Free Motion to Dismiss - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-K-0384 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.

DEFENDANT SIERRA PETERS, CAROL PETERS & JEFF PETERS' MOTION TO DISMISS PURSUANT TO F. R. Civ. P. 12 (B) (6), OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

Defendants, Sierra Marcella Peters, Carol Peters & Jeff Peters, by and through their attorney, Joseph F. Bennett of CROSS & BENNETT, L.L.C., and pursuant to Fed. R. Civ. P. 12(b)(6), file the following Motion to Dismiss, or, in the alternative, pursuant to Fed. R. Civ. P. 56, Motion for Summary Judgment: I. INTRODUCTION Defendants originally filed their Motion to Dismiss on March 6, 2001. On May 7, 2001, the court issued an Order on Motion of Peters Defendants to Dismiss and to Show Cause. With respect to the Motion to Dismiss, the court stated 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 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." Therefore, the court denied the Motion

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to Dismiss without prejudice to it being re-asserted or filed as a Motion for Summary Judgment. On pages 5 through 7 of the Order, the court identified various "weaknesses" of plaintiff's allegations against Sierra and her parents. On June 4, 2001, the court issued its Order on Plaintiff's Response to Show Cause and Motion for Reconsideration in which the court concluded, among other things, that his response was "adequate, under an exceedingly liberal standard, to discharge the Order to Show Cause." The court, however, noted that the arguments raised by defendants "appear largely meritorious and 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." The court raised the specter of a Rule 11 violation and threatened to impose sanctions against plaintiff and his counsel if it should become apparent that the factual predicates do not exist and that no reasonable inquiry into their existence had been made in good faith. On July 23, 2001, defendants Pace and Crume moved for summary judgment on the grounds of qualified immunity. That motion was granted on November 1, 2004. On this date, defendant District 20 has also filed its Motion for Summary Judgment. Defendant adopts and incorporates the undisputed factual allegations set forth in that pleading. II. ALLEGATIONS IN PLAINTIFF'S FIRST AMENDED COMPLAINT The First Amended Complaint alleges that plaintiff Steven Glaeser was a "probationary teacher at Pine Creek High School" in Academy School District #20 during the 1998-99 school year. ¶ 1. Defendant Sierra Peters was a freshman at Pine Creek during that school year and was in the plaintiff's English class during both the fall and spring semesters and in his Drama class during the spring semester. Defendants Jeff and -2-

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Carol Peters are Sierra's parents. Plaintiff alleges that Pine Creek principal Steve Moran contacted the plaintiff on or about April 15, 1999 and told him that "three female students" had made allegations that they did not want to come back to his class because plaintiff was "staring at their breasts." Mr. Moran informed the plaintiff that he was being placed on administrative leave. ¶ 16. He further alleges that on April 16, 1999, he was contacted by his student aide, Barbara Crawford, and was told that there were "rumors" at the school about "sexual things" concerning the plaintiff. Miss Crawford allegedly told the plaintiff that this information was communicated to her and to the plaintiff's English class by Miss Peters. ¶ 17. On April 19, 1999, plaintiff was informed by the school district that "some students" were feeling "uncomfortable about sexual comments" he had allegedly made and that "an investigation was ongoing." ¶ 18. He further contends that, between April 15, 1999 and April 28, 1999, defendants Kathleen Crume and Heidi Pace, employees of the school district, "sought out students at Pine Creek High School and communicated false and defamatory statements about the Plaintiff in order to solicit complaints about Plaintiff's conduct from the students." ¶ 20. As a result of their investigation, Pace and Crume advised the plaintiff that 11 students had made "allegations" against him. ¶ 21. It was alleged that he "stared at female students' chest and looked them up and down and made them feel uncomfortable;" that he had "asked a female student to step outside and stared at her chest;" that he told students he bought his underwear at Victoria's Secret;" that he assisted a student in researching a career report by downloading some internet addresses to a disc and when she took the disc home it had porn sites on it;" that he had "asked a student to `dance' for him;" that he "joked `inappropriately';" that he told "cannibal jokes;" that he had asked a student to "file `cannibal jokes';" that he had asked a student to "stay -3-

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after school for no purpose;" that in November or December 1998 he had read a poem in class titled "Underwear;" that during a lecture on job interview skills he had "instructed female students to sit with legs crossed and to sit up straight;" that he had commented to a student that "I could kiss you on the lips but that wouldn't look good;" that he stated to a student, "hey, Sugar, how's it going;" that he had stated that "I'll take all I can get and more;" and that, on April 14, 1999, a number of pornography sites were visited from the teacher's computer in his classroom. ¶ 21. Plaintiff states that these allegations are either false or had been "taken out of context." ¶ 22. Plaintiff remained on administrative leave from April 15, 1999 until the end of the school year in May. ¶ 25. He also alleges that he was removed from all teaching responsibilities for the 1999-2000 school year and was placed on "special assignment in curriculum" at a reduction in salary from the previous school year. ¶ 26. On September 3, 1999, he was issued a "letter of reprimand." ¶ 27. He also alleges that, during the 1999-2000 school year, he was on the District #20 teachers' association bargaining team and attended a retreat on November 18-20, 1999. ¶ 29. On March 24, 2000, he was informed that his probationary contract was not being renewed for the 2000-01 school year and that he was being terminated immediately. ¶ 31. The First Amended Complaint sets forth eight claims for relief. Only the Fourth and Seventh Claims for Relief are directed towards Miss Peters and her parents. The Fourth Claim alleges that Ms. Peters and other Jane Doe student defendants conspired with Ms. Crume and Ms. Pace to deprive the plaintiff of his teaching position. ¶¶ 56-62. Plaintiff alleges that Ms. Peters and the other students "acted under color of state law" by agreeing with Pace and Crume to violate plaintiff's constitutionally protected rights. The Seventh Claim for Relief alleges that statements made by Sierra Peters and the Jane Doe student -4-

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defendants were defamatory. Other than identifying Jeff and Carol Peters as Sierra's parents, plaintiff does not allege any factual allegations against them. III. STANDARDS FOR REVIEW OF RULE 12(b)(6) MOTIONS F.R.Civ.P. 12(b)(6) permits the Court to dismiss a cause of action for "failure to state a claim upon which relief can be granted." In considering a motion to dismiss under this rule, the Court must construe the Complaint liberally and accept all well-leaded facts as true. Scheur v. Rhodes, 416 U.S. 232, 94 S.Ct.1683, 40 L.Ed.2d 90 (1974); Tilton v. Richardson, 6 F.3d 683, 685 (10th Cir. 1993). IV. MOTIONS TO DISMISS FOR FAILURE TO STATE CLAIM 1. The civil rights conspiracy claims against Sierra, Jeff and Carol Peters must be dismissed for failure to state a claim upon which relief can be granted. In order to state a cause of action under 42 U.S.C. § 1983 for an alleged violation of the Fourteenth Amendment and provisions of the Bill of Rights incorporated into the Fourteenth Amendment, the challenged conduct must constitute state action. Lugar v. Edmondson Oil Co., 457 U.S. 922, 930-32, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Pino v. Higgs, 75 F.3d 1461, 1464 (10th Cir.1996). Where, as here, a § 1983 claim is based on the conduct of a private individual, that conduct constitutes state action if it is " 'fairly attributable to the state.' " Pino, 75 F.3d at 1465 (quoting Lugar, 457 U.S. at 937, 102 S.Ct. 2744). A private individual's conduct is "fairly attributable to the state" if two

conditions are met. First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the state is responsible. Second, the private party must have acted together with or obtained significant aid from state officials or engaged in conduct -5-

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otherwise chargeable to the State. Id. A private individual like Sierra Peters does not engage in "state action" simply by availing herself of a state procedure. In Pino, a private therapist called police and recommended that he be committed to a mental health facility. The Tenth Circuit held that the private therapist did not exercise any "right or privilege" or act under a "rule of conduct" created by state law when she made a report "requiring a response from state officials." The court said that the private parties did "nothing more than provide information" which state actors "considered in making their independent judgments." Similarly, in Scott v. Hern, 216 F.3d 897 (10th Cir. 2000), an antiabortion protester who had been committed to a mental health facility against his will filed a civil rights conspiracy claim against an assistant county attorney who had prosecuted the commitment proceedings, a police officer who testified in the case, the physician against whom he had been demonstrating, a psychiatrist who evaluated him, and a private investigator. The trial court dismissed the case for failure to state a claim and the Tenth Circuit affirmed, holding that a private party's conduct is not "state action" merely because the party avails herself of a state procedure. See also Bass v. Parkwood Hosp., 180 F.3d 234, 242 (5th Cir. 1999) ("A private citizen does not become a state actor by initiating civil commitment procedures against another person."); Carey v. Continental Airlines, 823 F.2d 1402, 1404 (10th Cir. 1987) (complaining to a police officer about an individual's conduct does not become state action simply because the officer's investigation into the complaint results in an arrest of that individual); Weaver v. Boyles, 172 F.Supp.2d 1333 (D. Kan. 2001) (private individual does not act under color of state law by complaining to code enforcement officers that plaintiff was in violation of nuisance ordinances); Fabrikant v. French, 328 F. Supp. 2d 303 (N.D. N.Y. 2004) (private individuals who gave allegedly false information of animal cruelty -6-

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to animal control officers, who obtained search warrant and seized plaintiff's animals, did not act under color of state law). In this case, it is alleged that a 15 year old high school student engages in a civil rights conspiracy by bringing a teacher's improper conduct to the school district's attention. Such a claim is entirely unprecedented. All Defendant did was inform school officials that she felt uncomfortable around the plaintiff because he had engaged in questionable conduct in and out of the classroom. The school district then conducted an appropriate investigation, which involved questioning of other students, and confirmed that such conduct was ongoing. Indeed, no less than 11 students gave the school district information about the plaintiff's conduct that the school district found inappropriate. The school district then took appropriate action against the teacher. There is no difference between Sierra Peters' report of her teacher's inappropriate conduct to school district officials and the therapist's report to police that the plaintiff should be hospitalized in Pino, or the physician's complaint to authorities that resulted in the commitment of the antiabortion protester in Scott v. Hern. In both Pino and Scott, the plaintiffs alleged that the commitments were made for improper purposes and that the private parties had conspired with public officials to violate their constitutional rights. The courts rejected the claims in both cases. Private persons do not act under color of state law simply by reporting conduct to authorities, who then exercise their independent judgment whether to take action. Sierra's act of reporting her teacher's alleged

inappropriate conduct and language to school authorities is no more "under color of state law" than any citizen's report of another person's behavior to a state agency. A private citizen simply does not subject himself or herself to liability under the civil rights statutes of the United States for merely reporting someone's inappropriate behavior to state -7-

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authorities. A contrary holding would greatly expand liability under the civil rights statutes and potentially subject many private individuals for reporting activity to authorities. Regarding Sierra's parents, the claim must also be dismissed. Plaintiff has not even alleged that they did anything. Moreover, for the reasons set forth in District 20's Renewed and Supplemented Brief in Support of Summary Judgment, beginning at page 6, Plaintiff has not set forth the deprivation of any constitutionally protected right. This argument is equally applicable to the claims asserted against Sierra Peters and her parents. 2. Plaintiff has failed to state a claim for defamation against Sierra, Jeff or Carol Peters. In order to state a cause of action for defamation, plaintiff must establish the following four1 elements: 1) a defamatory statement, 2) published to a third party, 3) with fault amounting to at least negligence on the part of the publisher, and 4) either actionability of the statement irrespective of special damages or the existence of special damages to the plaintiff caused by the publication. Williams v. District Court, 866 P.2d 908, 912 n. 4 (Colo. 1993); Quigley v. Rosenthal, 43 F. Supp. 2d 1163, 1175 (D. Colo. 1999). If the plaintiff in a defamation case is a "public figure," the third element of a defamation claim requires proof that the defendant published the defamatory statement with actual malice, that is, with reckless disregard of its truth or falsity. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). This heightened standard of fault also applies under Colorado law where the plaintiff is a private figure but where the statement relates to a matter of "public concern." Diversified Management, Inc.

Truthful statements are, of course, not defamatory. Truth is an affirmative defense and is not appropriately raised in this motion. However, Sierra stands by the truthfulness of each and every statement she made concerning the plaintiff. -8-

1

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v. Denver Post, Inc., 653 P.2d 1103, 1106 (Colo. 1982). A defamatory statement is one that tends to harm the reputation of another by demeaning him in the estimation of the community or by deterring third persons from associating or dealing with him. Arrington v. Palmer, 971 P.2d 669 (Colo. App. 1998); Restatement (Second) of Torts, § 559 (1977). It is one that holds a person up to "contempt or ridicule." Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994), cert. denied, 513 U.S. 1127, 115 S.Ct. 936, 130 L.Ed.2d 882 (1995). The question of whether the meaning of a particular statement is defamatory is a question of law for the court. Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979); Brooks v. Page, 773 P.2d 1098, 1100 (Colo. App. 1988); Quigley v. Rosenthal, supra at 1181; W. Page Keeton, et. al., Prosser and Keeton on Torts § 111, at 482 (West 5th ed. 1984); see also Pope v. Chronicle Pub. Co., 95 F.3d 607, 613 (7th Cir. 1996). A district court may, therefore, dismiss an action where the statement at issue is not reasonably capable of a defamatory meaning. Clark v. American Broad. Cos., Inc., 684 F.2d 1208, 1214 (6th Cir. 1982). To be defamatory, a statement must contain defamatory facts. Burns v. McGrawHill Broad. Co., 659 P.2d 1351 (Colo. 1983). It is, therefore, necessary to distinguish between statements of fact and statements of opinion. The relevant inquiry is whether the statement, taken in context, can reasonably be understood as declaring or implying a provable assertion of fact. Keohane v. Stewart, supra at 1299.. When the court must speculate as to the meaning a statement purports to convey, it is considered in the area of unactionable opinion as opposed to actionable factual assertion. NBC Subsid. (KCNCTV), Inc. v. Living Will Ctr., 879 P.2d 6 (Colo. 1994), cert. denied, 514 U.S. 1015, 115 S.Ct. 1355, 131 L.Ed.2d 214 (1995). The Colorado Supreme Court has identified three factors to consider in determining whether a statement is deemed protected opinion: 1) whether -9-

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the statement complained of is cautiously phrased in terms of appearance, using words such as "in my opinion," 2) the entire published statement must be examined in context, and 3) all circumstances surrounding the statement, including the medium through which it is disseminated and the audience to whom it is directed, should be considered. Burns v. McGraw-Hill Broad. Co., supra. The statements attributed to Sierra Peters in this case cannot be deemed defamatory for two reasons. First, none of the statements of fact made by Ms. Peters can reasonably be interpreted to demean him in the estimation of the community or to deter third persons from associating or dealing with him. Second, the statements attributed to Ms. Peters were, when taken in context and considering the subject matter and the audience to whom they were published, statements of protected opinion.2 The gist of Sierra's statement to the school administration was simply that she felt uncomfortable and afraid around the plaintiff because she felt that he was staring at her breasts and because certain of his statements to her and to others suggested that he was someone to be concerned about. For instance, Sierra said that she is "afraid" of him and tries to cover her chest when she talks to him. She said that she refuses to meet alone with him when he asks and that she feels that the plaintiff picks on her. These are all statements of how Sierra felt and are simply not "sufficiently factual to be susceptible of being proved true or false," and are therefore not actionable. Milkovich v. Lorain Journal

The Complaint does not distinguish between statements that may have been made by Sierra Peters and statements that may have been made by other students. Plaintiff alleges in ¶ 21 of the Complaint that as many as 11 students made statements concerning the plaintiff's conduct. Plaintiff specifically listed 15 statements in that paragraph, but does not say which of those statements he attributes to Sierra. Sierra acknowledges making some, but not all, of the statements. However, it is defendants' position that none of the statements, regardless of who made them, can be considered defamatory. -10-

2

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Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 2707, 111 L.Ed.2d 1 (1990). To the extent that some of Sierra's statements may be considered questions of fact, none of these statements are actionable because they are not defamatory. For instance, she states that the plaintiff told kids who were sitting on a table not to sit there unless they "were going to dance for me." While perhaps uncouth in the context of a teacher talking to a student, it is not the kind of statement that would subject the plaintiff to ridicule or contempt. Similarly, the statement that the plaintiff told students where he bought his underwear and read them a poem about underwear is unlikely to deter third persons from associating or dealing with the plaintiff, though they may feel he is somewhat juvenile. For these reasons, the defamation claim against Sierra should be dismissed. To the extent plaintiff is seeking to hold Jeff and Carol Peters liable for defamation, the claim must also be dismissed because he does not attribute any statements, let along any allegedly defamatory statements, to them. 3. Defendant Sierra Peters' statements are protected by the "common interest" privilege. Communications between persons with a "common interest" in the subject matter are privileged under Colorado law and cannot be the basis for a defamation claim. Dominquez v. Babcock, 727 P.2d 362 (Colo. 1986). Such privileges include

communications by one party with a legitimate interest in the subject matter to one or more other persons having a corresponding interest, as well as communications promoting legitimate group or public interests. Id. Among the situations where the Colorado

appellate courts and federal courts applying Colorado law have applied the privilege are where statements are made to a police officer and later published in a newspaper, Burke v. Green, 963 P.2d 1119 (Colo. App. 1998), and in employment situations. Churchey v.

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Adolph Coors Co., 759 P.2d 1336 (Colo. 1988); Abrahamsen v. Mountain States Tel. & Tel. Co., 494 P.2d 1287 (Colo. 1972)(statements in interoffice memoranda); Price v. Conoco, Inc., 748 P.2d 349 (Colo.App. 1987)(statements in performance evaluations); Meehan v. Amax Oil & Gas, Inc., 796 F.Supp. 461 (D. Colo. 1992)(statements in employment contracts). The privilege also applies where the communications at issue promote a legitimate individual interest. In Coopersmith v. Williams, 468 P.2d 739 (Colo. 1970), the court held that a parent's letter to the Boy Scouts asking that a suspended police officer be excluded from a trip was privileged because the father had a legitimate concern for his 15-year old son's safety and because the letter was sent to persons having a corresponding interest. In Wigger v. McKee, 809 P.2d 999 (Colo. App. 1990), the court held that the privilege applied in a case where the plaintiff sued police officers and child therapists following his acquittal of charges involving sexual assault on a child. The court held that whether the privilege applied was for the court to determine, and that the good faith of those making the statements would be presumed. Here, Sierra Peters had a legitimate interest in whether her English and Drama teacher was engaging in sexually inappropriate conduct, sexual innuendo and inappropriate classroom behavior. The school that employs the plaintiff, and which is responsible for Sierra's safety by virtue of the special relationship that exists between a school district and its students, Virginia G. v. ABC Unified School District, 15 Cal. App. 4th 1848, 19 Cal. Rptr. 2d 671 (1993), had a similar interest, as did other students in Pine Creek High School who may have been potentially subjected to the plaintiff's misconduct. Thus, statements that Sierra made to other students and to school authorities concerning this matter of public and personal concern are privileged and cannot support a defamation -12-

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claim. As the Supreme Court of West Virginia said in upholding the termination of a teacher who made repeated sexually-oriented remarks in front of students:: In this Court's opinion, a Board of Education has a duty to protect the students in its charge and to rectify conduct which clearly can constitute violation of federal law. As a consequence, misconduct by a school employee which can be characterized as sexual harassment, and which might harm its students, is a substantial concern and can constitute a basis for the termination of the offending employee's employment. Harry v. Marion County Board of Education, 506 S.E.2d 319, 322 (W.V. 1998). It would be remarkable indeed if the courts were to hold that boards of education must protect students from acts of sexual harassment but that students who report such acts and parents who support their child's right to report such misconduct may be liable for defamation in a case such as this where the allegations were apparently supported by sufficient evidence to result in the teacher's reassignment. This court may well consider the chilling effect that a contrary ruling will have on students who feel sexually pressured by predatory teachers and other adults. If this lawsuit is permitted to proceed, parents and students will be constrained to suppress information concerning inappropriate and illegal conduct of teachers, coaches, counselors, scout leaders and others who may use their positions of trust and authority to abuse, harass or humiliate children under their control. The message will be sent that if you report inappropriate conduct, sexually aggressive behavior or innuendo, no matter how truthful or sincere you are, you will subject yourself to a lawsuit and the potential for literally thousands of dollars of attorney fees and litigation costs. Many parents will understandably tell their children not to report teacher misconduct under such circumstances, a situation that would be intolerable.

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V. MOTION FOR SUMMARY JUDGMENT a. Undisputed Facts Plaintiff hereby incorporates the "Undisputed Facts" set forth in ¶¶ 1 through 29 of Section III, Statement of Undisputed Facts, set forth in Academy District 20's Renewed and Supplemented Brief in Support of Summary Judgment filed on July 13, 2005. In addition, the following statements of fact are undisputed: 1. The statements made by Sierra Peters to Academy School District 20 personnel are accurately set forth in Exhibit A, a summary of the statement prepared by district personnel on April 16, 1999. 2. Plaintiff Glaeser does not know who gave the disk containing pornography sites to the district, but thinks it was a student named Misty Weltz, not Sierra Peters. [Deposition of Steven Glaeser, 81:12, attached as Exhibit B. All references to the deposition are attached as Exhibit B and references are to page and line number]. 3. Plaintiff Glaeser admits that other students besides defendant had told him during the 1998-99 school year and told him that they felt uncomfortable being around him. [Deposition of Steven Glaeser, 83:16]. 4. Plaintiff Glaeser admits that in March 1999 a male student "suggested to Dee Costa that I was looking at her chest." [Deposition of Steven Glaeser, 83:18]. 5. Plaintiff Glaeser admits discussing "Victoria's Secret" with a student named Brandon Jenkins. He testified that Brandon asked him if he bought his underwear at Victoria's Secret and he told him he did buy underwear there for his wife. A day or two later, Brandon asked Glaeser, out loud in class, "why don't you tell the class that you buy your underwear at Victoria's Secret?" Glaeser told him that it was not true and to get back to work. [Deposition of Steven Glaeser, 96:8 to 15]. -14-

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6. Glaeser testified that Ms. Crume gave him a piece of paper that had "cannibal jokes" on them. Some of the jokes were dirty. It was alleged by someone that these jokes had been given by him to a student aide and that he had told the student to "file them." Glaeser doesn't know who told Crume about this or gave the list of jokes to her, but his aide was Barbara Crawford, not Sierra Peters. [Deposition of Steven Glaeser, 99:13 to 100:4]. 7. Glaeser admits that he told female students to "sit up straight and cross their legs" in job interviews, but denies that he told them to "stick their chests out." He does not know where this allegation came from. [Deposition of Steven Glaeser, 101:1 to 23]. 8. Glaeser admitted in his deposition that he did, in fact, tell a male student "I could kiss you on the lips but it wouldn't look good." [Deposition of Steven Glaeser, 102:7]. 9. Glaeser admits making the statement "I'll take all I can get and more," but says it was in reference to ticket money for the upcoming play. Glaeser says he made the statement to Shawn Graham, but there were many students around at the time, and someone apparently considered it to be a form of "sexual innuendo." [Deposition of Steven Glaeser, 103:3 to 104:3]. 10. Glaeser denies that he visited porn sites from his classroom computer, but stated that students had access to the computer and could have done it. However, he doesn't know if that is what happened, and, when asked what, if anything, Sierra had to do with it, replied "nothing." [Deposition of Steven Glaeser, 104:7 to 105:6]. 11. Glaeser admits that he told a female student who was standing on a table in his classroom to get off the table "unless you are going to dance for me." He admitted that it was inappropriate, but he wanted the student to get off the table. [Deposition of Steven Glaeser, 108:19 to 110:5]. -15-

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12. Glaeser further admits that the "cannibal jokes" were inappropriate and that some of them were "dirty" and that it was not inappropriate for Sierra to bring the matter to the school district's attention. [Deposition of Steven Glaeser, 110:16 to 111:14]. 13. Glaeser admits that he told Sierra to come and see him after class in regards to her being in the school play, but denies that he intended it to mean that she should come alone or that he intended anything inappropriate, but he admitted that he did not know how Sierra interpreted his statement. [Deposition of Steven Glaeser, 111:15 to 112:7]. 1. Defendants are entitled to summary judgment on plaintiff's civil rights conspiracy and defamation claims. In order to establish a "conspiracy," plaintiff must prove that there was a "meeting of the minds" or "agreement among the defendants." Merritt v. Hawk, 153 F. Supp. 2d 1216, 1225 (D. Colo. 2001). Conclusory allegations that the defendants "conspired" or that they acted "in concert" are insufficient. Aniniba v. City of Aurora, 994 F. Supp. 1293, 1298 (D. Colo. 1998). On April 15, 1999, defendant Sierra Peters, along with two other girls, reported to principal Steve Moran that their English and Drama teacher, plaintiff Steven Glaeser, was making them feel uncomfortable because of sexually oriented classroom discussions and because he "stared at their breasts." Mr. Moran told the girls that they needed to report their concerns to the school district, and an appointment was made for the next day for Sierra to meet with Kathleen Crume and Heidi Pace. Sierra's parents also attended the meeting. Following the meeting, a summary of the statements made by the three girls was prepared by district employees. This is attached as Exhibit A. In Exhibit A, the statements attributed to Sierra are that Mr. Glaeser "looks at her

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chest when talking. He does this in both classes. She says she is scared of Mr. Glaeser and tries to cover her chest when talking to him." In addition, Sierra told district employees that Glaeser "has told people (who are sitting on a table) to get off the table unless they are going to dance for him." She said that Glaeser "tells her to come and talk with him alone. Sierra will not go. Sierra said he told the class that he buys his underwear at Victoria's Secret. She also said that last semester he read a poem about underwear to the class that talked about how it holds things up for girls and down for boys." Sierra complained that Glaeser "picks on she and Jessica Poling. For example, she stated that 6 people in the class will be eating suckers, and Mr. Glaeser will make Sierra and Jessica throw theirs out." Finally, she said that she is "afraid to be around Mr. Glaeser." She described one incident in which she and Kayla Snoddy were alone with Glaeser, asking about ungraded papers, and that two boys came in , and, according to Sierra, Mr. Glaeser told the boys to get out "because he wanted to be alone with the girls." Sierra and her parents had no further contact with school district officials about this matter. The district apparently conducted an investigation which resulted in no less than 11 student complaints regarding Glaeser's obnoxious, sexually-oriented behavior in and out of the classroom. As a result, district employees exercised their independent judgment to suspend Glaeser's teaching responsibilities for the remaining month of the school year, to issue a letter of reprimand and to transfer him to non-teaching responsibilities in the 1999-2000 school year. In March 2001, for reasons apparently unrelated to his classroom behavior, the district terminated Glaeser, who was a probationary employee anyway. On June 24, 2005, plaintiff Glaeser was deposed. In his deposition, Glaeser admitted many of the allegations set forth in § 21 of the First Amended Complaint. Regarding the reading of the poem "Underwear," Glaeser stated, when this was first -17-

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brought to his attention by Mr. Moran, he advised Glaeser that the complaint was made by a Mrs. O'Rourke and that it had nothing to do with Sierra or her parents. [Deposition of Steven Glaeser, 73:24]. Regarding what is perhaps the most serious allegation him, Glaeser denied "knowingly" giving a student a computer disk with pornography sites on it. [Deposition of Steven Glaeser, 80:14]. Glaeser does not know who gave the disk to the district, but thinks it was a student named Misty Weltz, not Sierra Peters. [Deposition of Steven Glaeser, 81:12]. Glaeser bases this on his admission that he had helped Misty with a report she was doing for his class and they did an internet search, investigated some web sites and, when they ran out of time, copied some links to web sites onto a disk. Glaeser told Misty that he "did not know what was on those sites." [Deposition of Steven Glaeser, 81:22 to 82:2]. As to the remaining allegations, Glaeser admits that students had come to him during the 1998-99 school year and told him that they felt uncomfortable being around him. [Deposition of Steven Glaeser, 83:16]. He said that in March 1999 a male student "suggested to Dee Costa that I was looking at her chest." [Deposition of Steven Glaeser, 83:18]. This statement was made by the male student in class and could be heard by Glaeser and by at least the other three or four students (not Sierra) sitting at the male student's table. [Deposition of Steven Glaeser, 85:10 to 86:11]. Although Glaeser denies that he was looking at Miss Costa's chest, when asked if he may have engaged on conduct or conversation that might have given her the wrong impression, Glaeser was noncommittal, stating that "I can't speculate." [Deposition of Steven Glaeser, 84:10 to 25]. Regarding the allegation that a parent had told him on April 26, 1999 that she had heard that a porn site had been found on his computer, Glaeser stated that this information came to him through the parent, Karen Fernand, and he has no idea where she got the -18-

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information. He never found out who it came from and has no evidence that it came from Sierra Peters. [Deposition of Steven Glaeser, 90:9 to 21]. Glaeser testified that he did not know who made allegations that he stared at girls' breasts [Deposition of Steven Glaeser, 94:8], and denied that he ever told a student to "step outside" and then stared at her breasts, although he admitted he did ask a student, Lafia Morrow, to "step outside." [Deposition of Steven Glaeser, 94:19 to 95:4]. Plaintiff admits discussing "Victoria's Secret" with a student named Brandon Jenkins. He testified that Brandon asked him if he bought his underwear at Victoria's Secret and he told him he did buy underwear there for his wife. A day or two later, Brandon asked Glaeser, out loud in class, "why don't you tell the class that you buy your underwear at Victoria's Secret?" Glaeser told him that it was not true and to get back to work. [Deposition of Steven Glaeser, 96:8 to 15]. Glaeser testified that Ms. Crume gave him a piece of paper that had "cannibal jokes" on them. Some of the jokes were dirty. It was alleged by someone that these jokes had been given by him to a student aide and that he had told the student to "file them." Glaeser doesn't know who told Crume about this or gave the list of jokes to her, but his aide was Barbara Crawford, not Sierra Peters. [Deposition of Steven Glaeser, 99:13 to 100:4]. Glaeser admits that he told female students to "sit up straight and cross their legs" in job interviews, but denies that he told them to "stick their chests out." In any event, he does not know where this allegation came from. [Deposition of Steven Glaeser, 101:1 to 23]. In addition, Glaeser admitted in his deposition that he did, in fact, tell a male student "I could kiss you on the lips but it wouldn't look good." [Deposition of Steven Glaeser, 102:7]. Glaeser testified that he made this statement to Shawn Graham in the context of Graham selling a large number of tickets to the school play. Glaeser claimed that he used a "Jim Cagney voice" and was excited and made the statement followed by a "high five." -19-

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[Deposition of Steven Glaeser, 102:3 to 21]. He denies making the statement "hey, Sugar, how's it going" to any student and does not know where the allegation came from. [Deposition of Steven Glaeser, 102:25 to 103:2]. He admits making the statement "I'll take all I can get and more," but says it was in reference to ticket money for the upcoming play. Glaeser says he made the statement to Shawn Graham, but there were many students around at the time, and someone apparently considered it to be a form of "sexual innuendo." [Deposition of Steven Glaeser, 103:3 to 104:3]. Glaeser denies that he visited porn sites from his classroom computer, but stated that students had access to the computer and could have done it. However, he doesn't know if that is what happened, and, when asked what, if anything, Sierra had to do with it, replied "nothing." [Deposition of Steven Glaeser, 104:7 to 105:6]. Glaeser admits that he told a female student who was standing on a table in his classroom to get off the table "unless you are going to dance for me." He admitted that it was inappropriate, but he wanted the student to get off the table. [Deposition of Steven Glaeser, 108:19 to 110:5]. Glaeser further admits that the "cannibal jokes" were

inappropriate and that some of them were "dirty" and that it was not inappropriate for Sierra to bring the matter to the school district's attention. [Deposition of Steven Glaeser, 110:16 to 111:14]. He admits that he told Sierra to come and see him after class in regards to her being in the school play, but denies that he intended it to mean that she should come alone or that he intended anything inappropriate, but he admitted that he did not know how Sierra interpreted his statement. [Deposition of Steven Glaeser, 111:15 to 112:7]. The undisputed evidence is that Mr. Glaeser engaged in a pattern and practice of inappropriate classroom conduct, including making sexually suggestive comments to both male and female students, and that many students, not just Sierra Peters, were concerned -20-

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enough about his conduct to report their concerns to the school district. The district conducted an investigation and concluded that certain action should be taken. Rather than a "civil rights conspiracy," the evidence establishes appropriate conduct on the part of Sierra Peters and the school district to protect students from a teacher who had obvious problems establishing proper boundaries with his students. VI. CONCLUSION Plaintiff's claims against Sierra Peters and her parents fails to set forth a claim for relief and should be dismissed pursuant to Fed. R. Civ. P. 12 (b) (6). Plaintiff has not set forth any constitutional deprivation, as more fully set forth in Academy School District #20's Renewed & Supplemental Brief in Support of Summary Judgment. Moreover, Sierra and her parents are private persons and their actions are not fairly attributable to the state and they did not act under color of state law. The statements that were made by Sierra cannot reasonably be considered defamatory even if untrue, and plaintiff concedes that most of the statements made by Sierra and the other students were substantially true.

Respectfully submitted this 13th day of July, 2005 CROSS & BENNETT, L.L.C.

s/Joseph F. Bennett Joseph F. Bennett Keith F. Cross 108 E. St. Vrain Street, Suite 20 Colorado Springs, CO 80903 Phone No.: (719) 633-1359 Fax No.: (719) 633-5788 E-mail: [email protected]

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CERTIFICATE OF SERVICE I certify that on the 13th day of July, 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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