Draper v. Logan County Public Library

• Decision Date: 29 August 2005
• Docket Number: No. CIV.A. 1:02-CV13-R.,CIV.A. 1:02-CV13-R.
• Citation: 403 F.Supp.2d 608
• Parties: Kimberly DRAPER, Plaintiff, v. LOGAN COUNTY PUBLIC LIBRARY, et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

Page 608

403 F.Supp.2d 608

Kimberly DRAPER, Plaintiff, v. LOGAN COUNTY PUBLIC LIBRARY, et al., Defendants.

No. CIV.A. 1:02-CV13-R.

United States District Court, W.D. Kentucky, Bowling Green Division.

August 29, 2005.

COPYRIGHT MATERIAL OMITTED

Francis J. Manion, Geofrey R. Surtees, New Hope, KY, for Plaintiff.

Charles E. English, Jr., English, Lucas, Priest & Owsley, Bowling Green, KY, Thomas A. Noe, III, Russellville, KY, for Defendants.

MEMORANDUM OPINION

RUSSELL, District Judge.

This matter is before the Court upon cross-motions for summary judgment (Dkt. Nos. 9 & 10). The parties having each responded (Dkt. Nos. 15 & 16) and replied (Dkt. Nos. 17 & 18), this matter is now ripe for adjudication. For the reasons that follow, both motions are GRANTED IN PART and DENIED IN PART.

BACKGROUND

Plaintiff Kimberly Draper is a former employee of the Logan County Public Library. Ms. Draper began working at the library in August 1998. Draper performed a variety of tasks at the library, including securing inter-library loans, assisting patrons at the front desk, processing new materials entering circulation, and repairing work library books. While much of Ms. Draper's work involved working with library patrons, some of her work was performed outside the view of patrons.

Prior to her August 1998 hire, Plaintiff had been a library volunteer, which had her preparing crafts, participating in the library's story hour, and performing tasks for a library employee, Robin Emberton. As a volunteer, Ms. Draper would spend sixteen to twenty hours per week at the library. Draper frequently wore religious T-shirts during this time.

Before being hired as a paid library employee, Ms. Draper was told by Linda Kompanik, library director, that she could no longer wear the religious T-shirts that she had worn as a volunteer. The basis for this restriction was found in the library's dress code, which provided:

The library staff shall always be neat in appearance. Shorts are not allowed unless during special occasions so designated by the director. No clothing depicting religious, political, or potentially offensive decoration is permitted. Hats or caps are not permitted. All extremes of dress are to be avoided. Costumes may be worn when promoting a library program or theme.

(Dkt. # 9, Exh. D (emphasis added).) Ms. Draper understood the dress code policy to mean that she needed to dress professionally, and it was her understanding that she would be allowed to wear religious jewelry, such as crosses and angels, which she had seen librarians wearing during her time as a volunteer.

At least a year after Ms. Draper's hire, Ms. Kompanik amended the dress policy to prohibit religious ornaments as well: "No clothing or ornament depicting religious, political, or potentially offensive decoration is permitted." (Dkt. # 9, Exh. E (emphasis added).) This new policy, which was not given to Draper at the time of the change, still remains in effect at the library.

On April 3 or 5, 2001, Plaintiff returned to the library after a week's vacation. Sometime later in the day, she went into the office of Sherryl Appling, the library's assistant director. Ms. Appling noticed Draper wearing a cross on her necklace and told her to remove it. Appling told Ms. Draper that she could wear the cross under he clothing, believing that this would remedy any possible offense to library patrons.

On April 11, 2001, Draper again reported to work wearing the cross necklace. Assistant director Appling told Ms. Draper that she had spoken with director Kompanik about the cross and that Draper should remove it until speaking with Ms. Kompanik. Plaintiff responded that she believed she had the right to wear the necklace; Ms. Appling then told Plaintiff that she would have to remove the necklace or be sent home for the day. Ms. Draper elected to go home.

On April 16, 2001, Draper met with Kompanik. The two discussed the prior incidents involving Appling and the cross pendant, and Kompanik told Draper that Draper's refusal to remove the cross after being told by a superior to do so constituted insubordination. Ms. Kompanik then stated that she believed Draper had quit her job by leaving work. Ms. Draper replied that she had no intention of quitting and would have to be fired, and Ms. Kompanik then fired Draper.

Ms. Draper filed the instant suit on February 1, 2002 against the Logan County Public Library, the library's Board of Trustees, Linda Kompanik, and Sherryl Appling.¹ Her cause of action is rooted in 42 U.S.C. § 1983, alleging violations of the free exercise and freedom of speech protections of the First Amendment and the due process protections of the Fourteenth Amendment.²

STANDARD

Summary judgment is available under Fed.R.Civ.P. 56(c) if the moving party can establish that the "pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that 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." In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

"[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989). The test is "whether the party bearing the burden of proof has presented a jury question as to each element in the case." Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996). The plaintiff must present more than a mere scintilla of evidence. To support his position, he must present evidence on which the trier of fact could find for the plaintiff. See id. (citing Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

DISCUSSION

I. Free Speech

Ms. Draper, an employee of the Logan County Public Library, is a public employee.³ See Stevens v. Bd. of Library Trustees of Cherry Valley Pub. Library Dist., No. 95 C 50160, 1997 WL 436227 (N.D.Ill. July 15, 1997). For a public employee to establish a claim for violating her rights under the Free Speech Clause, she must demonstrate:

(1) that [she] was engaged in a constitutionally protected activity; (2) that the defendant's adverse action caused [her] to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of [her] constitutional rights.

Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2002) (quoting Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir.2000)) (alterations in original).

Here, it is apparent that Ms. Draper suffered a sufficiently adverse action. Her firing would certainly chill a person of ordinary firmness from engaging in similar conduct. Further, the facts reveal that Ms. Draper's firing was motivated at least in part in response to her display of the cross necklace. While Defendants argue that it was Ms. Draper's belligerence in challenging the library's dress code rather then her display of the cross necklace that led to her dismissal, Draper's actions arose directly from her disagreement with the policy and her desire to wear her cross necklace at work. The real dispute, therefore, is whether Plaintiff was engaged in a constitutionally protected activity by wearing the cross necklace.

For her display of the cross necklace to have been constitutionally protected speech,⁴ Ms. Draper's actions must satisfy two requirements. First, her actions must fall within the category of constitutionally protected conduct known as "expressive conduct" or "symbolic speech." This requires that she have intended to convey a particularized message by displaying the cross pendant, and that her act have had a great likelihood of being understood by those who view it as carrying her intended message. Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Second, Ms. Draper must show that her conduct touches on a matter of public concern. Cockrel, 270 F.3d at 1048. If Ms. Draper can satisfy these two requirements, the burden shifts to the government to demonstrate that Draper's interest in speaking on this matter of public concern is outweighed by its interest, as her employer, in "promoting the efficiency of the public services it performs through its employees." Id. (quoting Leary, 228 F.3d at 737); see Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (citing Connick, 461 U.S. at 150, 103 S.Ct. 1684) (burden on employer in balancing test).

It is readily apparent that Ms. Draper's outward display of her cross pendant falls within the purview of expressive conduct. She stated that she wears a cross "to give witness to [her] religious faith."⁵ And it can hardly be debated that her display would be understood by viewers as carrying her intended message. Indeed, the Christian cross is one of several inherently expressive religious symbols that cannot seriously be considered to ever be devoid of message. Congregation Lubavitch v. City of Cincinnati, 997 F.2d 1160, 1164 (6th Cir.1993) ("[A]t this late date it cannot be argued that the display of such an object as a menorah or a cross is not `symbolic speech' that is protected by the free speech provisions of the First Amendment."); see, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (burning crosses); Knight Riders of Ku Klux Klan v. City of Cincinnati, 72 F.3d 43 (6th Cir.1995) (cross bearing the message: "John 3:16").

Having demonstrated that her display of the cross pendant constituted expressive speech, Ms. Draper must now show that this expressive speech touched on a matter of public concern. This requirement exists because:

[s]peech...