Case 4:17-cv-00002-DTF Document 3 Filed 01/04/17 Page 1 of 11

1 Michael Garth Moore (023742)
9040 North Placita Verde
2 Tucson, Arizona 85704
3 Telephone: 888-318-0075
mike@mgmoorelaw.com
4
5 Trial Counsel for Plaintiff

6 IN THE UNITED STATES DISTRICT COURT
7 DISTRICT OF ARIZONA

8 Andre Perrault, :
9
Plaintiff : Civil Action No. 4:17-cv-0002
10
-vs- : Magistrate Judge D Thomas Ferraro
11
12 Board of Governors :
Marana Unified School District, et. al,
13 :
14 Defendants
15 FIRST AMENDED COMPLAINT
16
I. INTRODUCTION, PARTIES, JURISDICTION
17
18 1. On April 18, 2016, Plaintiff Andre Perrault entered into a “Certified

19 Employee Contract” with the Defendant Board of Governors, Marana Unified School
20
District [hereafter, “the Board”]. A copy of that agreement is appended hereto as Exhibit
21
A. Plaintiff was employed as a teacher of foreign language at Marana High School;
22
23 2. On December 8, 2016, Defendant Board voted to non-renew Plaintiff’s
24
contract, ending his employment with the District;
25
3. At all times pertinent hereto, Defendants Lewandowski, Carlson, Hopkins,
26
27 Lopez and Post were members of the Board [hereafter “the Board Defendants”], who
28 were authorized to make employment decisions and did, in the instant case, took the
Case 4:17-cv-00002-DTF Document 3 Filed 01/04/17 Page 2 of 11

1 actions and made the decisions at issue. The actions were taken in reckless disregard of

2 Plaintiff’s rights under federal law. The Defendants are sued in their collective capacity
3
as the Board and also in their individual capacities;
4
5 4. At all times pertinent here, Defendants Wilson, Dumler and Mandel were

6 employees of the Board acting in capacities of administrators, and their actions taken
7
were done within the scope and course of employment with the Board. The actions were
8
taken in reckless disregard of Plaintiff’s rights under federal law. These Defendants are
9
10 sued in their individual capacities;
11 5. The Court has jurisdiction of this case under federal question jurisdiction,
12
§28 U.S.C. §1331;
13
14 6. Venue is proper in this Court pursuant to 28 U.S.C. §1391;

15 7. The claims asserted by Plaintiff are brought to vindicate rights guaranteed
16
Plaintiff under 42 U.S.C. §1983;
17
18 II. FACTS

19 8. Plaintiff realleged Paragraphs 1 through 7 as if fully set forth herein;
20
9. Plaintiff was first employed by the Board in the 2015-16 school year;
21
10. Plaintiff received evaluations during his first teaching year which all were
22
23 either “proficient” or “distinguished” in all categories;
24 11. In September, 2016, certain information came to the attention of Defendants
25
Wilson, Dumler and Mandel regarding anonymous and unfounded accusations against
26
27 Plaintiff;

28

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1 12. In meetings on September 1st, 12th and 19th, Plaintiff was questioned by

2 Dumler and/or Mandel, and, in one meeting, Officer Litten of the Marana Police
3
Department. Plaintiff denied any improper conduct. At the conclusion of the meeting on
4
5 September 12th, Mandel issued Plaintiff a “non-disciplinary” suspension;

6 13. During September and October, Defendant Wilson was in communication
7
with Lewandowski and/or other of the Board Defendants concerning the allegations and
8
Plaintiff’s responses;
9
10 14. Before the Defendants called Plaintiff into the meeting of September 19,
11 2016, the decision had already been made that Plaintiff would be terminated by the
12
District;
13
14 15. In the meeting, Dumler and Mandel questioned Plaintiff at length regarding

15 his previous statements, and repeatedly pointed out alleged “inconsistencies” between his
16
statements in that meeting and the earlier encounters;
17
18 16. At the conclusion of the meeting, Dumler informed Plaintiff of the decision

19 that had previously been made, and demanded that he execute a resignation rather than
20
contest the decision to terminate him;
21
17. Plaintiff declined the inducement to resign and left the meeting;
22
23 18. On or about October 12, 2016, Defendants Wilson, Dumler and Mandel,
24 with the approval of the Board Defendants, prepared a document titled “Statement of
25
Charges.” The substance of accusations levelled at Plaintiff was that “[d]uring most or all
26
27 of the period of time Mr. Perrault has been employed by the District, he has knowingly or

28 recklessly engaged in a pattern of conduct with females who are in high school and/or

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1 under 18 years of age that has included … engaging in … activities of … sexual nature.”

2 Defendants further accused Plaintiff of misconduct in his alleged concealing from
3
the District that he was the victim of extortion.
4
5 Finally, Defendants accused Plaintiff of lying when responding to questions put to

6 him by Dumler, Mandel and/or Litten;
7
19. The “Statement of Charges” included allegations by a woman [designated by
8
Defendants Wilson and Dumler as “Female 1”], made over a year before, that Plaintiff had
9
10 “engaged in sexual intercourse” with her. Defendants charged Plaintiff as having had a
11 sexual relationship with this unidentified female, and reported the female as being a minor.
12
Appended to the Statement of Charges was a heavily redacted “Case Summary Report” of
13
14 the Tucson Police Department;

15 20. Defendants had secured this document after September 19, 2016, but had
16
never notified Plaintiff that they had the document, nor had they questioned Plaintiff about
17
18 the accusations;

19 21. Although Defendants heavily redacted certain information in the documents,
20
they specifically identified redacted portions as references to “sexual contact” Plaintiff
21
allegedly had with the alleged female author of an anonymous letter, and did not redact
22
23 specific references to sexual intercourse in other documents. Hence, the redactions did
24 nothing to eliminate the prominent accusations of sexual intercourse with minors;
25
22. The accusations regarding “a pattern of conduct” with minor females
26
27 accused Plaintiff of a felony, “Sexual Conduct with a Minor,” A.R.S. §13-1405;

28 23. Defendants knew that the accusations against Plaintiff in all particulars were

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1 substantially false, but, fearing reaction by some parents in the District if the anonymous

2 accusations were disseminated, chose to move forward with termination proceedings;
3
24. Defendants delivered the documents to Plaintiff with the intent to intimidate
4
5 him into resigning;

6 25. Plaintiff, again, declined to resign;
7
26. Before November 2, 2016, the Defendants set a Board meeting agenda, in
8
which they set for consideration the accusations made in the Statement of Charges;
9
10 27. On November 2, 2016, the Board Defendants, after hearing presentations by
11 Wilson, took two actions: (1) they voted to issue to Plaintiff an intention to immediately
12
terminate Plaintiff’s contract based on the accusations; (2) the voted to non-renew
13
14 Plaintiff’s contract based on the same accusations;

15 28. Defendants knew, at the time they formulated and considered the Statement
16
of Charges, that they were precluded by law from basing any discipline of Plaintiff on
17
18 accusations of criminal acts which are unadjudicated and not admitted, pursuant to Johnson

19 v. Board of Education, 101 Ariz. 268, 270-71 (1966) and Winters v. Arizona Board of
20
Education, 207 Ariz. 173, 178 (Ariz. App. 2004);
21
29. On or about November 14, 2016, pursuant to his rights under A.R.S. §13-
22
23 539, Plaintiff served on the Board a demand for a hearing, and a related motion, pursuant to
24 A.R.S. §13-541, requesting the Board appoint a hearing officer to conduct the hearing on
25
the charges against Plaintiff. A copy of Plaintiff’s Motion for Appointment of Hearing
26
27 Officer is appended hereto as Exhibit B;

28 30. In the Motion, Plaintiff asserted that the Board Defendants had pre-judged

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1 the matter, and that the Board’s participation in any hearing would constitute a denial of

2 Plaintiff’s right to an unbiased decision, hence, a denial of due process;
3
31. Following receipt of the Request for Hearing and Motion, the Board
4
5 Defendants and Defendant Wilson conferred, and concluded that the administration would

6 be unable to establish just cause for termination of Plaintiff’s contract if a hearing was held;
7
32. Defendants thereupon determined to rescind the notice of intent to terminate
8
in order to deny Plaintiff’s opportunity to clear his name through a hearing;
9
10 33. Defendants further determined to issue a second notice of non-renewal,
11 based upon the allegations of Plaintiff’s concealment and lies;
12
34. Defendants then published the alleged, but false, ground for a denial of the
13
14 statutory-mandated hearing that “the economics of proceeding with a dismissal hearing”

15 did not warrant Plaintiff receiving due process, leaving in the record the documents which
16
led to the Board’s previous vote to proceed to terminate Plaintiff on the false charges;
17
18 35. Defendants set a second meeting of the Board for December 8, 2016, to

19 formally adopt the decisions already made. On or around December 8, Defendants received
20
request from a reporter employed by the Arizona Daily Star seeking documents related to
21
the termination and non-renewal proceedings;
22
23 36. On December 8, Defendants Wilson and Dumler met with the Board, and
24 Defendants formally voted to rescind the intent to terminate, and voted to re-issue the non-
25
renewal notice;
26
27 37. On the same date, Defendants provided to the media the documents

28 addressed above, including those generated for the second Board meeting on December 8th;

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1 38. On December 9, 2016, articles were published in the Arizona Daily Star and

2 Tucson.com, in which, among other falsehoods, the charge statement set out in Paragraph
3
18, above, was quoted, thus publicizing Defendants’ claims that Plaintiff had engaged in a
4
5 pattern of felony sexual contact with minor females;

6 39. As a result, the Defendants’ charges have been published world-wide on the
7
internet;
8
40. On December 9, 2016, Defendant Wilson issued the notice of non-renewal;
9
10 III. FIRST CLAIM: VIOLATION OF PLAINTIFF’S LIBERTY INTEREST
11 41. Plaintiff realleges Paragraphs 1 through 40 as if fully set forth herein;
12
42. This claim is brought pursuant to the Fifth, First and Fourteenth
13
14 Amendments to the Constitution of the United States;

15 43. Defendants’ actions, as set forth above, have violated Plaintiff’s liberty
16
interest in that they have (1) precluded him from obtaining employment as a teacher;
17
18 and/or (2) have stigmatized Plaintiff by painting him as a degenerate pedophile, who, in

19 addition, lies and conceals information on matters of the most profound importance;
20
44. As a direct and proximate result, Plaintiff has suffered extreme emotional
21
distress, humiliation, loss of self-esteem; has lost income and will continue to lose income
22
23 in the future; has suffered permanent loss of earning capacity, and will continue suffer
24 injuries and losses in the future;
25
IV. SECOND CLAIM: FIRST AMENDMENT RETALIAITION
26
27 45. Plaintiff realleges Paragraphs 1 through 44 as if fully set forth herein;

28 46. This claim is brought pursuant to the First and Fourteenth Amendments to

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1 the Constitution of the United States;

2 47. Plaintiff’s actions in requesting a name-clearing hearing in light of the false
3
accusations, and his moving for the appointment of an independent hearing officer in light
4
5 of the concerns that the Board Defendants had prejudged Plaintiff’s guilt constituted a

6 citizen’s petition for redress of grievances and implicated matters of public concern
7
including, among others, questions of mismanagement by, and corruption of, public
8
officials;
9
10 48. Defendants retaliated against Plaintiff for his petition by, among other
11 actions, (1) rescinding the notice of intent to terminate, thus denying Plaintiff the
12
opportunity to clear his name; (2), issuing a non-renewal notification based on false
13
14 charges; (3) not redacting from the public file the charge of a “a pattern” of felony sexual

15 contact which they knew was unsupportable; and, (4) publicizing false charges that
16
Plaintiff engaged in a pattern of felony sexual contact with minors;
17
18 49. As a direct and proximate result, Plaintiff has suffered extreme emotional

19 distress, humiliation, loss of self-esteem; has lost income and will continue to lose income
20
in the future; has suffered permanent loss of earning capacity, and will continue suffer
21
injuries and losses in the future;
22
23 V. THIRD CLAIM: CLAIM AGAINST DEFENDANTS WILSON, DUMLER AND
MANDEL: FABRICATION OF EVIDENCE
24
25 50. Plaintiff realleges Paragraphs 1 through 49 as if fully set forth herein;
26 51. This claim is brought under the Fifth and Fourteenth Amendments to the
27
Constitution of the United States;
28

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1 52. Plaintiff enjoyed a property interest in his teaching contract, and his liberty

2 interest to practice his profession, as set forth above;
3
53. Defendants engaged in surreptitious and coercive techniques in investigating
4
5 the anonymous allegations against Plaintiff, with the intent of creating false and misleading

6 evidence;
7
54. Defendants prepared and presented false and misleading evidence to the
8
Board of Governors to secure the Board’s non-renewal of Plaintiff’s contract, which the
9
10 Board confirmed and published the false and misleading evidence in order to substantiate
11 the action;
12
55. As a direct and proximate result, Plaintiff has suffered extreme emotional
13
14 distress, humiliation, loss of self-esteem; has lost income and will continue to lose income

15 in the future; has suffered permanent loss of earning capacity, and will continue suffer
16
injuries and losses in the future;
17
18 WHEREFORE, Plaintiff demands judgment of Defendants, jointly and severally, as

19 follows:
20
1. Awards of compensatory damages, including past and future income loss and
21
loss of earning capacity in such amounts as the jury deems just;
22
23 2. Awards of punitive damages against the individual Defendants in such
24 amounts as the jury deems just;
25
3. An Award of reasonable attorney fees and costs pursuant to 42 U.S.C.
26
27 §1988, for a total award of no less than five million dollars;

28 4. Interest and costs;

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1 5. An Order, pursuant to the Court’s power in equity,

2 a. Ordering that Defendants redact all documents/information the District
3
files regarding the false charges and all related materials;
4
5 b. Ordering the Defendant Board of Governors to reinstate Plaintiff to his

6 position as Certificated Educator, with full seniority, pay and benefits from the date of his
7
non-renewal;
8
c. Ordering the Board to place an agenda item on the next meeting date
9
10 after entry of Judgment, at which time the Board will vote, unanimously, to issue an
11 apology to Plaintiff for the actions of the Board and individual Defendants;
12
13 6. Such other equitable relief as the Court deems just;

14
15 Respectfully submitted,

16
/s/ Michael Garth Moore
17 Michael Garth Moore (023742)
18 9040 North Placita Verde
Tucson, Arizona 85704
19 Telephone: 888-318-0075
20 mike@mgmoorelaw.com

21 Trial Counsel for Plaintiff
22
JURY DEMAND
23
24 Plaintiff demands trial by a jury of twelve (12) persons as to all issues.

25
26 /s/ Michael Garth Moore

27
28

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