HAWA et al v. COATESVILLE AREA SCHOOL DISTRICT

Filing 54

MEMORANDUM AND ORDER THAT COUNT II OF THE AMENDED COMPLAINT IS DISMISSED WITH PREJUDICE. COUNTS I AND III OF THE AMENDED COMPLAINT ARE DISMISSED WITHOUT PREJUDICE. PLAINTIFFS MAY SEEK LEAVE TO FILE A SECOND AMENDED COMPLAINT WITHIN 15 DAYS OF THE DATE OF THIS ORDER, ETC. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 3/3/2016. 3/3/2016 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ABDALLAH HAWA and
TERESA POWELL,
Plaintiffs,

v.
COATESVILLE AREA SCHOOL DISTRICT,
et al.,
Defendants.

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CIVIL ACTION

No. 15-4828

MEMORANDUM AND ORDER
MARILYN HEFFLEY, U.S.M.J.

March 3, 2016

Before this Court is the Motion to Dismiss (Doc. No. 28) of Defendants Richard Como
(“Como”) and Angelo Romaniello (“Romaniello”) (collectively, “Defendants”). Defendants
move to dismiss Counts I through III of the Amended Complaint filed by Plaintiffs Abdallah
Hawa (“Hawa”) and Plaintiff Teresa Powell (“Powell”) (collectively, “Plaintiffs”). 1 For the
reasons that follow, Defendants’ Motion to Dismiss will be granted.
I.

BACKGROUND
In this action, Plaintiffs assert claims alleging violations of 42 U.S.C. §§ 1981, 1983,

Title VII, 42 U.S.C. § 2000(e), the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1201
et seq., the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq., the
Rehabilitation Act, 29 U.S.C. § 794, the Family Medical Leave Act (“FMLA”), 29 U.S.C.

1

In their opposition to the Motion to Dismiss (Doc. No. 34), Plaintiffs have withdrawn Count
II of the Amended Complaint. Opp. at 1 n.1. Accordingly, Count II is dismissed with prejudice.

§ 2601 et seq., and the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat. § 1421 et seq.
In support of these claims, Plaintiffs’ Amended Complaint sets forth the following
allegations. Hawa is employed as the Director of Technology for CASD. He is of LebaneseAmerican descent. Amended Complaint (Doc. No. 15) ¶¶ 17-18 (“Am. Compl.”). Powell is
employed as the Director of Middle School Education for CASD. She is of African-American
descent. Id. ¶¶ 19-20. In or about late spring of 2013, Hawa issued a new cellular telephone to
CASD’s Athletic Director, James Donato (“Donato”). Id. ¶ 22. As a result, Donato returned his
previously issued telephone to Hawa. Id. ¶ 23. On or about August 15, 2013, Hawa retrieved
Donato’s former telephone from storage and began clearing it for issuance to another employee.
Id. ¶ 24. In so doing, he discovered numerous racist text messages exchanged between Richard
Como (“Como”), CASD’s former Superintendent, and Donato, referring to certain CASD
employees in racially derogatory terms. Id. ¶ 25. In addition, he discovered text messages
containing suspicious references to the use of taxpayer money for improper purposes. Id. ¶ 26.
Hawa brought the text messages to the attention of Powell. Id. ¶ 28. Powell suggested that they
bring the matter to the attention of Dr. Tonya Thames Taylor (“Taylor”), a CASD School Board
member and President of the local chapter of the National Association for the Advancement of
Colored People. Id. After reviewing the text messages, Taylor recommended that Hawa and
Powell bring the messages to the attention of CASD’s School Solicitor, James Ellison, Esquire
(“Ellison”). Id. ¶ 29.
Ellison met with Hawa, Powell and Taylor on August 17, 2013 at the Scott Middle
School to review and discuss the text messages. Id. ¶ 31. Ellison stated that he would
immediately apprise the President and Vice President of the CASD School Board of the text
messages. Both Ellison and Taylor expressed concern regarding the text messages being made

2

public. Id. They stated, however, that they would schedule a meeting with the School Board’s
Finance Committee to discuss the matter. Id. ¶ 33. While exiting the building after the meeting
concluded, Ellison noticed video surveillance cameras in the Scott Middle School parking lot and
inquired whether they were functional. Id. Upon being informed by Hawa that the cameras were
operational, Ellison directed Hawa to erase the camera footage of them in the parking lot so that
no one would know that they had met. Id. ¶ 34. Hawa did not comply with that directive. Id.
Ellison informed the Finance Committee of the text messages and the members of the
Committee directed him to investigate further. Id. ¶ 36. Subsequently, upon being confronted
with the text messages, Como admitted to sending them. Id. ¶ 37. Taylor informed Hawa and
Powell that the Finance Committee had decided to allow Como to remain in his position as
Superintendent until the end of the school year, at which time he would retire. Taylor told Hawa
and Powell that this resolution would allow the CASD School Board to remedy the problem
without making the text messages public. Id. ¶ 38. Following that event, Como began to
“pester” Hawa on a daily basis, asking how the Finance Committee had become aware of the text
messages and demanding that Hawa provide him with Donato’s previous telephone that
contained the text messages. Id. ¶ 41.
On or about August 22, 2013, Powell asked Taylor whether the entire School Board had
been informed of the Como and Donato text messages and she replied that only the Finance
Committee had been made aware of them. Id. ¶ 42. Fearing that the School Board was
attempting to cover up the text messages, Powell wrote an anonymous letter to the full School
Board, bringing the text messages to its attention. Id. On August 23, 2013, Taylor telephoned
Powell and informed her that the School Board had received the anonymous letter and that she
believed Hawa had authored it because it contained “numerous grammatical and typographical

3

errors.” Id. ¶ 43. Taylor referred to Hawa as a “turncoat” and stated that he had “messed up” by
informing the entire School Board of the text messages. Id. ¶ 44. Upon learning of this
conversation from Powell, Hawa emailed the full text message transcript to the Chester County
District Attorney’s Office (the “District Attorney’s Office ”). Id. ¶ 45. On the same day, the full
School Board held an emergency meeting regarding the text messages. Id. ¶ 46. At the meeting,
Ellison informed the School Board that the District Attorney’s Office had demanded that
Donato’s cellular telephone be turned over to it so that it could investigate the potential misuse of
public funds referenced in the text messages. 2 Id. The School Board assigned Ellison to conduct
an investigation into the text messages and to provide recommendations at its next executive
session. Id. ¶ 47.
On or about August 26, 2013, Taylor informed Powell that the School Board planned to
discuss an exit plan for Como in order to protect itself from liability. Id. ¶ 52. Under that exit
plan, Como would resign rather than be terminated. Id. On or about August 27, 2013, Como
called a directors meeting and informed those present that he was contemplating retirement. Id.
¶ 55. Upon receiving the results of Ellison’s investigation, the School Board instructed Ellison
to inform Como and Donato that they were being suspended without pay pending termination,
unless they elected to resign. Id. ¶ 57. Both men agreed to resign. Id. ¶ 58. Subsequently, the
School Board issued a press release on its website announcing that Como had decided to retire.
The announcement neither mentioned Donato’s resignation nor the text messages. Id. ¶ 62.
Due to the abrupt nature of Como’s retirement and Donato’s resignation, members of the
media made requests under Pennsylvania’s Right to Know Law for information relating to their
2

When Donato’s telephone was provided to the District Attorney’s Office, however, all of the
incriminating text messages had been erased. Id. ¶ 51.

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cellular telephone records. Id. ¶ 68. Ellison had attorneys at his law firm research whether the
School Board could withhold the text messages from disclosure. Id. ¶ 69. In response to press
inquiries, the School Board stated that Como and Donato had submitted letters of resignation, but
refused to comment further because the matter was the subject of an ongoing investigation by the
District Attorney’s Office and involved personnel issues. Id. ¶ 70. Hawa and Powell, believing
that the School Board was involved in a cover-up, met with a reporter and provided the reporter
with the entire text message transcript. Id. ¶ 71.
On or about September 24, 2013, Hawa and Powell attended a public School Board
meeting and revealed themselves as the individuals who discovered and reported the racist text
messages. Id. ¶ 75. Powell read a statement that accused Ellison and various School Board
members of attempting to cover up the text messages. Id. ¶¶ 76-77. Following that meeting,
Ellison focused his internal investigation almost exclusively on Hawa and Powell “in an attempt
to terminate and/or discipline and/or force them out of their positions of employment.” Id. ¶ 80.
Toward that end, Ellison directed Acting Superintendent, Romaniello, and Director of Human
Resources, Erika Zeigler (“Zeigler”), to document their interactions with Hawa and Powell and
to specifically note when and if they deviated from school policies or procedures. Id. ¶ 81. In
addition, Ellison directed attorneys in his law firm to conduct research regarding the School
Board’s ability to discipline or terminate Powell. Id. ¶¶ 83-90.
On or about September 27, 2013, Ellison engaged Reclamere, Inc. (“Reclamere”), a
computer forensics company, and directed it to image the hard drives and servers in Hawa’s IT
Department. Id. ¶¶ 91-94. In order to access the servers, Ellison instructed Romaniello to call
the IT Network Manager and obtain the list of passwords for the School District’s servers. Id.
¶ 96. The IT Network Manager informed Romaniello that there was no list of passwords and

5

that Romaniello should contact Hawa to obtain the passwords. Id. A dispute ensued in which
Romaniello demanded that the IT Network Manager, and then Hawa, himself, provide him with
the passwords upon threat of discipline. Id. ¶¶ 96-106. As the dispute unfolded, Hawa informed
the District Attorney’s Office, which sent a letter to Ellison directing him to preserve his cellular
phone and iPad data, as well as all files on CASD’s system for use in the investigation. Id. ¶¶
101-02. Ellison responded to the District Attorney’s Office’s letter by stating that:
We are taking extraordinary steps at our cost to secure our computer systems and .
. . preserve all information in its present state, not only for your investigation but
in anticipation of litigation as clearly required by the Rules of Civil Procedure
given the fact that both Dr. Powell and Mr. Hawa put us on notice that they have
secured counsel in connection with their employment with CASD.
Id. ¶ 109.
Ultimately, Hawa relented and provided the passwords. Id. ¶ 107. On or about
September 29, 2013, Ellison and Romaniello directed representatives from Reclamere to image
four specific hard drives belonging to Hawa and his subordinates, the Network Manager and the
Assistant Network Manager. Id. ¶ 110. On October 2, 2013, Ellison instructed Reclamere to
image CASD’s network servers and to archive all school video camera surveillance footage. Id.
¶ 117. Ellison and Romaniello ordered the hard drive and server imaging despite the
preservation communication from the District Attorney’s Office. Id. ¶¶ 110, 117-121. Ellison
then instructed Reclamere to perform searches of the email accounts belonging to Powell and
Hawa and two principals at CASD who were personal friends of Powell. Id. ¶ 140.
In October 2013, Hawa and Powell were subpoenaed to testify before and bring
documents to a grand jury investigating the possible misuse of taxpayer funds by Como and
Donato. Id. ¶ 122. At or around the same time, Hawa met with detectives from the District
Attorney’s Office in the Brenner Administration Building. Id. ¶ 125. Ellison directed
Romaniello to threaten Hawa with discipline for “not doing his job” and “disrupting the
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workplace.” Id. On or about October 18, 2013, the day after Powell’s scheduled testimony
before the grand jury, Ellison instructed her to attend a surprise meeting with Zeigler regarding
the events surrounding the Como and Donato text messages. Id. ¶¶ 128-29. Zeigler instructed
Powell that she was not permitted to speak to her attorney prior to the meeting or to have her
attorney present while she was questioned and that she would be terminated if she did not
cooperate. Id. ¶¶ 130-31. Powell declined to respond to questions under those circumstances.
Id. ¶ 131. Zeigler subsequently made further efforts to obtain an interview with Powell, but
eventually abandoned her efforts after Powell questioned her demands in writing. Id. ¶ 133.
On October 22, 2013, the School Board met with Ellison to discuss retaining outside
counsel to handle the matters related to the text messages going forward. Id. ¶ 144. Outside
counsel was retained and instructed to review the conduct of Hawa and Powell in order to justify
their terminations. Id. ¶¶ 144-47. The School Board subsequently took retaliatory actions
against Powell, including denying her a 4% annual salary raise that was awarded to other
employees, denying her request to temporarily assume the principal’s role at a school where the
previous principal had retired, stripping her of certain job duties, no longer affording her an
office at CASD’s central office building and structuring a new position for an Assistant
Superintendent to require one more year of experience than she possessed. Id. ¶¶ 150-55.
As a result of the stress accompanying the School Board’s actions, Powell was diagnosed
in November 2014 with severe major depressive disorder, mania and post-traumatic stress
syndrome. Id. ¶ 158. In December 2014, Powell requested and was granted medical leave
pursuant to the FMLA. Id. ¶ 159. While Powell was on leave, the School Board’s new
Superintendent, Dr. Cathy Taschner (“Taschner”), instructed various principals throughout the
district to ban her from all schools due to false accusations of malfeasance. Id. ¶ 160. Powell’s

7

FMLA leave was exhausted on or about May 13, 2015. Id. ¶ 161. Powell then requested that
CASD grant her extended leave as a reasonable accommodation for her disabilities, and CASD
granted Powell extended leave through June 30, 2015. Id. In May 2015, Powell requested that
CASD permit her to utilize a sabbatical for restoration of health, pursuant to 24 Pa. Cons. Stat.
§ 11-1166, from July 1, 2015 through September 2016. On or about June 5, 2015, despite her
eligibility for such a sabbatical, CASD denied her request. Id. ¶¶ 162-63.
In September 2014, Taschner began stripping Hawa of job duties, including removing his
decision-making power with respect to purchasing software and equipment and excluding him
from crucial administrative meetings during which decisions were made regarding CASD’s IT
Department. Id. ¶¶ 164-66. In November 2014, CASD issued an unjustified letter of reprimand
to Hawa for allegedly collecting funds for an unauthorized purchase. Id. ¶ 167.
Due to the shock and stress resulting from the School Board officials’ conduct, Hawa was
diagnosed with stress and an anxiety disorder in November 2014. Id. ¶ 168. In December 2014,
Hawa commenced a medical leave pursuant to the FMLA. Id. ¶ 169. In May 2015, following
the exhaustion of his 12-week FMLA leave, Hawa began an unpaid sabbatical for restoration of
health as an accommodation of his disability. Id. At that time, Taschner removed Hawa’s access
to his CASD email account, barred him from CASD facilities and replaced him with an
individual who was not disabled. Id. ¶¶ 170-71.
II.

STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

8

reasonable inference that the defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 556-57 (internal
quotation marks omitted)). “In light of Twombly, ‘it is no longer sufficient to allege mere
elements of a cause of action; instead a complaint must allege facts suggestive of [the proscribed
conduct].’” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 177 (3d Cir.
2010) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). “‘[S]tating .
. . a claim requires a complaint with enough factual matter (taken as true) to suggest’ the required
element. . . .” Great Western Mining, 615 F.3d at 177 (quoting Twombly, 550 U.S. at 556). It
requires “‘enough facts to raise a reasonable expectation that discovery will reveal evidence of
the necessary element.’” Id. (quoting Twombly, 550 U.S. at 556). In determining the adequacy
of a complaint, this Court must “accept all factual allegations as true [and] construe the
complaint in the light most favorable to plaintiff.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d
77, 84 (3d Cir. 2011).
III.

ANALYSIS
A.

Standards Governing First Amendment Retaliation Claims

In Count I of the Amended Complaint, Plaintiffs allege that Como and Romaniello
retaliated against them for exercising their First Amendment right to speak about Como and
Donato’s racist emails and CASD’s conduct in connection therewith in violation of 42 U.S.C. §
1983. The burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S 792, 802
(1973), applies to Section 1981 and Section 1983 retaliation claims. Isler v. Keystone Sch. Dist.,

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No. 07cv1335, 2008 WL 3540603, at *3 (W.D. Pa. Aug. 12, 2008) (citing St. Mary’s Honor
Society v. Hicks, 509 U.S. 502, 506 n.1 (1983); Stewart v. Rutgers, the State Univ., 120 F.3d
426, 432 (3d Cir. 1997)). Under that three-step framework, a plaintiff must first establish a
prima facie case of retaliation. Id. If he or she does so, the burden then shifts to the defendant
“to articulate some legitimate, nondiscriminatory reason for the employer’s action.” Id. If the
employer carries that burden, the plaintiff must prove by a preponderance of the evidence that
the reasons offered by the employer were a pretext for discrimination. Id.
To plead a prima facie case for a First Amendment retaliation claim under Section 1983,
a plaintiff must allege: (1) he or she engaged in speech protected by the First Amendment; (2)
retaliatory action that would cause a person of ordinary firmness not to exercise his or her First
Amendment right; and (3) a causal link between the retaliation and the protected speech.
Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). However, “‘[a] prima facie
case is an evidentiary standard, not a pleading requirement.’” Connelly v. Lane Constr. Corp.,
809 F.3d 180, 789 (3d Cir. 2016) (quoting Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510
(2002)). It, therefore, is “‘not a proper measure of whether a complaint fails to state a claim.’”
Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009)). Instead, the
measure of whether a plaintiff has adequately stated a claim is whether the complaint contains
“sufficient factual allegations to raise a reasonable expectation that discovery will reveal
evidence of the [necessary] elements.” Id.
Here, Defendants do not challenge that Plaintiffs engaged in conduct protected by the
First Amendment. They argue, however, that Plaintiffs have failed to allege that they engaged in
actionable retaliatory conduct. Def.’s Br. (Doc. No. 28) at 9-12. The standard for alleging

10

retaliatory conduct directed at First Amendment activities is generous. As the Third Circuit has
explained:
First Amendment retaliation claims are always individually actionable, even when
relatively minor. Even “an act of retaliation as trivial as failing to hold a birthday
party for a public employee,” if “intended to punish her for exercising her free
speech rights,” may be actionable if under the circumstances it would be
sufficient to “deter a person of ordinary firmness” from exercising his or her First
Amendment rights. 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, 127-28 (3d Cir. 2006) (quoting Suppan v. Dadonna,
203 F.3d 228, 234–35 (3d Cir. 2000)). Retaliatory conduct is not limited to actions such as
termination, demotion or reduction in pay. Instead, “being the victim of petty harassments in the
workplace as a result of speaking on matters of public concern is in itself retaliation—even if the
employee cannot prove a change in the actual terms of his or her employment—and thus could
be actionable under the First Amendment.” McKee v. Hart, 436 F.3d 165, 169-70 (3d Cir.
2006). “In other words, a pattern of petty harassments is actionable even if the ‘employee cannot
prove a change in the actual terms of his or her employment,’ so long as the effect of the
harassment on the employee’s freedom of speech is more than de minimis.” Manna v. Twp. of
Fairfield, No. 04-CV-1430WJM, 2007 WL 3231894, at *2 (D.N.J. Oct. 30, 2007) (quoting
Suppan, 203 F.3d at 235).
Nevertheless, to be actionable, the retaliatory conduct must be more than de minimis. Id.
Thus, “‘[c]ourts have declined to find adverse action where the ‘alleged retaliatory acts were
criticism, false accusations or verbal reprimands.’” Revell v. City of Jersey City, 394 F. App’x
903, 906 (3d Cir. 2010) (quoting Brennan v. Norton, 350 F.3d 399, 419 (3d Cir. 2003)). “It is
well established that verbal harassment or threats will not state a constitutional claim.”
McKenna v. Schauer, No. 1:CV-08-0682, 2009 WL 959869, at *4 (M.D. Pa. Apr. 6, 2009)
11

(citing Balliet v. Whitmire, 626 F. Supp. 219, 228–29 (M.D. Pa. 1986); Panton v. Boom, No. 07–
CV–0350, 2007 WL 853848, at *2 (M.D. Pa. Mar. 20, 2007)). Moreover, “an internal
investigation, without subsequent demotions, terminations, reductions in pay, transfers, or other
similar adverse impacts on an employment situation, [is] not sufficient to sustain a First
Amendment retaliation claim.” Hammond v. City of Wilkes-Barre, No. 3:13-2322, 2015 WL
75168, at *4 (M.D. Pa. Jan. 6, 2015), aff’d , No. 15-1339, 2015 WL 5915956 (3d Cir. Oct. 9,
2015) (citing Lakkis v. Lahovski, 994 F. Supp. 2d 624, 632–33 (M.D. Pa. 2014); accord Peltier
v. United States, 388 F.3d 984, 988 (6th Cir. 2004); Jones v. Fitzgerald, 285 F.3d 705, 715 (8th
Cir. 2002); Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998); Herman v.
Hosterman, No. 1:11-cv-898, 2011 WL 4974181, at *3 (M.D. Pa. Oct. 19, 2011).
To plead a First Amendment retaliation claim against an individual, a plaintiff must
allege that the individual defendant participated in the retaliatory action. “A defendant in a civil
rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal involvement
can be shown through allegations of personal direction or of actual knowledge and acquiescence.
Allegations of participation or actual knowledge and acquiescence, however, must be made with
appropriate particularity.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (citations
omitted). “When there is more than one defendant, the employee must show that each defendant
individually participated or acquiesced in each of the alleged constitutional violations.” Smith v.
Cent. Dauphin Sch. Dist., 355 F. App'x 658, 667 (3d Cir. 2009). Thus, it is necessary to consider
the adequacy of the Plaintiffs’ allegations against each of the Defendants.

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B.

Hawa’s Retaliation Claims
1. Como

In support of his First Amendment retaliation claim against Como, Hawa points only to a
single allegation in his Amended Complaint regarding retaliatory action that Como personally
conducted against him, namely that:
Como began to harass Plaintiff Hawa on a daily basis, pestering him as to how the
text messages “fell into the hands” of the Board Finance Committee. In
connection thereto, Como demanded that Plaintiff Hawa provide him with
Donato’s previous cellular phone.
Am. Compl. ¶ 41, cited in Opp. at 10-11. The Amended Complaint does not elaborate on
what actions comprised that alleged harassment or pestering. While an extended
campaign of petty harassments could be sufficient in combination to support a claim for
retaliation, see Suppan, 203 F.3d at 235, in the absence of allegations of specific
retaliatory conduct, the conclusory statement that Como “harassed” and “pester[ed]”
Hawa is insufficient to support a retaliation claim. “In light of Twombly, ‘it is no longer
sufficient to allege mere elements of a cause of action; instead a complaint must allege
facts suggestive of [the proscribed conduct].’” Great W. Mining & Mineral Co., 615 F.3d
at 177 (quoting Phillips, 515 F.3d at 233). Here, the Amended Complaint fails to meet
that standard.
Hawa also argues that he has stated a valid First Amendment retaliation claim
against Como because Como remained as Superintendent for approximately two weeks
after Plaintiffs had disclosed the racist text messages to the School Board. Opp. at 11.
Hawa claims that during those two weeks, Como was responsible for the conduct of his
subordinates. Id. Specifically, he seeks to hold Como liable for various alleged actions
of School Board member, Taylor. Id. at 11-12. Hawa relies on Baker v. Monroe Twp.,
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50 F.3d 1186, 1190-91 (3d Cir. 1995), which held that the police officer in charge of a
raid could be liable for civil rights violations committed in the raid if “he participated in
violating [the plaintiffs’] rights, or . . . directed others to violate them, or . . . he, as the
person in charge of the raid, had knowledge of and acquiesced in his subordinates’
violations.”
Hawa’s argument is unavailing, however, because as a School Board member,
Taylor was not Como’s subordinate. Under Pennsylvania statute “the public school
system of the Commonwealth shall be administered by a board of school directors . . . .”
24 Pa. Cons. Stat. § 3-301. A school board is responsible for appointing and dismissing
superintendents, id. § 5-508, and superintendents perform “such . . . duties as may be
required by the board of school directors,” id. § 10-1081. Thus, even apart from the fact
that the decision already had been made that Como would be forced to retire, Am.
Compl. ¶ 38, Como was not in a position to direct or acquiesce in Taylor’s conduct and
consequently, cannot be held liable for it. Hawa’s Count I against Como fails to state
“sufficient factual allegations to raise a reasonable expectation that discovery will reveal
evidence of the [necessary] elements.” 3 Connelly, 809 F.3d at 789. Accordingly, Hawa’s
Count I against Como must be dismissed.

3

Moreover, none of Taylor’s alleged conduct during the time preceding Como’s resignation is
sufficient to support a retaliation claim. That conduct was comprised of: (1) allowing Como to
retire to avoid making the racist texts public; (2) offering Powell a “promotion in an effort to buy
her silence;” (3) telling Powell that Hawa was a turncoat and that he had “messed up;” and (4)
telling Powell that Taylor had a copy of Hawa’s email to the District Attorney’s Office. Opp. at
12. None of those actions, whether considered individually or cumulatively, are actionable
because they would not have deterred a person of ordinary firmness from exercising his or her
First Amendment rights. O’Connor, 440 F.3d at 127-28.

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2. Romaniello
Hawa points to a number of actions by Romaniello that he contends constitute retaliation
for his disclosure of the racist text messages. Pl.’s Br. at 13-14. First, Hawa alleges that
Romaniello offered to raise Powell’s salary if she agreed not to bring any future litigation against
CASD. Am. Compl. ¶ 66. Hawa does not explain how this offer of an inducement to Powell
could constitute retaliation against him. Hawa next alleges that Romaniello directed school
system administrators to document their interactions with Hawa in order to “note when and if
[he] deviated from school policies or procedures.” Id. ¶ 82. Hawa does not allege, however, that
Romaniello ever took any action to alter the material terms of his employment or even began any
disciplinary proceeding as a result of any deviations from school policies or procedures. Even
had Romaniello launched a formal investigatory proceeding against Hawa, that alone would not
support a retaliation claim unless it resulted in a “subsequent demotion[ ], termination[ ],
reduction[ ] in pay, transfer[ ], or other similar adverse impacts on [Hawa’s] employment
situation.” Lakkis, 994 F. Supp. 2d at 633; accord Hammond, 2015 WL 75168, at *4; Falat v.
Cty. of Hunterdon, No. 12-6804 FSH MAH, 2014 WL 6611493, at *10 (D.N.J. Nov. 21, 2014);
Herman, 2011 WL 4974181, at *3; see also Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326
(3d Cir. 2015) (“A paid suspension pending an investigation of an employee’s alleged
wrongdoing does not fall under any of the forms of adverse action mentioned by Title VII's
substantive provision.”); Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006) (same); Von Gunten
v. Maryland, 243 F.3d 858, 869 (4th Cir. 2001) (same); Breaux v. City of Garland, 205 F.3d 150,
158 (5th Cir. 2000) (same as to First Amendment retaliation claim). “[T]he terms and conditions
of employment ordinarily include the possibility that an employee will be subject to an
employer's disciplinary policies in appropriate circumstances.” Joseph, 465 F.3d at 91. Merely

15

directing employees to collect evidence for use in a potential future disciplinary proceeding that
never actually occurred is not a sufficient basis for a retaliation claim.
Hawa also alleges that Romaniello demanded that Hawa provide him with the network
passwords to access CASD’s computers on threat of insubordination and then proceeded to have
the IT Department’s hard drives imaged. Am. Compl ¶¶ 104-06, 110-11. Hawa has not, and
cannot, state any basis on which he legitimately could deny CASD access to its own computer
system. Nor has he offered any explanation how CASD creating a copy of the hard drives in its
IT Department, along with its network servers, id. ¶ 17, could constitute retaliation against him
personally. In the face of threatened civil litigation and an impending grand jury investigation,
for CASD to preserve a copy of the computer system on the advice of its counsel was
appropriate. 4
Hawa further alleges that Romaniello, at the request of the CASD’s counsel, demanded
that Hawa provide a copy of the grand jury subpoena for Hawa’s testimony along with the list of
documents sought by the subpoena. Romaniello also allegedly instructed Hawa that he was not
to remove or release any CASD documents without first clearing his intentions through
Romaniello’s office. Id. ¶¶ 123-24. CASD, as the owner of its own documents, was entitled to
monitor and control the dissemination of its records subject only to any legal obligations
imposed upon it by a valid subpoena. Hawa was not entitled to disseminate the CASD’s records
without its consent. A demand that CASD documents be produced only with the agreement of

4

Plaintiffs attempt to impute to Romaniello some nefarious motive for the copying, implying
that Romaniello was engaged in an effort to alter or erase potential evidence. They offer nothing
to support that theory beyond innuendo. Creating a copy of the computer servers and hard drives
is more consistent with preserving them than with destroying their contents.

16

the Superintendent and with the advice of its counsel is hardly unusual. There is no basis to
consider it an act of retaliation aimed at Hawa.
Additionally, Hawa alleges that on the day following Powell’s grand jury testimony,
Romaniello directed Powell to meet with CASD’s Director of Human Resources, Zeigler, to
answer questions regarding the discovery and handling of the racist text messages. Zeigler then
allegedly instructed Powell that she was not permitted to have counsel present for the interview
and that her employment would be terminated if she did not comply. Id. ¶¶ 127-34. Regardless
of the propriety of Zeigler’s instructions to Powell, Hawa alleges that Powell refused to be
interviewed, and that Zeigler dropped her demand and did not terminate Powell. Id. ¶¶ 130-31.
Hawa does not allege that any such demand was directed to him. There is no basis on which to
conclude that Romaniello asking Powell to participate in an internal investigation was a form of
retaliation against Hawa.
Finally, Hawa alleges that CASD hired outside counsel “for the purpose of reviewing
Plaintiffs’ conduct in order to justify their termination.” Id. ¶¶ 144-46. As discussed above, the
fact that an employer conducts an investigation without a resulting adverse employment action is
not a sufficient basis to support a retaliation claim. Hawa does not allege that Romaniello took
any action against him as a result of outside counsel’s investigation. He remains employed by
CASD and has alleged no adverse change in the terms of his employment.
Thus, none of the alleged retaliatory conduct Hawa contends that Romaniello engaged in
rises to the level of cognizable retaliation against Hawa for exercising his First Amendment
rights. Hawa has not pled facts that indicate that Romaniello took any action “intended to punish
[him] for exercising [his] free speech rights.” O’Connor, 440 F.3d at 127-28. Nor do Hawa’s
allegations suggest that discovery would permit him to meet his burden to demonstrate

17

retaliation. Conduct of which Hawa is unaware was unlikely to dissuade him from pursuing First
Amendment activities. Accordingly, Hawa’s Count I against Romaniello must be dismissed.
C.

Powell’s Retaliation Claims
1. Como

Powell has failed to allege any retaliatory conduct that Como personally took against her.
As discussed in Section III(B)(1) supra, Como cannot be held liable for any conduct allegedly
committed by Taylor because Taylor was not his subordinate. Accordingly, Powell has failed to
state a Section 1983 discrimination claim against Como and her Count I against Como must be
dismissed.
2. Romaniello
Powell’s Section 1983 retaliation claim against Romaniello fails for the same reason as
does Hawa’s. She has not alleged actionable retaliatory conduct. As discussed in Section
III(B)(2) supra, Romaniello’s conduct in instructing other CASD officials to document any
misconduct by Powell cannot support a retaliation claim because neither Romaniello nor anyone
else is alleged to have taken any action against Powell based on any such misconduct.
Romaniello’s directive that Powell provide a copy of the grand jury subpoena and list of
subpoenaed documents to him is unsurprising and does not establish any retaliation taken against
Powell. Romaniello’s action in offering Powell a raise as an inducement not to pursue litigation
against CASD is not an action taken to “punish [Powell] for exercising [her] free speech rights.”
O’Connor, 440 F.3d at 127-28. Not only is such an offer not punitive, but it appears to have
been an attempt to avoid litigation over Donato and Como’s racist comments rather than being
directed to Powell’s disclosure of those comments or to the supposedly retaliatory conduct,
which Powell alleges took place only after the offer was made. Similarly, as was the case with

18

Hawa, no disciplinary action ever was taken as a result of Powell’s refusal to be interviewed
regarding the text messages without the presence of counsel. “[V]erbal harassment or threats
will not state a constitutional claim.” McKenna, 2009 WL 959869, at *4. And, the School
Board’s hiring of counsel for the alleged purpose of “reviewing Plaintiffs' conduct in order to
justify their terminations,” Am. Compl. ¶¶ 144-46, cannot support a retaliation claim both
because Powell has not alleged that any disciplinary action resulted from the investigation, see
Hammond, 2015 WL 75168, at *4, and because, as discussed in Section III(B)(1) supra, the
School Board members were not Romaniello’s subordinates and he was not responsible for their
conduct. For these reasons, Powell’s First Amendment retaliation claim must be dismissed.
D.

Count III Must be Dismissed Because Neither Hawa Nor Powell Have
Alleged that Either Como or Romaniello Took Adverse Employment
Action Against Them__________________________________________

In Count III, Plaintiffs allege that the Defendants’ conduct also violated 42 U.S.C. §
1981, which ensures equal protection in the making and performance of contracts. Claims for
violation of Section 1981 can only be brought by way of an action under 42 U.S.C. § 1983.
McGovern v. City of Philadelphia, 554 F.3d 114, 115 (3d Cir. 1996); see Dieffenbach v. Dept. of
Revenue, 490 F. App’x 433, 435 (3d Cir. 2012). For this reason, Plaintiffs also have pled their
Section 1981 claim as a Section 1983 claim. Section 1981 provides in relevant part:
All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
As discussed supra, to establish a prima facie case of discrimination, a plaintiff must
show that: (1) he or she engaged in protected activity; (2) the employer took an adverse
employment action against the plaintiff; and (3) there was a causal connection between
19

participation in the protected activity and the adverse employment action. Estate of Oliva ex rel.
McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010). To survive the present Motion to
Dismiss, Plaintiffs need not establish a prima facie case, but their Amended Complaint must
contain “sufficient factual allegations to raise a reasonable expectation that discovery will reveal
evidence of the [necessary] elements.” Connelly, 809 F.3d at 789.
Here, Plaintiffs’ claims fail for the same reason that their First Amendment retaliation
claim is deficient: they have not pled facts sufficient to raise a reasonable expectation that
discovery will allow them to present evidence to show that either Como or Romaniello took
adverse employment action against them. To satisfy the second part of the test to establish a
prima facie case of Section 1981 retaliation, Plaintiffs must allege facts to show “that
Defendants’ retaliatory action was sufficient to deter a person of ordinary firmness from
exercising [his or] her rights.” Dubrey v. SEPTA, No. 11-4679, 2014 WL 4631987, at *3 (E.D.
Pa. Sept. 16, 2014) (citing Lauren W. ex rel. Jean W. v. Deflaminis, 480 F.3d 259, 267 (3d Cir.
2007)). Notably, the test for Section 1981 retaliation is more strict than that for First
Amendment retaliation. Compare id. (sufficient to deter a person with ordinary firmness) with
O’Connor, 440 F.3d at 127-28 (even “relatively minor” retaliation is sufficient if committed with
intent to punish for exercising First Amendment rights). For the reasons discussed in Sections
III(B) and (C) supra, none of the conduct that Plaintiffs have alleged that either Como or
Romaniello committed is even relevant to establishing a claim of retaliation. Thus, their
Amended Complaint fails “to raise a reasonable expectation that discovery will reveal evidence

20

of the elements” of a Section 1981 claim and consequently, Count III must be dismissed.
Connelly, 809 F.3d at 789. 5
IV.

CONCLUSION
For all the foregoing reasons, Count II of the Amended Complaint is dismissed with

prejudice and Counts I and III of the Amended Complaint are dismissed without prejudice. An
appropriate Order follows.

BY THE COURT:

/s/ Marilyn Heffley
MARILYN HEFFLEY
UNITED STATES MAGISTRATE JUDGE

5

Defendants also argue that the claims should be dismissed because Plaintiffs did not name
them in their request for judgment in the Amended Complaint. Should Plaintiffs seek leave to
file a Second Amended Complaint, they may correct this technical error at that time. Defendants
further contend that they are entitled to qualified immunity with respect to Plaintiffs’ retaliation
claims. As articulated by the Third Circuit:
Determining whether a state actor is entitled to the affirmative defense of
qualified immunity generally involves two inquiries: (1) do the facts alleged show
that a state actor violated a constitutional right, and (2) was the constitutional right
clearly established so that a reasonable person would know that the conduct was
unlawful?
Wilson v. Zielke, 382 F. App'x 151, 152 (3d Cir. 2010); See McKee v. Hart, 436 F.3d 165, 171
(3d Cir. 2001). Because the facts alleged in the Amended Complaint do not state causes of
action for retaliation, at this juncture, this Court need not address Defendants’ qualified
immunity defense.

21

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ABDALLAH HAWA and
TERESA POWELL,
Plaintiffs,

v.
COATESVILLE AREA SCHOOL DISTRICT,
et al.,
Defendants.

:
:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION

No. 15-4828

ORDER
AND NOW, this 3rd day of March, 2016, upon consideration of the Motion to Dismiss
made pursuant to Fed. R. Civ. P. 12 (b) (6) of Defendants Richard Como and Angelo Romaniello
(Doc. No. 28), and the briefing in support thereof and in opposition thereto, it is hereby
ORDERED that Count II of the Amended Complaint is DISMISSED WITH PREJUDICE. It is
further ORDERED that Counts I and III of the Amended Complaint are DISMISSED
WITHOUT PREJUDICE. Plaintiffs may seek leave to file a Second Amended Complaint within
15 days of the date of this Order. Should Plaintiffs choose to file a Motion for Leave to Amend,
a proposed Second Amended Complaint should be submitted with the Motion.
BY THE COURT:

/s/ Marilyn Heffley
MARILYN HEFFLEY
UNITED STATES MAGISTRATE JUDGE