Baker v. Benton Area School District

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STEPHANIE BAKER, No. 4:16-CV-02311

Plaintiff, (Judge Brann)

v.

BENTON AREA SCHOOL DISTRICT,

COLUMBIA MONTOUR SNYDER

UNION COUNTIES OF CENTRAL

PENNSYLVANIA SERVICE

SYSTEM, COLEEN GENOVESE,

KELLY KOCHER, and

LINDSAY RADO,

Defendants.

MEMORANDUM OPINION

OCTOBER 29, 2019

I. BACKGROUND

“A poet or other who can make nothing clear, can stir up enough sediment to

render the bottom of a basin as invisible as the deepest gulf in the Atlantic.”1

This Court, sitting about 170 miles from the Atlantic, finds the bottom of

this basin—a summary judgment ruling in full favor of Defendants—only partially

visible. Plaintiff has stirred up enough factual sediment to cloud the Court’s view

and impair a conclusive victory for Defendants.

Defendants Benton Area School District (“BASD”), Coleen Genovese,

Kelly Kocher, and Lindsay Rado (collectively with BASD, the “BASD

Defendants”) moved for summary judgment against Plaintiff Stephanie Baker.

Defendant Columbia Montour Snyder Union Counties of Central Pennsylvania

Service System (“CMSU”) also moved for summary judgment against Baker.

A. Procedural History

Baker sued Defendants on November 17, 2016.2 Her Complaint had four

claims. Count I alleges under 42 U.S.C. § 1983 that Defendants retaliated against

Baker for exercising her free speech rights, and “conspired with each other and

with others to” do so.3 Count II alleges under the Pennsylvania Whistleblower

Law4 that Defendants retaliated against Baker for being a whistleblower.5 Count

III alleges that CMSU violated Baker’s due process rights under 42 U.S.C. § 1983

by terminating her without notice or an opportunity to be heard.6 Count IV alleges

that Defendants Genovese, Kocher and Rado published defamatory and false

communications about Baker.7

2 ECF No. 1.

3 Id. at ¶¶ 54-55.

4 43 Pa.C.S. § 1421 et seq.

5 ECF No. 1 ¶¶ 61-62.

6 Id. ¶¶ 67-68.

On August 28, 2017, I decided Defendants’ motions to dismiss.8 I dismissed

Baker’s First Amendment retaliation claim (Count I) against CMSU and BASD. I

also dismissed Baker’s due process claim (Count III) and defamation claim (Count

IV) in their entirety. But I granted Baker leave to amend her Complaint.

Baker filed an Amended Complaint on October 4, 2017.9 The BASD

Defendants and CMSU each moved for summary judgment on July 8, 2019.10

Each of these motions are now ripe for disposition. For the reasons that follow,

each of these motions is GRANTED IN PART AND DENIED IN PART.

II. DISCUSSION

A. Standard of Review

I begin my analysis with the standard of review which undergirds summary

judgment. “One of the principal purposes of the summary judgment rule is to

isolate and dispose of factually unsupported claims or defenses, and we think it

should be interpreted in a way that allows it to accomplish this purpose.”11

Summary judgment is appropriate where “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.”12 “Facts that could alter the outcome are ‘material facts,’ and

8 See ECF Nos. 26 and 27.

9 See ECF No. 30.

10 See ECF Nos. 52 and 53.

11 Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

disputes are ‘genuine’ if evidence exists from which a rational person could

conclude that the position of the person with the burden of proof on the disputed

issue is correct.”13 “A defendant meets this standard when there is an absence of

evidence that rationally supports the plaintiff’s case.”14 “A plaintiff, on the other

hand, must point to admissible evidence that would be sufficient to show all

elements of a prima facie case under applicable substantive law.”15 When deciding

whether to grant summary judgment, a court should draw all reasonable inferences

in favor of the non-moving party.16

“The inquiry involved in a ruling on a motion for summary judgment or for

a directed verdict necessarily implicates the substantive evidentiary standard of

proof that would apply at the trial on the merits.”17 Thus, “if the defendant in a

run-of-the-mill civil case moves for summary judgment or for a directed verdict

based on the lack of proof of a material fact, the judge must ask himself not

whether he thinks the evidence unmistakably favors one side or the other but

whether a fair-minded jury could return a verdict for the plaintiff on the evidence

presented.”18 “The mere existence of a scintilla of evidence in support of the

13 Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) (Hutchinson, J.) (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) and Celotex, 477 U.S. at 322).

14 Clark, 9 F.3d at 326.

15 Id.

16 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation

omitted).

17 Liberty Lobby, Inc., 477 U.S. at 252.

plaintiff’s position will be insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff.”19 “The judge’s inquiry, therefore,

unavoidably asks . . . ‘whether there is [evidence] upon which a jury can properly

proceed to find a verdict for the party producing it, upon whom the onus of proof is

imposed.’”20 The evidentiary record at trial, by rule, will typically never surpass

that which was compiled during the course of discovery.

“A party seeking summary judgment always bears the initial responsibility

of informing the district court of the basis for its motion, and identifying those

portions of the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.”21 “Regardless of whether the moving

party accompanies its summary judgment motion with affidavits, the motion may,

and should, be granted so long as whatever is before the district court demonstrates

that the standard for the entry of summary judgment, as set forth in Rule 56(c), is

satisfied.”22

Where the movant properly supports his motion, the nonmoving party, to

avoid summary judgment, must answer by setting forth “genuine factual issues that

properly can be resolved only by a finder of fact because they may reasonably be

19 Id.

20 Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 447 (1871)).

21 Celotex, 477 U.S. at 323 (internal quotations omitted).

resolved in favor of either party.”23 For movants and nonmovants alike, the

assertion “that a fact cannot be or is genuinely disputed” must be supported by:

(i) ”citing to particular parts of materials in the record” that go beyond “mere

allegations”; (ii) ”showing that the materials cited do not establish the absence or

presence of a genuine dispute”; or (iii) “showing . . . that an adverse party cannot

produce admissible evidence to support the fact.”24

“When opposing summary judgment, the non-movant may not rest upon

mere allegations, but rather must ‘identify those facts of record which would

contradict the facts identified by the movant.’”25 Moreover, “if a party fails to

properly support an assertion of fact or fails to properly address another party’s

assertion of fact as required by Rule 56(c), the court may . . . consider the fact

undisputed for purposes of the motion.”26 On a motion for summary judgment,

“the court need consider only the cited materials, but it may consider other

materials in the record.”27

Finally, “at the summary judgment stage the judge’s function is not himself

to weigh the evidence and determine the truth of the matter but to determine

23 Liberty Lobby, 477 U.S. at 250.

24 Fed. R. Civ. P. 56(c)(1).

25 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (Weis,

J.).

26 Fed. R. Civ. P. 56(e)(2).

whether there is a genuine issue for trial.”28 “There is no issue for trial unless

there is sufficient evidence favoring the nonmoving party for a jury to return a

verdict for that party.”29 “If the evidence is merely colorable . . . or is not

significantly probative, summary judgment may be granted.”30

B. Undisputed Facts31

With that standard outlining the Court’s framework for review, I now turn to

the undisputed facts of this matter.

1. Baker’s Employment with Synergy and Issues with Her

Attendance

In March 2013, Synergy Systems Group, Inc. (“Synergy”) hired Baker to

work as a “Blended Counselor” with BASD.32 Baker has a degree in criminology

from Indiana University of Pennsylvania. She does not have a certification from

the Pennsylvania Department of Education.33 When Baker was working with

BASD’s middle/high school (seventh to twelfth grade), Genovese was the

principal, Kocher was the guidance counselor, and Rado was the special education

director.34

28 Liberty Lobby, 477 U.S. at 249.

29 Id.

30 Id. at 249–50 (internal citations omitted).

31 I have drawn all inferences in these facts in favor of Baker. See Standard of Review, above

at § II.A.

32 ECF No. 30 ¶ 14; ECF No. 55 Ex. 3.

33 ECF No. 55 Ex. 2 (“Baker Dep.”) 4:25-5:16.

When Baker was working at BASD under Synergy, she sometimes needed

to attend off-site meetings with Synergy’s CEO, Glenn Simington.35 Baker did not

tell Genovese about these meetings beforehand.36 Genovese would then get upset

because she didn’t know where Baker was.37 Genovese memorialized these

concerns in an email titled “Absences” of March 12, 2015, where she told Baker:

As the building principal, please make me aware of when you will and

will not be in the district (sick, personal, vacation days etc). I realize

that I am not the one who approves your days, but I need to be aware

of when you will be out. Me knowing your whereabouts is always

important, but especially at this time of year moving to graduation

when we need all hands on deck.

Baker replied that she was “sorry for not telling you personally that I was

leaving today” and would “be sure to do so in the future.”38

In November or December 2015, Kocher brought more issues with Baker’s

attendance to Genovese’s attention, relating that Baker was “coming late . . .

almost every single day” and “leaving early.”39 Genovese discussed this with

Baker, instructing Baker again to let her know when Baker would be out.40

After this discussion, Genovese heard that Baker had been saying negative

things about Genovese in the community. Some of Kocher’s family told Genovese

35 ECF No. 55 Ex. 2 (“Baker Dep.”) 9:18-20; id. 116:3-4.

36 Id. 116:8-13.

37 Id. 116:3-8.

38 ECF No. 55 Ex. 8.

39 Genovese Dep. 17:19-19:22.

that Baker was at a wine fest in October 2015. Per Kocher’s family, Baker was

intoxicated and told them how much she hated Genovese and that Genovese was a

“bitch” and a “cunt.”41 Genovese also heard that Baker had been talking to

teachers about how much she hated the school district.42

Baker would tell Rado about discipline issues that Baker saw in BASD, like

students showing bullying behaviors. Rado would tell Baker that she needed to

bring these issues up with Genovese, because they were out of Rado’s department

(special education).43 Baker would tell Rado that Baker did not agree with some of

the decisions that Genovese made on these issues.44

2. Fall 2015: The Video Incident

In fall 2015, Baker became aware of a cell phone video. A BASD twelfth-

grade boy had filmed two eighth-grade boys45 in the middle/high school’s

restroom. The twelfth-grader flipped the camera around. He and the eighth-

41 Genovese Dep. 67:17-68:16; Kocher Dep. 33:22-25, 37:21-38:9. Baker has provided a

sworn declaration attesting that this “did not happen and [she] did not make such statements

or call Genovese those words.” ECF No. 69 Ex. 69 at 2. But this is still relevant to

Genovese and Kocher’s state of mind throughout these events. The Court then will admit

evidence of Genovese and Kocher’s state of mind at this time—what they thought Baker had

been saying or doing—as a hearsay exception. See Fed. R. Evid. 803(3).

42 Kocher Dep. 39:7-12. Again, this is on its face hearsay but relevant and admissible as proof

of what Genovese thought Baker was saying. See Fed. R. Evid. 803(3).

43 ECF No. 55 Ex. 6 (“Rado Dep.”) 54:12-55:20.

44 Rado Dep. 52:10-53:22.

45 CMSU and Baker dispute the eighth-graders’ educational status. Baker testified that the

eighth-graders were special education. Baker Dep. 82:15-20. Genovese testified that one

eighth-grader was receiving learning support and the other was in regular classes. Genovese

graders were all in the same frame.46 The eighth-graders extended their middle

fingers to the camera.47 Vulgar, sexually explicit rap music was playing in the

background.48 All three students were fully-clothed and laughing.49 The twelfth-

grader later uploaded the video on Instagram.50

After the video went up on Instagram, another BASD student told Baker

about it.51 Baker watched the video. Right after watching the video, Baker

decided that Genovese needed to know about it.52 She went to Genovese’s office.

Genovese, Kocher, Rado, and a Pennsylvania state trooper were already there.

They all watched the video.53

At that point Baker was a mandated reporter.54 Baker did not believe the

video warranted a report to the authorities.55 And no one who watched the video in

Genovese’s office, including the state trooper, expressed that it would trigger a

mandated reporter’s reporting duty.

46 In common parlance, a “selfie.”

47 Baker Dep. 82:1-9.

48 Baker Dep. 82:11-14.

49 Baker Dep. 82:15-20, 82:23-83:2; Genovese Dep. 70:15-18.

50 Baker Dep. 82:11-14; Genovese Dep. 72:20-21.

51 Baker Dep. 9:24-10:11.

52 Baker Dep. 10:22-24, 11:24-12:16, 77:11-78:12.

53 Baker Dep. 11:24-12:8; Genovese Dep. 113:12-20; Kocher Dep. 85:22-86:3.

54 Baker Dep. 10:23-25; see 23 Pa. Stat. and Cons. Stat. Ann. § 6311 (listing those “required to

report suspected child abuse”).

Genovese and Kocher met with all the students in the video.56 The twelfth-

grader told Genovese and Kocher that he was “trying to be funny” in making the

video.57 Genovese gave the twelfth-grader an in-school suspension for violating

BASD’s cell phone policy.58 Genovese informed the twelfth-grader’s parent about

the incident and about the punishment she had meted out for the twelfth-grader.59

Genovese decided to not inform the eighth-graders’ parents.60

3. The Post-Video SAP Meeting

At some point after the video incident, BASD held a Student Assistance

Program (“SAP”) meeting.61 At this meeting, before Kocher arrived, Baker raised

concerns about whether the school should have notified the eighth-graders’ parents

about the video incident.62 Genovese was not in attendance.63

56 Genovese Dep. 72:3-72:19; Kocher Dep. 86:2-3; Rado Dep. 76:5-7.

57 Kocher Dep. 91:17-25.

58 Genovese Dep. 71:20-73:11; Kocher Dep. 90:25-91:2.

59 Genovese Dep. 72:20-73:11.

60 Genovese Dep. 72:20-73:6, 85:5-18; Kocher Dep. 84:10-87:11. CMSU and Baker dispute

Genovese’s motivation for not doing this. Genovese testified that she concluded that the

eighth-graders’ level of involvement “amounted to horseplay” and “the worst thing they did

[was] violate the cellphone policy and . . . [give] the middle finger to the camera.” Per

Genovese, this conclusion drove her decision not to report. Baker argues that Genovese

chose not to report because the twelfth-grader was the son of a school board member. See

Genovese Dep. 71:25-72:1.

61 SAP meetings happen on a regular basis. ECF No. 55 Ex. 7 (“Ross Dep.”) 11:19-20. They

allow BASD teachers, faculty and administration to recognize student behaviors that interfere

with academic success. Id. 8:6-10. The SAP team always includes the school’s nurse and its

guidance counselor. Id. 8:23-24. SAP team membership requires special training and

certification. Id. 10:16-19. Between 2015 and 2016, Ross, Kocher, Genovese, Baker, three

other faculty members, and two secretaries were on the SAP team. Id. 8:16-10:13.

Kocher then arrived and informed the group that a decision had been made

not to inform the eighth-graders’ parents. Baker raised her disagreement.64

Kocher acknowledged Baker’s disagreement. Kocher and Deb Ross (the school

nurse) joked as to whether Baker was going to be the one to tell Genovese that she

disagreed with Genovese’s decision.65 The conversation ended at that point.66

Kocher noted that Baker raising her concerns about the video incident in the SAP

meeting was inappropriate, because the incident was not a SAP issue but a

discipline issue.67

4. Baker’s Change in Employment from Synergy to CMSU

In January 2016, Synergy dissolved. CMSU took over Synergy’s functions.

CMSU decided to absorb Synergy’s “blended” staff (including Baker) and offer

63 See Kocher Dep. 89:14-90:21.

64 Ross Dep. 18:8-20:24. Baker admits that she did not directly tell Genovese that she

disapproved of Genovese’s treatment of the video incident. Baker Dep. 21:3-23:23. CMSU

and Baker dispute whether anyone told Genovese of Baker’s disapproval. See ECF No. 55 ¶

49; ECF No. 68 ¶ 49. Likewise, the BASD Defendants and Baker dispute whether Baker has

any basis for alleging that Genovese or Rado knew that Baker disagreed with how Genovese

handled the video incident. See ECF No. 54 ¶ 9; ECF No. 67 ¶ 9.

65 Kocher Dep. 89:14-90:21; Ross Dep. 23:18-24:5.

66 Kocher Dep. 90:21. CMSU and Baker dispute whether Genovese (either herself or working

through Kocher) gave a directive to the SAP members in attendance to not discuss the video

incident with anyone or to report it to the authorities. See ECF No. 55 ¶¶ 44-48; ECF No. 68

¶¶ 44-48.

67 Kocher Dep. 89:24-90:7. CMSU and Baker dispute whether Ross noted the same thing. See

them positions. Baker became a CMSU employee. Her title was Drug and

Alcohol Prevention Specialist.68

Baker received a probationary appointment.69 She knew going into this

position that if she showed acceptable performance for six months, she would be

promoted to regular civil service status.70 CMSU gave Baker access to its

personnel policies and staff manual via the company Intranet.71 Baker also

received this manual via email in April 2016 and reviewed it.72

Baker started her appointment with multiple introductory meetings with

CMSU personnel to review policies and procedures.73 Baker’s job duties did not

change with her move from Synergy to CMSU.74 CMSU gave her a job

description document that memorialized her duties.75 The job description indicated

that Baker’s regular work schedule would be from Monday to Friday, during

school hours. She would work a total of 37.5 hours a week. The job description

listed Baker’s exact start and end times as “varies.”76 This was because school

68 ECF No. 55 Ex. 11 (“Beach Dep.”) 15; ECF No. 55 Ex. 12.

69 ECF No. 55 Ex. 12.

70 ECF No. 55 Ex. 12.

71 Beach Dep. 16:13-23.

72 Baker Dep. 111:2-10; ECF No. 55 Exs. 19 and 20.

73 Baker Dep. 111:16-24. CMSU and Baker dispute the content and substance of these

meetings. See ECF No. 55 ¶ 57; ECF No. 68 ¶ 57.

74 Baker Dep. 84:4-7.

75 Beach Dep. 19:9-16; ECF No. 55 Ex. 21.

hours varied. And Baker would sometimes have to work a weekend or an

evening.77

CMSU required Baker to submit weekly timesheets to her supervisor.78 This

was Allison Wilson, a Prevention Supervisor with CMSU.79 Wilson reviewed

timesheets to make sure the employee had worked the recorded hours. She would

also monitor sick time and vacation time.80 Wilson explained to Baker that if

Baker intended to use sick or vacation time, Baker would need to attach an

additional form to her time sheet.81 CMSU’s written policies also required her to

seek approval for time off and notify her supervisor (Wilson) if she needed

unexpected time off.82

CMSU’s written policy on overtime stated:83

Employees whose FLSA status is Non-exempt will be compensated

by payment for all hours worked in excess of their regular workweek.

Hours worked in excess of 40 hours per week will be reimbursed at a

rate of not less than time and one-half the regular hourly rate. Except

in the case of emergencies, non-exempt staff adhere to their

established work schedule and secure their supervisor’s approval

77 Beach Dep. 21:23-22:9; ECF No. 55 Ex. 9 (“Wilson Dep.”) 71:17-72:4. CMSU testified that

its policy is to tell employees such as Baker “that they are to work school hours,” “evenings

when it’s required and weekends when it’s required.” Beach Dep. 23:11-24:7. CMSU and

Baker dispute whether CMSU followed through on this policy in Baker’s case. See ECF No.

55 ¶ 63; ECF No. 68 ¶ 63.

78 Wilson Dep. 20:13-21:1; Baker Dep. 85:9-15, 114:3-6.

79 Wilson Dep. 10:7-9, 13:17-14:11.

80 Wilson Dep. 21:21-22:12.

81 Wilson Dep. 22:18-23:15.

82 Baker Dep. 121:9-21.

whenever overtime is anticipated. . . . Compensatory time is

permissible for FLSA exempt employee on an hour-per-hour basis.

The decision for granting overtime shall be made by individual

departments of CMSU.

CMSU encouraged its employees to “flex” their time within a given pay

period. This meant employees would adjust their timesheets so that the timesheets

wouldn’t show them working over their normal hours. Then CMSU could avoid

having to pay overtime.84 Baker never told Wilson that she did not understand

CMSU’s flextime policy.85

Wilson’s supervisor was Barbara Gorrell, a Drug and Alcohol Administrator

with CMSU.86 Richard Beach was CMSU’s Administrator. This is CMSU’s

highest position.87

5. May 2016: Concerns with Baker’s Attendance

In May 2016, Baker texted Kocher and Genovese. She said she was going

to come into school, get her laptop, and then work from home for the day.88

Kocher and Genovese were not sure if CMSU’s policies allowed that.89 Genovese

84 Baker Dep. 112:24-113:10, 184:20-185:8. CMSU and Baker dispute whether CMSU clearly

explained this flextime policy to Baker. See ECF No. 55 ¶ 75, ECF No. 68 ¶ 75.

85 Wilson Dep. 168:9-11. CMSU and Baker dispute whether Ms. Wilson reviewed the flextime

policy with Baker at CMSU’s quarterly prevention meetings. See ECF No. 55 ¶ 77, ECF No.

68 ¶ 77.

86 ECF No. 55 Ex. 13 (“Gorrell Dep.”) 11:13-16, 13:2-15.

87 Beach Dep. 10:17-18, 14:19-21.

88 Kocher Dep. 34:11-13, 37:5-20.

89 Kocher Dep. 34:14-20. Gorrell testified during her deposition that CMSU’s policies did not

directed Kocher to call CMSU.90 Kocher agreed, thinking that the last time

Genovese tried to handle a perceived problem with Baker’s attendance, Genovese

afterwards heard that Baker was spreading negative comments about Genovese in

the community.91 Kocher called Wilson.92

On one day in May 2016, Baker indicated on her timesheet that she had

worked. But she was not working that day. She was out sick.93

6. May 31, 2016: The Written Warning and Meeting

Wilson issued Baker a “Written Warning” dated May 31, 2016.94 The

warning reads as follows. Baker admitted in her deposition that she did not inform

Ms. Wilson of her taking off early from work or of her late arrivals.95

This letter serves as a formal reprimand for your violation of program

policy, failure to report your absence(s) from work, inaccurately

reporting hours worked on your timesheet and tardiness.

I was informed that you were absent from working specifically on

5/23/16 and came into work approximately 1 hour late on 5/24/16.

CMSU and Baker dispute whether during this period, Baker was also showing up late to

work without following CMSU’s policy, and whether Baker was misreporting her time aside

from the May 2016 timesheet issue. See ECF No. 55 ¶ 81, ECF No. 68 ¶ 81.

90 Kocher Dep. 34:17-20.

91 Kocher Dep. 34:20-23.

92 Kocher Dep. 35:2-9. CMSU and Baker dispute the reason why Kocher called Wilson and the

central message that Kocher communicated during the call. See ECF No. 55 ¶ 83, ECF No.

68 ¶ 83.

93 Wilson Dep. 30:10-13.

94 ECF No. 55 Ex. 24.

95 CMSU and Baker dispute whether Baker documented her time correctly. See ECF No. 55 ¶

You failed to notify me of either of these absences and did not reflect

any use of sick and/or personal time used during these times.

Additionally, I was made aware of concerns that you have been

frequently tardy in the morning when arriving to working and during

the month of May have either left early from work or came in late due

to personal reasons. None of this time was reported to me or reflected

in your timesheets.

As stated in the policy and procedural manual, all staff are to seek

approval for time off and notify their immediate supervisor when

unexpected time off is needed. Staff is also expected to accurately

report hours worked on their weekly timesheets.

* *

CMSU also extended Baker’s probationary period another three months.

She became ineligible for a bonus. And she was on notice that “further incidents

of this nature are subject to disciplinary action up to and including termination of

employment.”96

On June 1, 2016, Baker met with Wilson and Gorrell. They reviewed the

warning.97 Wilson reviewed CMSU’s policies and procedures, including the

policy on time reporting and overtime.98 Around this time, Ross noted that Baker

“got excited about things and . . . got more and more irritated.”99

96 ECF No. 55 Ex. 24.

97 Baker Dep. 121:21-24.

98 Wilson Dep. 36:16-18, 166:13-18.

99 Ross Dep. 41:14-16. CMSU and Baker dispute whether, after Baker was reprimanded, Baker

reacted poorly and took her frustration out on Kocher, acting unprofessionally at a meeting

7. June 22, 2016: Baker’s Six-Month Performance Review

Baker was up for a six-month performance review at the end of June 2016.

This review happened on or around June 22, 2016. Baker met with Wilson.100

In the review, Baker scored “unsatisfactory” for “work habits.”101 She

received the following comments.102 Baker did not dispute that she failed to

inform Wilson of the events that these comments referenced.103

During this reporting period, Stephanie failed to keep her supervisor

informed of changes to her work schedule and did not inform her

immediate supervisor when taking time off. School Staff members

report that she was late and left early on several occasions.

Additionally, Stephanie did not accurately report hours worked on her

timesheet. This was addressed and Stephanie was made aware that she

must notify her immediate supervisor as soon as possible when taking

accrued time off and of any changes to her work schedule.

The review also noted in the “additional evaluation comments”:104

Stephanie is aware that she must improve her tardiness and is also

expected to accurately report hours worked on her timesheets. She

will notify her supervisor immediately of any changes to her schedule

and obtain approval from her supervisor before taking any accrued

time off.

We will be extending Stephanie’s probationary period by an

additional 3 months due to her violation of program policy, tardiness

and failure to accurately report hours.

100 See ECF No. 55 Ex. 26.

101 The BASD Defendants and Baker dispute Baker’s overall scoring. “[W]ork habits” is but

one category on the review. See ECF No. 54 ¶ 11; ECF No. 67 ¶ 11.

102 ECF No. 55 Ex. 26.

103 Baker Dep. 134:4-18.

8. Summer 2016: The Anonymous Letter

In July or August 2016, Plaintiff and two co-authors105 drafted an

anonymous letter.106 They sent the letter to BASD’s superintendent and to BASD

school board members. The letter addressed Baker’s and the co-authors’ concerns

with BASD.107

Baker and her co-authors had been discussing the letter and drafting for

several months. They met a handful of times. Baker typed the letter. But she did

not contribute to all its content.108 She didn’t contribute to sections on (a) an

alleged violation of special education law; (b) a change in morale at the

middle/high school under Genovese; and (c) complaints about the use of

paraprofessionals.109 She did contribute to six sections: (a) surveys that the BASD

superintendent had sent out; (b) the video incident; (c) the school’s “blended and

cyber academy”; (d) the school’s turnover rate; (e) the school’s anti-bullying

program; and (f) the “339 program.” The Court’s transcription of these six

sections follows.

105 See ECF No. 68 ¶ 98; ECF No. 54 ¶ 12.

106 They had been discussing the letter and drafting for several months. See Baker Dep. 27:13-

29:8.

107 ECF No. 55 Ex. 27; Baker Dep. 27:13-29:8.

108 Baker Dep. 27:13-29:20.

109 Baker Dep. 29:16-20, 31:17-21, 35:9-36:12. Baker and CMSU dispute what the letter was

designed to communicate about BASD’s work with students with IEPs. See ECF No. 55 ¶

103; ECF No. 68 ¶ 103. Likewise, the BASD Defendants and Baker dispute whether Baker

was familiar with any of the students’ IEPs that were referenced in the letter. See ECF No.

(a) Surveys110

The survey you distributed at the end of the school year sparked a

significant amount of continued conversation amongst the faculty and

staff in the Middle/High School. Many people were reluctant to

complete the survey primarily because they were to be returned to

Paula Shannon, recognizing that confidentiality and anonymity would

most definitely be breached. We’re sure it’s very telling that many

people went through inter-office mail to have you receive their

surveys. Also telling, is the lengths at which people took to remain

anonymous, for example, writing with their non-dominant hand,

scanning and copying completed surveys, and having others write

their responses for them. All of this was done out of fear of being

recognized and the retribution that would follow. The few surveys that

were given to Paula were, in fact, shared with Coleen and

subsequently they sat and read them, laughing at the concept of the

survey in general.

(b) The Video Incident

During the school year, a 30-second article revealed a situation that

occurred at the high school, of which students, parents and community

members were aware of. [S.F.], a senior, exploited two 8th grade

learning support students ([Z.G. and K.J.]) by videotaping them in

restroom facilities. The video was placed on Instagram with sexually

explicit music and vulgar comments. Coleen called Shane’s mother,

Ann [F], directly to notify her of the online video; it was immediately

taken off social media. The victims’ parents should have been notified

as well; however, Coleen specifically stated that no one was allowed

to inform them. [S]’s only punishment for this heinous act was one

day of in-school suspension. It appears that the law and school policy

110 Baker testified that she based her input on this section on: (a) “the surveys that the

superintendent sent out”; (b) “[s]everal different staff members” telling her that they “were

afraid to be honest because they knew it wouldn’t be confidential”; (c) Deb Ross telling her

that Ross “didn’t trust taking it to the guidance office, that she was going to fill it out and she

was going to send it in her office mail directly to him so that no one else saw it”; (d) “a lot of

teachers,” including Donna Wrenchler and Crystal Moller, “talking about it and they were

very nervous about filling it out.” Baker Dep. 29:21-31:11.

The numbering in this section is for the reader’s convenience. These numbers weren’t in the

original document. The Court has also made slight typographical edits, which it reflects in

would support notification of the police, Children & Youth, and an

expulsion hearing to determine the appropriate discipline. This

incident should not have been minimized as a joke! He received

preferential treatment. (Could it have something to do with Coleen

and Ann (and their husbands being seen dining together at a social

event?)

Blended and Cyber Academy111

The Blended and Cyber Academy . . . has been another

embarrassment in the community. Everyone is aware that there is no

true curriculum being taught or followed and students merely

complete “packets” of work independently. [A.H.] was a regular

education student (without an IEP) who has miraculously completed

all educational credits via the [Academy], despite excessive absences.

An educational plan was created to ensure her graduation without

academic accountability. What is the credibility of this program if

students can complete all graduation credits in such a short amount of

time? How can we justify giving these students the same diploma that

we give to the students who work hard, for years, to meet the PA state

required academic graduation requirements?

111 The record, and the parties’ interpretation of the record through their Statements of Material

Facts, generates confusion as to whether Baker contributed to this section. In her deposition,

Baker was asked for “information that you had” “concerning the blended and cyber

academy.” She replied that she had no information “[o]ther than the fact that students [were]

telling me that they had to do packets and stuff.” Baker Dep. 35:23-36:2. The Court cannot

conclude that Baker made massive contributions to this section. But, drawing all inferences

from the facts in Baker’s favor, the Court can conclude that she did contribute in some

Turnover112

Some other issues that are linked to the administration include the

turnover rate of employees. The former Special Education Director

(April Farrell) and her secretary (Shannon Yarnell) left due to the

hostile and unprofessional work environment that was created in the

office. Ironically, two friends of the office staff were hired to fulfill

these positions. It’s common knowledge that Coleen and Lindsay

Rado are best friends and former co-workers, and Tiffany Kester and

Paula Shannon are close friends. . . .

The Anti-Bullying Program113

The school district is not in compliance with the state mandated anti-

bullying program, as there is none. Several staff members were

trained to teach the Olweus anti-bullying curriculum which was

implemented in the past; however, recently it has been removed from

the middle-school students’ schedules. How do you justify eliminating

a state mandated program?

112 Baker testified that she based her input on this section on: (a) Kocher telling her “that if

[Genovese] decided she didn’t like me, I would be gone,” and sharing anecdotes to support

this; (b) Farrell telling Baker why she left; (c) comments that Genovese, Rado, Kester, and

Shannon made about their friends; (d) Hackenburg, Ullcheny and Holmes saying that “none

of them wanted to go to the elementary school, but they all were made to go”; and (e)

Hackenburg having a sexual relationship with another teacher and “everyone in the office . . .

talking about it.” Baker Dep. 36:13-40:10.

Baker testified that she did not contribute to these statements: (a) two other staff members

being “sabotaged of their positions”; (b) “Other staff members have been switched to

different buildings or moved to different positions if they were not favored by ‘the office.’”

Baker Dep. 40:24-41:6.

113 Baker testified that she based her input on this section on Kocher telling Baker in the

beginning of the 2014-2015 school year that they could not fit the anti-bullying curriculum

into the middle school schedule. Baker Dep. ¶ 41:7-15. Baker and the BASD Defendants

dispute other aspects of the letter’s critique of the anti-bullying program and Kocher’s role in

The “339 Program”114

[W]hile we are unaware of the specific guidelines required by the 339

programs, we are aware that Kelly Kocher has not complied with the

mandated requirements; the Benton school district has not attended

any of the mandated meetings for this program.

* *

Baker didn’t make anyone at CMSU aware of the letter when she was

drafting it. Nor did she complain to anyone at CMSU about the letter’s subjects of

concern.115

9. BASD’s Reactions to the Letter

On August 22, 2016, the BASD superintendent emailed Genovese and Rado

about the letter. This was the first they’d heard of it.116 They talked to the

superintendent about the letter. But he refused to show them the letter.117

Kocher learned about the letter later that fall when Genovese and Rado told

her about it.118 Kocher never saw the letter at any relevant time.119 Genovese saw

114 Baker testified that she based her input on this section on: (a) talk about the program “at

other meetings that I had been to with other counselors,” describing it as “a state mandated

program that is supposed to help career development within the schools in grades K through

12”; (b) at these meetings, the other counselors “would all mention and talk about these 339

meetings that their schools would go to and attend, and they all told me that Benton was not

at any of them.” Baker Dep. 44:4-46:4.

115 Baker Dep. 104:6-14; Wilson Dep. 202:20-203:22; Gorrell Dep. 66:13-25, 163:16-21.

116 Baker and the BASD Defendants dispute when Genovese learned that Baker authored the

letter, and whether Genovese accused Baker of being the author to Rado or Kocher. See ECF

No. 54 ¶ 17; ECF No. 67 ¶ 17.

117 Genovese Dep. 34:14-35:3, 39:2-41:22; Rado Dep. 48:24-51:3.

118 Kocher Dep. 92:8-14. CMSU and Baker dispute whether, upon learning of the letter,

Genovese, Rado, and Kocher believed that Baker drafted the letter. See ECF No. 55 ¶¶ 114-

the letter sometime in the fall of 2016.120 Rado saw the letter before Baker was

terminated.121 Rado also heard a rumor from one of the teachers that Baker wrote

the letter.122

10. Fall 2016: Comments about Baker; Baker Brings Concerns

About Student Discipline to Rado

In the beginning of the 2016-2017 school year, BASD faculty members

came to Genovese with comments about Baker.123

 Jodi Kline, the head of BASD’s math department, told Genovese that Baker

was “constantly questioning [Genovese’s] decisions,” “talk[ing] terribly

behind your back,” and “say[ing] that she doesn’t agree with anything . . .

that you’re doing as far as in the way that [Genovese] disciplined kids.”124

 Genovese’s secretary, Cathy Hartman, said she wanted to quit the SAP team

because “all [Baker] did was stir up trouble, was a horrible distraction,

talked about things that were not relevant to the SAP process . . . [and] had

this hatred for [Genovese] and that was just affecting [Baker’s] ability to do

her job.”125 Hartman memorialized her concerns in a note dated September

14, 2016.

 Chris Mitchell, the head of the science department, said that Baker kept

coming into his classroom and asking him to set up meetings with the

119 Kocher Dep. 92:17-18.

120 Genovese Dep. 48:17-25. CMSU and Baker dispute whether Genovese did not see the letter

until after Baker was terminated. See ECF No. 55 ¶ 118; ECF No. 68 ¶ 118.

121 Rado Dep. 57:1-16.

122 Rado Dep. 47:5-48:10.

123 As with the above facts about Baker’s comments at the wine fest, the Court can admit these

statements as proof of their impact on Genovese’s state of mind.

124 Genovese Dep. 27:11-28:13.

125 Genovese Dep. 28:22-29:4; ECF No. 55 Ex. 28. Baker does not dispute the content of the

testimony but argues that it was vague and that Hartman’s note was part of a scheme to

superintendent. Mitchell did not understand and thought Baker was

“jumping the chain of command.” Mitchell also wrote a memo dated

September 14, 2016 where he documented one instance of Baker asking for

a meeting with the superintendent.126 Rado’s understanding was that Baker

was trying to get Mitchell to join the superintendent’s advisory committee in

order to talk to the superintendent about the performance of

administrators.127

 Ross believed that Baker was “undermining,” “trying to generate some

animosity in some way,” “creating that havoc” and “stirring the pot.”

Examples were saying “mean girl type things” with a “middle school

mentality,” “describing [cliquey] relationships,” “taking one hour lunches

and being behind closed doors for an extended period of time,” and

“indicat[ing] that [Genovese] would make fun of the way people dressed.”128

Ross stated that it seemed to her that “that was [Baker’s] focus like even

beyond her job,” and that Baker was “with certain staff members talking all

the time,” and, though Ross didn’t “know what they were talking [about],”

“it just seemed like it was again a stirring pot mentality.”129

Kocher also heard from at least seven school personnel that Baker was

saying that “we were all cliquey,” “that we were horrible professionals,” and that

Baker “didn’t like the way that [she] handled certain students or situations.”130

Genovese heard from Kocher that at field hockey practice, Baker “told the kids

126 Genovese Dep. 29:19-30:10; ECF No. 55 Ex 29.

127 Rado Dep. 42:25-43:17.

128 Ross Dep. 39:20-42:22.

129 Ross Dep. 41:18-23.

130 Kocher Dep. 56:12-25. The BASD Defendants and Baker dispute whether Kocher thought

she could send students to Baker to receive counseling. See ECF No. 54 ¶ 20; ECF No. 67 ¶

that [Genovese did] X, Y and Z and [Genovese was] a liar and . . . a terrible

person.”131

Baker would also go to Rado with concerns about student discipline, which

was out of Rado’s domain as special education coordinator.132 This happened

multiple times.133

To try and address the above, Genovese requested that Kocher set up a

meeting with CMSU.134

11. September 12, 2016: The Meeting at CMSU

On or around September 12, 2016, Genovese, Kocher, Wilson, Beach, and

Gorrell met.135 The meeting participants did not make a formal decision to

terminate Baker at that meeting.136 The anonymous letter was not the reason for

131 Genovese Dep. 55:14-20. Baker has no knowledge of Kocher, Genovese, and/or Rado ever

saying, to each other or anyone else, that they believed Baker was a danger to them. Baker

Dep. 24:5-26:14.

132 Rado Dep. 52:13-55:20.

133 Id.

134 Genovese Dep. 31:2-32:18; Kocher Dep. 57:7-60:24. The BASD Defendants and Baker

dispute whether this was at the request of other BASD employees who asked Genovese to

“do something” about Baker’s behavior. See ECF No. 54 ¶ 24; ECF No. 67 ¶ 24.

135 See, e.g., Genovese Dep. 32:19-24. CMSU and Baker dispute whether Genovese and Kocher

wanted to hold the meeting in order to bring up CMSU terminating Baker. See ECF No. 55 ¶

132; ECF No. 68 ¶ 132, and the BASD Defendants and Baker dispute whether Genovese and

Kocher asked CMSU to terminate Baker or change her placement. See ECF No. 54 ¶ 27;

ECF No. 67 ¶ 27.

Rado testified that she did not know that the meeting was being planned until the day of.

Rado Dep. 36:8-17. The BASD Defendants and Baker dispute whether Rado knows

anything about the substance of the meeting or has discussed it with Genovese and Kocher.

See ECF No. 54 ¶ 25; ECF No. 67 ¶ 25.

the meeting.137 But the participants discussed the letter and its contents, including

the subjects to which Baker contributed.138 The participants did not discuss

distributing surveys about Baker.139

Wilson and Beach remembered that Genovese and Kocher expressed

suspicion about Baker’s involvement with the letter.140 Aside from the letter,

Kocher and Genovese showed “disappointment” and “dismay” about Baker’s

“work behavior” and “attitude.”141 They said that Baker was “difficult to work

with” and “questioned authority,” and that Baker was “taking sides” in “a situation

in Benton between the school staff and the superintendent,” “trying to get teachers

137 Genovese Dep. 130:14-20.

138 In this finding of fact, I make inferences in Baker’s favor—as I must do—from witnesses’

deposition testimony. See Kocher Dep. 151:17-152:3; Wilson Dep. 38:18-39:7; Beach Dep.

35:19-38:1, 117:14-118:4, 182:13-183:6. This finding contradicts other testimony. See

Beach Dep. 219:12-220:14; Gorrell Dep. 69:16-70:17. But the other testimony is self-

serving. And, considering the rules I must follow, I can’t take this contradiction in total

favor of Defendants. It cuts towards the parties resolving this dispute at trial. “As a general

rule, if conflicting testimony appears in the affidavits and depositions that are filed, summary

judgment may be inappropriate as the issues involved will depend on the credibility of the

witnesses.” Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE §

2726.1 (2d ed.); see also Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992)

(“[S]ummary judgment is not a procedure for resolving a swearing contest.”).

139 Genovese Dep. 58:21-59:2; Kocher Dep. 62:6-10.

140 Wilson Dep. 38:18-23; Beach Dep. 117:14-118:4. CMSU and Baker dispute the weight that

Beach placed on the letter when deciding to terminate Baker. Baker argues that parts of

Beach’s deposition testimony about the letter are untruthful, inaccurate, and self-serving. See

ECF No. 55 ¶ 137-38; ECF No. 68 ¶ 137-38. The BASD Defendants and Baker dispute

aspects of Genovese and Kocher’s conduct during the meeting, as well as Baker’s knowledge

of Genovese, Kocher, and Rado’s influence on Baker’s termination. See ECF No. 54 ¶¶ 28-

29; ECF No. 67 ¶¶ 28-29.

to align with the superintendent to go against the school administration.”142

Kocher and Genovese described that “these are all the reports we are hearing from

the teachers and we are [at] kind of a loss now as to what to do,” with Kocher

saying she was “sad” and “upset.”143 The CMSU participants heard “concerns . . .

that [Baker] had been making inappropriate comments to other staff in the district

about . . . Genovese and to community members out in the community.”144 And

Kocher stated that Baker had been unprofessional and disrespectful to Kocher in a

parent meeting after Baker had received her reprimand in May.145 Genovese and

Kocher expressed that they could not work with Baker anymore.146

12. CMSU’s Reaction to the September 12, 2016 Meeting

CMSU believed its employees had a certain role. Wilson testified that “as

an employee, it’s inappropriate to go out and bad-mouth those who you work for. I

don’t think that’s professional.” Wilson testified that it wasn’t Baker’s job “to

142 Beach Dep. 35:20-36:3, see also id. 89:4-6. Baker and the BASD Defendants dispute

Baker’s factual basis for alleging that the BASD Defendants convinced Wilson and Gorrell

to pursue Baker’s termination. See ECF No. 54 ¶ 16; ECF No. 67 ¶ 16.

143 Kocher Dep. 59:18-60:16.

144 Wilson Dep. 40:21-24.

145 Wilson Dep. 37:2-11. Baker disputes that she was unprofessional and disrespectful. See

footnote 99, above; see also ECF No. 67 ¶ 26. But Baker does not dispute that Kocher

brought this up during the September 12 meeting. Gorrell testified that if she had learned of

this conduct when it happened, she “probably would have terminated [Baker] then because it

was clearly a violation of something that we had just met with her about being respectful and

accountable to school staff.” Gorrell Dep. 60:7-22.

question what’s going on in the district.”147 Gorrell testified that “we certainly

have spoken with the school-based staff that their role is not to get involved with

personnel issues or any of the dynamics or cooperation or lack of amongst staff

within the school, that that’s not our role, that they as CMSU employees stay out of

personnel matters.”148 Per Gorrell, CMSU employees in school districts needed to

“be able to meld within those school districts and each particular climate,” not

“align themselves with different staff members or take sides,” and “abide by the

rules and step in line, stay in your own lane.”149 CMSU conveyed to Baker that if

she perceived problems with the school she was working in, she should bring

concerns to Wilson, her supervisor.150

Gorrell testified that following the September 12, 2016 meeting, “we [at

CMSU] were all astounded. We were disappointed. We felt that there was

irreparable damage perhaps between the relationship that was going on there with

school administration.”151

147 Wilson Dep. 50:4-51:19.

148 Gorrell Dep. 72:20-73:2.

149 Gorrell Dep. 73:5-19. CMSU states that “if [Baker] had any complaints about BASD, she

could have expressed those complaints directly with [Wilson].” ECF No. 55 ¶ 145.

150 Gorrell Dep. 74:13-16. Baker concedes this, but she notes that “any such complaints or

issues expressed to a CMSU supervisor would have been meaningless.” ECF No. 68 ¶ 145.

Wilson’s testimony supports this. See Wilson Dep. 222:19-22 (“I mean, she could complain

about it to me. There’s not much we can do with regard to that. That’s the school district.”)

But that does not change the undisputed fact of how CMSU instructed Baker to handle these

issues. Baker does dispute whether she made any complaints to Wilson about her treatment

by any of the employees of BASD. See ECF No. 55 ¶ 146; ECF No. 68 ¶ 146.

151 Gorrell Dep. 53:12-17. Gorrell’s testimony on this point continues with Gorrell referencing

CMSU then drafted a termination letter for Baker around September 15,

2016.152 But CMSU ultimately decided against terminating Baker on or around

September 15, 2016.153 CMSU instead extended Baker’s probationary period.154

CMSU decided to distribute a survey about Baker’s performance.155 Gorrell

prepared the survey with questions pulled from a civil service form. Wilson

reviewed the survey before it was finalized.156 At first CMSU only disseminated

surveys about Baker’s performance because it was only having issues with Baker.

But CMSU has since implemented the survey for other school-based employees

when they are up for review.157

13. September 15, 2016: Baker’s Performance Review

On September 15, 2016, Baker met with Wilson and Gorrell. The purported

reason was an employee review and evaluation.158 Baker’s performance review

18. As Baker points out, see ECF No. 68 at 147, this is disputed: “the extension of probation

was allegedly because of perceived issues about being late for work or working a day from

home.”

152 Wilson Dep. 115:1-117:22; ECF No. 55 Ex. 30.

153 See, e.g., Gorrell Dep. 53:4-59:14.

154 See, e.g., Wilson Dep. 56:9-20. Baker and CMSU dispute the purpose of extending Baker’s

probationary period—whether it was to gather additional information on Baker’s

performances and the concerns Genovese and Kocher had, or whether it was to justify the

decision to terminate Baker. See ECF No. 55 ¶ 150; ECF No. 68 ¶ 150.

155 The surveys were Wilson’s idea. Gorrell Dep. 53:12-54:8.

156 Wilson Dep. 57:6-60:17; Gorrell Dep.81:20-82:16; ECF No. 55 Ex. 31.

157 Beach Dep. 106:22-107:7; Wilson Dep. 72:19-25, 207:1-208:13.

158 ECF No. 30 at ¶ 43; ECF No. 55 Ex. 32. The BASD Defendants and Baker dispute the

stated that Baker “needs improvement” on “Communications,” noting: “Stephanie

needs to develop communication skills that include her ability to exercise

discretion and appropriate boundaries.”159 This rating related to the concerns that

Genovese and Kocher had raised about Baker’s professionalism. Wilson and

Gorrell discussed general professionalism concerns and emphasized the

importance of being professional, but they did not mention Genovese and Kocher’s

specific complaints.160

The performance review stated Baker “needs improvement” on

“Interpersonal Relations/Equal Employment Opportunity (EEO).”161 “Needs

improvement” is defined as “Often has difficulty getting along with others. Allows

personal bias to affect job relationships. . . . Requires reminders regarding needs

and sensitivities of others. . . . Inconsistently adheres to EEO diversity program

requirement.”162

Baker’s “overall rating” on the performance review was “needs

improvement.” The review noted: “As the blended outreach

coordinator/prevention specialist, maintaining professionalism and promoting a

productive and harmonious work environment is crucial. CMSU intends to conduct

159 ECF No. 55 Ex. 32 at 1. Baker disputes the accuracy of the comments, but she provides no

evidence in support besides her statement that her signature on the employee review did not

indicate her agreement. ECF No. 68 ¶ 154.

160 Gorrell Dep. 51:15-52:23; Wilson Dep. 41:25-42:4, 223:21-224:25.

161 Baker disputes the accuracy of this rating. ECF No. 68 ¶ 156.

additional evaluations including direct communications with School personnel to

insure that all aspects of Stephanie’s work are satisfactory and comply with

expectations of her role there.”163

At the meeting, Wilson and Gorrell informed Baker that CMSU would be

extending her probation another six months, and that CMSU intended to distribute

surveys about Baker’s performance to BASD.164 Baker showed concern about the

surveys. Baker said that she had disagreed with how Genovese handled “a

situation that happened at school” “involv[ing] a student and a SAP meeting”—

i.e., the video incident—and that Genovese had directed everyone in the following

SAP meeting not to contact parents.165 Baker did not say when this SAP meeting

occurred.166

Baker said that an “anonymous letter” referenced the SAP meeting issue.

She said that Genovese and Kocher were upset with Baker because they thought

she wrote the anonymous letter.167 Baker expressed her “concern for retaliation

163 ECF No. 55 Ex. 32. Baker disputes the accuracy of the “needs improvement” rating, as well

as whether Wilson or Gorrell prepared this performance review and accompanying

evaluation meeting in good faith. ECF No. 68 ¶ 158-59.

164 See, e.g., Wilson Dep. 107:3-13.

165 Wilson Dep. 107:8-108:6.

When Genovese learned that Baker had made these accusations about her, she “did not want

[Baker] to work in my school anymore.” Genovese Dep. 73:19-74:18.

166 Wilson Dep. 108:7-11.

and any negative surveys that would come from the office slash guidance office

[Genovese and Kocher].”168 Baker denied writing the letter.169

Baker claims that she never discussed the letter with anyone at CSMU

before CMSU distributed the surveys.170 Baker does not believe that she ever told

anyone at CMSU that she wrote the letter.171 Baker was not aware of any

conversations between CMSU staff and Kocher, Genovese, or Rado about the

letter prior to CMSU distributing the surveys.172

14. Reactions to the September 15, 2016 Performance Review

After the September 15, 2016 performance review, Wilson contacted Kocher

to figure out what was going on in terms of the things Baker had just told her about

the SAP meeting and purported directive not to report the video incident.173

Also, Baker attempted to contact Wilson on her cellphone “a couple, a few”

times.174 Wilson did not take Baker’s calls because it was “uncomfortable” and

168 Gorrell Dep. 64:23-65:1.

169 Gorrell Dep. 111:21-112:6.

170 Baker Dep. 103:11-104:9.

171 Baker Dep. 103:11-19.

172 Baker Dep. 104:10-14.

173 Wilson Dep. 147:19-148:5, 191:17-194:9. CMSU and Baker dispute whether Wilson

contacted Kocher because she was a mandated reporter and needed to figure out if something

improper had occurred. See ECF No. 55 ¶ 170; ECF No. 68 ¶ 170. They also dispute

whether Kocher told Wilson that the situation Baker recounted to Wilson about the directive

to report the incident did not occur. See ECF No. 55 ¶ 171; ECF No. 68 ¶ 171.

“awkward.”175 Gorrell emailed Baker “and said . . . we’ve made a decision and it’s

really not something we can negotiate at this point nor are we willing to.”176

Wilson ultimately spoke with Baker when Baker called her office. Baker

expressed that the extension of her probationary period was unfair. She also asked

Wilson to not mention the SAP meeting situation with BASD.177 Wilson asked “if

there was something going on that made [you] uncomfortable, why [you] wouldn’t

have come to me sooner with it.” Baker told Wilson “that it happened during her

employment with Synergy, that that specific incident didn’t occur while she was

employed with CMSU.”178 Baker also said that it was Kocher (not Genovese) who

had directed the personnel in the SAP meeting not to contact parents. Wilson

thought Baker “changed her story” and was “uncomfortable”; that was a “red flag”

for Wilson.179 Wilson did not inform Baker about her conversation with Kocher.180

175 Wilson Dep. 109:6-15. CMSU and Baker dispute the frequency of these calls, as well as the

purpose behind Baker making these calls, and whether Wilson, Beach and Gorrell felt these

calls were appropriate. See ECF No. 55 ¶ 173-74; ECF No. 68 ¶ 173-74.

176 Gorrell Dep. 79:17-20. CMSU and Baker dispute the purpose of this email. See ECF No. 55

¶ 175; ECF No. 68 ¶ 175.

177 Wilson Dep. 109:23-110:4.

178 Wilson Dep. 110:10-18.

179 Wilson Dep. 193:18-194:15. Baker disputes whether Baker “changed her story” to Wilson

by first (a) telling Wilson that it was Genovese who gave the directive not to report the video

incident, and then (b) telling Wilson that it was Kocher communicating Genovese’s directive

not to report. See ECF No. 55 ¶¶ 178-80; ECF No. 68 ¶¶ 178-80. But Baker provides no

relevant factual record to challenge Wilson’s testimony. Baker provides many citations to

her saying that it was Kocher who gave the directive, but no citations to her telling Wilson,

the first time, that it was Kocher who gave the directive. Thus, the Court cannot conclude

that Baker has raised a genuine dispute of fact about this.

15. September 9, 2016 and September 16, 2016: Baker’s

Timesheets

In the week ending September 9, 2016, Baker worked overtime. She could

not “flex” the additional hours off, because it was a short week (due to Labor

Day).181 Baker “was late sending this timesheet” to Wilson, so Wilson “had to call

her to find out what hours she worked this week and . . . recorded them down for

her.”182 Baker and Wilson agreed that Wilson would submit overtime for Baker

for that week.183 Wilson marked down 1.5 hours of overtime for Baker on her

timesheet.184

In the week ending September 16, 2016 (a full week of school), Baker only

logged 37 hours on her timesheet. Wilson asked Baker why she only logged 37

hours instead of 37.5. Baker replied that she “was flexing time off from the flex

time I had the week before.” Wilson “reminded [Baker that she had] put in

overtime for [Baker] for that” over the phone.185 Wilson crossed off the 0.5 hours

of “flex [time] used” that Baker had recorded on her September 16, 2016

timesheet.186

181 Wilson Dep. 17:11-18:11.

182 Wilson Dep. 179:18-180:16; ECF No. 55 Ex. 34.

183 Wilson Dep. 17:11-18:11.

184 Wilson Dep. 181:9-11; ECF No. 55 Ex. 34. BASD did not review Baker’s timesheets.

Kocher Dep. 54:9-11.

185 Wilson Dep. 18:4-18:11. Baker and CMSU dispute whether Baker “falsified her

timesheets.” See ECF No. 55 ¶ 181; ECF No. 68 ¶ 181.

186 ECF No. 55 Ex. 34. Baker and CMSU dispute whether Wilson was then “uncomfortable

Wilson or Gorrell informed Beach of the above sometime between

September 15, 2016, and September 28, 2016.187

16. September 19, 2016: The Surveys

On September 19, 2016, Gorrell emailed the surveys to Genovese and

Kocher, copying Wilson and Beach.188 Gorrell’s cover email stated that she

needed the surveys, which she called “a questionnaire/evaluation,” “in order to

complete an evaluation of Stephanie Baker’s work performance.” Kocher then

sent the surveys to the entire staff at the BASD high school.189 The opening

paragraph of the surveys specifically stated that CMSU was “requesting this

information as part of our employee evaluation process.”190

CMSU then received the completed surveys. Wilson and Beach read every

one.191 Gorrell read “[t]hose that came across my desk.”192 Nineteen were positive

and six were negative.193

flex time, and overtime, which was especially true for [Baker]; however, [Baker] continued

to misreport her time.” Baker and CMSU also dispute whether this was a “situation of

falsification.” See ECF No. 55 ¶¶ 186-87; ECF No. 68 ¶¶ 186-87.

187 Beach Dep. 99:8-99:8, 100:16-19, 162:14-163:16; 187:22-188:7, 226:3-24; Gorrell Dep.

142:17-143:8, 188:13-16.

188 Wilson Dep. 117:23-25; ECF No. 55 Ex. 35.

189 ECF No. 55 Ex. 35.

190 ECF No. 55 Ex. 38.

191 Beach Dep. 120:10-14; Gorrell Dep. 94:16-19.

192 Gorrell Dep. 93:24-25.

 Genovese wrote on her survey that:194

o “I have received complaints from faculty regarding Stephanie

trying to set private meetings with the Superintendent on his

behalf. I have received complaints from faculty and my

secretary regarding Stephanie's perceived repeated ''stirring the

pot" behavior. I have received complaints about Stephanie

complaining about how I handle discipline issues. She will state

to people that she does not agree with how it was handled and

explain how she thinks It should've been handled.”

o “Following an incident where I addressed her punctuality, it

was reported to me by several community members shortly

after I addressed her that she was bad-mouthing me publically.”

o “It was reported to me by my guidance counselor, Kelly

Kocher, that Stephanie Baker went into a meeting at CMSU on

September 15, 2016 and reported to their team that I save a

directive to my SAP ream not to report a “reportable” incident

to parents and/or C:hlldren and Youth. I was also told by Kelly

that the next day, she recanted that version of her story to her

boss and then stated that I wasn't in fact the one who gave the

directive, but instead it was Kelly that gave it on my behalf.

That is an outright lie which states that I gave an illegal

directive. This is an attack on my professionalism, my ethics,

and my character not only as the principal of this school, but as

an individual.”

o “I do not feel that Stephanie Baker has the ability to be effective

in her job at Benton MS/HS.”

 Kocher wrote on her survey that:195

o “In most situations Stephanie handles herself in a professional

manner and adheres to policies and procedures; however, I

believe that she sometimes steps out of her realm of duties. As a

CMSU mental health worker, she should come here, do her job

and go home. Unfortunately I believe that Stephanie sometimes

194 ECF No. 54 Ex. 16.

gets caught up in some negative feelings she has for this

district/principal. She really needs to keep those thoughts and

feelings in check as a professional instead of openly talking

about it to various staff members. It makes them feel

uncomfortable. Most of us just want to work as a team

peacefully and when Steph does that, it makes it uncomfortable

and difficult… and really hard to fix.”

o “[Baker’s] weaknesses are that she gets caught up in drama and

sometimes creates it. When it gets to the point where faculty

and staff members are saying that she is stirring the pot, there is

great concern about her effectiveness in our school. Trust

begins to deteriorate and then team work is affected. I begin to

wonder If she is talking about my effectiveness, decisions and

how I handle situations to other staff members… and then

ultimately I do not want to go to her with things to handle.

 Rado wrote on her survey that:196

o “I am hearing that she has involvement in trying to, “rally,”

teachers together in an attempt to speak with the superintendent

regarding the performance of administrators.”

o “I am an administrator in the district. There have been multiple

instances of times when she should have informed the principal

of things that are going on instead of myself (IE bullying issues,

repeated offenses of having the same conversations with

students and their behavior isn't changing). I have told her this a

few times and she still continues to only seek me out.”

o “I used to think [that Baker could develop and maintain positive

and constructive relationships with other staff], but not anymore

after learning about her recent behaviors of being involved in

the creation of an anonymous letter and seemingly "working

for" the superintendent to try and throw administrators under

the bus. At times, I have also given her a directive, only for her

to challenge what I am telling her to do; she is not in a position

to undermine me, but she has before.”

o “Conduct and ethical behavior related to security is in question

as of late, I have every reason to believe she, along with the

superintendent, have collaborated to write an anonymous letter

about the administrators in the district. In that letter,

confidential information was disseminated to community

members, as student’s names and private case information was

mentioned in detail.”

Genovese did not request on her survey that Baker be removed from BASD,

disciplined in any way, or terminated. Kocher and Rado also made no such

request.197 Genovese, Kocher, and Rado did not discuss the content of their

surveys with each other or anyone else.198

Wilson testified that the negative surveys raised “some concerns with regard

to some of the feedback that was received.”199 Beach testified that the negative

surveys conformed to perceived issues with Baker’s time because those surveys

said that Baker “wasn’t available, that she wasn’t around, that she couldn’t be

contacted.”200

The BASD superintendent commented on his survey that “there has been

nothing relayed to me from my administrators with the exception of punctuality

that was solved last year that is of question in her job performance.” Beach did not

find this helpful because the surveys “were sent out in September. And then last

197 ECF No. 54 Ex. 16-18.

198 Genovese Dep. 76:4-18; Rado Dep. 39:4-15; Kocher Dep. 68:1-20.

199 Wilson Dep. 152:15-18.

200 Beach Dep. 119:21-120:9. Baker and CMSU dispute details of Beach’s reaction to a specific

survey that indicated that Baker allowed a student to stay at her home. See ECF No. 55 ¶¶

year when she had the punctuality problem, there were only two months of the

school year that he’s accounting for in this evaluation is this year. And obviously

after this, she had problems with her punctuality and her time reporting and being

where she was supposed to be and taking off when she wasn’t supposed to take

time off.”201

17. September 28, 2016: CMSU Terminates Baker

Beach decided to terminate Baker. One factor was the September 2016

timesheet issue. Another factor was the survey responses. Another factor was the

complaints made by Genovese and Kocher.202 Another factor was Baker’s

relationship with BASD staff. Another factor was the letter, its contents, and

CMSU’s belief that Baker authored it.203 After Beach made the decision, Beach

notified Genovese. Genovese asked Beach to hold off on terminating Baker until

after the upcoming school board meeting.204

201 Beach Dep. 152:8-153:10.

202 Beach Dep. 99:3-13, 111:5-11; Gorrell Dep. 85:24-86:21. CMSU and Baker dispute whether

Beach’s testimony that the September 2016 timesheet situation was “the final straw” for

CMSU was true. See ECF No. 55 ¶¶ 197, 199; ECF No. 68 ¶¶ 197, 199.

203 Beach Dep. 119:3-8. Baker and CMSU dispute whether there were “serious questions about

[Baker’s] truthfulness and integrity.” See ECF No. 55 ¶ 202; ECF No. 68 ¶ 202. Baker and

CMSU also dispute the role that the contents of the anonymous letter played in the decision

to terminate Baker. See ECF No. 55 ¶ 203; ECF No. 68 ¶ 203. I make the above finding by

drawing all inferences in the facts in Baker’s favor. I draw particular inferences from the

September 12, 2016 meeting and from Rado’s survey responses.

204 Genovese Dep. 54:17-56:17. Baker and CMSU dispute exactly when this conversation

between Beach and Genovese happened. See ECF No. 55 ¶¶ 205-208; ECF No. 68 ¶¶ 205-

On September 28, 2016, Baker met with Wilson, Gorrell, and Beach. They

informed Baker that CMSU was terminating her from her employment.205 Baker

received a termination letter stating that she was being terminated due to

“Unsatisfactory Work Performance” and “Violation of Program Policies and

Procedures.”206

C. Analysis

1. The Court’s Prior Motion to Dismiss Ruling

Baker argues that the “law of the case” doctrine mandates that the Court

deny Defendants’ summary judgment motions.207 I disagree.

Baker is right that the Court denied portions of Defendants’ motions to

dismiss Baker’s original complaint.208 But the “law of the case” doctrine – a

“judicial rule of practice meant to maintain consistency and avoid reconsideration

of matters once decided during the course of a single continuing lawsuit”209 –

doesn’t help Baker here. This doctrine “does not limit the power of trial judges to

reconsider their [own] prior decisions.” United States ex rel. Petratos v.

Genentech Inc., 855 F.3d 481, 493 (3d Cir. 2017) (citing Williams v. Runyon, 130

F.3d 568, 573 (3d Cir. 1997). Interlocutory orders such as a denial of a motion to

205 ECF No. 30 ¶ 61.

206 Gorrell Dep. 165:15-166:21.

207 See ECF No. 66 at 3-6.

208 See ECF No. 26.

209 United States ex rel. Petratos v. Genentech Inc., 855 F.3d 481, 493 (3d Cir. 2017) (citing

Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 4478 (2d ed.)

dismiss “remain open to trial court reconsideration, and do not constitute the law of

the case.” Id. (citing Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994).

This Court’s prior denial of portions of Defendants’ motions to dismiss thus

doesn’t dictate my consideration of Defendants’ motions for summary judgment.210

This threshold point is now behind us.211 I move to the parties’ more

substantive arguments. In this discussion, I keep in mind that the core of Baker’s

claims here involve allegations about what certain defendants were thinking or

what certain defendants knew. Retaliation, conspiracy, defamation – they all hinge

on a defendant’s mental state. And “inferring mental state from circumstantial

evidence is among the chief tasks of factfinders. We rely on the good sense of

jurors (and, where applicable, trial judges) to distinguish [a defendant’s mental

state] where the direct evidence is necessarily scanty.” United States v. Wright,

665 F.3d 560, 569 (3d Cir. 2012), as amended (Feb. 7, 2012).

210 Baker’s supporting cases are all inapposite. Both In re City of Philadelphia Litig., 158 F.3d

711 (3d Cir. 1998), and Yurchak v. Cty. of Carbon, No. 06-2307, 2007 WL 1316127 (3d Cir.

May 7, 2007), deal with the United States Court of Appeals for the Third Circuit, not a

district court, allowing the law of the case doctrine to preclude its review of an issue it had

previously decided. In Minard Run Oil Co. v. U.S. Forest Serv., 549 F. App’x 93, 94 (3d Cir.

2013), the Third Circuit affirmed the district court’s decision to allow a Third Circuit

decision (not the district court’s own prior decision) to serve as the law of the case.

211 Given that Baker’s “law of the case” argument is not in play, I decline to consider the

“additional factual allegations and evidence” that Baker has compiled in countering CMSU

2. Baker’s § 1983 Claim of First Amendment Retaliation

a. First Amendment Claims and Pennsylvania’s

Intermediate Units

Trying to build another threshold barrier, the BASD Defendants argue that

because Baker was employed by CMSU and not by BASD, Baker can’t sue the

BASD Defendants under a theory of First Amendment retaliation.212 The BASD

Defendants note that they “are unaware of any case in which First Amendment

protections have been expanded to protect an individual who is not an employee or

independent contractor of a public entity.” They also cite a Third Circuit statement

that “if expansion in [First Amendment holdings] is to come the source should be

the Supreme Court.”213

The Court’s own research contradicts the BASD Defendants’ statement

about the barren field of case law. In Versarge v. Twp. of Clinton N.J., 984 F.2d

1359, 1364 (3d Cir. 1993), Judge Collins J. Seitz, writing for a unanimous three-

judge panel of the United States Court of Appeals for the Third Circuit,

“assume[d], without deciding,” that the Third Circuit could treat a volunteer

firefighter the same as a public employee for purposes of a First Amendment

retaliation claim. Judge Jane Richards Roth, in a short unanimous opinion in

212 ECF No. 60 at 12-13.

213 ECF No. 60 at 13; McClintock v. Eichelberger, 169 F.3d 812, 817 (3d Cir. 1999). Baker

doesn’t mention this argument in her brief in opposition. See ECF No. 66. And BASD

doesn’t bring it up again in its reply brief. See ECF No. 75. Nor did BASD raise this point

Houston v. Twp. of Randolph, 559 F. App’x 139, 142 (3d Cir. 2014), held that the

plaintiff’s “role as a volunteer firefighter [was] sufficient to trigger First

Amendment scrutiny.” And Judge Thomas J. Ambro, again writing for a

unanimous panel in Eggert v. Bethea, 625 F. App’x 54, 55 (3d Cir. 2015), made

the same kind of Versarge assumption by performing the standard First

Amendment analysis on a volunteer EMT.

But what of district courts within the Third Circuit? Well, in Jones v.

Indiana Area Sch. Dist., 397 F. Supp. 2d 628, 633 (W.D. Pa. 2005), the plaintiff—

an employee of an “intermediate unit” just like CMSU—sued her intermediate unit

employer alongside the school district in which the intermediate unit was providing

services. Her claims included First Amendment retaliation. Judge David Cercone

of the Western District of Pennsylvania allowed the case to survive summary

judgment. In Smith v. Sch. Dist. of Philadelphia, 158 F. Supp. 2d 599, 606 (E.D.

Pa. 2001), Judge Jan E. DuBois of the Eastern District of Pennsylvania applied

Pickering to a plaintiff who was “acting as a volunteer member of [a support team]

and thus had a quasi-employment relationship with the school district.”214 And in

Snyder v. Millersville Univ., No. CIV.A. 07-1660, 2008 WL 5093140, at *14 (E.D.

214 See also Allen v. Sch. Bd. for Santa Rosa Cty., Fla., 782 F. Supp. 2d 1304, 1324 (N.D. Fla.

2011), on reconsideration, No. 3:10CV142/MCR/CJK, 2011 WL 13112091 (N.D. Fla. May

12, 2011) (applying Smith to school volunteers’ Establishment Clause challenge to the

Pa. Dec. 3, 2008), Judge Paul S. Diamond of the Eastern District of Pennsylvania

held that First Amendment protections extended to a student teacher.

Moving outside the Third Circuit and its district courts, at least four other

Circuits have concluded that volunteers, student teachers, and interns receive First

Amendment protections. See Gratsch v. Hamilton County, 2001 WL 406440 (6th

Cir. Apr. 3, 2001) (“Although Gratsch was more of an independent contractor or

volunteer, rather than an employee, the district court appropriately analyzed his

claims under the test applied to employee speech. His relationship with the state in

this context resembled an employer-employee relationship more than it resembled

the relationship between sovereign and private citizen.”); Hennessy v. City of

Melrose, 194 F.3d 237, 244 (1st Cir. 1999) (concluding that a student teacher is

entitled to First Amendment protection); Andersen v. McCotter, 100 F.3d 723

(10th Cir. 1996) (concluding that an intern who received a part-time salary is

entitled to First Amendment protection); Janusaitis v. Middlebury Volunteer Fire

Dep’t, 607 F.2d 17 (2d Cir. 1979) (affording volunteer firefighter First

Amendment protection).

Further, the Court is reluctant to contradict a prior Third Circuit statement.

But the Court finds this statement inapposite when considering how

Pennsylvania’s intermediate units work. The Supreme Court itself expanded the

sweep of First Amendment holdings to include independent contractors in the first

place. In O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 726 (1996),

Justice Anthony Kennedy rejected various policy arguments in declining “to draw

a line excluding independent contractors from the First Amendment safeguards of

political association afforded to employees.” And the Pennsylvania statute that

governs intermediate units shows that intermediate units are closer to full-fledged

school district employees than they are to independent contractors. “Each school

district of the Commonwealth shall be assigned to an intermediate unit, and shall

be entitled to the services of an intermediate unit. . . . Intermediate units shall be

part of the public school system of this Commonwealth.” 24 P.S. § 9-901-A.

Intermediate units must provide their assigned districts with auxiliary services,

which include guidance, counseling, psychological and visual services, remedial

services, and speech and hearing services. 24 P.S. § 9-922.1-A. They can also

provide a host of other services if their board of directors authorizes it. 24 P.S.

§ 9-914-A.

It defies logic to include independent contractors and volunteers within the

First Amendment’s sweep, but then exclude intermediate units, which their

enacting statute reveals are dependent contractors.215 The Supreme Court has

already set the outer bound here as independent contractors. My ruling—which

falls right in line with how another Pennsylvania district court has handled this

215 That is: they have to contract with a school district at the district’s request. See Wilson Dep.

exact same situation—does not expand the outer bound.216 Given Third Circuit

and district court persuasive authority, as well as the nature of intermediate units,

the Court rejects BASD Defendants’ threshold argument.

b. The Elements of Retaliation

Baker claims that Defendants “retaliated against [her] because [she]

exercised her First Amendment free speech rights” in co-authoring the anonymous

letter, and in speaking to other BASD faculty about whether they would speak with

BASD’s superintendent.217 Baker must show “(1) constitutionally protected

conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from

exercising his constitutional rights, and (3) a causal link between the

constitutionally protected conduct and the retaliatory action.” Thomas v. Indep.

Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citations omitted).

As a public employee,218 Baker’s speech—the anonymous letter and

speaking to other BASD faculty about speaking to the superintendent—would

constitute “protected activity” (satisfying the first prong above) if “(1) in making it,

[she] spoke as a citizen, (2) the statement involved a matter of public concern, and

(3) the government employer did not have an adequate justification for treating the

216 See, e.g., Heritage Constructors, Inc. v. City of Greenwood, Ark., 545 F.3d 599, 601 (8th Cir.

2008) (analyzing O’Hare Truck as creating a “threshold issue” of whether the plaintiff “had

either a pre-existing commercial relationship with the city, or was a regular provider of

services to it”)

217 ECF No. 30 ¶ 67.

employee differently from any other member of the general public as a result of the

statement [s]he made.” Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d

Cir. 2006) (quotations omitted). “A public employee’s speech involves a matter of

public concern if it can be fairly considered as relating to any matter of political,

social, or other concerns to the community.” Majewski v. Fischi, 372 F. App’x

300, 303 (3d Cir. 2010).

To show the requisite “causal link,” Baker must show that her “protected

activity was a substantial motivating factor in the state actor’s decision to take the

adverse action.” Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011) (citations

omitted). She is not required to show that the protected activity was the sole,

dominant, or primary factor in the decision. Suppan v. Dadonna, 203 F.3d 228,

236 (3d Cir. 2000) (citing Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 265 (1977)). “Defendants can counter this “by

showing that [they] would have taken the same action even in the absence of the

protected conduct.” Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir.

2002). At that point, Baker may only prevail by “discrediting [Defendants’]

proffered reason for [the employment action], . . . or by adducing evidence . . . that

discrimination was more likely than not a motivating or substantial cause of the

adverse action.” Montone v. City of Jersey City, 709 F.3d 181, 202 (3d Cir. 2013)

(citations omitted).

1. Baker’s Conduct as “Protected Activity”

Here, in contributing to her sections of the anonymous letter, and in

speaking to other BASD faculty about whether they would speak with BASD’s

superintendent, Baker was speaking as a citizen. In Lane v. Franks, the United

States Supreme Court clarified that the central question here is “whether the speech

at issue itself is ordinarily within the scope of an employee’s duties, not whether it

merely concerns those duties.” 573 U.S. 228, 240 (2014) (emphasis added).

Drafting and submitting an anonymous letter to a school district superintendent and

organizing faculty to speak to a superintendent about issues are activities not

ordinarily within the scope of Baker’s duties as a “Blended Counselor” or as a

Drug and Alcohol Prevention Specialist.219 Baker was thus speaking as a citizen

and not as a public employee. See Dougherty v. Sch. Dist. of Philadelphia, 772

F.3d 979, 988-90 (3d Cir. 2014) (applying Lane to hold that a school district

employee’s complaints of misconduct by the district superintendent constituted

citizen speech because the employee’s “routine job responsibilities” did not

include reporting misconduct).220

219 See ECF No. 55 Ex. 3 (Baker’s resume listing job duties); ECF No. 55 Ex. 21 (job

description for the Drug and Alcohol Prevention Specialist position).

220 See also Javitz v. Cty. of Luzerne, No. 18-2389, 2019 WL 5076366, at *5 (3d Cir. Oct. 10,

2019) (reporting wrongdoing not enough to tip into employee speech “absent some formal

duty or responsibility”); Bradley v. W. Chester Univ. of Pennsylvania State Sys. of Higher

Educ., 226 F. Supp. 3d 435, 444 (E.D. Pa. 2017), aff’d but criticized, 880 F.3d 643 (3d Cir.

2018), cert. denied, 139 S. Ct. 167 (2018) (citing Dougherty and finding it determinative that

The sections of the anonymous letter that Baker authored,221 as well as her

organizing activity, qualify as matters of public concern. Public education issues

like those that Baker brought up “can be fairly considered as relating to any matter

of political, social, or other concerns to the community.” Majewski v. Fischi, 372

F. App’x at 303. See also Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir.

1993) (a speaker seeking to “bring to light actual or potential wrongdoing or

breach of public trust” on the part of government officials was speaking on a

matter of public concern) (citations omitted); McGreevy v. Stroup, 413 F.3d 359,

365 (3d Cir. 2005) (parties did not dispute that “advocacy on behalf of . . . two

disabled students” was a “matter[] of true public concern”).222

The Court acknowledges that the Third Circuit has “consistently held that complaints up the

chain of command about issues related to an employee’s workplace duties . . . are within an

employee’s official duties” and therefore not made as a citizen. Morris v. Philadelphia

Hous. Auth., 487 F. App’x 37, 39 (3d Cir. 2012). If Baker’s conduct here had fallen inside

the schema of her work, that line of cases might have some credence. But this situation, as I

have outlined above, is different.

221 CMSU argues that only the letter’s statements about the video incident should be considered

as Baker’s protected speech with respect to CMSU, because Baker only mentioned the

statements about the video incident in the September 15, 2016 performance review. See ECF

No. 73 at 14. I cannot follow this path. First, this would disregard Baker’s speaking to other

faculty about whether they would speak with BASD’s superintendent. Second, I must draw

all inferences in the facts in favor of Baker. Here, I can infer from the facts that: (a)

Genovese read the letter, and got a solid grasp of its different areas of subject matter, before

meeting with CMSU; (b) Genovese communicated her grasp of the letter and its subject areas

to CMSU during the September 12 meeting; so that (c) before making the decision to

terminate Baker, CMSU had knowledge of all the different subject areas of the letter as well

as Genovese and Kocher’s suspicion that Baker wrote the letter.

In a related matter, the Court often uses “the letter” as shorthand in its analysis. It only

means to refer to the sections of the anonymous letter to which Baker contributed.

222 See also Knaub v. Tulli, 788 F. Supp. 2d 349, 358 (M.D. Pa. 2011) (complaints dealt with

Defendants argue that they had “adequate justification” to treat Baker

differently. They cite the balancing test that the Supreme Court, in Pickering v.

Bd. of Ed. of Twp. High School Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568, has

mandated I perform. In this test I need to balance (1) the “interests of the teacher,

as a citizen, in commenting upon matters of public concern,” against (2) “the

interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” Id. Here, as “[s]peech involving

government impropriety occupies the highest rung of First Amendment

protection,” Swineford v. Snyder County Pa., 15 F.3d 1258, 1274 (3d Cir.1994),

“defendants in the present case bear a truly heavy burden.”223 McGreevy v. Stroup,

413 F.3d 359, 365 (3d Cir. 2005). Also, where “an employee serves no

confidential, policymaking, or public contact role” (as with Baker), “the danger to

the agency’s successful functioning from that employee’s private speech is

minimal.” Rankin v. McPherson, 483 U.S. 378, 390 (1987). The record does not

indicate that the speech in question “greatly disrupted the functioning of [BASD or

abiding by federal and state law”); Poteat v. Harrisburg Sch. Dist., 33 F. Supp. 2d 384, 394-

95 (M.D. Pa. 1999) (speeches that “related to the quality of education students would

receive” and “related to the effectiveness of the education” “dealt with matters of public

concern”).

223 CMSU tries to minimize the impact of Swineford and calls it distinguishable. See ECF No.

73 at 16. The Court disagrees. Taking together (a) the subjects of the letter to which Baker

contributed, and (b) her trying to meet with the superintendent to affect change, Baker’s

CMSU.]” Id.224 I do not find that BASD had adequate justification under

Pickering to treat Baker differently.225

2. Defendants’ Actions as “Adverse”

CMSU seems to concede that their extensions of Baker’s probationary

period, launching of the survey, and Baker’s termination were adverse actions.

The BASD Defendants argue that their actions were not adverse. I disagree.

Genovese’s and Kocher’s complaints were one factor in Baker’s

termination. These complaints came in the context of the September 12, 2016

meeting that Genovese and Kocher had set up in order to address concerns that

they had about Baker. Genovese and Kocher met with Wilson (Baker’s

supervisor), Gorrell (Wilson’s supervisor), and Beach (CMSU’s chief executive).

224 A good amount of Defendants’ evidence of Baker’s so-called “disruption” wasn’t connected

to Baker’s protected speech. That free-standing evidence doesn’t factor into my judging the

extent of Baker’s disruption. See Gardetto v. Mason, 100 F.3d 803, 816 (10th Cir. 1996)

(“Although the defendants presented a great deal of evidence relating to episodes of rude and

inappropriate conduct that may have interfered with the efficiency of [a college’s] operations,

none of the episodes involved the four remaining speech incidents at issue in this case.”).

The “disruption” here doesn’t come close to the level of Munroe v. Cent. Bucks Sch. Dist.,

805 F.3d 454, 462 (3d Cir. 2015), where witnesses testified that, after a teacher published a

series of inflammatory (to say the least) blog posts, the school was “like a ticking time

bomb” and “so incendiary” that the administration “thought [they were] going to have a riot

or sit-in or worse.”

225 De Ritis v. McGarrigle, 861 F.3d 444, 456 (3d Cir. 2017), does not control. First, Baker has

more interest in engaging in her speech than did the plaintiff in De Ritis, whose speech was

“more a private grievance than an instance of legitimate whistleblowing.” Id. at 457.

Second, though Baker testified that she did not have much information to support some of

her letter topics, drawing all inferences in her favor, there is not enough evidence in the

record for me to conclude that she showed a “continued failure to verify and substantiate” her

allegations that “approache[d] reckless indifference to their veracity.” Id. Third, a

(presumably pretty large) public school is different than “a small office of twenty-seven

public defenders” where the plaintiff had the duty of representing the defendant’s positions

Genovese and Kocher told CMSU that they could not work with Baker, and

Kocher and Genovese told CMSU that Baker was difficult to work with and that

they were at a loss as to what to do. Genovese and Kocher gave CMSU very

negative feedback and commentary on Baker’s performance. Their meeting with

CMSU was, at its core, a performance review of Baker (without Baker even

present).

The CMSU survey responses were another factor in Baker’s termination.

Genovese, Kocher, and Rado filled out negative surveys and submitted them to

CMSU for CMSU’s consideration. The opening paragraph of the surveys

specifically stated that CMSU was “requesting this information as part of our

employee evaluation process,”226 and Gorrell’s cover email stated that she needed

the surveys, which she called “a questionnaire/evaluation,” “in order to complete

an evaluation of Stephanie Baker’s work performance.”

Each of these actions – the complaints in the September 12, 2016 meeting,

and the survey responses – constituted negative employment evaluations of Baker.

Given that these evaluations were each factors in Baker’s termination, the Court

can infer that they “adversely affected the terms and conditions of [Baker’s]

employment.” And as such they were adverse actions. Clark v. Philadelphia

Hous. Auth., 701 F. App’x 113, 117 (3d Cir. 2017); see Suppan v. Dadonna, 203

F.3d 228, 234-35 (3d Cir. 2000) (placing plaintiffs lower on promotion ranking

lists was adverse action).227

3. A Causal Link Between Baker’s Conduct and

Defendants’ Actions

Whether there was a “causal link between [Baker’s] constitutionally

protected conduct and [Defendants’] retaliatory action” remains a genuine issue of

material fact that the jury needs to decide. As a threshold matter, there is a

“suggestive temporal proximity” between Baker’s conduct and the Defendants’

alleged retaliatory action; this cuts toward finding the requisite “causal link.”228

The Court can infer from the facts that about a month, at most, passed between

Genovese and Rado reading the letter and CMSU’s termination of Baker. And less

time passed from the letter-reading to the alleged intermediate adverse actions. See

Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001) (finding a gap of over three

weeks as a “suggestive temporal proximity”); cf. Farrell v. Planters Lifesavers

Co., 206 F.3d 271, 280–81 (3d Cir. 2000) (explaining that temporal proximity

between an employee’s protected conduct and the employer’s adverse action

227 See also Shenk v. Pennsylvania, No. 1:11-CV-1238, 2013 WL 1969311, at *9 (M.D. Pa. May

13, 2013) (in FMLA retaliation context, “[a]lthough negative performance evaluations in and

of themselves are generally not considered to be adverse employment actions, they can

constitute an adverse employment action when accompanied by threatening statements or

other tangible job consequences.”); Boandl v. Geithner, 752 F. Supp. 2d 540, 565 (E.D. Pa.

2010) (negative performance evaluation was adverse action).

228 Yet it does not cut all the way—as CMSU points out, “temporal proximity merely provides

an evidentiary basis from which” the Court can draw an inference. Chinniah v. E. Pennsboro

coupled with inconsistent reasons given for the action can call into doubt the

employer’s stated basis for the action).

With respect to the BASD Defendants, the September 12, 2016 meeting

participants discussed the letter and its contents. And Kocher and Genovese

expressed suspicion about Baker’s involvement with the letter. Kocher and

Genovese also relayed that Baker had been “taking sides” and “trying to get

teachers to align with the superintendent to go against the school administration.”

Genovese, Kocher, and Rado’s survey responses contained four references to

Baker’s protected activity. Given the Court’s duty to draw all inferences in the

facts in favor of Baker, the Court declines to find (a) that the anonymous letter and

Baker’s speaking to other BASD faculty about speaking to the superintendent was

not “a substantial motivating factor in [the BASD Defendants’] decision to take the

adverse action[s],” and (b) that the BASD Defendants would have taken the same

action even in the absence of the protected conduct. See Azzaro v. Cty. of

Allegheny, 110 F.3d 968, 981 (3d Cir. 1997) (finding a “material dispute of fact as

to whether [plaintiff’s] reports were a motivating factor in [defendant’s] discharge

decision” and thus overturning summary judgment decision); see generally Andes

v. New Jersey City Univ., 419 F. App’x 230, 233 (3d Cir. 2011) (in discrimination

claim at summary judgment procedural posture, plaintiff “need[ed] only point to

evidence from which a fact-finder . . . might reasonably disbelieve [defendant’s]

articulated legitimate reason for its actions.”).

With respect to CMSU, the contents of the letter played a role in the decision

to terminate Baker. Also, the Court, drawing all inferences from the facts in

Baker’s favor, cannot ascertain whether the letter, and Baker’s speaking to other

BASD faculty about speaking to the superintendent, were “a substantial motivating

factor” in CMSU extending Baker’s probationary period and issuing the surveys.

As a general matter, the Court cannot ascertain whether the letter and Baker’s

speaking to other BASD faculty about speaking to the superintendent “[were] a

substantial motivating factor in [CMSU’s] decision to take the adverse action[s].”

The Court also cannot ascertain whether CMSU would have taken the same actions

even in the absence of Baker’s protected conduct. The Court thus cannot order

summary judgment for Baker or for CMSU on these grounds. See Azzaro, 110

F.3d at 981.

c. Conspiracy

Baker’s § 1983 claim against CMSU also hinges on whether she can make

out that CMSU conspired with Genovese and Kocher to retaliate against Baker.229

“To prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons

acting under color of state law reached an understanding to deprive him of his

constitutional rights.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d

Cir. 2018) (quotations omitted) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,

150-52 (1970). As explained above, Baker’s claim that CMSU deprived her of her

constitutional rights by terminating her remains tenable at this juncture. Baker

argues that these defendants formed the requisite “understanding” through the

September 12, 2016 meeting.230

In the absence of direct proof, the Court can infer an “understanding”

through circumstantial evidence. “Such circumstantial evidence may include that

the alleged conspirators did or said something to create an understanding, the

approximate time when the agreement was made, the specific parties to the

agreement, the period of the conspiracy, or the object of the conspiracy.”

Jutrowski, 904 F.3d at 294 (citations omitted). “[I]nferring mental state from

circumstantial evidence is among the chief tasks of factfinders.” Kedra v.

Schroeter, 876 F.3d 424, 444 (3d Cir. 2017). Therefore, a party can only

overcome an allegation of conspiracy at summary judgment when “the moving

parties’ submissions foreclose the possibility of the existence of certain facts from

which it would be open to a jury to infer from the circumstances that there had

been a meeting of the minds.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986) (internal citations and alterations omitted).

Here, Baker has done enough to create a genuine issue of fact as to whether

Defendants “reached an understanding” in the September 12, 2016 meeting. The

meeting participants discussed the letter and its contents, with Kocher and

Genovese expressing suspicion about Baker’s involvement in writing it. Kocher

and Genovese marshaled many criticisms of Baker, saying that she was “difficult

to work with” and “questioned authority,” saying Baker was “taking sides” by

trying to go to the superintendent, saying they were “kind of at a loss now as to

what to do,” and alleging Baker’s inappropriate comments and unprofessional and

disrespectful demeanor. Genovese and Kocher also expressed that they could not

work with Baker anymore. CMSU found the meeting “astound[ing]” and

“disappoint[ing]” and “that there was irreparable damage perhaps” with school

administration. CMSU drafted a termination letter for Baker three days later.

The aggregate of these comments and their aftermath is enough to create a

genuine issue of fact on the conspiracy issue. See Cole v. Encapera, 758 F. App’x

252, 257 (3d Cir. 2018), cert. denied sub nom. Shultz v. Cole, 139 S. Ct. 2676

(2019) (genuine issue of fact precluded summary judgment on conspiracy claim

where officers harassed and threatened bar patrons after bar owner reported police

misconduct). 231 Defendants have not “foreclose[d] the possibility” of facts from

which a jury could infer a meeting of the minds, Anderson, 477 U.S. at 249,

especially given that “[i]nferring mental state from circumstantial evidence is

among the chief tasks of factfinders.” United States v. Wright, 665 F.3d 560, 569

231 See Klein v. Madison, 374 F. Supp. 3d 389, 421 (E.D. Pa. 2019) (in summary judgment

posture, one conversation between defendants was sufficient evidence of civil conspiracy);

Brantley v. Wysocki, 145 F. Supp. 3d 407, 412 (E.D. Pa. 2015), aff’d, 662 F. App’x 138 (3d

Cir. 2016) (in summary judgment posture, allegations that one defendant asked law

enforcement to investigate an incident and said that she and plaintiff didn’t get along was

(3d Cir. 2012). The Court finds that Baker’s claim that Defendants conspired

against her survives summary judgment.

d. Qualified Immunity

The BASD Defendants argue that Baker “possessed no clearly defined right

to be free from [Genovese and Kocher’s] actions of meeting with and reporting her

behavior to her employer and [Genovese, Kocher, and Rado] memorializing their

opinions of her behavior in surveys issued to them by her employer.”232 They are

mistaken. As the above implies, at the time of the BASD Defendants’ alleged

retaliatory actions, it was “clearly defined”—or, in the Supreme Court’s parlance,

“clearly established”233—that the BASD Defendants could not punish Baker’s

protected speech with negative employment evaluations that factored into her

ultimate termination. See Clark, 701 F. App’x at 117; Suppan, 203 F.3d at 234-35.

Thus, the BASD Defendants do not enjoy the protections of qualified immunity.

e. Conclusion

As I explained in the above analysis, Baker’s § 1983 claim of retaliation

against CMSU and the BASD Defendants survives summary judgment.

3. Baker’s § 1983 Claim of Deprivation of Rights

Baker marshals a separate § 1983 claim against CMSU, alleging that after

“her legitimate probationary period had expired,” CMSU “terminated Ms. Baker

232 ECF No. 60 at 29-30.

without notice or an opportunity to be heard,” therefore depriving her “of a

property interest without due process of law.”234 “Extension of an employee’s

probationary period is at the discretion of the employer.” Golaschevsky v. Com.,

Dep't of Envtl. Res., 683 A.2d 1299, 1301 n.4 (Pa. Commw. Ct. 1996), aff'd sub

nom. Golaschevsky v. Com., Dep't of Envtl. Prot., 720 A.2d 757 (Pa. 1998) (citing

4 Pa. Code § 97.31). But an extension of probation “as a pretext for some

improper purpose” constitutes an abuse of such discretion. See Pennsylvania

Dep’t of Pub. Welfare v. State Civil Serv. Comm’n, 707 A.2d 589, 591 (Pa.

Commw. Ct. 1998); see generally 71 Pa. C.S.A. § 2404 (“The appointing authority

may remove an employee during the probationary period if, in the opinion of the

appointing authority, the probation indicates that the employee is unable or

unwilling to perform the duties satisfactorily or that the employee's dependability

does not merit continuance in the service.”).

CMSU’s September 15, 2016 extension of Baker’s probation came three

days after the September 12, 2016 meeting with Genovese and Kocher. In that

meeting, Genovese and Kocher expressed suspicion about Baker’s involvement

with the letter. They also said that Baker was “difficult to work with” and

“questioned authority” and that Baker was “taking sides” and “trying to get

teachers to align with the superintendent to go against the school administration.”

Genovese and Kocher expressed that they could not work with Baker anymore.

Gorrell testified that after the meeting CMSU felt there was “irreparable damage

perhaps between the relationship that was going on there with school

administration.” The combination of these circumstances and comments pushes

the Court to find a genuine issue of material fact as to whether CMSU’s September

15, 2016 extension of Baker’s probation was “a pretext for some improper

purpose”—that is, firing Baker as retaliation. Baker’s § 1983 claim of deprivation

of rights thus survives summary judgment.

4. § 1983 Applied to Municipal Liability

Baker’s § 1983 claims of retaliation and deprivation of property interest

against CMSU are both targeting a municipality. This presents the Court with

another issue it must confront in deciding whether Baker’s § 1983 claims can move

forward. “Local governments, such as school districts, cannot be held liable under

§ 1983 for the acts of their employees. Instead, local governments may be found

liable under § 1983 for ‘their own illegal acts.’” Mann v. Palmerton Area Sch.

Dist., 872 F.3d 165, 174-75 (3d Cir. 2017), as amended (Sept. 22, 2017) (citing

Connick v. Thompson, 563 U.S. 51, 60 (2011). “A municipality is liable under §

1983 when a plaintiff can demonstrate that the municipality itself, through the

implementation of a municipal policy or custom, causes a constitutional violation.”

Id. at 175. “Policy is made when a decisionmaker possessing final authority to

establish municipal policy with respect to the action issues an official

proclamation, policy, or edict.” Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir.

1996) (quotations and alteration omitted) (quoting Pembaur v. City of Cincinnati,

475 U.S. 469, 481 (1986) (plurality opinion)). Customs are “practices of state

officials so permanent and well settled as to virtually constitute law.” Id. (quoting

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978).

The parties agree that Beach was CMSU’s “decisionmaker possessing final

authority to establish municipal policy with respect to” Baker’s termination, and

his decision to terminate Baker represented CMSU’s “official . . . edict” on the

matter. Kneipp, 95 F.3d at 1212. CMSU argues that Baker has not established that

Beach had “the state of mind required to prove the underlying violation.” Bd. of

Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 405 (1997). But “proof

that a municipality’s . . . authorized decisionmaker has intentionally deprived a

plaintiff of a federally protected right necessarily establishes that the municipality

acted culpably, and “the conclusion that the action taken or directed by the . . .

authorized decisionmaker . . . violates federal law will also determine that the

municipal action was the moving force behind the injury of which plaintiff

complains.” As I explained above in my analysis on the substance of Baker’s §

1983 claims against CMSU, it is a genuine issue of material fact whether Beach

“intentionally deprived [Baker] of a federally protected right” and whether that

action “violate[d] federal law.” As such, I cannot conclude as a matter of law that

Beach did not have the requisite “state of mind required.” Id.

CMSU also argues that Beach did not act with the requisite “deliberate

indifference”—which, as the Supreme Court defined in Board of County

Commissioners of Bryan County, Oklahoma v. Brown, “require[s] proof that a

municipal actor disregarded a known or obvious consequence of his action.” Id. at

410. As I explained above, Beach attended the meeting with Genovese and

Kocher, where the letter was discussed. Beach knew of Genovese and Kocher’s

suspicions that Baker wrote the letter. And the letter played at least some role in

CMSU’s decision to terminate Baker. Given all of this, I cannot find the absence

of a genuine issue of material fact as to whether Beach “disregarded a known or

obvious consequence of” terminating Baker—that such action would constitute

retaliation and the deprivation of Baker’s property interests—when making his

decision. CMSU’s defense that it is not liable as a municipality thus fails at this

summary judgment phase.

5. Baker’s Pennsylvania Whistleblower Law Claim

The Pennsylvania Whistleblower Law (“PWL”) states that “[n]o employer

may discharge, threaten, or otherwise discriminate or retaliate against an employee

. . . because the employee . . . makes a good faith report [about] an instance of

wrongdoing or waste by a public body or . . . any other employer.”235 Baker “must

show by a preponderance of the evidence that, prior to the alleged reprisal, [she]

had reported or was about to report in good faith, verbally or in writing, an instance

of wrongdoing or waste to the employer or an appropriate authority.”236 As I

analyzed in my Memorandum Opinion dealing with Defendants’ motions to

dismiss, Baker was an “employee” under the PWL.237

a. Good Faith

The PWL defines a “good faith report” as a report of wrongdoing or waste

“which is made without malice or consideration of personal benefit and which the

person making the report has reasonable cause to believe is true.”238 CMSU argues

that the anonymous letter “was not a good faith report because it was motivated by

malice and was for personal benefit.”239 Drawing all factual inferences in favor of

Baker, the non-moving party, it is plausible that Baker contributed to her sections

of the letter with motivations other than malice or her personal benefit. In

particular, the letter lists plausible concerns with BASD’s educational system and

ability to serve its students.240 This presents a genuine issue of material fact.

The BASD Defendants argue that Baker did not have “reasonable cause

regarding nearly all of the allegations in the letter she coauthored.”241 Here Baker

236 43 P.S. § 1423(b).

237 ECF No. 26 at 21-22.

238 43 P.S. § 1422.

239 ECF No. 56 at 16.

240 Compare with Mosley v. City of Pittsburgh Pub. Sch. Dist., 702 F. Supp. 2d 561, 584 (W.D.

Pa. 2010) (“Noticeably absent from Plaintiff’s memorandum is any mention of an alleged

violation of Pennsylvania law or that he was concerned with the impact of the wrongdoing on

the students or School District, or that he wanted this information disseminated to others.”)

has provided personal knowledge in support of the allegations to which she

contributed to. The Court concedes that this knowledge, in some cases, does not

appear to be tremendously robust. But again, drawing all factual inferences in

favor of Baker, the Court finds that Baker’s reasonable cause is another genuine

issue of material fact.242

b. Wrongdoing or Waste

The PWL prohibits retaliation for reports of “wrongdoing or waste.”243 The

PWL’s definition of “wrongdoing” is expansive, and includes violations of state

law that are “not of a merely technical or minimal nature.”244 But a

whistleblower’s “reported wrongdoing must either be that of the employer or a

violation of a law or code of conduct that the employer is charged to enforce for

the good of the public.” Sea v. Seif, 831 A.2d 1288, 1291 (Pa. Commw. Ct. 2003).

The PWL defines “waste” to include “[a]n employer’s conduct . . . which result[s]

in substantial abuse, misuse, destruction, or loss of funds or resources belonging to

or derived from Commonwealth or political subdivision sources.”245

242 See generally Smith v. PrimeCare Med., Inc., No. 1:08-CV-1397, 2008 WL 5048257, at *8

(M.D. Pa. Nov. 24, 2008) (plaintiff’s statement that he “observed lapses in [defendant’s]

practices” was relevant evidence to his “good faith belief that the [defendant] was not

fulfilling its obligations”).

243 Note the disjunctive: a report of wrongdoing or a report of waste will suffice.

244 “Wrongdoing” is defined as “[a] violation which is not of a merely technical or minimal

nature of a Federal or State statute or regulation, of a political subdivision ordinance or

regulation or of a code of conduct or ethics designed to protect the interest of the public or

the employer.” 43 P.S. § 1422. See also Golaschevsky v. Com., Dept. of Environmental

Protection, 554 Pa. 157, 162-63 (1998).

As I stated above in the factual background, the video incident did not

trigger a statutory reporting duty. But the portions of the anonymous letter that

Baker authored state that BASD was allowing students to graduate “despite

excessive absences” and without “meet[ing] the PA state required academic

graduation requirements.” This could constitute a violation of 24 P.S. § 15-

1504(a), which requires a school year of a minimum of 990 hours of instruction at

the secondary level, as well as a violation of 22 Pa. Code § 57.31, which sets out

Pennsylvania’s high school graduation requirements. Baker’s portions also report

that BASD was “not in compliance with the state mandated anti-bullying

program.” Drawing all inferences in the facts in favor of Baker, this could

constitute a reference to a violation of 24 P.S. § 13-1303.1-A, which mandates that

schools adopt an anti-bullying policy that “may provide for prevention,

intervention and education programs.” And Baker’s portions also report that “the

Benton school district has not attended any of the mandated meetings for [the 339]

program.” This could constitute a violation of 22 Pa. Code § 339, which mandates

that schools develop a guidance plan for career development.

Baker has, then, reported potential violations of multiple Pennsylvania laws

and regulations. But Baker was not reporting wrongdoing of her employer,

CMSU. And CMSU was not “charged to enforce for the good of the public” the

violations that Baker reported. Accordingly, the portions of the anonymous letter

that Baker authored do not constitute “wrongdoing” under the PWL. See Sea v.

Seif, 831 A.2d at 1292 (“it is undisputed that the statutory duties of [plaintiff’s]

employer . . . have nothing to do with investigating activities of members of the

General Assembly”). But, drawing all inferences in Baker’s favor, this conduct

could constitute BASD’s “misuse” or “abuse” of public funds.246 There is at least a

genuine dispute of material fact over whether Baker’s portions of the anonymous

letter constituted a report of “wrongdoing or waste.”

c. Causation

In order to show the causation that the PWL requires, Baker must “show by

concrete facts or surrounding circumstances that the report led to [retaliation

against her], such as that there was specific direction or information [she] received

not to file the report or there would be adverse consequences because the report

was filed.” Gray v. Hafer, 651 A.2d 221, 224 (Pa.Cmwlth. 1994), aff’d per

curiam, 669 A.2d 335 (Pa. 1995).

As I went over above, whether Baker has shown “surrounding circumstances

that the report led to” retaliation against her is a genuine issue of material fact that

survives summary judgment. First, the September 12, 2016 meeting participants

discussed the letter and its contents. Second, Genovese and Kocher expressed

suspicion about Baker’s involvement with the letter during the September 12, 2016

246 See Bifano v. Borough, No. CV 3:16-0245, 2016 WL 7404610, at *15 (M.D. Pa. Dec. 22,

2016) (a police officer’s repeated billing of the borough “despite not performing his work

duties” constituted waste); compare with McClain v. Munn, No. C.A. 06-278, 2008 U.S. Dist.

LEXIS 28985, at *12 (W.D. Pa. Apr. 9, 2008) (a “de minimis disruption of the police

meeting. Third, Rado referenced the letter twice in her survey responses. Fourth,

the contents of the anonymous letter played at least some role in the decision to

terminate Baker.

d. Appropriate Authority

The PWL provides that a whistleblower must direct their report to the

employer or an appropriate authority.” Baker was an employee of CMSU, not

BASD. As she directed the letter to BASD’s superintendent and school board, her

chances of success here hinge on whether those entities were the “appropriate

authority.”

The PWL defines an “appropriate authority” as:247

A Federal, State or local government body, agency or organization

having jurisdiction over criminal law enforcement, regulatory

violations, professional conduct or ethics, or waste; or a member,

officer, agent, representative or supervisory employee of the body,

agency or organization. The term includes, but is not limited to, the

Office of Inspector General, the Office of Attorney General, the

Department of the Auditor General, the Treasury Department, the

General Assembly and committees of the General Assembly having

the power and duty to investigate criminal law enforcement,

regulatory violations, professional conduct or ethics, or waste.

No evidence in the record suggests that BASD – whether its superintendent

or school board – has “jurisdiction over criminal law enforcement, regulatory

violations, professional conduct or ethics, or waste.” Of course, the laws and

regulations here imposed legal duties on BASD. But BASD is not charged with

enforcing violations of these laws and regulations and administering appropriate

punishment. It’s not a law enforcement agency, regulator, or professional conduct

board. It’s a school – charged with educating, not with enforcing violations like

those Baker reported. It thus was not the “appropriate authority.”248

e. Conclusion

As I explained in the above analysis, Baker’s Pennsylvania Whistleblower

Law claim against CMSU and the BASD Defendants does not survive summary

judgment. The Court dismisses this claim.

6. Baker’s Defamation Claim

Finally, Baker claims that Defendants Genovese, Kocher and Rado

“published defamatory and false communications” about her.249 To succeed on

this defamation claim, Baker must prove:250

(1) The defamatory character of the communication;

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its defamatory meaning.

(5) The understanding by the recipient of it as intended to be applied to

the plaintiff.

(6) Special harm resulting to the plaintiff from its publication.

(7) Abuse of a conditionally privileged occasion.

248 See Ambrose v. Twp. of Robinson, Pa, No. CIV.A. 99-1218, 2000 WL 35907776, at *9

(W.D. Pa. Oct. 11, 2000) (understanding “appropriate authority” to be “any public authority

having the power and duty of inquiring into the lawfulness of the questioned conduct and

causing its cessation if the conduct appears to be in violation of the law,” and finding critical

whether an entity was “”charged with executive functions to investigate and enforce the

laws”).

249 ECF No. 30 ¶ 85.

And Genovese, Kocher and Rado must prove:251

(1) The truth of the defamatory communication.

(2) The privileged character of the occasion on which it was published.

(3) The character of the subject matter of defamatory comment as of

public concern.

a. The Statements in Question

Baker alleges that the following statements were defamatory.

 Defendant Rado (from her survey response): “In [the anonymous] letter,

confidential information was disseminated to community members, as

student’s names and private case information was mentioned in detail.”252

 Defendant Genovese (from her survey response): “It was reported to me by

[Kocher] that [Baker] went into a meeting at CMSU on September 15, 2016

and reported to their team that I gave a directive to my SAP Team not to

report a ‘reportable’ incident to parents and/or Children and Youth. I was

also told by [Kocher] that the next day, she recanted that version of her story

to her boss and then stated that I wasn’t in fact the one who gave the

directive, but instead it was Kelly that gave it on my behalf. That is an

outright lie which states I gave an illegal directive. This is an attack on my

professionalism, my ethics, and my character not only as the principal of this

school, but as an individual.”253

Baker also states in her Amended Complaint that Kocher also “made

negative and false comments about Ms. Baker, which were part of the scheme

they concocted with CMSU to justify CMSU’s termination of Ms. Baker’s

employment.” ECF No. 30 ¶ 63. But the only factual support Baker provides is in

her “Additional Factual Allegations and Evidence (“Plaintiff’s SoF”)”—see ECF

251 42 Pa. C.S.A. § 8343(b).

252 ECF No. 54 Ex. 18.

No. 67 ¶ 269.254 The Court cannot accept this as an undisputed material fact, for

two reasons. First, this is not Baker’s motion for summary judgment. See Fed. R.

Civ. P. 56. Second, this particular “Factual Allegation[]” rests wholly on Baker’s

uncorroborated deposition testimony. ECF No. 67 ¶ 269; Baker Dep. 71:13-24.

The Court has license to reject this allegation. See Solomon v. Soc’y of Auto.

Engineers, 41 F. App’x 585, 586 (3d Cir. 2002) (court “correctly rejected”

allegations where the “only evidence in support of these claims was [plaintiff’s]

own testimony); but see Weldon v. Kraft, Inc., 896 F.2d 793, 800 (3d Cir. 1990)

(uncorroborated deposition testimony was sufficient to create genuine issue of

discriminatory intent where conduct was “often subtle and difficult to prove”).

Thus, Baker has not carried her burden, and the Court dismisses her defamation

claim against Kocher. See ECF No. 30 at 28-29.

b. Truth

The Court cannot find that there is not a genuine issue of material fact as to

whether Rado’s statement was true. The anonymous letter was sent to BASD’s

superintendent and to school board members. It is plausible that those recipients

were not improper “community members.” But, as the BASD Defendants point

254 I note that Baker’s counsel describes these “Additional Factual Allegations” as “mirror[ing]

the allegations contained in the Amended Complaint which stated a claim.” ECF No. 67 at

30 n.4. Yet the specific “Additional Allegation” for Kocher—that she “told a student that

Ms. Baker was terminated because she must have done something horribly wrong”—was

nowhere to be found in the Amended Complaint. Perhaps not a mirror, then, but a

out in their papers, it is also plausible that they were. Without further ventilation

of the facts, the Court cannot make a conclusive ruling on this issue.

The Court has concluded in its factual discussion that certain portions of

Genovese’s statement are true. These are (1) what Genovese said Kocher reported

to her, (2) Genovese’s giving the directive, through Kocher, and (3) Baker’s lying

when stating that Genovese was giving an illegal directive.255 But the Court cannot

find that there is not a genuine issue of material fact as to whether Genovese’s

statement that Baker was making “an attack of my professionalism, my ethics, and

my character not only as the principal of this school, but as an individual” was true.

The parties have not explored the factual issues of (1) Baker’s motivations in

making her statement about Genovese’s directive, and of (2) the reverberations of

this statement, to full conclusion.

c. Privileged Character

“[P]roper occasions giving rise to a conditional privilege exist when: (1)

some interest of the person who publishes defamatory matter is involved; (2) some

interest of the person to whom the matter is published or some other third person is

involved; or (3) a recognized interest of the public is involved.” Beckman v.

Dunn, 419 A.2d 583, 588 (Pa. Super. 1980). Here, given the subject matter of

these statements—the possible dissemination of confidential educational

255 The Court can infer portion (2) from the combination of (a) Kocher informing the SAP group

that a decision had been made, and (b) Kocher and Ross right afterwards joking as to whether

information, and Genovese giving the directive to the SAP meeting personnel—

Genovese and Rado, as well as the BASD superintendent and board, had a clear

interest, and, therefore, a conditional privilege. See generally Howard v. Deklinski,

No. 01-4171, 2002 WL 31501850 (3d Cir. Nov. 12, 2002) (information in reports

pertained to privileged purpose in part as it “related to [plaintiff’s] job performance

and interaction with other employees”); see also Daywalt v. Montgomery Hosp.,

573 A.2d 1116, 1119-20 (Pa. Super. 1990) (no abuse of privilege in

communication of possible misconduct to those with an employment “interest in

[plaintiff’s] activities,” who were entitled to know of [defendant]’s suspicions”).

But a defendant cannot abuse their conditional privilege. “Abuse of a

conditional privilege is indicated when the publication is actuated by malice or

negligence,” “made for a purpose other than that from which the privilege is

given,” “to a person not reasonably believed to be necessary for the

accomplishment of the purpose of the privilege,” or “includes defamatory matter

not reasonably believed to be necessary for the accomplishment of the purpose.”

Id. “Legal malice consists of a wrongful act, done intentionally without just cause

or excuse . . . or generated from reckless or wanton disregard of another’s rights.”

Id. at n.3.

Here, the Court cannot find that there is not a genuine issue of material fact

as to whether Rado was negligent or showed legal malice in making her statement

that the anonymous letter was sent to “community members.” It remains possible

that Rado did not know (which would open the door to a potential finding of

negligence) or that she knew (which would allow for a potential finding of legal

malice) that BASD’s superintendent and board did not constitute improper

“community members” and that, in turn, Baker’s production of the letter did not

represent improper dissemination of information. It is also possible that BASD’s

superintendent and board did in fact constitute improper “community members,”

which would remove both negligence and legal malice from the field of play.

With respect to Genovese, the Court finds that there is a genuine issue of

material fact as to whether she made her statement “for a purpose other than that

from which the privilege is given.” In particular, Genovese and Baker had a

disputatious history that might have informed the purpose of her statement. This

history could have pushed Genovese to write this survey response as a means of

attacking Baker’s own credibility.

d. Conclusion

As I explained in the above analysis, Baker’s defamation claim survives

summary judgment as to Genovese and Rado. Baker’s defamation claim is

dismissed as to Kocher.

7. Punitive Damages

In her Amended Complaint, as modified by her Brief in Opposition, Baker

demands punitive damages against Genovese, Kocher, and Rado for Count One (§

1983 retaliation) and Count Four (defamation).256 As I just explained right above,

the Court is dismissing Count Four as to Kocher. So the Count Four analysis here

only deals with Genovese and Rado.

a. Punitive Damages on Count One

In an action under § 1983, a jury can assess punitive damages “when the

defendant’s conduct is shown to be motivated by evil motive or intent, or when it

involves reckless or callous indifference to the federally protected rights of others.”

Smith v. Wade, 461 U.S. 30, 56 (1983).

Here, Baker has done enough to create a genuine issue of material fact as to

whether Genovese, Kocher, and Rado’s conduct was “motivated by evil motive or

intent” or “involve[d] reckless or callous indifference to the federally protected

rights of others.” Baker had disputes and points of contention with all three

individual defendants. Genovese and Rado read the letter; Kocher knew about the

letter from Genovese. Genovese and Kocher made their complaints in the

September 12, 2016 meeting; these complaints were one factor in CMSU’s

decision to terminate Baker. And Genovese and Rado and Kocher provided

negative responses on the surveys, knowing that these surveys would be another

256 ECF No. 30 at 24-25; ECF No. 66 at 45. Baker purports to also demand punitive damages on

its Pennsylvania Whistleblower Law claim. See ECF No. 66 at 45. But Baker’s Amended

Complaint doesn’t mention punitive damages for this claim. See ECF No. 30 at 25 ¶ B. In

any event, (a) the Court has dismissed this claim, and (b) the Pennsylvania Whistleblower

Law doesn’t provide for punitive damages. See 42 Pa. C.S. §§ 8501, 8541, 8553; see also

Rankin v. City of Phila., 963 F. Supp. 463, 477-80 (E.D.Pa. 1997) (dismissing plaintiff’s

punitive damages claim while noting that “nowhere among the expressly authorized remedies

factor in CMSU’s decision to terminate Baker. The combination of these facts,

with inferences from each drawn in favor of Baker, ensures that Baker’s demand

for punitive damages on her § 1983 claim survives summary judgment.257

b. Punitive Damages on Count Four

In a private party’s defamation action, in order to award punitive damages a

jury must conclude that there was clear and convincing evidence that the

defendants acted with “actual malice.” Hepps v. Philadelphia Newspapers, Inc.,

485 A.2d 374, 388 (Pa. 1984), reversed on other grounds, 475 U.S. 767 (1986). A

plaintiff can establish “actual malice” either “by proving the publication was made

with the knowledge of the falsity of its content or with reckless disregard of

whether it was false or not.” Id. at 389.

The genuine issues of material fact that I described above in my analysis of

the substance of Baker’s defamation claim control my analysis here. I cannot

conclude that there is no genuine issue of material fact as to whether either

Genovese or Rado made their statements in their survey responses “with the

knowledge of the falsity of its content or with reckless disregard of whether it was

false or not.” This is because there are still lingering genuine issues of material

fact as to whether either of these statements are true in the first place.

257 See Borrell v. Bloomsburg Univ., 207 F. Supp. 3d 454, 489 (M.D. Pa. 2016) (enough

c. Conclusion

As I explained in the above analysis, Baker’s demand for punitive damages

survives summary judgment as to her Count One claim against Defendants

Genovese, Kocher, and Rado and her Count Four claim against Defendants

Genovese and Rado. Baker’s demand for punitive damages as to her Count Two

claim is dismissed. Baker’s demands for punitive damages against Defendants

CMSU and BASD are also dismissed.

III. CONCLUSION

For all the reasons I have stated above, the Court concludes that:

 Baker’s § 1983 claim of retaliation against CMSU and Genovese,

Kocher, and Rado survives summary judgment.

 Baker’s § 1983 claim of deprivation of rights against CMSU survives

summary judgment.

 Baker’s Pennsylvania Whistleblower Law claim against CMSU and

the BASD Defendants is dismissed.

 Baker’s defamation claim survives summary judgment as to Genovese

and Rado. Baker’s defamation claim is dismissed as to Kocher.

 Baker’s demand for punitive damages survives summary judgment as

to her Count One claim against Defendants Genovese, Kocher, and

Rado and her Count Four claim against Defendants Genovese and

Rado. Baker’s demand for punitive damages as to her Count Two

claim is dismissed. Baker’s demands for punitive damages against

Defendants CMSU and BASD are also dismissed.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge