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Pacheco v. Waldrop

United States District Court, Sixth Circuit

June 11, 2013

SHAWNDA PACHECO, Plaintiff,
v.
NANCY WALDROP, individually and in her official capacity as Superintendent of the McCracken County School System, and VICTOR ZIMMERMAN, individually and in his official capacity as Principal of Reidland High School, Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, Senior District Judge.

This matter is before the Court upon Plaintiff Shawnda Pacheco's Motion for Temporary Restraining Order. (Docket No. 3.) Defendants Nancy Waldrop, individually and in her official capacity as superintendent of the McCracken County School System, and Victor Zimmerman, individually and in his official capacity as principal of Reidland High School, have responded in opposition, (Docket No. 11), and Pacheco has replied, (Docket No. 15.) This matter is now ripe for adjudication. For the reasons that follow, Pacheco's Motion will be DENIED.

BACKGROUND

This litigation arises out of the termination of Plaintiff Shawnda Pacheco from her teaching position at Reidland High School (RHS). Pacheco filed this action on March 21, 2013, pursuant to 42 U.S.C. § 1983 and the Kentucky Whistleblower Act, Ky. Rev. Stat. § 61.102 et seq. ( See Docket No. 1.) Pacheco alleges that she was wrongfully terminated by Defendant Nancy Waldrop in violation of her First Amendment Right to Free Speech. Pacheco also alleges that Waldrop and Defendant Victor Zimmerman together violated the Kentucky Whistleblower Act by terminating her employment because of certain statements she made.[1]

Waldrop is the superintendent of the McCracken County School District (District). At the time of Pacheco's termination, the District was comprised of six elementary schools, three middle schools, and three high schools, among which was RHS. RHS serves students from Reidland Middle School, which is physically connected to RHS. Zimmerman was, at the time of Pacheco's termination, the principal of RHS. Pacheco taught Spanish at RHS for some ten years prior to her termination on January 18, 2013. RHS had approximately 450 students and, in addition to Zimmerman, had an assistant principal, Jodi Butler, and a District resource officer, Bruce Watson.

Although the parties' specific accounts vary, sometime early in the week of December 10, 2012, Taylor Ballard, another RHS teacher, reported to Watson that two female students in one of his classes had overheard two male students in that same class talking about a bomb and possessing some sort of a map or drawing showing where the bomb might be placed. Watson took the two male students to Principal Zimmerman's office, where Zimmerman had each separately write a statement about what had occurred in Ballard's class. The two students wrote similar statements describing a videogame they had played and explained that they had modeled a location they created in that game on the floor plan of RHS. Watson researched the videogame and reported to Zimmerman that the videogame did involve building locations where battles could then take place. Zimmerman and Watson also interviewed the two female students who had initially reported the matter to Ballard. By the end of that school day, Zimmerman and Watson were satisfied that there was no imminent threat or plan to harm the school or its students, concluding that the two male students had, in fact, been discussing a videogame and that their overheard conversation had been misinterpreted. Zimmerman thereafter informed Butler of the situation and together they contacted the parents of the students who had been investigated as well as the students who had made the report.

Zimmerman then relayed the incident to Larry Zacharetti, the District's safety director, and Russ Tilford, the District's director of student personnel. Zimmerman called Waldrop and left a message about the incident, and Tilford conveyed Zimmerman's conclusions to Waldrop. Tilford agreed with Zimmerman that the two male students had not violated any code of conduct and that no disciplinary action was warranted. Based on the information she received, Waldrop understood that two male students had been overheard discussing bombs and a map of RHS, which had been investigated as a perceived threat. It was Waldrop's understanding that the matter had been investigated and determined not to involve an actual threat but merely a misinterpreted discussion of a videogame. Waldrop considered the matter closed, and no disciplinary action was taken against either of the investigated students.

One of the two male students, whom the parties refer to as "Student 1, " was absent the day after the investigated incident but was in attendance later that week on Friday, December 14, 2012. Notably, December 14 was also the day of the elementary school shooting in Newtown, Connecticut. That morning, Zimmerman observed Pacheco talking to another teacher, Michael Wood, in the hallway. Wood told Zimmerman that he had seen a student, whose name Wood did not know, carrying a large bag with something dangerous in it. Zimmerman subsequently saw Student 1 carrying an oversized bag and, due to Wood's concern, asked Student 1 to come to his office. Student 1 allowed Zimmerman to search the bag, and Zimmerman determined that the bag contained only school-related items and nothing dangerous.

Later that day, Pacheco met with another RHS student, whom the parties refer to as "Student 2, " and asked him to write a letter to the Paducah Sun newspaper telling the newspaper that a student who had twice brought weapons to school had been overheard talking about plotting a bomb attack at RHS and had prepared a map of the school relative to that plot. Pacheco dictated the letter to Student 2 as he typed it on a RHS laptop computer and then printed the letter on a printer in RHS's library. Pacheco then asked Student 2 to sign his name to the letter. Pacheco says she asked Student 2 to sign the letter using his name and phone number because she was "hoping to personally avoid the wrath of Waldrop." (Docket No. 3-1, at 8.) Pacheco mailed the letter to the Paducah Sun the next day, Saturday, December 15. That letter stated, in its entirety:

Dear sir,
As a student at Reidland High School, I see fights dealt with promptly, tobacco abuse punished according to school regulations, and even profanity is dealt with promptly. But we have a student, someone who sits in class with us, who has brought weapons twice and most recently plotted a map of bomb and gun attack sites around the school area. The student has yet to be punished for anything. Is it that Doctor Waldrop, the Superintendent, is afraid to enforce school rules? Is he being protected because of some minority status? Although he's not a minority. Is he special ed? Regardless the rest of us sit in class with him knowing he's dangerous. What would you do Mr. Editor?

(Docket No. 1-1.)

The letter reached the Paducah Sun on Monday, December 17. That evening, Waldrop was contacted by Zacharetti, who informed her that the McCracken County Sheriff's office had been contacted by the Paducah Sun after having received a letter containing a serious threat regarding RHS. Later that evening, Waldrop met with Zacharetti, several law enforcement representatives, the attorney for the District, and the Commonwealth Attorney. The Paducah Sun had released the content of the letter to law enforcement but initially refused to release the name and contact information for the letter's author. The sheriff's department informed Waldrop that without the author's name, they were unable to conduct a complete investigation of the threat referenced in the letter. Based on Waldrop's meeting with law enforcement, the decision was made to close RHS the following day, December 18. Because it is physically connected to RHS, Reidland Middle School was also closed December 18.

Law enforcement conducted a search for weapons at RHS while the school was closed on December 18 and ultimately determined the building to be safe. Also on December 18, law enforcement obtained the name of the letter's author. After completing their investigation, law enforcement met with Zimmerman that evening and advised him that there was no threat and that the letter related to the videogame incident the week before. Also during that meeting, Captain Matt Carter of the sheriff's department informed Zimmerman that the letter had been written by Student 2 at Pacheco's direction and that Pacheco had subsequently mailed the letter.

RHS and Reidland Middle School resumed classes the next day, December 19. December 18 and 19 were originally scheduled for final exams, with the holiday break beginning on December 20. Due to the closure, final exams scheduled for December 18 were administered when the school resumed classes in January, and RHS and Reidland Middle School held a makeup day on Presidents' Day, February 18. (Other District schools did not hold classes on Presidents' Day.) When classes resumed on December 19, Zimmerman distributed to the RHS staff a copy of the letter to the editor and a press release from the McCracken County Sheriff's office regarding the incident. Zimmerman also read that information over the intercom to address the students' and faculty's concerns. Jon Hedges, the teacher whose class Student 1 was in when Zimmerman read that information, reported to Zimmerman that other students were looking at Student 1 and talking about him. Hedges was reportedly concerned about Student 1 being bullied and asked Zimmerman how he should respond.

Waldrop thereafter asked the assistant superintendent, Johnna DeJarnett, to investigate the circumstances surrounding the letter. DeJarnett arranged for interviews of RHS personnel, and Zimmerman arranged for an interview of Student 2, the student who had signed the letter to the editor. During his interview, Student 2 reported being asked by Pacheco to write the letter to the editor. Student 2 indicated he did not know who the student was that Pacheco was concerned about and had not heard rumors about bombs or a map of the school. Student 2 told Zimmerman that he felt he should write the letter for Pacheco because Pacheco was a teacher whom he respected. Prior to the District taking any disciplinary action against Pacheco, Waldrop also conducted her own interview of Pacheco. Based on that interview, Waldrop made a number of findings, which are detailed in her affidavit, ( see Docket No. 11-1, at ¶ 14), and ultimately decided to terminate Pacheco on the bases of insubordination and conduct unbecoming a teacher. Regarding the latter, Waldrop found that Pacheco's conduct violated a number of school board policies and Kentucky statutes and regulations, including:

• 16 Ky. Admin. Reg. 1:020, which provides, with respect to students, that school personnel have the obligation to "take reasonable measures to protect the health, safety, and emotional well-being of students"; "not use professional relationships or authority with students for personal advantage"; "keep in confidence information about students which has been obtained in the course of professional service, unless disclosure serves professional purposes or is required by law"; "not knowingly make false ...

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