MIGLIORE v. ACKERMAN et al
Filing
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MEMORANDUM. SIGNED BY HONORABLE JAN E. DUBOIS ON 8/12/2013. 8/13/2013 ENTERED AND COPIES E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RICHARD W. MIGLIORE, J.D.
Plaintiff,
v.
ARLENE ACKERMAN, Superintendent;
THE SCHOOL DISTRICT OF
PHILADELPHIA, THE SCHOOL
REFORM COMMISSION; and,
COMMISIONERS ROBERT L. ARCHIE.,
JR., ESQUIRE, Chairman, DENISE
McGREGOR ARMBRISTER, JOSEPH A.
DWORETZKY, ESQUIRE, and JOHNNY
IRIZARRY; LUCY FERIA, Regional
Superintendent; JAMES DOUGLASS,
Assistant Regional Superintendent;
ESTELLE G. MATTHEWS, Chief Talent
Development Officer; ANDREW ROSEN,
ESQUIRE, Human Resources
Representative; and MARY SANDRA
DEAN, Principal.
Defendants.
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CIVIL ACTION
NO. 11-4018
DuBois, J.
August 12, 2013
MEMORANDUM
I.
INTRODUCTION
This case involves the free speech and due process rights of a former public school
assistant principal. Plaintiff, Richard Migliore, was a public school employee for over thirty
years and an assistant principal since 1994. In September 2009, however, Migliore submitted his
notice of retirement following a dispute over whether he would be demoted from his position as an
assistant principal. On June 20, 2011, Migliore filed suit against numerous defendants on the
grounds that they retaliated against him in violation of his free speech rights, denied him due
process, and failed to prevent wrongful acts against him. In his Second Amended Complaint, he
asserts claims against the School District of Philadelphia, former superintendent Dr. Arlene
Ackerman, former regional superintendent Lucy Feria, former assistant regional superintendent
James Douglass, former human resources employee Estelle Matthews, employee relations deputy
Andrew Rosen, and former principal Mary Sandra Dean. Migliore has also named as defendants
the School Reform Commission (“SRC”)–the governing body of the School District–along with
commissioners of the SRC: former chairman Robert Archie, Jr., Joseph Dwortetzky, Esq., Johnny
Irizarry, Esq., and Denise Armbrister. Each of the individual defendants are named in their
personal capacities. (Second Am. Compl. at ¶1.) Presently before the Court are cross-motions
for summary judgment. For the reasons that follow, the Court denies Migliore’s motion, and
grants in part and denies in part defendants’ motion.
II.
BACKGROUND
A. Career History Through 2006-2007 School Year
Migliore began his teaching career in 1975 at University City High School in Philadelphia,
Pennsylvania and spent 18 years at that school as a teacher. (Defendants’ Undisputed Facts, at
¶¶16-17.) Migliore then worked as an assistant principal, primarily at Furness High School, until
2006, when he was assigned to Jules Mastbaum Vocational/Technical School (“Mastbaum”) in
Philadelphia. (Id. at ¶¶ 22-23.) Defendant Mary Sandra Dean was the principal of Mastbaum at
that time. (Id.) Dean claims that she spoke with Migliore several times about problems with his
job performance during his first year at Mastbaum, the 2006-2007 school year, but states she did
not put any specific complaints in writing that year. (Id. ¶¶ 34-37.)
For several years prior to his assignment to Mastbaum, Migliore was engaged in writing a
book entitled “Whose School is It? The Democratic Imperative for Our Schools” (“The Book”).
2
The Book generally discusses principles of “school governance and leadership.” (Pl. Ex. A; Pl.
Statement of Material Facts, at ¶13.) On August 8, 2007, Migliore addressed the SRC concerning
the contents of his soon-to-be-published Book and provided the SRC commissioners with copies
of the Book. (Pl. Resp. at 10.) Migliore claims that prior to the address, he received a call from
the assistant to Regional Superintendent Feria, who said that if he spoke to the SRC he would be
“committing suicide.” (Id.) Migliore also claims that he met with Feria the following week,
gave her a copy of the Book, and she expressed displeasure with the chapter titled the “The
Inherent Immorality of Bureaucracy.” (Id.)
B. 2007-2008 School Year
Upon returning to Mastbaum for the 2007-2008 school year, Migliore contends that he
experienced “immediate” hostility from Dean, although Dean claims that she was not aware of
Migliore’s address to the SRC or its contents. (Id.; Deposition of Mary Sandra Dean, at 106.)
Dean also testified at her deposition that she was not aware that Migliore was working on the Book
prior to its publication. (Deposition of Mary Sandra Dean, at 103.) Specifically, Dean stated
that she had gone into Migliore’s office, although she could not recall when, and Migliore told her,
“I wrote a book and I’m going to do another chapter . . . [and] I’m thinking about putting you in my
book.” (Id. at 104.) Dean responded, “Be very careful what you put in writing.” (Id. at 105.)
For his part, Migliore claims that Dean first became aware of the Book some time in the fall of
2007. (Deposition of Richard Migliore, at 61.) Migliore concedes that he does not “think that
[Dean] read the book,” but believes that she certainly saw the Book’s cover and could “surmise
what [the book] means . . . . ” (Id. at 57.)
Dean claims that she wrote “four or five” disciplinary memoranda known as “204’s”
during the 2007-2008 school year in relation to Migliore’s “job performance.” (Deposition of
3
Mary Sandra Dean, at 121.) Migliore disputes this statement and argues that only “one 204 was
written pertaining to the school year 2007-2008 . . . . ” (Pl. Answer to Defs’ Facts, at ¶ 39.)
Migliore further claims that at one point during the year, because he had written a “satisfactory
observation” of a provisional teacher who Dean “didn’t like,” Dean told Migliore that he should
transfer to a different school, or she would “write so much paper on you that you will lose your job
by the end of the year.” (Pl. Resp. at 11; Deposition of Richard Migliore, at 60.)
Following this exchange, Migliore wrote a letter entitled “Transfer Request and Filing of
Formal Complaint” to Mike Lerner, then-president of his union, the Commonwealth Association
of School Administrators (“CASA”). (Pl. Ex. B.) In the letter, Migliore wrote that Dean was
“obviously looking for reasons she can use to justify ‘writing me up’ . . . . It is clear that I am
working within a ‘hostile working environment’ and it is affecting me.” (Id.) Migliore
requested in the letter that Lerner “officially begin the process of requesting a transfer,” from
Mastbaum to another school. (Id.) Migliore later participated in a conference with regional
superintendent Feria concerning this request, but it was denied. (Pl. Resp. at 11.)
C. 2008-2009 School Year
On August 23, 2008, Migliore again addressed the SRC on issues of democracy and
school governance and repeatedly mentioned the Book. (Pl. Resp. at 11.) He again gave the
SRC commissioners copies of the Book following this address. (Id.) Migliore adds that he had
also given then-superintendent Ackerman a copy of the Book earlier that month and that she had
“eagerly” accepted it. (Id.) Dean contends that she was not aware of Migliore’s second address
to the SRC or its contents.
A subsequent letter from then-superintendent Ackerman and then-Chairman Archie states
that during the 2008-2009 school year Dean wrote numerous disciplinary memoranda concerning
4
Migliore’s job performance, including complaints regarding his failure to complete a task
concerning textbook accounting and locker assignments, his failure to complete the distribution of
Workmen’s Compensation forms to staff members, and his failure to monitor weekly lesson plans.
(Pl. Ex. S, at 1.) The letter goes on to state that Dean twice recommended that Migliore be
suspended without pay for multiple days, and on December 19, 2008 Migliore was suspended for
two days without pay for certain of these failures. (Id.)
D. Recommendation of Demotion
The letter from then-superintendent Ackerman and then-Chairman Archie concludes by
stating that on May 29, 2009, Dean issued a 204 which stated that Migliore had been “consistently
negligent in the performance of [his] duties as an assistant principal,” and recommended that
Migliore be demoted from assistant principal to teacher. (Id. at 2.) This recommendation was
reiterated in a “204 conference summary” issued by Dean on June 15, 2009. (Defendants’
Undisputed Facts, at ¶70.) On June 25, 2009, assistant regional superintendent James Douglass
participated in a “secondary conference” with Migliore regarding Dean’s demotion
recommendation. (Id. at ¶75.) Douglass subsequently issued a “Record of Conference,” which
recommended that Migliore be demoted from his position as assistant principal. (Id.)
Then-regional superintendent defendant Lucy Feria claims she participated in a secondary
conference in May or June of 2009 and recommended Migliore’s demotion, though Migliore
disputes that Feria was present at any such conference. (Id. at ¶78; Pl. Answer to Defs’ Facts, at
¶78.) Migliore claims that after the June 25, 2009 conference he turned in his keys upon Dean’s
request and moved all of his belongings out of his Mastbaum office. (Pl. Ex. KK, at 491.)
On July 23, 2009, Migliore received an email from School District’s Office of Professional
Staffing which stated that they had been “notified of your demotion from assistant principal at
5
Mastbaum High School.” (Def. Ex. 15.) Migliore responded that this was “interesting to hear
since I have not been given official notice yet and this situation was very much in controversy.”
(Def. Ex. 16.) The Office of Professional Staffing responded that “we were told this was final,
but we don’t always get the correct information. I would advise you to choose a location [to work
as a teacher], and you can always give it up later in the summer if things work out.” (Id.)
Milgiore later sent that office an e-mail stating that he did not wish to choose a teaching position
because, “[a] demotion can not take place without a vote of the School Reform Commission . . . I
have not yet been demoted and do not expect to be.” (Def. Ex. 19.) On July 29, 2009, Migliore
received a form titled “Assignment Introduction,” which Migliore claims officially assigned him
to a position as a teacher. (Pl. Statement of Material Facts, at ¶41.)
On August 14, 2009, then-superintendent Ackerman and then-Chairman Archie sent
Migliore the letter mentioned above, which summarized several 204’s and other disciplinary
memoranda issued by Dean and stated that Ackerman and Archie “would recommend to the
School Reform Commission that you be demoted to the position of teacher.” (Pl. Ex. S.) The
letter noted that plaintiff was “entitled to request a hearing before the School Reform Commission
. . .” and set August 25, 2009 as the date for such a hearing. (Id. at 3.)
On August 18, 2009, Migliore sent a letter to Francis Bielli, Assistant General Counsel for
the School District, requesting a hearing and stating Migliore’s intent to appeal the
recommendation of his demotion. (Pl. Ex. T.) Bielli then notified Migliore that he had received
his notice of appeal and request for a hearing. (Pl. Ex. At U.) Bielli stated that the hearing
previously scheduled for August 25, 2009 would be postponed, and that he would be requesting
available dates from SRC commissioners for a future hearing. (Id.) However, before a new
hearing date could be scheduled, Migliore submitted his notification of retirement on August 31,
6
2009. (Pl. Ex. AA.) In his retirement notification, Migliore stated that his last day of work was
June 30, 2009 and that his position was assistant principal. (Id.) On September 3, 2009, the
Retirement Department for the school district sent Migliore a letter to “acknowledge [his]
retirement from [his] position with the School District of Philadelphia at the close of business June
30, 2009.” (Pl. Ex. CC.)
E. Hearings and Procedural History
Following his notice of retirement, the SRC held multiple hearings regarding the
recommendation that Migliore be demoted from assistant principal. (Defendants’ Undisputed
Facts, at ¶101.) In all, the SRC held hearings before Commissioner Dworetzky on May 25, 2010,
September 14, 2010, September 29, 2010, and January 6, 2011. (Id. at ¶102.) At the conclusion
of the hearings, Commissioner Dworetzy “found that Migliore was not constructively discharged .
. . [and] recommended to the SRC that the SRC dismiss the matter without further hearing because
Migliore had not been demoted prior to his retirement and had not been constructively
discharged.” (Id. at ¶107.) By resolution dated June 15, 2011, the SRC resolved that Milgiore
retired from the School District effective June 30, 2009, and adopted the findings of Commissioner
Dworetzky. (Id. at ¶108.)
Milgiore then appealed that decision to the Secretary of Education. Migliore v. Sch. Dist.
of Philadelphia, 2013 WL 3156533, at *3 (Pa. Commw. Ct. June 18, 2013). 1 “After conducting a
de novo review, the Secretary, by order dated August 3, 2012, found that Migliore was not
demoted or constructively discharged, but rather that he had voluntarily retired. Thus, he denied
Migliore’s appeal.” Id. On August 29, 2012, Migliore appealed to the Pennsylvania
Commonwealth Court on several grounds, including “whether Migliore’s due process rights were
violated . . . . ” Id. at *1. In an opinion issued on June 18, 2013, the Commonwealth Court held
1
The procedural history after June 15, 2011 was not included by the parties in their motion papers.
7
in relevant part that Migliore was “demoted in fact,” but no state law violation occurred because he
voluntarily resigned before a hearing could be held. Id. at *4-6. In addition, the court ruled that
because Migliore was offered a hearing prior to his resignation, and because a hearing was
eventually held, “Migliore was afforded due process.” Id. at *7. The Commonwealth Court thus
affirmed the order of the Secretary of Education. Id.
While his proceedings in state court were ongoing, Milgiore filed the instant suit in this
Court on June 20, 2011. Following the decision of the Commonwealth Court, the parties
submitted additional briefing concerning the effect, if any, of that decision on this case.
III.
LEGAL STANDARD
In considering motions for summary judgment, “the court is required to examine the
evidence of record in the light most favorable to the party opposing summary judgment, and
resolve all reasonable inferences in that party’s favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d
Cir. 2007). The party opposing the motion, however, cannot “rely merely upon bare assertions,
conclusory allegations or suspicions” to support its claim. Fireman’s Ins. Co. v. DuFresne, 676
F.2d 965, 969 (3d Cir. 1982). After examining the evidence of record, a court should grant a
motion for summary judgment if the moving party “shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a);
accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
A factual dispute is material when it “might affect the outcome of the suit under the
governing law,” and genuine when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
8
U.S. 574, 587 (1986) (citation omitted).
IV.
DISCUSSION
Milgiore’s Second Amended Complaint asserts three claims: (1) First Amendment
retaliation under 42 U.S.C. § 1983, (2) denial of procedural due process under 42 U.S.C. § 1983,
and (3) neglect to prevent under 42 U.S.C. § 1986. In response to defendants’ motion for
summary judgment, Migliore stated that he “does not herein pursue his neglect to prevent claim
under Section 1986.” (Pl. Resp. at 23.) The Court accordingly concludes that Migliore has
abandoned this claim, and defendants’ motion for summary judgment is granted as to this claim.
The Court addresses Migliore’s remaining claims, for First Amendment retaliation and denial of
due process, in turn.
A. First Amendment Retaliation
In evaluating government employees’ First Amendment retaliation claims, courts engage
in a three-step analysis. First, the employee must show that he engaged in protected activity.
Second, the employee must prove that this protected activity was a substantial factor in the alleged
retaliatory action by the employer. Third, the employer may defeat the employee’s claim by
demonstrating that the same adverse action would have taken place in the absence of the protected
conduct. Hill v. Scranton, 411 F.3d 118, 125 (3d Cir. 2005).
With respect to the first step, the determination whether an employee’s speech is protected
is itself subject to a three-prong analysis: “A public employee’s statement is protected activity
when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of
public concern, and (3) the government employer did not have ‘an adequate justification for
treating the employee differently from any other member of the general public’ as a result of the
statement he made.” Hill v. Borough of Kutztown, 455 F.3d 225, 241–42 (3d Cir. 2006) (quoting
9
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)).
Concerning the second step, an employee must show that his employer took an adverse
employment action against him, and that there was a causal connection between his protected
speech and that adverse action. To establish an adverse employment action in the context of a
First Amendment claim, “a plaintiff must . . . show that the defendants’ action was sufficient to
deter a person of ordinary firmness from exercising his or her rights.” Revell v. City of Jersey
City, 394 F. App’x 903, 906 (3d Cir. 2010) (internal quotations omitted). Next, “[t]o establish the
requisite causal connection a plaintiff usually must prove either (1) an unusually suggestive
temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a
pattern of antagonism coupled with timing to establish a causal link. In the absence of that proof
the plaintiff must show that from the evidence gleaned from the record as a whole the trier of the
fact should infer causation.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.
2007) (internal quotations omitted). “In addition, summary judgment may be defeated when ‘a
reasonable inference can be drawn that an employee’s speech was at least one factor considered by
an employer in deciding whether to take action against the employee . . . . ’” Kovac v.
Pennsylvania Tpk. Comm’n, 444 F. App’x 588, 590-91 (3d Cir. 2011) (quoting Merkle v. Upper
Dublin Sch. Dist., 211 F.3d 782, 795 (3d Cir. 2000)).
Migliore makes three arguments in his First Amendment claim. First, he avers that he was
retaliated against for his speeches and the Book, which all related to democratic practices in school
governance. Second, Migliore claims that he was retaliated against for “exercis[ing his] freedom
of speech and association when he went to his CASA union president to seek relief from the
hostility of Defendant Dean and the subsequent presentation of his Grievance and Complaint to
regional superintendent Feria . . . . ” (Second Am. Compl. at ¶136.) Finally, Migliore also asserts
10
that the “exercise of his leadership beliefs and researched [sic] based practices . . . along with his
associations and friendships with teachers was a substantial factor in the retaliatory action and
reprisal.” (Second Am. Compl. at ¶135.)
In his motion papers, Migliore only mentions the last claim in passing. For instance, he
states, “The more he associated with the teachers as Mastbaum and the friendlier he became with
his new colleagues, the more intensely Ms. Dean wrote him up.” (Pl. Mot. at 20.) Milgiore
presents no argument concerning whether such friendships constitute protected First Amendment
activity. Further, he has not explicitly identified any evidence in his motion papers supporting his
claim that his leadership beliefs, research-based practices, or associations and friendships with
teachers were a factor in any adverse action taken against him. The Court therefore grants
defendants’ motion for summary judgment and denies plaintiff’s motion for summary judgment,
as to this claim.
The Court addresses Migliore’s remaining First Amendment arguments in turn.
1. Speeches and the Book
First, Migliore claims that he was demoted and otherwise harmed by defendants in
retaliation for his speeches and the Book. This claim encompasses Migliore’s speeches to the
SRC in August of 2007 and August of 2008, as well as the Book, “Whose School is It?” The
Book contains chapters such as “The Grand Hypothetical of School Governance,” “Leadership for
the Twenty-First Century,” and “School Councils & Why They Don’t Work.”
The parties disagree over whether Migliore has shown (1) an adverse employment action in
retaliation for protected speech, and (2) whether any such adverse action is causally connected to
protected speech. Defendants do not address the third prong of the retaliation analysis, whether
they would have taken the same action in the absence of protected speech. The Court addresses
11
the disputed prongs of the analysis in turn.
i.
Protected Speech/Adverse Action
Defendants do not contest that Miglilore’s authored his speeches and the Book as a citizen
on a matter of public concern and they do not contend that they had “an adequate justification for
treating the employee differently from any other member of the general public’ as a result of the
statement he made.” Borough of Kutztown, 455 F.3d at 241-42. The Court notes that Migliore’s
speeches and Book addressed broad themes related to school administration and democracy. See
also Connick v. Myers, 461 U.S. 138, 147 (1983) (“An employee’s speech addresses a matter of
public concern when it can be fairly considered as relating to any matter of political, social, or
other concern to the community.”). The Court therefore concludes that Migliore’s speeches and
Book constitute protected First Amendment activity.
Defendants argue, however, that Migliore has presented no evidence of an “adverse
employment action” which could constitute retaliation for his speech. (Def. Resp. at 17.) On
this issue, defendants claim that because Migliore voluntarily retired, he was never formally
demoted and thus experienced no adverse employment action. The Court rejects defendants’
argument on this issue.
“A First Amendment retaliation claim will lie for any individual act which meets this
‘deterrence threshold,’ and that threshold is very low . . . a cause of action is supplied by all but
truly de minimis violations.” O’Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006); see
also Rutan v. Republican Party of Illinois, 497 U.S. 62, 76 n.8 (1990) (noting that “the First
Amendment . . . protects state employees . . . from . . . even an act of retaliation as trivial as failing
to hold a birthday party for a public employee when intended to punish her for exercising her free
speech rights.”) (internal quotations omitted). As the Commonwealth Court noted, prior to
12
Migliore’s resignation, “the District took action against Migliore effecting a change in his
authority, prestige and responsibilities . . . .” Migliore, 2013 WL 3156533, at *3. For instance,
Migliore was recommended for demotion by multiple defendants, was advised to select a position
as a teacher for the coming school year, and claims to have received an official assignment to a
teaching position. This Court concludes that such action is “sufficient to deter a person of
ordinary firmness from exercising his or her rights . . .” and therefore constitutes an adverse
employment action in the context of a First Amendment claim. Revell v. City of Jersey City, 394
F. App’x 903, 906 (3d Cir. 2010) (internal quotations omitted).
ii.
Causal Connection
Next, the parties contest whether Migliore has shown a causal connection between his
protected speech and alleged demotion. Defendants claim that the temporal gap is too great to
infer a causal connection between Migliore’s speech acts and any subsequent adverse employment
action. Migliore last spoke to the SRC and provided several defendants with copies of the Book
several months before the claimed demotion. Similarly, Dean became aware of the Book well
over a year before she recommended his demotion from assistant principal. However, even
where adverse actions and protected speech are not close in proximity, a causal connection may be
proven through “a pattern of antagonism coupled with timing,” just as in Title VII retaliation
claims. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997); Brennan v. Norton,
350 F.3d 399, 420 (3d Cir. 2003) (“The causation required to establish a claim under § 1983 is
identical to that required under Title VII.”).
In this case, the Court concludes that Migliore has presented evidence connecting his
speeches and Book publication to the alleged demotion, which is sufficient to show an ongoing
pattern of antagonism. Migliore contends that Dean became aware of the Book some time in the
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fall of 2007. Dean conceded in her deposition testimony that she became aware of Migliore’s
Book at some point when she entered his office and spoke to him about the Book, but she did not
say when that took place. Dean also admits that, concerning the Book, she said, “Be careful what
you put in writing.” (Depostion of Mary Sandra Dean at 105.) Milgiore further alleges that
Dean was hostile towards him following his address at the SRC in August of 2007. While the
parties dispute whether Dean had knowledge of Migliore’s speech or its contents, Dean avers that
she wrote several 204’s concerning Dean’s job performance in the 2007-2008 school year.
Further, in a separate incident, Migliore alleges that Dean told him that he should transfer to a
different school, or she would “write so much paper on you that you will lose your job by the end
of the year.” (Pl. Resp. at 11; Deposition of Richard Migliore, at 60.)
Following Migliore’s second speech to the SRC in August of 2008, the rate of disciplinary
memoranda from Dean increased. The subsequent letter from then-superintendent Ackerman and
then-chairman Archie states that Dean issued nine 204’s and other disciplinary memoranda
concerning alleged professional failures by Migliore during the 2008-2009 school year. (Pl. Ex.
S.) According to the letter, Dean twice recommended that Migliore be suspended without pay for
multiple days, but only one of these recommendations was approved by the SRC. (Id.) The final
204 issued by Dean that year was that of May 29, 2009, in which she recommended Migliore’s
demotion from his position as assistant principal. (Id.)
“[S]ummary judgment may be defeated when ‘a reasonable inference can be drawn that
an employee’s speech was at least one factor considered by an employer in deciding whether to
take action against the employee, the question of whether the speech was a motivating factor in
that determination is best left to the jury.’” Kovac v. Pennsylvania Tpk. Comm’n, 444 F. App’x
588, 590-91 (3d Cir. 2011) (quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 795 (3d Cir.
14
2000)). While many facts are disputed, given the above evidence of ongoing antagonism, the
Court determines that Migliore has presented evidence sufficient to support a reasonable inference
that his speech was at least one factor considered by defendants in recommending his demotion.
See Woodson v. Scott Paper Co., 109 F.3d 913, 924 (3d Cir. 1997) (sufficient causal connection
based on “pattern of antagonism” during intervening two-year period between protected activity
and adverse action); Robinson v. Se. Pennsylvania Transp. Auth., Red Arrow Div., 982 F.2d 892,
895-96 (3d Cir. 1993) (holding that a “constant barrage of written and verbal warnings . . . [which]
continued until [plaintiff’s] discharge,” supported the finding of a “causal link . . . . ”). 2
Accordingly, the Court denies defendants’ motion for summary judgment as to that part of
Migliore’s First Amendment claim which asserts retaliation because of his speeches and the Book.
Further, the Court finds that there are genuine disputes of material fact concerning
Migliore’s retaliation claim. The parties dispute whether Dean was aware of Migliore’s speeches
before the SRC, whether she understood the contents of the Book, whether regional superintendent
Feria “paged through” the Book and expressed displeasure with the chapter titled the “The
Inherent Immorality of Bureaucracy,” and generally whether Migliore’s speech was a substantial
or motivating factor in his demotion. The Court therefore also denies Migliore’s motion for
summary judgment as to that part of Migliore’s First Amendment claim which asserts retaliation
because of his speeches and the Book.
2. Grievance and Complaint
Migliore also claims that he was retaliated against because of his complaint to CASA
Union president Lerner, and the subsequent presentation of his grievance and complaint to
regional superintendent Feria, in violation of his First Amendment rights. Migliore does not state
2
Defendants make no argument concerning the third and final prong of the retaliation analysis, whether they would
have undertaken the same action in absence of the protected conduct. Accordingly, the Court need not address this
aspect of Migliore’s claim.
15
whether this claim is founded on his rights under the Speech Clause or the Petition Clause of the
First Amendment. 3 The Court need not resolve this ambiguity because on either ground,
Migliore’s claim fails as a matter of law.
Whether a public employee claims retaliation under the Speech or Petition Clause, the
claim must relate to a matter of public concern. See Borough of Duryea, Pa. v. Guarnieri, 131 S.
Ct. 2488, 2500 (2011) (“If a public employee petitions as an employee on a matter of purely
private concern, the employee’s First Amendment interest must give way, as it does in speech
cases.”). Migliore does not argue that his complaint and grievance before either Lerner or Feria
was on a matter of public concern. Rather, Migliore states that he went to see Lerner “about the
open hostility Ms. Dean was displaying toward Mr. Migliore.” (Pl. Mot. at 19.) The letter
containing Migliore’s complaint and grievance discussed the ongoing antagonism between him
and Dean. In the letter, Migliore wrote that Dean was “obviously looking for reasons she can use
to justify ‘writing me up’ . . . . It is clear that I am working within a ‘hostile working environment’
and it is affecting me.” (Pl. Ex. B.) The Court therefore concludes that Migliore was acting as an
employee and addressing a matter of private concern when he spoke to and/or petitioned Lerner
and Feria. Migliore’s First Amendment claim concerning his grievance and complaint is thus
groundless as a matter of law. See Guarnieri, 131 S. Ct. 2488, 2501 (2011) (holding that the right
to petition “is not a right to transform everyday employment disputes into matters for
constitutional litigation in the federal courts”); Lucas v. City of Philadelphia, 2012 WL 464929, at
*9 n.4 (E.D. Pa. Feb. 13, 2012) (“[A] suit under the First Amendment is not proper where an
employer retaliates against an employee for petitioning about an ordinary workplace grievance.”).
3
The First Amendment of the Constitution states: “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 peaceably to assemble, and to petition the government for a redress of grievances.” (emphasis added)
16
The Court grants defendants’ motion for summary judgment as to that part of Migliore’s First
Amendment claim based on retaliation for his grievance and complaint to Lerner and Feria.
B. Denial of Due Process
Milgiore next asserts that he was denied due process when he was demoted without a
hearing. (Pl. Mot. at 11.) Defendants argue that Milgiore’s due process claim is precluded by
the decision of the Commonwealth Court. “Under the Full Faith and Credit Act, 28 U.S.C.
§ 1738, federal courts must give state court decisions the same preclusive effect as they would be
given ‘in the courts of the rendering state.’” Hitchens v. Cnty. of Montgomery, 98 F. App’x 106,
111 (3d Cir. 2004).
“Issue preclusion bars relitigation of identical issues adjudicated in a prior action against
the same party or a party in privity.” 4 Id. “Under Pennsylvania law, issue preclusion applies
where: (1) the issue decided in the prior adjudication was identical with the one presented in the
later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is
asserted was a party or in privity with a party to the prior adjudication; and (4) the party against
whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior
action.” Id. (quoting Greenleaf v. Garlock, Inc., 174 F.3d 352, 357-58 (3d Cir.1999)).
On the first prong of the test, “[i]dentity of the issue is established by showing that the same
general legal rules govern both cases and that the facts of both cases are indistinguishable as
measured by those rules.” Suppan v. Dadonna, 203 F.3d 228, 233 (3d Cir. 2000). “To defeat a
finding of identity of the issues for preclusion purposes, the difference in the applicable legal
standards must be substantial.” Raytech Corp. v. White, 54 F.3d 187, 191 (3d Cir. 1995) (internal
4
The Court notes that claim preclusion does not apply in this case, as it requires identical parties in both actions, and
there are several defendants present in this case that were not joined before the Commonwealth Court. See U.S.
Bank, Nat. Ass'n v. First Am. Title Ins. Co., 2013 WL 1905110, at *3 (E.D. Pa. May 8, 2013). In addition, the
Rooker-Feldman doctrine does not apply where, as here, parallel state and federal proceedings were initiated and the
state court issues a decision first. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 281 (2005).
17
quotations omitted). In this case, defendants argue that the relevant issues decided by the
Commonwealth Court are identical to those in Migliore’s due process claim before this Court.
The Commonwealth Court explicitly stated that Migliore was asserting a constitutional due
process claim and analyzed that claim under the familiar constitutional standard of whether
Migliore had “notice and an opportunity to be heard.” Migliore, 2013 WL 3156533 at *3 n.3, *7.
The Court concludes that the standard applied by the state court is indistinguishable from the
standard applied by this Court. Accordingly, this Court concludes that the first prong of the issue
preclusion test, identity of the issues, has been satisfied.
Concerning the second prong of the test, whether a final judgment was rendered on the
merits, Migliore contended that the decision of the Commonwealth Court is not final, “due to
Plaintiff’s pending request for reargument en banc.” (Id. at 2.) The parties subsequently
informed the Court that Migliore’s request for reargument had been denied, but that Migliore
would be filing a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. Under
Pennsylvania law, “[a] judgment is deemed final for purposes of res judicata or collateral estoppel
unless or until it is reversed on appeal.” Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996).
Further, “the pendency of an appeal does not affect the potential for res judicata flowing from an
otherwise-valid judgment.” United States v. 5 Unlabeled Boxes, 572 F.3d 169, 175 (3d Cir.
2009). “[A]llowing a pending appeal to bar the operation of collateral estoppel would frustrate
the doctrine’s purpose of preventing the protraction and duplication of litigation.” Rutter v.
Rivera, 74 F. App’x 182, 187 (3d Cir. 2003).
The Commonwealth Court finally decided Migliore’s due process claim on the merits, and
that decision has preclusive effect regardless of the pendency of any appeal. This Court
concludes that the second prong of the issue preclusion analysis, a final decision on the merits, has
18
been met.
Next, the Court addresses the third and fourth prongs of the analysis: whether Migliore was
a party to the state court litigation, and whether he had a full and fair opportunity to litigate the
issue below. The Court finds that Migliore was a party to the proceedings in the Commonwealth
Court. As to the fourth prong, Migliore contends that state courts cannot “issue a ruling which
deprives [him] of his federally protected due process rights.” (Joint Rep. at 3.) The Court rejects
this argument. A party’s disagreement with a decision does not deprive that decision of
preclusive effect. See also, Wilbur Chocolate Co., Inc. v. Bakery, Confectionary & Tobacco
Workers' Int'l Union, Local 464, 1988 WL 33881, at *5 (E.D. Pa. Mar. 31, 1988).
Even if the Court construes Migliore as arguing that he did not have a full and fair
opportunity to litigate his federal due process claim in his state court proceedings, the result would
be the same. The requirement that a party have a “full and fair opportunity to litigate,” mandates
that “state proceedings need do no more than satisfy the minimum procedural requirements of the
Fourteenth Amendment’s Due Process Clause . . . . ” Kremer v. Chem. Const. Corp., 456 U.S.
461, 481 (1982). The Docket Sheet for the Commonwealth Court establishes that Migliore filed
both an initial brief as well as a reply brief concerning his claims in that forum. In addition, the
court heard oral argument on May 16, 2013. See Russo v. City of Philadelphia, 459 F. App’x
176, 179 (3d Cir. 2012) (finding full and fair opportunity to litigate where plaintiff “asserted his
state court claims in pleadings and briefs filed with the Commonwealth Court, and at oral
argument before that Court.”). The Court thus concludes that Migliore had a full and fair
opportunity to litigate his due process claim before the Commonwealth Court, and that the fourth
and final prong required for issue preclusion is satisfied in this case.
All elements of issue preclusion with respect to Migliore’s due process claim in this case
19
have been satisfied. Thus, Migliore is precluded from arguing in this action that his due process
rights were violated. The Court grants defendants’ motion for summary judgment and denies
Migliore’s motion for summary judgment as to this claim. If the Commonwealth Court decision
is overturned on appeal, this Court will entertain a motion for reconsideration.
C. Municipal Liability
Defendants next argue that Migliore has not established liability on the part of the School
District and the SRC. Municipal subdivisions and agencies such as school districts and boards are
treated as municipalities for purposes of 42 U.S.C. § 1983. See C.H. ex rel. Z.H. v. Oliva, 226
F.3d 198, 202 (3d Cir. 2000); Spirk v. Centennial Sch. Dist., 2005 WL 433321, at *5 (E.D. Pa. Feb.
22, 2005). The liability of a municipality under § 1983 is governed by Monell v. Department of
Social Services, 436 U.S. 658 (1978). Under Monell, municipalities are “included among those
persons to whom § 1983 applies.” Id. at 690. Municipalities, however, cannot be found liable
under the doctrine of respondeat superior for claims based on federal civil rights statutes. Board
of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997). For a municipality to
be found liable, “those whose edicts or acts may fairly be said to represent official policy” must
adopt a “policy or custom” causing an actionable § 1983 injury. Monell, 436 U.S. at 694; see also
Board of County Comm’rs of Bryan County, 520 U.S. at 403; City of Canton, Ohio v. Harris, 489
U.S. 378, 385 (1989); Berg v. County of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000). A
municipal “policy” may arise from the “decisions of [a municipality’s] duly constituted legislative
body or of those officials whose acts may fairly be said to be those of the municipality.” Board of
County Comm’rs of Bryan County, 520 U.S. at 403-04. A municipal “custom” is a practice that
is “so widespread as to have the force of law,” though the practice “has not been formally approved
by an appropriate decisionmaker.” Id. at 404.
20
Migliore contends that the School District and SRC are liable pursuant to Monell because
commissioner Dworetsky’s finding of no constructive discharge amounts to “official policy.”
(Pl. Resp. at 20.) Migliore describes that policy as such: “That clear and established Pennsylvania
law governing teacher tenure provisions and procedures may be unilaterally abrogated by the
School Reform Commission when it chooses to do so.” (Id.) Even if the Court construes this as
a claim that the SRC has a policy of violating constitutional due process rights, the Court has
previously concluded that Migliore’s due process claim is precluded by the decision of the
Commonwealth Court. See also Persico v. City of Jersey City, 67 F. App’x 669, 676 (3d Cir.
2003) (“Proof of a constitutional injury is a threshold requirement for a Monell claim.”). Further,
Migliore makes no argument as to whether any official policy or custom caused the alleged
retaliation against him in violation of his First Amendment rights, and the Court finds no evidence
on the present state of the record that any such policy or custom existed. The Court therefore
grants that part of defendants’ motion for summary judgment on Migliore’s claims against the
School District and the SRC. 5
V.
CONCLUSION
For the foregoing reasons, the Court denies Milgiore’s motion for summary judgment, and
grants in part and denies in part defendants’ motion for summary judgment. The only claims
remaining in the case are Migliore’s First Amendment claims concerning his speeches and Book
against all individual defendants in their personal capacities. An appropriate order follows.
5
Defendants separately argue that punitive damages are not available against the School District and the SRC. See
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). That is a correct statement of law but the Court
need not reach this issue in this case in view of its ruling on the Monell issues.
21
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