Free Statement - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile (602) 262-5747 Telephone (602) 262-5311 Troy P. Foster State Bar No. 017229 [email protected] Justin S. Pierce State Bar No. 022646 [email protected] Attorneys for Defendant

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) )

8 Stu Dvoret, an individual, 9 10 vs. Plaintiff,

No. CV 03-2133 PHX VAM STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

11 Maricopa Community Colleges, 12 13 14 Defendant.

Pursuant to Local Rule 56.1(a), Defendant Maricopa Community Colleges (the

15 "District") submits the following Statement of Facts in support of its Motion For 16 Summary Judgment on plaintiff Stu Dvoret's Complaint: 17 1. On October 28, 2002, a nursing student on the brink of flunking out of the

18 nursing program at the University of Arizona entered the U of A campus and murdered 19 three nursing instructors. (CBS News Article, Arizona gunman Had Threatened School, 20 http://www.cbsnews.com/stories/2002/10/30/national/main527553.shtml.) 21 2. On October 28, 2002, plaintiff was also on the brink of failing out of the

22 program. (Plaintiff's deposition at p. 102, ll. 12 ­ 15, p. 103, ll. 10 ­ 15, p. 110, ll. 2 ­ 23 10.) Plaintiff did not have the required score of 76 to pass. (Id.; M. Eshelman deposition 24 at p. 29, ll. 6 ­ 19.) 25 3. Within three days of the U of A shootings, plaintiff was overheard, and

26 admitted saying that "if this guy's instructors screwed with him half as much as ours have 27 with me, I can understand why he did something. . . ." (Plaintiff's deposition at p. 123, l. 28 17 ­ p. 124, l. 11, p. 125, l. 7 ­ p. 126, l. 3, p. 126, ll. 16 ­ 20.)
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4.

Plaintiff also admits saying, "I can understand the pressure," you know,

"that you feel when you're constantly being screwed with by your instructors." (Plaintiff's deposition at p. 125, l. 7 ­ p. 126, l. 3.) 5. The nursing program at MCC consists of four "blocks." A "block is the

same thing as a semester. (Plaintiff's deposition at p. 50, ll. 10 ­ 15.) 6. On October 31, 2002, just three days after the Tucson murders, the Block

Four students were required to take the HESI exam at the MCC library. (Plaintiff's deposition at p. 94, ll. 4 ­ 6, p. 123, l. 17 ­ p. 124, l. 11, p. 125, l. 7 ­ p. 126, l. 3, p. 126, ll. 16 ­ 20.) 7. The HESI exam is indicative of how students in their final stage will fare

on the nursing boards. (M. Eshelman's deposition at p. 74, ll. 10 ­ 16.) 8. Plaintiff's score on the HESI test would not have hurt his score; it could

have only helped. (M. Eshelman's deposition at p. 30, l. 12 ­ p. 31, l. 6.) 9. Plaintiff did not have the required score of 76 to pass. (Id.; M. Eshelman

deposition at p. 29, ll. 6 ­ 19, p. 104, l. 19 ­ p. 105, l. 2.) He had already failed Block 4 when he took the HESI exam. (Plaintiff's deposition at p. 102, ll. 12 ­ 15, p. 103, ll. 10 ­ 15.) 10. Nursing student, Bridgett Allen ("Allen") reported to Myrna Eshelman,

nursing department chair at MCC, that, on October 31, 2002 prior to entering the HESI test at the library, she overheard plaintiff say that he had his own "list of three" instructors like the guy down in Tucson. (B. Allen's deposition at p. 9, l. ­ p. 10, l. 10, p. 22, ll. 5 ­ 20, p. 24, ll. 5 ­ 16, p. 25, ll. 6 ­ 17, p. 27, l. 4 ­ p. 28, l. 2.) 11. Due in part to the recent shootings in Tucson, security at the MCC library,

where the HESI test was being administered on October 31 2002, was increased. (S. Corich's deposition at p. 18, ll. 11 ­ 18, p. 34, l. 23 ­ p. 35, l. 7.) Security received reports that plaintiff made statements that were sympathetic to the Tucson murderer's plight. (S. Corich's deposition at p. 17, l. 21 ­ p. 18, l. 7, and at. Exhibit 1, p. MCC 00013.)
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12.

Plaintiff's statements and reports created an immediate concern among both

students and staff at MCC. (S. Corich's deposition at p. 18, ll. 8 ­ 21, and at Exhibit 1, p. MCC 00018; M. Eshelman's deposition at p. 21, l. 10 ­ p. 23, l. 18, p. 24, l. 23 ­ p.25, l. 13, p. 72, ll. 9 ­ 24.) 13. Steve Corich, the Director of Public Safety for MCC, explained to the

students as they came into the library that they were conducting a voluntary search for weapons. (Plaintiff's deposition at p. 115, l. 20 ­ p. 117, l. 2.) 14. Plaintiff placed his book bag on the table for Mr. Corich to inspect.

(Plaintiff's deposition at p. 118, ll. 3 ­ 18.) 15. Plaintiff opened his vest to demonstrate that he had no firearms. While

doing this, another security officer, Lynn Bray, noticed plaintiff's knife clip and, while holding plaintiff's arm, notified the other security personnel that plaintiff had a knife. (Plaintiff's deposition at p. 118, ll. 3 ­ 18.) 16. Officer Bray then began to pat down plaintiff and discovered plaintiff was

also carrying a collapsible baton in his back pocket. (Plaintiff's deposition at p. 118, l. 3 ­ p. 119, l. 3.) 17. These items were immediately confiscated from plaintiff, and Mr. Corich

informed him that these weapons were not allowed on campus. (Plaintiff's deposition at p. 119, ll. 4 ­ 9.) 18. Plaintiff thereafter entered the library to take the HESI exam. He sat down

in the vicinity of another nursing student, with whom plaintiff had a short conversation. (Plaintiff's deposition at p. 120, ll. 15 ­ 18, p. 126, l. 16 ­ p. 127, l. 11.) 19. Ms. Eshelman, who was a short distance away, reported to security

personnel that she heard plaintiff say "they searched my bags. I think they thought I was going to do the Tucson thing, even though there are people here that deserve it." (M. Eshelman's deposition at p. 54, l. 10 ­ 55, l. 25.)

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20.

Ms. Eshelman, who was in charge of starting the exam, got the exam

started, and then immediately sought out security and reported what she heard. (Id.; M. Eshelman's deposition at p. 21, l. 24 ­ p. 22, l. 12.) 21. After plaintiff finished his test, Deb Bitter, an instructor at the nursing

college, received the non-discretionary score. The HESI exam did not raise plaintiff's failing grade in Block 4; as such, Ms. Bitter approached plaintiff with the results, and indicated to him that he should come to her office to discuss his future career plans. (Plaintiff's deposition at p. 104, l. 23 ­ p. 106, l. 5, p. 107, ll. 14 ­ 16.) 22. Plaintiff claims the students were told right before taking the HESI exam

that if they did not pass, they would get a second chance to take the exam again later. (Plaintiff's deposition at p. 106, ll. 14 ­ 17.) 23. Plaintiff cannot identify anyone who has taken the HESI exam a second

time after failing it the first time. (Plaintiff's deposition at p. 107, ll. 17 ­ 22.) 24. Plaintiff has never inquired whether he could take the HESI exam a second

time after he failed it. (Plaintiff's deposition at p. 107, ll. 20 ­ 22.) 25. Mr. Corich reported plaintiff's comments and the circumstances

surrounding plaintiff's arrival for the HESI exam to Brian Johnson, the Dean of Students and Community Services. (Affidavit of Dean Brian Johnson at ¶¶ 3 ­ 5 and at Exhibit A; S. Corich deposition at p. 23, l. 22 ­ p. 24, l. 3.) 26. Mr. Corich recommended to Dean Johnson that the college not "tread

lightly" and that "for the safety of all concerned," plaintiff should be "barred from campus." (Id.) 27. As a result, Dean Johnson sent a letter to plaintiff, dated October 31, 2002,

informing him that he was suspended, and was not permitted to enter the MCC campus. (Affidavit of Dean Brian Johnson at ¶ 6 and Exhibit A.) 28. The very next day after plaintiff was suspended, on November 1, 2002,

plaintiff met with Mr. Corich regarding his suspension. (Plaintiff's deposition at p. 134, ll. 4 ­ 10; S. Corich deposition at p. 24, ll. 19 ­ 21.)
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29.

In this meeting, plaintiff gave Mr. Corich "the full context" of his

statements regarding the Tucson incident. (Plaintiff's deposition at p. 134, ll. 11 ­ 14.) 30. Mr. Corich sent an e-mail to Dean Johnson indicating that he no longer

believed plaintiff was a "threat to faculty or fellow students." (S. Corich's deposition at Exhibit 1.) 31. Plaintiff then met with Dean Johnson regarding his suspension. (Plaintiff's

deposition at p. 108, ll. 8 ­ 12.) 32. As a result of these meetings with plaintiff, Dean Johnson lifted plaintiff's

suspension effective January 1, 2003. (Affidavit of Dean Brian Johnson at ¶ 7 and at Exhibit C.) 33. Plaintiff has no recollection of anyone at the school ever saying anything

that evidenced a dislike of him because of his veteran status. (Plaintiff's deposition at p. 27, ll. 6 ­14.) 34. Nobody at the school ever said anything or did anything that suggested a

bias against plaintiff because of his membership in his church. (Plaintiff's deposition at p. 34, ll. 3 ­ 12.) 35. Because plaintiff failed one of his required courses, in order to continue his

studies, he would have needed to reapply to the program. (Plaintiff's deposition at p. 37, l. 11 ­ p. 38, l. 6; M. Eshelman's deposition at p. 119, ll. 17 ­ 21, and Exhibit 9.) 36. Plaintiff never applied for reinstatement to the program. (Plaintiff's

deposition at p. 37, l. 11 ­ p. 38, l. 4, p. 41, ll. 14 ­ 25.) 37. Plaintiff has no reason to believe any faculty member or administrator at

MCC had a bias against him because of his age. (Plaintiff's deposition at p. 36, ll. 9 ­ 19.) 38. Plaintiff was never disciplined for inappropriate dress. (Plaintiff's

deposition at p. 74, ll. 7 ­ 12.) 39. Plaintiff does not believe that any administrator wanted to get him out of

the program. (Plaintiff's deposition at p. 83, ll., 11 ­ 15.)
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40.

Plaintiff identifies four people he ever had conflicts with at the college:

two instructors from his first semester (Pat English and Esther Houghland), one from his third semester (plaintiff cannot recall her name), and one from his final semester (Deb Bitter). (Plaintiff's deposition at p. 52, l. 6 ­ 7, p. 58, l. 16 ­ p. 59, l. 20, p. 81, l. 4 ­ p. 82., l. 1.) 41. Before plaintiff ever met Ms. English, he had heard rumors that she was

"not one of the nicer instructors." (Plaintiff's deposition at p. 48, l. 22 ­ p. 49, l. 20.) 42. In an evaluation letter dated May 8, 2001, plaintiff wrote, "[Ms. English]

appears to be abrasive, sarcastic and generally, a disrespectful individual to both students and staff. . . . I observed some occasions where [she] has had some of the girls in class in tears and others became afraid of her. . . . I have found [her] lacking in compassion and taking a little more aggressive approach in the negative toward the male students in the class." (Plaintiff's deposition at p. 47, l. 23 ­ p. 48, l. 4; M. Eshelman's deposition at Exhibit 2.) 43. Plaintiff said that everyone complained about Ms. English, that "she had

some of the girls in tears. She would holler at people and cut you off . . . Everybody else just had the toughest time in dealing with her." (Plaintiff's deposition at p. 67, ll. 4 ­ 13.) 44. Plaintiff speculates that Ms. English was bothered by plaintiff for other,

non-protected reasons ­ specifically, his previous paramedic experience. Plaintiff says that these non-protected reasons might be the reason for his perceived mistreatment. (Plaintiff's deposition at p. 67, l. 21 ­ p. 69, l. 6.) 45. Plaintiff's further speculation that Ms. English did not like him because of

his "biker dress" is supported by nothing other than plaintiff's perception that, at times, she would "glare" at him. (Plaintiff's deposition at p. 69, l. 15 ­ p. 70, l. 3.) 46. The second instructor plaintiff had conflicts with, Esther Houghland,

"treated [him] like anybody else" at the beginning of the semester until the last couple of weeks. (Plaintiff's deposition at p. 60, ll. 5 ­ 13.)

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47.

Plaintiff's conflict with a third instructor was a result of plaintiff asking out

another instructor on a date. (Plaintiff's deposition at p. 81, l. 4 ­ p. 82, l. 1.) 48. Plaintiff had heard before he ever began Ms. Bitter's class that she is mean

and she is tough. (Plaintiff's deposition at p. 84, l. 25 ­ p. 85, l. 5.) 49. Plaintiff heard that "[Ms. Bitter] came down on a bunch of people," and

that he himself "saw her yell at somebody . . . there at clinical." (Plaintiff's deposition at p. 85, ll. 6 ­ 23.) 50. Plaintiff's claim that the District violated his due process rights is centered

on the fact that he was suspended and removed from campus before he had an opportunity to be heard. (Complaint at ¶ 59 ­ 63.) 51. Plaintiff's April 14, 2003 notice of claim never once suggests the District

breached any contract with him. (See Plaintiff's Notice of Claim.) 52. The student handbook at MCC can be modified at any time by the

administration. (General Student Handbook at § 2.1(A).) 53. The General Student Handbook itself contains exceptions to the general

rule that a hearing is required prior to suspension. (Complaint at ¶ 17; General Student Handbook at § 2.5.2, Article IV, ¶ C.) 54. The exceptions dictate that a post-suspension hearing can replace a pre-

suspension hearing for the safety of students, faculty, or the student himself, or for the preservation of college property, or to combat a threat of disruption. (Complaint at ¶ 17.) 55. Plaintiff's notice of claim does not identify any statements by Ms.

Eshelman as the basis for a defamation claim. (Plaintiff's Notice of Claim at p. 11.) Further, the notice does not identify the statements that plaintiff now complains about. (Id.) 56. The Nursing Student Handbook states that grades will not be rounded.

(Handbook at pg. 8, MCC 00036; M. Eshelman deposition at p. 111, ll. 8 ­ 17.)

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57.

Plaintiff cannot confirm that any student has ever had their grade rounded

up to a passing grade since the policy took effect. (Plaintiff's deposition at p. 110, ll. 7 ­ 10.) 58. Plaintiff was asked if he believed there were any statements ever made

about him by a District employee that were untrue or false. (Plaintiff's deposition at p. 139, l. 25 ­ p. 140, l. 4.) 59. Plaintiff stated that there was only one person, Myrna Eshelman, and she

had made two statements about him. (Plaintiff's deposition at p. 140, l. 5 ­ p. 141, l. 1.) 60. Plaintiff alleges the first untrue statement was Ms. Eshelman's statement in

her deposition that plaintiff came and spent an hour in her office as well as her deposition testimony that her relationship with plaintiff was limited to one of "passing in the hall." (Plaintiff's deposition at p. 141, ll. 2 ­ 24.) 61. Plaintiff alleges that he never sat in her office with her, and also, their

relationship was more than just "passing in the hall" because he had helped her move some furniture from the parking lot and had on another time offered assistance to her to carry in some boxes. (Plaintiff's deposition at p. 141, ll. 2 ­ 24.) 62. The second untrue statement plaintiff claims was Ms. Eshelman's statement

that she heard him say in the library that he "had a list or anything like that. . . ." (Plaintiff's deposition at p. 141, ll. 21 ­ 23.) Plaintiff declares, "that was never said." (Id.) 63. All of Ms. Eshelman's alleged untrue statements were made "in her

deposition in [plaintiff's attorney's] office." (Plaintiff's deposition at 142: 4-11.) 64. Plaintiff has no idea whether any person has changed the way he or she

feels about him based on anything Myrna Eshelman said. (Plaintiff's deposition at p. 142, ll. 12 ­ 15.)

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RESPECTFULLY SUBMITTED this 23rd day of November, 2005. LEWIS AND ROCA LLP

s/ Justin S. Pierce Troy P. Foster Justin S. Pierce Attorneys for Defendant

By

CERTIFICATE OF SERVICE I hereby certify that on November 23, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant. Steven L. Evans Steven L. Evans PLC 322 West Roosevelt Street Phoenix, Arizona 85003-1325 Attorneys for Plaintiff /s/ Kathleen A. Topczewski

INDEX OF EXHIBITS Ex. No. 1. 2. Description Plaintiff's deposition CBS News Article, Arizona gunman Had Threatened School, http://www.cbsnews.com/stories/2002/10/30/national/main527553.shtml 3. 4. Myrna Lee Eshelman's deposition E-mail dated October 30, 2002 from M. Eshelman to S. Corich, Y. Penley regarding security ­ Exhibit 2 to Myrna Lee Eshelman's deposition 5. Maricopa Community College District Nursing Program "Nursing Student Handbook" ­ Exhibit 9 to Myrna Lee Eshelman's deposition 6. 7. 8. Bridgett Allen's deposition Steve Corich's deposition Mesa Community College Incident / Offense Report - Exhibit 1 to Steve Corich's deposition 9. E-mail dated October 30, 2002 from M. Eshelman to S. Corich, Y. Penley regarding security ­ Exhibit 1, p. MCC 00013 to Steve Corich's deposition 10. E-mail dated October 31, 2002 from S. Corich to M. Eshelman regarding security ­ Exhibit 1, p. MCC 00018 to Steve Corich's deposition 11. 12. Affidavit of Dean Brian Johnson E-mail exchange dated October 31, 2002 regarding security ­ Exhibit A to the Affidavit of Dean Brian Johnson 13. Letter dated December 5, 2002 from Dean Brian Johnson to I. Kushner regarding suspension is lifted ­ Exhibit C to the Affidavit of Dean Brian Johnson 14. 15. 16. 17. General Student Handbook Nursing Handbook at pg. 8, MCC 00036 Plaintiff's Notice of Claim Plaintiff's Complaint

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