Oregon federal magistrate recommends that First Amendment free speech claim based on bus driver’s termination for Confederate flag display should proceed to trial
Webber v. First Student, Inc., No. 11-3032 (Aug. 2, 2012)
Abstract: In his report to an Oregon federal district court, U.S. Magistrate Judge Mark D. Clarke has recommended that the district court should deny the motions for summary judgment filed by a school district and private contractor, and that a school bus driver should be allowed to proceed to trial with his Section 1983 First Amendment claim regarding his suspension and termination for refusing to remove a Confederate flag from display on his vehicle while parked at work. The magistrate stated there was a sufficient factual dispute that: (1) the bus driver’s employer, a private contractor, acted under color of state law under either the “compulsion” or “joint action” test; and (2) the bus driver’s free speech rights were violated under the five-part test established in Pickering v. Board of Education, 391 U.S. 563 (1968), when he was disciplined and later discharged.
The magistrate also concluded that the school district’s superintendent would not be able to raise qualified immunity as an affirmative defense to the Section 1983 claim if the bus driver proved his claim at trial, because the bus driver’s right to display the flag was clearly established at the time the superintendent demanded its removal.
Lastly, the magistrate recommended that the bus driver’s claim under the state’s tort claims act should be dismissed without prejudice, because it did not waive Oregon’s Eleventh Amendment sovereign immunity from suit, thus depriving the federal court of jurisdiction over the claim. This summary will not address the state law claim, and will focus only on the federal claim as it applies to the school district and private contractor.
Facts/Issues: Ken Webber was employed as a school bus driver for First Student, Inc. First Student is under contract with Jackson County School District 4 (JCSD) to provide transportation for students to and from JCSD schools. Each day while working, First Student employees park their personal vehicles in a designated employee lot at a particular facility owned by JCSD and leased by First Student. From July 2009 until February 2011, Webber had a Confederate flag affixed to an antenna in the bed of his truck, which he parked on the employee lot without incident.
On February 22, 2011, JCSD Superintendent Ben Bergreen visited the transportation facility, and saw the flag on Webber’s truck. Bergreen told Webber’s supervisor, Jonel Todd, to have Webber take the flag down when parked on the lot, stating that it concerned him because of a number of race-related student disputes at JCSD schools in the recent past. Bergreen also told Todd that the flag violated JCSD’s anti-harassment policy.
The next day, Todd told Webber of Bergreen’s objection to the flag and wanted Webber to remove it from his truck. Webber refused. On March 1, 2011, Webber asked Todd to see the policy that prohibited the display of the flag. Todd requested the policy from Bergreen, who identified JCSD school board policy GDMA, harassment, as the applicable policy. Todd then met with Webber a second time about the flag issue. Webber again asked to see a copy of the policy, but Todd told Webber he could not see it. When Webber refused again to take the flag down, Todd suspended him for one day.
On March 3, 2011, Todd and another First Student facility manager met with Webber, again asking him to take down the flag, roll it up or conceal it some way while at work, or park away from the lot. When Webber refused again, Todd suspended him for another three days. On March 8, 2011, Todd met once more with Webber asking whether he was willing to take down his flag. When Webber answered in the negative, Todd fired him.
In 2011, Webber filed suit against First Student and JCSD claiming violations of his rights under multiple clauses of the U.S. Constitution and the Oregon Constitution, and the state’s tort claims act. In July 2011, the federal magistrate had ruled on issues raised in motions to dismiss by the defendants, which are not at issue in this current stage of the litigation in 2012. The issues for consideration by the federal magistrate here are JCSD’s and First Student’s motions for summary judgment of Webber’s claims under 42 U.S.C. § 1983 (Section 1983) for violation of his First Amendment rights, and a claim under the Oregon Tort Claims Act, both related to his termination for refusing to remove his flag.
Ruling/Rationale: The magistrate issued a report in which he recommended that the district court should deny JCSD’s and First Student’s motions for summary judgment, and Webber should be allowed to proceed to trial on his First Amendment free speech claim under Section 1983.
42 U.S.C. § 1983 First Amendment Claim
To state a claim for violation of his First Amendment rights under Section 1983, the magistrate identified that Webber must show that JCSD’s and First Student’s actions were taken under color of state law, and allege a violation of his constitutional rights.
Color of State Law. The magistrate began with “the presumption that conduct by private actors is not taken under color of state law,” noting that Webber bears the burden establishing First Student was a state actor. To determine whether First Student’s actions amount to state action, the magistrate employed the four separate tests articulated by the Supreme Court in Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 921 (9th Cir. 2011), cert. denied, 132 S. Ct. 1000 (2012). The magistrate stated that Webber need only satisfy one of these tests to show that First Student acted under color of state law.
The magistrate found that Webber could not satisfy the “public function” test because “First Student’s provision of student transportation services is not a function that is traditionally and exclusively the prerogative of the state, and therefore, as a matter of law, affords no basis for finding that First Student acted under color of state law.” It also found that Webber could not succeed under the “governmental nexus” test because “as a matter of law, the evidence presented is insufficient to support the conclusion that [JCSD] had the ability to control First Student’s decision making process” “regarding the hiring, firing, or discipline of First Student employees.”
However, the magistrate found that under both the “compulsion” test and the “joint action” test, there was a sufficient dispute as to the materials facts making it inappropriate for determination on summary judgment as to whether Webber had satisfied these two tests, or to resolve the ultimate legal issue of whether First Student acted under color of state law when it terminated Webber.
Under the “compulsion” test, Webber “must demonstrate a sufficient link between [First Student's] challenged action and the state law or policy scheme alleged to be the driving force behind [First Student's] actions.” Because the parties disagreed about the significance of the facts presented, “the decision of law to be made by the court necessarily requires that a factfinder make credibility determinations and weigh the evidence and the inferences that may legitimately be drawn from them.”
Under the “joint action” test, the magistrate stated that Webber “may establish joint action by proving the existence of a conspiracy or by showing that [First Student] willfully participated in joint action with the state or its agents.” The magistrate noted that Webber did not argue that First Student conspired with JCSD, and no conspiracy was readily discernible from the evidence presented. “Absent a common goal and overt actions in furtherance of that goal by [JCSD and First Student], there can be no conspiracy” between them, however “[w]hether Webber can show joint action through willful participation is a closer call,” stated the magistrate.
Webber argued that First Student’s contract with JCSD essentially converted First Student into an extension of JCSD itself by conditioning the contractual relationship on First Student’s compliance with and enforcement of JCSD’s policies, including the District’s harassment policy which First Student proceeded to enforce against Webber as if it were its own. Because the magistrate found “the question of whether and to what extent First Student acted at [JCSD]‘s behest when taking action against Webber is a heavily contested factual issue,” the determination as to “whether [JCSD] willfully participated in First Student’s actions against Webber – which, if answered in the affirmative, would make [JCSD] and First Student joint actors – was not suitable for determination on summary judgment.”
First Amendment free speech claim. To determine whether Webber had stated a valid free speech claim based on his being suspended and later terminated for displaying a Confederate flag, the magistrate applied the sequential five-part test from Pickering, noting that a plaintiff’s failure to satisfy one of the steps ends the analysis.
First, the magistrate concluded that there was a genuine question as to whether Webber intended his flag to convey a message on a matter of public concern, because it found that “a reasonable factfinder could just as well conclude that [Webber]‘s flag is meant to convey a message of pride and association with the cultural history of the south.” As a result, the magistrate stated it was not appropriate for determination on summary judgment.
Second, in examining whether Webber spoke as a public employee or private citizen, the magistrate stated that “Webber’s job responsibilities were limited to driving a school bus. Webber did not display the flag in the performance of his duties as a bus driver; he left it attached to his personal vehicle, which remained parked in the employee parking lot during the work day.” Therefore, the magistrate concluded that “Webber’s speech may only be attributed to him as a private individual.”
Third, Webber alleged, and First Student conceded, that he was suspended and ultimately terminated for refusing to take down his flag. Thus, the magistrate found it was undisputed that Webber’s speech, i.e., display of his flag, was a substantial or motivating factor in his termination.
Fourth, in reviewing whether the state had adequate justification for treating Webber differently from members of the general public, the magistrate stated that “the government must establish that its ‘legitimate administrative interests outweigh the employee’s First Amendment rights.’” It identified that “[s]uch interests can include ‘promoting efficiency and integrity in the discharge of official duties and maintaining proper discipline in the public service.’” The magistrate noted that there was no evidence that any JCSD students saw Webber’s flag, or if any, reacted negatively to it, or that any of First Student’s employees reacted in any way. Based on the record, he found that was no evidence to support the conclusion that Webber’s flag threatened either First Student’s or JCSD’s operations.
The magistrate rejected JCSD’s argument that the adequate justification element should be evaluated under the standard articulated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), because, as the Ninth Circuit has recently reaffirmed in Johnson v. Poway Unified School District, 658 F.3d 954 (9th Cir. 2011), the Tinker standard only applies to the in-school speech of students. Here, Webber is not a student, and the speech at issue (display of the flag) did not occur in school, but in the parking lot of a facility more than a mile away from the nearest school.
The magistrate also rejected First Student’s suggestion that the court should apply a forum-based analysis to Webber’s speech in the adequate justification element. He found that argument to be without merit, because such an analysis is appropriately applied only when the state acts solely in its role as sovereign. The magistrate found that under Pickering, First Student and JCSD “have failed to show that Webber’s speech actually disrupted or could reasonably be predicted to disrupt the workplace or otherwise interfere with the efficiency and integrity of their respective duties. Therefore, as a matter of law, neither [JCSD] nor [First Student] have established that their legitimate administrative interests outweigh Webber’s First Amendment rights.”
Lastly, the magistrate found there was a sufficient factual dispute regarding whether First Student would have taken the adverse employment action, i.e., suspending and later firing Webber, even absent the protected speech, i.e., displaying his Confederate flag and his refusal to remove it. As a result, the magistrate determined that this issue was not appropriately resolved on summary judgment.
Ultimately, the magistrate concluded that Webber has borne his burden of proof in the Pickering analysis, and recommended to the district court that JCSD’s and First Student’s motions for summary judgment should be denied as to Webber’s Section 1983 First Amendment claim.
Availability of Qualified Immunity Defense
In response to Webber’s Section 1983 claim, JCSD Superintendent Bergreen raised a defense of qualified immunity. “Qualified immunity shields … state officials from money damages unless [Webber] pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct,” stated the magistrate. In this case, the magistrate found that the law governing Webber’s First Amendment rights was clearly established, pronouncing that the “display of a flag is an act of symbolic expression protected under the First Amendment.” He concluded that, as a matter of law, Bergreen “could not have believed that he could lawfully demand that Webber’s flag be removed because a reasonable official in his position would have known that he could not lawfully enforce the District’s anti-harassment policy against Webber either directly or indirectly through First Student.”
The magistrate again rejected JCSD’s argument that Bergreen could have believed his actions were proper under the highly discretionary Tinker standard. He stated that a reasonable official in Bergreen’s position would have known that Tinker “is inapplicable here because Webber is an employee, not a student, and, as the District itself has pointed out, Webber’s flag is expressive activity, not ‘pure speech.’”
The magistrate concluded that “should Webber prove at trial that First Student violated his constitutional rights while acting under color of state law, Bergreen will not be entitled to qualified immunity because Webber’s free speech right was clearly established and Bergreen could not reasonably have believed that his actions were lawful.” The magistrate also noted that should Webber fail to establish a constitutional violation, Bergreen will be entitled to qualified immunity.
Webber v. First Student, Inc., No. 11-3032 (Aug. 2, 2012)
[Editor's Note: In July 2011, Legal Clips summarized the magistrate's ruling in Webber v. First Student on JCSD's and First Student's motions to dismiss, finding that Webber had failed to state a valid retaliation claim under the U.S. Constitution’s Equal Protection Clause based on his discharge for refusing to remove to the Confederate flag on display on his personal vehicle while parked in First Student's lot. The magistrate recommended that the district court dismiss that federal claim with prejudice, along with Webber's claim based on the state constitution’s equal protection clause. The magistrate also ruled that Webber's retaliation claim based on the state constitution’s free speech provision be dismissed without prejudice and with leave to amend the complaint.]