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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1025-ZLW-BNB DALE ASMUSSEN, Plaintiff, v. WELD COUNTY SCHOOL DISTRICT RE3-J, MARVIN WADE, in his individual capacity, and CYNDI LOVELL, in her individual capacity, Defendants. ______________________________________________________________________________ DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT ______________________________________________________________________________ Defendants hereby file this reply in support of their motion for partial summary judgment: I. UNDISPUTED MATERIAL FACTS Plaintiff's response to Defendants' Motion for Summary Judgment is rife with immaterial facts and unsupported, conclusory allegations. Nevertheless, Plaintiff's response does not

dispute the following core material facts on which this case may be decided. Cyndi Lovell began employment with Weld County School District RE3-J (the "District") as a bus driver in 1994 and was promoted to Transportation Coordinator in 1995. Ex. 1 to Defendant's Motion for Summary Judgment ("MSJ"). Plaintiff Dale Asmussen began work with the District as a mechanic in 1997. Id. at ¶ 3. Shortly after Asmussen was hired, Ms. Lovell received complaints from female bus drivers that they felt uncomfortable being alone with Asmussen. Id. at ¶ 7. After speaking to Superintendent Disario about these complaints,

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Ms. Lovell was ordered to issue a directive that no female drivers were to be alone with Asmussen and that all work orders were to go through Ms. Lovell. Id. Ms. Lovell provided Asmussen with a job performance update dated November 6, 1997 that noted concerns about Asmussen's general attitude and performance. Id. at ¶ 8. In

Asmussen's job performance evaluation for the 1999-2000 school year, Ms. Lovell indicated that Asmussen needed to, among other things, control his temper. Id. at ¶ 13. On several occasions Ms. Lovell told Bruce Little, a Transportation Consultant at the Colorado Department of Education, that she felt threatened by Asmussen. Id. at ¶ 17. On January 31, 2001, Ms. Lovell and Asmussen got into an argument regarding the order in which Asmussen was to complete his tasks, after which Asmussen left work without permission. Id. at ¶ 18. After meeting with Ms. Lovell and Asmussen, Supt. Wade sent a memo stating that abandoning a job during a work shift is insubordination and grounds for suspension or termination. Ex. 2 to Defendants' MSJ, ¶ 7. In the summer of 2001, Asmussen began dating bus driver Laree McWilliams, although both were married to others. Id. at ¶ 8. On February 28, 2002, Asmussen yelled at Ms. Lovell because, when his doctor's office called he was given a message instead of notified immediately. Ex. 1 at ¶ 28. Ms. Lovell contacted Supt. Wade to tell him she felt threatened. Id. at ¶ 29. Supt. Wade thereafter sent a memo to the employees at the transportation barn indicating that the three had to establish better working conditions to "alleviate the stressful working conditions." Ex. 2 at ¶ 11. On March 27, 2002, Asmussen sent Ms. Lovell a letter regarding ethnic jokes within a newsletter prepared by the drivers. Ex. 1 at ¶ 27. Ms. Lovell acknowledged her understanding of how Asmussen could find the jokes offensive. Id. On May 2, 2002, Ms. Lovell informed the drivers that the transportation department would no longer be doing a newsletter. Id.

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In Asmussen's 2001-02 evaluation, Ms. Lovell noted that Asmussen had a poor attitude and that she was fearful of him losing control. Id. at ¶ 31. In order to ensure that the transportation employees were aware of the grievance procedure, Supt. Wade made a presentation on April 15, 2002. However, no transportation employee filed a grievance. Ex. 2 at ¶ 12. On May 17, 2002, Supt. Wade attended a transportation department breakfast. Id. at ¶ 17. When he arrived, Asmussen, McWilliams, and another employee were in the kitchen. Id. Ms. Lovell told everyone it was time to start the meeting, but the employees in the kitchen ignored her request. Id. Shortly thereafter Asmussen told Ms. Lovell he was going to the doctor. Ex. 1 at ¶ 35. That weekend Asmussen left Ms. Lovell a message indicating he would not be in on May 20th, but would call on May 21st to update his status. Id. However, although he did attend a work picnic on May 22, Asmussen did not call or return to work until May 28, 2002. Id. at ¶ 36. On May 28, 2002, Supt. Wade informed Asmussen that his termination was effective immediately and stated that the Board of Education would act upon his recommendation the following night at its Board Meeting. Ex. 2 at ¶ 23. II. ARGUMENT A. The Defendants are entitled to summary judgment on Asmussen's claim that they violated his First Amendment Freedom of Association right. (i) Plaintiff does not have a constitutional right to associate "on a personal level with a person of the opposite sex" in the workplace.

Plaintiff asserts a liberty interest in associating on a personal level with a person of the opposite sex and cites Griffin v. Strong, 983 F.2d 1544 (10th Cir. 1993), a Fourteenth Amendment case, in support of that claim. Griffin does not hold employees have a First

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Amendment right to intimate association; rather, it adopts the holding of the Seventh Circuit, stating intimate association rights are not protected by the First Amendment. Id. at 1547 (emphasis added), quoting Swank v. Smart, 898 F.2d 1247, 1252 (1990). The Griffin court merely recognized that in Trujillo v. Board of County Comm'ns., 768 F.2d 1186 (1985), the Tenth Circuit analogized to First Amendment cases involving freedom of expressive association in holding that intent is an essential element of a claim alleging deprivation of the right of familial association. Id. Plaintiff makes no attempt to argue the analogy extends further. While the right to familial association may very well be a subset of the general right to intimate association, the Tenth Circuit has not recognized either as being protected by the First Amendment. Although Plaintiff has not stated a substantive due process claim, he proceeds with a line of substantive due process arguments alleging Defendants deprived him of his right to intimate association. These arguments should be rejected; the court should exercise restraint when asked to expand the doctrine of substantive due process to include the factual scenario described in this action. "There are risks when the judicial branch gives enhanced protection to certain

substantive liberties without the guidance of the more specific provisions of the Bill of Rights." Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 502 (1977). Plaintiff's relationship is not entitled to the strong protection he asserts. Plaintiff argues that family relationships are not the only relationships protected by the constitutional right of intimate association, citing Roberts v. United States Jaycees, 468 U.S. 609 (1984). However, Roberts' discussion of the intimate relationships entitled to constitutional protection relies entirely upon precedent protecting relationships that "attend the creation and sustenance of a

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family ­ marriage; childbirth; the raising and education of children, and cohabitation with one's relatives." Id. at 619 (citations omitted). Plaintiff misconstrues Roberts' characterization of familial relationships as "distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation and seclusion from others in critical aspects of the relationship" as a general definition of intimate associations. Id. at 620. In fact, Roberts used this language to describe its reasoning in protecting familial relationships. Plaintiff and Laree McWilliams

engaged in an affair while married to other individuals. Their relationship was not familial and no case law recognizes constitutional protection for such a relationship. Plaintiff relies on Lawrence v. Texas, 539 U.S. 558 (2003), a substantive due process case that does not consider the right to intimate association, to argue that Plaintiff has "the right to choose to enter upon relationships in the confines of [his] own home and [his] own private life and still retain [his] dignity as [a person]." Id. at 567. However, the Defendants did not seek to control the Plaintiff's private life. Rather, it sought only to control the workplace in order to ensure a safe and productive working environment. (ii) The directive that Mr. Asmussen limit contact with co-workers during business hours does not violate a right recognized by the Constitution.

In response to Defendants' argument that the directive that he limit contact with coworkers during business hours does not violate a right recognized by the Constitution, Plaintiff cites a pair of cases, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) and National Commodity and Barter Ass'n. v. Archer, 31 F.3d 1521 (10th Cir. 1994), involving the right to expressive association regarding politically charged issues. Boy Scouts involved an association's expression of an opinion against homosexuality, while National Commodity concerned an association's expression of refusal to abide by the policies of the Internal Revenue Service. Plaintiff argues

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these cases give him the right to associate with his co-workers for the purpose of maintaining the District's transportation fleet. However, the law Plaintiff cites is entirely inapplicable here. The communication

Plaintiff classifies as expression is related only to the functioning of the workplace and has no "protected political, social, economic, educational, religious, or cultural purpose" whatsoever. Vieira v. Presley, 988 F.2d 850, 852-53 (8th Cir. 1993). Plaintiffs complains only about

directives given to him at the workplace. Ms. Lovell, Plaintiff's supervisor, may issue directives to ensure the efficient and safe operation of the business environment. See Hart v. Clearfield County, 815 F.Supp. 1544, 1549 (D. Utah 1993). As stated in Defendant's MSJ and supported by case law, Plaintiff has no constitutional right to associate on a professional level with his coworkers. Further, the U.S. Constitution does not afford him a basis to ask the courts to decide how the school district's bus barn should have been run by second-guessing Supt. Disario's and Ms. Lovell's directives regarding the avoidance of sexual harassment and routing communications about buses. (iii) Both Ms. Lovell and Supt. Wade are entitled to qualified immunity from Asmussen's freedom of association claim because there is no law clearly establishing that Asmussen had a right to enter into a personal relationship with a member of the opposite sex or professional relationships at work.

In response to Defendants' argument that Ms. Lovell and Supt. Wade are entitled to qualified immunity because there is no law clearly establishing that he had a right to enter into a personal relationship with a member of the opposite sex or professional relationships at work, Plaintiff asserts the Tenth Circuit has held that intimate personal relationships are protected by the First Amendment right of association. As stated above, a close reading of Griffin reveals the inaccuracy of Plaintiff's assertion. Further, no applicable law clearly holds Plaintiff has a right to maintain professional relationships at work or adulterous relationships anywhere.

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B.

The District is entitled to summary judgment on Plaintiff's First Amendment free speech claim because it never received any complaints from Asmussen and cannot be held liable for retaliating against him under Section 1983 based upon a theory of respondeat superior. In response to Defendants' argument that the District cannot be held liable for retaliating

against him based on a theory of respondeat superior, Plaintiff states that the District delegated the authority to terminate classified employees to Supt. Wade. Plaintiff then argues that, under Randle v. City of Aurora, 69 F.3d 441, 448 (10th Cir. 1995), Supt. Wade was a final decisionmaker with respect to Plaintiff's termination because he was not constrained by any Board imposed standards not of his own making and his decision was not subject to any meaningful review. However, in quoting the District's policy on Classified Staff Hiring, Suspension & Termination, Plaintiff failed to reproduce the following language: "Any such termination shall be subject to review and further action by the Board of Education." See Ex. P, Response to Defendants' MSJ, p. 12. If the board retains the authority to review, even though it may not exercise such review or investigate the basis of the decision, delegation of final authority does not occur. Jantz v. Muci, 976 F.2d 623, 631 (10th Cir. 1992). Thus, final authority has not been delegated to Supt. Wade. C. The District is entitled to summary judgment on Plaintiff's Americans with Disabilities Act ("ADA") claim because the District did not regard Plaintiff as disabled. In response to Defendants' argument that it did not regard him as disabled, Plaintiff refers to evidence that Ms. Lovell and her secretary, Alice Tucker, described Plaintiff "emotionally unstable" and that Tucker told Supt. Wade that Plaintiff was "a time bomb waiting to go off;" "he shakes a lot and looks mean, it's not a nice place to work when you don't know what he'll do;" "he is very unpredictable so I have to watch him all the time;" and that she was "fearful of Dale losing control." Id. This is not evidence that the Board regarded him as disabled, or

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substantially limited in one or more major life activities. See 29 C.F.R. § 1630.2(i). Although Ms. Lovell and Ms. Tucker did not believe they could work with Plaintiff for another year, there is no evidence that they or any other District employee believed Plaintiff to have an impairment substantially limiting his ability to perform a broad range of jobs. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). The fact that Plaintiff was terminated from all employment at the District is similarly not determinative of the District's belief in his ability to perform a broad range of jobs; he was terminated from one job, the only one he held. The cases cited by the Plaintiff are distinguishable. The Plaintiff in Holopirek informed her supervisor she had diabetes, a physical disability. Holopirek v. Kennedy & Coe, 303

F.Supp.2d 1223, 1228 (D. Kan. 2004). This fact weighed heavily in the court's finding of a genuine issue of material fact as to whether the employer regarded the plaintiff as being substantially limited in the major life activity of working. Id. at 1232. Here, the District was not aware (and remains unaware) that Plaintiff has a disabling condition. E.E.O.C. v. Voss Elec. Co., 257 F.Supp.2d 1354 (W.D. Okla. 2003), is similarly distinguishable. The plaintiff in that case was dismissed after the defendants learned he had been admitted to a psychiatric hospital. Id. at 1357. Here, the Defendants were not aware (and remain unaware) that the Plaintiff had been in psychiatric care. Even if a doctor's note might have led Supt. Wade to believe Plaintiff was in counseling, this fact does not mean the District believed Plaintiff was substantially limited in one or more major life activities. See Henson v. Bell Helicopter Textron, 128 Fed.Appx. 387 (5th Cir. 2005) (supervisor allowing employee to adjust his schedule so he could attend counseling sessions did not mean that supervisor regarded employee as substantially limited in major life activity).

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D. i.

The District is entitled to summary judgment on Asmussen's Title VII discrimination claim. Asmussen was not treated differently in the terms and conditions of his employment because of his sex. In response to Defendants' argument that he was not treated differently in the terms and

conditions of his employment because of his sex, Plaintiff asserts he has stated a prima facie case of intentional reverse discrimination. However, to establish the prima facie case, a plaintiff must show that: (1) he was engaged in protected opposition to employment discrimination; (2) he was subjected to adverse employment action; and (3) a causal connection exists between the protected activity and the adverse employment action. Sanchez v. Denver Public Schools, 164 F.3d 527, 533 (10th Cir. 1998). While it is undisputed that Ms. Lovell issued a directive to Plaintiff to refrain from talking to the female bus drivers at his workplace, this was not an adverse employment action. In Sanchez, the Tenth Circuit held that "conduct is adverse employment action if it `constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" 164 F.3d at 532. Neither the directive, nor Plaintiff's embarrassment resulting from it qualify as an adverse employment action. While Plaintiff was directed not to speak with female bus drivers, he was not segregated from females entirely. In fact, the only other employees regularly working at the bus barn, Ms. Lovell and Ms. Tucker, were female. ii. Asmussen was not subjected to a hostile work environment in violation of Title VII. In response to Defendants' argument that he was not subjected to a hostile work environment, Plaintiff states that the totality of the circumstances demonstrates the creation by Ms. Lovell of a hostile and abusive workplace. However, Plaintiff alleges only that Ms. Lovell

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made inappropriate comments on two occasions. See Ex. 5, Defendants' MSJ. Plaintiff makes allegations of other instances based on several drivers' affidavits. Exs. E, F, G, & H, Response to Defendants' MSJ allege other instances of inappropriate conduct, none of which Plaintiff observed. Plaintiff argues Ms. Lovell's conduct made a hostile work environment for other employees. However, these allegations are not sufficient to support the argument that the Plaintiff himself was forced to endure a hostile work environment. Thus, the conduct Plaintiff described was neither severe nor pervasive. See Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993). iii. Asmussen did not voice opposition to a practice made illegal by Title VII and therefore his retaliation claim must be dismissed. In response to Defendants' argument that Plaintiff did not voice opposition to discriminatory practices in the workplace, Plaintiff argues that a phone was removed from the workshop after he complained of not being allowed to accept a phone call from his doctor. However, Plaintiff's complaint was not protected opposition because not allowing him to accept a personal phone call was not an unlawful employment practice. See Sanchez, 164 F.3d at 533. Further, removing the phone was not an adverse employment action under Sanchez. See id. CONCLUSION For all the above reasons, the District requests this Court grant it summary judgment with respect to all of Plaintiff's First Amendment Right of Association, Title VII Discrimination, and ADA claims and Supt. Wade and Ms. Lovell request that this Court grant them summary judgment with respect to Plaintiff's First Amendment freedom of association claim.

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Respectfully submitted this 16th day of September, 2005. SEMPLE, MILLER, MOONEY & FARRINGTON, P.C s/ Patrick B. Mooney By: ________________________________ Patrick B. Mooney, #17380 Martin Semple, #7642 1120 Lincoln Street, Suite 1308 Denver, CO 80203 (303) 595-0941 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF MAILING I hereby certify that on the 16th day of September, 2005, a true and correct copy of the foregoing DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was filed and served via CM/ECF to the following: Cathy L. Cooper, Esq. Colorado Education Association 1500 Grant Street Denver, CO 80203 s/Tammi J. Evans Legal Assistant _________________________________

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