Rippeon v. Frederick County Board of Education et al

Filing 25

MEMORANDUM. Signed by Judge William M Nickerson on 6/16/11. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ROY RIPPEON
v.
FREDERICK COUNTY BOARD OF
EDUCATION et al.
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Civil No. WMN-10-1225

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MEMORANDUM
Before the Court is Defendants’ Motion for Summary
Judgment.

ECF No. 24.

The motion is fully briefed.

Upon a

review of the motion and the applicable case law, the Court
determines that no hearing is necessary, Local Rule 105.6, and
that the motion should be granted.
I. FACTUAL BACKGROUND
Plaintiff Roy Rippeon was employed as an electrician for
Frederick County Public Schools (FCPS) from 1999 until the
termination of his employment in July of 2008.

Plaintiff

alleged in his Complaint that he was terminated for going to the
news media about certain fraudulent practices of his fellow
employees.

He also alleged that his termination was in

violation of his constitutional due process rights and
constituted a breach of his employment contract.

The Complaint

contained: a claim under 42 U.S.C. § 1983 for violation of his
free speech rights under the First Amendment and his procedural

due process rights under the Fourteenth Amendment (Count I); a
claim of breach of contract (Count IV); and several tort claims
(Counts II, III, and V) that were dismissed upon Plaintiff’s
concession that he had failed to comply with the provisions of
Maryland’s Local Government Tort Claims Act.
10 (Sept. 9, 2010, Mem. & Order).

See ECF Nos. 9 &

Plaintiff named as Defendants

the Frederick County Board of Education (Board of Education) and
several employees of Frederick County Public Schools.

In its

ruling on Defendants’ Motion to Dismiss, the Court dismissed
Defendant Board of Education from the § 1983 claim.
Discovery is now completed and Defendants have moved for
summary judgment on the two remaining counts.

Defendants offer

a variety of arguments in support of their motion, several of
which would entitle them to judgment.

The arguments that the

Court finds most compelling and on which it will focus in this
memorandum are the overwhelming and uncontested evidence that
Plaintiff was fired for repeated acts of misconduct and
insubordination and that, leading up to his termination and
after his termination, he was given more due process than what
is called for under the Constitution or under the terms of his
employment.
At all times relevant to this suit, Plaintiff worked in the
Maintenance Division of FCPS.

The Maintenance Division is

comprised of about 100 employees, assigned to ten different
2

maintenance offices or “clusters.”

When Plaintiff was hired in

April of 1999, he was assigned to the Thomas Johnson Cluster.
Plaintiff’s immediate supervisor was Dave Gower, Gower’s
immediate supervisor was Ed Haberly (Manager of the Cluster
Maintenance Program), Haberly’s immediate supervisor was Joseph
Dattoli (Facilities Manager), and Dattoli’s immediate supervisor
was Ray Barnes (Executive Director of Facilities Services).

In

January 2001, Plaintiff began to make complaints to various
individuals up the chain of supervision concerning Gower and one
of the other workers in the Thomas Johnson Cluster, Ronnie
Linton.

Specifically, he complained that Gower and Linton were

falsifying time sheets and leave records and that Gower was an
abusive supervisor.

See Ex. 2 at 604-06.1

Barnes and Dattoli

conducted a thorough investigation of Plaintiff’s allegations
and concluded they were without merit.

Id. at 608.

For

example, when Plaintiff complained that Linton left early on a
particular day and did not take leave, Barnes and Dattoli
confirmed that Linton had gone to attend a Staff Improvement
Team Meeting at the Maintenance Department headquarters.

Id. at

604.
While the investigation of Plaintiff’s complaints and
allegations did not lead to the discovery of any misconduct, it

1

Defendant’s Exhibit 2 is a copy of a portion of Plaintiff’s
very extensive personnel file.
3

did uncover a strong clash of personalities and seriously
diminished morale within the cluster.

Id. at 606.

Concluding

that the current mix of personnel making up the cluster could
not function effectively, Barnes transferred Plaintiff from the
Thomas Johnson Cluster to the Urbana Cluster effective March 19,
2001.

Plaintiff’s supervisor at the Urbana Cluster initially

was Larry Rough.
Between March 2001 and June 2006 while assigned to the
Urbana Cluster, Plaintiff was disciplined on numerous occasions
for unsatisfactory job performance.

His difficulties at the

Urbana Cluster began almost immediately when he failed to report
Id. at

to work for the first four days after the reassignment.
602.

In the next two weeks, he missed an additional three days.

Id.

Dattoli and Barnes met with Plaintiff on March 26, 2001, to

give Plaintiff a verbal warning concerning these infractions and
Plaintiff indicated that he had “learned some important lessons
in his conflict with his former supervisors [and] would seek to
avoid this type of conflict in the future.”

Id. at 598 (Mar.

28, 2001, Barnes Mem. to File).
On April 9, 2001, Rough issued a written warning to
Plaintiff for attendance, leave without approval, and the
failure to provide notice or reasons for his absences.
at 595.

See id.

Shortly thereafter, Plaintiff directed “vulgarity and

profanity” at Rough, his supervisor, in a telephone call to
4

Dattoli.

On April 12, 2001, Haberly sent a memorandum to

Id.

Defendant Robert Hagans, Senior Manager in FCPS’s human
resources department, suggesting the alternatives of either
referring Plaintiff to the Employee Assistance Program (EAP) to
“improve his mental problems” or proceeding with termination of
his employment.

Id. at 596.

Haberly opined that there was

sufficient documentation at that time to proceed with
termination.

Id.

The warnings apparently had little effect.

On September 6,

2001, Haberly issued Plaintiff a formal reprimand based upon
Plaintiff’s continued unsatisfactory job performance.
584.

Id. at

Between the April warning and the September reprimand,

Plaintiff missed work without applying for leave on nine
occasions and called in sick on an additional four days without
providing the requisite doctor’s certification.

The reprimand

stated that it was issued in hopes that Plaintiff would realize
that his future with the Maintenance Department was in jeopardy.
Id.
In January 2003, Plaintiff was issued another formal
reprimand after his tardiness, absenteeism, and failure to
provide notice of leave “continu[ed] to surface once again.”
Id. at 528.

On January 21, 2003, Haberly sent a memorandum to

Plaintiff notifying him that Rough had found it necessary to
bring a disciplinary action against Plaintiff for his continued
5

poor attendance.

Plaintiff was informed that this was a “very

serious situation” and that Haberly was considering recommending
termination.

Id. at 504.

As an alternative to termination, Plaintiff entered into a
180-day “Remedial Action Plan.”

Id. at 502-03.

Under the plan,

Plaintiff agreed that he would communicate all absences,
tardiness, and attendance issues directly to Rough or, if Rough
were unavailable, to Haberly.

Bypassing his supervisor would

constitute a “failure for the purpose of this plan.”

Id.

With some miscues, Plaintiff was able to abide by the plan
for several weeks, until March 11, 2003.

On that date,

Plaintiff was several hours late for work and, instead of
speaking directly with Rough or Haberly as required under the
Remedial Action Plan, he simply called and left a voice message.
Plaintiff acknowledged his violation of the plan and accepted,
by way of settlement, a five-day suspension without pay.
Plaintiff was also informed that “further infractions of this
kind would result in more severe disciplinary action up to and
including termination of employment.”

Id. at 479.

Plaintiff’s unsatisfactory job performance and failure to
communicate with his supervisor surfaces in his personnel file
again in June of 2006.

Id. at 457.

By this time, Defendant

Robert Johnson had replaced Rough as Supervisor of the Urbana
Cluster.

According to a note in his personnel file, Plaintiff
6

was scheduled to attend a meeting with Haberly and Johnson
concerning his job performance on June 11, 2006, but Plaintiff
failed to attend.

Id.

On July 6, 2006, Plaintiff received an

employee evaluation reflecting that he “needs improvement” in
seven of the nine listed categories.

Id. at 427-28.

On January 18, 2007, Plaintiff called the office of
Defendant Linda Burgee, the Superintendent of the entire county
school system, to allege that four of his seven co-workers in
the Urbana Cluster, including Johnson, his supervisor, were
falsifying time sheets.

Id. at 425.

In attempting to contact

the Superintendent, Plaintiff was bypassing at least four levels
of supervision, as well as Human Resources.

Plaintiff then

brought the same allegations to Barnes, again skipping several
levels of supervision, on January 22, 2007.

Barnes and

Defendant Robert Wilkinson (who replaced Dattoli as Facilities
Manager in 2005) met with Plaintiff on January 29, 2007.

Barnes

and Wilkinson indicated to Plaintiff that they would investigate
his complaints.
The record reveals that a thorough investigation was
conducted by Haberly.
64, 394.

See id. at 349-51, 353-54, 357-362, 363-

Impatient with the pace of the investigation, however,

Plaintiff contacted Wilkinson on February 16, 2007, and stated
that he was going to go to the media and “let you talk to the
reporters.”

Id. at 342.

Wilkinson spoke with Plaintiff later
7

that same day and told him that they had the factual data in
hand and were looking for anomalies that would provide factual
support for his allegations.

In the course of this

conversation, Plaintiff acknowledged that Johnson had asked to
speak with Plaintiff but Plaintiff had refused to return to work
and Johnson had threatened him with discipline.

Wilkinson told

Plaintiff that “while he [Plaintiff] may be right about certain
issues, he still had to abide by a lawful command of his
supervisor.”

Id.

After meeting with Defendant Hagans to verify

that he was pursuing the investigation properly, Wilkinson
called Plaintiff again on February 22, 2007, to assure him that
the investigation was progressing.

Id. at 343.

He also asked

Plaintiff to “rethink his threat to involve the press.”

Id.

On March 1, 2007, Wilkinson shared his preliminary
conclusion with Plaintiff that the data did not seem to verify
his claims.

He again discouraged Plaintiff from seeking out the

press.

On April 24, 2007, Wilkinson sent Plaintiff a

Id.

letter stating that Plaintiff’s allegations were investigated
and found to be without merit.

Id. at 309.

Wilkinson offered

Plaintiff the opportunity to provide any verifiable proof that
he might have to substantiate his claims of wrongdoing.

The

letter also cautioned, however:
Barring any verifiable proof, you are hereby
ordered to cease and desist making any further
allegations. If you continue to make unsubstantiated
8

allegations of this sort, we will begin disciplinary
action (per Board of Education Policy, Section 323) to
address your misconduct and insubordination. This
action should not be construed as being done to
prevent you from reporting legitimate reports of this
nature. However groundless allegations or false
statements by employees that misrepresent legitimate
business practices or working requirements of FCPS
will cause irrecoverable damage to our employees’
reputation and working moral.
Id.
Continued concerns about Plaintiff’s job performance and
insubordination arose in June of 2007.

On June 27, 2007,

Wilkinson sent Plaintiff a letter outlining the scope of those
concerns and informing Plaintiff that he was recommending a twoweek suspension without pay.

The letter included reference to a

June 8, 2007, voice message Plaintiff directed to Barnes
demanding a response to his allegations regarding the Urbana
Cluster by the end of the day or Plaintiff would go to the
media.

The letter also cited Plaintiff’s improper use of leave,

repeated tardiness, and continued refusal to report to his
supervisor.

Id. at 294-95.

The next morning, Johnson instructed Plaintiff to go to
Wilkinson’s office to meet with Wilkinson and Haberly.
Plaintiff flatly refused, despite Johnson’s repeated
instruction.

Id. at 293.

When learning of his refusal,

Wilkinson determined that, after first ensuring that Plaintiff
was clear that his supervisor directed him to attend a meeting

9

and it was verified that Plaintiff refused, Plaintiff’s
employment should be terminated.

Plaintiff was issued a

termination letter on that date.
A meeting was held on July 2, 2007, to discuss Plaintiff’s
termination at which Plaintiff was present, along with his
counsel.

It was agreed at that meeting that the letter of

termination would be rescinded and another meeting would be
scheduled to determine the appropriate disciplinary action.
at 280.

Id.

It was subsequently decided that Plaintiff would be

given a two-week suspension without pay and that he would return
to work subject to a six-month “Performance Correction Plan.”
As part of that plan, Plaintiff was required to attend three
counseling sessions with the EAP for anger management.

He was

also required to “comply with directives given by his
supervisors and if he disagrees with those directives, he will
comply with the directive and then exercise his right to appeal
or grieve through appropriate channels.”

Id. at 281.

To

provide him the opportunity for a fresh start, Plaintiff was
transferred to the Frederick Cluster where his immediate
supervisor was Richard Gue.

Plaintiff initially performed well

in the Frederick Cluster and, on January 28, 2008, Haberly

10

issued a memorandum concluding that Plaintiff successfully met
all the requirements of the plan.2

Id. at 249-50.

The calm, however, was not long lasting.

On April 29,

2008, Plaintiff called the office of Defendant Burgee, the
Superintendent of FCPS, to complain about various issues
including satellite parking policies and employees driving work
vehicles to their homes in other states.

Id. at 54.

He also

reported that he and other employees were attempting to start a
new union and were also getting up a petition to get rid of
Wilkinson and Barnes.
On May 6, 2008, FCPS management received a report from one
of its employees, Vickie Brashears, of an incident involving
Plaintiff.

Brashears is the sister of Plaintiff’s immediate

supervisor, Richard Gue, and she reported that when she walked
into the cafeteria in one of the FCPS schools, she overheard
Plaintiff “ranting and raving” about her brother and threatening
to “hit that son-of-a-bitch.”

Id. at 183.

Plaintiff was

apparently upset because he was denied the use of a work van.
When Brashears asked Plaintiff to leave, he continued to go on
ranting and Brashears reported that she was “pretty shaken” by
the incident.

Id.

2

While Plaintiff claimed to have completed this requirement, it
was discovered after his termination that he had only attended
two sessions. Id. at 830.
11

In response to this incident, as well as his circumvention
of the chain of supervision by contacting Superintendent Burgee,
Plaintiff was placed on paid administrative leave pending an
investigation.

As a result of the investigation, Plaintiff was

placed under a “Last Chance Agreement.”

Id. at 244-45.

Under

this Last Chance Agreement, Plaintiff received a thirty-day
suspension without pay and was required to attend three EAP
counseling sessions.

The agreement also provided that “[i]n all

grievances, complaints or disagreements [Plaintiff] must follow
the chain of command and try to resolve the issue at the lowest
level.
244.

Any other action or conduct is unacceptable.”

Id. at

The agreement closed with the warning, “please be aware

that a Last Chance Agreement is just that.

Any deviation or

violation of the agreement will result in termination of your
employment with [FCPS].”

Id. at 245.

Plaintiff signed the

agreement on May 30, 2008, indicating that he agreed with its
terms and conditions.

Id.

Under the Last Chance Agreement, Plaintiff was scheduled to
return to work on July 1, 2008.

As of July 7, 2008, Plaintiff

had yet to return to work so he was contacted by Human
Resources.

Plaintiff explained that he was told by Defendant

Hagans that he could not return to work until he completed the
mandatory three EAP counseling sessions.

Id. at 231.

Plaintiff

asserts that it was also his understanding that he could not
12

attend the EAP sessions until after he had returned to the FCPS
payroll.

In his conversation with the Human Resources

representative, Christine Jacobs, Plaintiff also stated that he
was “really getting tired of all of this” and wished that they
would just fire him so he could contact an attorney and the
media.

Id. at 217.

In a conversation with Hagans on June 26, 2008, Plaintiff
was informed that he had to complete the EAP sessions before he
would be able to return to work.

Plaintiff claims that he then

scheduled appointments for June 27, 28, and 30, but EAP
cancelled those sessions.

When the vendor that provides EAP

services for FCPS was contacted to confirm Plaintiff’s claims,
it responded that, while Plaintiff was offered appointments on
June 27 and 28, he either failed to respond to the offer or
explicitly declined the offer.

Id. at 185.

it had no record of any June 30 appointment.

The vendor reported
Id.

An

appointment was eventually scheduled for July 9, 2008.
Plaintiff attempted to cancel that appointment on the morning of
the appointment but, after being told that he would be
considered non-compliant with his agreement, he attended his
first counseling session.
Also on July 9, 2008, Superintendent Burgee, Barnes, and
Wilkinson each received telephone calls from Caitlin McCarthy, a
reporter from a local television station, stating that she had
13

spoken with Plaintiff about “some issues he was having with
being suspended and everything.”

Id. at 227.

Barnes spoke with

McCarthy on July 10, 2008, and she reported that Plaintiff had
told her that he was suspended for being a whistleblower
concerning remote parking and his previous charges of timesheet
fraud.

Id. at 213.

Hagans scheduled a meeting with Plaintiff for July 15,
2008, for the purpose of determining whether Plaintiff was in
violation of the Last Chance Agreement.

On July 9, 2008, within

a few hours after learning that Plaintiff contacted a reporter,
Wilkinson sent an email to Hagans stating that “[i]f after
meeting with [Plaintiff] on July 15th, you find that he has
disregarded the conditions of his suspension and the Last Chance
Agreement, I recommend that he be terminated.”

Id. at 225.

At

the request of Plaintiff’s attorney, the July 15th meeting was
moved to July 16th.
At the July 16, 2008, meeting, Plaintiff initially denied
that he had contacted the media and suggested “it may have been
a family member, I don’t know.”
213.

Id. at 221; see also, id. at

Barnes invited Plaintiff and his counsel to contact

McCarthy to get a statement that it was not Plaintiff that made
the initial phone call to her station but no statement was
forthcoming.
reporter.

Plaintiff now acknowledges that he did contact the

By July 16, 2008, Plaintiff had still not completed
14

the three mandatory EAP sessions that would have enabled him to
return to work although Plaintiff did attend his second EAP
session on that date.

Plaintiff’s third session was scheduled

for July 23, 2008, but it was cancelled by Plaintiff.

Id. at

186.
After the July 16, 2008, meeting, Barnes conferred with
Wilkinson and determined that Plaintiff was in violation of the
May 30, 2008, Last Chance Agreement, based on the following
incidents: (1) his telephone comments and threats to Jacobs and
Wilkinson; (2) his failure to promptly schedule his EAP
sessions; (3) his failure to follow the chain of command and to
follow the proper grievance procedures before contacting an
outside agency; and (4) his personal tendency to blame others
for his insubordination or to accuse them of lying.

Id. at 214.

Accordingly, Wilkinson and Barnes determined that Plaintiff
should be terminated.

Wilkinson conveyed that termination to

Hagans who concurred in the decision and so notified Plaintiff
by letter dated July 24, 2008.

Id. at 216.

The letter also

informed Plaintiff that he had the right to appeal that decision
to the Superintendent within thirty days.
The Superintendent received Plaintiff’s appeal on October
3, 2008.

Id. at 204-05.

A hearing on Plaintiff’s appeal took

place on October 29, 2008, where he was represented by counsel
and presented testimony and evidence.
15

On November 20, 2008,

Superintendent Burgee issued a letter denying the appeal,
finding that Plaintiff produced insufficient evidence upon which
to conclude that the decision to terminate his employment was
arbitrary, capricious, or illegal.

Id. at 67-68.

She also

opined that the decision was warranted and well supported based
upon the “significant employment issues” in Plaintiff’s
employment history.

Id.

The letter informed Plaintiff of his

right to appeal the Superintendent’s decision to the Board of
Education within thirty days.
Plaintiff submitted his appeal to the Board on December 19,
2008.

A hearing was conducted on March 4, 2009, at which

Plaintiff, represented by counsel, again submitted testimony and
evidence.

The Board upheld Plaintiff’s termination in an

opinion issued March 25, 2009.

Plaintiff was advised that he

could appeal that decision to the State Board of Education but
he did not do so.
II. LEGAL STANDARD
Rules 56(a) & (c) of the Federal Rules of Civil Procedure
provide in relevant part:
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
court shall grant summary judgment 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. The court should state on the record
the reasons for granting or denying the motion.
16

A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A)
citing to particular parts of materials in the record,
including depositions, documents, electronically
stored information, affidavits or declarations,
stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or
other materials; or (B) showing that the materials
cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(a) & (c).
The Supreme Court’s standard does not mean that any factual
dispute will defeat the motion:

“By its very terms, this

standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.”

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original).

The party seeking summary judgment bears an initial

burden of demonstrating the absence of a genuine issue of
material fact.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 323

Once the moving party has met that burden, the non-

moving party must come forward and demonstrate that such an
issue does, in fact, exist.

See Matsushita Elec. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

As stated

above, “[t]he party opposing a properly supported motion for
summary judgment ‘may not rest upon the mere allegations or
denials of [his] pleadings,’ but rather must ‘set forth specific
17

facts showing that there is a genuine issue for trial.’”
Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514,
525 (4th Cir. 2003) (alteration in original) (quoting Fed. R.
Civ. P. 56(e)).
In conducting the aforementioned analysis, a court
generally must view all facts and draw all reasonable inferences
in the light most favorable to the nonmoving party.
v. Harris, 550 U.S. 372, 376-77 (2007).

See Scott

However, “facts must be

viewed in the light most favorable to the nonmoving party only
if there is a ‘genuine’ dispute as to those facts.”

Id. at 380.

III. DISCUSSION
A. First Amendment Rights
It is well settled that public employment cannot be
conditioned in a manner that would infringe upon the employee’s
constitutionally protected interest in free expression.
v. Myers, 461 U.S. 138, 142 (1983).

Connick

Courts have also

recognized, however, that completely unfettered speech can be
disruptive to the workplace.

Thus, in considering free speech

claims of public employees, courts must seek “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.”
391 U.S. 563, 568 (1968).
18

Pickering v. Bd. of Educ.,

The basis for Plaintiff’s First Amendment claim is his
assertion that he was fired because he exercised his free speech
rights when he contacted McCarthy with his complaints about the
Maintenance Division.

Defendants challenge the merits of this

claim on a variety of grounds, including: (1) that Plaintiff’s
speech was not on a matter of public concern; (2) that
Plaintiff’s right to that speech did not outweigh the interests
of FCPS in the efficient operation of the Maintenance Division;
and (3) that Plaintiff would have been terminated regardless of
speech in question.
Concerns respecting speech within the workplace of a
governmental entity does not automatically confer on that speech
the status of a matter of public concern.

As the Supreme Court

has noted,
[t]o presume that all matters which transpire within a
government office are of public concern would mean
that virtually every remark - and certainly every
criticism directed at a public official - would plant
the seed of a constitutional case. While as a matter
of good judgment, public officials should be receptive
to constructive criticism offered by their employees,
the First Amendment does not require a public office
to be run as a roundtable for employee complaints over
internal office affairs.
Connick, 461 U.S. at 149.

“Whether an employee's speech

addresses a matter of public concern must be determined by the
content, form, and context of a given statement, as revealed by
the whole record.”

Id. at 147-48.
19

“[W]hen a public employee

speaks not as a citizen upon matters of public concern, but
instead as an employee upon matters only of personal interest,
absent the most unusual circumstances, a federal court is not
the appropriate forum in which to review the wisdom of a
personnel decision taken by a public agency allegedly in
reaction to the employee's behavior.”

Id. at 147.

From the record before the Court,3 it would appear that much
of the content of Plaintiff’s communication with McCarthy
involved merely personal matters.

To the extent Plaintiff was

complaining that his use of a work vehicle was taken away, that
he was denied satellite parking privileges, or that he was
suspended for insubordination, these are personal not public
concerns.

To the extent Plaintiff was reviving his allegations

of timesheet fraud from 2007, that could possibly implicate a
matter of public concern, although even that is questionable.
In arguing that he was raising an issue of public concern,
Plaintiff relies exclusive on Pickering, suggesting that this
case, was “[n]ot directly on point, but clearly analogous.”
Opp’n at iii.

In Pickering, a public school teacher was

dismissed after sending a letter to a local newspaper that was
critical of the school board’s handling of its financial
resources.

The letter was sent in connection with an election

3

As Plaintiff was less than forthcoming, at least initially, as
to whether he had even contacted McCarthy, the precise content
of his communication with her is not known.
20

seeking voter approval of a proposed increase in the township’s
tax rate.

The Court found the teacher’s dismissal violative of

the First Amendment, opining that how funds allotted to the
operations of the schools should be spent is a matter of public
concern.

391 U.S. at 572.

In reaching that conclusion,

however, the Court specifically noted that the teacher’s
“statements are in no way directed toward any person with whom
[the teacher] would normally be in contact in the course of his
daily work as a teacher.

Thus no question of maintaining either

discipline by immediate supervisors or harmony among coworkers
is presented here.”

Id. at 569-70.

The Court also noted that

there was “no occasion furnished by this case for consideration
of the extent to which teachers can be required by narrowly
drawn grievance procedures to submit complaints about the
operation of the schools to their superiors for action thereon
prior to bringing the complaints before the public.”
n.4.

Id. at 572

For these reasons and others, this case is much less

analogous to Pickering than Plaintiff would contend.
The Court also questions the public’s concern about or
interest in Plaintiff’s timesheet allegations, given that they
related to just four workers in a single cluster and to events
that occurred more than a year prior and, most significantly,
were proven to be unsubstantiated after a thorough

21

investigation.4

The Pickering Court also implied that a school

employee’s speech would be entitled to less protection where
that employee “has carelessly made false statements about
matters so closely related to the day-to-day operations of the
schools that any harmful impact on the public would be difficult
to counter because of the [employee’s] presumed greater access
to the real facts.”

Id. at 572.

Were the Court to conclude that Plaintiff’s speech did
relate to a matter of public concern, it would still find
Plaintiff’s dismissal justified in that the modicum of public
concern related to the speech is significantly outweighed by
FCPS’s interest in the efficient operations of the Maintenance
Division.

As detailed above, Plaintiff’s unsubstantiated

accusations had left a trail of conflict and tension in that
Division.

Plaintiff’s contact with the media only added to the

disruption and tension.

Furthermore, Plaintiff was very clearly

using the threat of going to the press to deflect criticism of

4

The Court notes that Plaintiff has yet to come forward with
evidence to support his accusations. With his opposition to
Defendants’ summary judgment motion, Plaintiff did submit a few
pages of a printout which would appear to show some instances
where comp time taken by some employees exceeded the comp time
earned. Pl.’s Ex. 13. This “exhibit,” however, is not
authenticated in any way, nor explained. Plaintiff’s counsel
also suggests that “[d]iscovery has revealed additional evidence
to support [Plaintiff’s] allegations,” but he declined to
produce that evidence, taking the position that “summary
judgment is not designed to force a plaintiff to outline his
entire trial strategy for an opposing party.” Opp’n at 4.
22

his own poor job performance and to interfere with Defendants’
efforts to discipline him for his conduct.
In a decision that this Court finds more analogous to the
instant action than Pickering, Connick v. Myers, the Supreme
Court employed the Pickering balancing test to determine whether
the termination of an assistant district attorney for
distributing a questionnaire that was implicitly critical of her
supervisors was a violation of her right to free speech.
U.S. 138.

461

After finding that one of the questions on her

questionnaire touched on a matter of public concern and
contributed to her discharge, the Court noted that, under
Pickering, the government’s “burden in justifying a particular
discharge varies depending upon the nature of the employee’s
expression.”

Id. at 150.

The Court continued, opining that the

“Pickering balance requires full consideration of the
government's interest in the effective and efficient fulfillment
of its responsibilities to the public.”

Id.

“To this end, the Government, as an employer, must
have wide discretion and control over the management
of its personnel and internal affairs. This includes
the prerogative to remove employees whose conduct
hinders efficient operation and to do so with
dispatch. Prolonged retention of a disruptive or
otherwise unsatisfactory employee can adversely affect
discipline and morale in the work place, foster
disharmony, and ultimately impair the efficiency of an
office or agency.”
Id. (quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1974)).
23

In determining whether the plaintiff’s termination was
justified, the Court in Connick found it significant that the
plaintiff circulated the questionnaire immediately after she was
informed that she was being transferred, a transfer to which she
objected.

The Court noted that “[w]hen employee speech

concerning office policy arises from an employment dispute
concerning the very application of that policy to the speaker,
additional weight must be given to the supervisor's view that
the employee has threatened the authority of the employer to run
the office.”

Id. at 153.

The Court then concluded that “[t]he

limited First Amendment interest involved here does not require
that [the district attorney] tolerate action which he reasonably
believed would disrupt the office, undermine his authority, and
destroy close working relationships.

[The plaintiff’s]

discharge therefore did not offend the First Amendment.”

Id. at

154.
Likewise, the minimal public concern related to Plaintiff’s
allegations is overshadowed by the disruption those allegations
were causing in the workplace.
In a closely related argument, Defendants contend that
Plaintiff’s free speech claim must fail as he would have been
fired anyway, regardless of any contact he may have had with the
media.

See Mot. at 18 (citing Mt. Healthy City Sch. Dist. Bd.

of Ed. v. Doyle, 429 U.S. 274, 286 (1977)).
24

In Mt. Healthy,

which this Court finds most analogous to the case at bar, the
plaintiff was an untenured teacher who was not rehired after he
conveyed to a local radio station the substance of an internal
memorandum written by his principal.

The Court described this

contact with the media as “[c]hronologically the last in the
series of incidents which [the plaintiff] was involved during
his employment,” a series of incidents which included: an
altercation with another teacher, an argument with school
cafeteria employees, an incident in which he swore at students,
and an incident in which he made obscene gestures to girl
students.

429 U.S. at 281-82.

The district court found that,

because the plaintiff’s contact with the radio station had
played a “substantial part” in the decision not to rehire the
plaintiff, he had established a First Amendment claim and
ordered that he be reinstated to his position.
In overturning that decision, the Supreme Court observed:
[a] rule of causation which focuses solely on whether
protected conduct played a part, “substantial” or
otherwise, in a decision not to rehire, could place an
employee in a better position as a result of the
exercise of constitutionally protected conduct than he
would have occupied had he done nothing. The
difficulty with the rule enunciated by the District
Court is that it would require reinstatement in cases
where a dramatic and perhaps abrasive incident is
inevitably on the minds of those responsible for the
decision to rehire, and does indeed play a part in
that decision even if the same decision would have
been reached had the incident not occurred. The
constitutional principle at stake is sufficiently
vindicated if such an employee is placed in no worse a
25

position than if he had not engaged in the conduct. A
borderline or marginal candidate should not have the
employment question resolved against him because of
constitutionally protected conduct. But that same
candidate ought not to be able, by engaging in such
conduct, to prevent his employer from assessing his
performance record and reaching a decision not to
rehire on the basis of that record, simply because the
protected conduct makes the employer more certain of
the correctness of its decision.
Id. at 285-86.
Here, Plaintiff’s employment record by the time he was
terminated included no less than fourteen disciplinary actions,
including: multiple formal warnings, a five-day suspension
without pay, a thirty-day suspension without pay, two remedial
action plans, and a “Last Chance Agreement” which Plaintiff
proceeded to breach.

The conduct for which Plaintiff was

disciplined included: tardiness; absenteeism; insubordination,
which included several incidents of outright refusal to follow
the orders of a supervisor; repeatedly bypassing appropriate
channels to voice grievances; vulgarity; altercations with other
employees; and the failure to attend mandatory EAP sessions.
Plaintiff does not dispute that he was repeatedly disciplined
nor does he dispute, for the most part, that he engaged in the
conduct for which he was disciplined.

In fact, he rather

cavalierly notes that he “was regularly not fired for various
alleged violations for almost a decade, including allegedly
violating more than one ‘last chance’ agreement.”

26

Opp’n at v.

The record indisputably reveals that Plaintiff was headed
for termination regardless of whether he contacted the media.
That he did engage in arguably protected conduct cannot immunize
him from the ramifications of a poor work history and blatant
insubordination.

To provide that immunization would create

precisely the difficulties about which the Mt. Healthy Court was
concerned.
For each of these reasons, the Court finds that Plaintiff’s
First Amendment claim fails.
B. Breach of Contract and Due Process Rights
To support his breach of contract claim, Plaintiff submits
several pages of the Support Services Discipline Policy, Pl.’s
Ex. 1, and suggests that these policies render him more than a
“mere at-will” employee.

Opp’n at 2.

The Discipline Policy

lists numerous behaviors for which an employee can be
disciplined or terminated, including: vulgarity and profanity,
verbal abuse on school property, tardiness, absenteeism, and
insubordination.

§ 323.1.C.

The Policy also states, however,

that the list is not exhaustive and that support employees can
be disciplined or terminated for other actions and behaviors
which “in the opinion of supervisory staff, are unacceptable.”
§ 323.1.A.

Furthermore, while the Policy sets out guidelines

for progressive discipline, it also allows the employer “the
right to deviate from the suggested guidelines and issue a more
27

severe consequence when deemed appropriate.”

§ 323.2.

The

Policy lists certain offenses for which an employee can be
immediately terminated, but also allows appropriate school
officials to immediately terminate support employees for other
offenses “when appropriate in the judgment of the school
system.”

§ 323.2.E.

While the protections afforded employees under the Policy
are tempered by the discretion afforded the employer, the Policy
does provide that employees will be provided due process in the
administration of the discipline policy.

§ 323.1.A.

Plaintiff

argues for nothing more than due process under the progressive
discipline structure of his employment agreement.

See Opp’n at

9 (“plaintiff’s employment involved employment policies that
required due process (at minimum notice and a hearing) – and
also at least multiple levels of decision making before employee
could be terminated.”).

Thus, Plaintiff’s breach of contract

claim is essentially the same as his constitutional due process
claim.
The Court finds that Plaintiff was given all that the
Discipline Policy promised and more than is required under the
Constitution.

Plaintiff was always given notice and an

opportunity to be heard before any discipline was imposed and,
on several occasions, was able to moderate the discipline as a
result of the hearing.

In July of 2007, after Plaintiff was
28

given notice of a recommendation for termination after he
refused to attend a meeting to discuss his insubordination, he
had a hearing and was given a Performance Correction Plan in
lieu of termination.

As a result of Plaintiff’s conduct in

April and May of 2008, Plaintiff was given notice that he would
be terminated but, after a meeting, was able to reduce that
termination to a thirty-day suspension and entry into a Last
Chance Agreement.

Prior to his termination on July 24, 2008,

Plaintiff was given notice and a hearing was held on July 16,
2008, where Plaintiff was represented by counsel.

When he

appealed his termination, the Superintendent heard testimony and
took evidence from Plaintiff where he was again represented by
counsel.

Finally, upon appeal of the Superintendent’s decision,

the Board heard testimony and took evidence from Plaintiff where
he was again represented by counsel.

Plaintiff was given notice

of the availability of an additional level of appeal but chose
not to pursue it.
Plaintiff does not deny that he was given notice of each of
these proposed disciplinary actions, or that hearings were held
prior to the imposition of those actions.

Instead, Plaintiff

simply alleges that all of these hearings were shams.

The only

evidence proffered by Plaintiff to support that conclusion,
however, is the July 9, 2009, email from Wilkinson to Hagans
which Plaintiff misrepresents as demonstrating that “the
29

decision to terminate [P]laintiff was made within roughly three
hours of defendant[’]s learning of the speech.”

Opp’n at iv;

see also id. at 3 (characterizing this email as “recommending
that plaintiff be terminated”).

Wilkinson’s email, however,

only stated that, “[i]f after meeting with [Plaintiff] . . . you
find that he has disregarded the conditions of his suspension
and the Last Chance Agreement, I recommend that he be
terminated.”

What Wilkinson stated is very different from

Plaintiff’s characterization of the email and, furthermore, is
wholly consistent with Plaintiff’s right to notice and a
hearing.
As the Court finds that the evidence conclusively
demonstrates that Plaintiff was given notice and a hearing when
each disciplinary action was taken and at each step in the
process, the Court will enter judgment in favor of Defendants on
Plaintiff’s constitutional due process and breach of contract
claims.
IV. CONCLUSION
For these reasons, judgment will be entered in favor of
Defendants on each of Plaintiff’s remaining claims.

A separate

order will issue.
June 16, 2011

_______________/s/_______________
William M. Nickerson
Senior United States District Judge

30