Bartell v. Bartell, 00-1162

• Decision Date: 21 August 2001
• Docket Number: No. 00-1162,00-1162
• Citation: 263 F.3d 1143
• Parties: (10th Cir. 2001) RICHARD L. BARTELL and MARY JO BARTELL, husband and wife, Plaintiffs - Appellants, v. AURORA PUBLIC SCHOOLS, a public school district organized under the laws of Colorado, Defendant - Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1143

263 F.3d 1143 (10th Cir. 2001)

RICHARD L. BARTELL and MARY JO BARTELL, husband and wife, Plaintiffs - Appellants, v. AURORA PUBLIC SCHOOLS, a public school district organized under the laws of Colorado, Defendant - Appellee.

No. 00-1162

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 21, 2001

Appeal from the United States District Court for the District of Colorado. (D.C. No. 98-WY-1542)

Theodore P. Coates, Stewart Shortridge & Coates, Englewood, Colorado, for the Plaintiffs-Appellants.

Catherine A. Tallerico (Timothy P. Schimberg with her on the brief), Fowler Schimberg & Flanagan, P.C., Denver, Colorado, for the Defendant-Appellee.

Before LUCERO, Circuit Judge, McWILLIAMS, and REAVLEY,^* Senior Circuit Judges.

LUCERO, Circuit Judge.

Plaintiff-appellants Richard Bartell and his wife filed a 42 U.S.C. 1983 action against his former employer, defendant-appellee Aurora Public Schools ("APS"), alleging violations of his due process and equal protection rights, as well as pendent state law claims, stemming from APS's investigation of sexual harassment charges against Bartell. The district court granted summary judgment for APS in all respects. Exercising jurisdiction pursuant to 28 U.S.C. 1291, we affirm.

I

Bartell worked at APS from January 1977 to July 1997, serving as a Supervisor of Environmental and Support Services during the time period relevant to this appeal. On July 1, 1996, Bartell met with a subordinate, Rita Lesser, in Bartell's office. Although the exact circumstances of the meeting are disputed, Bartell admits he raised his voice, shoved a drawer closed, stated, "We're done," and turned off the lights while Lesser was still sitting in his office. (Appellee's App. at 3435 (Richard L. Bartel Dep.).) After the meeting, Lesser complained to Bartell's supervisor, James Bittle. Lesser told Bittle about the incident in Bartell's office and claimed that it "was not the first incident of th[at] type." (Appellants' Br. at 5.) She also accused Bartell of: treating her, and the other women in his department, less favorably than he treated male APS employees; being abusive towards all employees, especially female employees; denying her permission to obtain needed training; and physically bumping her.

As a result of these allegations, Bittle made a written report of Lesser's complaints and forwarded it to the APS Human Resources Department, including Robert Adams, the Assistant Superintendent of Human Resources. No one filled out the complaint form referenced in APS's sexual discrimination and harassment policies. Adams began an investigation into the charges, and Bartell was notified of the charges and the investigation on July 3, 1996. On July 18, 1996, Adams and two other APS officials met with Bartell, informed Bartell of the allegations against him, and gave Bartell a chance to respond. Bartell admitted to several of the allegations.

On July 24, 1996, Adams again met with Bartell, informing Bartell that he was being placed on "administrative leave with full pay and benefits" and that his right to enter school property was suspended pending further investigation and APS's resolution of the allegations. (Appellee's App. at 71.) Adams indicated that "placing [Bartell] on administrative leave [was] not any determination of guilt or wrongdoing." (Id.) APS's employment policies do not mention "administrative leave," though they state that "[a]n employee may be suspended with or without pay pending investigation of a complaint filed against the employee." (Appellants' App. at 129.) Although the parties dispute the point, Bartell claims that at some time, either at the July 24 meeting or soon thereafter, Adams promised to update Bartell about the investigation in two weeks but did not do so. Meanwhile, APS investigated the charges against Bartell by interviewing approximately ten people, including Bartell and Lesser.

Bartell retained counsel, who sent a letter to APS in mid-September 1996 stating that "until I have had a chance to further investigate the charges and allegations that led to [APS's] actions against my client, there should be no changes made to Mr. Bartell's status in any way (including compensation, benefits or any other aspects of his employment status)." (Appellee's App. at 89.) APS officials sent a reply letter in early October explaining in detail the evidence against Bartell. The letter also requested any information that Bartell or his counsel wanted APS to consider before APS made its final decision and asked that the information be provided within ten days of the letter's date because APS "wish[ed] to reach a decision soon." (Id. at 67.) Despite receiving a second letter requesting a response in early December, neither Bartell nor his counsel provided APS with any information beyond verbal assertions that Bartell had become emotionally disabled and would be unable to attend any further meetings with APS. At some point during late 1996 or early 1997 Bartell filed a claim for disability benefits with the Public Employees' Retirement Association (PERA). Throughout this time APS honored the demand of Bartell's counsel and did not change Bartell's status, keeping him on administrative leave with pay.

On January 13, 1997, APS changed Bartell's status from paid administrative leave to paid sick leave. Two days later, Bartell filed a notice of intent to sue. In July 1997 PERA determined that Bartell was disabled and granted him permanent disability retirement benefits. At that time, APS cancelled his employee benefits and terminated him from the APS payroll.

Bartell filed this 1983 suit alleging equal protection and due process violations by APS. He and his wife also brought pendent Colorado state law claims for breach of contract and promissory estoppel. The district court granted APS's motion for summary judgment on all claims.

II

Counsel for APS, pointing out that Bartell's counsel failed to file an opening brief within the time period set forth in Fed. R. App. P. 31(a)(1) and 10th Cir. R. 31.1(A)(1), filed a motion to dismiss the appeal. Failing to file a brief within the periods prescribed by the appellate rules is not a jurisdictional defect and "[i]t is . . . always within this court's discretion to permit the late filing of a brief for good cause." Hutchinson v. Pfeil, 211 F.3d 515, 517 n.1 (10th Cir. 2000) (citing Fed. R. App. P. 26(b)). For that reason, we do not grant motions to dismiss for failure to follow Fed. R. App. P. 31(a)(1). See 10th Cir. R. 27.2(A)(1) (stating that a party may file a motion to dismiss an appeal only on the bases of lack of jurisdiction, supervening change in law or mootness, or need for additional district court proceedings); Mullen v. Household Bank-Federal Sav. Bank, 867 F.2d 586, 588 (10th Cir. 1989) (stating that "[w]e do not grant motions to dismiss" "for failure to follow the Federal Rules of Appellate Procedure").

III

We review a grant of summary judgment de novo, applying the same legal standard used by the district court. English v. Colo. Dep't of Corr., 248 F.3d 1002, 1007 (10th Cir. 2001). "When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Id. (quotation omitted). Summary judgment is appropriate only if the evidence shows "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c) (emphasis added). To successfully oppose summary judgment, the nonmoving party must show that there is a "genuine" issue of fact, which requires "more than simply show[ing] that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A

Bartell begins his attack on the summary judgment ruling by contending that "the District Court did not view the facts in the light most favorable to the non-moving party" and "accepted [APS's] version of the facts . . . even though such facts were disputed." (Appellants' Br. at 11.) Bartell first claims the district court erred in determining that Bartell voluntarily retired instead of being terminated by APS. Other than bald assertions that this issue has "far-reaching ramifications for much of [Bartell's] case" (Appellants' Br. at 13; Appellants' Reply Br. at 8) and a vague citation to the district court's ruling, Bartell provides no argument why determining whether he retired or was terminated is a material fact.¹ Certainly Bartell cannot argue he had an absolute right to work for APS. As a result, even assuming he was constructively discharged, the inquiry under either his equal protection or due process claims turns not on whether Bartell was discharged, but on the events leading up to his termination: why (e.g., was he the target of discrimination?) and how (e.g., was he afforded due process?) APS acted.

Bartell next points to changes in APS's sexual harassment and discrimination policy made some two years after the incidents giving rise to this lawsuit. While the changes themselves are undisputed, Bartell believes the fact that APS revised its policies is tantamount to an admission by APS that policies in effect during Bartell's investigation "did not provide equal protection" and "were discriminatory on their face." (Appellants' Br. at 13, 16.) The changes cited are: (1) a clarification that sexual harassment can occur for same sex harassment; (2) changing some instances of the pronouns "she" and "her" to "s/he"; (3) changing the word "will" to "may" with regard to filing a written...