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Duffy v. Los Banos Unified School District

United States District Court, E.D. California

September 5, 2017

MARK DUFFY, Plaintiff,
v.
LOS BANOS UNIFIED SCHOOL DISTRICT; STEVE TIETJEN; RYAN HARTSOCH; DANIEL SUTTON; VELI GURGEN; and DOES 1-10, Defendants.

          ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ECF NO. 60

         I. INTRODUCTION

         On June 5, 2017, Defendants filed a motion for summary judgment or, in the alternative, summary adjudication in this First Amendment retaliation action. (ECF NO. 60.) At hearing before the Court on August 4, 2017, Kevin Little, Esq. appeared for Plaintiff and Stephanie Wu, Esq. appeared for Defendants. After oral arguments, the motion was taken under submission. For the reasons set forth below, Defendants' motion for summary judgment or, in the alternative, summary adjudication is DENIED.

         II. BACKGROUND

         Plaintiff Mark Duffy brings this suit against Los Banos Unified School District (“LBUSD” or “the District”), Dr. Steve Tietjen, Ryan Hartsoch, Daniel Sutton, and Veli Gurgen pursuant to 42 U.S.C. § 1983 alleging First Amendment retaliation in connection with his employment as a High School English teacher in the LBUSD. Plaintiff began teaching at Los Banos High School in 2006. Defendant Dr. Steve Tietjen (“Tietjen”) was the Superintendent of the District from 2007 to July 1, 2016. In August 2012, Tietjen announced that Daniel Martin, then the Principal of Los Banos High School, would be reassigned to an administrative position. On August 9, 2012, a meeting of the Board of Education of the Los Banos School District (“the Board”) was convened for the purpose of public comment on Mr. Martin's reassignment. The meeting was attended by members of the general public, school district employees, and students, and was televised on the local public access channel.

         At the meeting, Plaintiff delivered the following speech:

Good evening, Board. Underneath this beard, I am Mark Duffy. First of all, I want to start off by telling you that I respect this Board, and I think you are a great board. What you do is very difficult. But I'm not here tonight to talk about Dan Martin. I don't care who the principal of the school is. It means nothing to me. I welcome working with Mr. Sutton or whoever Dr. Tietjen signs. You may know, or most of you may know that 3½ years ago I suffered a near fatal open heart surgery. I was in a coma for nine days. I only have 50% capability in my heart. I have to carry pills with me every day of my life. I'm not supposed to be here, so I'm a very blessed man. So you can understand why who the principal of my school is, it doesn't mean anything to me.
But I'll tell you what means something to me. Truth. Honesty. Dignity. Integrity. Everybody in this room tonight knows that they are here at their own peril. Everybody in this room tonight knows that repercussions and intimidation are going to hang over their head. Fear has become the standard operating procedure of this school district.
I want to make a suggestion to you that when this is all said and done with, because it's all going to be over after tonight and life goes on. I want to suggest to you that you take a survey of the people that work in this school district. Keep it out of the clutches of the district office. Make it anonymous. That way the storm troopers will not be coming to knock down your door. I think it will be interesting to see the fruit that it bears.
I know why everyone walks on eggshells in this district. And I don't want you to get me wrong, I admire Dr. Tietjen. I respect him. I admire the way that he attacks people personally. I admire the way that he hangs your job over your head if you don't do what he wants you to do. I admire the way that he encourages neighbor to rat out neighbor. I mean honestly, folks, he's really good at what he does, and that's why I admire him.
Now, again, after tonight, nothing matters. I don't care who the principal is, I can work with anybody. But there's a bigger picture here that we're not looking at. And it needs to be looked at. That's where you come in. Proverbs 11:29 says, woe to the man that reaps trouble upon his own house for he shall inherit the wind.
I want to remind you, a punk goes after people when they know they don't have a fair fight. They will bushwhack them. Mr. Martin's been bushwhacked. I want you to hold the same low standard that was applied to Mr. Martin to Dr. Tietjen.
Now, the last thing I would like to say is after tonight everybody in this room knows what's going on, no one can say “I don't know.” And I want to remind you that the last time that happened was in Germany when a people sat by compliantly while the ovens of Auschwitz burned.

(Def.'s Mot. Summ. J. Ex. C, ECF No. 60-4.)

         Defendant Daniel Sutton (“Sutton”) became Interim Principal of Los Banos High School from August 2012 through September 2012, and served as Assistant Principal beginning in October 2012. Defendant Ryan Hartsoch (“Hartsoch”) served as Principal from October 2012 through June 2014. Defendant Veli Gurgen (“Gurgen”) served as Assistant Principal beginning in September 2013.

         According to Plaintiff, after his speech, Defendants engaged in a pattern of conduct designed to intimidate and harass him, and retaliated against him by ...


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