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Kozak v. Independent School District No. 1 of Tulsa County, Oklahoma

United States District Court, N.D. Oklahoma

February 15, 2018

HERB KOZAK Plaintiff,
v.
INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA COUNTY, OKLAHOMA, Defendant.

          OPINION AND ORDER

          James H. Payne, United States District Judge

         Before the Court are (1) a Motion for Summary Judgment filed by Defendant Independent School District No. 1 of Tulsa County, Oklahoma (“School District”) (Dkt. 39) and (2) a Motion for Summary Judgment filed by Plaintiff Herb Kozak (“Plaintiff”) (Dkt. 41). After consideration of the briefs, and for the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED and Plaintiff's Motion for Summary Judgment is DENIED.

         BACKGROUND

         The following facts are undisputed. Plaintiff was hired by the School District as a special education teacher, and he was placed on a temporary teacher contract for the 2015-2016 school year. (Dkt. 39, at 2 (School District's Undisputed Material Fact No. 1)). At a new teacher roundtable event on August 12, 2015, Plaintiff made an inappropriate joke in front of a school administrator, namely, that he had just been taken off the “registered sex offender list.” (Dkt. 39, at 2 (School District's Undisputed Material Fact No. 3); Dkt. 39-1, at 44 (Recommendation for Dismissal of Herb Kozak)). Later that day, Plaintiff acknowledged in an email that his comment, although intended as a joke, was “not remotely funny.” (Dkt. 39-2, at 35 (Email from Herb Kozak to Barbara Penrose)). On August 18, 2015, Plaintiff was assigned as a special education teacher at Webster High School. (Dkt. 39, at 3 (School District's Undisputed Material Fact No. 4)). On August 18 or 19, 2015, Webster Principal Shelly Holman overheard Plaintiff speaking harshly and loudly to the office secretaries.[1] (Dkt. 39-4 (Declaration of Shelly Holman)). Ms. Holman went out of her office to ask Plaintiff if there was a problem, and Plaintiff angrily complained about his placement at Webster. (Id.). Ms. Holman advised Plaintiff it was unacceptable for him to speak to the school secretaries in a disrespectful manner, and Plaintiff responded by stating words to the effect of, “It appears I am not wanted here, ” and leaving the school office. (Id.).

         On August 27, 2015, a lightning alert was broadcast over Webster's intercom system, which required teachers to have students make class changes by going through the building instead of walking outside. (Dkt. 39, at 3 (School District's Undisputed Material Fact No. 6)). Webster Dean of Students Walter Smith then spoke with several students, who stated they had just come from Plaintiff's classroom and Plaintiff had allowed them to walk outside. (Id.). Mr. Smith went to see Plaintiff about the lightning alert announcement, and Mr. Smith could not follow Plaintiff's explanation for not complying with the announcement. (Id.). Mr. Smith explained the school's lightning alert policy to Plaintiff, at which point Plaintiff became angry and walked away. (Id.; Dkt. 39-1, at 44 (Recommendation for Dismissal of Herb Kozak)).[2]

         On August 28, 2015, Webster Assistant Principal Ryan Buell performed a walkthrough observation of Plaintiff's class. (Dkt. 39, at 4 (School District's Undisputed Material Fact No. 7)). Following the observation, Mr. Buell sent Plaintiff a “pushpin email, ” an informal evaluation tool used to notify Plaintiff of areas that needed improvement. (Id.). That afternoon, Plaintiff responded to the email by stating, “Thank-you for the feedback. You have made my weekend.” (Id.; Dkt. 39-2, at 39 (Email from Herb Kozak to Ryan Buell); Dkt. 39-5 (Declaration of Ryan Buell)).

         A short time later, Plaintiff approached Mr. Buell outside Mr. Buell's office, where Mr. Buell was making copies. (Dkt. 39, at 4-5 (School District's Undisputed Material Fact No. 8)). Plaintiff spoke loudly to Mr. Buell, and Mr. Buell asked Plaintiff to speak to him inside his office. (Id.). Inside Mr. Buell's office, the two briefly discussed the areas of Mr. Buell's concern, and Plaintiff became upset over the evaluation. (Id.). At some point, Plaintiff took out his classroom keys and offered them to Mr. Buell, saying words to the effect of, “Do you just want to fire me?” (Id.). Mr. Buell further attempted to discuss the evaluation, and Plaintiff indicated he was not interested in evaluations. (Id.). Plaintiff continued to argue with Mr. Buell, and Plaintiff finally stated words to the effect of, “Oh, I see, I'm a black man, I'm just a boy.” (Id.; Dkt. 39-5 (Declaration of Ryan Buell)). Plaintiff then left Mr. Buell's office area and went to his classroom.[3]

         Mr. Buell immediately called Ms. Holman, who was off-site, and recounted Plaintiff's hostile and insubordinate behavior toward him. (Dkt. 39, at 5 (School District's Undisputed Material Fact No. 9)). Ms. Holman then contacted her supervisor at Human Capital for guidance on how to address Plaintiff's conduct. (Dkt. 39, at 5 (School District's Undisputed Material Fact No. 10)). After consulting with Human Capital, Ms. Holman arranged for campus security to escort Plaintiff from his classroom to her office so that she could speak with Plaintiff by telephone from her office. (Dkt. 39, at 5 (School District's Undisputed Material Fact No. 11)). During the conference call, Ms. Holman told him she would not tolerate his behavior toward Mr. Buell, and she asked him to gather his personal belongings and leave the school. (Dkt. 39, at 6 (School District's Undisputed Material Fact No. 12)). Ms. Holman directed Plaintiff to report on Monday, August 31, 2015, for a meeting with administrators and supervisors. (Id.). After the call, three campus officers escorted Plaintiff back to his classroom to retrieve his personal belongings and then to his car. (Dkt. 39, at 6 (School District's Undisputed Material Fact No. 13)).

         On Monday, August 31, 2015, Plaintiff called in sick and did not report for the meeting with Ms. Holman or other administrators regarding his conduct. (Dkt. 39, at 6 (School District's Undisputed Material Fact No. 14)). Later that day, an unknown person called in a bomb threat to Webster High, and a school employee identified Plaintiff as the possible caller. (See Dkt. 40, at 12; Dkt. 45, at 4). On September 2, 2015, Plaintiff's employment with the School District was suspended with pay. (Dkt. 39, at 8 (School District's Undisputed Material Fact No. 21)). On September 8, 2015, Superintendent of Schools, Dr. Deborah A. Gist, recommended Plaintiff's dismissal to the School District's Board of Education. (Dkt. 39, at 8 (School District's Undisputed Material Fact No. 22)). In the recommendation, Dr. Gist stated the grounds for cause for Plaintiff's dismissal were:

(1) using poor judgment; (2) insubordination; (3) repeated violation of District policy and procedures by acting in a manner that was unprofessional, uncivil, and aggressive toward an administrator and staff; (4) engaging in unacceptable/disruptive behavior interfering or reasonably calculated to interfere with the peaceful conduct of the District; (5) failing to follow safety procedures regarding students; (6) engaging in conduct which adversely affects the Superintendent's trust in Mr. Kozak to act appropriately with District staff, students and parents; and (7) best interest of the District.

(Dkt. 39-1, at 42 (Recommendation for Dismissal of Herb Kozak)). The recommendation also cited several School Board and School District policies which Plaintiff had violated and set forth the underlying facts that formed the basis for dismissal. (Id. at 42-46). Those facts included (1) the inappropriate statement made at the new teacher roundtable on August 12, 2015; (2) the inappropriate conduct toward Webster office staff on August 19, 2015; (3) the failure to comply with the lightning alert protocols on August 27, 2015; and (4) unprofessional conduct after receiving a pushpin on August 28, 2015. (Id. at 44-46). The bomb threat was not mentioned in the recommendation.

         On September 22, 2015, the School District notified Plaintiff of the recommendation for his dismissal and notified him the Board of Education would hold a hearing on October 14, 2015, to consider the recommendation. (Dkt. 39, at 9 (School District's Undisputed Material Fact No. 23)). The School District notified Plaintiff of his right to appear at the hearing, to be represented by counsel, to question the administration's witnesses, and to present his own witnesses, evidence, or statement. (Id.).

         Plaintiff appeared at the hearing held on October 14, 2015, but he was not represented by counsel. (Dkt. 39, at 9 (School District's Undisputed Material Fact No. 24)). Immediately prior to the hearing, Plaintiff was informed that he had been cleared with regard to any involvement in the Webster bomb threat. (See Plaintiff Deposition, 58:12-22). At the hearing, Plaintiff did not object to the evidence the School District submitted. (Id.). Plaintiff testified on his own behalf and did not present any evidence. (Id. at 9-10). After hearing the evidence, the Board of Education deliberated and voted to adopt the findings of fact and conclusion submitted by Superintendent Gist, thereby terminating Plaintiff's employment with the School District. (Dkt. 39, at 10 (School District's Undisputed Material Fact No. 25)).

         Plaintiff filed a Charge of Discrimination with the EEOC on November 10, 2015, in which he alleged discrimination based on color against the School District, occurring between August 28, 2015, and October 14, 2015. (Dkt. 39-6 (EEOC Charge of Discrimination)). On March 17, 2016, the EEOC issued a Dismissal and Notice of Rights letter, in which it did not find a violation of the statutes and notified Plaintiff of his right to sue. (Dkt. 39-7 (Dismissal and Notice of Rights)). Plaintiff filed suit against the School District on June 15, 2016, based on alleged wrongful termination that occurred on or about August 28, 2015. (Dkt. 1). The EEOC Complaint alleges Plaintiff is a “[m]ixed race (White-Black)” man. (Id.). Plaintiff further alleges that the School District and its employees “created a hostile workplace for me and conspired to wrongfully terminate me because of my mixed race ethnicity.” (Id.). Plaintiff raises a single claim of discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2.[4]

         Mr. Buell and Ms. Holman have both submitted declarations stating that, prior to August 28, 2015, neither had seen any documentation that Plaintiff was mixed race (White and Black/African-American) and had never been told by Plaintiff or anyone else that Plaintiff was mixed race. (Dkt. 39-5 (Declaration of Buell), ¶ 7; Dkt. 39-4 (Declaration of Holman), ¶ 10). Further, both Mr. Buell and Ms. Holman state in their respective declarations that they could not determine Plaintiff was mixed race based upon his appearance alone. (Dkt. 39-5 (Declaration of Buell), ¶ 7; Dkt. 39-4 (Declaration of Holman), ¶ 10). Both Mr. Buell and Ms. Holman state that none of the actions they took toward Plaintiff on August 28, 2015, or before or after that date, had anything to do with his mixed-race status. (Dkt. 39-5 (Declaration of Buell), ¶ 7; Dkt. 39-4 (Declaration of Holman), ¶ 10). Rather, Ms. Holman states her actions were “based solely upon [Plaintiff's] actions and conduct toward the Webster secretarial staff and his threatening and insubordinate conduct toward Mr. Buell.” (Dkt. 39-4 (Declaration of Holman), ¶ 11). Likewise, Mr. Buell states his actions were “based solely upon [Plaintiff's] threatening and insubordinate conduct toward me in my office while I attempted to discuss with him my expectations for his classroom performance.” (Dkt. 39-5 (Declaration of Buell), ¶ 8). Plaintiff has presented no evidence that Mr. Buell knew Plaintiff was mixed race prior to his statement that he was a “black man” on August 28, 2015. Plaintiff also has presented no evidence that Mr. Buell, Ms. Holman, or anyone else at the School District made comments to Plaintiff regarding his mixed-race background.

         On October 16, 2017, the School District filed a Motion for Summary Judgment. (Dkt. 39). On November 16, 2017, Plaintiff filed an untimely Response combined with an untimely Motion for Summary Judgment. (Dkts. 40, 41).[5] On November 30, 2017, the School District filed a Reply brief to its Motion for Summary Judgment. (Dkt. 44). On December 7, 2017, the School District filed a Response in Opposition to Plaintiff's Motion for Summary Judgment. (Dkt. 45). On December 12, 2017, without leave of Court, Plaintiff filed a surreply brief in opposition to the School District's Motion for Summary Judgment. (Dkt. 46).[6]The pending motions are fully briefed and ripe for review.

         DISCUSSION

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. In making this determination, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.

         However, a party opposing a motion for summary judgment may not simply allege there are disputed issues of fact; rather, the party must support its assertions by citing to the record or by showing the moving party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c). See Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir. 1994) (“Even though all doubts must be resolved in [the nonmovant's] favor, allegations alone will not defeat summary judgment.”) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Moreover, “[i]n a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (citations omitted). Thus, the inquiry for this Court is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

         The Court further notes that, while pro se pleadings must be liberally construed and must be held to less stringent standards than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), a district court should not assume the role of advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Moreover, even pro se plaintiffs are required to comply with the “fundamental requirements of the Federal Rules of Civil and Appellate Procedure, ” and the liberal construction to be afforded does not transform “vague and conclusory arguments” into valid claims for relief. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). The court “will not supply ...


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