Weaver v. Nebo School Dist.

• Decision Date: 25 November 1998
• Docket Number: No. 2:97-CV-819J.,2:97-CV-819J.
• Citation: 29 F.Supp.2d 1279
• Parties: Wendy WEAVER, Plaintiff, v. NEBO SCHOOL DISTRICT, Robert Wadley, Almon Mosher, Larry Kimball, Denis Poulsen, and Does 1-10, Defendants.
• Court: U.S. District Court — District of Utah

Page 1279

29 F.Supp.2d 1279

Wendy WEAVER, Plaintiff, v. NEBO SCHOOL DISTRICT, Robert Wadley, Almon Mosher, Larry Kimball, Denis Poulsen, and Does 1-10, Defendants.

No. 2:97-CV-819J.

United States District Court, D. Utah, Central Division.

November 25, 1998.

Jennifer Middleton, Matt Coles, New York City, Stephen C. Clark, Salt Lake City, Utah, David B. Watkiss, Watkiss Dunning & Skordas, Salt Lake City, Utah, for plaintiff.

Martha S. Stonebrook, Utah Attorney General's Office, Salt Lake City, Utah, Robert C. Morton, Dunn & Dunn, Salt Lake City, Utah, for defendants.

MEMORANDUM OPINION AND ORDER

JENKINS, Senior District Judge.

On September 18, 1998, the parties, each claiming that this action could be resolved by the court as a matter of law, filed their cross motions for summary judgment. Following full briefing, the motions were heard by the court on November 16, 1998. Jennifer Middleton, David B. Watkiss, and Steven C. Clark appeared on behalf of the plaintiff, Ms. Weaver; Martha S. Stonebrook and Robert C. Morton, Assistant Attorneys General for the State of Utah, appeared on behalf of the defendants. At the close of the hearing, the court reserved its decision on the parties' motions. Now, after reviewing the submitted motions and memoranda, and after hearing counsel's arguments, and for reasons discussed below, Ms. Weaver's Motion for Summary Judgment is granted and defendants' motion is denied.

Factual Background

For the past nineteen years, plaintiff Wendy Weaver has been a teacher at Spanish Fork High School in the Nebo School District. Ms. Weaver, a tenured faculty member since 1982, teaches psychology and physical education. Her reputation as an educator at Spanish Fork is unblemished: she has always been considered an effective and capable teacher, her evaluations range from good to excellent, and she has never been the subject of any disciplinary action.

In addition to her teaching responsibilities, Ms. Weaver has served as the girl's volleyball coach since 1979. She has been effective in this endeavor, leading the team to four state championships.

Unlike her teaching position, however, Ms. Weaver's position as coach was not tenured. Instead, as is the case with all coaching positions at Spanish Fork High School, Ms. Weaver was hired as volleyball coach on a year-to-year basis. For each year she was hired as coach, Ms. Weaver received a stipend, which in her most recent year of coaching was $1,500. The practice of hiring coaches, however, is somewhat informal. It is the policy of the School District that Principal Wadley has final decision-making authority in selecting a coach. Generally, Principal Wadley finds out who has an interest, selects a coach from the interested candidates, and notifies the coach that he or she has the position. No written contract is prepared. In practice, the coach from the previous year is routinely offered the position for the following year, or, as Principal Wadley stated, "[y]ou assign them once and they stay assigned until you assign someone else."

During the 1995 and 1996 school years, Ms. Weaver did not coach the volleyball team. With the consent of Principal Wadley, she took a break from her coaching duties to pursue a master's degree at the University of Utah. She did, however, anticipate a return to coaching in 1997, an anticipation she shared with Principal Wadley. In the spring of 1997, after completing her graduate work, Ms. Weaver again met with Principal Wadley and told him that she was prepared to return to coaching.

In the late spring and early summer of 1997, Ms. Weaver began preparing for the upcoming school volleyball season — as she did in the past — by organizing two summer volleyball camps for prospective team players. As usual, these camps were to be held at Spanish Fork High School in June and July of 1997. Ms. Weaver telephoned prospective volleyball team members to inform them of the camp schedules. One of the calls went to a senior team member. During the conversation, the team member asked Ms. Weaver. "Are you gay"?¹ Ms. Weaver truthfully responded, "Yes." The team member then told Ms. Weaver that she would not play on the volleyball team in the fall. On July 14, 1997, the team member and her parents met with defendants Almon Mosher, Director of Human Resources for the Nebo School District, and Larry Kimball, Director of Secondary Education for the Nebo School District, and told them that Ms. Weaver told them that she is gay and that the team member decided she would not play volleyball.

In April of 1997, Gary Weaver, Ms. Weaver's ex-husband and a school psychologist for the Nebo School District, spoke with Principal Wadley about Ms. Weaver's sexual orientation. In May of 1997, Nedra Call, the Curriculum Coordinator for the School District, received two calls concerning Ms. Weaver's "lifestyle and her actions." She related the substance of these calls to defendant Mosher. Defendant Dennis Poulsen, Superintendent of the Nebo School District, also received calls about Ms. Weaver. In addition, several adults affiliated or formerly affiliated with the school contacted Principal Wadley with comments or questions about Ms. Weaver's sexual orientation. Principal Wadley held a meeting with his two assistant principals to discuss Ms. Weaver's sexual orientation. On May 22, 1997, before the phone conversation with Ms. Weaver, the team member and her mother telephoned Principal Wadley to let him know that the team member would not be playing volleyball because she was uncomfortable playing on the team knowing that Ms. Weaver is gay. On May 22nd, Principal Wadley discussed Ms. Weaver's sexual orientation with defendant Larry Kimball. Even the School Advisory Council wanted to discuss Ms. Weaver's sexual orientation.

In response to these reports, and after meeting again with the team member's family on July 14, 1997, defendants Mosher and Kimball discussed taking some action against Ms. Weaver because they felt Ms. Weaver's comments about her sexual orientation were in "violation of district policy." Several days later, on July 21, 1997, Ms. Weaver met with Principal Wadley, who informed her that she would not be assigned to coach volleyball for the 1997-98 school year. This discussion was memorialized in a letter to Ms. Weaver dated the same day but sent subsequently.

The following day, Ms. Weaver was called to a meeting at the School District office and presented a letter, printed on the School District letterhead, which reads in part:

The District has received reports that you have made public and expressed to students your homosexual orientation and lifestyle. If these reports are true, we are concerned about the potential disruption in the school community and advise you of the following:

— You are not to make any comments, announcements or statements to students, staff members, or parents of students regarding your homosexual orientation or lifestyle.

— If students, staff members, or parents of students ask about your sexual orientation or anything concerning the subject, you shall tell them that the subject is private and personal and inappropriate to discuss with them.

This memo is to place you on notice of the expectations the school district has for you concerning this matter. A violation of these requirements may jeopardize your job and be cause for termination.

The letter was drafted by defendant Mosher, signed by him and Larry Kimball, was reviewed by defendant Dennis Poulsen, delivered to Ms. Weaver, and placed in her personnel file.

On August 8, 1997, a similar letter was issued to Gary Weaver. It reads in part:

The District has received reports that you have made remarks within the school setting about your ex-wife's sexual orientation. If these reports are true we ... advise you of the following:

• You are not to make comments, announcements or statements to students, staff members, or parents regarding your ex-wife's sexual orientation.

• If students, staff members or parents of students ask about your ex-wife's sexual orientation, you shall tell them the subject is private and personal and inappropriate to discuss with them.

This memo is to place you on notice of the expectations the school district has for you concerning this matter. A violation of these requirements may jeopardize your job and be cause for termination.

This letter was delivered to Mr. Weaver and placed in his personnel file.

On October 20, 1997, Ms. Weaver commenced an action in this court under 42 U.S.C. § 1983 challenging the restraints on her speech contained in the July 22 letter as well as her removal as volleyball coach. Nine days after the action was filed, the School District delivered another letter to Ms. Weaver, to "clarify" the July 22 letter. In part, the October 29, 1997 letter reads:

The District's intent with the July 22 letter was that the foregoing restrictions [contained in the July 22 letter] on your communications apply only while you are acting within the course and scope of your duties as a teacher for the District. Our main areas of concern are situations such as classroom teaching, extracurricular school-sponsored activities and parent-teacher conferences where, we believe, discussion of one's sexual orientation would be inappropriate. We believed that this intent was apparent in the July 22 letter from the fact that it was written on District stationary and addressed the issue of "disruption in the school community."

As further clarification of the July 22 letter, we strongly encourage you to avoid discussions of the foregoing matters at any time with students because we believe that in virtually any interaction you have with a student, including off-campus contacts, you are always perceived by the student as a teacher, authority figure and role model.

The letter, printed on the School District's letterhead, was signed by defendants Mosher and Kimball, and like the July 22 letter, placed in Ms. Weaver's...