United States District Court, D. Colorado
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.
KATHLEEN M. TAFOYA UNITED STATES MAGISTRATE JUDGE
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”].)
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.) 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
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.) 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.)
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.
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.)
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.) Plaintiff tried
to respond to each allegation during the meeting.
(Id. at 101.)
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.”
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.
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.
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.) 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.)
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.
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.) 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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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 ...