Picht v. Peoria Unified School District No. 11 of Maricopa County

• Decision Date: 16 July 2009
• Docket Number: No. cv-07-02034-PHX-ROS.,cv-07-02034-PHX-ROS.
• Citation: 641 F.Supp.2d 888
• Parties: David PICHT, Plaintiff, v. PEORIA UNIFIED SCHOOL DISTRICT NO. 11 OF MARICOPA COUNTY, et al., Defendant.
• Court: U.S. District Court — District of Arizona

641 F.Supp.2d 888

David PICHT, Plaintiff, v. PEORIA UNIFIED SCHOOL DISTRICT NO. 11 OF MARICOPA COUNTY, et al., Defendant.

No. cv-07-02034-PHX-ROS.

United States District Court, D. Arizona.

July 16, 2009.

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Gary L. Lassen, Gary L. Lassen PLC, Phoenix, AZ, for Plaintiff.

Steven Douglas Leach, Jones, Skelton & Hochuli, Phoenix, AZ, for Defendants.

ORDER

ROSLYN O. SILVER, District Judge.

Before the Court is Defendants' Motion for Summary Judgement. (Doc. 44.) For the reasons stated below, Defendants' Motion will be granted.

I. BACKGROUND

Plaintiff David Picht alleges that administrators in Peoria Unified School District No. 11 ("Peoria Unified") have targeted Plaintiff for retaliation ever since he supported the civil rights complaint of a co-worker in 2001. (Doc. 49 at 2-3.) Plaintiff has worked for Peoria Unified as an Assistant Principal since the 2000-2001 school year under a series of renewable one-year contracts. (Doc. 44 at 3:3.) On April 13, 2007, Peoria Unified notified Plaintiff that his contract would not be renewed for the 2007-2008 school year. (Doc. 46 at 2:13-14.) Plaintiff protested that the non-renewal violated A.R.S. § 15-503(D), which mandates a timetable and procedure for such non-renewals, and in response Peoria Unified rescinded the decision. (Id. at 2:19-21.) On June 11, 2007, Plaintiff filed a Notice of Claim against Peoria Unified (Doc. 46 Ex. 5) pursuant to A.R.S. § 12-821.01, which requires such a notice before any state law claims can be brought against a public entity or employee. On June 14, 2007, Plaintiff was informed his contract would be renewed. (Doc. 45 at 2:22-23.)

Plaintiff did not return to his duties at the school he was assigned to, but instead requested assignment to a different school. (See id. at 2:22-3:8.) While this request was pending, Plaintiff was assigned to do typing and clerical work for days at an administrative center. (Id. at 3:9-18.) Plaintiff was offered a new assignment on August 10, 2007, which he accepted and is satisfied with. (Id. at 3:4-8.)

On September 27, 2007 Plaintiff filed suit in the Superior Court of the State of Arizona, alleging federal civil rights claims and state law claims arising from the events surrounding the dispute over renewal of his contract. (Doc. 1-3.) Defendants removed the case to this court under U.S.C. § 1441 et seq. based on this court's original jurisdiction under 28 U.S.C. § 1331.

After discovery, Defendants filed for summary judgment, arguing Plaintiff's claims are time-barred, fail to comply with the notice provisions of A.R.S. § 12-821, and are without legal or factual basis. (Doc. 44.)

II. STANDARD OF REVIEW

A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "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." Fed. R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Substantive law determines which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In addition, the dispute must be genuine; that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party; "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). However, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 255, 106 S.Ct. 2505. Therefore, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor" at the summary judgment stage. Id.

III. ANALYSIS

A. Federal Question Claims

1. Plaintiff Was Not Deprived Of A Right Protected Under 42 U.S.C. § 1983.

Plaintiff argues that an adverse employment action taken against him by Peoria Unified administrators in accordance with Peoria Unified policies deprived him of interests protected by 42 U.S.C. § 1983. (Doc. 1-3 at 13:49-54.)

Defendants assert that Plaintiff's § 1983 claim is time-barred by Arizona's two-year statute of limitations for personal injury actions. (Doc. 44 at 6:1-4, 12:16). Plaintiff's § 1983 claim is based on the non-renewal of his employment contract in April 2007. (Doc. 1-3 at 13.) Defendants do not explain how a two-year limitation period bars an action commenced 6 months after the claim accrued, and therefore Defendants are not entitled to summary judgment on this basis.

Next, Defendants argue Plaintiff has not been denied an interest protected under 42 U.S.C. § 1983. (Doc. 44 at 12:16-13-11.) 42 U.S.C. § 1983 provides a cause of action for the violation under color of law of property or liberty interests protected by the Fourteenth Amendment. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). To be a protected property interest, the claimant must have a legal entitlement to the interest, and not just a mere desire. Id. at 579, 92 S.Ct. 2701. And while the scope of protected liberty interests are not precisely defined, declining to rehire a claimant is not actionable under § 1983 when the employer has not imposed on the claimant "a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities." Id. at 573-74, 92 S.Ct. 2701.

Arizona law does not provide Plaintiff with a protected property interest in continued employment beyond the term of his contract. Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Governors, 184 Ariz. 419, 909 P.2d 486, 496 (Ariz.App.1995). So if Plaintiff has a claim under § 1983, it must be for violation of a liberty interest.

Defendants note correctly that since an employee can recover for deprivation of a liberty interest under § 1983 only when the employee is both terminated and suffers impairment of his reputation for honesty and morality, then if Plaintiff experienced neither employment termination nor such reputational impairment, he cannot recover. (Doc. 44 at 13:5-11 (citing Roth, 408 U.S. at 573, 92 S.Ct. 2701).) Plaintiff acknowledges in his deposition that Defendants have done nothing to impugn his honesty or morality. (Doc. 45-3 at 32:1-33:15.) Plaintiff was not terminated, and does not allege Defendants have foreclosed his freedom to take advantage of other employment opportunities. Furthermore, Plaintiff does not attempt to rebut Defendants' arguments regarding Plaintiff's § 1983 claims. (See Doc. 49.)

Accordingly, on the undisputed facts, Plaintiff has not been deprived of a liberty interest or a property interest protected under § 1983, and Defendants are entitled to summary judgment on Plaintiff's § 1983 claim.

2. Plaintiff Has Failed To State A Claim Under 42 U.S.C. § 1981.

Plaintiff argues that the actions surrounding the non-renewal of his contract are retaliation for his support of a co-worker's discrimination complaint in 2001-2003, and are therefore actionable under 42 U.S.C. § 1981. (Doc. 1-3 at 12:25-13:8.)

Defendants assert that Plaintiff's § 1981 claims are time-barred. Claims for discrimination in employment based on race arises under the 1991 amendment to § 1981, and the statute of limitations for such claims is therefore four years under 28 U.S.C. § 1658. Jones v. R.R. Donnelley & Sons, 541 U.S. 369, 382-83, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). Retaliation claims arise from the same 1991 amendment, CBOCS West Inc. v. Humphries, ___ U.S. ___, 128 S.Ct. 1951, 1957-58, 170 L.Ed.2d 864 (2008), and therefore the statute of limitations for retaliation claims is also four years. Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1338 (11th Cir. 2008). Each discrete retaliatory act starts the clock on the statute of limitations with respect to that act. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

Defendants argue that Plaintiffs § 1981 claims are time-barred because both Plaintiff's initial belief that he was targeted for retaliation, and the alleged impetus for that retaliation—Plaintiff's protected acts supporting a co-worker in a civil rights action¹—occurred over four years ago. (Doc. 44 at 12:3-7.) However, the limitation period begins to run on the date of the alleged retaliatory act, not the date of the protected act. Morgan, 536 U.S. at 113, 122 S.Ct. 2061. Plaintiff alleges that his failure to gain a promotion in 2001 was due to unlawful retaliation, but the limitation period on a claim for that act has run. Plaintiff also alleges that employment actions taken towards him in 2007 were retaliatory, and claims based on 2007 actions are within the four year limitation period. Therefore, Plaintiff's § 1981 claims against Defendants based on actions in 2007 are not time-barred.

Defendants also argue that § 1981 does not apply to Plaintiff because he is white. (Doc. 44 at 12:13-15.) 42 U.S.C. § 1981 protects the right to make and enforce contracts, including employment contracts, against impairment on racial grounds. CBOCS, 128 S.Ct. at 1955-57. Among other things, § 1981 creates a cause of action...