Ott, Thomas E. v. Edinburgh Comm , 189 F. App'x 507 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 19, 2006*
Decided June 26, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-4479
THOMAS E. OTT, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Indianapolis Division
v.
No. 1:03-cv-1413-JDT-WTL
EDINBURGH COMMUNITY
SCHOOL CORPORATION, et al., John Daniel Tinder,
Defendants-Appellees. Judge.
ORDER
Thomas Ott was hired on a one-year contract to teach special education and
coach the boys’ football and girls’ basketball teams at Edinburgh High School in
Indiana for the 2001-2002 academic year. He has a criminal record, which he
disclosed to the school board before he was hired, but which troubled the new
superintendent, Rebecca Sager, who was hired later that academic year. Ott’s
contract was not renewed, and he brought a multicount complaint against the
Edinburgh Community School Corporation, Sager, and Dale Bowers, a member of
the school board. The defendants were awarded summary judgment on all claims.
We affirm.
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-4479 Page 2
We review the facts in the light most favorable to Ott. See Scaife v. Cook
County, 446 F.3d 735, 738-39 (7th Cir. 2006). Ott initially applied for the position of
boys’ football coach at Edinburgh High School. When he interviewed for that job in
May 2001, he disclosed to Bowers and the other members of the school board that
he had several criminal convictions (including one for conspiracy to distribute
marijuana) but assured them that he had turned his life around. Bowers told Ott
that his criminal history was not an issue. Apparently it wasn’t; the school board
offered Ott the coaching position the next month.
Ott, who was living in Nevada at the time, accepted the coaching position
knowing that the low salary meant he would have to find other employment.
Before the school year began, the school board offered him additional positions
teaching special education and coaching girls’ varsity basketball. Ott was licensed
to teach only physical education, so the interim superintendent applied for a limited
teaching license that would allow Ott to teach special education classes for one
academic year. See 515 IND. ADMIN. CODE 1-2-20(a) (2005). To obtain the limited
license, the superintendent had to and did certify that the district was unable to
find a licensed applicant for the position of special education teacher. See id.§ 1-2-20(b)(4). The limited license came through, and Ott signed a written contract
for the 2001-2002 academic year to serve in both coaching positions and as the
special education teacher. On March 28, 2002, the interim superintendent asked
Ott to provide written documentation that he would have sufficient academic work
completed to qualify for a limited license renewal before the first day of the next
school year. See id. § 1-2-20(b)(6) (allowing limited license to be “renewed every
year upon completion of six (6) semester hours of course work directed toward a
standard license in the limited license subject area”). The deadline for providing
the documentation was May 1, 2002.
Problems began for Ott in April 2002, shortly after Sager was hired as the
new superintendent. Sager met with Bowers, who provided her with Ott’s criminal
record. At a meeting of the school board on April 29, 2002, Sager recommended not
renewing Ott’s teaching contract due to the expiration of his limited license. The
board agreed, and Ott was notified by letter the next day. In the letter Sager told
Ott that she had not received the licensing documentation the interim
superintendent had requested, though she mistakenly wrote that the
documentation had been due April 1, rather than May 1 as the original request
specified. Sager then posted a job opening for the position of special education
teacher.
As word of the nonrenewal of Ott’s teaching contract spread to the media,
Ott’s coaching duties came under fire. School board members voted to terminate
Ott as the girls’ basketball coach effective immediately, but allowed him to remain
No. 05-4479 Page 3
as the boys’ football coach through the 2002 season on the condition that he submit
to biweekly drug tests.
Meanwhile, Ott tripped on a piece of carpet at school and injured his back,
causing him to resign as football coach on September 6, 2002. Four qualified and
fully licensed special education teachers applied for the special education teaching
position in August 2002, but the program was ultimately discontinued because
there were not enough students remaining in it to justify hiring a new teacher.
Ott’s complaint alleged denials of equal protection and due process under
42 U.S.C. § 1983; a violation of the Family and Medical Leave Act (“FMLA”),
29 U.S.C. § 2601 et seq.; breach of contract; defamation; and intentional infliction of
emotional distress. In granting the defendants’ motion for summary judgment, the
district court addressed each of Ott’s claims. On his equal protection claim the
court determined that Ott was not a member of a protected class and had not shown
that there were similarly situated employees who were treated more favorably. As
for his due process claim, the court held that Ott had no property right in continued
employment given that his contract was for a single academic year. The court also
found nothing in the record to suggest that Ott ever sought medical leave under the
FMLA following his injury. The court granted summary judgment dismissing Ott’s
contract claim because the contract had expired on its own terms and Ott was given
statutory notice of its nonrenewal. Ott’s defamation claim faltered because Ott
himself had been the first to disclose his criminal record and, in any event, the
information was true. Finally, the court dismissed Ott’s claim for intentional
infliction of emotional distress because there was no evidence that Sager and
Bowers had acted so outrageously as to shock anyone’s conscience.
On appeal Ott’s burden is to demonstrate that a genuine issue of material
fact exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). Ott points to several facts, but he does not tie them to any of his legal
theories. Furthermore, some of his factual assertions are unsupported by the
record. For example, Ott asserts that he was employed as a “regular teacher” at all
times and that the Indiana Professional Standards Board deemed him fit to teach in
Indiana. To the contrary, Ott was a nonpermanent teacher employed on a limited
license for purposes of the nonrenewal of his single-year contract. See IND. CODE
§ 20-28-7-8. Ott also asserts that Indiana law does not require a local school
corporation to post a position that is presently filled by a teacher on a limited
license, but this is irrelevant to Ott’s claims.
Ott has abandoned his due process and equal protection claims. His only
argument on appeal is his assertion that the school board singled him out by
requiring him to take drug tests. Ott claims the athletic director was caught
stealing from the school and yet was never required to take a drug test. But Ott
No. 05-4479 Page 4
and the athletic director are not similarly situated. Ott has a felony drug conviction
on his record, whereas the athletic director was never prosecuted for any crimes.
See Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000) (explaining
that employees are not similarly situated unless they “engaged in similar conduct
without such differentiating or mitigating circumstances as would distinguish their
conduct”); Vukadinovich v. Bd. of Sch. Trs. of Mich. City Area Schs., 978 F.2d 403,
414 (7th Cir. 1992) (holding that a school board did not violate equal protection by
discharging teacher with a history of alcohol problems and an arrest record because
the teacher could not show any similarly situated teacher was treated more
favorably).
Regarding his breach-of-contract claim, Ott maintains that he satisfied the
interim superintendent’s request for documentation verifying that he would qualify
for license renewal by the start of the next school year. For support, he points to a
letter that appears to be a recommended class schedule and also to enrollment-
verification reports from the college where he was registered. But the enrollment
reports are dated June 30, 2005, long after the deadline for providing the
documentation as well as the expiration of his contract. And although the class
schedule letter is dated March 20, 2002, it was not verified as an official college
admission document until June 30, 2005—again, long after the expiration of his
contract. Ott’s argument that Sager denied him a written evaluation to which he
was statutorily entitled, see IND. CODE § 20-28-7-9 (formerly § 20-6.1-4-14), was
never made in the district court and is therefore waived on appeal. See King v. Ill.
State Bd. of Elections, 410 F.3d 404, 424 (7th Cir. 2005).
Also lacking support is Ott’s assertion that Sager and Bowers defamed him
by calling him a “fraudulent, immoral liar”; there is no no evidence that Sager or
Bowers made that statement. See Thurman v. Vill. of Homewood, 466 F.3d 682,
687 (7th Cir. 2006) (noting that plaintiff at summary judgment cannot rest on mere
allegations of defamation). And although Ott decries what he considers the
wrongful disclosure of his undisputed criminal record, truthful disclosures give rise
to no tort claims under Indiana law. See Doe v. Methodist Hosp., 690 N.E.2d 681,
687, 693 (Ind. 1997).
The nub of this case is that Ott feels cheated. He was up front about his
criminal record, and Bowers assured him that it was not an issue. Later, under a
new superintendent, it became an issue. But Ott’s contract was for one year only,
and when it expired, the school board could do as it chose.
AFFIRMED.