inferences “in favor of the party against whom the motion

under consideration is made.” In re United Air Lines, Inc.,

453 F.3d 463, 468 (7th Cir. 2006) (citation omitted). Sum-

mary judgment is appropriate if “the pleadings, deposi-

tions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”

Id. (quoting Fed. R. Civ. P. 56(c)). We may affirm sum-

mary judgment on any ground for which there is sup-

port in the record. Hill v. Am. Gen. Fin., Inc., 218 F.3d 639,

642 (7th Cir. 2000).

A.

We first consider whether LSC’s chain-of-command

policy, Guideline 1110, constitutes a prior restraint. As

we noted earlier, this guideline requires staff members

to “refer matters requiring administrative action to the

person in charge of the department, who shall refer such

No. 06-4351 11

matters to the next higher authority, when necessary.”

R.59.

The term “prior restraint” is used to describe “adminis-

trative and judicial orders forbidding certain communica-

tions when issued in advance of the time that such com-

munications are to occur.” Alexander v. United States,

509 U.S. 544, 550 (1993) (quoting Melville Nimmer, Nimmer

on Freedom of Speech, § 4.03, p. 4-14 (1984) (emphasis

added)). A restriction is a prior restraint if it meets four

elements: (1) the speaker must apply to the decision

maker before engaging in the proposed communication;

(2) the decision maker is empowered to determine

whether the applicant should be granted permission on

the basis of its review of the content of the communication;

(3) approval of the application requires the decision

maker’s affirmative action; and (4) approval is not a

matter of routine, but involves “appraisal of facts, the

exercise of judgment, and the formation of an opinion”

by the decision maker. See SE. Promotions, Ltd. v. Conrad,

420 U.S. 546, 554 (1975); see also Thomas v. Chicago Park

Dist., 534 U.S. 316, 321 (2002); Cantwell v. Connecticut,

310 U.S. 296, 305 (1940). However, before applying this

test to LSC’s guideline, we first must determine whether

that policy applies to speech that is protected by the

First Amendment. See United States v. Nat’l Treasury

Employees Union, 513 U.S. 454, 465-66 (1995) (“NTEU”);

Crue v. Aiken, 370 F.3d 668, 678 (7th Cir. 2005). For the

restriction to qualify as a prior restraint, the employee

must have an interest in the speech as a citizen comment-

ing upon a matter of public concern. See NTEU, 513 U.S. at

465-66; Crue, 370 F.3d at 678. “[W]hen public employees

make statements pursuant to their official duties, the

employees are not speaking as citizens for First Amend-

12 No. 06-4351

ment purposes.” Garcetti v. Ceballos, 547 U.S. 410, 421

(2006).

LSC’s chain-of-command policy, when fairly read in

its totality, does not constitute a prior restraint because

it does not restrict any speech protected by the First

Amendment. LSC Guideline 1110 requires staff mem-

bers to follow the chain of command only on matters

“requiring administrative attention,” R.59, that is, issues

that their job responsibilities require them to report to a

supervisor. See Garcetti, 547 U.S. at 421, 424. The speech

addressed by LSC’s chain-of-command policy is

speech grounded in the public employee’s professional

duties and therefore is not protected by the First Amend-

ment. See id. at 421-22.

Our understanding of the scope of Guideline 1110

finds support in the language of Guideline 1110A,

which establishes that the process for decision making at

LSC is one that utilizes a linear chain of command that

culminates with the Board. Guideline 1110A “establish[es]

orderly lines of organization and communication” for “the

process by which a recommendation for Board of School

Trustees action is developed and the decision imple-

mented.” R.74, Ex. F. Guideline 1110 requires employees

to use those “lines of organization,” id., by first discussing a

matter “requiring administrative action,” R.59, with a

direct supervisor rather than someone further along the

line.

This interpretation of LSC’s chain-of-command policy

also finds support in the bylaws, including Bylaw 3310,

which explicitly acknowledges that staff members may

“speak out on issues of public concern” whenever they

are speaking as citizens. R.74, Ex. G. The bylaws

simply require that, when speaking out about a matter

No. 06-4351 13

of public concern not within the professional cognizance

of the staff member, the staff member must ensure that

he conveys that he is speaking as a citizen and not on

behalf of LSC. This requirement hardly limits a staff

member’s right to speak in public about issues related

to LSC. It ensures that, when a staff member does speak

about a matter of public interest on which he has no

professional responsibility, his views are not attributed

to the LSC. When Bylaw 3310 is read in conjunction

with Guidelines 1110 and 1110A, it is clear that LSC seeks

to restrain only expression related to a staff member’s

professional responsibilities to the school corporation. The

guidelines merely establish a chain of command in order

to maintain efficient resolution of issues that an em-

ployee’s duties require him to address in the course of

his employment. Such expression, the Supreme Court

has made clear, is not protected by the First Amendment.

See Garcetti, 547 U.S. at 421-22. Consequently, restriction

of that expression cannot constitute a prior restraint. See

NTEU, 513 U.S. at 465-66; Crue, 370 F.3d at 678. The dis-

trict court properly granted summary judgment for LSC

on this claim.

B.

We next consider Mr. Samuelson’s allegation that LSC

retaliated against him for engaging in speech protected

by the First Amendment. We apply a three-step analysis

in evaluating a First Amendment retaliation claim.

Vukadinovich v. Bd. of Sch. Trs., 278 F.3d 693, 699 (7th Cir.

2002). We first determine whether the employee’s

speech was constitutionally protected. Id. If it was, we

determine whether the protected speech was a mo-

tivating factor for the employer’s action. Id. If the em-

14 No. 06-4351

ployee can show that his constitutionally protected

speech was a substantial or motivating factor in his termi-

nation, we examine whether the employer can show that

it would have taken the same action in the absence of

his exercise of his rights under the First Amendment. Id.

Mr. Samuelson relies on four instances of expressive

activity to support his claim that the Board retaliated

against him in violation of his rights under the First

Amendment: his statements regarding Title IX and the

treatment of the girls’ programs, his comments re-

garding LSC’s hiring policies, his statements regarding

technology changes at LSC and his discussion with a

Board member regarding a possible school redistricting.

Even assuming, arguendo, that these instances were not a

product of his employment duties, and thus were pro-

tected by the First Amendment, Mr. Samuelson has

failed to show that his nonrenewal as coach was motivated

by any of these instances. See Mullin v. Gettinger, 450

F.3d 280, 284 (7th Cir. 2006).

Mr. Samuelson has the burden to establish, by a prepon-

derance of the evidence, that protected First Amendment

activity was a motivating factor in the nonrenewal of his

coaching contract. Spiegla v. Hull, 371 F.3d 928, 942 (7th Cir.

2004), cert. denied, 128 S. Ct. 441 (2007). “A motivating

factor does not amount to a but-for factor or to the only

factor, but is rather a factor that motivated the defendant’s

actions.” Mullin, 450 F.3d at 284 (internal quotation

marks omitted). Mr. Samuelson can meet this burden by

“showing that the protected speech caused, or at least

played a substantial part in, the employer’s decision to

take adverse employment action against” him. Id. Once

the plaintiff has established that protected expression

was a motivating factor, the burden shifts to the defendant

No. 06-4351 15

to prove, by a preponderance of the evidence, that the

same actions would have occurred in the absence of the

protected speech. Id. at 285-86.

Mr. Samuelson relies on the timing of the nonrenewal

of his coaching contract to demonstrate that the Board’s

action was motivated by his speech.3 He notes that he

was removed as coach two days after he asked Super-

intendent Blad in an e-mail about the proper procedure

for filing a Title IX complaint and one day after Super-

intendent Blad ordered him not to speak to Board mem-

bers without following the chain of command. “A plain-

tiff may demonstrate improper motive with evidence

that an adverse employment action took place on the

heels of protected activity.” Id. at 285 (internal quotation

marks omitted). That period begins when the defendant

learned of the protected speech. Id.

Mr. Samuelson has put forward no evidence that the

Board ever saw or considered his e-mail exchange

with Superintendent Blad. Although Mr. Samuelson’s

coaching contract was not renewed just days after that

e-mail exchange, there is no evidence of a connection

between his speech and the alleged retaliation that

makes the timing significant. Id. (“[T]he fact that a plain-

tiff’s protected speech may precede an adverse employ-

3

We note for the sake of completeness that Mr. Samuelson

cannot rely on the Superintendent’s unhappiness with his

failure to follow the guidelines with respect to speech that

was a product of Mr. Samuelson’s employment. As we al-

ready have noted, LSC’s chain-of-command policy did not

constitute a prior restraint; the Superintendent did not vio-

late Mr. Samuelson’s First Amendment rights merely by re-

quiring him to comply with that policy.

16 No. 06-4351

ment decision alone does not establish causation.”). His

motivation evidence is therefore insufficient. See id.

Mr. Samuelson also has put forward no evidence that

the Board was motivated to retaliate against him by the

other incidences of speech upon which he relies. He has

not shown that the Board considered any of those inci-

dents. Moreover, standing alone, the timing of Mr.

Samuelson’s expressions regarding the technology

changes and Taylor’s hiring also cannot suffice to demon-

strate that the Board was motivated by those incidents

because they occurred more than a year before the Board’s

decision. See id. (holding that a one-year gap was too

attenuated to provide evidence that an employee’s

speech was a motivating factor). With respect to his

comments on redistricting, only one Board member

was aware of his position on that subject, and she ab-

stained from the vote.

Stated simply, the record supports firmly the con-

clusion that Mr. Samuelson’s contract as coach was not

renewed because of the troubled state of the girls’ basket-

ball program. Every Board member who voted on

Mr. Samuelson’s coaching contract testified that he or

she had no knowledge of Mr. Samuelson’s position on

any of the matters about which he claims to have spoken

publically. Furthermore, the members stated that the

sole basis for the Board’s vote was the troubled state of

the girls’ basketball program and that the Board did not

discuss or consider Mr. Samuelson’s opinions on any

other issue. Mr. Samuelson has put forward no evidence

contesting these statements or demonstrating that any

of the voting Board members even knew that he had

spoken out about any possibly protected issues.

In short, Mr. Samuelson has failed to establish that the

instances that he claims are protected expression played

No. 06-4351 17

a role in the decision of the Board. Consequently, the

district court properly granted summary judgment to

LSC on Mr. Samuelson’s First Amendment retaliation

claims.

Conclusion

Accordingly, we affirm the judgment of the district court.

AFFIRMED

USCA-02-C-0072—5-22-08