A federal judge in Medford, Ore., ruled that a school bus driver does not have the right to sue for wrongful termination after he refused to remove a Confederate flag from his personal truck.
Ken Webber, who had been a school bus driver for First Student Bus Transportation Services since 2007, sued the Jackson County School District and two individuals, District 4 Superintendent Ben Bergreen and First Student Manager Jonel Todd, and alleged that he was targeted and discriminated against for exercising his First Amendment rights.
In July 2009, Bergreen spotted the 5-foot-by-3-foot Confederate flag displaying the word “Redneck” from an antenna on Webber’s Dodge Dakota pickup truck, which was parked in the employee lot. Todd asked Webber to take down the flag, saying that it violated company policy. According to court documents, Webber refused to comply on three occasions and was suspended twice before being fired for insubordination.
Webber alleged in his lawsuit that Bergreen and a First Student representative then made public statements that the demands for the removal of his flag were made pursuant to a district policy “that prohibits expression that may be offensive, tend to alarm or annoy certain individuals or groups.”
U.S. Magistrate Judge Mark Clarke disagreed with Webber’s claim in a July 12 report and recommendation to dismiss.
“Although Plaintiff claims that Defendants’ policy burdens a fundamental right, he has failed to offer any evidence that it is a ‘class-based denial of a particular right,’ and so does not implicate equal protection,” Clarke wrote.
The court also rejected the plaintiff’s state tort claims, which Webber brought directly under the Oregon Constitution.
“Such suits are barred by Oregon’s sovereign immunity,” added Clarke.
However, the judge granted Webber leave to amend, as he may be able to pursue his Constitution claims under the Oregon Tort Claims Act.
