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Shuck v. Academy School District 20

United States District Court, D. Colorado

September 29, 2017

DIANE H. SHUCK, Plaintiff/Counterclaim Defendant,
ACADEMY SCHOOL DISTRICT 20, Defendant/Counterclaim Plaintiff, and LINDA VAN MATRE, TRACEY JOHNSON, CATHERINE BULLOCK, LARRY BORLAND, GLENN STREBE, DAVID PEAK, SUSAN FIELD, and TORIA MCGILL, in their official and individual capacities, Defendants.



         This matter is before the court on “Defendants' Partial Motion for Summary Judgment.” (Doc. No. 51 [“Mot.”].) Plaintiff filed a Response (Doc. No. 54 [“Resp.”]), to which Defendants replied. (Doc. No. 56 [“Reply”].)

         Facts [1]

         Plaintiff began her employment with Defendant Academy School District 20 (ASD20) for Air Academy High School (“AAHS”) in 1992 as a part-time physical education teacher. (Doc. No. 51-1 at pp. 35-36.)[2] Plaintiff was responsible for familiarizing herself with and abiding “by federal and state laws and regulations relevant to their work as well as district administrative policies of the Board of Education as posted on the district intranet.” (Id. at 42; Doc. No. 51-3 at 1.) Plaintiff held the part time physical education teacher position for eight years, and also ran student government and acted as activities director. (Id. at 36-37.) Plaintiff became an athletic coordinator for AAHS in 1998-99 and reported directly to the AAHS Principal. (Id. at 37-38.) Plaintiff obtained her principal license in 2002 and was named AAHS Assistant Principal/Athletic Director in 2003. (Id. at 38.) Plaintiff held that position until 2015. (Id. at 73.)

         On January 23, 2015, the AAHS Principal, Defendant Toria McGill, gave a mid-year review to AAHS's new bookkeeper, Deborah Elges. (Doc. No. 51-4 at 70-71.) During that review, Ms. Elges raised a concern regarding Plaintiff. Ms. Elges began by explaining Plaintiff had previously told her that ASD20 and Defendant McGill were upset with Plaintiff because some assistant coaches had worked with kids without first going through a background check. (Id. at 72.) One of them, Eric Goldberg, who was the baseball coach's son, had subsequently failed his background check due to DUIs on his record. (Id. at 72-73.) Sometime after that conversation but before January 23, 2015, Plaintiff asked Ms. Elges to write a check to Doug Goldberg, the baseball coach, in order to pay Eric Goldberg. (Id. at 73.) Ms. Elges testified she refused and told Defendant McGill during her review that the request made her uncomfortable. (Id.)[3] Ms. Elges also told Defendant McGill that Plaintiff's son had previously been paid for work he had done for the hockey team. (Doc. No. 51-5 at 111-12.) Defendant McGill halted the review, telling Ms. Elges that they would need to reschedule the remainder. (Id. at 112-13.) Defendant McGill called her supervisor, Deputy Superintendent Karin Reynolds, and Defendant David Peak, Assistant Superintendent of Human Resources. (Id.)

         Later the same day, Defendant McGill called Plaintiff into her office for a meeting with Defendant Peak and her. (Doc. No. 51-1 at 79.) Defendant McGill raised concerns regarding paying Plaintiff's son and paying volunteers who had not completed the district mandated process. (Id.) Following the meeting, Defendant McGill placed Plaintiff on administrative leave and took Plaintiff's keys and badge. (Id.)

         After the meeting, Defendant Peak directed his staff to check the status of background checks of individuals mentioned by Ms. Elges. (Doc. No. 51-7 at 84-85.) Defendant Peak and Tom Gregory, the Chief Financial Officer, spoke with Defendant McGill, Ms. Elges, Plaintiff's Administrative Assistant, Krystal Whitson, and Austin Lee, an AAHS teacher and co-sponsor of student council. (Id. at 85-86.) Mr. Gregory also initiated an internal audit. (Id. at 86; Doc. No. 51-8 at 66-67.)

         Plaintiff had a second meeting on January 30, 2015 with Defendants Peak and McGill. (Doc. No. 51-1 at 100.) Upon arriving at the meeting, Defendant McGill read to Plaintiff a list of concerns, including Plaintiff requiring an assistant to work overtime, not completing evaluations on time, failure to follow proper Purchasing Card (“P-Card”) procedures, the cash box being short, the Make-A-Wish box being short, paying her sons to work athletic events, and using the $10 and $5 Dick's Sporting Good gift cards as tournament awards. (Id. at 100-05.)[4] Plaintiff tried to respond to each allegation during the meeting. (Id. at 101.)

         ASD20's Policy GBEA Staff Ethics/Conflict of Interest provides, in relevant part, “No district employee shall participate in the selection or employment of any person who is a member of his/her family.” (Doc. No. 51-12.) The record indicates that since July 2012, Plaintiff signed 45 checks to her son, Jared, and 21 checks to her son, Tyson, for work they performed as game workers at AAHS athletic events. (Doc. No. 51-1 at 102.) Plaintiff was not aware this was a violation of ASD20 policy. (Id.) Plaintiff contends “my principal, [Defendant] McGill, was fully aware of it and personally approved check requests to pay her sons for working at such events. See, e.g., ASD20000126 (Tyson) and ASD20000168 (Jared).” (Doc. No. 51-13 at 2.) Plaintiff further contends “asking family members to step in to work games was a common practice in the District high schools, and other workers with family relationships, including but not limited to, [Defendant] McGill's husband, worked at AAHS athletic events.” (Id.)

         ASD20's P-Card Program permitted ASD20 to provide credit cards to approved District employees who are authorized to purchase goods and services. (Doc. No. 51-14 at 3.) P-Cards issued to Principals had a $500.00 transaction limit. (Id. at 6.) The P-Card program prohibits split purchases made in order to circumvent the transaction limit. (Id. at 5.) Records show that on December 6, 2012, Plaintiff made three different purchases of cheerleader boots in amounts of $487.40, $487.40, and $97.48. (Doc. No. 51-15.) Plaintiff purchased King Soopers gift cards in the amount of $735.00 in transactions amount of $500.00 and $235.00. (Doc. No. 51-1 at 215.) She testified this was the result of a brain lapse. (Id.)

         Colorado High School Activities Association (“CHSAA”) Bylaw 2010.1 provides, in relevant part:

Individuals participating in any interscholastic athletic/activity sponsored and/or approved by the Association shall not accept cash or merchandise awards. Awards must be symbolic in nature with no functional or intrinsic value such as, but not limited to, letters, plaques, trophies, medals, ribbons, certificates and letter adornments and shall not exceed $50.00 in value exclusive of engraving. “Cash” includes such things as, but not limited to, remuneration in any form such as cash, money orders, gift certificates, scholarships (cash/check payment to school of choice is approved, not to student recipient), free or reduced price meals.

(Doc. No. 51-16.) During athletic tournaments, AAHS provided gift cards to Dick's Sporting Goods store in the amount of $10.00 to first place and $5 to second place. (Doc. No. 51-1 at 105-06.) Plaintiff denies this was a violation of CHSAA Bylaw 2010.1 because they did not see them as over the amateur status rule and it was essentially like a trophy for the tournament. (Id. at 105.) They had previously provided t-shirts to tournament and/or event winners. (Id.)[5]

         Plaintiff remained on leave after the January 30th meeting. (Id. at 118.) An Internal Review Summary of Recommendations (“Summary”), signed by two Internal Reviewers and dated February 5, 2015, indicates the internal investigation found numerous policy violations by Plaintiff. (Doc. No. 51-19.)[6] Another meeting occurred on February 10, 2015 and in attendance were Plaintiff, Plaintiff's counsel, Defendant Peak, Defendant McGill, and counsel for ASD20. (Doc. No. 51-1 at 119.) At this meeting, Plaintiff was informed that she was being removed from her position as Athletic Director/Assistant Principal and being placed in the position of Student Interventionist. (Id. at 120.) Dr. Peak read from a prepared statement, stating that it was unnecessary to “rehash their concerns in detail again, but our most prominent issues involve the expenditure of funds to athletes in violation of CHSAA rules, failure to adequately oversee athletic and activity funds, and failure to ensure that personnel procedures are followed to protect the safety and welfare of students.” (Id. at 121; Doc. No. 51-20.) Plaintiff did not get a chance to respond. (Id. at 121.) Plaintiff and her counsel requested a copy of the prepared statement as well as the “source documents” pertaining to the investigation but AAHS would not provide them. (Doc. No. 51-1 at 120-21.) Plaintiff began in her position as Student Interventionist on February 18, 2015. (Id. at 123.)[7]

         On April 16, 2015, after Plaintiff was already in the Student Interventionist position, Krystal Whitson, Plaintiff's Secretary when she was Athletic Director, prepared a letter stating that Plaintiff directed her to take small amounts of cash, $10.00 to $20.00, out of the athletic event gate receipts throughout the year in order to pay for alcoholic beverages at the coaches' end of year banquet. (Doc. No. 51-21.) She further stated that she had previously saved anywhere from $300-$500 for this event. (Id.) Ms. Whitson submitted another letter dated May 27, 2015, in which she stated that after the Glenn Peterson Track meets, Plaintiff invited the meet workers and coaches to dinner. (Doc. No. 51-22.) Using the gate receipts from the track meet, Plaintiff paid for the dinner and alcoholic drinks. (Id.)[8]

         On May 5, 2015 at 11:54 a.m., Ms. Elges sent an email to Defendant McGill stating that the soccer coach had asked her to locate $3, 000.00 Plaintiff had transferred out of the boys' soccer account. (Doc. No. 51-23.)[9] In the email, Ms. Elges stated that on June 30, 2012, the previous bookkeeper, Susan Avila, had transferred $3, 000.00 from the boys' soccer account to the general athletics account to cover the negative balance. (Id.) While Ms. Elges was looking for the $3, 000.00 transfer, she discovered that on June 30, 2012, Ms. Avila also made five other transfers between athletic accounts in order to cover negative balances. (Id.) Ms. Avila has testified she came up with the idea of transferring funds between accounts because she did not like seeing negative balances. (Doc. No. 51-24 at 49.) Plaintiff approved the transfers and stated that they created a paper trail so they would remember to later transfer the funds back. (Id.; Doc. No. 51-1 at 204.) Ms. Elges' email indicates the described transfers were not returned to the original accounts. (Doc. No. 51-23.)

         Policy GBK sets forth an appeal procedure for employees who seek to resolve “a concern or complaint not associated with concerns regarding discrimination or harassment.” (Doc. No. 51-25.) On April 14, 2015, Plaintiff submitted a Level 2 appeal regarding her demotion and addressed twelve allegations based solely on memory. (Doc. No. 51-26.) Pursuant to Policy GBK, Level 2 appeals are heard by the “Principal or Designee”. (Doc. No. 51-25 at 1.) Because Plaintiff's appeal involved a decision made by her Principal, Defendant McGill, her appeal was escalated to a Level 3. (Doc. No. 51-1 at 131.) Level 3 appeals are usually heard by a “Principal's supervisor.” (Doc. No. 51-25 at 1.) Because the Superintendent had already chosen the Principal's Supervisor, Defendant Karin Reynolds, for Plaintiff's Level 4 appeal, see Doc. No. 51-7 at 195-97, Defendant Susan Field, an Assistant Superintendent over Learning Services, was chosen. (Id.; Doc. No. 51-1 at 131.)

         Dr. Field met with Plaintiff on April 21, 2015 from 3:45 p.m. to 5:15 p.m. (Doc. No. 51-28 at 47-48.) Plaintiff drafted a set of talking points that she took with her to the meeting and referred to from time to time. (Doc. No. 51-1 at 147-48.) Dr. Field drafted a letter denying Plaintiff's appeal and showed the draft to Defendant Peak. (Doc. No. 54-1 at 57.) She does not recall whether there were multiple drafts but she describes it as a working draft and testified that the two of them spent time on it. (Id.)

         On May 5, 2015, Dr. Field issued the letter to Plaintiff concluding, “While your intentions may have been in good faith, your actions were in violation of many District 20 policies and procedures . . . . Your transfer from assistant principal/athletic director to teacher at Air Academy High School is within the statutory authority of the school district. In my investigation, I have found no violation, misapplication, or misinterpretation of school district policy.” (Doc. No. 51-29 at 1, 3.) She testified that several provisions were included at the request of Mr. Cohn and Defendant Peak. (Doc. No. 54-1 at 130-31.) Additionally, the letter included multiple allegations of which Plaintiff had been previously unaware. (Doc. No. 51-18; Doc. No. 51-29 at 2; Doc. No. 51-20.)

         Defendant Field's letter is dated the same day as Ms. Elges' email to Defendant McGill reporting the June 30, 2012 transfers of monies between accounts. (Doc. No. 51-29.) The allegations regarding the transfers are included in full in Defendant Field's letter, wherein she stated that her own investigation revealed these transfers. (Doc. No. 51-29 at 2.) In her letter, Defendant Field stated that Plaintiff had chosen not to respond to the allegations against her at the January 30, 2015 and the February 10, 2015 meetings. (Id. at 1; Doc. No. 51-1 at 101.) At the request of Mr. Cohn, Defendant Field included the statements, “During our April 21, 2015 meeting, you verbally requested remedy for administrative salary reinstatement for the remainder of the 2014-2015 school year. This request is denied as you are currently working as a teacher.” (Doc. No. 51-29 at 3; Doc. No. 54-1 at 130-31.)

         Upon request of Defendant Peak, Defendant Field's letter also included reference to Plaintiff's failure to timely evaluate coaches from July 2008-2010. (Doc. No. 51-29 at 2; Doc. No. 54-1 at 114.) Plaintiff's performance evaluation for the 2010-11 school year included the same criticism but stated, “Diane had not been evaluating coaches according to board policy in the last year or so but recommitted to those evaluations with gusto this year. Her teacher and coach evaluations were detailed and complete.” (Doc. No. 54-1 at 113.) Additionally, Plaintiff's performance evaluation for the 2011-12 school year includes praise for, inter alia, evaluating coaches in a timely manner. (Doc. No. 54-1 at 2) (“She completed all her coaching evaluations in a timely manner and her feedback was measured and honest.”) Defendant Field also included the allegation regarding Plaintiff's violation of CHSAA bylaws because Dr. Peak asked her to do so. (Id.; Doc. No. 51-29 at 2.)

         Plaintiff subsequently filed her Level 4 appeal, which was being heard by Ms. Reynolds. (Doc. No. 51-30.) In that appeal, Plaintiff points out several allegations from the Level 3 denial regarding which she could not respond or properly appeal because she did not have sufficient information. (Id.) During the appeal, Ms. Reynolds met with Plaintiff for approximately one and one-half hours. (Doc. No. 51-1 at 163, 170.) Plaintiff again went through her talking points and each of the allegations of which she was aware, explaining how she understood the events that had occurred and her own actions. (Id. at 163-64.) On June 9, 2015, Ms. Reynolds issued a letter summarily denying Plaintiff's appeal, stating that she “found no policy violation in your transfer from assistant principal/athletic director to teacher at Air Academy High School as such a transfer is within statutory authority of the school district per Colorado Revised Statutes 22-63-106.” (Doc. No. 51-31.)[10]

         Plaintiff next filed a Level 5 appeal with the ASD20 Board of Education. (Doc. No. 51-32.) Board President, Defendant Van Matre, requested the Superintendent compile “some information for the [B]oard so that we could see for ourselves what some examples were of some of the concerns, ” specifically financial concerns, regarding Plaintiff. (Doc. No. 51-33 at 13, 52-53.) She further requested that such information be provided in a paper copy in a binder that would be left in a locked room in the boardroom. (Id. at 54.) At the July 23, 2015 Board meeting, the Board resolved to decide Plaintiff's Level 5 appeal on the basis of the documents submitted. (Doc. No. 51-34 at 2.)

         The Board members were not required to review any of the information submitted pursuant to Defendant Matre's request and she is only aware of two other Board members, Defendant Johnson and Defendant Strebe, that did so. (Id.) Defendant Van Matre reviewed the documents for less than thirty minutes and did not look through all of the documents. (Doc. No 54-1at 58-59, 83.) She is not aware how long Defendants Johnson and Strebe reviewed them. (Doc. No. 54-1 at 58-59.) Upon reviewing the materials, Defendant Van Matre did not come to a conclusion on whether Plaintiff had mishandled finances and she was not concerned about the appeal process. (Id. at 66, 68, 71, 73, 76, 83.)

Q. Okay. And based on your looking at that, then did you come to a conclusion regarding whether [Plaintiff] had ...

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