Samuelson, Gregory v. LaPorte Community Sc ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4351
GREGORY G. SAMUELSON,
Plaintiff-Appellant,
v.
LAPORTE COMMUNITY SCHOOL
CORPORATION, KENNETH BLAD,
individually and in his official
capacity as superintendent of
schools, MITCH FEIKES, individually
and in his official capacity as
Trustee, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 05 C 99—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED DECEMBER 6, 2007—DECIDED MAY 22, 2008
____________
Before EASTERBROOK, Chief Judge, and CUDAHY and
RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Gregory Samuelson brought this
action under 42 U.S.C. § 1983 in the district court against
LaPorte Community School Corporation (“LSC”). His
2 No. 06-4351
complaint alleged violations of the First and Fourteenth
Amendments and the Indiana Constitution.1 After dis-
covery, Mr. Samuelson and LSC filed cross-motions for
summary judgment. Mr. Samuelson’s response to LSC’s
motion abandoned his claims under the Fourteenth
Amendment and the Indiana Constitution. The district
court granted summary judgment on Mr. Samuelson’s
remaining First Amendment claims. Mr. Samuelson
timely appealed.2 For the reasons stated in this opinion,
we affirm the judgment of the district court.
I
BACKGROUND
Mr. Samuelson became a teacher at LSC in 1992. Over
the years, Mr. Samuelson also had other duties collateral
to his instructional obligations. These duties included
service on a technology committee that provided infor-
mation and recommendations to the Superintendent and
School Board, service as the union representative on a
hiring committee that recommended candidates for a
principal’s position, and coaching at both the middle
school and high school levels. At least some of these
coaching positions were undertaken on the basis of a
separate contractual arrangement with LSC. In 2003, the
Board declined to renew Mr. Samuelson’s contract as
coach of the high school girls’ varsity basketball team.
That decision did not affect Mr. Samuelson’s contract as
a teacher.
1
The district court had jurisdiction over these claims under
28 U.S.C. §§ 1331 and 1367.
2
We have jurisdiction over this appeal under 28 U.S.C. § 1291.
No. 06-4351 3
A.
LSC has a chain-of-command policy. That policy is
embodied in LSC’s guidelines and bylaws. Guideline 1110,
which is entitled “Line and Staff Relations,” states:
All staff members shall be responsible to the Board
through the Superintendent. Each shall refer matters
requiring administrative action to the person in charge
of the department, who shall refer such matters to
the next higher authority, when necessary.
Each staff member is to keep the person s/he is imme-
diately responsible to informed of his/her activities
by whatever means the supervisor deems appropriate.
All staff members have the right to appeal any decision
made by an administrative officer, through approved
procedures as defined by contract, agreements, poli-
cies, administrative guidelines, or by State law.
R.59.
Guideline 1110A, “Definition of Management Team,”
states in part:
The ultimate decision concerning policy in the School
Corporation resides by law with the Board of School
Trustees under the leadership of the Superintendent
of Schools. The management team concept, or shared
decision making, is the process by which a recom-
mendation for Board of School Trustees action is
developed and the decision implemented.
The management team represents a means of establish-
ing orderly lines of organization and communication as
management personnel unite with the Board of Trust-
ees to promote an effective educational program for
the students and the community. It is more than an
4 No. 06-4351
organizational system since it does establish a climate
in which team members are able to experience a
feeling of mutual trust, support and a sense of pro-
fessional dignity.
R.74, Ex. F.
The Guidelines are supplemented by Bylaw 3310,
entitled “Freedom of Speech in Noninstructional Settings,”
which states:
The School Board acknowledges the right of its profes-
sional staff members, as citizens in a democratic
society, to speak out on issues of public concern. When
those issues are related to the Corporation, however,
the professional staff member’s expression must be
balanced against the interests of this Corporation.
In situations in which the professional staff member
is not engaged in the performance of professional
duties s/he should state clearly that his/her expres-
sion represents personal views and not necessarily
those of the School Corporation.
R.74, Ex. G.
The record reveals that Mr. Samuelson expressed
publically his view on issues related to LSC. In some
instances, he addressed his opinions directly to the Board,
to individual Board members or to other community
members without first addressing those concerns to his
supervisor. More precisely, he engaged in four instances
of expression that, he contends, motivated the Board to
decline to renew his contract as head coach of the girls’
varsity basketball team.
First, Mr. Samuelson spoke to the Board about LSC’s
treatment of the girls’ sports programs as compared to the
No. 06-4351 5
boys’ programs. R.39 at 71-80. Beginning in 1993,
Mr. Samuelson spoke with individual Board members,
LSC’s athletic directors, parents and members of the
community about disparities he perceived in the treat-
ment of girls’ sports programs. He also objected to the
pay of coaches involved in those programs as compared
to similar boys’ teams. In the same vein, he provided
an athletic club at LSC with information that he had
obtained from a conference and that may have en-
couraged the club’s subsequent Title IX complaint against
LSC in 1995. In 2003, Mr. Samuelson wrote an e-mail to
Superintendent Blad requesting information on how to
file a Title IX suit against LSC.
Second, in 2000, Mr. Samuelson voiced his disapproval
about the LSC’s selection and hiring of a middle school
principal. R.39. Mr. Samuelson had been appointed to
the hiring committee by the teachers’ union. The com-
mittee recommended that the Board hire Gwen Taylor,
but Mr. Samuelson opposed the recommendation. The
Board called a special meeting to hear the majority and
minority opinions of the committee; at that meeting,
he discussed with the Board his reasons against hiring
Taylor. He also received phone calls from individual
Board members at this time about his opinion and spoke
with them about his conclusions.
Third, in the spring of 2002, Mr. Samuelson spoke to
Board members about proposed technology changes in
the school’s computer platform. At the time, he was a
serving as a member of the middle school technology
committee. He discussed his opposition to the com-
mittee’s proposal with individual Board members.
Fourth, in 2003, Mr. Samuelson spoke with a Board
member, Ruth Minich, about his objections to a proposed
school redistricting plan.
6 No. 06-4351
B.
In 1999, Mr. Samuelson became head coach of LSC’s high
school girls’ basketball team. The team won a Class 4-A
sectional championship in 2000, but it faced internal
troubles. The season after winning that championship,
twenty-eight girls from the basketball program signed a
petition requesting that the Board not renew Mr.
Samuelson’s coaching contract. A second petition con-
taining similar demands was signed by more than 70
representatives of LSC families. Mr. Samuleson refused
to resign as coach, and the Board renewed his contract.
There were other problems as well. After a game in
January 2003, the middle school girls’ basketball coach
engaged Mr. Samuelson in a physical altercation: He
walked up to Mr. Samuelson and forcibly attempted to
drag him off the court and outside of the arena. LSC’s
athletic director intervened and separated the two men.
The day after the incident, every member of the girls’
varsity team signed a petition refusing to play under
Mr. Samuelson, although they in fact continued to compete.
The physical altercation also affected Mr. Samuelson; three
weeks later, he was ordered by his physician not to coach
because of the stress the incident had caused him.
Early in February 2003, Superintendent Blad asked
Athletic Director Gilliland and Principal Handel to pro-
vide him with recommendations about the girls’ basket-
ball program under Mr. Samuelson. Both men recom-
mended that the Board not renew Mr. Samuelson’s con-
tract or the contracts of the assistant coaches. Di-
rector Gilliland’s evaluation criticized Mr. Samuelson’s
coaching technique and work ethic. The recommendations
primarily focused on (1) the unrest among players,
parents and coaches, (2) Mr. Samuelson’s poor fund-
No. 06-4351 7
raising and unauthorized spending of team funds and
(3) his coaching ability.
Superintendent Blad submitted Principal Handel’s and
Director Gilliland’s recommendations to the Board. He
also personally recommended that the Board terminate
Mr. Samuelson’s contract. His memorandum to the Board
stated in part that the girls’ basketball program was “totally
dysfunctional.” R.74, Ex. H. It described the “constant
series of complaints from players and their parents about
Mr. Samuelson” regarding his treatment of players, his lack
of organizational skills and his inability to work coopera-
tively with his assistant coaches. Id. It further stated that
Mr. Samuelson “never follows the appropriate chain-of-
command and frequently gets himself in trouble by doing
things that are outside of the responsibilities of his position
(i.e. Purchasing new team uniforms without the permission
of the Athletic Director or Principal and without the money
to do so.).” Id.
Mr. Samuelson declined an invitation to submit a self-
evaluation to the Board for consideration along with the
other recommendations. On February 14, he e-mailed
Superintendent Blad and Assistant Superintendent
Adams and asked them about the proper method by
which to file a Title IX suit. He also inquired about the
remedies available to him if LSC retaliated against him
in response to his past and present Title IX complaints.
On February 17, Superintendent Blad composed and
transmitted a memorandum to Mr. Samuelson that de-
scribed his concerns with Mr. Samuelson’s conduct as an
employee of LSC. He cited Mr. Samuelson’s speaking to
newspapers, Board members and private citizens about
“harassment” without following the harassment policy
procedures. R.60. He also mentioned Mr. Samuelson’s
8 No. 06-4351
outspoken opposition to the proposed computer plat-
form changes and Mr. Samuelson’s failure to first ad-
dress those concerns to the appropriate staff member. Id.
Additionally, his memorandum focused on his concerns
about Mr. Samuelson’s poor fundraising and excessive
spending, his negative relationship with parents, and his
failure to follow the chain-of-command policy, “specifi-
cally, by calling, visiting, and working behind the scenes
to influence Board member decisions without first dis-
cussing perceived problems with [his] immediate super-
visors” as required by Guideline 1110. R.60 at 1. Superin-
tendent Blad ordered Mr. Samuelson to “comply with
the following directives”:
You will follow the chain-of-command that is out-
line [sic] in Board policy. That means that should you
take issue with an administrative directive or experi-
ence a problem, you will discuss the problem with your
Department Chair, Principal, Personnel Director
and/or Superintendent. If you are still unsatisfied
by the decision, the Superintendent will contact the
Board and establish a meeting at which time all
Board members can hear and decide your complaint.
You will not directly contact Board members with-
out first following the chain-of-command!
R.60 at 2 (emphasis in original). He concluded by
stating that Mr. Samuelson would be disciplined and
possibly terminated if he failed to comply with the direc-
tives. Id.
On February 18, 2003, the Board voted unanimously
not to renew Mr. Samuelson’s coaching contract. One
Board member, Minich, abstained from the vote. Minich
later told Mr. Samuelson that she believed that the motiva-
No. 06-4351 9
tion for his termination came in part from his opposition
to the hiring of Taylor as principal, which he had related
to the Board in 2000. R.39 at 43-46.
C.
On February 17, 2005, Mr. Samuelson filed this sec-
tion 1983 action against LSC. He alleged four causes of
action: that LSC’s chain-of-command policy violated his
First Amendment rights as an unconstitutional prior
restraint; that his coaching contract had not been renewed
in retaliation for his speaking out on matters of public
importance concerning LSC, also in violation of the
First Amendment; that LSC’s actions deprived him of
due process and the privileges and immunities guaran-
teed to him by the Fourteenth Amendment; and that
LSC’s actions had violated his rights under the Indiana
Constitution.
Mr. Samuelson moved for partial summary judgment;
LSC moved for summary judgment on all claims. In
response to LSC’s motion, Mr. Samuelson defended
only his First Amendment claims. Consequently, the
district court determined that Mr. Samuelson had aban-
doned his claims under the Fourteenth Amendment and
the Indiana Constitution by failing to defend them.
With respect to the First Amendment claims, the
court granted summary judgment to LSC. It held that
Guideline 1110 was not an unconstitutional prior re-
straint. It further determined that LSC had not retaliated
against Mr. Samuelson’s exercise of a First Amendment
right because, even if some of Mr. Samuelson’s speech
was protected by the First Amendment and even if LSC
10 No. 06-4351
had been motivated partially by Mr. Samuelson’s pro-
tected speech, Mr. Samuelson had not shown that LSC’s
stated reasons for the non-renewal were pretextual.
II
DISCUSSION
The general principles that guide our review of a
case coming to us on summary judgment are well-estab-
lished. We review de novo a district court’s decision on a
motion for summary judgment. Cherry v. Auburn Gear, Inc.,
441 F.3d 476, 481 (7th Cir. 2006). On cross-motions for
summary judgment, the court construes facts and draws
inferences “in favor of the party against whom the motion
under consideration is made.” In re United Air Lines, Inc.,
453 F.3d 463, 468 (7th Cir. 2006) (citation omitted). Sum-
mary judgment is appropriate if “the pleadings, deposi-
tions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Id. (quoting Fed. R. Civ. P. 56(c)). We may affirm sum-
mary judgment on any ground for which there is sup-
port in the record. Hill v. Am. Gen. Fin., Inc., 218 F.3d 639,
642 (7th Cir. 2000).
A.
We first consider whether LSC’s chain-of-command
policy, Guideline 1110, constitutes a prior restraint. As
we noted earlier, this guideline requires staff members
to “refer matters requiring administrative action to the
person in charge of the department, who shall refer such
No. 06-4351 11
matters to the next higher authority, when necessary.”
R.59.
The term “prior restraint” is used to describe “adminis-
trative and judicial orders forbidding certain communica-
tions when issued in advance of the time that such com-
munications are to occur.” Alexander v. United States,
509 U.S. 544, 550 (1993) (quoting Melville Nimmer, Nimmer
on Freedom of Speech, § 4.03, p. 4-14 (1984) (emphasis
added)). A restriction is a prior restraint if it meets four
elements: (1) the speaker must apply to the decision
maker before engaging in the proposed communication;
(2) the decision maker is empowered to determine
whether the applicant should be granted permission on
the basis of its review of the content of the communication;
(3) approval of the application requires the decision
maker’s affirmative action; and (4) approval is not a
matter of routine, but involves “appraisal of facts, the
exercise of judgment, and the formation of an opinion”
by the decision maker. See SE. Promotions, Ltd. v. Conrad,
420 U.S. 546, 554 (1975); see also Thomas v. Chicago Park
Dist., 534 U.S. 316, 321 (2002); Cantwell v. Connecticut,
310 U.S. 296, 305 (1940). However, before applying this
test to LSC’s guideline, we first must determine whether
that policy applies to speech that is protected by the
First Amendment. See United States v. Nat’l Treasury
Employees Union, 513 U.S. 454, 465-66 (1995) (“NTEU”);
Crue v. Aiken, 370 F.3d 668, 678 (7th Cir. 2005). For the
restriction to qualify as a prior restraint, the employee
must have an interest in the speech as a citizen comment-
ing upon a matter of public concern. See NTEU, 513 U.S. at
465-66; Crue, 370 F.3d at 678. “[W]hen public employees
make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amend-
12 No. 06-4351
ment purposes.” Garcetti v. Ceballos, 547 U.S. 410, 421
(2006).
LSC’s chain-of-command policy, when fairly read in
its totality, does not constitute a prior restraint because
it does not restrict any speech protected by the First
Amendment. LSC Guideline 1110 requires staff mem-
bers to follow the chain of command only on matters
“requiring administrative attention,” R.59, that is, issues
that their job responsibilities require them to report to a
supervisor. See Garcetti, 547 U.S. at 421, 424. The speech
addressed by LSC’s chain-of-command policy is
speech grounded in the public employee’s professional
duties and therefore is not protected by the First Amend-
ment. See id. at 421-22.
Our understanding of the scope of Guideline 1110
finds support in the language of Guideline 1110A,
which establishes that the process for decision making at
LSC is one that utilizes a linear chain of command that
culminates with the Board. Guideline 1110A “establish[es]
orderly lines of organization and communication” for “the
process by which a recommendation for Board of School
Trustees action is developed and the decision imple-
mented.” R.74, Ex. F. Guideline 1110 requires employees
to use those “lines of organization,” id., by first discussing a
matter “requiring administrative action,” R.59, with a
direct supervisor rather than someone further along the
line.
This interpretation of LSC’s chain-of-command policy
also finds support in the bylaws, including Bylaw 3310,
which explicitly acknowledges that staff members may
“speak out on issues of public concern” whenever they
are speaking as citizens. R.74, Ex. G. The bylaws
simply require that, when speaking out about a matter
No. 06-4351 13
of public concern not within the professional cognizance
of the staff member, the staff member must ensure that
he conveys that he is speaking as a citizen and not on
behalf of LSC. This requirement hardly limits a staff
member’s right to speak in public about issues related
to LSC. It ensures that, when a staff member does speak
about a matter of public interest on which he has no
professional responsibility, his views are not attributed
to the LSC. When Bylaw 3310 is read in conjunction
with Guidelines 1110 and 1110A, it is clear that LSC seeks
to restrain only expression related to a staff member’s
professional responsibilities to the school corporation. The
guidelines merely establish a chain of command in order
to maintain efficient resolution of issues that an em-
ployee’s duties require him to address in the course of
his employment. Such expression, the Supreme Court
has made clear, is not protected by the First Amendment.
See Garcetti, 547 U.S. at 421-22. Consequently, restriction
of that expression cannot constitute a prior restraint. See
NTEU, 513 U.S. at 465-66; Crue, 370 F.3d at 678. The dis-
trict court properly granted summary judgment for LSC
on this claim.
B.
We next consider Mr. Samuelson’s allegation that LSC
retaliated against him for engaging in speech protected
by the First Amendment. We apply a three-step analysis
in evaluating a First Amendment retaliation claim.
Vukadinovich v. Bd. of Sch. Trs., 278 F.3d 693, 699 (7th Cir.
2002). We first determine whether the employee’s
speech was constitutionally protected. Id. If it was, we
determine whether the protected speech was a mo-
tivating factor for the employer’s action. Id. If the em-
14 No. 06-4351
ployee can show that his constitutionally protected
speech was a substantial or motivating factor in his termi-
nation, we examine whether the employer can show that
it would have taken the same action in the absence of
his exercise of his rights under the First Amendment. Id.
Mr. Samuelson relies on four instances of expressive
activity to support his claim that the Board retaliated
against him in violation of his rights under the First
Amendment: his statements regarding Title IX and the
treatment of the girls’ programs, his comments re-
garding LSC’s hiring policies, his statements regarding
technology changes at LSC and his discussion with a
Board member regarding a possible school redistricting.
Even assuming, arguendo, that these instances were not a
product of his employment duties, and thus were pro-
tected by the First Amendment, Mr. Samuelson has
failed to show that his nonrenewal as coach was motivated
by any of these instances. See Mullin v. Gettinger, 450
F.3d 280, 284 (7th Cir. 2006).
Mr. Samuelson has the burden to establish, by a prepon-
derance of the evidence, that protected First Amendment
activity was a motivating factor in the nonrenewal of his
coaching contract. Spiegla v. Hull, 371 F.3d 928, 942 (7th Cir.
2004), cert. denied, 128 S. Ct. 441 (2007). “A motivating
factor does not amount to a but-for factor or to the only
factor, but is rather a factor that motivated the defendant’s
actions.” Mullin, 450 F.3d at 284 (internal quotation
marks omitted). Mr. Samuelson can meet this burden by
“showing that the protected speech caused, or at least
played a substantial part in, the employer’s decision to
take adverse employment action against” him. Id. Once
the plaintiff has established that protected expression
was a motivating factor, the burden shifts to the defendant
No. 06-4351 15
to prove, by a preponderance of the evidence, that the
same actions would have occurred in the absence of the
protected speech. Id. at 285-86.
Mr. Samuelson relies on the timing of the nonrenewal
of his coaching contract to demonstrate that the Board’s
action was motivated by his speech.3 He notes that he
was removed as coach two days after he asked Super-
intendent Blad in an e-mail about the proper procedure
for filing a Title IX complaint and one day after Super-
intendent Blad ordered him not to speak to Board mem-
bers without following the chain of command. “A plain-
tiff may demonstrate improper motive with evidence
that an adverse employment action took place on the
heels of protected activity.” Id. at 285 (internal quotation
marks omitted). That period begins when the defendant
learned of the protected speech. Id.
Mr. Samuelson has put forward no evidence that the
Board ever saw or considered his e-mail exchange
with Superintendent Blad. Although Mr. Samuelson’s
coaching contract was not renewed just days after that
e-mail exchange, there is no evidence of a connection
between his speech and the alleged retaliation that
makes the timing significant. Id. (“[T]he fact that a plain-
tiff’s protected speech may precede an adverse employ-
3
We note for the sake of completeness that Mr. Samuelson
cannot rely on the Superintendent’s unhappiness with his
failure to follow the guidelines with respect to speech that
was a product of Mr. Samuelson’s employment. As we al-
ready have noted, LSC’s chain-of-command policy did not
constitute a prior restraint; the Superintendent did not vio-
late Mr. Samuelson’s First Amendment rights merely by re-
quiring him to comply with that policy.
16 No. 06-4351
ment decision alone does not establish causation.”). His
motivation evidence is therefore insufficient. See id.
Mr. Samuelson also has put forward no evidence that
the Board was motivated to retaliate against him by the
other incidences of speech upon which he relies. He has
not shown that the Board considered any of those inci-
dents. Moreover, standing alone, the timing of Mr.
Samuelson’s expressions regarding the technology
changes and Taylor’s hiring also cannot suffice to demon-
strate that the Board was motivated by those incidents
because they occurred more than a year before the Board’s
decision. See id. (holding that a one-year gap was too
attenuated to provide evidence that an employee’s
speech was a motivating factor). With respect to his
comments on redistricting, only one Board member
was aware of his position on that subject, and she ab-
stained from the vote.
Stated simply, the record supports firmly the con-
clusion that Mr. Samuelson’s contract as coach was not
renewed because of the troubled state of the girls’ basket-
ball program. Every Board member who voted on
Mr. Samuelson’s coaching contract testified that he or
she had no knowledge of Mr. Samuelson’s position on
any of the matters about which he claims to have spoken
publically. Furthermore, the members stated that the
sole basis for the Board’s vote was the troubled state of
the girls’ basketball program and that the Board did not
discuss or consider Mr. Samuelson’s opinions on any
other issue. Mr. Samuelson has put forward no evidence
contesting these statements or demonstrating that any
of the voting Board members even knew that he had
spoken out about any possibly protected issues.
In short, Mr. Samuelson has failed to establish that the
instances that he claims are protected expression played
No. 06-4351 17
a role in the decision of the Board. Consequently, the
district court properly granted summary judgment to
LSC on Mr. Samuelson’s First Amendment retaliation
claims.
Conclusion
Accordingly, we affirm the judgment of the district court.
AFFIRMED
USCA-02-C-0072—5-22-08