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Weaver v. Nebo School District | Verified Complaint

19 October 1997 Published in Litigation Materials

Weaver v. Nebo School District

DAVID B, WATKISS (3401)
111 East Broadway, Suite 800
Salt Lake City, UT 84111-2304
(801) 530-1500

STEPHEN C. CLARK (4551)
American Civil Liberties Union of
Utah Foundation, Inc.
355 North 300 West
Salt Lake City, UT 84103

JENNIFER MIDDLETON (Cal. Bar. No. 178-546)
American Civil Liberties Union Foundation, Inc.
125 Broad Street
New York, NY 10004
(212) 549-2627

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

VERIFIED COMPLAINT

Judge Jenkins
Civil No. 2:97CV0819J

FILED IN UNITED STATES DISTRICT COURT, DISTRICT OF UTAH
October 20, 1997

WENDY WEAVER, Plaintiff,

v.

NEBO SCHOOL DISTRICT, ROBERT WADLEY, ALMON MOSHER, LARRY KIMBALL, DENIS POULSEN, A-LND DOES 1-10, Defendants.

Plaintiff, Wendy Weaver, by and through her attorneys, states and alleges against Defendants Nebo School District, Robert Wadley, Almon Mosher, Larry Kimball, Denis Poulsen, and Does 1-10, as follows:

1. Plaintiff brings this action to vindicate her rights to free expression, privacy and equal protection of the laws guaranteed by the First, Fourth, Fifth, Ninth, Tenth and Fourteenth Amendments to the United State Constitution and by Art. I, §§ 1, 15, 24 and 25 of the Utah Constitution.

JURISDICTION

2. This action is brought to redress the deprivation under color of state law of rights secured by the United States Constitution in violation of 42 U.S.C. § 1983. This Court has jurisdiction of this action pursuant to 28 U.S.C.§§ 1331 and 1343. This Court has supplemental jurisdiction over the claims arising under state law pursuant to 28 U.S.C. § 1367. This Court has jurisdiction to grant the declaratory relief requested under 28 U.S. C. § 2201.

VENUE

3. Venue is properly in this district pursuant to 28 U.S.C. § 1391(b) because all of the defendants reside in this district, and a substantial number of the events giving rise to these claims occurred in this district.

PARTIES

4. Plaintiff Wendy Weaver ("”Weaver") is a citizen of the United States and the State of Utah. She resides in Utah County, State of Utah. At all relevant times, Weaver was and continues to be employed as a school teacher at Spanish Fork High School, in the Nebo School District in Utah County, State of Utah.

5. Defendant Nebo School District is a "political subdivision" under Utah law.

6. Defendant Robert Wadley ("Wadley"), upon information and belief, is a resident of Utah County, State of Utah, and was, at all relevant times, the Principal of Spanish Fork High School. This action is brought against Wadley in his individual and official capacities. His authority to act was derived from Utah state law, and the commands and directives of his supervisors and others, some of whom are named as Doe Defendants in this action. Wadlev’s actions complained of were performed and undertaken under color of Utah state law.

7. Defendant Almon L. Mosher ("Mosher"), upon information and belief is a resident of Utah County, State of Utah, and was, at all relevant times, the Director of Human Resources for Nebo School District. This action is brought against Mosher in his official and individual capacities. Mosher’s actions complained of were performed and undertaken under color of Utah state law.

8. Defendant Larry Kimball ("Kimball"), upon information and belief, is a resident of Utah County, State of Utah, and was, at all relevant times, the Director of Secondary Education for Nebo School District. This action is brought against Kimball in his official and individual capacities. Kimball’s actions complained of were performed and undertaken under color of Utah state law.

9. Defendant Denis Poulsen ("Poulsen"), upon information and belief, is a resident of Utah County, State of Utah, and was, at all relevant times, the Superintendent of Nebo School District. This action is brought against Poulsen in his official and individual capacities. Poulsen’s actions complained of were performed and undertaken under color of Utah state law.

10. The true names and capacities of the defendants named in this action as Does are unknown to Weaver at this time. Upon information and belief, the Doe Defendants are employees or agents of the Nebo School District. Their actions were performed under the color of Utah state law. Weaver will seek leave to amend this complaint to include the true names and capacities of each Doe Defendant when the same have been ascertained.

STATEMENT OF THE FACTS

11. In 1979, Weaver obtained her secondary school teaching certification from Brigham Young University. In 1995, she enrolled in a Master’s program in Exercise and Sports Science at the University of Utah, which program she will complete in the Spring of 1998.

12. On May 3O, 1979, Weaver was hired to teach physical education at Spanish Fork High School ("Spanish Fork High") in the Nebo School District. In 198S, she was assigned to teach psychology in addition to physical education. Weaver has been a tenured faculty member at Spanish Fork High since 1982.

13. Over the course of her teaching career at Spanish Fork High, Weaver has developed an excellent reputation as an effective and capable teacher and has consistently received superior evaluations from her peers and supervisors.

14. In addition to her teaching responsibilities at Spanish Fork High, Weaver has been the girls’ volleyball coach since 1979. During that time, she has led her teams to four Utah state championships.

15. Prior to the end of the 1996-97 academic year, Wadley requested that Weaver continue to coach the volleyball team during the next academic year. She accepted the assignment and, accordingly, held team camp from June 9-13997, and again from July 14-18, 1997.

16. In April 1997, Weaver and her husband of 15 years, Gary Weaver, were divorced. At all relevant times, Gary Weaver was also an employee of Nebo School District.

17. Weaver is a lesbian. Since April 22, 1997, Weaver has been cohabiting with Rachael Smith ("Smith"). Weaver and Smith are in a committed, loving and marital-like relationship.

18. On July 17, 1997, Weaver received a call from Nebo School District Office requesting that she meet with Mosher at the Nebo School District Office on Tuesday, July 22997.

19. On July 18, 1997, Spanish Fork High called Weaver at home, requesting that she come to the high school to meet with Wadley on July 21, 1997.

20. On Monday, July 21, 1997, Weaver arrived at Principal Wadlev’s office. Also present at the meeting was the Assistant Vice-Principal, Robert Backman. Wadley informed Weaver that he had decided not to permit her to continue coaching the volleyball team for the upcoming academic year. When she asked him why, he stated that it was in the best interest of the school, the students, and the district, that she not continue to coach the team. Weaver asked the basis for this conclusion. Wadley said that his "perception of [Weaver] has changed." When Weaver then asked him why she was not the same person he had known for eight years, he was silent.

21. On July 22, 1997, Weaver met with Mosher and Kimball at the Nebo School District Office. As soon as the meeting commenced, Mosher read aloud the following Memorandum:

Dear Ms. Weaver:

This letter is to summarize and make a matter of record our conference of Tuesday, July 22, 1997. The District has received reports that you have made public and expressed to students your homosexual orientation and lifestyle. If these reports are true, we are concerned about the potential disruption in the school community, and advise you of the following:

You are not to make comments, announcements or statements to students, staff members or parents of students regarding your homosexual orientation or lifestyle.

If students, staff members or parents of students ask about your sexual orientation or any-thing concerning the subject, you shall tell them that the subject is private and personal and inappropriate to discuss with them.

This memo is to place you on notice of the expectations the school district has for you concerning this matter. A violation of these requirements may jeopardize your job and be cause for termination.

If you feel that you would like to discuss this with me, I would be happy to help you through the process. If you feel that you would like outside assistance, our Employee Assistance Program through Blomquist Hale is available to you. Their Orem phone number is 225-9222.

/s/ 7/22/97

Almon L. Mosher, Director of Human Resources

Larry Kimball, Director of Secondary Education

Your signature indicates that you have revealed this document, but does not mean that you are in agreement with its contents.

Wendy Weaver Date

Cc: Denis Poulsen, Superintendent

Personnel File

A copy of the July 22nd Memorandum is annexed hereto as Exhibit "A". The July 22nd Memorandum is typed on the official stationery of the Nebo School District. Apart from reading aloud the Memorandum and advising Weaver not to say anything to them about her sexual orientation, Mosher and Kimball made no further substantive comment or explanation, nor did they permit Weaver to ask questions.

22. The July 22 Memorandum expressly threatens Weaver with disciplinary action, including termination, for any violation of its requirements.

23. On July 28, 1997, Weaver received a letter from Wadley, dated July 2 1, 1997, reiterating his decision that she not continue in her position as volleyball coach at Spanish Fork High. A copy of the July 21, 1997 letter is annexed hereto as Exhibit "B".

24. On or about July 31, 1997, Weaver again went to the Nebo School District Office to seek clarification from Mosher about the scope and meaning of the July 22nd Memorandum. Specifically, she asked Mosher if the Julv 22nd Memorandum meant that she was not permitted to say anything, either at school or outside of school, to students, or to any adults who happened to be staff or parents of students, which in any way regarded her sexual orientation. Mosher refused to provide a substantive answer, merely saying he would talk to his attorney and let her know.

25. Subsequently, on or about August 6 or 7, 1997, Mosher advised Weaver that the July 22nd Memorandum would stand "as is", but refused to provide any clarification or limitation.

26. Weaver has never initiated any conversation with any student regarding her sexual orientation. Weaver has no intention or desire to initiate any such conversation with students.

27. Prior to the July 22nd Memorandum, Weaver had never been the subject of any disciplinary action.

28. In early June, 1997, Weaver telephoned the members of her volleyball team to remind them of the upcoming camp. One of the team members, who would be entering the twelfth grade in the coming school year, told Weaver that she didn”t think she would be playing on the team during the coming school year. When Weaver asked the student why, she replied, "Can I ask you a question?" Weaver said, "Sure." The student then asked Weaver whether she was gay, to which Weaver responded, truthfully, that she was. This conversation was not initiated by Weaver, nor did it occur during school hours or on school property.

29. Weaver’s sexual orientation came to the attention of defendants not because of any communications initiated by her. Rather, on information and beliefs defendants learned of Weaver’s sexual orientation as a result of remarks made by her former husband, Gary Weaver, also an employee of Spanish Fork High, to other members of the Spanish Fork High community.

30. Weaver continues to teach at Spanish Fork High School. She continues to be an excellent teacher.

31. Defendants have not rescinded, retracted, modified, clarified or limited the requirements in the July 22" Memorandum or the threat of disciplinary action contained therein.

32. On information and belief, defendants have not imposed restrictions like those imposed on Weaver on other faculty and staff at Spanish Fork High, with the exception of a restriction placed on Gary Weaver as to comments he can make about Wendy Weaver’s sexual orientation.

FIRST CLAIM FOR RELIEF
Freedom of Expression

33. Plaintiff realleges ¶¶ 1-32 above.

34. The July 22 Memorandum constitutes an impermissible restriction on Weaver’s speech based upon content and viewpoint, and also constitutes and impermissible prior restraint.

35. The restrictions contained in the July 22nd Memorandum are impermissibly vague in that they fall to apprise a person of ordinary intelligence of the kinds of communications which might be deemed to violate the restrictions. As noted above, Weaver has asked defendants to provide clarification and limitation, but defendants have refused.

36. The restrictions contained in the July 22nd Memorandum are also impermissibly overbroad in that they appear on their face to prohibit a substantial number of communications, particularly communications between Weaver and other adults, as well as communications away from the school environment which defendants have no conceivable justification or right to suppress.

37. Based on their belief that Weaver "made public and expressed to students [her] homosexual orientation and lifestyle" defendants have punished Weaver by removing her from her very successful and long-held position as volleyball coach, and by subjecting her to the threat of termination for future speech.

38. The conduct of defendants described above has deprived and continues to deprive Weaver of her right of freedom of expression protected by the First and Fourteenth Amendments to the United State Constitution in violation of 42 U.S.C@ § 1983, and by Article 1, §§ I and 15 of the Utah Constitution.

39. As a result of defendants’ violations of Weaver’s right of freedom of expression, Weaver is entitled to (1) a declaration that the July 22 Memorandum and the restrictions and threats of disciplinary action contained therein are unconstitutional; (2) a declaration that defendants’ removal of Ms. Weaver from her position as volleyball coach was unconstitutional; (3) orders preliminarily and permanently enjoining defendants from enforcing the July 22nd Memorandum and requiring defendants to expunge the July 22nd Memorandum and anv other reference to Weaver’s sexual orientation from Weaver’s files; (4) damages in an amount to be proven at trial; and (5) an award of costs, including reasonable attorney’s fees, pursuant to 42 U.S.C. § 1988.

SECOND CLAIM FOR RELIEF
Right of Privacy

40. Plaintiff realleges ¶¶ 1-39 above.

41. Under the First, Fourth, Fifth, Ninth, Tenth and Fourteenth Amendments to the United States Constitutional, there is a zone of personal privacy into which the Government may not intrude.

42. Defendants, through the July 22nd Memorandum, have unconstitutionally invaded Weaver’s right of privacy by purporting to prohibit her from discussing with, or other-wise revealing her sexual orientation to, an undefined, but potentially large number of other adults who may be her friends and confidants, simpiv because such other adults also may be members of the Nebo School District staff or the parent of a student attending school in the Nebo School District.

43. Defendants have no legitimate justification for this a pervasive intrusion into Weaver’s private life.

44. As a result of defendants’ violation of Weaver’s right of privacy, Weaver is entitled to (1) a declaration that the July 22 Memorandum and the restrictions and threats of disciplinary action contained therein are unconstitutional; (2) orders preliminarily and permanently enjoining defendants from enforcing the July 22 d Memorandum and requiring defendants to expunge the July 22nd Memorandum and any other reference to Weaver’s sexual orientation from her files; damages in an amount to be proven at trial; and (4) an award of costs, including reasonable attorney’s fees, pursuant to 42 U.S.C. 1988.

THIRD CLAIM FOR RELIEF
Equal Protection

45. Plaintiff realleges ¶¶ l-44 above.

46. Defendant took the adverse action against Weaver described above solely because of what they perceived as her "homosexual orientation and lifestyle." Among other adverse actions, defendants intentionally and selectively imposed significant restrictions on Weaver’s fundamental right to speak solely because of her sexual orientation.

47. Weaver’s sexual orientation and lifestyle have no bearing or impact on her ability to successfully coach volleyball or to teach effectively and competently.

48. By their actions, defendants unconstitutionally deprived and continue to deprive Weaver of her right to equal protection of the laws as secured by the Fourteenth Amendment of the United States Constitution, in violation of 42 U.S. C. § 1983, and by Art. I, § 24 of the Utah Constitution.

49. As a result of defendants’ violation of Weaver’s right to equal protection of the laws, Weaver is entitled to (1) a declaration that the July 22nd Memorandum and the restrictions and threats of disciplinary action contained therein are unconstitutional, a declaration that defendants’ removal of Weaver from her position as volleyball coach was unconstitutional; (2) a decleration that defendants’ removal of Weaver from her position as volleyball coach was unconstitutional; (3) orders preliminary and permanently enjoying defendants from enforcing the July 22nd Memorandum and requiring defendants to expunge the July 22nd Memorandum and any other reference to Weaver’s sexual orientation from her files; (4) damages in an amount to be proven at trial; and (5) an award of costs, including reasonable attorney’s fees, pursuant to 42 U.S.C. § 1988.

WHEREFORE, Weaver prays for the following relief:

1. a declaration that the July 2nd Memorandum and the restrictions and threats of disciplinary action contained therein are unconstitutional;

2. a declaration that defendants’ removal of Weaver from her position as volleyball coach was unconstitutional;

3. orders preliminarily and permanently enjoining defendants from enforcing the July 22nd Memorandum and requiring defendants to expunge the July 22nd Memorandum and any other reference to Weaver’s sexual orientation from her files;

4. damages in an amount to be proven at trial;

5. an award of costs, including reasonable attorney’s fees, pursuant to 42 U.S.C. § 1988-1 and

6. such other relief as the Court deems just and appropriate.

DATED this 20 day of October, 1997.

DAVID B. WATKISS
111 East Broadway, Suite 800
Salt Lake City, UT 84111
(801) 530-1500

STEPHEN C. CLARK (4551)
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West
Salt Lake City, UT 84103

JENNIFER MIDDLETON (Cal. Bar. No. 178-546)
American Civil Liberties Union Foundation, Inc.
125 Broad Street
New York, NY 10004
(212) 549-2627

Attorneys for Plaintiff

VERIFICATION

STATE OF UTAH

COUNTY OF SALT LAKE

Wendy Weaver, having been duly sworn, deposes and states as follows:

1. I am the Plaintiff in this action;

2. I have read the foregoing Complaint,

3. I have read the allegations in the Complaint and they are true to best of my personal knowledge, except those allegations that are asserted on information and belief and, as to those allegations I believe them to be true.

DATED this 20 day of October, 1997.

Wendy Weaver

SUBSCRIBED and SWORN to before me this 20 day of October, 1997.