Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-00384-JLK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-0384-JLK-CBS STEVEN H. GLAESER, Plaintiff, v. ACADEMY SCHOOL DISTRICT 20, KATHLEEN CRUME, HEIDI V. PACE, SIERRA MARCELLA PETERS, CAROL PETERS, JEFF PETERS, and JANE DOES 1-10 and JOHN DOES 1-5, Defendants.

DEFENDANTS SIERRA, CAROL & JEFF PETERS' REPLY IN SUPPORT OF MOTION TO DISMISS, OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Defendants, Sierra Marcella Peters, Carol Peters & Jeff Peters, by and through their attorneys, CROSS & BENNETT, L.L.C., file the following Reply in Support of their Motion to Dismiss, or, in the alternative, for Summary Judgment: MOTION TO DISMISS CIVIL RIGHTS CLAIM In his response, plaintiff cites this Court's May 7, 2001 and June 4, 2001 orders for the proposition that the court has already determined that plaintiff has "stated constitutional claims upon which relief could be granted." In fact, that is not at all what the court said in either order. In its May 7th order, the court specifically addressed the very issue raised by these defendants in the Motion to Dismiss, i.e., the question whether Sierra Peters and her parents acted under color of state law. The court said, on page 2 of its order, that "[w]hile I agree with the Peters that Glaeser's conspiracy allegations fall short of imbuing their actions with the imprimatur of the state as required to impose § 1983 liability on private

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individuals, I have serious doubts that Glaeser has alleged the deprivation of a constitutional right in the first instance, against any of the named defendants." The court then denied the Motion to Dismiss without prejudice to it being reasserted or filed as a motion for summary judgment. In its discussion, on pages 5 and 6 of the order, the court states that the Peters' liability is "contingent on the assertion of a viable constitutional deprivation in the first instance," and that the Motion to Dismiss is denied "without prejudice to its being reasserted if, and when, it is determined that Glaeser has stated a viable constitutional deprivation in the first instance." The court then went on to explain "the weaknesses of Glaeser's federal claim against the Peters." even assuming the truth of his allegations. At that time, the court appears to have recognized that the allegations against the Peters did not support an inference that they were "state actors" for purposes of imposing § 1983 liability against them. This should have warranted the dismissal of the § 1983 claim against the Peters, since, if they are not "state actors," they cannot be held liable under the civil rights statute. Plaintiff's claim that the court's June 4, 2001 order found that he had stated a claim for constitutional deprivations is not correct. The court merely stated that his response to the May 7, 2001 order to show cause was "adequate, under an exceedingly liberal standard, to discharge the Order to Show Cause." The court went on to state that arguments raised by defendants in their replies "appear largely meritorious and [I] expect Plaintiff will have difficulty establishing the factual and legal predicates necessary for the constitutional and common law claims asserted against the State Defendants generally, and, derivatively, against the Peters." -2-

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As predicted by the court, plaintiff has not established the requisite predicates for bringing a civil rights claim against the Peters. All Sierra Peters did was complain to school officials about the plaintiff's conduct in and out of class. Making such a complaint does not make a student an employee, agent or arm of the school district. Sierra Peters and her parents were at all times private individuals. Surely, a freshman in high school does not become an arm of the school district and subject to federal civil rights statutes merely by complaining to the school district about a teacher's conduct. Plaintiff's reliance on Adickes v. S.H. Kress & Co.398 U.S. 144, 90 S. Ct. 1598 (1970), is misplaced. In that case, it was alleged that a white school teacher was refused service in a Hattiesburg, Mississippi restaurant and arrested for vagrancy because she was in the company of six African-American students. The plaintiff claimed that there was a local custom among Hattiesburg's restaurant owners to segregate the races in public eating establishments, and that this "local custom" was enforced by the state, i.e., by Hattiesburg police officials, acting in concert with the restaurant owners. In order for the present case to be controlled by Adickes, the plaintiff would have to show that the students had a custom of discriminating against teachers based on racial differences, and that the school district knowingly enforced the custom by suspending or firing such teachers in furtherance of an explicit understanding or agreement with the students. Here, there is a single incident of a group of students complaining to the school district about the in-class conduct of a teacher. There is no evidence that any

constitutional rights are at stake and no evidence of a conspiracy. The mere filing of such a complaint cannot possibly constitute "state action" so as to subject the student and her -3-

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parents to civil rights liability, and there is certainly no case law that supports such a contention. Moreover, plaintiff has not set forth a single fact in support of his bizarre contention that Sierra Peters fabricated her allegations and that the school district, knowing the allegations were fabricated, reprimanded him and transferred him to another position. MOTION TO DISMISS DEFAMATION CLAIM Plaintiff claims on page 10 of his Response that on April 16, 1999 Sierra Peters made a written statement to school district officials. This is not correct. The typed statement plaintiff is referring to, Exhibit A to defendant's Motion to Dismiss, was created by a school district official and was a summary of Sierra's verbal statement. This is plainly stated in numbered paragraph 1 on page 14 of defendant's Motion to Dismiss. That having been said, Sierra does not dispute that the summary is generally accurate. In his Response, plaintiff contends that some of Sierra's statements were false and that others were "out of context." For instance, he claims that Sierra's statement that in the fall semester Mr. Glaeser read a poem to "the class" about underwear was false because Sierra implied that the statement was read to "her class" when, in fact, she was not in his class in the fall semester. This is absurd. "The class" does not necessarily mean "my class" and, even if it did, so what? Mr. Glaeser has admitted reading the poem to his class even though he did not obtain approval from the district to do so. More importantly, it is not defamatory to allege that a teacher read a controversial poem to his class and certainly Sierra had a right to talk about it to whomever she desired and to express her opinion as to the poem's appropriateness. Similarly, plaintiff alleges that Sierra's statement about the list of "cannibal jokes" was defamatory. However, all Sierra said was that Mr. Glaeser's student aide gave the -4-

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jokes to another girl, Kayla Snoddy, and that she thought the jokes were "dirty." Perhaps the inference was that the student aide got the cannibal jokes from Mr. Glaeser. Surely, though, if a student thinks that a teacher is giving out a list of dirty jokes to a student she has a right to inform the authorities of that without fear of being sued for defamation. That is why the courts have established the "common-interest privilege," discussed in detail beginning on page 11 of defendants' Motion to Dismiss. Plaintiff also disputes Sierra's statement that Mr. Glaeser told the class that he "buys his underwear at Victoria's Secret," contending instead that the issue was brought up not by him but by a student, Brandon Jenkins. Regardless of who brought it up, though, it is undisputed that such a discussion took place. In deposition, Mr. Glaeser admitted that the student asked him if he bought his underwear at Victoria's Secret and that he replied that "I buy it, my wife wears it, now get back to work." [Deposition of Steven Glaeser, p. 96, ll. 8-15]. Why would Mr. Glaeser think that it is appropriate for a teacher to tell 15-year old students that he buys underwear for his wife at Victoria's Secret, or that it is defamatory for a student to pass that information on to school authorities? The Response claims that Sierra's statement does not qualify her comments with the phrase "in my opinion." Once again, however, the statement was not written by Sierra. It is a school official's summary of her statement. Moreover, the inclusion or non-inclusion of the phrase does not change the "gist" of the statement. Some of Sierra's statements are clearly statements of opinion or impression, such as the statement that Mr. Glaeser stared at her breasts and that she is "afraid of him." Women know when they are being inappropriately ogled, though it is impossible to prove. It is not necessary to say "I think he is staring at my breasts" in order to render the statement protected opinion. -5-

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Mr. Glaeser's discussion of Sierra Peters' alleged motive for fabricating defamatory statements about him does not change the fact that Sierra's complaints to school district officials were non-defamatory, privileged and generally if not literally accurate. Even if Sierra said she was going to "get him fired," which she denies saying, the statements made to the school district were still statements she had a right to make and that the school district had a right and duty to act upon, which they did in an appropriate manner. See Reichardt v. Flynn, 823 A. 2d 566 (Md. 2003) (student and parents had absolute privilege from suit for allegations that teacher sexually harassed the student); Kelley v. Bonney, 606 A.2d 693 (Conn. 1992) (statements of teacher's conduct made in connection with teacher decertification proceedings are privileged). It is obvious from Mr. Glaeser's deposition and his Response to the Motion to Dismiss that Mr. Glaeser does not understand the role of a 9th grade teacher or the proper boundaries between teacher and student. By his own admission, he has read controversial material to the class without going through the school district's channels to obtain approval; he has tolerated dirty jokes and perhaps participated in the communication of the jokes to students; he has discussed bodily functions, underwear and matters of a sexual nature in class; he has made use of double-entendres in class; he has explicitly told a male student that he could "kiss him on the lips but that wouldn't look too good;" and he has generally behaved in a boorish and immature manner. More significantly, he apparently gave a student a floppy disk that contained links to pornographic web sites.1 Whether this was In his deposition, Mr. Glaeser admitted that he did give a floppy disk containing links to web sites to a student named Missy Weltz. Mr. Glaeser testified that he did not know what was on the web sites. He admits that he has no reason to believe that Sierra Peters had anything to do with the allegation. [Deposition of Steven Glaeser, pp. 81-82, ll. 16-25; 1-19]. -61

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intentional or not, it is highly suggestive of someone who should not be teaching 15 year old kids. Plaintiff also raises the issue whether he is a "public figure" or a private individual for purposes of establishing the correct level of proof and intent required. Because the statements made by Sierra relate to a matter of public importance, i.e., the conduct of a school teacher in a public school classroom, plaintiff must establish malice, that is, he must show that the statements made by Sierra were false and that she knew they were false or recklessly disregarded the truth or falsity of the statements. Rocci v. Ecole Secondaire Macdonald-Cartier755 A.2d 583 (N.J. 2000) (allegations that teacher engaged in inappropriate conduct on school-sponsored event raised free speech issues and was entitled to the highest level of protection). As already shown, Mr. Glaeser has admitted that most of Sierra's statements are generally true. Rather than be dragged through five years of litigation, Sierra Peters and her parents should be commended for having brought to the attention of school district authorities the odd and potentially dangerous behavior of one of its teachers. Sierra's statements are not defamatory and are true and privileged. Therefore, the complaint alleging defamation should be dismissed. Respectfully submitted this 22nd day ofAugust, 2005.

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CROSS & BENNETT, L.L.C.

s/Joseph F. Bennett Joseph F. Bennett Keith F. Cross 108 E. St. Vrain St., Suite 20 Colorado Springs, CO 80903 Phone: 719.633.1359 Fax: 719.633.5788

CERTIFICATE OF SERVICE I certify that on the 22nd day of August, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Catherine A. Tallerico, Esq. Stephen C. Harkess, Esq. Fowler, Schimberg & Flanagan, P.C. 1640 Grant Street Denver, CO 80203 [email protected] and I hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participant in the manner indicated by the non-participant's name: Steven Glaser P.O. Box 63136 Colorado Springs, CO 80962

s/Kelli Baltzersen

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