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Johnson v. School District No. 1

United States District Court, D. Colorado

September 10, 2014

LISA M. JOHNSON, Plaintiff,


MARCIA S. KRIEGER, Chief District Judge.

THIS MATTER comes before the Court pursuant to Ms. Johnson's Motion for Reconsideration (#72) of the Court's September 23, 2013 Opinion and Order (#65) granting, in part, the Defendants' motion to dismiss, the Defendants' response (#76), and Ms. Johnson's reply (#79); the Defendants' Motion for Summary Judgment (#92), Ms. Johnson's response (# 105), and the Defendants' reply (#123); and the Defendants' Objections (#111) to the Magistrate Judge's March 21, 2014 Order (#103) granting in part Ms. Johnson's Motion for Sanctions (#90), Ms. Johnson's response (#122), and the Defendants' reply (#129).


The Court briefly recites the pertinent facts here and elaborates as necessary in its analysis.

Ms. Johnson has been employed by the Defendants ("the District") as a classroom teacher since 1991. In 2008, the District's administrators sought her removal, ostensibly for poor performance. Ms. Johnson appealed her removal to an Administrative Law Judge, who conducted a hearing and determined that the District's complaints about Ms. Johnson's performance were not supported by evidence. Ms. Johnson was reinstated in 2009 and began an assignment teaching at Gust Elementary School. Based on letters sent to her by the District (which the District states were mailed in error), Ms. Johnson believed that her appointment was a temporary, one-year assignment for the 2009-10 school year. (As discussed below, the District contends that it understood the position to be open-ended.)

In May 2010, Ms. Johnson testified before the Colorado General Assembly in opposition to Senate Bill 191 ("SB 191"), proposed legislation that would dramatically change the teacher hiring and assignment process (among other things). In pertinent part, SB 191 reflected a legislative intent to evaluate school principals based on the performance of the schools' staff and students. C.R.S. § 22-63-202(2)(c.5)(I). To do so, the bill sought to end a process known as "direct placement" or "forced placement, " by which tenured (a/k/a "nonprobationary") teachers who were displaced from their teaching positions for various reasons would be assigned by the District to other teaching positions at other schools, sometimes over the objection of the school's principal. Instead, SB 191 provided that teacher hiring and assignments would only be made by "mutual consent" of the teacher and the corresponding school principal, giving the principal more control over the composition of the school's staff. Controversially, the bill provided that nonprobationary teachers who were displaced and otherwise unable to obtain a mutual consent position with another school would, after a certain period of time, be placed indefinitely on unpaid leave until such time as they located a new teaching position. The District strongly supported SB 191, but Ms. Johnson testified against it, stating that it granted too much power to school administrators to fabricate poor evaluations in order to displace unwanted teachers. Despite Ms. Johnson's opposition, the bill passed and was signed into law in Spring 2010, taking effect immediately.

At the end of the 2010 school year, Ms. Johnson, believing her one-year appointment to have ended, attended a job fair hosted by the District. At the job fair, various schools posted their open teacher positions for the coming school year and invited applications. Ms. Johnson applied for dozens of open positions, but received few interviews and no offers.

In mid-2010, the District apparently offered Ms. Johnson the opportunity to continue teaching at Gust Elementary for the 2010-11 school year. Ms. Johnson accepted. Although the parties have differing understandings as to the reason, they agree that Ms. Johnson's assignment came to an end at the end of the 2011 school year. (Ms. Johnson contends that she was only offered a one-year position for 2010-11; the District contends that her open-ended appointment that began in 2009 was terminated due to a budget cut.) At the conclusion of the school year in 2011, Ms. Johnson again attended the District job fair, applied for numerous open positions at various schools, but was not selected for any.

The District offered Ms. Johnson a temporary, one-year assignment at Greenwood Elementary School for the 2011-12 school year, and Ms. Johnson accepted. This was not a mutual consent assignment, and thus, the District advised Ms. Johnson that, by operation of SB 191, she had one year to find a mutual consent position. Ms. Johnson again applied for many open positions at District job fairs, but was not selected. Thus, at the end of the school year in 2012, the District placed Ms. Johnson on unpaid leave.

Ms. Johnson then commenced the instant action. She asserted three claims: (i) common-law breach of contract, in that Colorado statutory law governing teachers "creates a contract by operation of law" and that the District breached that contract by terminating her without a hearing as required by C.R.S. § 22-63-202 and by failing to retain her in a "mutual consent" position after her dismissal was overturned; (ii) retaliation based on the exercise of First Amendment rights, in violation of 42 U.S.C. § 1983; and (iii) deprivation of a property interest in her job without Due Process, in violation of 42 U.S.C. § 1983.

The District moved to dismiss Ms. Johnson's claims under Fed.R.Civ.P. 12(b)(6). The Court referred the motion to the Magistrate Judge, and in March 2013, the Magistrate Judge recommended that the motion be granted. Ms. Johnson filed timely Objections to the Recommendation, and on September 23, 2013, the Court partially adopted the Recommendation, finding that Ms. Johnson had adequately alleged a § 1983 claim sounding in First Amendment retaliation, but agreeing with the Magistrate Judge that Ms. Johnson's § 1983 Due Process and breach of contract claims were fatally deficient.

Ms. Johnson moves (#71) for reconsideration of the Court's September 23, 2013 Order, arguing that: (i) the Court erred in finding that she "makes no allegation that she was tenured at the time she was placed on unpaid leave, " such that the Court's dismissal of the Due Process claim was erroneous; (ii) the Court misinterpreted the provisions of C.R.S. § 22-63-202(2)(c.5) in dismissing her breach of contract claim; and (iii) the Court failed to consider her alternative breach of contract claim premised on the District "maintaining, relying on and disseminating negative documents pertaining to her."

Separately, the District moves (#92) for summary judgment on Ms. Johnson's remaining First Amendment retaliation claim, arguing that Ms. Johnson cannot show that she suffered an adverse employment action or show that any such adverse action was causally-connected to her First Amendment activities (among other arguments).

Meanwhile, on the last day of the discovery period, the District served supplemental disclosures identifying 10 new potential witnesses: school principals and other individuals who interviewed Ms. Johnson for open positions. Contending that the late disclosure prejudiced Ms. Johnson's ability to obtain discovery about these witnesses, Ms. Johnson moved (#90) for sanctions against the District pursuant to Fed.R.Civ.P. 37(c)(1), seeking to preclude the District from offering evidence from the late-disclosed witnesses. The Court referred the matter to the Magistrate Judge for determination. In a March 13, 2014 Order (#103), the Magistrate Judge granted Ms. Johnson's motion in part, finding the District's late disclosure of the witnesses to be untimely and prejudicial to Ms. Johnson, but not in bad faith. Thus, the Magistrate Judge rejected Ms. Johnson's request for a preclusive sanction, but reopened discovery to permit Ms. Johnson to engage in written and oral discovery regarding the 10 new witnesses. The Magistrate Judge also granted an award of attorney fees to Ms. Johnson for the cost of bringing the motion for sanctions.

The District filed Objections (#111) to the Magistrate Judge's Order, requesting review by this Court. The District argues: (i) the disclosures were timely made because it was only late in the discovery period that the District concluded that it may need to call the principals and other individuals Ms. Johnson interviewed with as witnesses in its case; (ii) the Magistrate Judge erred as a matter of law in finding that supplemental disclosures made within the discovery period were nevertheless untimely; (iii) the Magistrate Judge erred in finding that Ms. Johnson was prejudiced by the late disclosure; and (iv) the additional discovery and attorney fees granted by the Magistrate Judge as a remedy were an abuse of discretion.


A. Motion for reconsideration

Ms. Johnson moves for reconsideration of the Court's September 23, 2013 Order under Fed.R.Civ.P. 59(e). Such relief is appropriate where there has been a change in the controlling law, newly discovered evidence, or "the need to correct clear error or prevent manifest injustice"; it is not, however, an appropriate means to "revisit issues already addressed or advance arguments that could have been raised in prior briefing." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A "manifest injustice" may occur where the Court has misapprehended the facts, a party's position, or the controlling law." Id.

Ms. Johnson first takes issue with a passing comment by the Court to the effect that she "makes no allegation that she was tenured at the time she was placed on unpaid leave." Ms. Johnson points out - correctly - that she repeatedly alleged that she was "nonprobationary, " and that, under Colorado law, the terms "nonprobationary" and "tenured" have generally been considered synonymous.[1] However, correction of this misstatement does not fundamentally alter the Court's prior reasoning or change the outcome.

The Colorado Supreme Court in Howell v. Woodlin School Dist., 596 P.2d 56, 60 (1979), recognized that "a grant of tenure... engenders a reasonable and objective expectancy of continued employment, " sufficient to amount to a constitutionally-protected property interest. Assuming that Howell remains good law in light of changes enacted by SB 191 (a question this Court need not resolve), the property interest created by tenure is implicated only by its deprivation - i.e. termination of the teacher's employment. See e.g. Frey v. Adams County School Dist., 804 P.2d 851, 855 (Colo. 191) (constitution "require[s] a hearing before the employment of a person who has once acquired status as a tenure teacher can be terminated") (emphasis added). As the Court explained, Ms. Johnson was not, and has not been, "terminated" from her employment with the District. Rather, pursuant to C.R.S. § 22-63-202(2)(c.5)(IV), she has indefinitely been placed on "unpaid leave" status, and as soon as she can secure another teaching position, she will be "reinstate[d]... at the [salary and benefits] level [she] would have been if [she] had not been placed on unpaid leave." Specifically, this Court noted that "[a]lthough the effect of being placed on unpaid leave is similar to dismissal, the statute treats the two differently." ...

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