THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

WILLIAM C. DISS, 

Plaintiff, 

v. 

PORTLAND PUBLIC SCHOOLS, 

et al., 

Defendants. 

PAP AK, Magistrate Judge: 

No. 3:14-cv-01649-PK 

OPINION AND ORDER 

Plaintiff William C. Diss brings this employment discrimination action against 

defendants Portland Public Schools (the School District); Carol Campbell, the principal at 

Benson Polytechnic High School (Benson) from 2011to2013; Jeandre' Carbone, a vice 

principal at Benson; and Frank Scotto, the School District's regional director for human 

resources. 1 Plaintiff, who was a teacher at Benson, asserts that Defendants disciplined and 

ultimately terminated him because of his religious beliefs, in particular because of his 

opposition to Planned Parenthood. Plaintiff brings claims under the First Amendment and the 

Equal Protection Clause, and under federal and state statutes prohibiting discrimination based 

on religion. 

I. Plaintiff voluntarily dismissed the other defendants named in his complaint. Plaintiff has 

abandoned his claims for due process violations, hostile environment, whistle-blowing, and 

wrongful discharge. 

1 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 1 of 21
Defendants now move for summaty judgment on all of Plaintiffs claims. After 

reviewing the briefs and suppo1iing exhibits, I grant Defendants' Motion for Summary 

Judgment. 

The key issue underlying all of Plaintiffs claims is Defendants' motivation for 

te1minating Plaintiff. Plaintiff contends that Defendants "unfairly target[ ed)" him "because of 

his religious beliefs." Pl. Opp'n. 2, ECF No. 41. I conclude, however, that Defendants have 

shown that they had valid, non-discriminatory reasons to discipline and terminate Plaintiff. 

The record contains multiple repo1is from administrators and colleagues describing Plaintiffs 

ineffective and rigid teaching style, as well as a pattern of complaints about Plaintiffs 

disrespectfol and demeaning conduct towards his students, colleagues, and administrators. In 

response, Plaintiff has not presented evidence from which a reasonable ju1y could find that 

Defendants retaliated against Plaintiff because of his religion. 

BACKGROUND 

Plaintiff is a devout Catholic who follows "all of the church's teachings about sexual 

health and morality, and observe[s] the church's teachings on defending and promoting the 

dignity oflife from the moment of conception until natural death." Diss Deel. ~ 2, ECF No. 

42. Plaintiff joined "a coalition ofreligious and community organizations to educate the 

public about the evils of abortion and Planned Parenthood." Diss Deel.~ 4. Plaintiff has 

organized protests against Planned Parenthood and abo1iion, and he is a leader of Precious 

) 

Children of Portland, which "promotes the sanctity of human life and opposes abo1iion." Diss 

Deel.~ 13. 

Plaintiff began teaching at Benson in August 2002. He initially taught computer 

science and technology, electronics, and drafting. 

Starting in the 2006-07 school year and continuing throughout his tenure at Benson, 

Plaintiff was repeatedly disciplined by administrators for making derogatory comments to 

students. Plaintiff now asse1is that he "never attempted to demean or insult students -- only to 

2 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 2 of 21
motivate their behavior and improve their conduct." Pl. Trial Br. 6, ECF No. 53. Plaintiffs 

own testimony, however, indicates a different approach. Plaintiff was asked at his deposition, 

"if a student feels demeaned by the teacher, ... that's not a good thing, is it?" Plaintiff 

responded, "No. I think it's great. I felt demeaned quite a few times in school of how a 

teacher treated me, but then I knew that I had to kind of get my act together." Depo. Trans., at 

3, ECF No. 51-1. Plaintiff explained, "I think eve1y teacher has to use terms that might seem 

harsh, demeaning, you know, pick your favorite adjective, to make sure there's good order in . 

. . a classroom and to let people know the consequences of their behavior." Depo. Trans., at 3. 

The record indicates that Plaintiff adhered to this philosophy during his teaching career at 

Benson. 

In September 2006, Benson principal Christie Plinski, who had hired Plaintiff, 

reprimanded Plaintiff for his "instructional style and denigrating language toward students." 

Norwood Deel., Ex. 1, at 154-55, ECF 36-2. Plinski noted that "this was not the first 

conversation -- and indeed warning -- about this type ofbehaviOr in your classroom." Plinski 

stated, "In responding to my questions, you conceded that you had wanted to make an 

impression on the students and to warn them to be 'on their best behaviors' for a substitute 

teacher. You stated that you often used te1ms like 'bum, slacker, loser' with the students to 

'get them to realize the future is looking down on them' and that 'In a few years, rubber meets 

the road and its [sic] imp011ant to stmi working on things.' You further stated that you often 

used these tenns 'in jest."' Plinski explained that "at no time is it appropriate to use 

pejorative terms with students along the lines of 'bum, slacker, loser,' and that words such as 

these do not motivate students, but rather denigrate and demean them." Plinski stated that she 

had warned Plaintiff about his use of denigrating words the previous summer. Plinski 

concluded that Plaintiffs denigrating behavior towards students must stop immediately. 

In April 2007, Plaintiff"organize[d] a protest against Planned Parenthood building a 

new facility in No1iheast Portland." Diss Deel. if 4. During that time, Plinski reprimanded 

3 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 3 of 21
Plaintiff for using a school telephone during working hours to call a neighborhood coalition to 

complain about a proposed Planned Parenthood facility. Plinski told Plaintiff to use his own 

time and resources when promoting personal and political beliefs, and warned Plaintiff not to 

represent himself as a public school employee when promoting those beliefs. Ex. 162, ECF 

No. 43-14. 

In November 2007, vice principal Susan Schenk wrote Plaintiff a letter of reprimand, 

ordered him to "stop using demeaning te1ms such as looser [sic], slacker, ugly and stupid. 

You will stop engaging in put downs in which you make fun of students and they are allowed 

to make fun of you in response." Norwood Deel., Ex. 1, at 156. Schenk noted that Plaintiffs 

teaching style made students "perceive that you dislike them because you insult them or their 

classmates. They feel angry, unsafe and unmotivated." 

In December 2007, a local reporter recognized Plaintiff as a teacher at Benson while 

Plaintiff was leading an anti-ab01iion rally. Schenk warned Plaintiff not to associate Benson 

or the School District with his political or religious activities. Schenk reminded Plaintiff that 

he had agreed not to identify himself as a School District employee during his anti-abo1iion 

activities. Schenk attached a copy of the School District's rules and guidelines governing 

political conduct by its employees. 

In 2009, vice principal Ba11'y Phillips twice issued letters of warning to Plaintiff. In an 

April 2009 letter, Phillips stated that Plaintiff told a student "that you're going to end up in 

front of a judge and go to prison, be a bum, and that he better start filling out his cardboard 

box sign." Norwood Deel., Ex. 1, at 157. Phillips ordered Plaintiff not to "communicate to 

any student in a derogatory or disrespectful manner." 

Phillips later testified that when Plaintiff staiied teaching math at Benson, "complaints 

started coming in ... frantically. Like every day almost. Several per week [from different 

students]." Norwood Deel., Ex. 1, at 122. 

In another April 2009 letter to Plaintifl: Phillips stated that Plaintiff had failed to 

4 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 4 of 21
respond to several complaints from parents of students in Plaintiffs classes. Norwood Deel., 

Ex. 1, at 158. Plaintiff then failed to appear at a scheduled meeting with a parent, resulting in 

the meeting starting almost 20 minutes late. Phillips stated that Plaintiffs ignoring or 

minimizing the meeting "reflects poorly on you, Benson H.S., and [is] extremely discourteous 

to the student's family and very unprofessional." 

In May 2009, Phillips issued a second warning to Plaintiff, ordering him to "cease and 

desist" "telling students they should join the 'do nothing club' and battle out who should be 

president, announcing how many assignments any student has turned in [in] front of the entire 

class." Norwood Deel., Ex. 1, at 159. Phillips concluded, "The expectation for the future is 

that you will not communicate to any student in a manner considered degrading, humiliating, 

harmful, unprofessional, derogatory or in a disrespectful manner." 

Also in May 2009, then-principal Steve Olczak evaluated Plaintiff based on his 

personal observation of Plaintiffs teaching methods. Olczak noted Plaintiffs "continuous 

use of sarcasm, and supposed humorous remarks to students that are negative by nature and 

tend to draw like responses from students." Norwood Deel., Ex. 1, at 196. Although Plaintiff 

told Olczak that his comments were meant to challenge students, Olczak observed "many 

students are offended and do not respond well to these confrontational, and derogatory 

remarks." Norwood Deel., Ex. 1, at 196. Olczak noted, "Calling students stupid, or bums, 

does not earn student respect. Likewise, inte1jecting specific opinions about individual 

[students'] behavior that is confidential information, and e-mailing the entire staff, [most of 

whom] do not even know the student is both disrespectful and professionally unacceptable." 

Norwood Deel., Ex. 1, at 196. 

Plaintiff added a handwritten note to the evaluation, stating that it was "ve1y unfair," 

and added, "I will be praying for all of those at this district and the school who seem to enjoy 

harassing Mr. Diss." Norwood Deel., Ex. 1, at 199, Plaintiff now states that he "believe[ s] 

the evaluation was largely based on the publicity that smTounded my political activities at the 

5 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 5 of 21
time." Diss Deel. ~ 9. Other than Plaintiffs own speculation, however, there is no evidence 

that Olczak's negative evaluation in 2009 was linked in any way to Plaintiffs religion or his 

political activities. 

Plaintiff filed a grievance challenging the 2009 evaluation. Based on an unrelated 

settlement agreement between the School District and the union, the evaluation was later 

removed from Plaintiffs personnel file, along with about ten other employee evaluations. 

Fargey Deel., Ex. 7, ECF No. 43-7. 

Defendant Carol Campbell began working as the principal at Benson in the 2011-12 

school year. Campbell is Catholic and had worked 14 years as a teacher and administrator at a 

private Catholic high school before taking a teaching job at Grant High School in Po11land. 

See Defs. Witness Statements 3, ECF No. 49. Defendant Jeandre'. Carbone started as vice 

principal at Benson at the same time. 

Campbell first met Plaintiff in the summer of 2011, when he visited her in her office. 

At that time, Plaintiff was not assigned to a particular school. 

In October 2011, the School District notified Campbell that Plaintiff would be 

assigned to teach math full-time at Benson. Phillips had previously told Campbell that based 

on his experience with Plaintiff, Campbell should not accept Plaintiff as a math teacher, 

noting that Plaintiff was the subject of multiple student complaints and requests to transfer out 

of his class. Norwood Deel., Ex. 1, at 122, ECF No. 36-1. There is no evidence in the record 

that Campbell was aware at this time of Plaintiffs religion or his opposition to Planned 

Parenthood. Campbell emailed the School District on October 11, 2011, asking to replace 

Plaintiff with another math teacher. Campbell stated that Plaintiff"is not a good fit for this 

position and has proven himself incapable of being an effective teacher." Norwood Deel., Ex. 

1, at 201. 

Plaintiff sent Campbell an email using the phrase "God bless." Campbell told Plaintiff 

to refrain from using such religious phrases in professional emails to parents or School 

6 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 6 of 21
District employees. Campbell was told by her predecessor that a parent had complained about 

Plaintiff's use of religious phrases in an email. Another parent complained during Campbell's 

tenure about Plaintiffs use of religious phrases in his communications. 

During the 2011-12 school year, Campbell observed Plaintiffs computer science class. 

She worked with Plaintiff to improve his teaching skills. She noted that Plaintiff was 

disorganized and did not plan lessons or prepare to use class time effectively. Campbell also 

noted that an unusually high munber of students had dropped or transferred out of Plaintiffs 

computer science class. Norwood Deel., Ex. 1, at 11. Although Campbell worked with 

Plaintiff throughout the school year, she saw no improvement. 

For the 2012-13 school year, Campbell decided to assign Plaintiff to teach a computer 

science class and a tutorial class with computers available, in an attempt to use Plaintiffs 

strengths and avoid assigning him to math classes. Norwood Deel., Ex. 1, at 12. 

In September 2012, Campbell arranged for presentations to encourage students, with 

parental pe1mission, to join the Teen Outreach Program (TOP), a voluntary federal program 

intended to reduce academic failures and teen pregnancies. TOP was presented to students by 

facilitators, who were trained to ensure that the program is essentially the same nationally. 

For the 2012-13 school year, defendant Campbell chose to move TOP from the health 

class to tutorial class, to avoid cutting into instructional time. She also dete1mined that TOP 

would not include any sex education, because that was already covered in health class. 

Students who chose to participate in TOP \\'.ould be dismissed from tutorial classes to attend 

TOP meetings in another classroom. 

On September 11, 2012, Carbone emailed Plaintiff and the other tutorial teachers 

explaining that TOP facilitators would be visiting tutorial classrooms on September 17 and 

18, 2012, to talk to students. Carbone's email did not mention that the TOP presenters would 

be employees of Plauned Parenthood, and there is no evidence that Carbone or Campbell 

knew Planned Parenthood employees would be involved until the day the TOP presenters 

7 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 7 of 21
anived at Benson. 

On September 17, 2012, as scheduled, TOP facilitator Austin Lea entered Plaintiffs 

tutorial classroom with TOP brochures and posters. Plaintiff read a letter from TOP directed 

to parents, describing TOP as an evidence-based, youth development program administered by 

the Northwest Coalition for Adolescent Health and its member Planned Parenthood Columbia 

Willamette. The letter stated that TOP focused on "supp01iing healthy behaviors," developing 

life skills," and "finding a sense of purpose." The letter did not mention sexuality or ab01iion. 

Plaintiff became very upset by the presence of Planned Parenthood employees. 

Plaintiff interrupted Lea and asked him to step outside the classroom, where he told Lea to get 

out of his classroom because Lea worked for Planned Parenthood. Plaintiff claimed that 

Planned Parenthood was racist and practiced eugenics. Another TOP presenter then went to 

Campbell's office and asked for her assistance in dealing with Plaintiff. 

Campbell went to the class and asked Plaintiff why he had interrupted the program. 

Plaintiff said that TOP was against his religious beliefs, and that he opposed it. Plaintiff 

refused to discuss the issue futiher without a union representative. Campbell stated that she 

did not know Plaintiffs religious beliefs. Plaintiff told Campbell that he was sick to his 

stomach and went home. 

That night, Campbell emailed Plaintiff, stating that she respected his religious beliefs, 

but TOP was approved by the School District and was not religious. Campbell told Plaintiff 

that he needed to allow the TOP presentation at his tutorial class the next day. 

The next day, September 18, 2012, TOP presenters came to Plaintiffs tutorial class. 

Plaintiff again did not cooperate with the presentations. One of the presenters sought 

Campbell's help. Campbell observed Plaintiff harassing the presenters by repeatedly asking 

them who they worked for and following them around the room. 

On September 19, 2012, Campbell, Carbone, and Scotto met with Plaintiff, who was 

8 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 8 of 21
represented by an attorney who appeared by phone. Defendants discussed Plaintiffs refusal 

to allow the TOP presenters into his tutorial class. Plaintiff asserted that TOP concerned 

family planning, contraception, and abortion. Defendants responded that Plaintiff did not 

understand TOP, which was not religious. Defendants ordered Plaintiff to allow TOP 

presentations in his classroom. Plaintiffs attorney advised him to obey that directive. 

Later that day, at another TOP presentation, Plaintiff spent more than 20 minutes 

taking attendance, although there were only 10-15 students. Carbone arrived to see whether 

Plaintiff was complying with Defendants' orders to allow TOP presentations. According to 

Carbone, when she started to introduce the TOP presenters, Plaintiff interrupted, asking loudly 

whether he could finish taking attendance. Carbone said that she thought he was finished, and 

Plaintiff became louder and said, "What, are you saying I'm slow?" Norwood Deel., Ex. 1, at 

44. When the TOP presentation was done, Plaintiff asked Carbone in front of the students 

whether she thought he had been rude. Carbone asked Plaintiff to discuss the matter at 

another time, and Plaintiff responded, "I think I have a right to know if you think I was rude or 

not." Norwood Deel., Ex. 1, at 47. Plaintiff moved very close to Carbone and raised his 

voice. Carbone was concerned that Plaintiff had repeatedly yelled at her in front of students. 

On September 20, 2012, Carbone returned to Plaintiffs tutorial class to confirm that 

he would allow the TOP presentation to proceed. Plaintiff again used 20 minutes to take 

attendance. When the TOP presenters began to speak, Plaintiff intenupted and asked Carbone 

whether he could talk to the class. Plaintiff told the students he was sorry to disappoint them 

but that the multiplication table lesson would be postponed because the TOP guests had 

priority. Norwood Deel., Ex. 1, at 147. Carbone asked Plaintiff to talk to her later in private 

about the multiplication tables, reminding Plaintiff that the tutorial class was to be for 

independent study, not math class. Plaintiff repeatedly intenupted Carbone, stating, "Put it in 

writing" several times. Norwood Deel., Ex. 1, at 148. Carbone left the class in frustration. 

On September 26, 2012, Campbell issued a written reprimand to Plaintiff for his 

9 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 9 of 21
obstruction of the TOP presentations. Norwood Deel., Ex. 1, at 145. Campbell directed 

Plaintiff to comply with administrative directives; to notify the administration ifhe had 

difficulty complying with a directive; and to stop verbally attacking TOP presenters by calling 

them "racist" or other insults. 

After receiving "a number" of emails from Plaintiff using the phrase "God bless you," 

on September 26, 2012, Carbone told Plaintiff not to use religious phrases in his professional 

communications with staff or students. Norwood Deel., Ex. 1, at 50, 144. Carbone stated that 

she had learned that public school teachers "are required to remain religious neutral" in 

official communications. Norwood Deel., Ex. 1, at 50. 

On October 8, 2012, Campbell issued a letter of reprimand to Plaintiff for his 

harassment and other unprofessional behavior towards Carbone. Campbell wrote that when 

she met with Plaintiff earlier that day, Plaintiff indicated he "did not view [his] actions as 

disrespectful and/or unprofessional," but he assumed Campbell and Carbone thought he was 

disrespectful or rude. Norwood Deel., Ex. 1, at 148. 

Campbell stated that Carbone felt "intimidated, bullied and harassed" during her 

interactions with Plaintiff. Campbell noted that Plaintiff had refused to talk with Carbone in 

private, away from students, and interrupted her several times. Campbell stated that 

Plaintiffs conduct undermined Carbone's ability to keep the respect of students, and that his 

conduct violated the School District's anti-harassment policy. Campbell issued directives to 

Plaintiff: requiring that he behave professionally at all times; communicate with colleagues 

and administrators in a respectful, professional tone; and not attempt to harass or intimidate 

administrators or colleagues. 

That evening, Carbone attended a Benson football game as an administrator. During 

the game, Plaintiff confronted Carbone in the stands, yelling at her, "Hey, I'm really sorry if 

you thought I was rude to you a few weeks ago, but I thought you were really rude too." 

Plaintiff now alleges that he "attempted to apologize to Ms. Carbone over the loud 

10 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 10 of 21
football game -- I never intended to shout or be rude -- I was being genuine. . . . I had to 

speak loudly to her because of the football-volumed cheers of the students." Diss Deel.~ 22. 

Carbone, and several witnesses, had a different impression of Plaintiff's conduct. Carbone 

thought that Plaintiffs apology was sarcastic, and she was shocked that he would confront her 

this way in front of parents and students. Carbone considered Plaintiffs behavior aggressive 

and disrespectful to her. At least two parents who witnessed the event thought Plaintiff was 

unprofessional. One parent stated in an email to the school that she "was appalled that this 

had even happened, that another staff member would act this way in front of a crowd in such 

an arrogant and rude manner." Norwood Deel., Ex. I, at 202, ECF No. 36-2. 

On October 15, 2012, Plaintiff, his union representative, and an attorney met with 

Campbell, Carbone, and Scotto about Plaintiffs conduct at the football game. Plaintiff 

characterized his conversation with Carbone to be "somewhat private" because of the noise at 

the football game. Norwood Deel., Ex. 1, at 150. 

In a subsequent warning letter to Plaintiff dated October 18, 2012, Campbell stated 

that she believed Plaintiff was "intentionally harassing" Carbone. Norwood Deel., Ex. 1, at 

150. Campbell noted that Plaintiff had been reprimanded on the day of the football game for 

similar conduct, raising his voice and undermining Carbone's authority in front of students. 

Campbell stated that Plaintiffs conduct at the football game had also undermined Carbone's 

authority, noting that students "sitting in the area were laughing." Norwood Deel., Ex. 1, at 

150. Campbell stated that Plaintiffs "tone and body language was intimidating and rude. 

Considering the meetings, directives and reprimands that have occurred in the past few weeks, 

I would expect you to make every effort to ensure you conduct yourself in a professional 

manner. Instead, you seem to be intentionally seeking oppo1tunities to be unprofessional and 

disrespectful." After recounting the recent letters ofreprimand against Plaintiff, Campbell 

stated that this was Plaintiffs final warning. She suspended Plaintiff for one day without pay, 

October 22, 2012. 

11 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 11 of 21
Carbone evaluated Plaintiffs teaching during the 2012-13 school year. She observed 

Plaintiff teaching Introduction to Computers in October 2012, and Advanced Algebra and 

Geometry in November 2012. Carbone states that she received "a high volume" of written 

and oral complaints about Plaintiffs "rigid instructional style; the complaints were frequently 

accompanied by requests to transfer out of his classes." Carbone Deel.~ 6, ECF No. 35. 

Concerned about the number of complaints, Carbone again observed Plaintiffs teaching, and 

noted that he had not implemented most of the recommendations from her previous 

evaluations. Plaintiff was "among the least compliant of all teachers at Benson" in submitting 

lesson and unit plans. Carbone Deel. ~ 10. 

In her evaluation of an algebra class on November 15, 2012, Carbone noted Plaintiff 

required students to memorize multiplication tables, and gave a quiz at the beginning of each 

class, even though multiplication tables are not part of the Oregon requirements for algebra. 

Carbone Deel., Ex. 2, at 5. Carbone again gave Plaintiff specific recommendations to 

improve his teaching. 

Between November 13, 2012, the first day of Plaintiffs math class, and Janumy 8, 

2013, Carbone received written complaints from 16 students and their parents. Many of the 

complaints requested transfers from his class, and criticized Plaintiffs requirement that 

students memorize multiplication tables in an advanced algebra class. 

Plaintiff contended that Campbell and Carbone believed students' complaints rather 

than accepting Plaintiffs version of the events. In response, Carbone asked Joshua Curtis, 

who taught in a classroom next to Plaintiff, to report on Plaintiffs teaching style. 

Curtis stated that Plaintiff "yelled at students to get the classes attention, during 

confrontations with students and when he appears to have lost control of his behavior. 

[Plaintiff] does not appear to have any other means of getting students attention, or managing 

the class. He will yell at a whole class several times a week before taking attendance." 

Norwood Deel., Ex. 1, at 167. 

12 - OPINION AL"\/D ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 12 of 21
Curtis noted that Plaintiff "will also get into confrontations with students" for "minor 

misbehavior" such as talking quietly to a neighboring student or drinking water from a 

fountain in the classroom. Plaintiff did not tell students his expectations at the beginning of 

the class, so students were unaware that they were misbehaving until Plaintiff yelled at them. 

Curtis cited specific examples, such as Plaintiff yelling at a student for not retrieving a pencil 

fast enough, or calling another student "disgusting" because the student was unprepared for 

class. Cmiis concluded that Plaintiffs behavior caused many students to drop Plaintiffs 

courses. 

In an evaluation dated Februmy 4, 2013, Carbone summarized her observations of 

Plaintiff's teaching. She noted his "instructional rigidity," with every student required to do 

the same problem, the same way, regardless of background or experience. On the first day of 

advanced algebra class, Plaintiff required that students write, "Mr. Diss is the boss and all 

problems need to be worked how Mr. Diss says." Carbone noted that Plaintiff was 

inconsistent in managing student behavior, either "strict and oppressive, not allowing students 

to speak at all, or he is inattentive and seems unaware that students have finished their work 

and are off task." Carbone Deel., Ex. 8, at 3. 

At a meeting with School District administrators on February 12, 2013, Plaintiff was 

notified about the evidence of his poor classroom conduct, as rep01ied by students and Cmiis. 

Plaintiff admitted some but not all of the conduct. 

On Februmy 28, 2013, Campbell issued a second final warning, directing Plaintiff to 

stop behaving unprofessionally towards students. 

On March 1, 2013, a student named Ivan told Amy Slaughter, a teacher, that Plaintiff 

given a geometly test question that named Ivan as a person trapped in a burning building. The 

student was in tears and seemed upset by the question. Slaughter found Plaintiffs decision 

use the student's name in the math problem to be "completely" inappropriate. Norwood 

Deel., Ex. 1, at 131. 

13 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 13 of 21
Plaintiff states that the question was intended to get the student, who was very passive, 

involved in the class. Plaintiff states that the student "liked it," showing excitement about 

being named in the question, and that it was the only question the student answered. Diss 

Deel. ~ 29. 

On March 19, 2013, Plaintiff was placed on paid administrative leave. Norwood 

Deel., Ex. 1, at 204, ECF No. 36-2. On December 16, 2013, the Board of Education approved 

the dismissal of Plaintiff, effective the next day. Norwood Deel., Ex. 1, at 191. 

STANDARDS 

The court must grant summary judgment if there are no genuine issues of material fact 

and the moving pa1iy is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). If the 

moving pmiy shows that there are no genuine issues of material fact, the nonmoving paiiy 

must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. 

Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving pa1iy's burden "is not a light one .... 

The non-moving party must do more than show there is some 'metaphysical doubt' as to the 

material facts at issue." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) 

(citation omitted). 

The substantive law governing a claim or defense determines whether a fact is 

material. ivfiller v. Glenn 1Hiller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). A dispute as 

to a material fact is genuine "'if the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.'" Vi/liarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 

(9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The 

court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 

U.S. at 255. A "mere disagreement or the bald assertion that a genuine issue of material fact 

exists" is not sufficient to preclude the grant of summary judgment. Harper v. Wallingford, 

877 F.2d 728, 731 (9th Cir. 1989). 

14 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 14 of 21
DISCUSSION 

I. First Amendment Claims 

Plaintiff brings three claims under the First Amendment, asserting that Defendants 

retaliated against him in violation of his rights to free speech, to free association, and to the 

free exercise of religion. To establish a retaliation claim for asserting rights under the First 

Amendment, Plaintiff must show that (I) he was subjected to an adverse employment action; 

(2) he engaged in protected speech; and (3) the protected speech was a "substantial motivating 

factor" for the adverse employment action. See Ulrich v. City & Cty. of San Francisco, 308 

F.3d 968, 976 (9th Cir. 2002). 

Because Plaintiff was a public employee, his First Amendment retaliation claims are 

evaluated under the test described in Pickering v. Board of Education, 391 U.S. 563, 568 

(I 968). The First Amendment "protects a public employee's right, in certain circumstances, to 

speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 

417 (2006). On the other hand, the First Amendment "does not empower [public employees] 

to 'constitutionalize the employee grievance."' Id. at 420 (quoting Connickv. i\Iyers, 461 

U.S. 138, 154 (1983)). 

This comi uses a five-part balancing test to evaluate First Amendment claims asserted 

by public employees. See Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009) ("unravel[ing]" 

and clarifying the Pickering test). The balancing test provides: 

First, the plaintiff bears the burden of proof at trial of showing (1) that she 

spoke on a matter of public concern; (2) that she spoke as a private citizen 

rather than a public employee; and (3) that the relevant speech was "a 

substantial or motivating factor in the adverse employment action." [Eng, at 

1070-71.] If the plaintiff establishes such a prima facie case, the burden of 

proof shifts to the government to show that ( 4) "the state had an adequate 

justification for treating the empfoyee differently from other members of the 

general public"; or (5) "the state would have taken the adverse employment 

action even absent the protected speech." Id. at 1070-72. 

Coomes v. Edmonds School Dist. No. 15, 816 F.3d 1255, 1259 (9th Cir. 2016) (footnote 

omitted). "[B]ecause these are sequential steps, a plaintiffs failure to satisfy a single one 

15 - OPINION AND ORDER 

Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 15 of 21
necessarily concludes [the Court's] inquiry." Johnson v. Poway Unified Sch. Dist., 658 F.3d 

954, 961-62 (9th Cir. 2011) (internal quotation marks and citations omitted). 

A. First Amendment Claim Based on Free Speech 

In Plaintiffs first claim for relief, he asserts that Defendants retaliated against him for 

exercising his rights to free speech under the First Amendment. Defendants are entitled to 

summmy judgment on this claim because the First Amendment "does not protect speech by 

public employees that is made pursuant to their employment responsibilities -- no matter how 

much a matter of public concern it might be." Coomes, 816 F.3d at 1260. When public 

employees speak pursuant to their ofiicial duties, they are not speaking as private citizens 

"'and the Constitution does not insulate their communications from employer discipline.'" Id. 

(quoting Garcetti, 547 U.S. at 421). Here, it is undisputed that the speech Plaintiff asserts is 

protected "owes its existence" to Plaintiffs position as a teacher, so Plaintiff necessarily 

"spoke as a public employee, not as a citizen." Id. (citations and quotation marks omitted). 

For example, Plaintiffs objections to the TOP presenters stemmed from his position as a 

teacher. Similarly, Plaintiffs statements to Carbone in his tutorial class stem from his role as 

a teacher. Plaintiffs loud apology to Carbone at the football game was not on a matter of 

public concern, but rather addressed a personal dispute. In any event, a teacher necessarily 

acts as a teacher "for purposes of a Pickering inquiiy when at school or a school function, in 

the general presence of students, in a capacity one might reasonably view as official." 

Johnson, 658 F.3d at 967. 

Even assuming Plaintiff could show that he spoke as a private citizen, he has not 

produced evidence that Defendants disciplined him because of his protected speech. 

"Speculation as to [a defendant's] improper motive does not rise to the level of evidence 

sufficient to survive summmy judgment." Karam v. City of Burbank, 352 F.3d 1188, 1194 

(9th Cir. 2003). It is undisputed that Plaintiff was the subject of multiple complaints based 

both on his unprofessional conduct and his flawed teaching style. I agree with the Third 

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Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 16 of 21
Circuit that "it is generally appropriate to consider the reactions of students and parents to an 

educator's speech under the Pickering balancing test." 1vlunroe v. Central Bucks Sch. Dist., 

805 F.3d 454, 475-76 (3rd Cir. 2015) (noting agreement with decisions from the Second and 

Seventh Circuits). Although Plaintiff disputes the validity of some, but not all, of the 

complaints against him, the accuracy of the complaints is not relevant to determining 

Defendants' motivation for disciplining Plaintiff. Plaintiff has not shown any evidence 

indicating that his te1mination was based on his religion or opposition to Planned Parenthood. 

Even if Plaintiff had evidence of a discriminat01y motive, Defendants have presented 

evidence showing that Plaintiff would have been terminated anyway, given his repeated 

defiance of directives to act professionally towards colleagues, administrators, and students. 

B. First Amendment Claim Based on Free Association 

Plaintiff claims that Defendants retaliated against him because of his association with 

a group that opposed Planned Parenthood. Plaintiff has failed to show that Defendants 

retaliated against him because of his association. Instead, as discussed in the background 

section, Defendants had ample reasons to terminate Plaintiff based on his continued 

unprofessional and harassing behavior, which he refused to modify despite repeated 

opportunities to do so. 

C. First Amendment Claim Based on Free Exercise of Religion 

Plaintiff claims that Defendants violated his First Amendment rights to freely exercise 

his religion by (1) requiring him to supervise his tutorial class during the TOP presentations; 

(2) asking him to refrain from using religious phrases such as "God bless" in professional 

communications; and (3) creating an environment that chilled his ability to exercise his 

religious beliefs. Defendants are entitled to summary judgment on this claim. 

The speech in question generally concems Plaintiffs official duties as a teacher, 

precluding protection under the Pickering test. This covers Plaintiffs objections to the TOP 

presenters in the tutorial class. As the Ninth Circuit has held, "school teachers have no First 

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Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 17 of 21
Amendment right to influence curriculum as they so choose." Downs v. Los Angeles Unified 

Sch. Dist., 228 F.3d 1003, 1015-16 (9th Cir. 2000); Johnson, 658 F.3d at 962-63 (classroom 

instruction is part of teacher's official duties and is therefore unprotected employee speech). 

Defendants acted properly in directing Plaintiff to avoid religious phrases in his 

professional, school-related communications. Public schools "have a constitutional duty to 

ensure that public school teachers do not give the impression that the school prefers one 

religion or even religion in general." Williams v. Vidmar, 367 F. Supp. 2d 1265, 1273 (N.D. 

Cal. 2005); see also Peloza v. Capistrano Unified School Dist., 37 F.3d 517, 522 (9th Cir. 

1994) (high school students likely to equate views of a teacher with those of the school). 

As to Plaintiffs claim that Defendants created an environment that chilled his ability 

to exercise his religion, Plaintiff has not shown that Defendants acted improperly. I agree 

with Defendants that Plaintiff has not shown that requiring him to allow employees of 

Planned Parenthood into his tutorial class to promote a federally funded program burdened his 

religious activities, or permitted him to obstruct the presenters. The presenters were 

encouraging students to enroll in the program, not operating the program itself in the class. 

In Williams v. California, 990 F. Supp. 2d 1009, 1024 (C.D. Cal. 2012), ajf'd, 764 

F.3d 1002 (9th Cir. 2014), the court addressed a similar free exercise claim. There, care 

providers for developmentally disabled clients challenged statuto1y requirements that they 

accompany clients to religious services, claiming that being present at Jehovah's Witness 

services would conflict with their own and their employees' religious beliefs and practices. 

The district court rejected the First Amendment claim, reasoning that the regulations would 

not "require Plaintiffs to adopt any pmticular religious beliefs or to worship, engage in prayer, 

or otherwise participate in any religious services. Insofar as the regulations require Plaintiffs 

to merely be present at Jehovah's Witness services, and thus inhibit their own practice of 

religion because that is something that their religion allegedly prohibits, we cannot say that 

this is the 'primary effect' of the regulations." Id Similarly, here Defendants required only 

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Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 18 of 21
that Plaintiff be present while the TOP presenters described the program to students. 

II. Qualified Immunity 

As an alternative holding, I conclude that the individual defendants are entitled to 

qualified immunity. Even if Plaintiff could show a violation of his constitutional rights, he 

has not shown that reasonable officials in the individual defendants' positions would have 

known that their actions would violate Plaintiffs constitutional rights. 

"Qualified immunity shields government actors from civil liability under 42 U.S.C. § 

1983 if 'their conduct does not violate clearly established statutory or constitutional rights of 

which a reasonable person would have known."' Castro v. Cty. of Los Angeles, 833 F.3d 

1060, 1066-67 (9th Cir. 2016) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In 

ruling on qualified immunity, the court asks "(1) whether the officer's conduct violated a 

constitutional right, and (2) whether that right was clearly established at the time of the 

incident." Id. (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). 

Here, I conclude that Plaintiffs asserted First Amendment right to engage in the 

speech at issue was not clearly established. "Because the underlying determination pursuant 

to Pickering whether a public employee's speech is constitutionally protected turns on a 

context-intensive, case-by-case balancing analysis, the law regarding such claims will rarely, 

if ever, be sufficiently 'clearly established' to preclude qualified immunity." 1vforan v. State 

of Wash., 147 F.3d 839, 847 (9th Cir. 1998) ("today we join the chorus of voices from other 

circuits that have specifically observed the difficulty of finding clearly established law under 

Pickering,"). I conclude that Campbell, Carbone, and Scotto are entitled to qualified 

immunity as to Plaintiffs First Amendment claims. 

III. Equal Protection Claim 

Plaintiff brings a claim under the Equal Protection Clause. To prevail on an equal 

protection claim, Plaintiff must show that Defendants acted in a discriminatory manner and 

that the discrimination was intentional. Reese v. Jefferson Sch. Dist. No l 4J, 208 F.3d 736, 

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Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 19 of 21
740 (9th Cir. 2000). Discrimination is intentional ifthe defendant's action were motivated, at 

least in part, by the plaintiffs protected status. Serrano v. Francis, 345 F.3d 1071, I 082 (9th 

Cir. 2003). 

Here, Plaintiff has failed to present evidence that any similarly situated teacher with a 

comparable record of complaints and conduct violations was not dismissed. Nor has Plaintiff 

submitted evidence that any defendant was anti-Catholic or otherwise opposed to Plaintiff's 

religious beliefs. Defendants are entitled to summary judgment on Plaintiffs equal protection 

claim. 

IV. The School District Is Entitled to Summary Judgment 

A. Civil Rights Claims Under 42 U.S.C. § 1983 

The School District may not be held vicariously liable under 42 U.S.C. § 1983 for the 

actions of its subordinates. 1vlonell v. Dep't a/Social Servs., 436 U.S. 658 (1978). Instead, to 

show that the School District is liable, Plaintiff must present evidence of"'a direct causal link 

between a [School District] policy or custom and the alleged constitutional deprivation."' 

Castro, 833 F.3d at 1075 (quoting City a/Canton v. Harris, 489 U.S. 378, 385 (1989)). 

Here, Plaintiff has failed to present evidence that the School District had a custom or policy of 

disciplining or tenninating employees in retaliation for the exercise of First Amendment 

rights. Nor has Plaintiff presented evidence that the School District had a custom or policy of 

treating Catholic teachers differently than other teachers. 

B. Religious Discrimination Claims Under State and Federal Statutes 

Plaintiff brings claims for religious discrimination against the School District under 

Title VII, 42 U.S.C. § 2000e-2, and under Or. Rev. Stat. § 659A.030. The resolution of the 

Title VII claim determines the resolution of the state claim. See Heller v. EBB Auto Co., 8 

F.3d 1433, 1441 n.2 (9th Cir. 1993) ("state statutory claim succeeds or fails with [the 

plaintiff's] Title VII claim"). To prevail, Plaintiff must show that he suffered an adverse 

employment action because of his religion. Id at 1437 (citing 42 U.S.C. § 2000e-2(a)(l)). 

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Case 3:14-cv-01649-PK Document 56 Filed 11/22/16 Page 20 of 21
Here, undisputed evidence shows that Plaintiff was disciplined and ultimately 

terminated because of his continued unprofessional conduct. Plaintiff has not shown that he 

was te1minated because of his religion. Benson administrators reprimanded Plaintiff for his 

demeaning teaching style in 2006, before Plaintiffs 2007 protest of a Planned Parenthood 

facility. Plaintiff has not shown that Carbone or Campbell were aware of his opposition to 

Planned Parenthood before the TOP presenters anived at Benson in September 2012. 

I also conclude that Plaintiff not shown facts suppo1iing his claim that the School 

District failed to accommodate his religion. There is no indication that Plaintiff ever 

requested accommodation, even though he was represented by counsel at several meetings 

with Defendants. Even if Plaintiff had requested an accommodation, he has not presented 

evidence that any religious observance or practice conflicted with his official duty as a teacher 

to allow the TOP presenters in his tutorial class. Plaintiffs personal antipathy towards 

Planned Parenthood and its employees is not sufficient to show the need for a religious 

accommodation. 

CONCLUSION 

Defendants' Motion for Summaiy Judgment, ECF No. 34, is GRANTED. 

IT IS SO ORDERED. 

DATED this 2.Zt..J...day ofN ember, 2 

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