                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0406n.06

                                            No. 10-5966
                                                                                            FILED
                           UNITED STATES COURT OF APPEALS                              Apr 13, 2012
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk
JERRY LINTON,                                         )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )       ON APPEAL FROM THE
v.                                                    )       UNITED STATES DISTRICT
                                                      )       COURT FOR THE WESTERN
JOEY RIDDLE; DONNIE HUDSON,                           )       DISTRICT OF KENTUCKY
                                                      )
       Defendants-Appellees.                          )
                                                      )


       BEFORE: GIBBONS and SUTTON, Circuit Judges; DUGGAN, District Judge.*


       PER CURIAM. Jerry Linton, a Kentucky citizen, appeals the summary judgment for

defendants in an action she filed alleging violations of her civil rights and state tort claims.

       Linton filed this action in the Kentucky courts, alleging that the defendants, a principal and

assistant principal of a high school where Linton had worked as a teacher, violated her right of

association under the First Amendment and committed the state torts of assault and defamation.

Defendants removed the action to the federal district court and moved for summary judgment. The

district court granted defendants’ motion and denied Linton’s motion for reconsideration. This

appeal followed. We denied Linton’s motion to certify a question to the Kentucky Supreme Court

regarding whether Kentucky would recognize a tort of libel by pantomime.

       We review a decision granting summary judgment de novo, making all inferences in favor

of the non-moving party, to determine whether there is a genuine dispute of material fact and


       *
       The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 10-5966
Linton v. Riddle, et al.

whether the moving party was entitled to judgment as a matter of law. Johnson v. Karnes, 398 F.3d

868, 873 (6th Cir. 2005). Upon de novo review, we will affirm the summary judgment in this case

for the reasons stated by the district court.

        Linton’s complaint was based on events that occurred on May 21, 2008. On that date, she

arrived at the high school where she and her son were both employed as teachers. Defendant Riddle,

the principal, yelled that he needed to speak to Linton in his office, in front of a number of other staff

members and students. Linton assumed that Riddle wanted to speak to her about her son’s pending

discipline by Riddle. She did not get along with Riddle and did not want to meet alone with him.

Therefore, she requested a representative to accompany her to the meeting. Riddle again told her

to come into his office, but she again refused to do so without a representative. He then loudly

ordered her to leave the building, and began to walk her towards the door. Defendant Hudson, the

assistant principal, continued to escort Linton out the door after Riddle returned to his office.

        Linton alleged that denying her request for a representative at the meeting with Riddle

violated her First Amendment freedom of association. The district court found that Riddle had a

rational basis for denying Linton’s request and was therefore entitled to summary judgment on this

claim. We agree. Restraints on an employee’s association, not touching on a matter of public

concern, are subject to rational basis scrutiny. Akers v. McGinnis, 352 F.3d 1030, 1037 (6th Cir.

2003). Here, Linton’s desire not to meet alone with Riddle to discuss the discipline of her son was

not a matter of public concern, and Riddle had a rational basis for denying Linton’s request for

representation. The orderly administration of the school would be hindered if a witness were

required for every meeting by the principal with a member of staff.




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No. 10-5966
Linton v. Riddle, et al.

        The district court also found that there was no genuine dispute as to whether defendants

threatened Linton with an unwanted touching, which is necessary to establish an assault claim. See

Banks v. Fritsch, 39 S.W.3d 474, 480 (Ky. Ct. App. 2001). Linton testified in her deposition that,

if she would have stopped walking out of the school, the defendants would have run over her. She

later qualified that statement by saying that, if she had stopped very quickly, they would have run

over her, but not intentionally. In fact, she did stop on her way out of the school without the

defendants running over her. Therefore, the district court correctly concluded that there was no

threat of unwanted touching constituting an assault.

        Finally, Linton alleged that she was defamed by Riddle when he ordered her to leave the

school and had her escorted from the building, claiming that their combined words and actions

implied that she was being insubordinate. Even if Kentucky recognized the tort of “libel by

pantomime,” defendants would be entitled to a qualified privilege for statements relating to conduct

of their employees. See Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 796 & n.55 (Ky. 2004).

In the face of a qualified privilege, Linton was required to show actual malice, that is, that defendants

knew their statements were false or acted with reckless disregard for whether they were false. Id.

at 798-99. Here, Linton did not show that defendants knew any implied statement that Linton was

being insubordinate was false. In fact, it appears that they honestly believed that Linton was being

insubordinate.

        For the above reasons, the summary judgment in favor of defendants is affirmed.




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