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Ross v. Board of Education of Mason County

United States District Court, E.D. Kentucky

March 24, 2015

MICHAEL ROSS, Plaintiff
v.
BOARD OF EDUCATION OF MASON COUNTY, et al., Defendants.

MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING, District Judge.

I. Introduction

Defendants Donald Pace, Rick Ross and the Mason County Board of Education (collectively, the "MCBE Defendants") move for summary judgment on Plaintiff Michael Ross' ("Ross") claim for First Amendment retaliation under 42 U.S.C. § 1983, arguing that Ross failed to prove the following elements: (1) he engaged in protected speech under the First Amendment; and (2) his transfer was motivated, at least in part, by his speech. The MCBE Defendants further contend that summary judgment is appropriate on Ross' state law claims because his transfer was neither punitive nor arbitrary and capricious. In the alternative, the MCBE Defendants maintain that they are entitled to immunity on all federal and state law claims asserted against them. The Court has jurisdiction over this matter pursuant to 32 U.S.C. §§ 1331 and 1367.

II. Factual and Procedural Background

Michael Ross taught Agriculture at Mason County High School ("MCHS") from 1987 to 2013. (Docs. # 17-1 at 7; 17-3 at 1). He was the sole instructor in the Agriculture Department for most of his tenure. (Doc. # 17-1 at 80). His courses were part of MCHS' Career and Technical Education program, which encourages students to become "career-certified" by completing three courses in a specific vocational "pathway" and passing the Kentucky Occupational Skills Standards Assessment ("KOSSA") test. ( Id. at 15). In addition to the necessary certifications from the Educational Professional Standards Board ("EPSB"), Ross holds a Bachelor's degree in Agriculture Education and a Master's degree in Vocational Education.[1] (Doc. # 17-3 at 1).

While employed in this capacity, Ross also supervised the Future Farmers of America club ("FFA") and coached the boys golf team. ( Id. ). He held a valid commercial driver's license ("CDL"), which enabled him to transport these students to field trips and competitions.[2] (Doc. # 17-1 at 32). Ross served as a teacher representative on the Site-Based Decision-Making Council[3] ("SBDM Council") and participated in numerous professional organizations, including the Mason County Education Association ("MCEA"), Kentucky Educators Association ("KEA") and Education Professional Standards Board ("EPSB"). ( Id. at 8-11). However, Ross' tenure was not without conflict. He not only clashed with administrators on fiscal and pedagogical concerns, he was disciplined for several safety infractions committed while transporting students.

On September 28, 2000, Ross used a van, on loan from the city of Maysville, to transport the boys golf team to a tournament in Glasgow, Kentucky. ( Id. at 89-91). Prior to the trip, former Principal Wayne Keen ("Keen") allegedly told Ross that state law did not allow students to be transported in that type of vehicle. (Doc. # 17-5 at 8). Ross denied that such a discussion took place. (Doc. # 17-1 at 89-91). Keen sent Ross a letter of reprimand and recommended that he be prohibited from driving school buses or representing MCHS at co-curricular/extra-curricular events for one year. (Doc. # 17-5 at 9). Ross transported FFA students to an event in Louisville soon after. (Docs. # 17-1 at 95-96; 17-5 at 10). Although the record is not well-developed on this point, Ross allegedly disabled the video camera on the bus so that he could not be observed while driving. (Docs. # 17-3 at 9; 17-5 at 10).

On January 16, 2001, former Superintendent Tim Moore ("Moore") adopted Keen's recommendation. (Doc. # 17-5 at 10, 16). Citing Ross' conduct on both the Glasgow and Louisville trips as grounds for disciplinary action, Moore suspended Ross' bus driving and coaching privileges for one year, suspended his teaching responsibilities for two days without pay and instructed him to develop a positive communication plan. ( Id. ). Ross submitted his communication plan and served his suspension in due course. (Doc. # 17-1 at 97-98).

About two years later, Ross and Moore clashed over the issue of Ross' fifty-five days of extended employment. Under Kentucky law, Agriculture teachers are entitled to receive a salary for instructing students in agriculture experience programs during the summer months.[4] (Doc. # 17-1 at 67-69). Moore allegedly tried to take away Ross' statutorily mandated extra days, prompting Ross to file a lawsuit against Moore. ( Id. ).

Ross' lawsuit coincided with administrative efforts to enhance the MCHS Agriculture program by increasing student enrollment, involving local farmers and scheduling more site visits during the school year. (Docs. # 17-1 at 67-70; 17-5 at 19-30). As part of this initiative, Moore informed Ross that he needed to have a certain number of students in the Agriculture program. (Doc. # 17-1 at 77). Although Ross acknowledged the importance of student recruitment, he balked at Moore's suggested quota because he felt that it was arbitrary. ( Id. ).

Principal Steven Appelman ("Appelman") also tasked Ross with setting up an advisory committee of local farmers and community leaders. (Doc. # 17-1 at 112-13; 17-5 at 25). This committee, dubbed the Mason County Agriculture Council, met for the first time in Summer 2003. (Docs. # 17-1 at 112-13; 17-5 at 25). When the subject of student enrollment came up, Ross allegedly began yelling about the Mason County Board of Education's ("the Board") attempt to reduce his salary and hold him accountable for the number of students in his class. (Doc. # 17-5 at 19; Doc. # 17-1 at 121-124). He also reportedly accused Appelman and former Assistant Principal Dana Belcher of misrepresenting his enrollment numbers and arranging the school schedule to hurt enrollment in his classes. ( Id. ). When asked about this incident at his deposition, Ross stated that he had been "falsely describe[d]... as yelling, enraged and belligerent." (Doc. # 17-2 at 1).

Moore, Appelman and Dana Belcher tried to meet with Ross and discuss the Council's progress, as well as his outburst, but he refused to answer questions without his lawyer present. (Docs. # 17-1 at 115-19; 17-5 at 21-24). Ross characterized this meeting as one of several occasions where Moore tried to intimidate him and indicated that the administrators had specifically changed the meeting time to ensure his lawyer's absence. (Doc. # 17-1 at 67-71). Ross ultimately received a written reprimand for "conduct unbecoming a teacher, insubordination, [and] unprofessional behavior." (Doc. # 17-5 at 31-32).

Moore later abandoned his plan to take away Ross' extended days, but conflict persisted between the two men. (Doc. # 17-1 at 72). In 2006, MCHS received funding to build a greenhouse.[5] ( Id. at 73-75). Once construction began, Moore informed Ross that he would need to use the greenhouse year-round. ( Id. ). Ross felt that this "[wa]s ludicrous, in a greenhouse that can reach very high temperatures, even with a cooling system going, to have anything in there in the very hottest part of the year." ( Id. ). Ross tried to explain this to Moore, but felt that his point was not well-received. ( Id. ). Around this time, Ross heard from Appelman that Moore had expressed his intent to remove Ross from teaching if the greenhouse situation did not improve. ( Id. at 73).

The greenhouse sits on the same tract of land as MCHS' sports facility, known as the Carmeuse Complex ("the Complex"). Because the Complex sits across the street from the main campus, MCHS had to arrange for student transportation to and from the Complex. (Docs. # 27 at 26; 17-5 at 6). According to Appelman, these transportation concerns meant that the greenhouse was underutilized. ( Id. ). At Appelman's suggestion, Moore reinstated Ross' driving privileges, thus allowing Ross to transport Agriculture students to and from the greenhouse. ( Id. ).

In Summer 2012, Ross used a school bus to transport a group of students to Hardinsburg, Kentucky. (Doc. # 17-1 at 32). Former Transportation Director Gerald Fulk ("Fulk") later reviewed bus camera footage from the trip and discovered that Ross had committed a number of safety violations. ( Id. at 49). Fulk privately warned Ross that further safety violations would result in disciplinary action. ( Id. at 50). Ross recalled that both men "left that meeting with the understanding that [Fulk] was disappointed, " but that Ross' transportation efforts "w[ere] helpful in several respects from a supervisory standpoint." ( Id. ). Ross transported students on two more trips after that conversation took place. ( Id. ).

Fulk remained troubled by Ross' conduct on the Hardinsburg trip. (Doc. # 17-4 at 1-2). Ross sped on multiple occasions and failed to secure items loaded onto the bus, which "would have become projectiles, striking the students and/or blocking the aisle of the bus, " had there been an accident. ( Id. ). He had also allowed students to lash two fans to seats at the rear of the bus, blocking visibility and causing him to back the bus into a signpost. ( Id. ). When asked to account for his actions, Ross explained that he had become accustomed to putting extra gear on the bus when a regular driver transported them to Hardinsburg, so he continued that practice. (Doc. # 17-5 at 1-2). He admitted that he "recognize[d] the risk involved in the manner in which some of the luggage and equipment had shifted, " but felt that the risk became "more circumspect with the pictures." ( Id. ). He denied putting anyone in danger and promised to "concentrate on doing better in the future." ( Id. ). Fulk recommended that Ross be suspended from bus driving duties. ( Id. at 7).

That same summer, Kentucky's Auditor of Public Accounts ("the State Auditor") conducted an audit of the Mason County School District (the "District"). (Doc. # 25 at 23-24). Although it is unclear what prompted the state audit, based on the record before this Court, Assistant Superintendent Kermit Belcher ("Belcher") heard that someone had filed a complaint with the Office of Education Accountability ("OEA") about the District's spending habits. ( Id.; Doc. # 33 at 36-37). When the State Auditor released its report in Fall 2012, it revealed that administrators had paid for dinners at exclusive restaurants and nights in upscale hotels with District funds. (Doc. # 17-2 at 73). Ross published an editorial about the report in the local newspaper, criticizing both the administrators' excessive travel expenses and the Board's failure to immediately remove "employees that have treated district money as their own personal slush fund." (Doc. # 29-3 at 5).

A few weeks after the State Auditor released its report, Moore announced his retirement. (Doc. # 17-2 at 73). However, most of his Central Office staff remained in place. (Docs. # 25 at 23-24; 33 at 22-23). Belcher and former Associate Superintendent Liz Pettit managed the Central Office's daily affairs while the Board searched for an Interim Superintendent.[6] ( Id. ).

After seeing a job posting on the Kentucky School Board Association's ("KSBA") website, retired Clark County Superintendent Donald Pace ("Pace") applied for the Interim Superintendent position. (Doc. # 33 at 8-9). In the course of his career, Pace had crossed paths with some of the Board members. ( Id. ). He had also met Moore a few times at annual superintendent conferences, as well as school athletic events, but did not communicate with him regularly or give him professional advice. ( Id. ). None of these individuals contacted Pace about the job. ( Id. ). About one week after his interview, the Board officially hired Pace at its meeting, attended by thirty to fifty people. ( Id. at 12, 25-27). Here, Pace heard for the first time about the "arrogance" of the prior administration and the "fear tactics" used to intimidate people. ( Id. ). He could not recall the identity of the speaker. ( Id. ).

Pace felt that his "first charge... was to determine if policies and procedures were in place that would have been violated as indicated by the auditor's report." ( Id. at 17-18). He followed up with individuals referenced in the State Auditor's report and asked them for individual responses to the allegations contained therein. ( Id. at 18). Although Pace initially believed that the State Auditor's report revealed errors in judgment, rather than statutory violations, he later found the criticisms contained in the report to be legitimate. ( Id. at 18-22). In an effort to diffuse the tension of the situation, Pace also told classified and certified staff that he "realized they were in a precarious situation, " as they had likely established professional relationships and personal friendships with Moore. ( Id. ). He made it clear that he did not wish to disrupt any personal relationships, but would not permit staff members to discuss his day-to-day decisions with Moore. ( Id. ).

A few weeks into Pace's tenure, Ross asked to meet with him. ( Id. at 25-28). Pace was still unfamiliar with most of teachers in the District, so Pace asked Central Office staff about Ross before their scheduled meeting. ( Id. ). Although Pace could not recall the source of this information, he was told that Ross may have been one of the individuals who contributed to the audit. ( Id. ). At their meeting, Ross informed Pace that he was President of the MCEA and offered several suggestions for boosting morale and improving overall operation in the District. ( Id. at 35). Pace testified that he was not particularly receptive to Ross' suggestions because Ross was highly critical of the District and Moore, which made Pace feel "apprehensive." ( Id. at 40).

Soon after, Pace received a phone call from one of the District's attorneys, Donald Ruberg ("Ruberg") who explained that Moore had filed a complaint against Ross for safety violations committed while transporting students. ( Id. at 31-32). Pace asked Belcher and newly-appointed Transportation Director Larry Brewer ("Brewer") for more details about the incident. ( Id. at 34).

In December 2012, Ross met with Pace and asked him to allow the MCEA to coordinate the search for the next school superintendent. ( Id. at 44). Pace admits that he was not receptive to this suggestion because he felt that they "need[ed] to have an outside entity to perform this type of service, " especially given "the perception of Mason County at that time." ( Id. at 46). He was also under the impression that the KSBA or Kentucky Association of School Administrators ("KASA") usually conducted such searches. ( Id. at 44).

Pace then told Ross that he thought the purpose of the meeting was to address the alleged safety violations. ( Id. ). When Pace asked whether he would like to share any information about these allegations, Ross admitted that most of them were true, but felt that he had been singled out because he had seen other drivers follow the same practices with impunity. ( Id. at 47-48).

Pace asked Ruberg for Ross' personnel files. ( Id. at 51). Ruberg advised Pace not to review those files because he would likely have to decide whether or not to revoke Ross' driving privileges. ( Id. ). Pace heeded Ruberg's advice, but inquired further about Ross at Central Office. ( Id. ). Belcher informed Pace that Ross received positive annual evaluations with regard to his teaching. ( Id. at 52).

At its December meeting, the Board selected the KSBA to coordinate the superintendent search and hired CPA Susan Ross ("CPA Ross") to conduct an independent forensic audit of District finances. ( Id. at 53-54). CPA Ross was supposed to pick up where the State Auditor left off and delve into the District's day-to-day financial transactions in much more detail. ( Id. ).

After further reviewing Ross' transportation practices on the trip to Hardinsburg, Ruberg concluded that Ross should be terminated as a bus driver, based on the following five violations of federal, state and local law: (1) improper loading of the bus; (2) speeding; (3) operating the bus while using a cell phone; (4) driving the bus while the door was open; and (5) backing up the bus and denting it. (Doc. # 17-3 at 9). Given the allegations made and the information they had about his safety practices, Pace agreed that the District "would certainly be liable" in the event of an accident. (Docs. # 17-3 at 12; 33 at 55).

Pace sent Ross a letter notifying him of the decision to terminate his bus driving privileges. (Doc. # 17-3 at 12). He enclosed a form for appeal, which had to be "completed within ten (10) days of today's date." ( Id. ). When Belcher hand-delivered the letter, Ross asked whether the ten day period included normal days or just working days. (Doc. # 33 at 55; Doc. # 17-1 at 38). Although Belcher promised to find out, Ross never heard back from him. (Doc. # 17-1 at 38). Ross eventually decided to follow up on his own, but the time to appeal had already elapsed. ( Id. ).

Pace reported Ross' safety infractions to the EPSB. (Doc. # 17-3 at 13). He characterized this action as "a routine mode of operation, " stating that he automatically referred all issues concerning student safety to the EPSB. (Doc. # 33 at 45-46, 59). The EPSB admonished Ross for his misconduct and gave him thirty days to respond in writing or request a hearing, but he did neither. (Docs. # 17-3 at 14; 17-1 at 45-46). The admonishment remains on his record. (Doc. # 17-1 at 46).

Acting in his capacity as MCEA President, Ross filed an Open Records Request with Board Chair Curtis Rosser ("Rosser") in February 2013. (Doc. # 29-5). Ross requested the following information: (1) a copy of the private audit report and all related documents;

(2) names of current/former employees who made restitution to the District; (3) the amount and reason for those payments; (4) names of certified employees whose salary and/or benefits were increased above the amount received by all certified employees; and (5) the salary and benefits for current and former certified employees who worked in district administration for the past seven years. ( Id. ).

Pace recalls that the Open Records Request made several employees uncomfortable because they did not want their salaries to be public knowledge. (Doc. # 33 at 39). In light of the recent audits, Pace was also "very hesitant to release information on my own without checking with counsel to assure that my actions were appropriate." ( Id. at 57). He referred the request to the Board's regular attorney, Sue Brammer, who allegedly told Ross that the audit was ongoing. ( Id. ). The audit had not been completed by the time Pace left office. ( Id. at 58).

About one month later, Pace received a few parent complaints about bullying in Ross' classroom while he was absent. ( Id. at 60). These reports prompted Pace to review teachers' attendance records. ( Id. at 61). He discovered that Ross and fellow vocational teacher Shannon Roberts ("Roberts") had twenty absences each, which Pace found excessive, given "the impact... on other students under their auspices." (Doc. # 28-1 at 87). He was also surprised to see that teachers could simply state the reason for their absence as "school business, " without any further specificity. (Doc. # 33 at 66-67). After admonishing Principal Appelman for allowing excessive absences, Pace changed the absence policy for all MCHS faculty by requiring them to explicitly state what kind of school business required their absence from class. ( Id. ).

Pace also informed Ross and Roberts that they were "prohibited from additional professional or school business leave." ( Id. ). If any of their students were committed to co-curricular or extra-curricular activities in the remaining months of the school year, parents or other teachers would have to fill in for them. ( Id. ). Although Pace did not want students to miss out on co-curricular or extra-curricular activities, he also did not want the students who remained behind to suffer due to their teachers' absences. ( Id. ). Despite his prohibition on further absences, Pace allowed Roberts to go to one competition where her daughter was a finalist. ( Id. ). After conferring with EPSB Executive Director Brown about the demands of EPSB membership that year, Pace also permitted Ross to attend two more meetings in Frankfort. ( Id.; Doc. # 17-5 at 53).

At the Board's spring meeting, Ross orally requested permission to conduct certain class activities at the Complex. (Docs. # 33 at 72-73; 17-2 at 82-84). Although Pace could not recall such a conversation at his deposition, emails suggest that Ross had spoken to Pace about the proposed activity prior to the meeting. (Doc. # 17-5 at 62-63). Pace told Ross to coordinate with Appelman. ( Id. ). Regardless, Pace took issue with the informal nature of Ross' request. (Doc. # 33 at 72). In Pace's personal experience, any requests for Board approval should be in writing so that the Board can review the proposal and formulate questions for the meeting. ( Id. ). Accordingly, Pace suggested to Chair Rosser that he "refrain from allowing the latitude recently granted to [Ross] as a separate entity from other citizens and/or staff at future meetings." (Doc. # 28-1 at 100). He then notified Ross that he would "no longer be allowed to address the Board with a new proposal that comes to your mind on the spur of the moment" and "is not germane to the Agenda item being consider[ed] for action." ( Id. ).

As the 2012-2013 school year drew to a close, Pace, Appelman and Belcher began discussing plans for the 2013-2014 school year. (Docs. # 27 at 21-22; 33 at 74). Pace remembered "looking at the financial status of the school system and the anticipated expenditures for the next year, and [ ] primarily focusing on the balance to be left for the new superintendent coming on board." (Doc. # 33 at 74). Stated simply, he did not want to incur any additional financial expenditures unless absolutely necessary. ( Id. ). Pace was also trying to make sure that the "instructional program and teaching learning process [did] not falter during this particular period of time of transition that the school system was going to be going through." ( Id. at 83). As the three men reviewed MCHS test scores, released in November 2012, it became clear that MCHS students ...


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