Dunn v. Lyman Sch. Dist. 42-1

• Decision Date: 04 August 2014
• Docket Number: No. CIV. 13–3004–RAL.,CIV. 13–3004–RAL.
• Citation: 35 F.Supp.3d 1068
• Parties: Mark DUNN, Plaintiff, v. LYMAN SCHOOL DISTRICT 42–1, Defendant.
• Court: U.S. District Court — District of South Dakota

35 F.Supp.3d 1068

Mark DUNN, Plaintiff

v.LYMAN SCHOOL DISTRICT 42–1, Defendant.

No. CIV. 13–3004–RAL.

United States District Court, D. South Dakota, Central Division.

Signed Aug. 4, 2014.

Hannah Elizabeth Dunn, Oakland, CA, Sara Frankenstein, Kyle L. Wiese, Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, SD, for Plaintiff.

Jessica L. Filler, Naomi R. Cromwell, Richard Paul Tieszen, Wade Lee Fischer, Tieszen Law Office, Pierre, SD, for Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ROBERTO A. LANGE, District Judge.

I. Introduction

Plaintiff Mark Dunn (Dunn) filed an Amended Complaint against Defendant Lyman School District (School District) alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., (Count I), a breach of fiduciary duty and duty of loyalty (Count II), and intentional infliction of emotional distress (Count III). Doc. 22. The School District moved for summary judgment, Doc. 41, which Dunn opposed, Doc. 51. For the reasons explained below, this Court denies the School District's motion for summary judgment on Count I, but grants the motion on Counts II and III.

II. Facts

This Court takes the facts in the light most favorable to Dunn as the non-moving party and draws the facts primarily from Plaintiff's Objections to Defendant's Statement of Undisputed Material Facts and Counter Statements of Material Facts. Doc. 50. Dunn began working as a guidance counselor for the School District in 1995. Doc. 50 at ¶ 1. He remained in this position until May 2010, when he voluntarily retired with the hope of being rehired the following year so that he could collect retirement benefits and a salary. Doc. 50 at ¶ 2. The School District paid Dunn for his accumulated sick leave and gave him his severance. Doc. 50 at ¶ 4; Doc. 41–25. The School District made no guarantee it would rehire Dunn. Doc. 50 at ¶¶ 3, 5. In June 2010, the School Board (Board) voted to rehire Dunn for the 2010–2011 school year, with only one Board member voting in opposition. Doc. 50 at ¶ 6. Dunn was sixty years old when he was rehired. Doc. 50 at ¶ 8. Because South Dakota regulations required a ninety-day break in service between Dunn's retirement and his return to employment, Dunn could not begin working for the School District until September 1, 2010. Doc. 50 at ¶¶ 9–10.

Because of reduced tax collection caused in part by a recession, the state of South Dakota in 2011 cut its education funding by approximately fifteen percent. Doc. 50 at ¶¶ 11, 17; Doc. 41–4 at 5; Doc. 41–9 at 4; Doc. 41–10 at 2. As a result, Bruce Carrier, the School District superintendent at that time, proposed a reduction in force of certain positions to the Board. Doc. 50 at ¶¶ 12–14, 17. Those identified in the proposed reduction in force—Dunn, Renee Miller, and Beth Bacon—were three of the older employees in the School District. Doc. 50 at ¶ 21.¹ The proposed reduction in force never occurred, however, and the School District offered Dunn a new contract for the 2011–2012 school year. Doc. 50 at ¶¶ 16, 21, 25. Dunn's 2011–2012 contract did not include compensation for work before or after the school year. Doc. 50 at ¶ 25. Nor did the 2011–2012 contract include the extra-duty assignment of National Honors Society (NHS) advisor and the corresponding compensation. Doc. 50 at ¶ 25. Dunn had been the NHS advisor for several years, but the position became unpaid in 2011. Doc. 50 at ¶¶ 18, 19. Marsha Hullinger, a School District secretary, assumed the position for the 2011–2012 school year after agreeing to do so without compensation. Doc. 50 at ¶¶ 18–19. The School District reinstated pay for the position for the 2012–2013 school year. Doc. 50 at ¶ 18.

Doug Eppard (Eppard), a School District employee since 1997 who was most recently the high school principal, became superintendent for the School District in the summer of 2011. Doc. 50 at ¶¶ 28, 30; Doc. 41–12 at 2. Cooper Garnos (Garnos), another School District employee, became principal of the high school and elementary school in 2011. Doc. 50 at ¶¶ 29, 30. During the 2011–2012 school year, Dunn worked with college students Andrea Diehm (Diehm) and Brittany Reuman, nee Fuhrman, (Brittany) while they completed guidance counseling internships with the School District. Doc. 50 at ¶¶ 31–32. Brittany performed her internship during the fall semester while Diehm performed a practicum during the fall semester and an internship during the spring semester. Doc. 50 at ¶¶ 31–32. Around Christmas of 2011, Brittany became engaged to Drew Reuman (Drew), the son of Board President Marlene Reuman (Reuman). Doc. 50 at ¶¶ 89, 90. Brittany had been dating Drew when she applied for the internship and once they became engaged, she hoped to find permanent employment near Lyman where Drew worked. Doc. 50 at ¶¶ 89–90. Both Brittany and Diehm received their masters degrees in the spring of 2012. Doc. 50 at ¶ 33.

Eppard testified in his deposition that during the 2011–2012 school year, he spoke with his wife, Principal Julie Eppard, and Garnos about Dunn's job performance. Doc. 50 at ¶¶ 36–37; Doc. 41–12 at 4. When pressed for specifics, however, Eppard had trouble recalling the details of the conversations and the exact dates they took place. Doc. 50 at ¶¶ 36–37; Doc. 41–12 at 4–5. Similarly, although Garnos testified that he spoke with Eppard on several occasions about Dunn's lack of a connection with students and his level of commitment and community involvement, Garnos was unable to name any particular students with whom Dunn had difficulty connecting. Doc. 50 at ¶ 38; Doc. 52–5 at 5, 10. Garnos further testified that he had not communicated his concerns to Dunn either verbally or in writing and that Dunn had never refused to do something Garnos asked of him. Doc. 50 at ¶ 38; Doc. 52–5 at 4–5, 9.

In January 2012, Eppard and the Board discussed not renewing Dunn's contract. Doc. 50 at ¶ 53; Doc. 41–12 at 13. Eppard testified that during these discussions, several Board members expressed concern that Dunn was not a very good guidance counselor. Doc. 50 at ¶¶ 45, 46; Doc. 41–12 at 13–14. Board member Meta Halverson testified that the Board discussed looking for someone who would be more helpful to the students. Doc. 50 at ¶¶ 46–48; Doc. 41–10 at 4–5. Eppard told the Board that there were two interns in the community who would be very good candidates. Doc. 50 at ¶ 53; Doc. 41–12 at 14. Eppard did not recall any Board member asking about Dunn's age, his receipt of retirement benefits, or whether he was going to retire. Doc. 50 at ¶ 53; 41–12 at 14; see also Doc. 41–11 at 2. At some point in either early 2012 or before, however, the Board did discuss that Dunn had retired in 2010 and was no longer a tenured employee. Doc. 50 at ¶ 53; Doc. 41–10 at 4.

In February 2012, Eppard called Dunn into his office and asked him whether he “was planning to retire that year or what [his] plans were.” Doc. 50 at ¶ 40; Doc. 41–4 at 3; Doc. 52–2 at 18–19. Dunn responded that he planned to continue working for the School District rather than retiring and inquired why Eppard wanted to know. Doc. 50 at ¶ 40; Doc. 41–4 at 3; Doc. 52–2 at 18. Eppard explained that there was a “50/50” chance that Dunn's contract would not be renewed and reminded Dunn that he had lost his tenure when he retired and was then rehired. Doc. 50 at ¶ 40; Doc. 41–4 at 3; Doc. 52–2 at 18. According to Dunn, Eppard also informed Dunn that the possible nonrenewal of his contract had “nothing to do with [Dunn's] job performance, that [Dunn] had done everything [he] had always been asked to do and done it well, but that [Eppard] had two good, young counseling interns living in the [D]istrict that [Eppard] did not want to lose to another district.”² Doc. 50 at ¶¶ 42, 45; Doc. 41–4 at 3; see also Doc. 41–4 at 4. Eppard never called Dunn “old,” mentioned Dunn's age, or told Dunn that the School District needed someone “much younger,” however. Doc. 50 at ¶¶ 41, 42; Doc. 41–4 at 3–4, 12, 17.

According to the “Age Discrimination Fact Summary” Dunn filed, Eppard met with Dunn in early March 2012 to inform Dunn that he would be recommending nonrenewal of Dunn's contract at the Board meeting on March 12, 2012, because it was “time for a change at Lyman.” Doc. 52–18; Doc. 50 at ¶¶ 42, 74; Doc. 41–4 at 4. Eppard told Dunn that he could resign at that time because it “would be better for [Dunn] to do that.” Doc. 50 at ¶ 74; Doc. 52–18. Eppard in fact recommended at the March 12, 2012 meeting that the Board not renew Dunn's contract. Doc. 50 at ¶ 43; Doc. 41–12 at 15. Although the Board had the ultimate authority to make staffing decisions, it considered Eppard's recommendations and typically relied on his statements concerning a teacher's performance. Doc. 50 at ¶ 43; Doc. 41–10 at 2; Doc. 52–2 at 2; Doc. 52–7 at 2, 4. Neither Halverson nor Reuman independently investigated Dunn's performance. Doc. 50 at ¶ 45; Doc. 41–10 at 2; Doc. 52–7 at 2. The Board then voted not to offer Dunn a contract for the following year. Doc. 50 at ¶ 44. Six out of the nine members on the Board in 2010 when Dunn was rehired were also on the Board in 2012 when Dunn's contract was nonrenewed. Doc. 50 at ¶ 54. The same Board members who voted to rehire Dunn in 2010 voted to nonrenew his contract in 2012. Doc. 50 at ¶ 55.

On March 13, 2012, Dunn was given written notice that the Board had not renewed his contract. Doc. 50 at ¶ 58. The notice did not give any reason for the nonrenewal. Doc. 41–19. That same day, the School District advertised for the guidance counselor position. Doc. 50 at ¶ 60. On March 14, 2012, Brittany applied for the guidance counselor position. Doc. 50 at ¶ 92. A hiring committee consisting of Eppard, Julie Eppard, Garnos, and School District counselor Julie Muirhead (Muirhead) interviewed three applicants for the position, including Diehm and Brittany. Doc. 50 at ¶ 61; Doc. 41–12 at 18. The hiring committee asked standard...