LATORRE et al v. DOWNINGTOWN AREA SCHOOL DISTRICT et al

Filing 28

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 05/22/2017. 05/22/2017 ENTERED AND COPIES E-MAILED.(nds)

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

WILLIAM N. LATORRE, et al.,
Plaintiffs,
v.
DOWNINGTOWN AREA SCHOOL
DISTRICT, et al.,
Defendants.

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CIVIL ACTION
NO. 15-5251

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

May 22, 2017

Plaintiffs William LaTorre and his company, LaTorre
Consulting, Inc. (together, “Plaintiffs”), bring this action
against Downingtown Area School District and its superintendent,
Lawrence Mussoline (together, “Defendants”). Plaintiffs allege
that Defendants retaliated against them, in violation of the
First Amendment, after LaTorre spoke to a reporter about a
matter involving a student. Each side has now moved for summary
judgment. For the reasons that follow, the Court will deny both
motions.

I.

BACKGROUND
During the 2013-2014 and 2014-2015 school years,

Plaintiff William LaTorre worked at Downingtown East High
School – a facility of Defendant Downingtown Area School
District (“DASD” or “the School District”) – as an armed school
resource officer.1 LaTorre Dep. 51:16-24, Apr. 6, 2016, ECF Nos.
20-1, 20-2, 20-3, 20-4. In that position, LaTorre was “watching
kids come in the building, parking cars, or whatever, just
general security of the school.” Mussoline Dep. 12:13-15, Apr.
12, 2016, ECF No. 18-1.
For the 2014-2015 school year, LaTorre was also hired
in a new DASD position: Chief Security Officer (“CSO”). See id.
at 61:19-24; LaTorre Dep. 61:7-18. Specifically, on September
24, 2014, DASD signed a contract with Plaintiff LaTorre
Consulting, Inc. (“LCI”); LaTorre owns LCI and is its only
employee. See Contract Services Agreement, ECF No. 20-4; LaTorre
Dep. 10:8-11, 42:6-11. As CSO, LaTorre – through LCI – was
responsible
to
oversee
all
security
matters,
including, but not limited to, review of and advice on
video surveillance and other security needs and
operations (including cyber security), consult with
and meet with CLIENT and its representatives on a
routine
basis,
coordinate
and
supervise
drills
designed to enhance the safety and improve emergency
response (including the establishment of an incident
command system and protocol and training thereon),
1

During this time, his work was through a security
company called Signal 88, which is not a party to this case.
2

serve as a liaison and periodically interface with all
relevant
law
enforcement
agencies,
emergency
responders (fire, ambulance, etc.) and any CLIENT
private security service engaged, survey, assess, and
provide written recommendations to enhance security
regarding all of CLIENT’s facilities and CLIENT’s
Emergency Operations and Communications Plans and
advise and consult on all relevant policies, Codes of
Conduct and protocols related to any security issue.
Contract Services Agreement at ¶ 2. The contract further noted
that “[t]his Scope of Services is not intended to identify each
and every area for which CONTRACTOR shall have responsibility,
and is not intended to limit the CONTRACTOR’s responsibility
under this Agreement. The CLIENT shall have the right under this
Agreement to identify any other area of security for which
CONTRACTOR shall be responsible.” Id.
The incident underlying this lawsuit began on
September 30, 2014, just a few days after LCI and DASD entered
into the contract. That morning, Gordon’s Sports Supply – a
sporting goods and hunting supply store in Eagle, Pennsylvania –
contacted the police regarding an attempted break-in and
potential theft the night before. Jones Dep. 7:17-8:21, Apr. 15,
2016, ECF No. 20-7. Based on surveillance videos, the responding
detective – Detective Jones – concluded that (1) a crossbow
scope – but no ammunition, guns, or anything else – had been
taken, id. at 9:23-10:15; and (2) the perpetrator was a boy,
approximately 13 years old, id. at 13:3-14:3. Because of the
apparent age of the boy – that is, knowing that the boy would
3

have been a student – Detective Jones contacted LaTorre for help
identifying the boy. Id. at 16:2-10. Jones provided LaTorre with
stills from the surveillance videos, and LaTorre was able, later
that day, to identify the boy as a student at Lionville Middle
School (“the student”). Id. at 18:24-21:1. The student’s
belongings were checked, and it was determined that he “was not
in possession of [any stolen items] at the school.” Id. at 31:623.
That same afternoon, while LaTorre, Jones, and school
administrators were investigating this situation, the DASD
public relations director, Pat McGlone, got a call from Mike
Neilon, a television reporter. Mussoline Dep. 14:19-23; 16:1021. The reporter told McGlone that the news station was
dispatching a news crew to Lionville because they had learned
that there was a child in the school with weapons and
ammunition, and that there was possibly an active shooter
situation. Id. at 14:24-15:3. After confirming with Lionville
and DASD officials that Neilon’s information was false, and that
the student had no weapons, the DASD superintendent, Defendant
Lawrence Mussoline, instructed McGlone to call Neilon back and
tell him that his information was wrong. Id. at 15:4-16, 17:1021. McGlone did so, but Neilon said he would not call off the
news team because his source was “excellent.” Id. at 15:17-19,
17:4-6.
4

LaTorre was aware that the media was pursuing a story
at Lionville because he was on a call Mussoline made to confirm
Lionville’s information. LaTorre Dep. 137:25-140:17. He also
learned from Detective Jones, later that afternoon, that the
news station had a news van parked at Gordon’s Sports Supply,
which happened to be located across the street from the police
station. Id. at 145:25-146:15. Detective Jones expressed his
concern, which LaTorre shared, about getting the student into
the police station – without attracting the attention of the
news van – for the purposes of formally interviewing him,
completing paperwork, etc. Id. at 146:13-147:18.2 As a result of
this conversation, LaTorre called Rob Reed, a DASD official, to
inform him that a news van was parked across the street from the
police station. Id. at 148:17-149:11. In response, Reed said
that other school district employees had gone home for the day,
and that they would pick up the issue the next day. Id. at
149:12-18.3
LaTorre then called Neilon, for the purpose of

2

For his part, Detective Jones disputes that this
conversation occurred. He testified that, to his knowledge,
there was never a news van outside Gordon’s, and that he never
told LaTorre there was a news van near the police station. Jones
Dep. 34:16-35:21.
3

Reed remembers that this phone call occurred, but does
not remember what he and LaTorre discussed. Reed Dep. 12:113:25, Apr. 22, 2016, ECF No. 20-11.
5

“see[ing] if [LaTorre] could exercise influence on [Neilon] to
not cover a story on this child.” Id. at 149:21-150:13.
Specifically, LaTorre told Neilon, “I think you should kill the
story. There’s nothing there.” Id. at 152:10-14. Neilon informed
LaTorre that the District Attorney’s Office was also “telling
him to back off” and that Neilon had decided to do so by pulling
the news van. Id. at 153:7-10.
Mussoline was “ecstatic” that LaTorre “was able to get
the vans called off.” Mussoline Dep. 27:18-23. But he was also
very concerned about the source of Neilon’s false information,
and why Neilon thought the source was so solid that McGlone
could not persuade Neilon that the story was false. Id. at 27:117. Mussoline asked Neilon whether he could confirm or deny that
LaTorre was Neilon’s original source. Id. at 28:3-9. Neilon said
that while he could confirm that LaTorre called off the news
vans, he would not say who gave him the false information in the
first place.4 Id. at 28:10-20. In general, Mussoline’s confidence
in LaTorre “was waning because of Neilon’s confirmation that he
had had this ability [to get the news vans called off] that Ms.
McGlone apparently lacked.” Id. at 32:7-11.
On October 1, the day after the investigation and

4

According to LaTorre, Neilon claimed that he did not
know who the source was, except that it was a DASD
administrator. LaTorre Dep. 190:4-192:1.
6

LaTorre’s conversation with Neilon, Mussoline suspended LaTorre.
Id. at 30:2-9. He also instructed Signal 88 that LaTorre could
not perform services for DASD as an employee of Signal 88 while
suspended. Compl. Ex. F, ECF No. 1. Over the next few days,
Mussoline interviewed several people in an effort to determine
who gave false information to Neilon. Mussoline Dep. at 36:741:20. At the conclusion of these interviews, Mussoline
determined that he had “just . . . lost confidence” in LaTorre,
id. at 48:5-6, and, at the advice of the district solicitor,
decided that this loss of confidence justified the termination
of the contract between DASD and LCI, id. at 48:6-11.
Accordingly, on October 6, Mussoline met with LaTorre. According
to LaTorre, Mussoline told LaTorre that he had no proof LaTorre
was the leak, and then said: “I really wish you would have told
me that you called the media to cancel their response to the
child at the police station. . . . We need people we can trust.
And I’m going to exercise the contract.” LaTorre Dep. 198:18-25.
In LaTorre’s view, Mussoline “seemed more upset that he didn’t
know” that LaTorre placed the call to Neilon than the fact that
LaTorre did place the call. Id. at 232:15-20.
At any rate, on October 6, DASD terminated its
contract with LCI and LaTorre. Compl. Ex. G, ECF No. 1.
LaTorre and LCI (“Plaintiffs”) filed the instant
action on September 21, 2015. The complaint contained two
7

counts, both alleging violations of the First Amendment – one as
to Mussoline and one as to DASD. ECF No. 1. Defendants filed a
motion to dismiss, ECF No. 7, which the Court denied, ECF No.
16. Defendants then filed an answer, ECF No. 17, and the parties
engaged in discovery. Thereafter, on May 20, 2016, Plaintiffs
and Defendants filed cross-motions for summary judgment. ECF
Nos. 18, 19. They also filed responses to each other’s motions,
ECF Nos. 22, 23, and the Court held a hearing on the motions on
April 18, 2017, see ECF No. 25. The motions for summary judgment
are now ripe for disposition.
II.

LEGAL STANDARD
Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
for summary judgment will not be defeated by ‘the mere
existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.” Am. Eagle Outfitters v.
Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A
fact is “material” if proof of its existence or nonexistence
might affect the outcome of the litigation, and a dispute is
“genuine” if “the evidence is such that a reasonable jury could

8

return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248.
The Court will view the facts in the light most
favorable to the nonmoving party. “After making all reasonable
inferences in the nonmoving party’s favor, there is a genuine
issue of material fact if a reasonable jury could find for the
nonmoving party.” Pignataro v. Port Auth., 593 F.3d 265, 268 (3d
Cir. 2010). While the moving party bears the initial burden of
showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the nonmoving party who
must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed. R.
Civ. P. 56(e)).
The guidelines governing summary judgment are
identical when addressing cross-motions for summary judgment.
See Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir.
2008). When confronted with cross-motions for summary judgment,
“[t]he court must rule on each party’s motion on an individual
and separate basis, determining, for each side, whether a
judgment may be entered in accordance with the Rule 56
standard.” Schlegel v. Life Ins. Co. of N. Am., 269 F. Supp. 2d
612, 615 n.1 (E.D. Pa. 2003) (Robreno, J.) (alteration in
original) (quoting 10A Charles A. Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 2720 (1998)).
9

III. DISCUSSION
Plaintiffs’ claim is that DASD and Mussoline
terminated the contract, in violation of the First Amendment, in
retaliation for LaTorre speaking to Neilon about calling off the
news vans. Defendants request that the Court enter judgment in
their favor and close the case. Plaintiffs request that the
Court enter judgment in their favor as to liability, presumably
leaving damages for resolution through settlement or trial.
The same legal framework applies to both motions: “To
establish a First Amendment retaliation claim, a public employee
must show that (1) his speech is protected by the First
Amendment and (2) the speech was a substantial or motivating
factor in the alleged retaliatory action, which, if both are
proved, shifts the burden to the employer to prove that (3) the
same action would have been taken even if the speech had not
occurred.” Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 986
(3d Cir. 2014) (citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d
Cir. 2009)).
Important factual distinctions between this case and
the typical First Amendment retaliation case5 complicate the
application of this legal framework. Commonly, First Amendment
retaliation cases involve an employee who spoke negatively
5

Indeed, the parties have not identified – and the
Court has not found – any cases with remotely similar facts.
10

and/or critically about her government employer, or who publicly
revealed information the government would have preferred to
conceal. Here, in contrast, the content of the speech at issue –
which concerned keeping false information from the public,
rather than revealing true information to the public –
benefitted everyone. See Mot. Summ. J. Hr’g Tr. 23:9-21, Apr.
18, 2017, ECF No. 26 (defense counsel calling this a “unique
case” in the context of First Amendment retaliation claims
because “there is [no] dispute that the effect of him calling
Mr. [Neilon] and the content of what he said were fine, and in
fact, aligned with the school district’s interest that day”).
Moreover, one of the employee’s jobs was brand new to both him
and the government; he was the first to hold the position and
had been doing it for less than a week before the incident
occurred.
As a result of this case’s unusual – if not unique –
factual position, the Court’s analysis is not nearly as
straightforward as either motion for summary judgment contends.
At any rate, this memorandum proceeds with analysis of each of
the components of a First Amendment retaliation claim, in turn.
A.

Whether the Speech Is Protected
In order to establish the first element of the

employee’s burden of proof – that the speech at issue is

11

protected by the First Amendment – the employee must demonstrate
that (1) he spoke as a citizen, not as an employee; (2) the
speech involved a matter of public concern; and (3) the
government lacked an adequate justification “for treating the
employee differently than the general public based on its needs
as an employer.” Dougherty, 772 F.3d at 987.
1.

Whether LaTorre Spoke as a Citizen

The first question is whether LaTorre spoke as a
citizen or as a school district employee when he asked Neilon to
call off the news vans.
If LaTorre spoke as an employee, his speech is not
protected by the First Amendment. Garcetti v. Ceballos, 547 U.S.
410, 421 (2006). In order to determine whether an individual
spoke as an employee, a court must ask whether the individual’s
speech was made “pursuant to [his] official duties.” Id. More
specifically, “the critical question under Garcetti is whether
the speech at issue is itself ordinarily within the scope of the
employee’s duties, not whether it merely concerns those duties.”
Lane v. Franks, 134 S. Ct. 2369, 2379 (2014). This inquiry “is a
practical one,” as “[f]ormal job descriptions often bear little
resemblance to the duties an employee actually is expected to
perform, and the listing of a given task in an employee’s
written job description is neither necessary nor sufficient to

12

demonstrate that conducting the task is within the scope of the
employee’s professional duties for First Amendment purposes.”
Garcetti, 547 U.S. at 424-25.
“Whether a particular incident of speech is made
within a particular plaintiff’s job duties is a mixed question
of fact and law.” Dougherty, 772 F.3d at 988 (quoting Foraker v.
Chaffinch, 501 F.3d 231, 240 (3d Cir. 2007)). Specifically, “the
scope and content of a plaintiff’s job responsibilities is a
question of fact, but the ultimate constitutional significance
of those facts is a question of law.” Flora v. County of
Luzerne, 776 F.3d 169, 175 (3d Cir. 2015).6 In other words, if
there is no genuine dispute of material fact as to the scope of
a plaintiff’s job duties, a court may determine, as a matter of
law, whether the speech at issue fell into the ordinary scope of
those duties. The Third Circuit has articulated four non-

6

As the Sixth Circuit recently discussed, there is a
circuit split over this issue. The Third, Seventh, Eighth, and
Ninth Circuits “have concluded that ‘whether the speech in
question was spoken as a public employee or a private citizen
presents a mixed question of fact and law, while the D.C.,
Fifth, and Tenth Circuits” have held that it is solely a
question of law. Mayhew v. Town of Smyrna, No. 16-5103, 2017 WL
1947877, at *4 (6th Cir. May 11, 2017) (quoting Fox v. Traverse
City Area Pub. Sch. Bd. of Educ., 605 F.3d 345, 350 (6th Cir.
2010)). The Sixth Circuit sided with the D.C., Fifth, and Tenth
Circuits, holding that “the determination as to whether [a
plaintiff] engaged in protected speech [is] one of law,” not a
mixed question of fact and law. Id. at *5. Of course, because
the Third Circuit has disagreed, this holding has no impact on
the issues presently before the Court.
13

comprehensive factors that a court should consider in this
analysis:
(1) whether the employee’s speech relates to “‘special
knowledge’ or ‘experience’ acquired through his job,
Gorum, 561 F.3d at 185) (citing Foraker, 501 F.3d at
240); (2) whether the employee raises complaints or
concerns about issues relating to his job duties ‘up
the chain of command’ at his workplace, Foraker, 501
F.3d at 241; (3) whether the speech fell within the
employee’s designated responsibilities, Gorum, 561
F.3d at 186; and (4) whether the employee’s speech is
in furtherance of his designated duties, even if the
speech at issue is not part of them. See Foraker, 501
F.3d at 243.
Kimmett v. Corbett, 554 F. App’x 106, 111 (3d Cir. 2014)
(footnote omitted).
Here, several issues preclude a holding either that
LaTorre necessarily spoke as an employee, as Defendants urge, or
that LaTorre necessarily spoke as a citizen, as Plaintiffs urge.
First, as a practical and general matter, it is
difficult, at best, to pronounce the scope of LaTorre’s ordinary
job duties undisputed, considering that the job had existed for
only a few days when the incident occurred. See Hrg’ Tr. 26:1113 (“He was on the job for only a week, which hampers, to some
extent, our analysis of what the job included . . . .”). There
is little basis for determining the actual scope of LaTorre’s
expected duties, other than his job description – which, again,
the Supreme Court has warned courts to avoid relying on. See
Garcetti, 547 U.S. at 424-25 (“Formal job descriptions often

14

bear little resemblance to the duties an employee actually is
expected to perform . . . .”). Arguably, then, because the scope
of a plaintiff’s job duties is a question of fact, this matter
should be reserved for a trier of fact. Indeed, counsel for
Plaintiffs even conceded at the hearing on these motions that
“just maybe, a jury might have to determine” the scope of
LaTorre’s duties in the CSO position. Hr’g Tr. 9:21-10:13.
But even setting aside that particular problem, and
considering the constitutional significance of the speech in
light of the limited information that does exist, the Kimmett
factors can point either way depending on whether the facts are
viewed in the light most favorable to Plaintiffs or to
Defendants. Specifically, the second and third factors clearly
point in Plaintiffs’ favor, while the first and fourth clearly
point in Defendants’ favor: It is evident that LaTorre’s speech
did not involve raising intra-workplace issues up his own chain
of command, and also that interfacing with the media was not
explicitly designated in his job description. These
considerations support Plaintiffs’ argument that LaTorre spoke
as a citizen, not as an employee. On the other hand, it is also
evident that LaTorre’s speech related to knowledge he acquired
through his job, and that the speech was made in furtherance of
duties that were designated in his job description. These
considerations support Defendants’ argument that LaTorre spoke
15

as an employee, not as a citizen.
Therefore, viewing the big picture of this incident
from two different perspectives, a reasonable jury could find
for either side. Viewing the facts in the light most favorable
to Defendants – specifically, the facts that LaTorre learned the
information he relayed to Neilon through a meeting and
conversations he participated in as part of his undisputed job
duties, that LaTorre called a school administrator to pass on
portions of the information before calling Neilon, and that
LaTorre knew the school district desired the outcome he sought
by placing the phone call – a reasonable jury could determine
that LaTorre “intended to carry out the intentions of both the
District administration and Police Department to eliminate or
correct any coverage of the false ‘lockdown’ story being pursued
by the media.”7 Defs.’ Mem. Law at 19, ECF No. 19-2. Cf. McAndrew
v. Bucks Cty. Bd. of Comm’rs, 183 F. Supp. 3d 713, 733-34 (E.D.
Pa. Apr. 29, 2016) (determining that speech was employee speech,
not citizen speech, where the plaintiff – perhaps mistakenly –
believed he was working when he made the speech). Conversely,
viewing the facts in the light most favorable to Plaintiffs, a

7

It may well be true, no matter what, that LaTorre was
also concerned for and motivated by the child’s wellbeing, as he
contends. But that would not somehow cancel out a finding that
his speech was made pursuant to his job duties, as Plaintiffs
urge; people are capable of acting from multiple motivations.
16

reasonable jury could agree with Plaintiffs that the very reason
his speech was allegedly troubling to Mussoline “is that it was
not within his job duties.”8 Pls.’ Br. at 13, ECF No. 18. In
other words, Mussoline was concerned by LaTorre’s speech because
he did not expect LaTorre to place the phone call – and if
Mussoline did not expect LaTorre to place the phone call, the
phone call could not have been part of the “tasks he was paid to
perform.” Garcetti, 547 U.S. at 422.
Because, on the record before the Court at this time,
a reasonable jury could find for either Plaintiffs or Defendants
on this issue, genuine issues of material fact remain as to
whether LaTorre spoke as an employee or a citizen. This factor
therefore supports neither of the motions for summary judgment.9
2.

Whether the Speech Involved a Matter of Public
Concern

The next question in determining whether LaTorre’s
speech is protected by the First Amendment is whether the speech
involved a matter of public concern.
8

Plaintiffs also rightly point out that Defendants make
no attempt to explain how Plaintiff’s speech was made pursuant
to his ordinary duties in his security officer role with Signal
88, which was also terminated pursuant to this incident. See
Pls.’ Resp. at 13, ECF No. 23.
9

Indeed, because Plaintiffs must prove all elements of
the protected-speech element, this determination is sufficient
to defeat Plaintiffs’ motion for summary judgment. For the sake
of completeness, however, this memorandum will continue to
analyze the remaining arguments in Plaintiffs’ motion.
17

“[S]peech implicates 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,’ or when
‘it is a subject of legitimate news interest; that is, a subject
of general interest and of value and concern to the public.’”
Munroe v. Central Bucks Sch. Dist., 805 F.3d 454, 467 (3d Cir.
2015) (citations omitted) (quoting Snyder v. Phelps, 562 U.S.
443, 453 (2011)). “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.” Hill v. Borough of Kutztown, 455 F.3d 225, 242 (3d Cir.
2006) (quoting Rankin v. McPherson, 483 U.S. 378, 384-85
(1987)). Courts are instructed to “take into account the
employee’s motivation as well as whether it is important to our
system of self-government that the expression take place.”
Munroe, 805 F.3d at 467.
Here, again, the type of speech at issue is uncommon,
if not unique, in First Amendment case law: the speech furthered
the goal of keeping false information from the public, rather
than revealing true information to the public. Nonetheless, even
viewing the facts in the light most favorable to Defendants, no
reasonable jury could find that LaTorre’s speech was not on a
matter of public concern. Certainly, the public has a legitimate
interest in news relating to shootings at public schools – and
18

in the prevention of false reports on the same subject,
considering that such reports could incite unnecessary panic in
the community. Accordingly, LaTorre’s speech “can ‘be fairly
considered as relating to [a] matter of political, social or
other concern to the community.’” Munroe, 805 F.3d at 467
(quoting Snyder, 562 U.S. at 453).
Defendants’ best argument is that the context in which
the statements were made is private. See Miller v. Clinton Cty.,
544 F.3d 542, 550 (3d Cir. 2008) (“We can not ‘cherry pick’
something that may impact the public while ignoring the manner
and context in which that statement was made or that public
concern expressed. Our inquiry must also consider the form and
circumstance of the speech in question.”). It is true, as
Defendants argue, that LaTorre’s speech was in the interests of
the school district, as well as private individuals like the
student and his parents.10 It is also true that his speech was
made privately. But neither of those facts mean that the speech
was not also “a subject of general interest and of value and
concern to the public.” Munroe, 805 F.3d at 467. See, e.g.,
Beyer v. Duncannon Borough, 428 F. App’x 149, 154 (3d Cir. 2011)
(“Beyer’s personal interest in the discussion of AR-15s because
10

For his part, LaTorre claims that he was motivated by
a desire to protect the student, who has a disability. He goes
on to argue that there is a public concern inherent in advocacy
on behalf of disabled students.
19

of his recommendation to purchase the weapons does not lead to
the conclusion that the speech is of purely personal
interest.”); Fryer v. Noecker, 34 F. App’x 852, 853-54 (3d Cir.
2002) (“It is important to note that the case law is very clear
that matters are not disqualified from being matters of public
concern simply because they touch on individuals and their
desires. To the contrary, . . . a matter will be deemed a matter
of public concern if it is the type of issue that is important,
in a self-governing society, for public employees to be free to
express themselves about.” (citations omitted)); Azzaro v. Cty.
of Allegheny, 110 F.3d 968, 978 (3d Cir. 1997) (“If the content
and circumstances of a private communication are such that the
message conveyed would be relevant to the process of selfgovernance if disseminated to the community, that communication
is public concern speech even though it occurred in a private
context.”).
Importantly, moreover, LaTorre’s speech did not
concern personal grievances about his job, which is a type of
speech that is clearly unprotected by the First Amendment. See,
e.g., Miller, 544 F.3d at 550 (finding speech unprotected, even
though it “touche[d] on a matter of public concern” where it
focused on the plaintiff’s “private grievances as an employee”).
Accordingly, the Court finds that LaTorre’s speech
involved a matter of public concern. This conclusion is
20

necessary, but not sufficient, to the success of Plaintiffs’
motion for summary judgment, and does not defeat Defendants’
motion for summary judgment.
3.

Whether Defendants Had an Adequate Justification

The third and final factor in determining whether
LaTorre’s speech is protected by the First Amendment is whether
Defendants had an adequate justification “for treating the
employee differently than the general public based on its needs
as an employer.” Dougherty, 772 F.3d at 987. Defendants make no
argument with respect to this factor, except a brief mention
during the hearing on these motions.11 Plaintiffs do contend, as
they must, that Defendants had no adequate justification, based
on their needs as employers, for terminating the contract.
This consideration in the First Amendment analysis
“reflects the importance of the relationship between the
speaker’s expressions and employment.” Garcetti, 547 U.S. at
11

At the hearing, when asked if Defendants had adequate
justification for the termination of the contract, defense
counsel said, “I think that if you proceed with the analysis,
there was adequate justification but we don’t even get there
under the applicable law, Garcetti, Lane vs. Franks. They have
to prove protected speech, and that’s analyzed in terms of, was
he speaking as a citizen, and was it a matter of public
concern?” Hr’g Tr. 27:10-16. This argument is, at best,
incomplete, as “adequate justification” is itself an element of
the protected-speech analysis, and not a separate consideration
to reach only after determining whether speech is protected. See
Dougherty, 772 F.3d at 987. This apparent misunderstanding
perhaps explains Defendants’ failure to address this prong in
their briefing.
21

418. That is, “[g]overnment employers, like private employers,
need a significant degree of control over their employees’ words
and actions.” Id. Without such control, “there would be little
chance for the efficient provision of public services.” Id. Cf.
Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (noting, in the
context of due process, that “the Government, as an employer,
must have wide discretion and control over the management of its
personnel and internal affairs,” including “the prerogative to
remove employees whose conduct hinders efficient operation”).
Indeed, speech by public employees can sometimes “express views
that contravene governmental policies or impair the proper
performance of governmental functions”; not all such speech is
protected by the First Amendment. Garcetti, 547 U.S. at 419.
In order to determine whether Defendants had an
adequate justification for its treatment of Plaintiffs, the
Court must ask whether LaTorre’s “interest in the speech
outweighs any potential disruption of the work environment and
decreased efficiency of the office.” Curinga v. City of
Clairton, 357 F.3d 305, 312 (3d Cir. 2004). “When evaluating the
disruption, [the Court should] consider ‘whether the statement
impairs discipline by superiors or harmony among co-workers, has
a detrimental impact on close working relationships for which
personal loyalty and confidence are necessary, or impedes the
performance of the speaker’s duties or interferes with the
22

regular operation of the enterprise,’ as well as ‘the
hierarchical proximity of the criticizing employee to the person
or body criticized.’” Kimmett, 554 F. App’x at 113 (quoting
Rankin, 483 U.S. at 388; Baldassare v. New Jersey, 250 F.3d 188,
199 (3d Cir. 2001)).
Here, Plaintiffs argue that Defendants had no adequate
justification for firing Plaintiffs because LaTorre’s speech
“eliminate[ed] . . . a threat of disruption that might have
resulted from unwelcome publicity,” rather than creating a
disruption. Pls.’ Resp. at 16, ECF No. 23. In so arguing,
Plaintiffs miss the point of this factor. It is undisputed that
LaTorre’s phone call to Neilon at least contributed to the
elimination of the disruption of a false news story about the
school and/or one of its students. But that does not mean that
the phone call could not also have caused any disruptions in the
functioning of the internal workplace of the school. Viewing the
facts in the light most favorable to Defendants, a reasonable
jury could agree, for example, that a school superintendent
might not want his chief security officer to place calls to the
media about matters of school security without first having
authorization to do so.12 Indeed, as discussed above, Mussoline

12

This argument, of course, conflicts with Defendants’
argument that the phone call to Neilon was within the ordinary
scope of LaTorre’s job duties, such that LaTorre spoke as an
23

testified that he lost confidence in LaTorre due to LaTorre’s
handling of the situation, and LaTorre even testified that
Mussoline seemed more upset that LaTorre had not told anyone he
was making the phone call than that LaTorre had placed the call
in the first place. These considerations could lead a reasonable
finder of fact to determine that LaTorre’s speech had a
detrimental impact on working relationships and school
operations. If so, that impact could be sufficient, as a matter
of law, to outweigh LaTorre’s interest in making the speech.
Accordingly, there remain genuine disputes of material
fact as to whether Defendants had an adequate justification for
their termination of the contract. This conclusion is sufficient
to deny Plaintiffs’ motion for summary judgment.
●

●

●

In summary, Plaintiffs have failed to show that no
genuine disputes of material fact exist as to all three of the
above factors, while Defendants have failed to show that no
genuine disputes of material fact remain as to at least one of
the above factors, and that they are entitled to judgment as a
result. Accordingly, Plaintiffs have failed to establish that
LaTorre’s speech is necessarily protected by the First
employee. But these arguments can exist in the alternative; only
one needs to succeed for Defendants to be entitled to judgment.
24

Amendment, and Defendants have failed to establish that
LaTorre’s speech is necessarily unprotected by the First
Amendment.
Because Plaintiffs carry the burden as to this element
and cannot win judgment without prevailing on it, the Court will
deny Plaintiffs’ motion for summary judgment. As to Defendants’
motion, one issue remains.
B.

Whether the Speech was a Substantial Factor in the
Termination Decision
Assuming that LaTorre’s speech is protected by the

First Amendment, the next question – and the second element of
the First Amendment retaliation analysis – is whether LaTorre’s
speech “was a substantial or motivating factor” in Defendants’
choice to fire Plaintiffs. Dougherty, 772 F.3d at 986. “[T]his
step embraces two distinct inquiries: ‘did the defendants take
an action adverse to the public employee, and, if so, was the
motivation for the action to retaliate against the employee for
the protected activity.’” Schneck v. Saucon Valley Sch. Dist.,
340 F. Supp. 2d 558, 568 (E.D. Pa. 2004) (quoting Merkle v.
Upper Dublin Sch. Dist., 211 F.3d 782, 800 n.3 (3d Cir. 2000)
(Greenberg, J., concurring in part and dissenting in part)).
This element is a question of fact. Gorum, 561 F.3d at
184; McGreevy v. Stroup, 413 F.3d 359, 365-66 (3d Cir. 2005);
Curinga, 357 F.3d at 310. Accordingly, the Court may grant
25

summary judgment on this basis only if there are no genuine
questions of fact to be decided by a jury. See Hill v. City of
Scranton, 411 F.3d 118, 127 (3d Cir. 2005). That is, the Court
may not rule on this issue if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. Here, of course, because there are
cross-motions for summary judgment, the Court must evaluate the
facts in the light most favorable to each side, and decide this
issue only if one side would necessarily win both times.
That is not the case here, where the facts are not so
decisive that a reasonable jury could only find for one side. To
the contrary, while many of the bare facts are undisputed, the
inferences to be drawn from them are not. Viewing the facts in
the light most favorable to Plaintiffs, LaTorre’s speech was, at
the least, the initial force that led to the termination of the
contract, and thus was a “substantial or motivating factor.” On
the other hand, viewing the facts in the light most favorable to
Defendants, the speech itself was merely a tangential event –
not unrelated to the action that was ultimately taken, but not
the source of a motivation to retaliate. See Schneck, 340 F.
Supp. 2d at 568 (quoting Merkle, 211 F.3d at 800 n.3 (Greenberg,
J., concurring in part and dissenting in part)).
In fact, even in Plaintiffs’ view, Defendants likely
fired Plaintiffs because Mussoline suspected that LaTorre
26

originally supplied Neilon’s faulty information. If so, and if
Mussoline was wrong, the termination of Plaintiffs’ contract may
have been unfair – but not necessarily unconstitutional. That
firing would arise to a constitutional level only if LaTorre’s
phone call to Neilon – if protected in the first place – was a
substantial or motivating factor in the process. See Borough of
Duryea v. Guarnieri, 564 U.S. 379, 391-92 (2011) (“It is
precisely to avoid this intrusion in internal governmental
affairs that this Court has held that, ‘while the First
Amendment invests public employees with certain rights, it does
not empower them to constitutionalize the employee grievance.’”
(quoting Garcetti, 547 U.S. at 420)); Forgarty v. Boles, 121
F.3d 886, 890 (3d Cir. 1997) (“Justice O’Connor made it clear
that statutory rights and constitutional rights in the
employment context are not coextensive: ‘We have never held that
it is a violation of the Constitution for a government employer
to discharge an employee based on substantively incorrect
information.’” (quoting Waters v. Churchill, 511 U.S. 661, 679
(1994))).13
13

Moreover, if Defendants terminated the contract due to
an incorrect belief that LaTorre was the leaker, that situation
would not, on its own, rise to a First Amendment violation
because the “speech” at issue did not, according to LaTorre,
even occur. See Fogarty, 121 F.3d at 891 (“We conclude that the
absence of speech – in fact, its explicit disclaimer by
plaintiff – is fatal to the plaintiff’s [First Amendment]
claim.”).
27

Accordingly, this element properly remains a question
of fact for the jury. As a result, the Court will also deny
Defendants’ motion for summary judgment.14
IV.

CONCLUSION
For the foregoing reasons, the Court will deny both

motions for summary judgment.

14

There is a third and final element of the First
Amendment retaliation analysis – whether the same action would
have been taken in the absence of the speech at issue. But this
element, which places the burden on the defendant, comes into
play only if the plaintiff has first established that his speech
is protected by the First Amendment and was a substantial or
motivating factor in the action taken. Here, Plaintiffs have not
established as much, and Defendants make no argument with
respect to this element, so the Court need not consider it.
28