Terry v. Maricopa County Community College District

• Court: District Court, D. Arizona
• Decided: September 7, 2022
• Docket: 2:19-cv-05754
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 LeRodrick Terry, et al., No. CV-19-05754-PHX-DJH

10 Plaintiffs, ORDER

11 v.

12 Maricopa County Community College District, et al., 13 Defendants. 14 15 Pending before the Court are Defendant Maricopa County Community College 16 District’s (the “District”) Motion for Summary Judgment (Doc. 96) and Defendants Leslie 17 Cooper (“Ms. Cooper”) and John Doe Cooper’s Motion for Summary Judgment (Doc. 97). 18 Also pending is Plaintiffs LeRodrick Terry’s (“Dr. Terry”) and his wife’s Motion for 19 Partial Summary Judgment (Doc. 98).1 The motions are fully briefed. For the following 20 reasons the Court grants Defendants’ motions and denies Plaintiffs’ Motion. 21 I. Background2 22 In 2015, Dr. Terry was hired as Rio Salado College’s Vice President of Student 23 Affairs. (Docs. 96 at 4; 98 at 2). In 2017, upon receiving complaints against Dr. Terry 24 alleging sexual harassment, the District hired an outside investigator, who finished an 25 investigation report (the “Report”) in January 2018. (Docs. 96 at 5; 98 at 3). The Report

26 1 Dr. Terry requested oral argument. The Court finds that the issues have been fully briefed and oral argument will not aid the Court’s decision. Therefore, the Court will deny the 27 request for oral argument. See Fed. R. Civ. P. 78(b) (court may decide motions without oral hearings); LRCiv 7.2(f) (same). 28 2 Unless otherwise indicated, the facts in this background are undisputed. 1 found that many of the allegations of sexual harassment were “substantiated.” (Doc. 96-1 2 at 49–79). 3 a. The Agreement 4 On April 13, 2018, Dr. Terry and the District entered into a Separation Agreement 5 and Mutual General Release (the “Agreement”). (Docs. 96 at 6; 98 at 4). The Agreement 6 states that Dr. Terry denies “all forms of wrongdoing,” that he will resign June 30, 2018, 7 and that he “will not, in the future, apply for or accept employment with the District.” (Doc. 8 96-1 at 85, 87). In return, he will withdraw his internal appeal of the Report’s findings and 9 his charge with the Equal Employment Opportunity Commission. (Id. at 86). 10 The Agreement releases the District and all its “current and past officers, directors, 11 agents and employees” from legal liability, including “all legal liability for claims, costs 12 and expenses, damages, actions and causes of action of whatever kind or nature, whether 13 known or unknown, arising out of or related to Dr. Terry’s employment with the District.” 14 (Id.) The Agreement explicitly states that the release is intended “to be as broad as legally 15 permissible to cover . . . claims relating in any way to the termination of Dr. Terry’s 16 employment” as well as “claims relating in any way to the Internal Charge, the 17 investigation of the Internal Charge, or the Investigation Report . . . .” (Id.) The 18 Agreement does not, however, waive Dr. Terry’s “rights or claims that may arise out of 19 acts, omissions or matters occurring after execution of the Agreement. (Id. at 88). 20 At the end, the Agreement states that the parties entered into the Agreement “as a 21 matter of free will and has not been pressured or coerced in any way whatever into signing 22 this Agreement.” (Id.) It also states that “Dr. Terry understands that by executing this 23 Agreement, he is not waiving rights or claims that may arise out of acts, omissions or 24 matters occurring after execution of this Agreement.” (Id.) 25 b. Media Attention 26 In March 2018, various media outlets sent requests to the District for a copy of the 27 Report. (Doc. 96 at 5). At first, the District declined to submit a copy of the Report because 28 it was a pending and an “ongoing matter that is not concluded.” (Doc. 96-1 at 82). On 1 March 15, 2018, counsel for the District forwarded an email to Dr. Terry’s counsel noting 2 the media requests and providing a copy of the District’s responses, which include the 3 denial of the request for the Report. (Doc. 96-1 at 81). 4 On May 4, 2018, after the Agreement was finalized, the District released a copy of 5 the Report to the media, which in turn published several excerpts. (Docs. 96 at 6; 98 at 5). 6 On May 11, 2018, counsel for Dr. Terry sent a letter to Defendants stating that the 7 “District’s omission of its plans to release the [Report] to the media upon the execution of 8 the Separation Agreement and withdrawal of the EEOC charge was material and 9 misleading in inducing Dr. Terry to sign and give up his rights.” (Doc. 96-1 at 107). The 10 letter states the Dr. Terry would be “rescinding his letter or resignation” and requests that 11 the District find a position for him. (Id. at 109). On May 21, 2018, counsel for the District 12 responded in writing and noted that Dr. Terry had been alerted to the media requests and 13 that “the investigation into the allegations against Dr. Terry would not remain ‘pending’ 14 forever; at some point, the investigation and decision making would not be ‘ongoing,’ and 15 the District could not continue to decline production of the [Report] on the grounds of 16 potential interference with such ongoing investigation or decision making.” (Id. at 112). 17 The District’s letter also did not agree to change the Agreement by permitting Dr. Terry to 18 rescind his resignation. (Id. at 113). By prior Order, this Court found that, as a public 19 entity, Arizona’s Public Records Law required Defendants to disclose the Report. (Doc. 20 91). 21 Dr. Terry says this release surprised him and violated his “expectations of 22 confidentiality . . . .” (Doc. 98 at 5). Defendants argue that there was never a reasonable 23 expectation of confidentiality. (Doc. 96 at 8). They note that before Dr. Terry entered into 24 the Agreement, his counsel sought to include a provision whereby the District would agree 25 to keep the Agreement and the “underlying investigation” confidential. (Doc. 96-1 at 93). 26 Defendants represent that their counsel subsequently called Dr. Terry’s counsel and said 27 that Defendants “could not agree to any of the confidentiality requests because the District 28 is a public entity.” (Id. at 103). 1 c. Remaining Claims 2 The parties have stipulated to the dismissal of all the Second Amended Complaint’s 3 (“SAC”) claims except for Count V for a violation of 42 U.S.C. § 1983, Count VI for 4 defamation, and Count VIII for loss of consortium. (Doc. 95). The § 1983 claim alleges 5 that Defendants deprived Dr. Terry of constitutionally protected due process interests by 6 releasing the Report. (Doc. 17 at ¶ 249). The defamation claim alleges Defendants’ release 7 of the Report constitutes defamation. (Id. at ¶ 265). And the loss of consortium claim 8 alleges that Dr. Terry’s wife, Aisha Terry, has also been injured as result of Defendants’ 9 actions. (Id. at ¶ 280). The claims are brought against both the District and its former 10 general counsel, Ms. Cooper, who Dr. Terry argues was involved in the investigation and 11 who reviewed the May 21 letter that declined to find Dr. Terry a position with the District 12 after he resigned. (Doc. 98 at 6). 13 II. Summary Judgment Standard 14 A court will grant summary judgment if the movant shows there is no genuine 15 dispute of material fact and the movant is entitled to judgment as a matter of law. Fed. R. 16 Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A factual dispute is 17 genuine when a reasonable jury could return a verdict for the nonmoving party. Anderson 18 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Here, a court does not weigh evidence 19 to discern the truth of the matter; it only determines whether there is a genuine issue for 20 trial. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994). A fact is 21 material when identified as such by substantive law. Anderson, 477 U.S. at 248. Only 22 facts that might affect the outcome of a suit under the governing law can preclude an entry 23 of summary judgment. Id. 24 The moving party bears the initial burden of identifying portions of the record, 25 including pleadings, depositions, answers to interrogatories, admissions, and affidavits, 26 that show there is no genuine factual dispute. Celotex, 477 U.S. at 323. Once shown, the 27 burden shifts to the non-moving party, which must sufficiently establish the existence of a 28 genuine dispute as to any material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio 1 Corp., 475 U.S. 574, 585–86 (1986). The evidence of the non-movant is “to be believed, 2 and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. But 3 if the non-movant identifies “evidence [that] is merely colorable or is not significantly 4 probative, summary judgment may be granted.” Id. at 249–50 (citations omitted). 5 Both the District and Ms. Cooper have moved for summary judgment in their favor 6 on all of the claims. (Docs. 96; 97). Dr. Terry has only moved for summary judgment in 7 his favor for the § 1983 claim. (Doc. 98). The Court will proceed by addressing each of 8 the claims in turn. 9 III. Count V – 42 U.S.C. § 1983 10 Dr. Terry’s § 1983 claim alleges that Defendants violated the Fourteenth 11 Amendment when they refused to accept “Dr. Terry’s recission of the Separation 12 Agreement, the District” and deprived him of “a name clearing hearing . . . .” 13 (Doc. 98 at 12). Defendants argue that Dr. Terry waived his right to a “name clearing 14 hearing” and continued employment with the District through the Agreement. (Doc. 96 at 15 4). 16 Under the Fourteenth Amendment, states may not deprive individuals of their 17 liberty interests or due process of law. U.S. Const. amend. XIV § 1. Liberty, in this 18 context, has a “broad” meaning. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 19 572 (1972). An individual’s liberty interests include “the right of the individual to 20 contract” and “to engage in any of the common occupations of life . . . .” Meyer v. 21 Nebraska, 262 U.S. 390, 399 (1923). Because of this occupational interest, a liberty 22 interest is also at stake when, “in the course of dismissing an employee, the government 23 takes steps or makes charges that so severely stigmatize the employee that she cannot avail 24 herself of other employment opportunities . . . .” Hyland v. Wonder, 972 F.2d 1129, 1141 25 (9th Cir. 1992). In those instances, “[w]here a person’s good name, reputation, honor, or 26 integrity is at stake because of what the government is doing to him, notice and an 27 opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437 28 (1971). 1 To be sure, “the Court has never held that the mere defamation of an individual, 2 whether by branding him disloyal or otherwise, was sufficient to invoke the guarantees of 3 procedural due process absent an accompanying loss of government employment.” Paul 4 v. Davis, 424 U.S. 693, 706 (1976). Simply alleging that the government has stigmatized 5 an individual is an insufficient claim because the Fourteenth Amendment is not “a font of 6 tort law to be superimposed upon whatever systems may already be administered by the 7 States.” Id. at 701. Instead, under the so called “stigma plus” test, a plaintiff “must show 8 the public disclosure of a stigmatizing statement by the government, the accuracy of which 9 is contested, plus the denial of ‘some more tangible interest[ ] such as employment,’ or the 10 alteration of a right or status recognized by state law.” Ulrich v. City & Cnty. of San 11 Francisco, 308 F.3d 968, 982 (9th Cir. 2002) (quoting Paul, 424 U.S. at 701, 711). 12 Like all Constitutional rights, the right to notice and an opportunity to be heard may 13 be waived. Correa v. Nampa Sch. Dist. No. 131, 645 F.2d 814, 817 (9th Cir. 1981); see 14 also United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 2005) (stating that 15 fundamental constitutional rights in general may be waived). But a waiver cannot be made 16 in passing; it must be intentional, and courts “indulge every reasonable presumption against 17 waiver of fundamental constitutional rights and do not presume acquiescence in the loss of 18 fundamental rights.” United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 19 2005) (cleaned up). 20 Although the Agreement states Dr. Terry has waived certain rights, Dr. Terry 21 himself makes two arguments why he has not waived his due process rights. The first is 22 that the Agreement’s waiver of rights is invalid because he did not know that the Report 23 might be released to the media. (Doc. 103 at 3). The second is that he did not waive the 24 due process rights at issue because the claim arose after the Agreement. (Id. at 4). The 25 Court rejects both. 26 a. Waiver 27 The Agreement states that the parties are entering it “as a matter of free will,” and 28 it advises Dr. Terry “to consult with an attorney prior to executing” and gives him the 1 ability “to consider this Agreement for twenty-one (21) calendar days, and that he may 2 take, and has taken, as much of that time as he wants in order to consider this Agreement 3 before signing it.” (Doc. 96-1 at 88). Significantly, the Agreement’s confidentiality 4 provision applies to Dr. Terry, but not to any of Defendants. (Id. at 87). 5 No party disputes that Dr. Terry’s counsel asked the District whether it would be 6 possible to include a provision in the Agreement that would require the District to keep its 7 terms confidential and to keep “the underlying investigation” confidential. (Doc. 103 at 8 3). Dr. Terry himself states that he had asked his counsel to do so because he was 9 “concerned with the [Report] and how it painted” him in the event it became “a public 10 document.” (Doc. 96-1 at 27–28). And no party disputes the District’s assertion that it 11 told Dr. Terry’s counsel that the District “could not agree to any of the confidentiality 12 requests because the District is a public entity.” (Id. at 103). Finally, no party disputes 13 that the Agreement does not waive Dr. Terry’s “rights or claims that may arise out of acts, 14 omissions or matters occurring after execution of this Agreement.” (Id. at 88). 15 Despite this evidence, Dr. Terry argues he did not knowingly enter into the 16 Agreement, and he supports this argument by citing his own deposition testimony where 17 he states that he understood to Agreement would allow him to “move on” with his career 18 because the Report would not be made public. (Doc. 103-1 at 8). He also cites deposition 19 testimony from his counsel, who asked the District whether it would be possible to include 20 a provision in the Agreement that would require the District to keep its terms confidential 21 and to keep “the underlying investigation” confidential. (Doc. 103 at 3). Dr. Terry’s 22 counsel represents that when he requested to keep the “underlying investigation” 23 confidential, he did not intend to include the Report and so he was never told that the Report 24 could be publicized. (Doc. 103-1 at 39). 25 The evidence that Dr. Terry’s argument relies upon consists entirely of self-serving 26 and unsubstantiated depositions of Dr. Terry and his counsel. The Court need not find a 27 “‘genuine issue’ where the only evidence presented is ‘uncorroborated and self-serving’ 28 testimony.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) 1 (quoting Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.1996)). A plain reading 2 of the Agreement shows the District was not bound by a confidentiality requirement. 3 Likewise, no party disputes that the District told Dr. Terry’s counsel that it could not be 4 bound by “any” confidentiality agreement. (Doc. 96-1 at 103). The Court finds there is 5 no genuine dispute of fact as to whether Dr. Terry knew that the Agreement did not impose 6 a confidentiality requirement on the District. There is no genuine dispute that the 7 Agreement was knowingly and voluntarily entered and, therefore, a valid waiver. 8 b. Timing 9 Next, Dr. Terry argues he has not waived his right to a name clearing hearing 10 because the Report’s publication and the refusal to rehire him occurred after the Agreement 11 was entered, and the Agreement preserved any “rights or claims that may arise out of acts, 12 omissions or matters occurring after the execution of this Agreement.” (Doc. 96-1 at 88). 13 The Court rejects this argument and finds that the wavier applies to due process claims 14 resulting from the Report’s publication. 15 The Court concludes that the Report was published, at the latest, at the same time 16 the Agreement was made. In Cox v. Roskelley, the Ninth Circuit was presented with the 17 question of exactly when publication of stigmatizing information occurs in the context of 18 a termination due process claim. 359 F.3d 1105, 1110 (9th Cir. 2004). The court found 19 publication occurs when stigmatizing information is placed in an employee’s personnel file 20 because, at that point, the governing state law mandated “release upon request.” Id. at 21 1112. Stated differently, the government publishes stigmatizing information “when the 22 governing state law classifies” the information as subject to public release upon request. 23 Id. 24 Under Arizona’s Public Records Law (the “PRL”), “[p]ublic records and other 25 matters in the custody of any officer shall be open to inspection by any person at all times 26 . . . .” A.R.S. § 39-121. Under Cox, the Report became a public record, at the latest, the 27 moment the Agreement was made because, as the Agreement states, the Report “was 28 1 completed.” (Doc. 96-1 at 85).3 2 Dr. Terry argues that the Report was published on May 4, 2018, when the District 3 “classified the . . . Report as then becoming subject to the public record request.” (Doc. 107 4 at 4). But the rule established in Cox says that publication occurs “when governing state 5 law classifies” a document as a public record. 359 F.3d 1105, 1112. It does not say, as Dr. 6 Terry suggests, that publication occurs when a state agency determines that a document is 7 a public record. The determinative factor is the law itself, not what Defendants’ actions 8 imply the law to be. See id. So, the Court must reject Dr. Terry’s argument that the Report 9 was published after the Agreement. 10 Because the Report was not published after the Agreement, it cannot serve as a basis 11 for Dr. Terry’s due process claim because he has waived “all legal liability for claims, costs 12 and expenses, damages, actions and causes of action of whatever kind or nature, whether 13 known or unknown, arising out of or related to Dr. Terry’s employment with the District.” 14 (Doc. 96-1 at 86); see also Correa, 645 F.2d at 817 (9th Cir. 1981) (“[W]here adequate 15 administrative procedures exist, a person cannot state a claim for denial of procedural rights 16 when he has elected to forego a complete hearing.”). 17 As for the District’s refusal to rescind Dr. Terry’s resignation as the only basis for 18 a due process claim, the Court finds Dr. Terry waived his right to seek employment with 19 the district in the Agreement. (Doc. 96-1 at 87). In addition, the decision to not rehire an 20 individual, standing alone, is insufficient to state that a liberty interest has been deprived. 21 See Bd. of Regents, 408 U.S. at 575. 22 In sum, the Court will enter summary judgment in Defendants’ favor because Dr. 23 Terry waived his due process claim when he entered into the Agreement. 24 IV. Count VI – Defamation

25 3 There is also some reason to believe that the Report was subject to release upon request before the Agreement was made. The so-called work-in-progress exemption, that the 26 District used to prevent the Report’s publication before the Agreement, is only discussed in one Arizona Court of Appeals decision, which has since been vacated. Griffis v. Pinal 27 Cnty., 141 P.3d 780, 782 (Ariz. Ct. App. 2006), vacated, 156 P.3d 418 (Ariz. 2007). The Court’s prior Order cast doubt on whether the PRL itself actually forbids the publication 28 of work-in-progress, and so it is possible that the Report was subject to release upon request before the Agreement. (See Doc. 91 at 5). 1 The Court turns to the defamation claim, which generally requires a plaintiff to show 2 a defendant made a defamatory statement to a third party despite knowing its falsity or 3 negligently failing ascertain the truth. Farrell v. Hitchin’ Post Trailer Ranch, 2011 WL 4 6057930, at *2 (Ariz. Ct. App. Dec. 6, 2011). When a plaintiff is a public official, however, 5 he must show that the defamatory statement was made “with ‘actual malice’—that is, 6 knowledge that it was false or with reckless disregard of whether it was false or not.” See 7 New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964). The Court has emphasized “that 8 the actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ 9 in the ordinary sense of the term.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 10 657, 666 (1989). Instead, there “must be sufficient evidence to permit the conclusion that 11 the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant 12 v. Thompson, 390 U.S. 727, 731 (1968). 13 Dr. Terry does not contest that he is a public official and must demonstrate actual 14 malice. (Doc. 103 at 14) (discussing the defamation standard of actual malice for public 15 officials). As evidence of actual malice, Dr. Terry claims that the Report itself is “overtly 16 slanted against Dr. Terry and has a notable biased tone.” (Doc. 103 at 15). He quotes from 17 the Report’s first page which states that Dr. Terry’s claims “that he is being discriminated 18 against and targeted with retaliatory action based on his [redacted] race and male gender 19 are beyond the scope of this investigation.” (Doc. 96-1 at 49). He also cites the deposition 20 testimony of Lacoya Shelton-Johnson, who was the District’s Vice Chancellor of Human 21 Resources. (Doc. 103 at 15–16). Ms. Shelton-Johnson testified that “it was common 22 knowledge that black executives at Maricopa were treated far more harshly than their 23 nonblack counterparts” but that in the particular case of Dr. Terry she “didn’t know one 24 way or another because I wasn’t involved.” (Doc. 103-1 at 65). She also expressed concern 25 that without investigating allegations of racial bias, the Report would lack “completeness.” 26 (Id. at 69). 27 Dr. Terry’s evidence establishes, at most, the possibility that the Report was biased. 28 But a showing of bias does not show that a Defendant entertained serious doubts about the || truth of its publication. See St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Critically, 2 || nothing in the record shows that the statements made in the Report were known to be false 3|| or that Defendants had serious doubts as to the statements’ truth. Because Dr. Terry’s evidence does not speak to the question of what Defendants knew with respect to the 5 || statements made in the Report, he has failed to make any showing of actual malice. The 6 || Court will enter summary judgment in Defendants’ favor for the defamation claim. 7\| Vz. Count VIII — Loss of Consortium 8 As Dr. Terry’s defamation claim fails, his wife’s derivative claim for loss of || consortium must also fail. See Barnes v. Outlaw, 964 P.2d 484, 487 (Ariz. 1998) (holding || that “all elements of the underlying cause must be proven before the [loss of consortium] 11 || claim can exist.”). The Court will enter summary judgment in Defendants’ favor for the loss of consortium claim. VI. Conclusion 14 Accordingly, 15 IT IS HEREBY ORDERED that Defendant Maricopa County Community College District’s Motion for Summary Judgment (Doc. 96) and Defendants Leslie Cooper 17 || and John Doe Cooper’s Motion for Summary Judgment (Doc. 97) are granted. 18 IT IS FURTHER ORDERED that Plaintiff LeRodrick Terry’s Motion for Partial Summary Judgment (Doc. 98) is denied. 20 IT IS FINALLY ORDERED that the Clerk of Court shall enter judgment in favor of Defendants for Count V, violation of 42 U.S.C. § 1983; Count VI, defamation; and 22 || Count VUI, loss of consortium. As there are no other remaining claims, the Clerk of Court 23 || shall terminate this matter. 24 Dated this 6th day of September, 2022. 25 oC. . fo □ 26 norable'Diang4. Huretewa United States District Judge 28

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