# SWEDA v. UPPER BUCKS COUNTY TECHNICAL SCHOOL

> District Court, E.D. Pennsylvania · June 3, 2025

URL: https://www.frixlaw.com/law-library/cases/11064360

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** June 3, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________
:
JOHN JEFFREY SWEDA, :
: CIVIL ACTION
Plaintiff, :
:
v. : No. 22-1787
:
UPPER BUCKS COUNTY TECHNICAL :
SCHOOL, :
:
Defendant :
_________________________________________ :

MEMORANDUM OPINION
Goldberg, J. June 3, 2025
Defendant, the Upper Bucks County Technical School (“UBCTS”) moves for the entry of
summary judgment regarding claims brought by its former employee, Plaintiff John Jeffrey Sweda.
According to Sweda, he was denied due process under the Fourteenth Amendment, and was
unlawfully terminated in retaliation for exercising his First Amendment rights and in violation of
public policy under Pennsylvania common law.
For the reasons set forth below, Defendant’s motion will be granted in part and denied in
part. There is sufficient evidence to warrant submission of Plaintiff’s First Amendment claims to
a jury, however, judgment shall be entered in Defendant’s favor on his federal procedural due
process and state law wrongful termination claims.
I. FACTUAL AND PROCEDURAL HISTORY1
This case arose in the late summer and Fall of 2021 in the aftermath of the COVID-19
pandemic. Plaintiff Sweda had been employed as the Administrative Director of the UBCTS since
July 2018, responsible for overseeing the secondary (high school) and adult education programs

and all related staff. (Pl.’s Am. Compl., ¶ ¶ 8-9; Def.’s Ans., ¶¶ 8-9). UBCTS is run by a Joint
Operating Committee (JOC), which functions as the equivalent of a School Board. (Am. Compl.,
¶¶ 5-6; Def.’s Ans., ¶¶ 5-6). The JOC is comprised of nine members selected from the school
boards of the three “sending” school districts – Quakertown, Pennridge, and Palisades. (Id.; Def.’s
Mot. for Summ. J., Ex. G (Dep. of John Jeffrey Sweda), 119). Sweda reported directly to
whichever of the three sending School District Superintendents was serving as the “Superintendent
of Record” in a given year.2 For the three years prior to his termination, Sweda’s job performance
was rated good overall, he met all of the goals that had been set for him, received regular salary
increases, and his initial three-year employment contract was renewed for another three years in
July of 2021. (Am. Compl., ¶¶ 14-16; Ans., ¶ 14; O’Connell Dep., 38-39, 45; Pl.’s Resp. in Opp.

to Def.’s Mot. Summ. J., Ex. (Dep. of William Harner, 79-80)).
Pursuant to federal regulations governing the re-opening and operation of schools during
the COVID-19 pandemic in the Fall of 2021, UBCTS was required to and did develop a health
and safety plan which would align with the most up-to-date directives and guidance from the Bucks
County and Pennsylvania Health Departments and the Centers for Disease Control. (Am. Compl.,

1 The facts recited are taken from the Plaintiff’s Amended Complaint, the Defendant’s Answer,
and the exhibits and deposition transcripts provided in support of and in opposition to Defendant’s
Motion for Summary Judgment.

2 Every two years, the Superintendent of Record for the UBCTS rotated from one of the
Quakertown, Pennridge and Palisades School District Superintendents to another. (Am. Compl.,
¶ 9; Def.’s Ans., ¶ 9; Def.’s Mot. for Summ. J., Ex. K (Dep. of Bridget O’Connell, 30-32)).
¶ ¶ 26, 29-30; Harner Dep., 80; Sweda Dep., 97-99)). In mid-August 2021, Sweda sent a letter to
the families of all UBCTS students advising that, in line with the then-current guidance, the school
would be reopened in the fall with mask-optional attendance. However, several days after Sweda’s
letter was sent and in apparent response to then-increasing positive COVID case counts, the

guidance changed to require masking in schools. As a result, Sweda updated the UBCTS health
and safety plan and sent a revised letter to students and their families informing them that as of
August 30, 2021, masks would be required to be worn in UBCTS. (Am. Compl., ¶¶ 32-35; Def.’s
Mot. for Summ. J., Ex. I (Dep. of Megan Banis-Clements, 140-141, 143-146); Pl.’s Resp. in Opp.
to Mot. for Summ. J., Ex. F (Sweda Sworn Declaration, ¶¶ 7-8)).
Notwithstanding the information and guidance issued by the local, state and federal health
authorities, on August 19, 2021, in a public meeting, the JOC voted to reject the school’s updated
health plan mandating the wearing of masks and instead elected to follow a policy previously
adopted by the Pennridge School District allowing parents to exempt their children from the mask
requirements by signing an exemption form stating their child had a health condition that justified

their not wearing a mask. Under this policy, which became colloquially known as the “Pennridge
Option,” no doctor’s note or other medical documentation was necessary to invoke the masking
exemption. (Am. Compl., ¶¶ 35-38; Sweda Dep., 145-150; Sweda Decl., ¶¶ 9-12; Banis-Clements
Dep., 146-159, 168-170, 172-179). On September 4, 2021, Pennridge School Board member and
then-Vice Chair of the JOC, Megan Banis-Clemens, ordered Sweda to send a letter to the school
community stating that it was then the UBCTS policy to allow parents to decide whether their
children should wear masks or face shields in school, and clarifying that students who did not mask
could not be removed from school. (Am. Compl., ¶ 51; Def.’s Mot. for Summ. J., Ex. J (Dep. of
Chris Spear), 91-95, 98-99; Banis-Clements Dep., 179-186; 193-200; Sweda Dep., 123-125).
After trying but failing to persuade the JOC to change its position and only after receiving advice
from the JOC solicitor that Ms. Banis-Clemens’ letter could issue if five or more members of the
Board agreed, Sweda sent her letter in early September 2021. (Sweda Dep., 126-131; Banis-
Clemens Dep., 176-182, 222-227, 234-238; Sweda Decl., ¶ 38).

Concerned that the JOC’s actions were in violation of the law and could harm vulnerable
UBCTS students and faculty and jeopardize the school’s federal and state funding, Sweda
contacted the Pennsylvania Department of Education seeking clarification on whether the JOC
could approve a policy whereby the parents could sign a waiver of the mask requirement without
providing medical documentation. (Am. Compl., ¶ 49; Harner Dep., 80-81, 121-122; Sweda Dep.,
171-172). Sweda’s actions greatly upset Ms. Banis-Clemens. (Am. Compl., ¶ 50; Sweda Dep.
172-173; Banis-Clemens Dep., 182-186; Spear Dep., 75-76).
Shortly thereafter, on or about September 12, 2021, Sweda received a communication from
Sherri L. Smith, the Acting Deputy Secretary of the Pennsylvania Department of Education
addressed to all Pennsylvania school administrators addressing what appeared to be significant

non-compliance with the masking requirements in both public and non-public schools. Acting
Deputy Secretary Smith’s letter clarified that the Pennsylvania Department of Education’s recent
order “was not a mask optional policy,” and that “any school entity simply permitting a parent’s
sign-off without evidence that the student has a medical or mental health condition or disability
that precludes the wearing of a face covering is not in compliance.” (Sweda Dep., 161-167; Harner
Dep., 119-122). On September 16, 2021, at the regularly-scheduled JOC Board meeting, Sweda
submitted a letter to the Board in which he outlined the substance of Smith’s communication and
what he believed could be the legal and other consequences of not following a mandatory mask
policy and urging the JOC to reject the so-called “Pennridge Option.” (Sweda Decl., ¶¶ 35-36).
Nevertheless, the JOC in a 6-3 vote, re-affirmed the Pennridge Option, and permitted parents to
sign-off that their children should not wear masks without requiring them to produce medical
evidence to support their exemptions. (Banis-Clemens Dep., 244-246; Sweda Dep., 171-172;
Sweda Decl.,¶¶ 37).

Although Sweda himself had recruited and hired William Gerhard to the position of
Building and Grounds Supervisor at UBCTS prior to COVID, as early as August of 2020, he began
finding problems with Gerhard’s job performance. (Sweda Dep., 176-180). As a result of these
performance deficiencies, Gerhard was placed into a progressive discipline process under the
guidance of the UBCTS solicitor and its HR director. (Id., 181-183). In early September 2021,
Sweda began to consider demoting and/or suspending Gerhard, and he brought Gerhard’s job
performance problems to the attention of the JOC in executive session at the meeting on September
16, 2021. (Id.). A few weeks later, Sweda informed Gerhard of his possible demotion/suspension.
Gerhard responded by becoming very angry and, after lashing out and swearing at Sweda, he then
proceeded to take two weeks off from the job using his accrued sick time. (Id., 184-187; Sweda

Decl., ¶¶ 43-45).
At or around this same time – several weeks after the September 16, 2021 executive and
regular JOC meetings – Banis-Clemens informed Sweda that the JOC had decided to conduct
confidential interviews of all of UBCTS’s employees, beginning with the distribution of a survey
by the (Bucks County) Intermediate Unit. The intended purpose of the interviews and when they
took place is unclear, but Banis-Clements informed Sweda that participation was not voluntary.
(Banis-Clemens Dep., 269, 271-274, 278). Although he believed the interviews would prove
disruptive to the school’s operations, Sweda responded by agreeing to send out the IU survey to
UBCTS employees. (Sweda Decl., ¶ 41).
On November 8, 2021, Gerhard voluntarily resigned from his position. In addition to his
letter of resignation, Gerhard sent a letter to the JOC complaining about and making numerous
accusations of wrongdoing against Sweda. (Am. Compl., ¶ 94; Ans., ¶ 94; Sweda Decl., ¶¶ 42).
Although the JOC had reason to question Gerhard’s motives and the veracity of his allegations

having had knowledge of the personnel issues between he and Sweda, the JOC nevertheless placed
Sweda on immediate administrative suspension and retained the Pennridge School District’s
solicitor to investigate Gerhard’s accusations. (Am. Compl., ¶¶ 98-99; Ans. ¶ 98-99; Sweda Decl.,
¶¶ 45-47, 57; Banis-Clemens Dep., 286-290; O’Connell Dep., 87). At the time of Sweda’s
suspension, Dr. Bridget O’Connell, the Palisades School District Superintendent, was serving as
the Superintendent of Record for the UBCTS and was Sweda’s supervisor. Under the School’s
Operating Policy No. 828, the Superintendent of Record was charged with the duty of initiating
investigations into complaints against the Administrative Director. (Sweda Decl., ¶ 49).
O’Connell, however, was not consulted by any member of the JOC before the decision was made
to suspend Sweda and retain the Pennridge solicitor, nor had she been made aware that the JOC

had previously decided to have every teacher in the Technical School interviewed. (O’Connell
Dep., 86-91; Sweda Decl., ¶ 50-52).
The investigation into Gerhard’s claims lasted some five weeks, during which time the
August 31, 2021 Order requiring masks was vacated by the Pennsylvania Commonwealth Court,
and Banis-Clemens replaced James Hallowell as Chair of the JOC. (Banis-Clemens Dep., 291-
295; Am. Compl., ¶ 101; Ans., ¶ 101). In late December 2021, the JOC concluded its investigation
and sent Sweda a “Statement of Charges” in anticipation of terminating him from his position.
Sweda’s pay and benefits were also suspended at that time. (Am. Compl., ¶¶ 112, 114; Ans. ¶ 112;
Sweda Decl., ¶ 59). Sweda filed a motion to reinstate his pay and benefits and requested a private
hearing under the Pennsylvania Public School Code. (Am. Compl., ¶¶ 115-117; Ans. ¶ 115-117;
Sweda Decl., ¶¶ 59-61). In disregard of Sweda’s request, the JOC met publicly in early January
2022 and voted to proceed to a termination hearing and published its Statement of Charges on its
website. (Am. Compl., ¶¶ 115-120; Ans. ¶¶ 115-120; Banis-Clemens Dep., 314-317; Sweda Decl.,

¶ 62; Def.’s Mot. for Summ. J., Ex. B). No alternative outcomes were considered and the meeting
lasted approximately one-half hour. Between January and April of 2022, the JOC held six separate
hearings on the subject of Sweda’s termination, culminating in the JOC’s 8-1 vote on April 7, 2022
to terminate his employment on all nine charges.3 (Def.’s Mot. for Summ. J., Ex. C).
Sweda filed this civil action on May 9, 2022 and also appealed his termination to the
Secretary of Education, which upheld the JOC’s decision on the sole ground of Sweda’s
intemperate use of profane or abusive language. (Banis-Clemens Dep., 319-318; Def.’s Mot. for
Summ. J., Ex. D). Sweda filed a further appeal to the Pennsylvania Commonwealth Court which
affirmed on May 20, 2024, agreeing with the Secretary of Education’s determination that Sweda’s
use of profane or abusive language in violation of the School’s Policy #317 “constituted the

persistent and willful violation of school laws under Section 1122 of the School Code, 24 P.S. §
11-1122.” (Def.’s Mot. for Summ. J., Ex. E). The UBCTS moved for summary judgment in this
case on July 22, 2024.
II. LEGAL STANDARDS

3 The charges against Sweda concerned the purchase and use of a school log splitter, awarding
of a contract for spray cleaning services, and Sweda’s alleged failure to submit a competitive grant
application on time, using gas from the school’s gas pump for his private vehicle, disabling of an
external security camera and moving of a picnic table, having an extra-marital dalliance with one
of the school’s female teachers, and his “intemperance” or swearing at other teachers and staff
members.
Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary judgment,
identifying each claim or defense – or the part of each claim or defense on which summary
judgment is sought.” The motion shall be granted and judgment entered “if 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.” Id. “A genuine dispute exits ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Stone v. Troy Construction, LLC, 935 F.3d 141, 148,
n. 6 (3d Cir. 2019) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A “judge’s
function” in evaluating a motion for summary judgment is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Salazar-Limon v. City of Houston, 137 S. Ct. 1277, 1280 (2017) (quoting Anderson, 477 U.S. at
249). To ascertain whether a genuine issue of material fact exists, the Court must review the record
as a whole. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000). “The issue of
material fact required . . . to be present to entitle a party to proceed to trial is not required to be
resolved conclusively in favor of the party asserting its existence.” Anderson, 477 U.S. at 248-

249. “[R]ather, all that is required is that sufficient evidence supporting the claimed factual dispute
be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
Id. at 249 (internal citation omitted). While the evidence that the non-moving party presents may
be either direct or circumstantial, and need not be as great as a preponderance, the evidence must
be more than a scintilla. Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
And, in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed,
and all justifiable inferences are to be drawn in that party’s favor. Tolan v. Cotton, 572 U.S. 650,
651 (2016) (per curiam); Scott v. Harris, 550 U.S. 372, 378, (2007). “This standard is applied with
added rigor in employment discrimination cases, where intent and credibility are crucial issues.”
Stewart v. Rutgers, State Univ., 120 F.3d 426, 431 (3d Cir. 1997) (internal citation omitted).
“Finally, where the First Amendment is involved,” courts “undertake exacting review of the entire
record with a particularly close focus on facts that are determinative of a constitutional right.”
Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 270 (3d Cir. 2007) (internal quotation marks

and citations omitted).
III. DISCUSSION
Previously, I partially granted UBCTS’s Rule 12(b)(6) motion to dismiss and dismissed
Sweda’s claims against Megan Banis-Clemens, his claims under the Pennsylvania Whistleblower
Law, 43 P.S. § 1422, and two of his wrongful termination claims with prejudice. Left in place
were Sweda’s § 1983 First Amendment Discrimination/Retaliation and Fourteenth Amendment
Deprivation of Due Process claims in Counts I, II, and III of the Amended Complaint, and his
wrongful termination claim under Pennsylvania state law in Count VII. UBCTS now moves for
the entry of summary judgment in its favor on all four of the remaining counts.
A. Plaintiff’s § 1983 Claims

By its clear language, the purpose of 42 U.S.C. § 1983 is to provide a cause of action
against “every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State” deprives another of a federal constitutional or statutory right. To succeed on a claim
under § 1983 and establish liability thereunder, a plaintiff must therefore demonstrate that the
defendant, acting under color of law, violated the plaintiff’s federal constitutional or statutory
rights, causing the injury complained of. Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005). “The
first step in evaluating a section 1983 claim is to ‘identify the exact contours of the underlying
right said to have been violated’ and to determine ‘whether the plaintiff has alleged a deprivation
of a constitutional right at all.’” Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir.
2015) (quoting Nicini v. Mora, 212 F.3d 798, 806 (3d Cir. 2000)).
Sweda asserts that during the COVID-19 pandemic, the issue of whether state and federal
governmental authorities had the power to compel citizens to comply with safety measures like

masks, isolation, social distancing, and vaccinations was a “hot button political issue.” (Am.
Compl., ¶ 165). He claims his termination violated his rights to freedom of speech and association
given that he had a right under the First Amendment to disagree and disassociate with the “No
Masking Mandate” faction of the JOC and speak out about his concerns that the “Pennridge
Option” was in contravention of the then-existing CDC guidance and orders from the Pennsylvania
and Bucks County Health Departments. Sweda further alleges his right to due process of law was
violated when the JOC met and decided to suspend him without the Superintendent of Record in
attendance in violation of School Board Policy 828, and denied his request to expand the hearings
to inquire into the retaliatory motives of several of its members.4
1. UBCTS’ Alleged Violation of Plaintiff’s Right to Free Speech

It has been clearly established that a state may not discharge a public employee on a basis
that infringes upon the employee’s constitutionally protected interest in freedom of speech. Rankin
v. McPherson, 483 U.S. 378, 383 (1987) (citing Perry v. Sinderman, 408 U.S. 593, 597 (1972)).
Indeed, the Supreme Court has recognized that the protections of the First Amendment extend to

4 The First Amendment provides that “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press, or the right of the people to peaceably assemble and to petition the Government for a redress
of grievances.” And Section 1 of the Fourteenth Amendment prohibits “any State” from depriving
“any person of life, liberty, or property, without due process of law.” The First Amendment applies
with equal force to the States through the Fourteenth Amendment. Mills v. Alabama, 384 U.S.
214, 218 (1966).
both teachers and students, “neither of whom ‘shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate.’” Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 527
(2022) (quoting Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506
(1969)).

However, this is not to say that the “speech rights of public school employees are so
boundless that they may deliver any message to anyone anytime they wish.” Id. “In addition to
being private citizens, teachers and coaches are also government employees paid in part to speak
on the government’s behalf and convey its intended messages.” Id. Thus, given that the State has
an interest as an employer with respect to certain speech by its employees, the courts must “strike
a balance between the interests of the employee as a citizen, in commenting upon matters of public
concern, and the interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.” O’Donnell v. Yanchulis, 875 F.2d 1059, 1060 (3d Cir.
1989) (quoting Pickering v. Board of Education, 391 U.S. 563, 568 (1968)).
This balancing typically involves two steps. The first step requires a threshold inquiry into

the nature of the speech at issue. Kennedy, 597 U.S. at 527. “If a public employee speaks pursuant
to [his] official duties, . . . the Free Speech Clause generally will not shield the individual from an
employer’s control and discipline because that kind of speech is – for constitutional purposes at
least – the government’s own speech.” Id. (internal quotation marks and citation omitted).
However, when an employee “speaks as a citizen addressing a matter of public concern, . . . the
First Amendment may be implicated and [the] courts should proceed to a second step” where they
should engage in “a delicate balancing of the competing interests surrounding the speech and the
consequences.” Id. at 528.
Accordingly, when considering First Amendment retaliation claims such as Sweda
presents here, courts “first inquire whether the speech at issue is, in fact, constitutionally protected,
and then consider whether the government had an ‘adequate justification’ for treating the employee
differently than the general public based on its needs as an employer.” Bradley v. W. Chester Univ.

of the Pa. State Sys. of Higher Educ., 880 F.3d 643, 648 (3d Cir. 2018). If the employee shows
the speech in question is protected by the First Amendment and the speech was a substantial or
motivating factor in the alleged retaliatory action, the burden then shifts to the employer to prove
that the same action would have been taken even if the speech had not occurred. Dougherty v.
Sch. Dist. of Phila., 772 F.3d 979, 986 (3d Cir. 2014).
It is noteworthy that “speech involves a matter of public concern when, considering the
‘content, form, and context of a given statement,’ it can ‘be fairly considered as relating to any
matter of political, social, or other concern to the community . . . disclosing corruption, fraud, and
illegality in a government agency is a matter of significant public concern.’” Id. at 987 n.5 (quoting
Connick v. Myers, 461 U.S. 138, 146, 147-148 (1983) and Feldman v. Phila. Hous. Auth., 43 F.3d

823, 829 (3d Cir. 1994)). Speech has also been deemed to deal with matters of public concern
when it is a subject of legitimate news interest. Snyder v. Phelps, 562 U.S. 443, 453 (2011). And
the fact that the speech concerns information related to or learned through public employment does
not automatically strip it of its First Amendment protection – there is considerable value in
encouraging, rather than inhibiting speech by public employees given they are often in the best
position to know what ails the agencies for which they work. Lane v. Franks, 573 U.S. 228, 236
(2014). In this regard, “[t]he interest at stake is as much the public’s interest in receiving informed
opinion as it is the employee’s own right to disseminate it.” Id. (quoting San Diego v. Roe, 543
U.S. 77, 82 (2004) (per curiam)).
In speaking out about and seeking clarification on the JOC’s adoption of the Pennridge
option, Sweda may be found to have been speaking on a matter that clearly concerned the public,
and in particular, the staff and students of UBCTS and their families. To be sure, the COVID-19
pandemic was ongoing in the Fall of 2021 and the guidance from the federal, state, and local health

authorities was frequently changing. In submitting a letter to the Department of Education asking
for guidance on the legality of the Pennridge Option and presenting his concerns to the JOC at its
September 16, 2021 regularly scheduled meeting, Sweda was expressing his fears and health
concerns for his students and teaching staff, and stating his belief that allowing parents to exempt
their children from wearing masks in the school without providing medical evidence violated the
federal, state and local directives requiring masks to be worn. This is arguably speech protected
by the First Amendment.
Further, despite his concerns, it is undisputed that Sweda followed the JOC’s directive and
implemented the Pennridge Option following the decision to proceed with its adoption. Nor is
there any evidence in the record that communicating with the Pennsylvania Department of

Education or seeking health guidance were among the job duties which Sweda regularly
performed. This supports the inference that in his role as the Administrative Director of the
technical school, Sweda had no responsibility for setting or making policy decisions. And given
the close proximity in time between the various events which occurred between late August and
early November 2021 – including Banis-Clemens’ exclamation that Sweda “reported us” – it could
also be inferred that Sweda’s Department of Education inquiry and expression of his concerns at
the September 16, 2021 JOC meeting were substantial or motivating factors in its decisions to
begin interviewing all school employees, commence an investigation into Gerhard’s allegations
without informing the Superintendent in Charge, and ultimately suspend him. Accordingly, I find
the burden is properly shifted to UBCTS to prove it would have taken the same actions even if
Sweda had not spoken out.
Turning to this second part of the equation – whether the same action would have been
taken, whether ‘adequate justification’ existed for treating Sweda differently than the general

public based on the school’s needs as an employer, and whether Sweda’s First Amendment right
to speak freely should therefore yield to the school’s interests in promoting the efficiency of the
public services it performs, UBCTS has offered no evidence or argument. In the absence of such
necessary evidence, I find UBCTS has failed to carry its burden of demonstrating the absence of a
genuine dispute as to these material facts and that it is entitled to the entry of judgment in its favor
as a matter of law. UBCTS’s motion for summary judgment is therefore denied as to Count II of
the Amended Complaint.
2. UBCTS’ Alleged Violation of Plaintiff’s Right to Freedom of Association
Summary judgment is also sought with respect to Count I, in which Sweda claims UBCTS
violated his First Amendment right to freedom of association in terminating him.

As the Supreme Court has observed: “if there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess by word or act, their
faith therein.” Elrod v. Burns, 427 U.S. 347, 356-357 (1976) (quoting Board of Education v.
Barnette, 319 U.S. 624, 642 (1943)). The fixed star referred to in Elrod is the First Amendment
and there is no doubt that it includes the “freedom to associate with others for the common
advancement of political beliefs and ideas,” or that this freedom is also protected against state
infringement by the Fourteenth Amendment. Id. at 357.
In application, the First Amendment generally prohibits government officials from
dismissing or demoting an employee because of that employee’s actual or believed participation
in constitutionally protected political activity. Heffernan v. City of Paterson, N.J., 578 U.S. 266,
268, 273-274 (2016). It is not, however, without limits. “Where it can be shown that party

affiliation is an acceptable requirement for some type of government employment or that an
employee’s private political beliefs would interfere with the discharge of his public duties, his first
Amendment rights may be required to yield to the State’s vital interest in maintaining
governmental effectiveness and efficiency.” DeFiore v. Vignola, 835 F. Supp. 249, 251 (E.D. Pa.
1993) (citing Branti v. Finkel, 445 U.S. 507, 517 (1980)). As a consequence, public
agencies/entities may not constitutionally discharge employees based on their political affiliation
when those employees’ positions are neither policymaking nor advisory; in those instances, an
employee’s First Amendment right outweighs the Government’s interest in maintaining a system
of political patronage. Goodman v. Pennsylvania Turnpike Comm’n., 293 F.3d 655, 663 (3d Cir.
2002) (citing Elrod, 427 U.S. at 372-373, and Branti, 445 U.S. at 514-515).5 Moreover, affiliation

with a particular political faction or party is not necessary for a discharge on patronage grounds to

5 The test for ascertaining whether a position falls within the definition of “policymaking” is
generally one of fact, which requires inquiry into whether an employee (1) has duties that are non-
discretionary or non-technical, (2) participates in discussions or other meetings, (3) prepares
budgets, (4) possesses the authority to hire and fire other employees, (5) has a high salary, (6)
retains power over others, and (7) can speak in the name of policymakers. Minor v. River, 70 F.4th
168, 176 (3d Cir. 2023). Although there is no evidence in this record with regard to Sweda’s salary
or the extent to which he participates in the preparation of budgets, retains power over others, or
can speak in the name of policymakers, it does appear that he participates in some JOC and other
meetings, but does not have any non-discretionary/non-technical duties. Given that he could only
recommend Gerhard’s termination, he obviously also does not have the authority to unilaterally
hire and fire. All in all, I find this evidence militates in favor of the conclusion that Sweda’s
position was neither policymaking nor advisory. Accordingly, his First Amendment rights
outweigh any interests which the JOC may have had in requiring him to align politically with its
members.
be actionable. “Freedom of association . . . plainly presupposes a freedom not to associate,” and
“is as protected as the right to associate.” Roberts v. United States Jaycees, 468 U.S. 609, 623
(1984); Galli, 490 F.3d at 274; Bennis v. Gable, 823 F.2d 723, 731 (3d Cir. 1987); Christy v. Pa.
Turnpike Comm’n, 904 F. Supp. 427, 430 (E.D. Pa. 1995).

To make out a prima facie case of discrimination based on political patronage in violation
of the First Amendment, a plaintiff must show that (1) he was employed at a public agency in a
position that does not require political affiliation, (2) he was engaged in constitutionally protected
conduct, and (3) this conduct was a substantial or motivating factor in the government’s
employment decision. Galli, 490 F.3d at 271. Once this demonstration has been made, the
defendant employer may avoid a finding of liability by proving by a preponderance of the evidence
that the same employment action would have been taken even in the absence of the protected
activity. Id. (internal quotation marks and citation omitted).
By its own admission in its Memorandum of Law in Support of its Motion for Summary
Judgment: “[t]he Upper Bucks County Technical School is a public entity that does not require its

[e]mployees to have a particular political affiliation, association or belief.” (Def.’s Mem. of Law
in Supp. of Mot. for Summ. J., 3, ECF No. 34-16). By this statement, the first part of the three-
part test articulated in Galli has been satisfied.
UBCTS next argues Sweda “must establish that an unofficial political affiliation
requirement existed, [and] he must define that affiliation.” Id. Two types of association are
protected under the First Amendment: expressive and intimate. Roberts v. Mentzer, 382 F. App’x
158, 163 (3d Cir. 2010). Expressive association protects the right of individuals “to gather and/or
associate in order to pursue political, social, economic, educational, religious, and cultural ends,”
and “[i]ntimate association protects the closest and most interdependent of human relationships
against state interference.” Id. An association that seeks to transmit a system of values is said to
be engaging in expressive activity. Boy Scouts of Am. v. Dale, 530 U.S. 640, 650 (2000). Here,
Sweda argues UBCTS has recognized “[i]t is his political association with others whose stance
was similar on masking exemptions that Plaintiff believes is protected under the First

Amendment.” (Def.’s SJ Memorandum, at 4).
As was observed by the Third Circuit,
In the wake of the COVID-19 pandemic, federal, state, and local governments
scrambled to implement policies to control the spread of the disease . . . which
included mandates to wear face masks in public indoor spaces such as schools, . . .
[and] spawned skepticism and debate. Some objectors voiced their discontent
online, some turned to their elected representatives, and some asked the courts to
intervene. Others took less trodden paths.

Falcone v. Dickstein, 92 F.4th 193, 197 (3d Cir. 2024). See also, Amalgamated Transit Union
Local 85 v. Port Authority of Allegheny County, 39 F.4th 95, 103-104 (3d Cir. 2022) (“Port
Authority’s mask rules restrict speech on matters of public concern.”); Doe v. Salina, Civ. No. 23-
3529, 2024 U.S. Dist. LEXIS 224362 *1, n.1, *64 (E.D. N.Y. Dec. 11, 2024) (noting that
“throughout the pandemic, masks in the classroom has emerged as a highly contentious issue” and
that “COVID-19 mask mandates spawned a fertile ground of litigation,” but acknowledging
plaintiff had a First Amendment right to express her viewpoints “regarding the mask mandate and
other political topics.”).
As the foregoing reflects, mask rules were matters of public concern, and it was not
uncommon for sides to be chosen on the matter of masking during the pandemic. UBCTS argues
that Sweda “has failed to produce evidence to show that a ‘No Mandate’ faction existed within the
JOC at UBCTS,” and “has therefore also failed to produce evidence to show Plaintiff’s rejection
of the ‘No Mandate’ faction.” (Id. at 5). But this argument is belied by the deposition testimony,
emails, and other evidence in the record. Indeed, this evidence shows a clear difference of opinion
existed between Megan Banis-Clemens and Chris Spear and the five other JOC members (Kern,
Reiss, Mitchell, Cormack and Ott) who agreed to the adoption of the Pennridge Option on the one
hand, and the other JOC members (Hallowell, Ochmanowicz, and Freeman), school
superintendents (O’Connell, Harner, and Bolton), and solicitors from the JOC and the three

sending school districts on the other. These latter JOC members, solicitors and superintendents
either disagreed or did not wholly agree with Banis-Clemens’ reading of the information and
guidance from the federal, state and local health authorities and the Pennsylvania Department of
Education that medical documentation need not accompany a parental waiver. Insofar as Sweda
likewise disagreed with the interpretation that medical proof of a qualifying disability was not
necessary, a jury could well find he was engaged in constitutionally-protected associational
conduct in refusing to associate with the JOC’s “No Mask faction.” Thus, the second part of the
three-part Galli test has been sufficiently shown to warrant denial of UBCTS’ motion.
Turning to the third Galli prong – that the conduct was a substantial or motivating factor in
the employment decision – I also find the record contains enough evidence to merit submission to

a jury. Again, within weeks of the JOC’s informal and then formal adoption of the Pennridge
Option on September 3 and September 16, 2021 and Banis-Clemens learning of Sweda’s inquiry
to the Pennsylvania Department of Education, a jury could conclude that the decision to begin
interviewing all faculty and staff would be, as Sweda testified, disruptive to the school’s
operations. Thereafter, immediately upon receipt of Gerhard’s accusations on November 8th, and
without consulting or providing any notice to Sweda’s supervisor, the JOC decided to suspend
him.
As I previously noted in my Memorandum Opinion of August 18, 2023 disposing of
UBCTS’s motion to dismiss, “[s]uggestive timing or temporal proximity can indicate a causal link
between protected conduct and an allegedly retaliatory action,” and “circumstantial evidence, such
as a pattern of antagonism, may allow an inference of causation” to be drawn. (Mem. Op. Aug.
18, 2023, 14, ECF No. 23). While the timing of these events may indeed be nothing more than
coincidence, and a jury could find that Sweda would have been terminated anyway for swearing,

I find these are matters are best left to a fact finder. And given the presence of evidence that the
extent of Sweda’s use of profanity, though admitted, was occasional, used behind closed doors and
in the context of general conversation among co-workers, I cannot make the factual finding that
UBCTS would have terminated him for this reason alone. The motion for summary judgment is
therefore also denied as to Count I of the Amended Complaint.
3. Deprivation of Due Process
In Count III, Sweda asserts UBCTS deprived him of his Fourteenth Amendment right to
due process of law insofar as it failed to follow the procedures outlined in the School Code of
1949, 24 P.S. § 1-101, et. seq. in terminating his employment. Specifically, Sweda submits that
the technical school failed to properly terminate his employment under one or more of the grounds

enumerated in 24 P.S. §11-1122, and deprived him of the full pay and benefits to which he was
entitled under 24 P.S. § 11-1122 pending a final determination on the charges. He also contends
he was deprived of the private hearing to which he was entitled upon request pursuant to 24 P.S. §
11-1126.
In relevant part, the Fourteenth Amendment provides that no “State shall deprive any
person of life, liberty, or property, without due process of law.” When a plaintiff sues under § 1983
for a state actor’s failure to provide procedural due process, a “familiar two-stage analysis” is
employed “inquiring (1) whether the asserted individual interests are encompassed within the
fourteenth amendment’s protection of life, liberty or property; and (2) whether the procedures
available provided the plaintiff with due process of law.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d
Cir. 2000) (internal quotation marks and citations omitted).
Turning to the first step – determining whether the asserted individual interests are
encompassed within the Fourteenth Amendment’s protection of life, liberty, or property – Sweda

of course, is claiming he had a constitutionally-protected property interest in his employment. But
property interests are not created by the Constitution. Board of Regents v. Roth, 408 U.S. 564,
577 (1972). “Rather, they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law – rules or understandings
that secure certain benefits and that support claims of entitlement to those benefits.” Id. To have
a property interest in a job, a person must have more than an abstract need or desire, or a unilateral
expectation of continued employment; he must have a legitimate entitlement to it. McKinney v.
Univ. of Pittsburgh, 915 F.3d 956, 960 (3d Cir. 2019). Although at-will employees generally do
not have a legitimate entitlement to continued employment because they serve solely at the
pleasure of their employers, such an entitlement may arise from the circumstances of service or

from any such rules or mutually explicit understandings that would support a claim of entitlement.
Perry v. Sinderman, 408 U.S. at 601-602; Elmore v. Cleary, 399 F.3d at 282. Here, UBCTS
acknowledges that Sweda was not employed at-will, and the record shows he was a contracted
public school employee entitled to certain safeguards and procedures under Pennsylvania state
law.6 Accordingly, Sweda had a property interest in his employment which fell within the ambit
of the due process protections afforded under the Fourteenth Amendment.

6 Indeed, 24 P.S. § 11-1122(a) provides as follows in pertinent part:

The only valid causes for termination of a contract heretofore or hereafter entered
into with a professional employe shall be immorality; incompetency; unsatisfactory
teaching performance based on two (2) consecutive ratings of the employe’s
“[O]nce it is determined that the Due Process Clause applies, ‘the question remains what
process is due.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (quoting
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). I thus now turn to the second part of the § 1983
analysis which requires examination of the processes provided to Sweda to determine whether they

were sufficient to meet the standards for due process.
As the Supreme Court reiterated in Loudermill, it is an “essential principle of due process”
that a deprivation of life, liberty or property be preceded by notice and opportunity for hearing
“appropriate to the nature of the case.” Id. at 542. (internal citation omitted). “This principle
requires ‘some kind of a hearing’ prior to the discharge of an employee who has a constitutionally
protected property interest in his employment.” Id. (quoting Board of Regents v. Roth, 408 U.S.
at 569-570 and Perry v. Sinderman, 408 U.S. at 599). Indeed, the “‘root requirement’” of the Due
Process Clause” has been described “as being that an individual be given an opportunity for a
hearing before he is deprived of any significant property interest.” Id. (emphasis in original).
Though necessary, the pretermination “hearing” need not be elaborate, and the formality and

procedural requisites for the hearing can vary, “depending upon the importance of the interests
involved and the nature of the subsequent proceedings.” Id. at 545 (quoting Boddie v. Connecticut,

teaching performance that are to include classroom observations not less than four
(4) months apart, in which the employe’s teaching performance is rated as
unsatisfactory; intemperance; cruelty; persistent negligence in the performance of
duties; wilful neglect of duties; physical or mental disability as documented by
competent medical evidence, which after reasonable accommodation of such
disability as required by law substantially interferes with the employe’s ability to
perform the essential functions of his employment; advocation of or participating
in un-American or subversive doctrines; conviction of a felony or acceptance of a
guilty plea or nolo contendere therefor; persistent or wilful violation of or failure to
comply with school laws of this Commonwealth (including official directives and
established policy of the board of directors); on the part of the professional
employe; . . .
401 U.S. 371, 378 (1971)). To be sure, “due process is flexible and calls for such procedural
protections as the particular situation demands.” Biliski v. Red Clay Consol. Sch. Dist. Bd. of
Educ., 574 F.3d 214, 220 (3d Cir. 2009) (quoting Gilbert v. Homar, 520 U.S. 924, 930 (1997)).
Thus, something less than a full evidentiary hearing may be sufficient prior to the taking of an

adverse administrative action, so long as the “fundamental” due process requirement of an
“opportunity to be heard at a meaningful time and in a meaningful manner” is afforded. Id.;
Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
Under the Pennsylvania School Code, 24 P.S. § 11-1127, the following procedures are
outlined for dismissals of professional school employees:
Before any professional employe having attained a status of permanent tenure is
dismissed by the board of school directors, such board of school directors shall
furnish such professional employe with a detailed written statement of the charges
upon which his or her proposed dismissal is based and shall conduct a hearing. A
written notice signed by the president and attested by the secretary of the board of
directors shall be forwarded by registered mail to the professional employe setting
forth the time and place when and where the professional employe will be given an
opportunity to be heard either in person or by counsel, or both, before the board of
school directors and setting forth a detailed statement of the charges. Such hearing
shall not be sooner than ten (10) days nor later than fifteen (15) days after such
written notice. At such hearing all testimony offered, including that of
complainants and their witnesses, as well as that of the accused professional
employe and his or her witnesses, shall be recorded by a competent disinterested
public stenographer whose services shall be furnished by the school district at its
expense. Any such hearing may be postponed, continued or adjourned.

And under § 11-1126, “[a]ll hearings, under the provisions of this article or any other
provision of the school laws pertaining to the dismissal or the termination of contracts of
professional employes, shall be public, unless otherwise requested by the party against whom the
complaint is made.”
The record in this case reflects that the JOC immediately administratively suspended
Sweda from his executive directorship with pay upon receiving Gerhard’s resignation letter in
which he accused Sweda of numerous wrongdoings, and appointed the Pennridge School District
solicitor as “special counsel” to investigate the allegations. (Def.’s Mot. for Summ. J., Ex. C). At
the conclusion of the investigation, the special counsel prepared a summary of preliminary findings
which he sent to Sweda, inviting him to respond. On December 21, 2021, Sweda responded,

through his attorney, which special counsel considered a “Loudermill notice,” but several days
later on December 27, 2021, a draft Statement of Charges was submitted to Bridget O’Connell,
the Superintendent of Record, who was Sweda’s supervisor. O’Connell recommended approving
the charges, and Sweda was placed on unpaid suspension that same day. (Id.) At a special meeting
of the JOC on January 3, 2022, the JOC formally approved the Statement of Charges, which were
then issued to Sweda and his attorney via Registered Mail, Return Receipt Requested, and Email.
At that meeting, which was public and conducted in accordance with Sunshine law requirements,
members of the public were able to comment on Sweda’s alleged actions. Subsequently, Sweda
requested a private hearing on the charges against him, and his request was granted. (Def.’s Mot.
for Summ. J., Ex. D). Eventually, the hearing was held over the course of six separate sessions,

on January 18 and 31, and February 3, 9, 14 and 25, 2022. On April 7, 2022, the JOC voted to
terminate Sweda’s employment. (Id., Ex. C). Sweda appealed his termination to the Secretary of
Education, who affirmed it only one ground and he appealed to the Pennsylvania Commonwealth
Court. Ultimately, that Court affirmed the ruling by the Education Secretary.
I find the foregoing procedures, though not perfectly followed, were adhered to sufficiently
to comply with the dictates of §§ 11-1126 and 11-1127 of the School Code. In short, Sweda
received all of the process to which he was entitled under Loudermill. See, 470 U.S. at 547. Given
these procedures were also more than sufficient to comport with the requirements of the Fourteenth
Amendment, UBCTS is entitled to the entry of judgment in its favor as a matter of law on Count
III of the Amended Complaint.
B. State Claim for Wrongful Termination in Violation of Public Policy
Sweda’s final claim, set forth in Count VII, alleges that the reasons given by the JOC for

terminating him were in fact pretexts for the true reason – his having spoken out and recommended
that UBCTS adhere during the pandemic to the Secretary of Health’s order requiring the wearing
of masks in school so as to safeguard the health of not only the school community but also the
public at large. He further alleges that part of the policy behind § 11-1122’s limitation of the
grounds for termination of professional school employees is also to protect them from retaliation
for doing their duties.
Sweda was employed pursuant to a contract. In Pennsylvania, claims for wrongful
discharge on the grounds that the termination violated public policy apply only to at-will
employees. See, Ciferni v. Day & Zimmerman, Inc., 529 F. App’x 199, 203 (3d Cir. June 27, 2013)
and Coppola v. JNESO Pocono Med. Ctr., 400 F. App’x 683, 684-685 (3d Cir. Nov. 5, 2010) (both

citing, inter alia, Phillips v. Babcock & Wilcox, 503 A.2d 36 (Pa. Super. Ct. 1986); Ross v.
Montour R. Co., 516 A.2d 29, 32 (Pa. Super. Ct. 1986). This is because terminated employees
who are not at-will employees may pursue their claims under breach of contract theories. Jones v.
SEPTA, Civ. No. 12-6582, 2013 U.S. Dist. LEXIS 66615 at *14 (E.D. Pa. May 9, 2013); Engstrom
v. John Nuveen & Co., Inc., 668 F. Supp. 953, 959 (E.D. Pa. 1987). Insofar as Sweda was a
contracted employee, his remaining wrongful discharge claim cannot lie and the entry of summary
judgment in favor of UBCTS on Count VII of the Amended Complaint is proper.
IV. CONCLUSION
For all of the above-stated reasons, Defendant Upper Bucks County Technical School’s
Motion for Summary Judgment shall be granted in part and denied in part. Judgment will be

entered in favor of Defendant only as a matter of law on Counts III and VII. The Motion is denied
in all other respects.
An Order follows.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11064360. Public record. Not legal advice.