CASTAGNA v. WEST MIFFLIN AREA SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

DANIEL R. CASTAGNA,

) Civil Action No. 2:18-cv-00894

)

Plaintiff,

) Magistrate Judge Lisa Pupo Lenihan

)

v.

) ECF No. 129

)

WEST MIFFLIN AREA SCHOOL

)

DISTRICT, et al,

)

)

Defendants.

)

MEMORANDUM OPINION

ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. SUMMATION

Currently before the Court is the Motion for Summary Judgment filed by

remaining Defendant, West Mifflin Area School District (“Defendant” or “District”).

ECF No. 129. Plaintiff’s Fourth Amended Complaint, ECF No. 104, was filed on

September 10, 2019 and asserted the following counts against Defendant, his former

employer: under 42 U.S.C. §1983, for violation of his First Amendment rights of political

affiliation and free speech; violation of the Pennsylvania Whistleblower Law (“PWL”),

43 P.S. §1423; breach of contract; and violation of the Pennsylvania Wage Payment and

Collection Law (the “PWPCL”). Plaintiff, however, subsequently withdrew his separate

PWPCL claim and incorporated his claim for nonpayment of his final bi-weekly wages

1

into his breach of contract claim. Cf. ECF No. 130 at n. 1 (citing ECF No. 126).

Defendant seeks summary judgment in its favor on all counts.

For the reasons set forth below, the Court finds that reasonable fact finders

could clearly differ in their conclusions as to factual matters material to assessment of

Defendant’s liability under Plaintiff’s causes of action set forth in Counts I, III and IV of

the Fourth Amended Complaint, and as Count II presents a close Constitutional

question inappropriate for determination on a pre-trial, abbreviated record, Defendant’s

Motion for Summary Judgment, ECF No. 129, will be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

This action arises between Defendant West Mifflin Area School District

(“Defendant” or the “District”) and Daniel R. Castagna (“Plaintiff”). The Individual

Defendants in this action - dismissed earlier this year following the parties’ settlement,

Stipulation and subsequent Motion, see ECF No. 130 at n. 3; ECF No. 144 - were the

following members of Defendant’s School Board (the “Board”): David Marshall

(“Marshall”) who was elected to the Board and its Presidency in 2017, Anthony

DiCenzo (“DiCenzo”) who was elected in 2015, Nicholas Alexandroff (“Alexandroff”)

who served on the Board 2010-13 and was re-elected in 2017, Debbie Kostelnik

(“Kostelnik”) and Stephen Kovac (“Kovac”) who were both elected in 2015, and Erin

O’Leary White (“White”) who was elected in 2013 and 2017.

2

Viewing the record in the light appropriate on motion for summary judgment:

Plaintiff was employed by Defendant beginning in 2007 and, following a series of

promotions, ultimately assumed the position of Superintendent in 2011. His five-year

contract was renewed in September 2015, for a term from September 2016 through

September 2021. ECF No. 104, Ex. 1. That contract sets forth provisions for both

Plaintiff’s salary and annual retirement fund contributions. Id. Plaintiff held the

position of Superintendent until his 2018 suspension and subsequent termination in

March, 2019.

Beginning in mid 2014 and into early 2017, Plaintiff, acting in his position as

Superintendent, became aware of and identified to Defendant incidents of School

District employee misconduct (including misuse of a school athletic facility for personal

profit, failure to reimburse a tuition payment, petty theft from a school cafeteria, and

use of school funds for a personal purchase).1 Plaintiff’s reports and related inquiries

resulted in litigation and sanctions, including termination of two employees. Some

Individual Defendant Board members - including Marshall, Alex and White –expressed

1 More particularly, in 2014, Plaintiff reported that non-students were being allowed

access to District baseball facilities for batting practice on payment to athletic staff

(employee Jeff Rubinsak) and that an employee (Phil Martell) failed to repay an

approximately $5,000 tuition reimbursement in accordance with a contract requiring

repayment if he left employment in less than five years. In 2015, he reported a security

employee (Mark Hart) who took merchandise from a school cafeteria without payment.

And in 2017, he reported an employee (Scott Stephenson) for charging a $250 baseball

bat ordered for his own use to the school’s account. ECF No. 104 at 4-6; ECF No. 131 at

24-28

3

to others their displeasure with Plaintiff’s reportings for personal reasons and/or their

friendships/affiliations with the employees adversely affected.

In early 2016, Plaintiff and some members of the School Board favored

competing candidates in the election for Pennsylvania House Representative (for which

the primary was held in April and the general election in November). In particular,

Marshall, Alexandroff, and White each actively supported the re-election of Democratic

party candidate, Representative William Kortz (“Kortz”) while Plaintiff supported his

political opponent, Republican party candidate, Rod Salka (“Salka”). During the

campaign months, prior to Kortz’s November political victory, Plaintiff and Kortz had

verbal and written exchanges regarding the former’s support of Salka and Kortz’ public

objections and related remarks.2 Defendants Marshall, Alexandroff and White

communicated to others their disapproval of Plaintiff and of his political

beliefs/conduct. In March, 2016, Plaintiff filed a civil suit against White by Writ of

Summons, and in August filed a Complaint alleging defamation and interference with

contract from which he sought injunctive relief. The action was later voluntarily

withdrawn.

2 In one exchange, a text message from Plaintiff to Kortz on June 7, 2016, Plaintiff

pointed to their political differences regarding both State and School Board politics,

stating: “I support Rod Salka. U support Dave Marshall. End of story.” ECF No. 131 at

¶54, id. at Ex. W.

Cf., e.g., ECF No. 148 (Defendant’s assertion that Plaintiff contended animus between

the individual parties relating solely to state – and not Board – political

alliances/support). As discussed, infra, Defendant has contended that Count I of the

Complaint did not encompass Board politics.

4

Plaintiff did not provide his political support to Marshall, Alexandroff or White

during their candidacies for 2017 election to the Board. All three candidates were

politically aligned with and supported in their Board candidacies by Kortz, and were

successful in the Spring 2017 primary election and the Fall 2017 general election. ECF

No. 104; ECF No. 131 at ¶¶ 59-61.3 In late September, 2017, Plaintiff was arrested for

Driving Under the Influence, an offense for which he had also been arrested in 2009.

Plaintiff notified the Board of his arrest in writing and in person within the week; he did

not then include reference to his previous DUI and Defendant’s pleadings do not

identify any employment contract obligation to do so. In October of that year, Plaintiff

received several items of correspondence from a ”girlfriend” of Kortz, Barbara Felicetty,

divulging a conspiracy among Kortz and allied Board members to effect termination of

his employment in political retaliation.4 That same month, Plaintiff forwarded

3 Although his term on the School Board was not up for reelection in 2017, evidence of

record is supportive of Plaintiff’s assertion of a relationship/alliance between a fourth

Board member, DiCenzo, and other Individual Defendants allegedly retaliating against

Plaintiff. ECF No. 142.

4 See also, e.g., ECF No. 131 at ¶66; id. at Ex. Z (discussing Marshall’s June, 2016 through

November 2017 statements regarding Kortz and Plaintiff, and quoting Marshall’s social

media statements that “Kortz want[s] blood” and “I’m running for school board. Kortz

is backing me and he is looking for people to take out Castagna. If you know anyone let

me know.”); id. at ¶¶74-83 (discussing Alexandroff, Marshall and White’s mutual

political support, and political Board campaign statements by Alexandroff, including

“Boots on the ground. Me and Dave.”); id. at ¶¶163-180 (discussing White’s multiple

October, 2016 to May, 2018 statements regarding Plaintiff’s termination and her intent

to impede his ability to obtain subsequent employment, including two in late October,

2017 indicating that she wanted Plaintiff gone). Cf. ECF No. 13 at 8 (asserting that

“aside from” the social media of Marshall, Plaintiff has no evidence to support his claim

5

Felicetty’s statement to the School Board requesting that it take some action. He also

filed an employment discrimination complaint with the Equal Employment

Opportunity Commission (“EEOC”) alleging race and age discrimination and

retaliation, citing Kortz’ conduct, alleged resultant damage to Plaintiff’s reputation, and

interference with his employment. The EEOC Investigator fairly noted in reply that

Plaintiff had neither alleged nor suffered any harm by Defendant, and that the matter of

his complaint appeared to be Kortz’ alleged politically-motivated harassment. ECF No.

131 at ¶¶131-35.5 Shortly thereafter, on December 5, 2017, the three above-named

Individual Defendants were seated in their elected Board positions and Marshall was

elected President.

On January 10, 2018, Plaintiff began a two-week medical leave for a fractured

back. The recently-elected Board met in executive session on January 18th, at which

time Defendant asserts the Board was informed by Marshall that Plaintiff had

ostensibly made the untruthful representation to him that the recent DUI was Plaintiff’s

first such offense. ECF No. 131 at ¶¶ 30-31. Plaintiff received notice on January 19th

that he had been suspended with pay. Plaintiff’s counsel corresponded with

Defendant’s solicitor requesting communication regarding the suspension.6

of causation). As Plaintiff evidences, social media posts/texts by Marshall, Alexandroff

and White include indicia of political alliance

5 The EEOC Complaint was subsequently dismissed.

6 Between January and July, 2018, Plaintiff’s counsel sent Defendant’s counsel seven

letters, and asserted violations of his employment rights and legal liability therefore.

6

Defendant’s Solicitor conducted an open-ended investigation of “additional allegations

of misconduct by Plaintiff.” ECF No. 130 at 3-4. Plaintiff was provided notice of a

Loudermill Hearing and allegations of misconduct on June 26, 2018, and on July 2, 2018,

Plaintiff was suspended without pay. Another Board member, Janice Gladden, spoke in

objection at that meeting.7 Plaintiff asserts that Defendant did not pay Plaintiff his full

salary for the 2017-2018 school year nor did Defendant make Plaintiff’s 2018

contractually-required $7,500 retirement payment. See discussion infra.

In accordance with the Pennsylvania Public School Code statutory procedures

for Plaintiff’s termination as School District Supervisor, Defendant thereafter held a

public Section 1080 disciplinary hearing over multiple evenings between late August

and late November, 2018. On March 13, 2019 Plaintiff was terminated by a vote of six to

three, which adopted the Adjudication Findings of Facts and Conclusions of Law of the

Hearing Officer, with each of the initially named Individual Defendants - including

Marshall, Alexandroff, White and DiCenzo - voting in favor of termination. Plaintiff

did not appeal that adjudication in State court.8

7 Gladden asserted, e.g., that Plaintiff had not been afforded a fair and impartial

investigation, the charges against him contained factual misstatements, the

investigation information provided was insufficient to support an informed

employment vote, and the Board’s actions were retaliatory.

8 Defendant asserts that Plaintiff is therefore bound by the findings of fact in the

adjudication and they are binding for purposes of Plaintiff’s assertion that charges on

which he was terminated were pretextual. ECF No. 130 at 4. The Court disagees. See

discussion infra.

7

The parties are familiar with the extensive procedural history of the case sub

judice. Most recently, the Court denied the majority of Defendant’s Motion to Strike and

granted Plaintiff leave to amend and supplement his filings to address the few

sustainable objections. ECF No. 159. To the extent arguments made in Defendant’s

Brief in Support of its Motion for Summary Judgment, EFC No. 130, were also made in

Defendant’s Brief in Support of its Motion to Strike, ECF No. 148, and addressed in the

Court’s May 20, 2020 Opinion and Order, ECF No. 159, the Court directs the parties to

said Opinion and Order.

III. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if, drawing all inferences in favor of the

nonmoving party, the pleadings, documents, electronically stored information,

depositions, answers to interrogatories and admissions on file, together with any

affidavits or declarations, show “that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (a) & (c).

Summary judgment may be granted against a party who fails to adduce facts sufficient

to establish the existence of any element essential to that party’s case, and for which that

party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The moving party bears the initial burden of identifying evidence which

demonstrates the absence of a genuine issue of material fact; that is, the movant must

show that the evidence of record is insufficient to carry the non-movant’s burden of

proof. Id. Once that burden has been met, the non-moving party must set forth

8

“specific facts showing that there is a genuine issue for trial” or the factual record will be

taken as presented by the moving party and judgment will be entered as a matter of

law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting

Fed. R. Civ. P. 56(e)) (emphasis added by Matsushita Court). An issue is genuine only

“if the evidence is such that a reasonable jury could return a verdict for the non-moving

party.” Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986). In Anderson, the United

States Supreme Court noted the following:

[A]t 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

whether there is a genuine issue for trial. . . . [T]here is no issue for trial

unless there is sufficient evidence favoring the nonmoving party for a jury

to return a verdict for that party. If the evidence is merely colorable, or is

not significantly probative, summary judgment may be granted.

Id. at 249-50 (internal citations omitted).

IV. ANALYSIS

A. Section 1983 – Violation of First Amendment Rights of Political Affiliation

Plaintiff alleges that Defendant’s adverse employment actions were taken under

color of law, intentionally, with reckless disregard for his Constitutional rights, and in

retaliation for his political beliefs and affiliation. ECF No. 104 at 10-11. A review of the

record makes it clear that the parties’ dispute regarding the relation between

Defendant’s adverse actions and Plaintiff’s political action or inaction entails material

fact questions which must be addressed at trial. Indeed, Plaintiff presents significant

evidence of numerous material fact questions in support of this claim. See, e.g., ECF No.

142 and Exhibits thereto.

9

To establish a claim under § 1983, a plaintiff must show that the conduct

complained of was committed by persons acting under color of state law and violated a

right, privilege, or immunity secured by the Constitution or laws of the United States.

Defendant does not dispute that it is a person for purposes of liability under § 1983. 9

To establish a claim for political affiliation retaliation, Plaintiff must show that he (1)

was employed at a public agency in a position that does not require a political

affiliation; (2) was engaged in constitutionally protected conduct; and (3) this conduct

was a substantial or motivating factor in the District's employment decision. Moffit v.

Tunkhannock Area Sch. Dist., 160 F. Supp. 2d 786, 799 (M.D. Pa. Feb. 3, 2016) (quoting

Galli v. New Jersey Meadowland's Comm'n, 490 F.3d 265, 271 (3d Cir. 2007)).

Defendant does not dispute that Plaintiff has met the first of these elements, 10

nor does it dispute the second, other than to assert that Plaintiff’s claim properly

encompassed only his political conduct as to the 2016 State election and not his political

decision to withhold his support of candidates in the 2017 Board elections. The Court

rejects both aspects of that assertion: the scope of the claim originally maintained and

9 See ECF No. 130 at 12. ("A municipality or government entity is a person for purposes

of §1983." Ditzler v. Hous. Auth., 171 F.Supp.3d 363, 367 (W.D.Pa.2016)).

Although Defendant goes on to note that municipal liability does not attach under

respondeat superior, the Court finds no such theory of liability necessary to the claims in

which Plaintiff has identified questions of material fact. Cf. id. (“Section 1983, however,

does not allow municipal liability under a theory of respondent superior.”).

10 Defendant does not assert that political affiliation was an appropriate requirement of

Plaintiff’s position. Cf. Plaintiff’s Brief in Opposition, ECF No. 141 at 1.

10

legally permissible. As to the former, see ECF No. 149 and supra; as to the latter, see, e.g.,

ECF No. 141 at 4-5, with which the Court concurs.11 Defendant’s reiterated assertions to

the contrary notwithstanding, Plaintiff’s claim includes, and by law clearly may include,

an assertion of Defendant’s legal liability for adverse employment action for reasons of

his political support and non-support of candidates in State and School Board elections.

See ECF No. 129.12

As Defendant notes, evidence of knowledge and of causation are necessary to

Plaintiff’s claim. ECF No. 130 at 13. See also ECF No. 141 at 3 (“Proving a ‘substantial

factor’ . . . requires proof of both the District’s knowledge of [Plaintiff’s] political

conduct and a causal connection between his conduct and the adverse actions at issue . .

. .”) (providing case citations).

In refuting evidence of its knowledge, however, Defendant takes an

unsupportable and crabbed view of what constitutes “evidence” toward material fact

11 “Castagna’s conduct of not supporting various . . . candidates is likewise protected.”

ECF No. 141 at 4 (providing case citations). Compare ECF No. 149 at 3-4, 6 & n.1

(positing that Plaintiff is required to evidence his actual support of other Board

candidates and, conversely, that merely withholding political support/participation is

not protected). The Court further observes Defendant’s citation to Palfrey v. Jefferson-

Morgan Sch., Dist., CIV.A. 06-01372, 2008 WL 4412230, at *10 (W.D. Pa. Sept. 25, 2008) to

be inapposite. See ECF No. 149 at 6; Palfrey at *57-59 (holding Board member’s

“perception of plaintiff’s involvement” with political act was insufficient to

demonstrate protected activity where plaintiff herself had not alleged that conduct or

First Amendment protection in her own complaint).

12 Cf. also e.g., ECF No. 142, App. Ex. 47 (Plaintiff’s counsel letter to Defendant’s solicitor,

dated June 21, 2018, noting in context of potential Section 1983 action based on political

affiliation, that Board members expressed a clear intent to retaliate against Plaintiff for

his refusal to support candidates ).

11

questions. Compare, e.g., ECF No. 130 at 15 (asserting as established with no room for

reasonable difference (arising as part of, e.g., credibility determinations or reasonable

inferences from the totality of the factual record) that no Board member was aware of

Marshall’s alleged political motivations or knew (with the “arguabl[e]” exception of

Marshall) of Plaintiff’s support for Salka)13 with ECF No. 141 at 3-6; ECF No. 142 and

Exhibits thereto. Plaintiff has evidenced significantly more than a “vague aura of

politically [sic] motivat[ion]”. ECF No. 130 at 16.

Relatedly, the Court rejects Defendant’s repeated attempts to negate evident

questions of material fact by unilaterally asserting, e.g., that Board members were

unaware of Plaintiff’s or each other’s conduct (when such questions are within the

credibility and reasonable inference determinations delegated to the finders of fact) and

that a Board member’s only relevant conduct is that occurring during his term on the

Board (when such state-of-mind evidence as an Individual Defendant’s prior written

communications expressing political antagonisms or animus toward Plaintiff is relevant

to this litigation). See, e.g., ECF No. 130 at 8, 18. The Court also rejects Defendant’s

attempts to advance an argument that Plaintiff is required to establish that each of the

other five (5) Board members voting in favor of his termination were aware of Marshall’s

improper motivation (ECF No. 130 at 16) and that each of them voted in favor of

13 Defendant emphasizes that “[t]ellingly, even the Board members who opposed”

adverse action testified they were without knowledge of Marshall’s private discussions

or alleged motive.” Id. The Court would not be surprised - or find particular

evidentiary relevance - if Board members not alleged to have been part of a

faction/alliance of members with shared political animus were not apprised of the

discussions or collaborations of those allied.

12

termination with a substantial or motivating factor being Plaintiff’s protected conduct

(id. at 31). Indeed, not even Defendant appears committed to this assertion. Compare id.

at 30 (“Plaintiff must show that two (2) or more Board members retaliated against him

on the basis of his political affiliation or his speech.”). The Court concurs that, as to

Counts I and II of his Complaint, Plaintiff must provide evidence that his

Constitutionally-protected right of political affiliation or speech, respectively, was a

substantial or motivating factor in two or more of the votes in favor of his termination.14

Causation requires evidence of either (a) an unusually suggestive temporal

proximity between the protected activity and the allegedly retaliatory action or (b) a

pattern of antagonism coupled with timing to establish a causal link. ECF No. 130 at 14

(citing Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997). 15 In refuting

causation, Defendant asserts that “the Board did not take action against Plaintiff until

14 Although Defendant quotes Holt Cargo Sys., Inc. v. Delaware River Port Authority, 20 F.

Supp.2d at 840-41 (E.D. Pa. 1998) (“plaintiffs must be able to show that a majority of the

board knew of the improper motive and ratified it”), in support, the Court does not find

this language of this 23-year-old case persuasive in the case sub judice. Under its highly-

distinguishable facts, the Holt plaintiffs evidenced improper motivation on the part of

only 2 of 16 board members, and the policy decision at issue required a vote of 10.

Plaintiff has provided evidence of political motivation on the part of at least three, and

perhaps four, of nine Board members with a vote of five required. Cf. ECF No. 130 at

17.

15 Defendant appears to take inconsistent positions in an attempt to distance its alleged

adverse employment actions from Plaintiff’s conduct. Compare ECF No. 130 at 13, n. 4

(“The District contends [in reliance on the alleged applicability of Title VII case law]

that Plaintiff’s suspension with pay . . . is not an adverse employment action.”) with id.

at 18 (stating that “the first ‘adverse employment action’ taken against [Plaintiff was] in

January 2018”).

13

more than two years after his political activity.” ECF No. 130 at 17-18. As Plaintiff

cogently outlines, the evidence as a whole raises material fact questions in support of a

finding that Board members acting from improper motive and in alliance took

retaliatory actions against Plaintiff shortly after it was within their power to do so,

including actions progressing toward and concluding with his termination. ECF No.

141 at 7-9. Moreover, the evidence includes that of ongoing animosity toward Plaintiff

on the part of allegedly allied Board members between the November 2016 State

election and at least the end of 2017. See ECF No. 130 at 18 (quoting Falnders v. Dzugan,

156 F.Supp.3d 648, 673 (W.D. Pa. 2016) (“To establish causation under an antagonism

theory, a plaintiff must show actual antagonistic conduct or animus in the intervening

period between the protected activity and the retaliation.”)).16 The record supporting

16 At this point in its Brief in Support, Defendant cites to Alexandroff’s “post[] to a

Political Watchdog page . . . that ‘We will run this School District again’” as insufficient

to establish causation or retaliation for political conduct. ECF No. 130 at 18.

Throughout its pleadings, however, Defendant repeatedly presents the insufficiencies

of isolated facts in support and asserts that “allegations” and facts as to individual

Board members should only be considered separately. This is not a maintainable

position. Cf. id. (asserting that “no evidence of antagonism [exists] toward Plaintiff by

the Board in the intervening period”) (emphasis in original) ECF No. 149 at 16-17. Cf.

also id. at 18-19 (asserting that “social media comments, public or private criticisms, or

disagreements . . . , made by individuals that pre-date their time on the Board, are

insufficient”); id. at 24-25 (acknowledging, e.g., “evidence of antagonism related to

[Plaintiff’s] lawsuit against White” in “Marshall and White’s social media activity” but

dismissing “the activity of” either as insufficient). Defendant’s assertion that “Plaintiff

must rely upon rank speculation and pure conjecture to show that because certain

Board members: knew each other; supported each other; somehow knew or were

supported by Kortz; and criticized Plaintiff, his decisions, or the District’s ‘leadership,’

they took employment action against Plaintiff” flies in the face of a reasonable reading

of the record. ECF No. 130 at 19. Compare ECF No. 141 at 9-13 (detailing factual

allegations of antagomism/animus).

14

causation is thus sufficient to survive Defendant’s Motion for Summary Judgment as a

record either (a) suggestive temporal proximity (of the ability to effect adverse action

and undertaking it) or (b) evidencing a pattern of antagonism coupled with timing.

B. Section 1983 – Violation of First Amendment Rights of Protected Speech

The First Amendment to the United States Constitution safeguards the right to

free speech, and the provisions of the First Amendment bind state actors by way of

incorporation through the Due Process Clause of the Fourteenth Amendment. See Locke

v. Davey, 540 U.S. 712, 718, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004).

Plaintiff alleges that Defendant’s adverse employment actions were taken in

retaliation for his exercise of his right of protected speech – his right to speak on matters

of public concern, as protected by the First Amendment - in (a) filing litigation against

White for defamation and contractual interference, (b) filing an EEOC complaint of

employment discrimination, and (c) retaining counsel and threatening litigation against

Defendant. ECF No. 104 at 12-13.

As discussed above, to succeed on a claim of retaliation for exercising First

Amendment rights, a plaintiff must establish that he engaged in protected activity and

that the activity was a substantial or motivating factor in any retaliatory action taken

against him. Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir.2002) (citing Bd. of

County Comm'rs. v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996)).

The burden then shifts to Defendant, who “may defeat the [P]laintiff's case by showing

15

that [it] would have taken the same action even in the absence of the protected

conduct.” Id.; see also Hill v. City of Scranton, 411 F.3d 118, 127 (3d Cir.2005). Defendant

contends that Plaintiff’s speech was neither on a matter of public concern nor a

substantial factor in its adverse employment decisions. ECF No. 130 at 19.

To deserve First Amendment protection, Plaintiff’s must speak as a citizen and

“address a matter of public concern”. Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379

(U.S. 2011). His speech must also “not be outweighed by any injury such speech could

cause to the interest of the state as an employer in promoting the efficiency of the public

services it performs . . . .” ECF No. 130 at 20. “An employee’s speech addresses a

matter of public concern when it can be fairly considered as relating to any matter of

political, social, or other concern to the community.” Pro v. Donatucci, 81 F.3d 1283,

1288 (3d Cir. 1966). And there are two steps to the inquiry: (1) identification of the

statement as implicating a matter of public concern, and (2) review of the statement’s

“content, form and context”. Connick v. Myers, 461 U.S. 138, 147-48 (1983).

As Defendant states: “If speech addresses a matter of personal concern, the Court

must find that it concerns something more than a ‘multi-faceted personal gripe’.” ECF

No. 130 at 20 (quoting Miller v. Clinton City, 544 F.3d 5422, 550-51 (3d Cir. 2008). A

“mundane employment grievance” or speech relating only to personal interest “does

not make the cut.” Id. at 21. See also ECF No. 149 at 7, n. 3 (distinguishing, with case

quotations, between speaking on a matter of public concern or “upon matters only of

personal interest”). Defendant asserts that Plaintiff’s allegations and remedies sought

16

“belie any argument that his speech addressed matters of public concern” and that

“[a]ny public concerns Plaintiff raised are peripheral and negligible at best, and clearly

collateral to his personal motivation for filing those actions.” It is not clear to this

Court, however, that matters of public concern – such as un-Constitutional retaliation

against a School District Superintendent for disfavored political conduct – were

“peripheral and negligible” to Plaintiff’s personal concerns where he alleges political

animus was causal to his personal injury.17

On the other hand, it is also not yet clear to the Court that the speech on which

this claim is premised meets the highly-situational “content, form and context”

assessment which constitutes the second part of the inquiry. For example, as Defendant

notes, Plaintiff must “indicate” an intent “that the public learn of the matter of the

purported misconduct”. ECF No. 130 at 20, n. 5 (quoting Emigh v. Steffee, 442 F.3d

17 Defendant also contends that Plaintiff’s speech was outweighed by Defendant’s

“interest in promoting workplace efficiency and avoiding workplace disruption.” Id. at

22-23. Defendant’s case support for this assertion is, however, patently inapposite.

Neither deference to an employer’s decision to fire an employee who violated a policy

designed to prevent Board rifts by constraints on public individual/personal criticism,

nor – similarly – cases regarding sanctions of free speech in contravention of (as a “fight

against”) a particular valid/legitimate employer policy or interest inform the facts

alleged and adequately evidenced at this juncture in this case. Cf. id.

The Court also rejects Plaintiff’s claims of an absence of a material fact question on the

element of requisite timing for the same reasons discussed in Section IV(A) above. ECF

No. 130 at 24-26. The record taken in its entirety is sufficient to raise jury questions as to

either “suggestive temporal proximity” or “a pattern of antagonism coupled with

timing” as to each alleged instance of protected speech. See generally ECF No. 141, 142

and Exhibits thereto.

17

App’x 660, 665 (3d Cir. 2011)).18 And Defendant objects that speech which, on the

evidence of record, appears contemporaneously directed solely to redress of personal

injury cannot now be recharacterized by Plaintiff as speech directed, or also directed, to

redress of matters of public concern.19 But see Swineford v. Snyder County Pa., 15 F.3d

1258, 1271 (3d Cir.1994), quoting Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.1983)

18 See also ECF No. 141 at 16-18 (Plaintiff’s discussion of “public concern” through

multiple case citations describing protected speech as, e.g., that which “attempts to

bring to light” or “attempts to explose” misconduct).

19 As to Plaintiff’s counsel’s correspondence with Defendant’s solicitor, Defendant also

contends that said letters neither constituted a threat of litigation nor could be sufficient

evidence of Defendant’s own knowledge. The Court rejects these assertions under the

summary judgment standard. The letters speak for themselves and were not merely

veiled, as Defendant contents. And the record evidences that at least one letter was

shared through distribution to at least two board members. See ECF No. 130 at 8; ECF

No. 142 and Exhibits thereto. See also ECF No. 141 at 18 & n. 3. In addition, the record

indicates discussion of communication between the parties’ counsel with the School

Board, i.e., with Defendant’s knowledge. Id. Compare ECF No. 30 at 26 (“Plaintiff

cannot establish that the District even knew that he hired counsel and threated to sue

the District . . . .”) (emphasis in original); ECF No. 149 at 8 (“Plaintiff points to no

evidence that any of the letters were shared with the District’s School Board as a

whole.”).

Although Defendant places great weight on Ambrose v. Twp. Of Robinson, 303 F.3d 488,

493 (3d Cir. 2002) - as cited in Palfrey v. Jefferson-Morgan Sch., Dist., CIV.A. 06-01372,

2008 WL 4412230, at *10 (W.D. Pa. Sept. 25, 2008), aff'd, 355 Fed.Appx. 590 (3d Cir. 2009)

– it is markedly distinguishable. In Ambrose, the Court declined to attribute a solicitor’s

knowledge to township commissioners who denied knowledge, where the sole

evidence provided as to their knowledge was an affidavit submitted by a police

sergeant in support of another officer’s employment litigation. Said affidavit was

supplied to the solicitor “within a 371 page document production” less than one month

before the commissioners voted to suspend Ambrose. Id. The Court further recognizes

that while the burden to prove knowledge rests with Plaintiff, as a general rule, “when

the moving party ‘exclusively’ controls ‘the knowledge of the events or occurrences on

which the action is based’ an issue of credibility is presented.” Keefer v. Durkos, Civil

Action No. 3:04–187, 2006 WL 2773247, at *14 (W.D. Pa. September 25, 2006)).

18

(quoting Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983))

(“Because of the nature of their employment, speech by public employees is deemed to

be speech about public concern when it relates to their employment so long as it is not

speech ‘upon matters of only personal interest’ ”) (emphasis added); McHugh v. Bd. of

Educ., 100 F.Supp.2d 231, 240 (D.Del.2000) (plaintiff's personal interest in making certain

statements did not negate that they related to a matter of public concern); Azzaro v.

County of Allegheny, 110 F.3d 968, 978 (3d Cir.1997) (finding that the employee's motive

is not dispositive but is merely one factor to be considered in characterizing his or her

speech). Bielewicz v. Penn-Trafford Sch. Dist., CIV.A. 10-1176, 2011 WL 1486017, at *4

(W.D. Pa. Feb. 9, 2011), report and recommendation adopted, CIV.A. 10-1176, 2011 WL

1399839 (W.D. Pa. Apr. 13, 2011) (citing each of the preceding cases in holding that

“viewing the allegations in the complaint in a light most favorable to Bielewicz as is

required, it cannot be said at this juncture that her speech falls outside of the First

Amendment's protection.”)

Thus, as explicated above, whether any of Plaintiff’s allegedly protected speech

constitutes not only a private assertion of rights but also an invocation of a right of

public concern protected from retaliation is a close Constitutional question – one which

is particularly situational and on which the answer is not clear at this juncture.

Defendant’s motion for summary judgment on this Count will therefore be denied

without prejudice, in accordance with the prudential rule that a Court should not

19

decide close questions of Constitutional interpretation on an abbreviated summary

judgment record, but rather at the close of trial.

C. Section 1983 – Effect of Prior Adjudication and the “Even If” Defense

First, Defendant correctly notes that even if Plaintiff has sufficiently evidenced

each element of a 1983 claim, Defendant “may avoid a finding of liability by proving by

a preponderance of evidence that the same employment action would have been taken

even in the absence of the protected activity.” ECF No. 130 at 14 (quoting Moffit, 160

F.Supp. 3d at 799). And that a plaintiff may rebut a defendant’s proffer of legitimate

reasons by “producing evidence from which a fact finder could reasonably either (1)

disbelieve the employer’s articulated legitimate reasons, or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or determinative cause of

the employer’s actions.” ECF No. 30 at 27.

Defendant proceeds to contend, however – without precedential or persuasive

support - that, in evaluating Plaintiff’s Section 1983 actions, the factual holdings of

Defendant School District’s adjudication are preclusive. More specifically, Defendant

asserts that “the facts supporting the District’s defense that it [acted] for legitimate

reasons are conclusive and should be presumed legitimate, and not subject to

argument” to the contrary. ECF No. 130 at 28 (emphasis in original). This Court

disagrees.20

20 A lengthy footnote on the standards applicable to review of local agency fact findings

on appeal to state trial court is inapposite. ECF No. 130 at 28, n. 7.

20

Defendant asserts that that because Plaintiff elected not to appeal the Section

1080 adjudication to State Court he is bound by its factual findings and thus precluded

from, e.g., asserting in a Federal Court claim for violation of his Constitutional rights

that charges/allegations against him in the Board’s adjudication were pretextual rather

than legitimate. ECF No. 130 at 28-29 (“Although conclusions of law contained in the

Adjudication are not binding, the facts are . . . .”) (citing Edmundson v. Borough of Kennett

Square, 4 F.3d 186, 189 (3d Cir. 1993), which held that in Section 1983 cases, state

administrative fact-finding is entitled to preclusive effect in federal courts when agency

ruling remains unreviewed by state courts). As Plaintiff points out, Defendant is a local

and not a state, but a local, agency. ECF No. 141 at 24-25.21 Moreover, and as Plaintiff

notes, Defendant’s Board is not an entity “akin to the state-created administrative

commissions tasked with adjudicating Pennsylvania law” and, unlike state

administrative agency proceedings, Defendant’s Section 1080 hearing officer was not an

administrative law judge. ECF No. 141 at 25 (providing case citations).22

21 Cf. ECF No. 149 at 9 (citing DePolo v. Supervisors of Tredyffrin Twp., 835 F.3d 318, 387

(3d Cir. 2016) (holding local zoning hearing board to be state administrative agency

acting in judicial capacity) for proposition that “there is no distinction at law between

state and local administrative agencies”); ECF No. 158 at 6 (distinguishing DePolo,

including by noting that zoning board acted as neutral body reviewing a lower

decision).

22 Plaintiff also notes holdings of the Third Circuit and other Circuit Courts indicating

that unreviewed decisions of even state administrative agencies, including factual

findings, are not entitled to preclusive effect in subsequent discrimination litigation.

ECF No. 141 at 25-27. Cf. Univ. of Tennessee v. Elliott, 478 U.S. 788 (1986) (prior holding

that decision of administrative law judge on the same issue of race discrimination was

preclusive); ECF No. 149 at 10.

21

The Court therefore rejects Defendant’s assertion that Edmundson or other of its cited

cases preclude consideration of pretext in this action, and it finds no reason in those

cases to originate an extension of Edmundson to the circumstances herein.

Defendant further contends that, even if preclusive effect is not afforded to its

adjudication’s facts, it “is able to show that it would have disciplined Plaintiff

regardless of his political affiliation or speech.” ECF No. 130 at 27, 29. See also ECF No.

141 at 29 (citing the applicable “preponderance of the evidence” standard).

As a School District Superintendent, Plaintiff could be terminated, after the

Section 1080 hearing, by a majority vote of the Board, and a single vote improperly

motivated does not give rise to a First Amendment cause of action where it does not

affect the vote’s outcome. ECF No. 130 at 29-30 (correctly citing sections of the

Pennsylvania Public School Code and relevant decisions of the Court of Appeals for the

Third Circuit). See also id. at 30 (quoting Coogan v. Smyers, 134 F.3d 479 (2d Cir. 1998)

(“If a majority of defendants prove that their individual votes against the plaintiff

would have been the same . . ., the defendants . . . cannot be held liable . . . because

causation is absent . . . .”)); id. (concluding that, “[t]herefore, Plaintiff must show that

two (2) or more Board members retaliated against him . . . .”).23 As detailed in Plaintiff’s

Brief in Opposition, there is more than sufficient evidence of record raising material fact

23 In under-acknowledgment of the evidence of material fact questions, Defendant

concludes that at best Plaintiff may be able to show that one Board member retaliated

against him because of his political affiliation (presumably, Marshall) and one because

of his protected speech (presumably, White). Id. at 31.

22

questions of improper factors/motive in two or more adverse employment action votes

against him. See ECF No. 141 at 29-30; ECF No. 142 and Exhibits thereto; discussion

supra.

Finally, the Court finds that Plaintiff has produced sufficient evidence from

which a fact finder could reasonably believe that an invidious discriminatory reason

was more likely than not a motivating or determinative cause of Defendant’s adverse

employment actions, see discussion supra. It also rejects Defendant’s contention that

Plaintiff would be required, in the alternative, to prove that every asserted charge

against him was pretextual. ECF No. 130 at 31-32. Compare ECF No. 141 at 34

(asserting, with citation to the persuasive language of Fuentes, 32 F.3d at 764, n.7, and

other Third Circuit cases, that “it is not [Plaintiff’s] burden to provide evidence directly

contradicting each . . . reason offered by” Defendant). Cf. id. at 31 (“To survive a motion

for summary judgment . . . [Plaintiff] need only point to record facts of pretext, which

simply is evidence of inconsistencies or anomalies that could support an inference that

the employer did not act for its stated reasons.”) (citing Sempier v. Johnson & Higgins, 45

F.3d 724, 731 (3d Cir. 1995)); id. at 32. 24

24 The Court observes that Defendant misstates the legal principles which may be

drawn from the cases cited in ECF No. 149 at 11-12. It also notes that (a) the pleadings

of record suggest that one or more Board member’s vote on adverse action was

motivated/influenced by the number of serious charges brought against Plaintiff and

(b) Plaintiff has asserted that the numbers of charges brought/dropped/successfully

prosecuted are themselves evidence of the pretextual nature of proceedings/actions

taken against him. Cf. ECF No. 149 at 14 (postulating, with citation to cases, that

because charges were withdrawn, rather than added, at the Section 1080 hearing, the

number of charges is not evidence of retaliatory employment action). The freedom to

23

C. Violation of the Pennsylvania Whistleblower Law

The Pennsylvania Whistleblower Law (“PWL”), 43 P.S. §1423(a), provides that an

employer may not discharge or otherwise retaliate against an employee because he

“makes a good faith report or is about to report . . . to the employer or appropriate

authority an instance of wrongdoing or waste.” Wrongdoing in turn is defined as “a

violation that is not of a merely technical or minimal nature of a federal or state statute

or regulation, of a political subdivision ordinance or regulation of a code of conduct or

ethics designed to protect the interest of the public or the employer.” 43 P.S. §1422;

See Golaschevsky v. Dep't of Environmental Protection, 554 Pa. 157, 162, 720 A.2d

757, 759 (1998). Waste can also be a basis for a whistleblower complaint, and is defined

by statute as “conduct or omissions which result in substantial abuse, misuse,

destruction or loss of funds or resources belonging to or derived from Commonwealth

or political subdivision sources,” 43 P.S. §1422, and the referent of “substantial” is the

accused’s conduct rather than the amount of loss. ECF No. 130 at 33-34. To prove a

claim under the PWL , a plaintiff must show “concrete or surrounding circumstances . .

. connect[ing] the report with the dismissal.” Golaschevsky, supra.

Plaintiff’s Fourth Amended Complaint somewhat ambiguously alleges that he

“engaged in protected conduct by reporting wrongdoing, waste, fraud and/or abuse by

amend charges without affecting the legitimacy of a proceeding (as reflected in the

cases citated) is unrelated to Plaintiff’s assertion that an extensive enumeration of

charges of varying degrees of merit may provide further indicia of improper motivation

for adverse employment actions.

24

four employees” of the District, that his “reporting of theft by two employees was a

substantial or motivating factor in Defendants’ decision(s)” to place him on paid and

unpaid leaves of absence, and that this conduct and termination of his employment in

March, 2019 were in violation of the PWL. Plaintiff did not identify which two of the

four reports of employee misconduct he refers to. ECF No. 104 at ¶¶ 67-71.

In its Brief in Support, Defendant asserts that Plaintiff’s report of Rubinsak’s

violation of Defendant’s “Use of Facilities” policy and Hart’s violation of Plaintiff’s

directive regarding payment for cafeteria items do not fall within “wrongdoing” under

the PWL as neither involved violation of a specific statute, regulation, ordinance or code

of conduct or ethics. ECF No. 30 at 34. Defendant fails to further identify why

Plaintiff’s report of Martell’s failure to repay a tuition reimbursement, as required by his

contract, did not fall within the PWL’s definition of “wrongdoing”, and asserts that

Plaintiff’s reporting of Stephenson’s charge to Defendant’s account of his purchase of a

baseball bat for personal use “fail[ed] to identify the nature of Stephenson’s alleged

violation.” ECF No. 130 at 34-35. It also contends that no reporting fell with the PWL’s

definition of “waste” because each incident was isolated or rare and all were “de

minimus in nature, underserving of protection under the PWL.” Id. at 35. Defendant

simply does not, however, provide sufficient law (as by, e.g., citation to holdings

definitively speaking to the fact-specific assessments sub judice or to analogous cases) to

25

support these assertions on summary judgment on the present record. Cf. ECF No. 130

at 33-34.25

Defendant also contends that Plaintiff cannot establish causation because his

reports of misconduct are too attenuated and he points to insufficient surrounding

circumstances (because, e.g., “individuals who voted adversely to Plaintiff were not

even members of the Board at [the time of his reportings]”). Id. at 35. Defendant’s

similar objections as to temporality and assertions of irrelevance of evidence of

Individual Defendants’ conduct and state of mind beyond their periods on the Board

have been addressed supra. See also ECF No. 141 at 52; ECF No. 142 and Exhibits

thereto.

D. Breach of Contract

Finally, Plaintiff alleges that Defendant failed to make the contractually required

annual payment to his designated retirement program(s) for 2017-18 or 2018-19 and

lacked contractual authority to place him on paid and unpaid leaves of absence. ECF

No. 104 at 16-18 (citing Employment Contract Section 6.12, see Ex. 1).26 Plaintiff also

25 Plaintiff’s Brief in Opposition makes expanded allegations – asserting that Plaintiff’s

civil litigation against White and his filing of an EEOC complaint were also within the

PWL; setting aside any questions as to proper expansion of the claims of Count III in

this manner, this Court need not rely on the expanded allegations to deny summary

judgment on this Count. ECF No. 141 at 49-52.

26 Defendant’s argument against Plaintiff’s claim that it lacked authority to place him on

leaves of absence, ECF No. 130 at 37-38, is unrefuted in Plaintiff’s Brief in Opposition.

ECF No. 141 at 53-54.

26

alleges that Defendant failed to pay Plaintiff in full for the final bi-weekly pay period of

the 2017-18 school year.

Defendant does not appear to dispute that it was contractually required to make

an annual retirement contribution of $7,500 for applicable employment years. ECF No.

131 at ¶9. It does not advance an objection grounded in the language of Plaintiff’s

contract, nor does it establish payment of record in response to Plaintiff’s claim. ECF

No. 130 at 36-37. Plaintiff’s evidence reflects representation by Defendant’s solicitor

that Defendant’s annual retirement contribution for his 2017-18 year of employment

would not be made. And Plaintiff’s Brief in Opposition asserts this claim of non-

payment only for the 2017-18 employment year. ECF No. 141 at 54.

Plaintiff’s annual salary was increased by 3.5% effective July 1st of each contract

year, and for the 2017-18 contract year that amount was $161,647.20. Defendant’s

Earnings History Account Breakdown identifies 26 checks issued in the amount of

$6,217.20 (the biweekly salary equaling Plaintiff’s annual salary) to Plaintiff between

July 7, 2017 and June 22, 2018. ECF No. 131 at ¶¶ 8-12; id. at Ex. E. Defendant’s

Breakdown also reflects a payment on July 6, 2018 of $643.48, assertedly in payment – at

the 2018-19 adjust salary rate of $167,304.99 – of Plaintiff’s one day of work on July 2,

2018. This document does not itself, however, specify the pay period for which these

amounts were disbursed. Plaintiff’s documentary evidence includes a different

employment record, also apparently generated by Defendant, which appears to

evidence pay periods for these disbursals which would support his allegation that

27

Defendant did not pay its employees in advance and therefore he was not paid for all

subsequent work. ECF No. 141 at 53; ECF No. 142 at 9267.

In sum, the record reflects questions of material fact as to Defendant’s breach of

contract as well.

V. CONCLUSION

After construing the facts and drawing all reasonable inferences in the light most

favorable to the nonmoving party, and undertaking a thorough review of the parties’

legal analysis, the Court concludes that the record reflects myriad issues of material fact

and is sufficient to maintain Plaintiff's claims as to Counts I, IJ and IV. It further

concludes that on the present record Count II raises a close Constitutional question

inappropriate for decision on summary judgment.

By the Court:

Fore

Lisa Pupo Lenihan

United States Magistrate Judge

cc: Counsel of

record

28