Judge Dismisses Coach’s Claim of Retaliation, Finding That His Supporters’ Speech Does Not Afford Him Protection

Apr 24, 2020

A federal judge from the Northern District of California has granted summary judgment to a district superintendent and a high school principal, who were sued by the school’s former head football coach, who alleged that he had been retaliated against and deprived of his due process rights when it terminated him and then did not rehire him when the job became available again.
 
Plaintiff Tim Adams, who is a tenured teacher at Terra Nova High School, alleged that he was removed from coaching the Terra Nova football team in 2018 because Principal Megan Carey erroneously believed he had turned the team’s fan base against her. The plaintiff also alleged a procedural due process claim on the grounds that the defendants hired a non-teacher, temporary employee as head varsity coach without making such an assignment available to (and giving notice of the assignment) teachers presently employed in the school district.
 
Adams’ demise as football coach may have started on Aug. 11, 2017, when a pre-season football game turned into a brawl. While Adams praised the team for supporting each other in the brawl, Carey told the players that she was disappointed in them for their involvement in the brawl, according to the court. Carey went on to report the brawl to the California Interscholastic Federation and eventually forfeited the first game of the year as a self-imposed penalty. Parents and team supporters were unhappy about the decision and later that month she was criticized by boosters.
 
The friction between Carey and Adams grew when Carey issued a letter of reprimand to the plaintiff. Adams alleged that after that “his professional relationship with Carey continued to deteriorate and was ‘challenging’ throughout the following 2018 football season,” according to the court. On Jan. 25, 2019, Adams was told that he had been removed from his role as head varsity football coach but would retain his position as a tenured teacher at the school.
 
Adams sued, naming Carey and Terry Ann DeLoria, the Superintendent of the Jefferson Union High School District, as defendants. Specifically, he alleged that Carey “wrongly believed that he was responsible for Carey’s poor relationship with supporters of the football team, because she falsely believed that he had engaged in negative talk about her with parents, players, fans and/or other supporters of the Terra Nova Tigers.” Thus, the plaintiff alleged “his removal constituted retaliation against him for protected speech.”
 
When the defendants went on to hire Jason Piccolotti, who at the time was a non-teacher and temporary employee, to serve as head varsity football coach for the 2019 season, Adams became upset and subsequently alleged the defendants violated California Education Code § 44919(b), which he contends requires the school board “to make athletic positions available first to non-temporary teachers.” Thus, defendants “violated his due process right, pursuant to the school board policy and Education Code § 44919(b), to be informed of the availability of the head varsity football coach position and to be offered an opportunity to serve in that position.”
 
In its review of the retaliation claim, the court wrote that to state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: “(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).
 
Adams alleged a violation of the First Amendment, satisfying the first element. As for the second, the courts must consider whether “a balance between the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Hagen v. City of Eugene, 736 F.3d 1251, 1257 (9th Cir. 2013).
 
To strike this balance, the court considered the five factors outlined in Eng v. Cooley, 552 F.3d 1062,1070 (9th Cir. 2009): “(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.”
 
Adams satisfied the first factor since “issues concerning school leadership or addressing school personnel assignments (are deemed) to be matters of public concern.” See, e.g., Duffy v. Los Banos Unified Sch. Dist., No. 15-cv-423-EPG, 2015 U.S. Dist. LEXIS 146413, 2015 WL 6881119, at *6 (E.D. Cal. Oct. 28, 2015).
 
The second factor, speech as private citizen, was a different story, since it was the speech of others that allegedly triggered the retaliation by Carey.
 
“Wasson v. Sonoma County Junior College, 203 F.3d 659 (9th Cir. 2000), is directly on point to the issue at hand: whether an employee can bring a First Amendment retaliation claim based on the speech of others,” wrote the court. “There, the plaintiff, a professor, brought a First Amendment retaliation claim after the school district board terminated her because the board thought the plaintiff was responsible for anonymous public writings that disparaged the school district president. Id. at 661-62. Notably, the plaintiff denied she was the author of the writings.”
 
The court ruling in favor of Carey on the second factor rendered the remaining factors moot.
 
Turning to Adams’ § 1983 deprivation of due process claim, the court noted that he did not allege any facts that he applied for the position of head football coach. “In fact, the plaintiff contends that defendants should have told him about the position, so that he could apply for the position.” Case law dictated that he had to apply for a coaching position “in order to receive employment preference under § 44919(b), but that did not occur here. Accordingly, the plaintiff could not receive any employment preference created by section 44919(b) and further could not have a constitutionally protected property interest.”
 
Adams v. DeLoria et al., N.D. Cal.; 2020 U.S. Dist. LEXIS 40508, Case No. 19-cv-05609-PJH; 3/9/20
 
Counsel: (for plaintiff) Stanley R Apps, Stanley R Apps, P.A., Santa Clara, CA. (for defendant) Steven Douglas Werth, Allen, Glaessner & Werth, LLP, San Francisco, CA; Alexei Nathan Offill-Klein, Allen Glaessner Hazelwood Werth LLP, San Francisco, CA.


 

Articles in Current Issue