Free Motion for Summary Judgment - 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' MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendants Weld County School District RE3-J ("the District"), Marvin Wade, and Cyndi Lovell (collectively "the Defendants"), by and through their attorneys Semple, Miller, Mooney & Farrington, P.C., through Patrick B. Mooney and Erica L. White, pursuant to Fed. R. Civ. P. 56(c), hereby submit the following motion for summary judgment. In support thereof, Defendants state as follows: I. INTRODUCTION On May 19, 2004, Plaintiff filed a Complaint against the Defendants. Plaintiff amended this Complaint twice, filing a Second Amended Complaint on August 18, 2004. In his Second Amended Complaint, Plaintiff asserts the following four claims for relief: (1) a claim that all of the Defendants violated his First Amendment right of association; (2) a claim that the District discriminated against him in violation of Title VII; (3) a claim that all of the Defendants violated his First Amendment free speech rights; and (4) a claim that the District violated the Americans

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with Disabilities Act. (See Second Amended Complaint). The District is moving for summary judgment on all of Plaintiff's claims; Marvin Wade and Cyndi Lovell are moving for summary judgment on Plaintiff's First Amendment freedom of association claim. II. STATEMENT OF UNDISPUTED MATERIAL FACTS For purposes of this motion, the following material facts are undisputed: A. Background In August of 1994, Cyndi Lovell began employment with Weld County School District RE3-J as a bus driver. (Affidavit of Cyndi Lovell attached as Exhibit 1, ¶ 1). The District Superintendent at that time was Dr. Dennis Disario. Id. After working as a bus driver for one year, Ms. Lovell applied for and was hired as the District's Transportation Coordinator in August of 1995. Id. at ¶ 2. As transportation

coordinator, Ms. Lovell's job goal was "to assist in making the district transportation system a safe, efficient and dependable operation, and to provide quality training [to] ensure courteous, enthusiastic drivers with the highest possible degree of driving skill and safety." (Id. at ¶ 2; Job Description attached as Attachment 1). Superintendent Disario. (Exhibit 1, ¶ 2). In August of 1997, Dale Asmussen applied for the position of transportation mechanic at the District. Id. at ¶ 3. According to the District's job description for the mechanic position, the job goal of the transportation mechanic is to "insure that the District's transportation system is safe, efficient, and dependable" and "to be an asset to the transportation department team and to the school district in all transportation and transportation-related matters." Id. at ¶ 3; Attachment Ms. Lovell reported to and was supervised by

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2). Additionally, the mechanic is responsible for filling in occasionally when a substitute bus driver is needed. Id. The transportation mechanic reports to the transportation coordinator. Id. Ms. Lovell did not personally know Mr. Asmussen at the time he applied for the mechanic position. (Exhibit 1, ¶ 4). However, she knew of him because he had worked as a transportation coordinator at other school districts within the state and she had heard of him from other transportation coordinators. Id. Specifically, she had heard that Mr. Asmussen liked to flirt with women, was hard to get along with, and liked to be in control. Id. Based on these rumors, Ms. Lovell was reluctant to have Mr. Asmussen hired as the District mechanic and she passed her concerns along to Superintendent Disario. Id. Superintendent Disario was

responsible for making all hiring decisions regarding District mechanics. Id. Notwithstanding Ms. Lovell's concerns, Superintendent Disario hired Mr. Asmussen as the District mechanic in September of 1997. Id. The District's transportation department is located in a bus barn more than five miles from the District's administrative offices. Id. at ¶ 5. The only individuals who work at the bus barn on a daily basis are the District mechanic, the transportation secretary, and the transportation coordinator. Id. District bus drivers take their buses home every night and generally only go to the bus barn to turn in time sheets or work orders, attend meetings, or to fuel their buses. Id. Accordingly, it is important that the mechanic, transportation secretary, and transportation coordinator are able to work together amicably on a daily basis. Id. After Mr. Asmussen was hired, Ms. Lovell contacted Bruce Little, Senior Transportation Consultant at CDE, to inquire about Mr. Asmussen's upcoming employment. Id. at ¶ 6. She asked Mr. Little what Mr. Asmussen was like; if he thought Mr. Asmussen would have trouble

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taking direction from a female supervisor; and whether he thought Mr. Asmussen would have trouble being a mechanic since he had previously served as a transportation coordinator. Id. Mr. Little told Ms. Lovell that he was aware that Mr. Asmussen had experienced past problems and, if Mr. Asmussen did not like someone, he would make it known. Id. Mr. Little told Ms. Lovell to document everything that happened concerning Mr. Asmussen. Id. B. The 1997-98 school year Shortly after Mr. Asmussen was hired, Ms. Lovell received complaints from some female bus drivers that they felt uncomfortable being alone with Mr. Asmussen. Id. at ¶ 7. Specifically, some female bus drivers indicated that they felt Mr. Asmussen got to close to them and, on one occasion, a driver reported that he reached between her legs while she was sitting in her driver's seat. Id. Ms. Lovell spoke to Superintendent Disario regarding these complaints and he

informed her to issue a directive that no drivers were to be alone with Mr. Asmussen and that all work orders were to go through Ms. Lovell. Id. He also told her to document anything that happened in the transportation department that she felt was inappropriate and to let him know of any concerns or complaints she received about Mr. Asmussen. Id. Based on Superintendent Disario's directives, Ms. Lovell provided Mr. Asmussen with a job performance update dated November 6, 1997. Id. at ¶ 8; Attachment 3. In that update, Ms. Lovell shared with Mr. Asmussen concerns she had about his general attitude and performance. Id. Specifically, she informed him that it appeared like he had trouble taking direction from her; that he needed to be willing to respond to a variety of job requests as assigned; and that it was her responsibility, not his, to order parts and communicate with salesman. Id. Additionally, Ms. Lovell informed Mr. Asmussen that sexual harassment situations were becoming so common

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with him that he was directed not to be alone with any female drivers while on duty. Id. She stated:

At this time, I do have some areas of concern with your general attitude and performance. They are as follows: You seem to have a problem with taking direction. Dale, you must realize that it is my responsibility to see that all district vehicles are ready for service and I am the person making the decisions as to what vehicle is fixed and in what order. Dale it is not your place to question if a part has been ordered or a bus is being serviced somewhere else, or as to when it was ordered or when the vehicle will be completed. You will also have interruptions in your daily routine, your response to me, it's not in my job description (sic). Dale you must be willing and able to respond to a variety of needs in the transportation department. *** Dale due to sexual harassment situations becoming so common, I have advised you not to be alone with any female drivers while at the shop. This is for your protection and the protection of the school district. I do not think you understand or accept the reasons behind this request. In any case, I am directing you not to be alone with a female driver while on duty. *** You will have to work under my direction until such time (sic) I feel comfortable with your assuming more responsibilities within the transportation department. As it stands now, I am very pleased with your mechanical abilities but have some serious reservations with your ability to follow directions. Id. On April 20, 1998, Ms. Lovell gave Mr. Asmussen a memo regarding two conversations she had with him wherein he questioned her authority and refused to do something she asked. (Exhibit 1, ¶ 9; Attachment 4). She informed Mr. Asmussen that his refusal to comply with her directives resulted in her having to ask Bob Tegtman, a part-time mechanic, to assist her. Id. 5

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She also informed Mr. Asmussen that she did not want this type of situation to reoccur in the future. Id.

Ms. Lovell completed an evaluation for Mr. Asmussen for the 1997-98 school year. Id. at ¶ 10; Attachment 5. In that evaluation she praised Mr. Asmussen's mechanical abilities but indicated to Mr. Asmussen that he needed to become a better team player and cooperate with her to achieve the goals of the transportation department. Id. She also informed Mr. Asmussen that his negative attitude towards her reflected poorly on the transportation department and told Mr. Asmussen that he needed to be better about accepting constructive criticism from her. Id. She wrote: Dale's job knowledge of the mechanic position has been a very big help this year for the department. He has much ability and is able to make many contributions to the department. My only concerns at this time are in regard to his attitude at times, his being reluctant to take direction from a female and his ability to be a strong team member. Since I have made him aware of his demeanor around women, he has made an effort to be more cautious. Id. C. The 1998-99 school year During the 1998-99 school year, Mr. Asmussen's attitude and behavior improved. (Exhibit 1, ¶ 11; Attachment 6) and Ms. Lovell noted that fact in Mr. Asmussen's year-end evaluation. Id. D. The 1999-2000 school year The following school year, 1999-2000, Mr. Asmussen's attitude and behavior reverted to how it had been during the first year of his employment. Id. at ¶ 12. On April 7, 2000, Ms. Lovell gave Mr. Asmussen a memo stating that it had been reported to her that he had been rude 6

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to teachers and drivers and that that type of behavior was not appropriate. Id.; Attachment 7. In that memo Ms. Lovell also informed Mr. Asmussen that it was not appropriate for him to throw things at her to get her attention or to interrupt her when she was talking to other drivers. Id. Ms. Lovell completed Mr. Asmussen's job performance evaluation for the 1999-2000 school year. Id. at ¶13; Attachment 8. Ms. Lovell indicated to Mr. Asmussen that he needed to be more consistent with his treatment of the drivers; that he needed to control his temper better because when he was angry it showed; that he was too argumentative with certain drivers and needed to treat all drivers with patience and respect; and that he needed to accept constructive criticism from her without getting upset. Id. Specifically, Ms. Lovell wrote: Dale can be argumentative and expects to get his way. Dale is nonresponsive to some drivers and delays mechanical service. He needs to treat all drivers the same and have patience with drivers' concerns. *** Dale, this has been a very busy year for us in the office. Thank you for all your extra help in making our department run smooth (sic). My job targets for you next year will focus on maintaining a positive attitude towards me and the drivers and not allow (sic) disagreements to effect quality of work and outside appearance. Please be receptive to constructive criticism. My intention is to help make you be the best you can be for our department. Id. E. The 2000-2001 school year In July of 2000, Superintendent Disario retired. He was replaced as Superintendent by Dr. Marvin Wade. Id. at ¶ 14. In the Fall of 2000, drivers complained to Ms. Lovell that Mr. Asmussen was not processing work orders in the order in which they were submitted; rather, according to the drivers, Mr. Asmussen worked on his friends' buses first and then worked on the buses of drivers 7

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he was not friendly with when he got around to it. Id. at ¶ 15. Based on these reports, Ms. Lovell informed Mr. Asmussen and the drivers that work orders should be turned into the transportation secretary, Alice Tucker, or her and they would then be completed on a first come, first serve basis. Id. at ¶ 15; Attachment 9. She also instructed the drivers that they had to discuss work orders with Mr. Asmussen in the office. Id. At a drivers' meeting held October 2, 2000, Ms. Lovell informed the drivers that they were not to disturb Mr. Asmussen if he was working on a bus. Id. at ¶16; Attachment 10. She also reminded drivers that they were not to be alone with Mr. Asmussen in their buses or in the work area. Id. Tensions between Mr. Asmussen and Ms. Lovell increased during the 2000-01 school year. Id. at ¶17. On several occasions Ms. Lovell called Mr. Little to tell him she was scared of Mr. Asmussen and felt physically threatened by him. Id. She told Mr. Little that Mr. Asmussen challenged her all the time and would not take direction from her. Id. She also indicated that she was concerned for her safety because Mr. Asmussen had approached her in manner she considered to be threatening on at least two occasions. Id. Specifically, Ms. Lovell told Mr. Little that, when Mr. Asmussen argued with her, he physically forced her backwards by approaching her closely; shook with anger; balled his hands up in fists; and slammed doors and swore. Id. Mr. Little told Ms. Lovell to document everything and speak to Superintendent Wade. Id. In the Fall of 2000 Ms. Lovell began sharing routine concerns she had regarding the functioning of the transportation department with Superintendent Wade. (Affidavit of Marvin Wade attached as Exhibit 2). Included in those concerns were minor conflicts Ms. Lovell had

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experienced with Mr. Asmussen. Id. at ¶ 4. In addition to learning about these small conflicts, Superintendent Wade became aware that Ms. Lovell had received past complaints about female driver who indicated they were uncomfortable being alone with Mr. Asmussen. Id. (i) Meeting between Dr. Wade, Mr. Asmussen, and Ms. Lovell on January 31, 2001

On January 31, 2001, Ms. Lovell and Mr. Asmussen got into an argument when Ms. Lovell directed Mr. Asmussen not to perform an annual inspection on a bus that was in for an oil change. (Exhibit 1, ¶ 18). Mr. Asmussen left the bus barn in anger and went to see

Superintendent Wade. (Exhibit 1, ¶ 18; Exhibit 2, ¶ 5). Mr. Asmussen stormed into Dr. Wade's office and told him that Ms. Lovell was not allowing him to do his job. (Exhibit 2, ¶ 5). Mr. Asmussen was visibly upset and very animated, pacing around Dr. Wade's office as they spoke. Id. Dr. Wade asked Mr. Asmussen why he was so upset and he said because Ms. Lovell would not allow him to do his job. Id. Dr. Wade immediately went to the bus barn with Mr. Asmussen and met with both him and Ms. Lovell. Id. At that time, Mr. Asmussen explained that he wanted to do an annual inspection on a bus that was in for an oil change but that Ms. Lovell had told him that he could not do the annual because three other buses needed to be worked on. Id. Ms. Lovell explained that, if there are no major safety issues, she has the right to tell Mr. Asmussen that she wants things done in a certain order. Id. At no time did Mr. Asmussen tell Dr. Wade that he was concerned or upset because he believed the bus that was in for an oil change was unsafe to drive. Id. Nor did Mr. Asmussen ever communicate to Dr. Wade or the Board of Education any safety issues he had regarding the transportation department at anytime. Id; Affidavit of Board Member attached as Exhibit 3, ¶ 3. Dr. Wade believed Mr. Asmussen was

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upset because he wanted to be in control and he did not like taking direction from Ms. Lovell. (Exhibit 2, ¶ 5). During the discussion between Dr. Wade, Ms. Lovell, and Mr. Asmussen at the bus barn on January 31, 2001, Dr. Wade perceived Mr. Asmussen's behavior towards Ms. Lovell to be aggressive and intimidating, i.e., he was physically rigid, tense, clenching and releasing his fist, and took an abrupt step toward Ms. Lovell. (Exhibit 2, ¶ 6). Dr. Wade told Mr. Asmussen that he need not get so upset about requests or directives from his supervisor. When Ms. Lovell expressed that Mr. Asmussen was often defiant, Mr. Asmussen stated he was very upset because she would not let him do his job. Id. (ii) Memo from Dr. Wade to Ms. Lovell and Mr. Asmussen regarding January 31, 2001 meeting

After meeting with Ms. Lovell and Mr. Asmussen, Dr. Wade sent a memo to both Lovell and Asmussen stating how he felt about employees abandoning their job during a work shift. (Exhibit 2, ¶ 7, Attachment 1). Dr. Wade informed Mr. Asmussen and Ms. Lovell that he considered such abandonment to be insubordination and that insubordination is grounds for suspension or termination. Id. Dr. Wade wrote: Except under extenuating circumstances (e.g. an emergency requiring an immediate response, unavailability of the immediate supervisor and his/her supervisor/designee) it is insubordination to abandon one's assignment during a work shift without authorization from one's immediate supervisor. It is worth noting that the consequences of insubordination may include suspension from, or termination of, employment. Id. (iii) Mr. Asmussen's performance evaluation for 2000-01

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In Mr. Asmussen's performance evaluation for the 2000-01 school year, Ms. Lovell noted that he had left work one day without permission and, further, stated that Mr. Asmussen needed to follow her directions, not be alone with female drivers, and improve his attitude because it reflected poorly on the transportation department. (Exhibit 1, ¶ 20, Attachment 12). F. The 2001-02 school year (i) Mr. Asmussen's relationship with a bus driver

Sometime in the summer of 2001, a community member informed Dr. Wade that Mr. Asmussen, who was married at the time, was dating Laree McWilliams, a bus driver who was also married. (Exhibit 2, ¶ 8). In the Fall of 2001 Dr. Wade questioned Ms. Lovell about whether she had received any complaints about the conduct of Mr. Asmussen and Ms. McWilliams at work. Id. Ms. Lovell told Dr. Wade that she had not personally seen anything inappropriate at work except when Mr. Asmussen was on a bus alone with Ms. McWilliams and when Mr. Asmussen disregarded her directive to start a bus route immediately and instead stopped to speak to Ms. McWilliams. Id.; Exhibit 1, ¶ 21, Attachment 13. Ms. Lovell told Dr. Wade that she had had received "complaints from other drivers on what they have seen and their concern with what was going on" because it was making people uncomfortable. Id. Ms. Lovell's only concern regarding the relationship between Mr. Asmussen and Ms. McWilliams was the potential negative reputation that would be attached to the transportation department when community members found out that two married transportation department employees were having an affair with each other. (Exhibit 1, ¶ 21). Ms. Lovell told Ms. McWilliams that Mr. Asmussen and her needed to be careful because people talk a lot in such a small town. Id.

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Mr. Asmussen appeared to Ms. Lovell to be very unhappy during the 2001-02 school year. (Exhibit 1, ¶ 22). On several occasions she asked him why he appeared to be so unhappy. Id. On each occasion Mr. Asmussen responded by grunting and walking away or telling her he did not want to talk about it. Id. Ms. Lovell did not believe that Mr. Asmussen had any physical or emotional illnesses and at no time did she inform Dr. Wade that she thought Mr. Asmussen was physically or emotionally disabled. Id.; Exhibit 2, ¶ 14. (ii) Concerns expressed to Mr. Asmussen regarding his behavior in December 2001 and January 2002

Mr. Asmussen became more defiant of Ms. Lovell's directives as the 2001-02 school year continued. (Exhibit 1, ¶ 23). On December 5, 2001, Ms. Lovell informed Mr. Asmussen that he needed to be more respectful of the drivers and reminded him that he was not to be alone with the female drivers. Id. She reminded Mr. Asmussen of this directive because he was often seen socializing with drivers when he should have been working. Id. Likewise, on January 25, 2002, Ms. Lovell provided Mr. Asmussen with a memo informing him that he needed to be more professional around students. Id. at ¶ 24; Attachment 14. Ms. Lovell prepared this memo after she received information that led her to believe that Mr. Asmussen had informed a young student that he had a 12 gauge shotgun that could take care of his problems and after hearing that Mr. Asmussen had made an inappropriate comment to a student who complained about a bus being noisy. Id. (iii) February 28, 2002 incident

On February 28, 2002, Mr. Asmussen went into Ms. Lovell's office and yelled at her because Ms. Tucker had not notified him when his doctor's office called earlier that morning but instead had left him a message letting him know his doctor's office called. (Exhibit 1, ¶ 28). 12

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Mr. Asmussen yelled at Ms. Lovell, told her "this was a bunch of crap," refused to sit down after she told him to take a seat, and postured himself in close physical proximity to her by standing and leaning over her desk while she was sitting. Id. Ms. Lovell felt physically threatened by Mr. Asmussen. Id. After Ms. Asmussen stopped yelling and went back to work, Ms. Lovell asked Ms. Tucker if the doctor's office had indicated that it was an emergency and that they needed to talk to Mr. Asmussen immediately. Id. Ms. Tucker indicated that they had not. Id. Ms. Lovell then contacted Dr. Wade and told him that she had been in an argument with Mr. Asmussen and felt physically threatened. Id. at ¶29. Dr. Wade immediately went out to the bus barn and spoke with Ms. Lovell, Mr. Asmussen, and transportation secretary Ms. Tucker. (Exhibit 2, ¶ 10). At that time Ms. Lovell told Dr. Wade that Mr. Asmussen had stormed into her office yelling at her because he had not been notified when his doctor called but instead had simply received a message that his doctor had called. Id. Ms. Lovell indicated that she was fearful of Mr. Asmussen when he was angry like that. Id. Dr. Wade told Mr. Asmussen that he needed to find other ways to express himself when he became angry because both Ms. Lovell and Ms. Tucker were afraid of him. Id. Dr. Wade was concerned about Mr. Asmussen's behavior and concerned about the stressful working environment at the bus barn. Id. (iv) Memo from Dr. Wade to Mr. Asmussen, Ms. Lovell, and Ms. Tucker regarding February 28, 2002 incident and meeting

On March 26, 2002, Dr. Wade sent a memo to Mr. Asmussen, Ms. Tucker, and Ms. Lovell summarizing the meeting held on February 28, 2002. (Exhibit 1, ¶ 30; Attachment 20; Exhibit 2, ¶ 11; Attachment 2). In that memo, Dr. Wade indicated that the three of them had to establish better working relationships to alleviate the "stressful working conditions that exist at the bus barn." Id. He also indicated that he was prepared to remove one or all of them from the 13

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transportation department if they we could not get along and personality conflicts continued to threaten the successful operation of the transportation system. Id. Wade wrote: This is a serious enough matter that, while I genuinely hope it does not happen, Dale's employment in the district will end if it becomes evident that Cyndi and Alice are both fearful of being physically harmed by Dale. As in the past, I am willing to discuss with all of you any transportation-related problem, but I see little benefit in dealing with the same issues repeatedly. Be advised that I am prepared to remove one or more of you from the department if I see that personality conflicts are jeopardizing the successful operation of our transportation department. Id. Mr. Asmussen agrees that at this time personality conflicts existed at the bus barn and the bus barn was operating "far from" effectively. (Deposition transcript of Mr. Asmussen attached as Exhibit 4, p. 198, lines 12 ­ 25; p. 199, lines 1 ­ 2). (v) The February driver newsletter

At times a driver newsletter called the Yellow Bus Gazette was prepared by the drivers and circulated within the transportation department. Exhibit 1, ¶ 25. In February of 2002, the drivers submitted articles, recipes, and jokes for inclusion in the Yellow Bus Gazette. Id. Ms. Lovell did not review any of the articles, recipes, or jokes submitted by the drivers prior to the time the February newsletter was printed and distributed sometime in February of 2002. Id. at ¶¶ 25, 26; Attachment 15. After the February Yellow Bus Gazette was distributed, Dr. Wade contacted Ms. Lovell to ask her about ethnic jokes contained in the newsletter. Id.; Exhibit 2, ¶ 9. Ms. Lovell informed Dr. Wade that she had not seen the jokess before they went into the newsletter. Id. Dr.

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Wade informed her that it was her responsibility to review the newsletter before it was sent out. Id.; Exhibit 2, ¶ 9. On March 7, 2002, Mr. Asmussen sent Ms. Lovell a letter regarding the ethnic jokes in the Yellow Bus Gazette. Exhibit 1, ¶ 27; Attachment 16. Ms. Lovell believed it was Mr. Asmussen's responsibility to inform her if he found the jokes offensive and she was not upset that Mr. Asmussen had brought his concerns to her attention. Id. Ms. Lovell responded to Mr. Asmussen with her own letter dated March 11, 2002 and acknowledged that she understood how he could find the jokes in the newsletter offensive. Id.; Attachment 17. On April 4, 2002, Ms. Lovell informed Dr. Wade that the transportation department would no longer be doing a newsletter due to the concerns raised by Mr. Asmussen. Exhibit 1, ¶ 27; Attachment 18. Likewise, on May 2, 2002, she informed the drivers that the transportation department would no longer be doing a newsletter. Id.; Attachment 19. She stated: It was brought to my attention that some driver's (sic) were offended by the Transportation Newsletter in February. It was not the newsletter committee's intention to offend anyone. All articles that have been in the newsletters have been submitted by drivers. I do want to thank everyone for their efforts and appreciate your willingness to help. Should you have any questions, please feel free to talk with me. Id. G. Mr. Asmussen's job performance evaluation for 2001-02 Ms. Lovell completed a job performance evaluation for Mr. Asmusen on March 28, 2002. (Exhibit 1, ¶ 31; Attachment 21). In that evaluation she noted her concerns about Mr. Asmussen from the preceding school year, including the fact that Mr. Asmussen had a poor attitude and, at times, she was fearful of him losing control. Id.

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H.

Presentation regarding grievance policy and procedure In order to ensure that the transportation employees were aware of how to file a

grievance, Dr. Wade made a presentation to the drivers regarding the grievance procedure on April 15, 2002. (Exhibit 1, ¶ 32; Exhibit 2, ¶ 12). At that meeting, drivers were given a copy of the District's grievance procedures and instructed that, if they could not achieve resolution with Ms. Lovell, they were to take concerns to Dr. Wade. Id. No driver, including Mr. Asmussen, filed a grievance following this meeting. (Exhibit 2, ¶ 12; Exhibit 2, ¶ 32). I. Dr. Wade's review of Mr. Asmussen's employment Sometime towards the end of April 2002, Ms. Lovell gave Dr. Wade a memo detailing her concerns about Mr. Asmussen's employment. (Exhibit 1, ¶ 33; Attachment 22; Exhibit 2, ¶ 13). Specifically, Ms. Lovell told Dr. Wade that Mr. Asmussen had been very hard to work with over the past year; had been very intimidating; had been very unpredictable; she was afraid to be alone with him; and he had been insubordinate. Id. Ms. Lovell also informed Dr. Wade that she did not feel like she could work with Mr. Asmussen the following school year. Id. After receiving Ms. Lovell's memo, Dr. Wade reviewed Mr. Asmussen's performance evaluation for the 2001-02 school year. Exhibit 2, ¶ 15. That evaluation contained many of the same concerns about Mr. Asmussen's behavior that Ms. Lovell had communicated to him throughout the year and it also confirmed problems with Mr. Asmussen's interpersonal behavior that Dr. Wade had personally witnessed throughout the year. Id. Based on that evaluation, concerns shared with Dr. Wade by Ms. Lovell and Ms. Tucker, Dr. Wade's own personal observations regarding inappropriate behavior exhibited by Mr. Asmussen towards Ms. Lovell, and Dr. Wade's concern that the transportation department was not functioning effectively or

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safely for Ms. Lovell or Ms. Tucker, Dr. Wade did not recommend continued employment for Mr. Asmussen to the Board of Education on May 8, 2002. Id. Mr. Asmussen was one of two transportation department employees for whom Dr. Wade did not recommend continued employment. Id. Although Dr. Wade had not recommended continued employment for Mr. Asmussen on May 8, 2002, as of that time Dr. Wade had not made a final decision as to whether to recommend that the Board employ Mr. Asmussen for the following school year. Id. at ¶ 16. He knew that, pursuant to state law, he could present a final recommendation regarding Mr. Asmussen's employment to the Board that the Board could act on at the May 29, 2002 Board meeting. Id. J. The drivers' year-end breakfast held May 17, 2002 On May 17, 2002, Dr. Wade attended a transportation department year-end breakfast at Prospect Valley Fire Hall. Exhibit 2, ¶ 17. When he arrived at the breakfast, Mr. Asmussen, Ms. McWilliams, and Bob Tegtman were in the kitchen cleaning up. Id. Ms. Lovell got up and told everyone that it was time to start the meeting. Id. Neither Mr. Asmussen, Ms. McWilliams, nor Mr. Tegtman left the kitchen. Id. When Ms. Lovell reiterated that everyone needed to come sit down for the meeting, Mr. Tegtman left the kitchen and sat down to attend the meeting. Id. However, neither Mr. Asmussen nor Ms. McWilliams left the kitchen; rather, they remained in the kitchen and talked while the meeting began. Id. Dr. Wade believed it was inappropriate for Mr. Asmussen and Ms. McWilliams to ignore Ms. Lovell's request to join the meeting when it began. Id. At the conclusion of the breakfast meeting, Dr. Wade asked Ms. Lovell why she had not pushed the issue with respect to Mr. Asmussen and Ms. McWilliams joining the meeting. Id. at

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¶ 18. Ms. Lovell indicated to Dr. Wade that she did not want to push the situation and get into a possible confrontation with Mr. Asmussen. Id. Ms. Lovell told Dr. Wade that she was used to Mr. Asmussen not doing what she requested and, if she pushed the issue, Mr. Asmussen would turn it into a confrontation. Id. Ms. Lovell also told Dr. Wade that she could not comment anymore on Mr. Asmussen's performance because he did not share information with her and, when asked, would often get mad. Id. at ¶ 19. Ms. Lovell indicated that she wasn't comfortable having Mr. Asmussen continue his employment for the next school year but acknowledged that she understood it was Dr. Wade's decision to make. Id. Ms. Tucker was standing near Dr. Wade at that time so he asked her if she had trouble working with Mr. Asmussen. Id. She indicated that she had and stated that she found him to be uncommunicative, capable of anger and aggression, and stated that she was fearful of him. Id. At that time Dr. Wade had still not made a decision as to whether to recommend that the Board continue Mr. Asmussen's employment for the next year. Id. Mr. Asmussen appeared fine to Dr. Wade and Ms. Lovell throughout the breakfast meeting. (Exhibit 1, ¶ 34; Exhibit 2; ¶ 20). Neither Dr. Wade nor Ms. Lovell observed Mr. Asmussen crying or shaking. Id. K. Post-breakfast events After the breakfast meeting concluded, Ms. Lovell returned to the bus barn. (Exhibit 1, ¶ 35). Shortly thereafter Mr. Asmussen came to the bus barn and said he was going to the doctor. Id. That weekend Mr. Asmussen left Ms. Lovell a message indicating he would not be in on Monday, May 20th, but would call her to let her know what was happening on Tuesday, May 21st. Id. Ms. Lovell informed Dr. Wade that Mr. Asmussen had gone to the doctor and it was

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her understanding that he was going to call her on May 21st to give her an update regarding his return to work. Id.; Exhibit 2, ¶ 21. Ms. Lovell expects transportation department employees to inform her when they are going to miss work due to any reason, including illness. Exhibit 1, ¶ 36. Likewise, if an employee does not know when he will be able to return to work, Ms. Lovell expects him to call in each day he is absent so she can arrange for a substitute bus driver or mechanic to fill-in that day. Id. Mr. Asmussen did not call Ms. Lovell to inform him about his work status on May 21st. Id. at ¶ 37. Nor did he show up for work. Id. In fact, Mr. Asmussen was absent from work from the morning of May 17, 2002, through the morning of May 28, 2002. Id. He did not call to provide Ms. Lovell with any type of update about his work status during that time. Id.

Notwithstanding his failure to show up for work or call Ms. Lovell, Mr. Asmussen attended a work picnic on May 22, 2002. Id. Based on Ms. Lovell's observations, there did not appear to be anything physically or emotionally wrong with Mr. Asmussen at that time. Id. Ms. Lovell reported the above to Dr. Wade. Exhibit 2, ¶ 22. Based on all of the performance problems, the stressful conditions at the bus barn, the fact that Ms. Tucker and Ms. Lovell were fearful of Mr. Asmussen, and Mr. Asmussen's failure to call or show up for work for an entire week, coupled with his appearance at a work picnic during that same week, Dr. Wade decided that Mr. Asmussen could not be reemployed for the following school year and he informed Ms. Lovell to let him know if and when Mr. Asmussen returned to work. Id. L. Mr. Asmussen's termination

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On May 28, 2002, Ms. Lovell called Dr. Wade to inform him that Mr. Asmussen was at the bus barn. Id. at ¶ 23. Dr. Wade immediately went out to the bus barn to inform Mr. Asmussen that he was not going to be reemployed the following year. Id. When Dr. Wade got to the bus barn, Mr. Asmussen was in the parking lot. Id. Dr. Wade went up to him and told him that the District was not going to be bringing him back the following year. Id. Mr. Asmussen responded by saying, "Are you sure you want to do that"? Id. Dr. Wade started to explain that the communication issues between him and Ms. Lovell and Ms. Tucker had not improved; he was not convinced that the three of them could work together effectively; and that Ms. Lovell and Ms. Tucker were still fearful of him and how he would act in certain situations. Id. At that time Mr. Asmussen told Dr. Wade that he was going to get what he deserved and he stepped toward Dr. Wade with a clenched fist. Id. Dr. Wade was afraid of Mr. Asmussen and felt physically threatened. Id. Accordingly, Dr. Wade told Mr. Asmussen that his termination was effective immediately and stated that the Board would act upon his recommendation the following night at its Board meeting. Id. At the time Dr. Wade informed Mr. Asmussen that he was going to recommend his termination, Dr. Wade had not seen any doctor's note relating to Mr. Asmussen's recent absence. Id. at ¶ 24. Nor did Dr. Wade know that Mr. Asmussen had been in the hospital or ill. Id. The Board acted on Dr. Wade's recommendation and terminated Mr. Asmussen's employment on May 29, 2002. (Exhibit 2, ¶ 25; Exhibit 3). The Board never received any information that Mr. Asmussen was considered to be physically or emotionally disabled. (Exhibit 3).

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III. ARGUMENT This motion is brought pursuant to Federal Rule of Civil Procedure 56(c). Under that Rule, summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment "has proven its usefulness as a means to avoiding full-dress trials in unwinnable cases, thereby freeing courts to utilize scarce judicial resources in more beneficial ways." Mesnick v. General Electric Co., 950 F.2d 812, 822 (1st Cir. 1991). The trial court must grant summary judgment "unless there is sufficient

evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). Defendants are submitting affidavits, together with exhibits and a portion of Mr. Asmussen's deposition testimony, which demonstrate the absence of genuine issues for trial. Mares v. ConAgra Poultry, 971 F.2d 492, 494 (10th Cir. 1992). Plaintiff, as the non-moving party, bears the burden of showing that there are disputed issues of material fact yet to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). He may not merely "rest upon [his] laurels (or [his] pleadings)." Mack v. Great Atlantic Tea Co., Inc., 871 F.2d 179, 181 (1st Cir. 1989). While the court must view the case in a light most favorable to Plaintiff, he must

identify sufficient evidence which would require submission of the case to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A. The Defendants are entitled to summary judgment on Asmussen's claim that they violated his First Amendment freedom of association right.

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In his Second Amended Complaint, Asmussen claims he "has a First Amendment right to associate with persons of his choice, including the association on a personal level with a person of the opposite sex, and including the professional association in the workplace with persons of the opposite sex." (Second Amended Complaint, ¶ 36). According to Asmussen, his "social association outside the workplace with a female co-worker and his professional association with female co-workers at the workplace was a substantial or motivating factor in the Defendants' mistreatment of [him], the recommendations of Lovell and Wade to terminate [him], the actual termination of [him], and the retaliation and harassment perpetrated against [him]." Id. at ¶ 37. As explained below, the Defendants are entitled to summary judgment on this claim because neither the Supreme Court nor the Tenth Circuit has ever recognized a general constitutional right of association in personal relationships and there is no constitutional right to unlimited professional associations in the workplace. To the extent any such right of association exists in the workplace, the government is entitled to constrain that right based on compelling governmental interests. Moreover, the District is entitled to summary judgment on this claim because it cannot be held liable under Section 1983 based on respondeat superior. Finally, both Lovell and Wade are entitled to qualified immunity on this claim because, even if Plaintiff can establish that he had a constitutional right of association, the contours of that right were not clearly established. (i) Plaintiff does not have a constitutional right to associate "on a personal level with a person of the opposite sex."

The Supreme Court has consistently recognized two types of protected associational rights: the right "to enter into and maintain certain intimate human relationships" and the "right to associate for the purpose of engaging in those activities protected by the First Amendment -22

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speech, assembly, petition for the redress of grievances, and the exercise of religion." Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). The right to enter into and maintain certain intimate human relationships is not unlimited; rather, courts have consistently recognized that only certain intimate human relationships are entitled to constitutional protection. Roberts, 468 U.S. at 619. Those relationships are generally limited to "those that attend the creation and sustenance of a family ­ marriage; childbirth; the raising and education of children, and cohabitation with one's relatives." Id. (citations omitted); Copp v. Unified School District No. 1, 882 F.2d 1547, 1551 (10th Cir. 1989)(intimate human relationships that are protected by the Constitution generally involve familial settings); Mimic, Inc. v. Village of Angel Fire, 277 F.Supp.2d 1131, 1133 (D.N.M. 2003)(the Tenth Circuit has made clear that constitutionally protected intimate relationships must involve familial relationships), aff'd in part, rev'd in part, and remanded, 394 F.3d 836 (10th Cir. 2005). In this case, Asmussen's claim that he had a constitutional right to associate on a personal level with a person of the opposite sex, i.e., Laree McWilliams, must be dismissed because Asmussen and McWilliams were not involved in a familial relationship. Rather, it is undisputed that Asmussen and McWilliams engaged in an affair when they were both married to other individuals. Neither the Supreme Court nor the Tenth Circuit has ever extended constitutional protection to such a relationship occurring outside the bounds of the familial setting. Thus, Asmussen's First Amendment association claim must be dismissed to the extent it is based on his "personal relationship" with Ms. McWilliams. (ii) The directive that Mr. Asmussen limit contact with co-workers during business hours does not violate a right recognized by the Constitution.

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The Tenth Circuit has not addressed whether a public employee has the right to associate with co-workers during business hours. However, based on the Supreme Court's

pronouncements in Roberts, supra, it is clear that an associational right exists between coworkers during business hours only if there also exists an intimate human relationship or a relationship formed for the purpose of engaging in activities protected by the First Amendment, i.e., speech, assembly, petition for the redress of grievances, and the exercise of religion. See e.g., City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989)(there is no "generalized right of `social association'"); Grossart v. Dinaso, 758 F.2d 1221, 1232 fn. 16 (7th Cir. 1985)(right to associate does not include emotional bonds between public employees), Vieira v. Presley, 988 F.2d 850, 852-53 (8th Cir. 1993)(there is no constitutional right to associate with co-workers, friends, or acquaintances unless those associations are characterized by intimacy or expressive purposes, such as engaging in "protected political, social, economic, educational, religious, or cultural purposes"); Finch v. Fort Bend Ind. Sch. Dist., 333 F.3d 555, 564 (5th Cir. 2003)(restraining interactions between co-workers does not implicate the right of intimate or expressive activity protected by the Constitution). The above caselaw makes clear that Asmussen had no constitutional right to associate on a professional level with his co-workers. Thus, Asmussen's constitutional rights were not

violated when he was directed to limit his contact with co-workers during business hours. Moreover, even if Asmussen arguably had a right to associate with his co-workers at work, the District had a compelling state interest in preventing this association. See e.g., Royer v. City of Oak Grove, 374 F.3d 685 (8th Cir. 2004)(a city did not violate the associational rights of a president of a non-profit organization by banning him from a public building while an

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individual whom he had allegedly sexually harassed was present in that building); Hart v. Clearfield County, 815 F.Supp. 1544, 1549 (D. Utah 1993)(the Constitution does not prohibit a public employer from making reasonable demands of its employees during business hours in an attempt to make sure that work is performed in an efficient, effective manner, including directing an employee that she could not contact another public employee during work hours). In Royer the Court stated that the City had a compelling interest in imposing the limited ban on Royer's access to the building when the employee whom he had allegedly harassed was there because the City had a legal duty to protect its employee from harassment by a third party. 374 F.3d 685, fn. 5. In this case, it is undisputed that Ms. Lovell received complaints from female drivers who were uncomfortable being alone with Mr. Asmussen. These drivers told Ms. Lovell that they felt Mr. Asmussen got too close to them and, on one occasion, a driver reported that Mr. Asmussen had reached between her legs when she was seated in her driver's seat. Based on these

complaints, Ms. Lovell issued a reasonable directive to Mr. Asmussen, i.e., do not be alone with female drivers, in order to protect these employees from harassment and to avert future problems. As the Eighth Circuit recognized in Royer, protecting employees from harassment is a compelling state interest that limits an individuals' constitutional right of association. Accordingly, even if Mr. Asmussen had a constitutional right to establish professional associations at work, that right was not violated when Ms. Lovell limited those associations to protect other employees and prevent possible harassment concerns. (iii) The District cannot be held liable based on a theory of respondeat superior.

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It is well-established that a governmental entity cannot be held liable under § 1983 for actions taken by a government official in his or her official capacity "unless that official possesses final policymaking authority to establish municipal policy with respect to the acts in question." Houston v. Reich, 932 F.2d 883, 887 (10th Cir. 1991). Said another way, for a local government unit such as a school board to he held liable for violating § 1983, the allegedly unconstitutional act of the government official must execute "a governmental policy or custom." Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). "[A governmental entity] may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. In this case, the District cannot be held liable for violating Asmussen's constitutional right to association because the District (represented by its Board of Education) did not have an official policy or custom prohibiting personal or professional associations between employees. Moreover, neither Lovell or Wade had final policymaking authority to establish any such policy or custom on behalf of the District. Thus, Plaintiff's First Amendment freedom of association claim against the District must be dismissed. (iv) Both Lovell and 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.

Qualified immunity "shields government officials performing discretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Baptiste v. 26

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J.C. Penney Co., Inc., 147 F.3d 1252, 1255 (10th Cir. 1998)(citations omitted). In order to overcome a qualified immunity defense, a plaintiff must show that (a) the defendant's actions violated a federal constitutional or statutory right that (b) was clearly established at the time of the conduct at issue." Id. A right is "clearly established" when "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Although a plaintiff need not show that the very action in question was previously held unlawful, he or she must demonstrate that there is a "Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). In this case, both Lovell and Wade are entitled to qualified immunity from Asmussen's freedom of association claim because there is no Tenth Circuit or U.S. Supreme Court case on point clearly establishing that intimate adulterous relationships between public employees are protected by the First Amendment. In fact, the Supreme Court has never ruled on this question but has acknowledged a division between the lower courts. See City of North Muskegon, 473 U.S. 909, 910 (1985)(White, J., dissenting from denial of certiorari)(observing that courts have been divided over whether adulterous sexual relations were constitutionally protected in a way that would forbid public employers from disciplining an employee for such relations). Clearly, then, if the Supreme Court has never recognized such a constitutional right and the lower courts are divided, that right cannot be "clearly established" for purposes of qualified immunity. Likewise, there is no Tenth Circuit or U.S. Supreme Court case on point clearly establishing that public employees have an unlimited right to associate with co-workers during

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business hours. In fact, based on the cases discussed above, the law is to the contrary. Thus, both Lovell and Wade are entitled to qualified immunity to the extent Plaintiff claims they violated his constitutional right by directing him to limit his contact with co-workers during business hours. 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. Plaintiff claims that the Board retaliated against him and terminated his employment because he "spoke out on issues of public concern when he spoke out about the need to properly service and maintain school buses, the impropriety of Ms. Lovell's requirement that drivers drive children in buses that were experiencing serious mechanical problems or whose safety inspections were grossly overdue, and the impropriety of publishing racial jokes." (Second Amended Complaint, ¶ 47). As explained above, the Board cannot be held liable under Section 1983 based upon a theory of respondeat superior. Thus, in order for the Board to be held liable for retaliating against Plaintiff, it must have been aware that Plaintiff had spoken out on issues of public concern involving bus safety and the impropriety of publishing racial jokes. Not only does Plaintiff not claim that he communicated his concerns to the Board, the undisputed evidence reveals that the Board was unaware that Plaintiff had communicated any concerns to anyone about bus safety or racial jokes. (See Exhibit 3). Consequently, even if Lovell and Wade were aware of Plaintiff's concerns about bus safety and racial jokes, that knowledge is not imputable to the Board and the Board cannot he held liable under Section 1983 for retaliating against Plaintiff based on his free speech rights. 28

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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. Asmussen alleges he was discriminated against in the terms and conditions of his

employment and terminated in violation of the ADA because Defendants perceived him to be "emotionally disabled." (Second Amended Complaint, ¶ 52). As explained below, it is

undisputed that neither Lovell, Wade, nor the Board ever regarded Asmussen as "emotionally disabled." Thus, all Defendants are entitled to summary judgment on this claim. In order to make a prima facie case under the ADA, a plaintiff must establish: (a) that he is a disabled person within the meaning of the ADA; (2) that he is qualified with or without reasonable accommodation to perform the essential functions of the job; and (3) that he suffered an adverse employment action under circumstances giving rise to an inference that the action was based on his perceived disability. Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000); Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1259 (10th Cir. 2001). A person is considered to have a disability under the ADA if he: (a) has a physical or mental impairment that substantially limits one or more of the major life activities; (b) has a record of such an impairment; or (c) is regarding by the employer as having an impairment. Tate v. Farmland Industries, Inc., 268 F.3d 989, 992 (10th Cir. 2001). A plaintiff can proceed under the "regarded as" provision if he can show one of the following: (1) a covered entity mistakenly believes that [he] has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. In both case, it is necessary that a covered entity entertain misperceptions about the individual ­ it must believe either that one has a substantially limited impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.

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Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999). Thus, a plaintiff can only survive summary judgment if he presents triable evidence that his employer regarding him as substantially limited in one or more of his claimed major life activities. Rakity v. Dillon Cos., Inc., 302 F.3d 1152, 1162 (10th Cir. 2002). "To be substantially limited in a major life activity, `an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.'" McGeshick v. Principi, 357 F.3d 1146, 1150 (10th Cir. 2004). In this case, there is no evidence that either Lovell, Wade, or the Board regarded Asmussen as disabled, i.e., substantially limited in one or more major life activities. See 29 C.F.R. § 1630.2(i)(listing major life activities of "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working."). At most, both Lovell and Wade believed Asmussen could be emotionally volatile, unpredictable, angry, and unhappy ­ such beliefs regarding Mr. Asmussen's personality and temperament do not establish that either Lovell or Wade considered Mr. Asmussen disabled, i.e., limited in a major life activity. See e.g., Fenton v. Pritchard Corp., 926 F. Supp. 1437 (D. Kansas 1996)(fact that management perceived plaintiff to be angry, unstable, violent, and a threat to other employees did not mean management regarding plaintiff as "disabled"). Moreover, to the extent Ms. Lovell asked Mr. Asmussen why he was so unhappy, Mr. Asmussen refused to speak to her about it and did not request any type of accommodation. Likewise, when Dr. Wade suggested that Mr. Asmussen find different ways to show his displeasure, Mr. Asmussen did not indicate he was disabled or request any type of accommodation. Finally, the Board never received any information indicating that Mr.

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Asmussen had any type of physical or emotional disability. Thus, even if Mr. Asmussen could establish that he was perceived as having a disability under the ADA, there is no credible evidence that the Board terminated him based upon that perceived disability. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)(a plaintiff must present some affirmative evidence that his disability was a determining factor in the employer=s decision). D. The District is entitled to summary judgment on Asmussen's Title VII discrimination claim. Asmussen alleges that the District violated Title VII by "(1) treating [him] differently from other classified employees in the terms and conditions of his employment because of his sex; (2) creating a hostile work environment because of his sex; and (3) retaliating against [him} for voicing opposition to practices made illegal by Title VII." (Second Amended Complaint, ¶ 41). As explained below, the District is entitled to summary judgment on this claim based on the undisputed material facts and well-established law. (i) Asmussen was not treated differently in the terms and conditions of his employment because of his sex.

To establish a prima facie case of sex discrimination under Title VII, a plaintiff must show (a) he is a member of a protected class; (b) he suffered an adverse employment action; (c) he was qualified for the position at issue; and (d) he was treated less favorably than others not in the protected class. Sanchez v. DPS, 164 F.3d 527 (10th Cir. 1998). If a plaintiff can establish a prima facie case, the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If the defendant can make this showing, the plaintiff must then show that the defendant's justification is pretextual. If a plaintiff can present evidence that the defendant's

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proffered reasons for its employment decision were pretextual, i.e., unworthy of belief, the plaintiff can withstand a summary judgment motion and is entitled to go to trial. Randel v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). The critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment action occurred "under circumstances which give rise to an inference of unlawful discrimination" based on sex. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). There must be "at least a logical connection between each element of the prima facie case and the illegal discrimination for which it establishes a legally mandatory, rebuttable presumption." O'Connor v. Consolidated Coin

Caterers Corporation, 517 U.S. 308, 311-12, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). With respect to Asmussen's allegations, there is no evidence that Asmussen was "treated differently . . . in the terms and conditions of his employment because of his sex." Specifically, the directive to Asmussen that he not be alone with bus drivers at work did not alter a "term" or "condition" of his employment and was not based on his sex. Rather, this directive altered the internal operation of the bus barn, i.e., interactions and processing of work orders between the drivers and Asmussen, and was intended to protect certain employees who had expressed discomfort being alone with Mr. Asmussen. Such a directive clearly is not discriminatory. Moreover, to the extent Asmussen claims he was discriminated against in the terms and conditions of his employment based on sex when he was terminated, the District's decision to terminate Asmussen was based on legitimate non-discriminatory reasons. Those reasons

included the undisputed fact that the bus barn had become a stressful work environment with many interpersonal problems between Lovell, Asmussen, and Tucker; Asmussen had failed to

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show up for work or call in to report his absence for more than a week (even though he had attended a work picnic during the same week of his absence); and Lovell, Tucker, and Wade were fearful of Asmussen. There is no evidence to suggest that these reasons were pretextual. (ii) Asmussen was not subjected to a hostile work environment in violation of Title VII.

To succeed on a claim of sexual harassment based on a hostile work environment in violation of Title VII, a plaintiff must show that his workplace was "permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment." Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993). Conduct must be quite severe or pervasive to create a hostile work environment. See e.g., Smith v. Norwest Financial Acceptance, Inc., 129 F.3d 1408, 1414 (10th Cir. 1997)("isolated incidents of harassment, while inappropriate and boorish, do not constitute pervasive conduct"); Sprague v. Thorn America, 129 F.3d 1355, 1366 (10th Cir. 1997)(five separate incidents perpetrated by plaintiff's supervisor, although "unpleasant and boorish," were not sufficiently severe or pervasive to create an actionable hostile work environment); Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)(to be actionable, conduct must be extreme and not merely rude or unpleasant); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)("not all workplace conduct that may be described as `harassment' affects a `term, condition, or privilege' of employment within the meaning of Title VII."); Alagna v. Smithville R-11 Sch. Dist., 324 F.3d 975 (8th Cir. 2003)(no sexual harassment where co-worker, among other things, told teacher about his relationship with his wife, shared intimate details about his personal life with her, and continually made comments telling her how

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much he loved her).

Additionally, the conduct must be both objectively and subjectively

abusive. Harris, 510 U.S. at 21-22. In this case, Mr. Asmussen testified that he was subjected to a hostile work environment because Ms. Lovell had two conversations with him where she discussed her "personal lack of sex . . . the inability of her current boyfriend to perform [and] that she was a young woman that needed [to be] satisfied" and on one occasion she put her arm around him and called him "honey." (Asmussen deposition, Exhibit 5, p. 139).1 According to Mr. Asmussen, Lovell made these comments to him between the Spring of 2001 and the Fall of 2001. Id. at p. 140. Based on these comments, it was Mr. Asmussen's opinion that Ms. Lovell was "coming on" to him. Id. at p. 139. Mr. Asmussen never heard Ms. Lovell make any other sexual innuendos and did not observe any other alleged sexual behavior from Ms. Lovell. Id. at pp. 142, 146. Assuming for purposes of this motion only that the above facts are undisputed, those facts do not establish a hostile work environment. The conduct Mr. Asmussen described is neither severe nor pervasive; nor did it alter the conditions of his employment or create an abusive working environment. Thus, Mr. Asmussen's hostile work environment claim must b