Webber v. First Student, Inc.

• Decision Date: 26 February 2013
• Docket Number: Case No. 1:11–cv–3032–CL.
• Citation: 928 F.Supp.2d 1244
• Parties: Kenneth WEBBER, Plaintiff v. FIRST STUDENT, INC., et al., Defendants.
• Court: U.S. District Court — District of Oregon

928 F.Supp.2d 1244

Kenneth WEBBER, Plaintiff

v.FIRST STUDENT, INC., et al., Defendants.

Case No. 1:11–cv–3032–CL.

United States District Court,

D. Oregon.

Medford Division.

Feb. 26, 2013.

C. Thomas Boardman, Thomas Boardman, Attorney at Law, Portland, OR, for Plaintiff.

Caroline R. Guest, Jennifer A. Nelson, Littler Mendelson, PC, Portland, OR, for Defendants.

ORDER

PANNER, District Judge:

Kenneth Webber was terminated by his employer, First Student, Inc., for insubordination after he refused to remove a 3–by–5 foot Confederate flag from his pickup truck while the truck was parked on property of the Jackson County School District. Webber claims First Student's termination violated his First Amendment rights. He brings this civil rights action against First Student; Jonel Todd, his supervisor at First Student; the Jackson County School District (also known as the Phoenix–Talent School District); and Ben Bergreen, the School District superintendent.

Defendants move for summary judgment. Magistrate Judge Mark D. Clarke has filed a Report and Recommendation (R & R) recommending defendants' motions be denied.

Defendants object to the R & R, so I have reviewed this matter de novo.28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.1981). Because First Student was not acting under color of state law when it terminated Webber, I grant defendants' motions for summary judgment.

DISCUSSION

I. Factual Background

First Student, a private employer doing business in about forty states, has a contract with the Jackson County School District to transport students. First Student operates on property it leases from the School District.

Webber worked as a school bus driver for First Student. Starting in 2009, he kept a 3–by–5 foot Confederate flag, emblazoned with the word “Redneck,” hanging from an antenna on his pickup truck. Webber parked his truck in First Student's employee parking lot, which is owned by the School District.

There were no complaints about the flag until February 22, 2011, when Bergreen, the School District superintendent, noticed the flag while walking by Webber's truck. Bergreen asked Todd, Webber's supervisor, to remove the flag from District property.

Bergreen states, “I knew the students would see the flag as they traveled to the Future Farmers of America facility behind the bus barn.[ ¹] The presence of the flag in a location where students could see it would erode the progress the District has made to ease the racial tension within the District and be a detriment to education within the District.” Bergreen Decl. ¶ 20.

Bergreen told Todd that the Confederate flag violated School District policy because students had used the flag as a symbol of white supremacy. As the R & R notes, it is undisputed that the School District has experienced racist incidents, both before and after Webber's termination. R & R at 1264–65. Several of these incidents have been associated with the Confederate flag, including the flag's use by students identifying with a white supremacist gang called the Crazy White Boys. R & R at 1265.

Todd states, “Bergreen asked me to ask the driver of the truck to take the flag down while parked on District property.... I agreed to ask the driver of the truck to take down the flag. That driver was plaintiff.” Todd Decl. ¶ 9.

The next day, Todd told Webber that the School District wanted the flag removed from its property. According to Webber, Todd explained, “Well, [Bergreen] doesn't want people to think that, like, racist people work here or that it has to do with racists.” Guest Decl., Ex. 1, at 6. Webber replied, “My flag has nothing to do with racism. .... So I am not going to take it down because one person has a different thought about it.” Id.

On March 1, 2011, Webber asked Todd to see First Student's policy prohibiting the display of the Confederate flag. Todd sent Bergreen an email:

Good afternoon, Do you have a policy in writing that you can send me on the “flag issue” HR tells me if there is a written policy we can get this put to rest. I am tired of arguing with this driver. Thank you!

Boardman Decl., Ex. 5. Bergreen responded to Todd the next day:

Jonel: Board policy ... harassment addresses objects that are offensive and demeaning to protected individuals and groups. The Confederate flag is a symbol of many racists [sic] hate groups. The fact that a member of your organization called immediately to complain about my request not to display the flag on school property is disturbing as is the fact I was identified as the person making the request to remove the flag. I would have expected a more professional, proactive and sensitive response from you on the issue.

Id.

Todd responded to Bergreen's email:

Ben, I sincerely apologize. I did not tell the driver that it was you who asked. I did tell him it was a request from the School District because of a policy and the bus barn is on School District property, and as our client he was to comply. He was one of the drivers that was in the drivers room when you came over. I did wait until the next day to talk to him, and I heard that it had been reported to a TV station. I called him and asked him what was going on. And he told me it was another driver who had called, not him. I do not believe him. I am truly sorry that I did not handle that in a more professional manner.

Id., Ex. 12 at 8.

Todd met again with Webber. Todd told Webber that he would be suspended if he refused to take down the flag. Webber rejected options offered by Todd, such as taking the flag down while the truck was on School District property, parking the truck on a co-worker's property nearby, or rolling up or covering the flag. Webber understood the restriction on displaying the flag applied only when the flag was on School District property.

Todd suspended Webber for one day for refusing to comply with her order. The suspension was reported in the news media.

Van Criddle, First Student's regional operations manager, emailed Bergreen on March 2, 2011:

I hope that Jonel [Todd] has contacted you regarding the course of action we are taking with regard to the flag person. Our HR department has directed us to have him park the truck out of site [sic] until they could discuss the matter. This morning he was given a direct instruction to remove the flag. He refused to do so. He has been suspended with intent to terminate. He has threatened to contact the media. We have contacted our media department and asked them to make contact with the local media and inform them that we asked him to remove the flag while on our property and he refused so we terminated his employment. We intend to take full responsibility for his termination and not mention the district or district policy at all. I apologize for any issues this has caused the District or you and Doug personally.

Bergreen Decl., Ex. 6B, at 1. The contract between First Student and the School District provides that the School District has no authority over First Student's employment practices, and no power to discharge or discipline First Student's employees. Todd Decl., Ex. 1, at ¶ 21. The contract also provides, “Contractor further agrees that District or its Superintendent shall have the right to require that any specific employee of the Contractor not furnish service to District under this Agreement.” Id.

On March 3, 2011, Webber met with Todd and Rowdy Bates, a manager for First Student based in Grants Pass. Bates and Todd suggested that Webber take one of the options Todd had previously offered, such as rolling up the flag while on School District property. Webber testified that he “knew Jonel [Todd] did try to find the solution to it, but all the solutions came up with either taking down or hiding it [or parking off site].” Guest Decl., Ex. 1, at 38. Todd told Webber he would be suspended for three days, and warned that he would be terminated if he continued to disobey her orders.

On March 4, 2011, Bergreen responded to Todd's email:

Jonel, in a perfect world when you asked Mr. Webber to take down the flag he would have said yes, and that would have been the end of it. Of course, that is what I was thinking would happen. One thing I will do as much as possible in the future is communicate with you in person, person-to-person, or at least by phone during difficult situations. E-mail especially during times of stress does not work well for me. So I apologize for being abrupt. I didn't realize my request could generate such a huge controversy. I genuinely appreciate the work you do for the District and the great job you do in keeping the transportation system running smoothly. Sorry for the delay in getting back to you and for not being more sensitive to your situation. It has been a challenging week on many fronts.

Smith Decl., Ex. 12 at 10.

Bergreen emailed Criddle, First Student's regional manager:

Reactions to the flag issue appear to be on the decrease. The next time we get together, it may be worth it to take some time to analyze how to best deal with difficult issues between our two organizations. I am always looking to profit from going through difficult situations and the lessons to be learned for next time—if any. I appreciate your support and speedy response to my concerns. Sorry for the delay in getting back to you—I had several other challenging issues this week as well. Thanks.

Bergreen Decl., Ex. 6B, at 1.

Criddle replied to Bergreen:

I would appreciate the opportunity of how to deal with difficult circumstances in the future. I will have let you know when I will be down there next so we can see if we can find a mutually agreeable time to get together.

Hope this week is better than last for both of us. Bergreen Decl., Ex. 6B, at 1.

Webber testified that on March 8, 2011, Todd told him, “Well, I got to ask you again. Are you going to take the flag down?” Guest Decl., Ex. 1, at 43. Webber said, “Nope.” Webber understood the options...