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Principal may have to pay nearly $40,000 in court costs

by Merrie Leininger, Staff Writer

Douglas County School District may be compensated for what was termed a “meritless” lawsuit filed by Scarselli Elementary School Co-Principal Kirk Cunningham.

“It is the court’s belief that plaintiff’s claims were meritless and without foundation, and thus this is an exceptional case warranting attorneys’ fees to the prevailing defendants,” says the document signed Wednesday by a United States magistrate judge.

According to the school districtattorney Bob Cox, the document was a recommendation by the magistrate to the judge, who will make the decision if Cunningham will have to pay the district’s attorney fees for a lawsuit he filed.

“It may be submitted to a district judge for an ultimate decision. At this point, we are going to sit back and give the court an opportunity to review it,” Cox said. “And certainly, Mr. Cunningham has an opportunity to ask the judge to review it and to appeal the decision.”

Superintendent Pendery Clark said she was hesitant to comment until a final decision is made.

The case, filed in March 1999, asked that the court find that Cunningham’s due process rights were denied and the school district caused emotional distress by transferring him principal of Jacks Valley Elementary School to principal on special assignment at Gardnerville Elementary School. The suit also claimed the move was a demotion and interfered with his contract.

At the time, Cunningham, had 22 years with the district and 15 years at JVES.

On Feb. 3, 2000, the court ruled that the district “had a legitimate reason to transfer plaintiff.” The judge also found the district did not cause emotional distress nor was his transfer a demotion. Cunningham was transferred because he used 70 days of accrued sick leave during the 1997-98 school year.

The school district filed a motion asking for attorney’s fees of $46,996. On Wednesday, the magistrate recommended part of the fee request was reasonable and ordered Cunningham pay the school district $37,596.80.

According to the court document, the district paid Robert Cox for 43.55 hours at $225 an hour for a total of $9,798.75. They paid Michael Nivinskus for 224.5 hours at $155 an hour for a total of $35,417.50. The district also asked for $1,779.75 in costs for a total of $46,996.

The judge said he believes that 272.05 hours spent preparing a motion for summary judgment and reply, a motion for attorney’s fees and attendance at a couple of hearings was excessive. The court reduced the figure by 20 percent and awarded $37,596.80.

Cunningham said Thursday that the fact he may have to pay all that money hasn’t sunk in yet, but he’s determined to continue to fight.

“I have to figure out what I’m going to do next. I’m not sure how I’m going to tackle this bull, but I definitely have to grab it by both horns,” Cunningham said. “I’m not going to go down to the district office and write a check.”

Cunningham said he doesn’t regret what he did, just the way he went about it.

“This was round one. I got knocked down. But I am going to be looking at other lawsuits against this district. I haven’t even explored the possibility of suing for violating the American Disabilities Act. I’ll be back,” Cunningham warned.

He said he hopes this ruling doesn’t discourage Douglas High School Randy Green or anyone else who wants to challenge the school district. Green is facing a lawsuit from the district, which is seeking a ruling on the legality of a teacher sitting as a school board member.

“I really hope anybody else who feels they have a justifiable grievance will do the right thing,” Cunningham said. “The fine is insignificant compared against people giving up their rights.”

Cunningham said he should have asked the teachers’ association to join forces with him.

“First of all, I hope this gives a signal to all teachers in the district to join their teachers’ association, because if I can get sued and have to pay $37,000, that can just as easily happen to them,” Cunningham said. “I should have gone with the teachers’ association. What the district can do is they have unlimited funds. They beat me at the bank. I didn’t really have the money to fight this the way it should have been fought.”

In the motion seeking attorney’s fees filed March 24 by the district, the district said it would be willing to work with Cunningham on a payment plan.

“If the court enters a judgment awarding the district attorneys’ fees and costs incurred, then the district hereby expresses its willingness to allow Cunningham to pay off the judgment with a reasonable payment plan, so long as adequate security is furnished,” the motion reads. “It is certainly not the district’s intention to subject Cunningham to financial difficulties. However, Cunningham brought and pursued a frivolous complaint, which caused the district to incur significant attorney’s fees and costs in defense of this complain.”