Susan Sheeler v. Nevada Community School District, Dr. Steve Gray, Justin Gross, and Brian Schaeffer ( 2018 )


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  •                    IN THE COURT OF APPEALS OF IOWA
    No. 17-1275
    Filed August 1, 2018
    SUSAN SHEELER,
    Plaintiff-Appellant,
    vs.
    NEVADA COMMUNITY SCHOOL DISTRICT and DR. STEVE GRAY,
    Defendants-Appellees.
    ________________________________________________________________
    Appeal from the Iowa District Court for Story County, William C. Ostlund,
    Judge.
    Susan Sheeler appeals the district court’s grant of a directed verdict in favor
    of defendants on her constitutional claims. AFFIRMED.
    Andrew J. Zbaracki of Newbrough Law Firm, LLP, Ames, for appellant.
    Kirke C. Quinn of Law Office of Kirke C. Quinn, Boone, for appellees.
    Considered by Vogel, P.J., and Doyle and Bower, JJ.
    2
    BOWER, Judge.
    Susan Sheeler appeals the district court’s grant of a directed verdict in favor
    of Nevada Community School District (Nevada) and Dr. Steve Gray in Sheeler’s
    deprivation of rights claim. We find Sheeler was not deprived of her right to due
    process in her termination hearing and did not have her right against self-
    incrimination infringed upon.    We affirm the district court decision granting a
    directed verdict.
    I.     Background Facts and Proceedings
    Susan Sheeler was a contract employee of Nevada from 2000 to 2014.
    Sheeler, a special education associate at the high school, worked for Nevada
    under yearly contracts.    In April 2014, Nevada offered Sheeler a ten-month
    contract for the 2014–2015 school year, which she signed. The contract provided
    for its termination via two weeks’ notice by either party and reserved Nevada’s right
    of immediate termination for cause.        The school board policy on classified
    employee dismissal also allowed for dismissal upon two weeks’ notice or
    immediately for cause.
    In July 2014, the State filed criminal charges against Sheeler for possessing
    a controlled substance and possession of drug paraphernalia. Sheeler’s arrest,
    along with the arrest of her daughter and her daughter’s boyfriend, appeared in the
    local newspaper on July 23. Upon reading the article, Dr. Steve Gray, Nevada
    Superintendent of Schools, requested high school principal Justin Gross speak
    with Sheeler about the charges. Gross spoke with Sheeler on July 25, but she
    asked to wait to discuss the matter until she had spoken with an attorney. Then,
    upon advice of counsel, on July 28 or 29, Sheeler refused to comment to Gross
    3
    other than to confirm her arrest. Sheeler did not affirmatively invoke her Fifth
    Amendment rights during the conversation. Gross asked Sheeler to come in to
    return her key fob to the classroom and remove any personal items in the room,
    indicating he expected Gray to recommend termination.
    Based on the newspaper article and the discussion between Sheeler and
    Gross, on July 29, Gray sent Sheeler a letter regarding her employment. Gray
    suspended Sheeler without pay1 and stated he would recommend her termination
    at the school board meeting on August 11 pursuant to school policy permitting
    termination for a violation of Iowa law. The letter stated Sheeler could have a
    hearing to contest the recommendation, and asked her to submit a written request
    for the hearing if she wanted it by 3:00 p.m. on August 6. Gray noted the hearing
    to contest the recommendation would be closed unless Sheeler requested it be
    open to the public.
    Sheeler did not request a hearing to contest the recommendation as
    directed in the letter or otherwise respond to the letter. Sheeler did not attend the
    August 11 school board meeting. The school board terminated Sheeler as Gray
    recommended. Sheeler did not appeal the board’s action.
    On September 12, the Story County Attorney dismissed the criminal
    charges against Sheeler.
    Sheeler filed a complaint with the Iowa Civil Rights Commission and U.S.
    Equal Employment Opportunity Commission.           On May 5 and May 16, 2016,
    respectively, the commissions issued right-to-sue letters. On May 26, Sheeler filed
    1
    The suspension occurred during the summer and outside the contract period, so
    Sheeler did not lose any income from the suspension.
    4
    a petition in Story County against Nevada, Gray, Gross, and Brian Schaeffer (a
    Nevada administrator). The petition alleged a deprivation of constitutional rights—
    including against self-incrimination and due process—age discrimination, sex
    discrimination, and defamation.
    The claims of age discrimination, sex discrimination, and defamation were
    dismissed before trial, as were claims against Gross and Schaeffer.
    On July 11, 2017, the matter proceeded to jury trial on the claim of
    deprivation of rights against Nevada and Gray. At the close of Sheeler’s case, the
    defendants moved for a directed verdict, which the court denied as to the
    substantive issues. The next morning, the court ruled Sheeler’s dismissal was
    pursuant to the board of education’s rules and decided the proper jury instruction
    on the due process claim would state “a public employee is not denied her
    procedural due process right to an opportunity for a pre-termination hearing
    despite having a constitutionally protected interest in her continued employment
    when the employee elects not to request such a hearing in order not to incriminate
    herself in a concurrent criminal investigation.” Upon renewal of the defendants’
    motion for directed verdict, the court granted the motion, holding Sheeler was
    aware of the opportunity to be heard and made a voluntary decision not to appear.
    Sheeler appeals.
    II.    Standard of Review
    Normally we review a district court’s grant of a motion for a directed verdict
    for correction of errors at law. Pavone v. Kirke, 
    801 N.W.2d 477
    , 486 (Iowa 2011).
    “To the extent the violation of a constitutional right is alleged, our review is de
    novo.” State v. Russell, 
    897 N.W.2d 717
    , 724 (Iowa 2017). Because the issues
    5
    decided by directed verdict rest on constitutional rights, our review is de novo.
    State v. Cashen, 
    789 N.W.2d 400
    , 405 (Iowa 2010) (reviewing de novo a discovery
    order), superseded on other grounds by statute, 2011 Iowa Acts ch. 8, § 2, as
    recognized in State v. Thompson, 
    836 N.W.2d 470
    , 481 (Iowa 2013).
    III.    Analysis
    Sheeler claims Nevada and Gray violated her due process rights in the
    termination of her employment through inadequate procedures and inferences
    violating her right against self-incrimination. We address each in turn.
    A.      Property Interest in Continued Employment
    Procedural due process requires the government to follow fair procedures
    before depriving a person of a protected liberty or property interest. Bowers v.
    Polk Cty. Bd. of Supervisors, 
    638 N.W.2d 682
    , 690 (Iowa 2002). The first inquiry
    in our due process analysis is whether a protected liberty or property interest is
    implicated. 
    Id. at 691.
    If a deprivation of a protected interest occurred, then we
    address the process due for the interest. Lewis v. Jaeger, 
    818 N.W.2d 165
    , 181
    (Iowa 2012).
    Sheeler claims a protected property interest in her continued employment
    under the Fourteenth Amendment of the United States Constitution and Article I,
    Section 9 of the Iowa Constitution. A protected property interest in employment is
    based in contractual or statutory limitations on the employer’s termination ability.
    Simonson v. Iowa State Univ., 
    603 N.W.2d 557
    , 561–62 (Iowa 1999). Sheeler, as
    a special education associate, was not a licensed employee of the school district
    and therefore does not fall within the statutory protections and requirements of
    Iowa Code chapter 279 (2014). Nor does Sheeler present any other statutory
    6
    protections that might apply.      Rather, she bases her claim on contractual
    protections.
    Sheeler’s contract specifies the coverage period as ten months,
    corresponding to the school calendar. The arrest and notification—and possibly
    the termination, depending on the when the ten-month period began—occurred
    outside the contracted employment period. However, we need not determine if
    Sheeler had a protected property interest in future employment under the contract,
    because even if the contract was in effect, the procedure provided by Nevada did
    not deprive Sheeler of her due process rights.
    B.      Due Process—Investigation and Hearing
    Sheeler claims Nevada denied her due process of law under the Fourteenth
    Amendment of the United States Constitution and Article I, section 9 of the Iowa
    Constitution. First, Sheeler claims Nevada violated her due process rights by
    failing to investigate the charges against her. Second, she claims deprivation of a
    pre-termination hearing.
    As to her investigation claim, Sheeler states Nevada relied solely on the
    newspaper article in its decision, and no effort to verify the charges or provide her
    an opportunity to deal with the charges occurred. However, Sheeler testified she
    told Principal Gross she was indeed the person in the article facing charges.2
    The Eighth Circuit provides guidance for the necessary proof to establish a
    federal due process violation based on inadequate investigation.           See, e.g.,
    Folkerts v. City of Waverly, 
    707 F.3d 975
    , 981 (8th Cir. 2013) (discussing the
    2
    Gross testified Sheeler had admitted to being the person in the article and then she
    refused further comment.
    7
    factors of inadequate investigation that violate fundamental rights). The failure to
    investigate must be intentional or reckless and shocking to the conscience.
    Cooper v. Martin, 
    634 F.3d 477
    , 481 (8th Cir. 2011). Circumstances indicating a
    failure to investigate that shocks the conscience include “(1) evidence that the state
    actor attempted to coerce or threaten the defendant, (2) evidence that investigators
    purposefully ignored evidence suggesting the defendant’s innocence, [and] (3)
    evidence of systematic pressure to implicate the defendant in the face of contrary
    evidence.” Akins v. Epperly, 
    588 F.3d 1178
    , 1184 (8th Cir. 2009). “Mere negligent
    failure to investigate . . . does not violate due process.” Winslow v. Smith, 
    696 F.3d 716
    , 732 (8th Cir. 2012). No evidence indicates any circumstances shocking
    the conscience relating to the investigation here.      Sheeler at most alleges a
    negligent failure to investigate, as Gray did not seek additional information after
    Sheeler had confirmed the article was about her. Under federal law, Sheeler’s
    federal due process rights relating to the investigation were not violated.
    The due process provisions of the federal and state constitutions are nearly
    identical, and in the absence of an argument to analyze them differently, we
    interpret them in a similar fashion. State v. Seering, 
    701 N.W.2d 655
    , 662 (Iowa
    2005), superseded on other grounds by statute, 2009 Iowa Acts ch. 119 (codified
    at Iowa Code ch. 692A). Sheeler cites no Iowa case law supporting a violation
    based on failure to investigate, and she makes no argument for a separate
    analysis. As under the federal Constitution, we find no violation of the Iowa
    Constitution’s due process clause based upon inadequate investigation.
    Sheeler claims deprivation of a pre-termination hearing.        Due process
    requires notice and an opportunity for hearing prior to the discharge of an
    8
    employee with a constitutionally protected property interest in continued
    employment. Cleveland Bd. of Educ. v. Loudermill, 
    470 U.S. 532
    , 542 (1985);
    Bennett v. City of Redfield, 
    446 N.W.2d 467
    , 471 (Iowa 1989) (“The due process
    requirement is satisfied where the employee is notified of the reasons for discharge
    and furnished the opportunity of a . . . hearing.”). The notice’s purpose is to inform
    the person of the issues involved, preventing surprise at the hearing and allowing
    an opportunity to prepare. Wedergren v. Bd. of Dirs., 
    307 N.W.2d 12
    , 16 (Iowa
    1981). The essential requirements are notice and an opportunity to respond prior
    to termination. 
    Loudermill, 470 U.S. at 546
    ; 
    Bennett, 446 N.W.2d at 471
    .
    Nevada provided written notice to Sheeler on July 29, informing her the
    meeting recommending termination would occur on August 11, giving the reason
    for the recommendation, and offering her a pre-hearing opportunity to request a
    hearing to contest the termination recommendation, with eight days—until August
    6—to make her request.3 Sheeler testified she knew of the superintendent’s
    intended recommendation to the school board, chose not to request the hearing to
    contest the recommendation, and chose not to appear at the school board meeting
    at the time of the recommended termination. Nevada provided notice to Sheeler
    and offered her an opportunity to present evidence or request a delay in the
    termination recommendation until after the criminal charges had been resolved.
    3
    We note the eight days provided is a longer period than the statutory five-day period for
    a teacher to request a private hearing in similar termination proceedings. See Iowa Code
    § 279.15(2)(c). Moreover, Iowa Code section 279.27 requires hearings for teachers
    discharged during the contract year for cause to be held within fifteen days of the
    notification, with the contract terminated effective immediately, which resembles the
    timeline here.
    9
    Sheeler chose not to pursue the opportunities offered to contest the
    recommendation and termination.
    Sheeler’s contract with Nevada (and the board’s rules) provided for
    immediate termination of employment for cause, including a violation of law.
    Nevada provided notice to Sheeler, offered her a private hearing upon request to
    contest the termination recommendation, and set the date and time of the board’s
    termination consideration if no hearing was requested. Sheeler cannot now claim
    Nevada denied her due process when it was her choice not to pursue the
    constitutionally adequate process offered to her.
    Upon our review, we conclude Sheeler was not deprived of her due process
    rights under either the federal or state constitutions.
    C.      Right Against Self-Incrimination
    Sheeler claims Nevada inferred guilt from her refusal to speak about the
    charges with Gross. Sheeler claims this inference violated her constitutional rights
    against self-incrimination under the Fifth Amendment of the U.S. Constitution.4
    Generally speaking, to rely on the privilege against self-incrimination, it must
    be claimed. Minnesota v. Murphy, 
    465 U.S. 420
    , 427 (1984). The U.S. Supreme
    Court has recognized few exceptions to the requirement that witnesses invoke the
    privilege: a criminal defendant refusing to take the stand; where governmental
    coercion renders forfeiture of the privilege involuntary; and threats to withdraw a
    governmental benefit.       See Salinas v. Texas, 
    570 U.S. 178
    , 184–85 (2013)
    (examining exceptions to the requirement of invoking the privilege). The cases
    4
    “No person . . . shall be compelled in any criminal case to be a witness against himself.”
    U.S. Const. amend. V.
    10
    involving the threat to withdraw government benefits, including employment,
    generally feature a compulsion to answer questions and waive the right or lose
    employment—i.e. termination for not waiving the right. See Lefkowitz v. Turley,
    
    414 U.S. 70
    , 79-83 (1973) (examining cases reconciling Fifth Amendment with the
    needs of the state regarding required testimony). We do not find any exceptions
    to the invocation requirement apply to Sheeler.
    Sheeler did not specifically invoke her Fifth Amendment right against self-
    incrimination, nor was she compelled to waive it. Rather, after admitting she was
    charged with two crimes, she refused to comment based on advice from counsel
    with no mention of the Fifth Amendment or self-incrimination. She then chose not
    to request a hearing to contest the termination and did not go to the termination
    proceedings, implicitly refusing to testify without invoking her constitutional rights.
    “The Fifth Amendment privilege against compelled self-incrimination is not self-
    executing.” Roberts v. United States, 
    445 U.S. 552
    , 559 (1980). When a party
    simply declines the requested testimony without advancing a constitutional basis
    for refusing, no constitutional issue exists. In re Fairbanks, 
    287 N.W.2d 579
    , 581
    (Iowa 1980) (holding refusal to take a polygraph without invoking the constitutional
    basis did not present an issue).
    Where the defendant has an opportunity to refuse to answer on Fifth
    Amendment grounds and fails to do so, the use of noncustodial silence does not
    violate the Fifth Amendment. 
    Salinas, 570 U.S. at 186
    . “That the defendant faces
    . . . a dilemma demanding a choice between complete silence and presenting a
    defense has never been thought an invasion of the privilege against compelled
    self-incrimination.”   Williams v. Florida, 
    399 U.S. 78
    , 84 (1970).       A person’s
    11
    assertion of constitutional rights may have consequences without resulting in a
    Fifth Amendment violation. State v. Iowa Dist. Ct., 
    801 N.W.2d 513
    , 528 (Iowa
    2011) (noting consequences such as loss of custody and loss of eligibility for
    earned-time credits do not result in Fifth Amendment violations).
    None of the evidence presented shows Gray recommended Sheeler’s
    termination because of her refusal to speak to Gross or in a hearing before the
    Board. Rather, Gray testified her termination was due to the criminal charges
    against her as described in the newspaper article. Sheeler did not rebut the
    evidence of conduct constituting grounds for dismissal under school policy. See
    Peiffer v. Lebanon Sch. Dist., 
    848 F.2d 44
    , 46 (3d Cir. 1988) (holding termination
    following a refusal to rebut evidence constituting grounds for dismissal did not
    constitute penalty for asserting Fifth Amendment rights and not a violation).
    Sheeler was presented a choice between silence and presenting a defense.
    She chose silence without invoking the Fifth Amendment. Sheeler’s termination
    may be in part a consequence of her silence, but her silence did not cause the
    termination. We affirm the district court’s dismissal of any deprivation of rights
    premised on a Fifth Amendment violation.
    AFFIRMED.