Downing v. West Haven Board of Ed.

• Decision Date: 24 August 2001
• Docket Number: No. Civ. A. 3:00CV525 (SRU).,Civ. A. 3:00CV525 (SRU).
• Citation: 162 F.Supp.2d 19
• Parties: Ella DOWNING v. WEST HAVEN BOARD OF ED., et al.
• Court: U.S. District Court — District of Connecticut

162 F.Supp.2d 19

Ella DOWNING v. WEST HAVEN BOARD OF ED., et al.

No. Civ. A. 3:00CV525 (SRU).

United States District Court, D. Connecticut.

August 24, 2001.

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W. Martyn Philpot, Jr., Laura Lee A. Dorflinger, Law Offices of W. Martyn Philpot, Jr., LLC, New Haven, CT, for plaintiff.

Floyd Joseph Dugas, Warren L. Holcomb, Berchem, Moses & Devlin, P.C., Milford, CT, for defendants.

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

UNDERHILL, District Judge.

Plaintiff Ella Downing ("Downing"), formerly a public school teacher at West Haven High School, brings this action for money damages based upon the defendants' response to her wearing a tee shirt to school reading "JESUS 2000 — J2K" on May 24, 1999.¹ Downing alleges that the defendants violated her First Amendment rights to free speech and religious freedom and retaliated against her in violation of 42 U.S.C. § 1983 and the Connecticut Constitution, Article First, Sections 1, 4 and 5. Downing's complaint also alleges that the defendants violated Connecticut General Statutes § 31-51q by disciplining her for exercising her free speech rights. Downing also seeks damages for claims of intentional and negligent infliction of emotional distress.²

The defendants — the West Haven Board of Education, certain West Haven High School employees and the individual members of the Board of Education (collectively, "the defendants"), have moved for summary judgment on all of the claims raised in Downing's complaint. For the reasons set forth below, the defendants' Motion for Summary Judgment (doc. # 22) is granted.

I. BACKGROUND

During the 1998-99 school year, Downing taught keyboarding to students in grades 9 through 12 at the public high school in West Haven, Connecticut. On May 24, 1999, Downing wore a beige tee shirt to school with the words "JESUS 2000—J2K" prominently displayed on the front in capital letters. The words "JESUS 2000" were brown-colored letters that were approximately 5½ inches in height and outlined in black. Centered immediately below were the letters "J2K," approximately 4 inches in height. Downing wore the tee shirt in the classroom during instructional time.

Upon learning of the situation, defendant Martin Taylor ("Taylor"), the "Assistant Instructional Leader" or Vice Principal of the high school, telephoned Laurence Frattini ("Frattini"), an Assistant Superintendent of the West Haven Public Schools. Frattini consulted the law firm of Berchem, Moses & Devlin, P.C., the attorneys who represent the West Haven Board of Education. Acting on the advice of counsel, Frattini called Taylor and instructed him to direct Downing to either cover the tee shirt or go home and change into other clothes.

Taylor then walked to Downing's classroom, called her out of class and instructed her to either cover the tee shirt or go home and change. Downing subsequently covered the shirt by wearing a lab coat for the remainder of her teaching periods that day.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the evidence demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

When ruling on a summary judgment motion, the court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.) (court is required to "resolve all ambiguities and draw all inferences in favor of the nonmoving party"), cert. denied, 506 U.S. 965, 113 S.Ct. 440, 121 L.Ed.2d 359 (1992). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or denials of his pleadings, but rather must present significant probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995).

Summary judgment is proper "[o]nly when reasonable minds could not differ as to the import of the evidence." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir.1992). If the nonmoving party submits evidence that is "merely colorable," or is not "significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. 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." Id. at 247-48, 106 S.Ct. 2505. To present a "genuine" issue of material fact, there must be contradictory evidence "such that a reasonable jury could return a verdict for the non-moving party." Id. at 248, 106 S.Ct. 2505.

III. DISCUSSION³

A. The Board of Education as the Real Party in Interest

The defendants argue that, because the individual members of the West Haven Board of Education are sued only in their official capacities and because there are no allegations that any of those Board members were personally involved in the alleged conduct, the Board of Education is the real party in interest and no cognizable claim has been stated against the Board members. The court agrees.

Where an individual member of a school board is sued only in his or her official capacity, and there are no claims that the member was directly and personally responsible for the alleged conduct, courts in this Circuit have held that the Board, and not that individual member, is the real party in interest. See, e.g., Rosa R. v. Connelly, 889 F.2d 435, 437 (2d Cir.1989) ("As a preliminary matter, we note that the district court properly dismissed James Connelly, Superintendent of Schools, as a defendant in this case. Because appellants sought to sue him in his official rather than personal capacity, the Board, and not Connelly, was the real party in interest. Without any allegations that Connelly was "directly and personally responsible for the purported unlawful conduct," appellants failed to assert a distinct claim against him, rendering their complaint as to Connelly `fatally defective' on its face. We thus proceed to consider appellants' claims against the Bridgeport Board only."), citing Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), and Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987); see also Mennone v. Gordon, 889 F.Supp. 53, 55 (D.Conn.1995) (dismissing Superintendent because complaint alleged only that defendant, as Superintendent, served as chief executive officer of the school board and had responsibility for supervision of the school district; there were no specific allegations that the Superintendent was directly and personally responsible for any action or inaction on the part of the school board; accordingly, the school board was the real party in interest.).

The following defendants are identified in the Corrected Amended Complaint as members of the West Haven Board of Education who are sued only in their official capacities: Jolen Barnes; George Belbusti; Timothy Borer; Gerald Calabritto; Curtis Edwards; John Erickson; Robert Guthrie; Trevor Hackley and Deborah Simone. There are no allegations or evidence that these individual members were directly and personally responsible for the purported unlawful conduct. Accordingly, the Board is the real party in interest, and summary judgment is granted in favor of the above-referenced members of the Board.⁴

B. Count I -42 U.S.C. § 1983

The defendants argue that they are entitled to qualified immunity because it was objectively reasonable for them to believe that any restriction of Downing's speech was necessary to avoid an Establishment Clause violation. It is necessary to reach the issue of qualified immunity, however, only if the defendants' "attempt to avoid Establishment Clause violations by restricting the religious expression of one of its teachers infringe[d] that teacher's free exercise rights." Marchi v. Board of Cooperative Educational Services of Albany, 173 F.3d 469, 472 (2d Cir.1999). In other words, the analysis starts with the question whether the alleged restraint on Downing's free exercise and free speech rights was permissible

(i) Free Speech

In Marchi, the Second Circuit noted the difficulty government agencies face when an employee's conduct presents a potential violation of the Establishment Clause, but restricting that conduct presents a potential violation of the Free Exercise Clause. Id. at 475-76. Like the present case, Marchi "concern[ed] the tension between two constitutional principles — separation of church and state and the free exercise of religion — in the context of public education." Id. at 472.

Marchi was a certified special education teacher who taught socially and emotionally disturbed high school students for the Board of Cooperative Educational Services of Albany ("BOCES"). Id. Marchi underwent a dramatic conversion to Christianity and not only shared this experience with...