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Wallace v. Desoto County School District

United States District Court, N.D. Mississippi, Oxford Division

March 21, 2018

MATTHEW P. WALLACE PLAINTIFF
v.
DESOTO COUNTY SCHOOL DISTRICT, and DAN TURNAGE DEFENDANTS

          ORDER

          MICHAEL P. MILLS JUDGE

         This cause comes before the court on the motion of defendant Desoto County School District, pursuant to Fed.R.Civ.P. 56, for summary judgment. Plaintiff Matthew Wallace has responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that the motion should be granted in part and denied in part.

         This is, inter alia, a wrongful termination case arising out of Wallace's August 2016 firing as head football coach, athletic director and school teacher at Desoto Central High School. In removing plaintiff from his teaching responsibilities on August 15, the school district cited “immoral conduct” on his part, which evidently referred to the fact that a photograph depicting him in a state of nudity had appeared on the Ashley Madison dating website. Shortly before his termination, plaintiff had filed a complaint of sexual harassment with the school district against his ex-wife Tanya Keck, likewise a school district employee, alleging that she had conspired with her friend and co-worker Dan Turnage to post the nude photo of him on Wallace's Ashley Madison account in order to harass him and damage his career.

         For its part, the school district concluded that the mere fact that the nude photo of plaintiff had appeared on a dating website associated with adultery justified his termination, regardless of how it came to be there. Shortly after his firing, plaintiff filed a charge of discrimination with the EEOC, and he later filed the instant action in this court, alleging, inter alia, that he was fired based on sex discrimination and in retaliation for opposing sexual harassment by his ex-wife. The school district has now filed a motion for summary judgment, arguing that it has no potential liability for any of plaintiff's claims and that it is entitled to judgment as a matter of law.

         DISCUSSION

         Before discussing the various federal and state claims asserted by plaintiff, this court will first make some observations regarding the facts of this case, since they are relevant to many of the claims discussed below. As noted previously, this is a case in which Wallace, then the head football coach at Desoto Central High School, was fired soon after it became publicly known that photos depicting him in a state of full frontal nudity had appeared on his Ashley Madison account. Ashley Madison is a dating website whose motto is “life is short, have an affair, ” and plaintiff concedes that he voluntarily signed up for that site during the last year of his marriage to Tanya Keck, in 2015. Plaintiff also concedes that he actually had an affair with Samantha Rivera, who, like plaintiff and Keck, was a Desoto County School District employee. It seems clear that this affair with Rivera was a prime factor in the failure of plaintiff's marriage, and it appears that Keck harbored considerable animus towards both plaintiff and Rivera as a result.

         The fact that a high school football coach was terminated under the above circumstances would not, to say the least, ordinarily give rise to a valid federal lawsuit. Indeed, this court believes that a jury may well have considerable sympathy for the school district's position that it would rather not have a head football coach who was publicly associated with nude photographs on his Ashley Madison account (regardless of how they came to be there), and it may well look with skepticism upon plaintiff's claims that such factors as sex and retaliation were the real reasons for his firing.

         At this stage of the proceedings, however, this court is required to view the facts in the light most favorable to plaintiff, as the non-moving party, and he is able to point to a number of potentially favorable facts in this case. Perhaps more importantly, plaintiff is able to point to a number of questionable decisions made by the school district in handling his termination, which serve to greatly assist him in establishing his federal claims. The first of the arguable errors made by the school district is that it granted plaintiff no public hearing, which he requested, in which he could have given his side of the story and sought to keep his job. While it is unclear whether such a hearing would have saved plaintiff's job, it seems highly likely that it would have at least mitigated the very considerable damage which he suffered to his reputation.

         If plaintiff had been granted such a public hearing, then he almost certainly would have presented proof that he did not post the nude photo of himself on his Ashley Madison account, as at least some press accounts (discussed below) indicated was the case. In his summary judgment brief, plaintiff has presented very substantial, bordering on overwhelming, proof that the nude photograph of him was posted by either his ex-wife Keck, her friend (and fellow Desoto County school district employee) Don Turnage, [1] or both of them working together. Indeed, Keck conceded in her deposition that she took the nude photo of Wallace during their marriage, and she likewise conceded that she knew the password to his Ashley Madison account. She nevertheless denied having posted the photo herself, and she expressed her opinion that Turnage had done so, after obtaining the password from her cell phone.

         A jury may well look with suspicion upon Keck's claims of innocence in this regard, since, as noted in plaintiff's brief:

However, in discovery, Keck provided a text message that showed that Keck provided Turnage the name of Wallace's Ashley Madison account, and his password. When asked whether she had sent the text message to Turnage, Keck responded, “Not that I recall.” In a later text message from Turnage to Keck it says “That sign in and password that u had. Are u not worried that they can trace that? I know I did it one time. Wouldn't look good huh.”

[Plaintiff's brief at 7]. Keck was initially named as a defendant in this case, but she has since settled the claims against her, and Turnage and the school district are the sole remaining defendants.[2] There is a great deal of other proof in the record, discussed in plaintiff's brief, that Turnage and/or Keck posted the photo in question, and it seems quite likely that plaintiff could have reduced the damage to his reputation if he had been given an opportunity to present that proof at a hearing.

         To be sure, plaintiff admits that he did sign up for the Ashley Madison account himself, but he emphasizes that this fact became publicly known in August 2015, when the worldwide release of the site's database by “hackers” took place. Plaintiff notes that his career (and that of a co-worker similarly implicated) had weathered the storm of the release of the site's database, and a jury may well find that it was the posting of his nude photo on the website in August of 2016 which led to his termination. A jury might reasonably also find that plaintiff was the victim, rather than the instigator, of this posting, and that he did nothing more than allow his then-wife Keck to take a nude photograph of him while they were married.

         It seems clear that this might have greatly mitigated the damage to plaintiff's reputation, and a jury might potentially find that it would have saved his job. Indeed, in his deposition, the school district's superintendent Corey Uselton testified that he received pressure from Mississippi state senator Jeff Hale to fire plaintiff after the nude photo became public. Specifically, Uselton testified that:

[Hale] called me wanting to know what we were going to do about the football coach at Desoto Central High School. He said constituents were calling him, wanting him to -- you know, wanting to know what was going to be done because he didn't need to continue to be working there.

[Uselton depo. at 55]. In his deposition, however, plaintiff testified that he personally spoke with Senator Hale and that, after making clear that he was not the one who posted the photo online, Hale no longer wanted him fired. Hale is listed as a “may call” witness by plaintiff in the pretrial order, and it strikes this court that, if he supports plaintiff's version of events at trial, then his testimony may well help establish that a hearing would likely have saved his job.

         That brings this court to what is arguably another unforced error by the school district in this case, which relates to the manner in which it handled a very similar situation involving the release of another nude photo of a female employee around this same time. It appears that this was no coincidence, since that co-worker was none other than plaintiff's girlfriend Rivera, who testified that Turnage and/or Keck had unlawfully obtained and disseminated a “partially” nude photograph of her backside which she had sent to plaintiff and which he kept on his smartphone.

         Significantly, Turnage admitted to the school district that he e-mailed the photo of Rivera to co-workers around the same time as the photo of plaintiff was released, and Rivera, like plaintiff, complained to the school district about the “sexual harassment” which she suffered at the hands of Turnage.

         Thus, the school district was presented with two very similar reports of sexual harassment involving a male and a female employee, but it could not have handled them more differently. Indeed, plaintiff notes that not only was Rivera not fired, but the school district took her complaint against Turnage seriously, found it meritorious, and ordered him to stay away from her. This contrasts very sharply with the district's decision to fire plaintiff without a public hearing. As discussed below, this disparity greatly assists plaintiff in arguing that his sex was at least a motivating factor in his termination and/or that he was terminated for “opposing” acts of sexual harassment by his co-workers Turnage and Keck.

         In its defense, the school district emphasizes that Turnage admitted emailing the photo of Rivera to co-workers but that he denied having posted the photograph of plaintiff on his Ashley Madison account. Defendant thus maintains that it investigated both incidents, but a jury may find that, in this context “investigated” simply means asking Turnage and Keck whether they were guilty and accepting their answer at face value. It strikes this court that Turnage had greater plausible deniability with regard to having posted the photograph of plaintiff, since there was a stronger electronic trail connecting him to the photo of Rivera. Regardless, even Keck conceded in her deposition that she did not believe that Wallace had posted the photograph of himself on his Ashley Madison account, and she expressed her view that whoever did so wanted plaintiff to be fired:

Q: Would it be safe to say whoever uploaded this photo and distributed it wished for Matthew Wallace to be fired from his position?
Keck: That would be a safe assumption.

[Keck deposition at 19].

         It seems likely to this court that, if the school district had done a more thorough investigation into these matters, then it could have easily discerned a strong likelihood that Turnage and/or Keck were involved in releasing both photographs. Indeed, even without damaging direct evidence such as the above-quoted text exchange between Keck and Turnage, it would have been an extraordinary coincidence indeed if Turnage had been involved in spreading a photo of Rivera which, she testified, could only have been found by accessing Wallace's personal electronic files, and yet had nothing to do with the nearly simultaneous release of the nude photo of plaintiff. There would certainly appear to have been a motivation for Turnage to release the photo of Wallace, since there is very considerable evidence, discussed in plaintiff's brief, of a history of personal animus on the part of Turnage towards plaintiff.

         Of course, the school district maintains that it simply did not want a head football coach who was publicly known to have had nude photographs of himself posted on his Ashley Madison account, regardless of how they came to be there. Once again, this court does not regard this as being an unreasonable position on its face, and it may well carry the day at trial. At the same time, when the school district insists that it conducted an investigation of both Rivera and Wallace's complaints of sexual harassment, and yet that “investigation” appears to have been so perfunctory as to Wallace, then it becomes more difficult for it to argue that there are no jury issues regarding whether plaintiff's sex was at least a motivating factor in his termination. This impression that the school district did not want to hear what plaintiff had to say in his defense is strengthened by its refusal to give him the hearing which it initially promised him in his termination letter. Considered in this light, a jury might conceivably view the school district as an enabler and facilitator of the actions of its employee(s) Turnage and/or Keck in violating the privacy rights of another employee in order to have him fired.

         In the court's view, another factor militating against the school district's motion for summary judgment is the fact that, while it argues that it terminated plaintiff for misconduct going back years, it had offered him a conditional offer of re-employment in March 2016, which was only months before he was fired. This offer was conditional upon plaintiff renewing his teaching certificate, but it was made after the worldwide release of the Ashley Madison database the previous August. Indeed, Desoto County Principal Cliff Johnston admitted in his deposition that “everyone” at the school had known that Wallace's Ashley Madison account was among those exposed by hackers, but that he nevertheless fully intended to re-hire him as teacher:

Q: Alright, you said he also admitted to being on the Ashley Madison website.
You knew that a year before, didn't you?
Johnston: Uh huh, but I had never asked him about it. * * *
Q: In fact, everybody knew that he was on the Ashley - Johnston: Uh-huh. (Affirmative response). * * *
Q: So you had every intention of him being a school teacher for you the next school year. Is that correct?
Johnston: That's correct.

[Johnston depo. at 27].

         Clearly, plaintiff will be able to use this testimony to argue that, whatever his moral failings in signing up for an Ashley Madison account while he was married, the school district did not regard it as involving sufficiently “immoral conduct” to justify his termination or even non-renewal as teacher. Indeed, Johnston testified, as quoted above, that he never even asked plaintiff about the incident. Moreover, Johnston confirmed in his deposition that the release of the nude photograph of plaintiff was the only “new” ...


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