Bartnicki v. Scranton School District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

STEVE BARTNICKI, :

:

Plaintiff CIVIL ACTION NO. 3:18-1725

:

v.

: (JUDGE MANNION)

SCRANTON SCHOOL DISTRICT,

and ALEXIS KIRIJAN, :

Defendants :

MEMORANDUM

Pending before the court is the defendants’ motion to dismiss the

plaintiff’s second amended complaint. (Doc. 26). Based upon a review of the

motion and related materials, the motion to dismiss will be granted in part and

denied in part.

By way of relevant background, the plaintiff filed the instant action on

September 5, 2018. (Doc. 1). The defendants filed a motion to dismiss the

original complaint on September 27, 2018. (Doc. 7). Prior to any ruling by the

court on the defendants’ motion to dismiss, on November 19, 2018, the

plaintiff filed an amended complaint. (Doc. 18). The defendants responded on

December 3, 2018, with a motion to dismiss the amended complaint. (Doc.

21). Rather than oppose the defendants’ motion to dismiss the amended

complaint, on December 18, 2018, the plaintiff filed a second amended

complaint. (Doc. 23). On January 2, 2019, the defendants filed a motion to

dismiss the plaintiff’s second amended complaint (Doc. 26) followed by a

supporting brief on January 16, 2019 (Doc. 30). The plaintiff filed a brief in

opposition to the defendants’ motion on January 28, 2019 (Doc. 31), which

was followed by the defendants’ reply brief on February 11, 2019 (Doc. 32).

The defendants’ motion to dismiss is brought pursuant to the provisions

of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint,

in whole or in part, if the plaintiff fails to state a claim upon which relief can be

granted. The moving party bears the burden of showing that no claim has

been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and

dismissal is appropriate only if, accepting all of the facts alleged in the

complaint as true, the plaintiff has failed to plead “enough facts to state a

claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007) (abrogating “no set of facts” language found in Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to

“raise a right to relief above the speculative level.” Twombly, 550 U.S. 544.

This requirement “calls for enough fact[s] to raise a reasonable expectation

that discovery will reveal evidence of’ necessary elements of the plaintiff's

cause of action. Id. Furthermore, in order to satisfy federal pleading

requirements, the plaintiff must “provide the grounds of his entitlement to

relief,” which “requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Phillips v. County

of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations

marks omitted) (quoting Twombly, 550 U.S. 544).

In considering a motion to dismiss, the court generally relies on the

complaint, attached exhibits, and matters of public record. See Sands v.

McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider

“undisputedly authentic document{[s] that a defendant attaches as an exhibit

to a motion to dismiss if the plaintiff's claims are based on the [attached]

documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d

1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged

in the complaint and whose authenticity no party questions, but which are not

physically attached to the pleading, may be considered.” Pryor v. Nat'l

Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However, the

court may not rely on other parts of the record in determining a motion to

dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,

1261 (3d Cir. 1994).

Generally, the court should grant leave to amend a complaint before

dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213

F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is justified

only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v.

Parker, 363 F.3d 229, 236 (3d Cir. 2004).

According to the general allegations in the plaintiffs second amended

complaint, the plaintiff is employed as a high school teacher for the defendant

Scranton School District (“School District”). Defendant Alexis Kirijan was the

Superintendent for the School District. The plaintiff alleges that defendant

Kirijan was an official policymaker of the School District and, pursuant to

Scranton School District Policy 309, she was responsible for assignment,

reassignment, or transfers of district employees.

In the first of three counts in the second amended complaint, the plaintiff

sets forth a First Amendment retaliation claim. In support of this claim, the

plaintiff alleges that, in the summer of 2015, he was appointed to an executive

position with the Union and, in that position, he represents employees who

have been accused of misconduct. Throughout 2017-2018, the plaintiff

alleges that he represented many employees.

In his position, the plaintiff alleges that he has been a vocal critic of

defendant Kirijan and has appeared in the newspaper and on television

criticizing the handling of various school district matters. On or about

November 14, 2017, the plaintiff alleges that he gave a televised speech at

a school board meeting criticizing the school administration. In or around

December 2017, the plaintiff alleges that he spoke out at a school board

meeting criticizing defendant Kirijan, specifically mentioning her corruption

and gross malfeasance. After this, in or about February or March of 2018,

defendant Kirijan is alleged to have mentioned the plaintiff at a school board

meeting at which adult bullying was being discussed.

On or about March 20, 2018, the plaintiff appeared on the front page of

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the Scranton Times in relation to an article regarding his protesting the school

administration. Shortly thereafter, around the Easter holiday, the plaintiff

alleges that defendant Kirijan went outside the work site and interfered with

his volunteer activities for his church. Specifically, defendant Kirijan is alleged

to have told the plaintiff’s priest that she did not want the plaintiff to be a

reader during mass stating that he attends school board meetings and upsets

her and that she finds him offensive because of his speech.

On or about June 4, 2018, the plaintiff spoke out against the School

District with respect to the furloughing of 99 employees. In the same month,

the plaintiff alleges that he requested to teach an Honors class for the Fall

2018-2019 school year and was denied the same. The Scranton School

District listed the Honor classes “TBA,” even though the plaintiff has 14 years

of experience and an unblemished work record.

In August 2018, the plaintiff applied for a soccer coaching position. He

had been a soccer coach in the past. There were only two candidates for the

position, the plaintiff and another individual, who was not a teacher. The

plaintiff was not selected for the position, even though he alleges he was

more qualified than the other applicant. The plaintiff alleges that he lost

money because he was not selected for the position.

According to the plaintiff, he has no official duty to report school district

and officials’ misconduct, and he was acting as a citizen when he spoke out

at school board meetings and appeared on television and in the newspaper.

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The plaintiff alleges that he was acting as a citizen when he represented the

union and that his free speech is a matter of public concern since it has been

publicized and is of interest to the community.

In count two of his second amended complaint, the plaintiff sets forth a

state law defamation claim. In support of this claim, the plaintiff alleges that

defendant Kirijan called him “offensive” to his parish priest. The plaintiff

alleges that he is not offensive and, therefore, that fact is false. The plaintiff

alleges that defendant Kirijan knew that calling him offensive was false. In

calling him offensive, the plaintiff alleges that defendant Kirijan was not

expressing her opinion, but rather the fact that the plaintiff was offensive, and

that she was motivated by ill will and malice when she stated this to the priest.

The plaintiff alleges that defendant Kirijan intended to harm his reputation and

deter the priest and others from associating with him and, specifically, that

defendant Kirijan intended to have the priest stop the plaintiff from helping in

parish activities such as reading at mass. The plaintiff alleges that defendant

Kirijan’s statement implies that he has acted in a way that would be

inconsistent with the proper, honest and lawful performance of his profession

and conveyed that the plaintiff was unfit to properly, honestly and lawfully

perform his duties for the church.

Also in this count, the plaintiff alleges that defendant Kirijan mentioned

his name during a discussion on adult bullying and implied that he was a

bully. The plaintiff alleges that this statement is false and was motivated by

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ill will and malice. Again, the plaintiff alleges that defendant Kirijan sought to

deter others from associating with him by mentioning his name when

discussing bullying.

Finally, in the third count of his second amended complaint, the plaintiff

sets forth a state law false light invasion of privacy claim. Here, the plaintiff

alleges that defendant Kirijan specifically made negative reference to him to

his parish priest stating that he was offensive and requesting that he not be

allowed to participate in parish activities, thereby placing him in false light to

his priest by implying that he did something wrong. The plaintiff alleges that

defendant Kirijan was specifically intending to harm him and was motivated

by ill will and had malice toward him.

In their motion to dismiss the plaintiff’s second amended complaint, the

defendants initially argue that the plaintiff’s First Amendment retaliation claims

premised on his alleged non-selection to instruct an Honors course and non-

appointment to the extracurricular position of soccer coach fail as against

defendant Kirijan for lack of personal involvement. Specifically, the defendants

argue that the plaintiff has not alleged any facts indicating that defendant

Kirijan made the decision not to select him to instruct the Honors class or

made the decision to not appoint him as the soccer coach. Moreover, the

defendants argue that the plaintiff’s second amended complaint does not

contain any factual allegations that support the contention that defendant

Kirijan had contemporaneous, personal knowledge of the plaintiff’s non-

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selection or non-appointment and acquiesced in it.

In response, the plaintiff argues that he has alleged that defendant

Kirijan is the Superintendent for the Scranton School District and that, as

Superintendent, pursuant to School District Policy 3091, defendant Kirijan is

responsible for the assignment, reassignment, or transfers of district

employees. The plaintiff has alleged that, after speaking out against the

School District and defendant Kirijan, his request to teach an Honors class

was denied, as was his application for a soccer coaching position. The

plaintiff argues, therefore, that he has sufficiently alleged defendant Kirijan’s

involvement in the decision not to place him in the Honors program and not

to appoint him as the soccer coach.

Although the plaintiff’s allegations are scant, drawing all reasonable

inferences in the plaintiff’s favor, as the court must do on a motion to dismiss,

the court finds that the plaintiff has barely alleged enough to proceed with his

retaliation claims based upon the failure to place him in the Honors program

and the decision not to hire him for the soccer coaching position. The

1School District Policy 309 provides,

Delegation of Responsibility

The Superintendent or designee shall provide a system of

assignment or reassignment for district employees that includes

consideration of requests for voluntary transfers.

(Doc. 32, Ex. A).

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defendants’ motion to dismiss will therefore be denied on this basis.

The defendants next argue that defendant Kirijan was not acting under

color of state law when she allegedly “told Plaintiffs priest that sne does not

want Plaintiff to be a reader during mass.” To this extent, the defendants

argue that the allegations indicate that defendant Kirijan violated the plaintiff's

First Amendment rights “by going outside the work site and interfering with his

volunteer activities for his Church,” namely, by telling “Plaintiff's priest that she

does not want Plaintiff to be a reader during mass.” The defendants argue

that such private conduct does not satisfy the “under-color-of-state-law

element of §1983.” The defendants argue that,

“The traditional definition of acting under color of state law

requires that the defendant in a §1983 action have exercised

power ‘possessed by virtue of state law and made possible only

because the wronqdoer is clothed with the authority of state law.”

See West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101

L.Ed.2d 40 (1988) (emphasis added). “[GJenerally, a public

employee acts under color of state law while acting in his official

capacity or while exercising his responsibilities pursuant to state

law.” See West, 487 U.S. at 50. “Thus, the essence of section

1983's color of law requirement is that the alleged offender, in

committing the act complained of, abused a power or position

granted by the state.” See Bonenberger v. Plymouth Township,

132 F.3d 20, 24 (3d Cir. 1997); see also Mark v. Borough of

Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995) (“[A]n otherwise

private tort is not committed under color of law simply because

the tortfeasor is an employee of the state”). “[T]he under-color-of-

state-law element of §1983 excludes from its reach ‘merely

private conduct, no matter how discriminatory or wrongful.” See

Am. Mfrs. Mut. Ins. Co., 526 U.S. at 50. “[A] state employee who

pursues purely private motives and whose interaction with the

victim is unconnected with his execution of official duties does not

act under color of law.” See Bonenberger, 132 F.3d at 24; see

also Barna v. City of Perth Amboy, 42 F.3d 809, 816-17 (3d Cir.

1994).

(Doc. 30, pp. 9-10).

The defendants argue that because the alleged conduct by defendant

Kirijan occurred outside of the work site and was related to a comment

concerning the plaintiff's non-secular volunteer activities, her comment was

not, as a matter of law, an exercise of her statutory authority as a public

school superintendent, nor was her alleged comment “made possible only

because [she was] clothed with the authority of state law.” See West, 487

U.S. at 49.

The plaintiff responds that defendant Kirijan was acting pursuant to her

authority as Superintendent because she mentioned school district business

in her comments to the priest. Specifically, the plaintiff alleges that defendant

Kirijan stated that the plaintiff attends school board meetings and upsets her.

The plaintiff argues that, but for the fact that defendant Kiriljan was a

Superintendent, she would have no knowledge about the plaintiff's alleged

offensive conduct at School Board meetings and that, but for her position, she

would never have asked a third party to inflict her retaliatory actions upon the

plaintiff based on events that occurred at School Board meetings.

“[T]he ultimate resolution of whether an actor was .. . functioning under

color of law is a question of law for the court.” See Goldstein v. Chestnut

Ridge Volunteer Fire Co., 218 F.3d 337, 344 n. 7 (4th Cir. 2000); Blankenship

v. Buenger, 653 Fed.Appx. 330 (5" Cir. June 28, 2016) (collecting cases).

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Here, the court finds that, simply because defendant Kirijan may have

referenced the plaintiff’s attendance at school board meetings during her

conversation with the priest is insufficient to deem her activity under-color-of-

state-law. There is no indication from the allegations of the plaintiff’s second

amended complaint that Dr. Kirijan was performing duties more akin to those

performed by Superintendents in having the alleged conversation with the

priest. See 24 P.S. §10-1081.2 Rather, the allegations are more akin to

defendant Kirijan having a private conversation regarding matters that

affected her personally. Moreover, the plaintiff’s argument that “[b]ut for the

fact that Defendant Kirijan was a superintendent, she would have no

knowledge about Plaintiff’s alleged offensive conduct at School Board

2 “The duties of district superintendents shall be to visit

personally as often as practicable the several schools

under his supervision, to note the courses and

methods of instruction and branches taught, to give

such directions in the art and methods of teaching in

each school as he deems expedient and necessary,

and to report ot the board of school directors any

insufficiency found, so that each school shall be equal

to the grade for which it was established and that

there may be, as far as practicable, uniformity in the

courses of study in the schools of the several grades,

and such other duties as may be required by the

board of school directors. The district superintendent

shall have a seat on the board of school directors of

the district, and the right to speak on all matters

before the board, but not to vote.”

See 24 P.S. §10-1081.

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meetings” is unavailing, as the plaintiff himself acknowledges the open and

public nature of the school board meetings and his activities, including that he

has appeared on television and in the newspapers criticizing the School

District and its officials. The court finds that the allegations of the plaintiff’s

second amended complaint fail to sufficiently allege that defendant Kirijan

acted under-color-of-state-law when she allegedly engaged in the

conversation with the plaintiff’s parish priest. As such, the court finds the

conduct non-actionable under §1983 and the defendants’ motion to dismiss

the plaintiff’s retaliation claim will be granted on this basis.

Next, the defendants argue that the plaintiff has failed to adequately

allege a state law claim for defamation based upon his allegations that

defendant Kirijan called him offensive and implied that he was a bully. The

defendants argue that these statements constitute statements of opinion and

are not actionable.

To establish a prima facie claim of defamation under Pennsylvania law,

a plaintiff must prove that: (1) the communication was defamatory in nature,

(2) the communication was published by the defendant, (3) the

communication applied to the plaintiff, (4) the recipient of the communication

understood its defamatory meaning and its application to the plaintiff, and (5)

the plaintiff suffered special harm as a result of the communication’s

publication. 42 Pa.C.S. §8343(a). It is for the court to determine, as a matter

of law, whether a particular communication is capable of a defamatory

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meaning. See U.S. Healthcare v. Blue Cross of Greater Phila., 898 F.2d 914,

923 (3d Cir. 1990); 12th St. Gym, Inc. v. Gen. Star Indem. Co., 93 F.3d 1158,

1163 (3d Cir. 1996). If a communication tends to harm the reputation of

another so as to lower him in the estimation of the community or to deter third

persons from associating or dealing with him, it will be considered defamatory.

See 12th St. Gym, 93 F.3d at 1163. If words are simply annoying,

embarrassing, or uncouth, they will not qualify as defamatory. See Beverly

Enters. v. Trump, 182 F.3d 183, 187 (3d Cir. 1999). The “way in which the

communication would have been interpreted by the reasonable, average

person in its intended audience’ constitutes the deciding factor as to whether

words will qualify as defamatory. Karl v. Donaldson, Lufkin & Jenrette Sec.

Corp., 78 F.Supp.2d 393, 397 (E.D.Pa. 1999). In tandem with the foregoing,

is the Pennsylvania courts’ recognition that ‘statements of opinion, without

more, are not actionable.” Levenson v. Oxford Global Res., Inc., 2007 WL

4370911, at *5 (W.D.Pa. Dec. 11, 2007) (quotation omitted). Specifically, an

opinion that could not reasonably be construed as implying undisclosed

defamatory facts will not substantiate a claim. See Cornerstone Sys. v.

Knichel Logistics, L.P., 255 Fed.Appx. 660, 665 (3d Cir. 2007) (reiterating that

opinions may be defamatory only if the are “reasonably understood as

implying . . . undisclosed facts” of a defamatory nature).

As to the plaintiff's allegation that defendant Kirijan stated “that Plaintiff

attends school board meetings and upsets her and that she finds Plaintiff

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offensive,” (emphasis added), the court finds that this is the personal opinion

of defendant Kirijan. No one could reasonably believe that defendant Kirijan’s

statement derived from any implied defamatory facts because it was

exclusively the perspective of defendant Kirijan. Therefore, the court finds that

the statement is not defamatory.

As to the plaintiff’s allegation that defendant Kirijan mentioned his name

while speaking on adult bullying, here, the plaintiff does not even allege that

a specific statement was made about the plaintiff, only an implication. Even

assuming that defendant Kirijan had actually stated that the plaintiff was a

bully, such has been found to be a non-actionable opinion which is insufficient

to support a claim of defamation. See Purcell v. Ewing, 560 F.Supp.2d 337,

344 (M.D.Pa. 2008).

In light of the foregoing, the court finds that the plaintiff has insufficiently

pleaded a claim for defamation. Because the court finds that any amendment

of the complaint would be futile on this basis, the plaintiff’s claim for

defamation will be dismissed with prejudice.

Finally, the defendants argue that the plaintiff has failed to state a claim

for false light invasion of privacy. To establish an invasion of privacy/false light

claim a plaintiff must show there was “publicity, given to private facts, which

would be highly offensive to a reasonable person and which are not of

legitimate concern to the public.” Rush v. Phila. Newspapers, Inc., 732 A.2d

648, 654 (Pa.Super.Ct. 1999). In addition, there must be widespread

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dissemination, and communication to only a few will not suffice. Id.

The plaintiff bases his false light claim on the statement allegedly made

by defendant Kirijan to the plaintiff’s priest. To the extent that defendant

Kirijan told the plaintiff’s priest that he attends school board meetings and

upsets her and that she finds him offensive because of his speech, the court

finds that this statement to the plaintiff’s priest is not sufficient to satisfy the

“widespread dissemination” element required to support a false light invasion

of privacy claim. As such, the defendants’ motion will be granted on this basis.

Based upon the foregoing, the defendants’ motion to dismiss will be

granted in part and denied in part. An appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Date: November 8, 2019

18-1725-01.wpd

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