362 F.3d 1118 (9th Cir. 2004), 02-35260, Settlegoode v. Portland Public Schools

Docket Nº:02-35260.
Citation:362 F.3d 1118
Party Name:Pamella E. SETTLEGOODE, Plaintiff-Appellant, v. PORTLAND PUBLIC SCHOOLS, Multnomah School District No.1; Susan Winthrop; Robert Crebo; Larry Whitson, Defendants-Appellees.
Case Date:April 05, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1118

362 F.3d 1118 (9th Cir. 2004)

Pamella E. SETTLEGOODE, Plaintiff-Appellant,


PORTLAND PUBLIC SCHOOLS, Multnomah School District No.1; Susan Winthrop; Robert Crebo; Larry Whitson, Defendants-Appellees.

No. 02-35260.

United States Court of Appeals, Ninth Circuit

April 5, 2004

Argued Oct. 7, 2003.

Submitted and Filed April 5, 2004.

Page 1119

[Copyrighted Material Omitted]

Page 1120

Charles J. Merten, Portland, Oregon, for the plaintiff-appellant.

Bruce L. Campbell, Portland, Oregon, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Janice M. Stewart, Magistrate Judge, Presiding.

Before: D.W. NELSON, KOZINSKI and M. McKEOWN, Circuit Judges.

KOZINSKI, Circuit Judge:

We consider the standard of review applicable to various post-trial motions following a jury verdict.


Many facts were hotly disputed at trial. We state them here consistent with the verdict.

Dr. Pamella Settlegoode was hired by Portland Public Schools as an Adapted Physical Education teacher for the 1998-99 academic year on a probationary basis. Hired to teach students with disabilities in various schools in the district, she was an itinerant teacher and therefore conducted her physical education classes at two or three different schools each day. Her job included teaching the disabled students as well as drafting individualized education programs (IEP) for them, as mandated by federal law. See 20 U.S.C. § 1414(d).

Settlegoode soon became concerned about the way disabled students were treated in the Portland schools. She had trouble finding a place to teach her high school students; material and equipment were often lacking, inadequate or unsafe. Settle goode tried to talk to her immediate supervisor, Susan Winthrop, about these problems. Winthrop told Settlegoode that she was the only one who had ever complained about the facilities for disabled students, and Winthrop frequently attempted to change the subject. At the end of her first year of teaching, Settlegoode wrote Winthrop's supervisor, Robert Crebo, a ten-page letter expressing her concern that the Adapted Physical Education program suffered from problems of "[s]ystematic discrimination, maladministration, access, pedagogy, curriculum, equity and parity," and "greatly compromised" federal law. E.R. at 132. She described her negative experiences in several different schools in the district, comparing the treatment of disabled students to that of black students before the Civil Rights Movement. "In sum," she wrote, "these sketches offer a portraiture of a form of education that is ... all too familiar in this country. It wasn't all that long ago when Black African Americans took a back seat on the American School bus (though in Portland, there's still lots of 'Separate, but equal' to go around)." Id. at 141. Settlegoode also criticized Winthrop in this letter, claiming that Winthrop was dismissive of Settlegoode's concern for her students, and that Winthrop was too tied to the school bureaucracy to be in touch with the needs of disabled students.

Crebo gave Settlegoode's letter to Winthrop for comment. Winthrop replied with a memo to Crebo stating: "It is of concern to me that a staff member with such limited experience has the potential to defame my character and damage my professional reputation." Id. at 144. Winthrop

Page 1121

ended with, "I appreciate your support in this." Id. Crebo then asked Winthrop to draft a response to Settlegoode's letter and to investigate Settlegoode's accusations. In the meantime, Winthrop told Settlegoode to stop writing letters, because it was not "an effective means of communicating." S.E.R. at 61.

Crebo's response to Settlegoode's letter defended Winthrop and the school district's treatment of disabled students. The letter ended by stating: "It is puzzling to me that with this limited experience you've made such critical comments about our system. It is unfortunate that you are so dissatisfied with your teaching position in Portland Public Schools." Id. at 155.

During Settlegoode's first year of teaching, her performance evaluations were generally positive. In all categories, Winthrop wrote that Settlegoode's performance met minimum standards. She elaborated that Settlegoode's instruction was "well planned, appropriate, and of high interest." Id. at 222. She also wrote that Settlegoode "is supportive of students, giving them good feedback and treating them with respect," and that she "has creative ideas and effectively uses unique materials to enhance activities." Id. With regard to the preparation of IEPs for her students, Winthrop explained that, "Ms. Settlegoode is working to develop her skills in writing IEP goals and objectives which are measurable. She has not yet had opportunities to prepare evaluation reports." Id.

Winthrop's evaluations after Settlegoode's letter were much more negative. Settlegoode no longer met minimum standards of performance in several areas, including IEP writing, behavior management practices, ability to maintain maximal instruction time for students, ability to interact positively with administrators, supervisors and colleagues, and ability to interact positively with parents and students. Winthrop noted in the evaluations that Settlegoode "is not writing IEP goals which are measurable nor is she establishing baseline data in the Present Level of Education Performance (PLOP). IEP objectives do not consistently include specific student behavior and measurable criteria." Id. at 232. 1 Winthrop also wrote that Settlegoode was "strong, outspoken, and demanding," and that she was "not able to listen to constructive criticism, complete a self reflective process, and improve professional behavior." Id. at 235. The evaluation ended by stating that, "[i]f Dr. Settlegoode's work continues at its present quality, renewal of contract for another year cannot be recommended." Id. at 237.

Settlegoode next wrote a fifteen-page letter to Dr. Ben Canada, the superintendent of Portland Public Schools, claiming that she was being retaliated against for complaining about the treatment of her students. She also reiterated her contention that the facilities for disabled students in the school district were inadequate. She claimed these conditions were "discriminatory." Id. at 172. Canada testified that "at that point ... [c]ounsel [was] involved." Id. at 335.

Crebo then responded to Settlegoode's letter to Canada. He wrote:

I want you to understand, clearly, that I am not going to respond to your issues, accusations and subjective characterizations of situations and other professionals.

As your Supervisor, Susan Winthrop, has indicated to you these long, written communications are not an effective way

Page 1122

to deal with issues. In fact, you have been directed to discontinue this practice and meet with your supervisor to discuss any issues about which you are concerned.

There is one assertion that you make in your most recent 15 page letter to Dr. Canada that is very troubling to me to which I will respond. You assert that your "reporting of events has reaped professional retaliation" and you assert further that this retaliation continues. This allegation is absolutely without merit. Ms. Winthrop will continue to perform her duties as your Supervisor which is to provide you with honest and direct feedback on your job performance.

Id. at 177.

Crebo also wrote a memo to Canada, saying that it was "likely that ... [Settlegoode] will not be recommended for renewal." Id. at 178. The memo explained that Settlegoode had been "writing lengthy letters to her supervisor and the Director of Special Education that were hostile, accusatory, and demanding," and that she had been "highly critical of special education services, administrators, and other staff." Id. The memo also discussed Settlegoode's difficulty in communicating with her colleagues and managing groups of students, and her lack of responsiveness to constructive feedback. Id. Settlegoode's final evaluation noted improvement in some areas, but stated that she was still deficient in writing IEPs, that her communication with others "continues to be difficult," and that she had problems monitoring groups of students. Id. at 240-44. It also stated that her performance fell below district standards and that her contract would not be recommended for renewal. Id. at 245. The School Board then met about whether to renew Settlegoode's contract and decided not to. S.E.R. at 198.

Settlegoode brought suit against the Portland Public Schools, Winthrop and Crebo, alleging that defendants violated section 504 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978, 29 U.S.C. § 794, Settlegoode's First Amendment free speech rights under 42 U.S.C. § 1983, and Oregon's Whistleblower Act, ORS 659A.200-.224. 2 A jury found for Settlegoode on all claims and awarded her $500,000 in non-economic damages and $402,000 in economic damages. In addition, the jury awarded $50,000 in punitive damages against both Winthrop and Crebo under section 1983.

The magistrate judge granted defendants' motion for judgment as a matter of law on all three causes of action, and held that Winthrop and Crebo were entitled to qualified immunity on the section 1983 claim. The magistrate also granted defendants' motion for a new trial because she found Settlegoode's counsel had engaged in misconduct. Not surprisingly, Settlegoode appeals.


A district court may set aside a jury verdict and grant judgment as a matter of law "only if, under the governing law, there can be but one reasonable conclusion as to the verdict." Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1283 (9th...

To continue reading