Hara v. The Pennsylvania Department of Education
Filing
52
ORDER granting 43 Motion for Summary Judgment Signed by Honorable A. Richard Caputo on 10/31/11. Case closed. (jam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MONITA HARA,
CIVIL ACTION NO. 3:09-CV-1014
Plaintiff,
(JUDGE CAPUTO)
v.
THE PENNSYLVANIA DEPARTMENT OF
EDUCATION, JOHN TOMMASINI, AND
CHRISTINE BRENNAN,
Defendants.
MEMORANDUM
Presently before the Court is Defendants John Tommasini and Christine Brennan’s
Motion for Summary Judgment. (Doc. 43). Plaintiff Monita Hara brought this action against
the Defendants seeking damages for a First Amendment retaliation claim. In their Motion,
Defendants counter that Plaintiff’s speech was not protected, that qualified immunity is
warranted, and that the damages Plaintiff is seeking are excessive. The Court agrees, and
for the reasons below will grant Defendants’ Motion.
I. Background
Plaintiff, Monita Hara, was employed by the Pennsylvania Department of Education
(“PDE”) as the Superintendent of the Scranton State School for the Deaf (“SSSD”). (Am.
Compl. ¶ 10, Doc. 9). Defendant John Tommasini was, at all relevant times, employed as
the Director of the Bureau of Special Education while Defendant Christine Brennan was
employed by the PDE as Director of Human Resources.
On April 20, 2009, Plaintiff, acting as a private citizen, submitted an op-ed to the
Scranton Times newspaper expressing her concern with the proposed closing of the SSSD.
(Id. at ¶¶ 11, 23). On or about May 11, 2009, Defendant Tommasini contacted Plaintiff and
informed her that she was to meet with him in Harrisburg, Pennsylvania the following day.
(Id. at ¶ 15). At this meeting, for which Defendant Brennan was present, the parties
discussed the Scranton Times article. Tommasini and Brennan then left the room. When
they returned, they questioned Plaintiff about her denying access to a group of individuals
attempting to conduct inventory at the SSSD. (Id. at ¶ 24). Plaintiff explained that those
individuals had been denied for lacking the proper clearances, to which Brennan responded
that Plaintiff was being transferred to Harrisburg. (Id. at ¶¶ 26-27). Plaintiff was then
informed that they had not yet decided on her new position in Harrisburg, and Plaintiff
communicated to Brennan and Tommasini she did not understand why the PDE kept
changing its explanation of why SSSD would be closed. (Id. at ¶¶ 27-28). Tommasini and
Brennan again left the room and returned. Upon their return, Brennan informed Plaintiff that
she was being suspended for ten (10) days without pay or benefits. (Id. at ¶ 30). Plaintiff
was then forced to resign to avoid tarnishing her impeccable employment history and
reputation with a baseless suspension. (Id. at ¶ 31).
Plaintiff brought a claim pursuant to 42 U.S.C. § 1983 against the Pennsylvania
Department of Education, John Tommasini, and Christine Brennan, alleging that she was
constructively discharged in retaliation for exercising her First Amendment free speech
rights. She also brought a state law claim for Constructive Discharge. In my January 22,
2010 Order, I granted the Defendants’ Motion to Dismiss the state law claim and the claim
2
against the Pennsylvania Department of Education. (Doc. 20). The First Amendment
retaliation claim was allowed to proceed against the individual Defendants in their individual
capacities.
Defendants now move for Summary Judgment, alleging (a) that Plaintiff’s First
Amendment retaliation claim fails as a matter of law; (b) that the Defendants are entitled to
qualified immunity; and (c) that the Plaintiff is not entitled to all the damages she seeks for
lost wages. (Doc. 43). The issue is ripe and has been fully briefed before the Court.
II. Discussion
A. Legal Standard
Summary judgment is appropriate "if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2).
A fact is material if proof of its existence or nonexistence might affect the outcome of the suit
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
Where there is no material fact in dispute, the moving party need only establish that
it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). Where, however, there
is a disputed issue of material fact, summary judgment is appropriate only if the factual
dispute is not a genuine one. Anderson, 477 U.S. at 248. An issue of material fact is
genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where
there is a material fact in dispute, the moving party has the initial burden of proving that: (1)
there is no genuine issue of material fact; and (2) the moving party is entitled to judgment
3
as a matter of law. See 2D Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2727 (2d ed. 1983). The moving party may present its own evidence or, where
the nonmoving party has the burden of proof, simply point out to the court that "the
nonmoving party has failed to make a sufficient showing on an essential element of her
case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved
against the moving party, and the entire record must be examined in the light most favorable
to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988).
Once the moving party has satisfied its initial burden, the burden shifts to the non-moving
party to either present affirmative evidence supporting its version of the material facts or to
refute the moving party's contention that the facts entitle it to judgment as a matter of law.
Anderson, 477 U.S. at 256–57. The Court need not accept mere conclusory allegations,
whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n,
497 U.S. 871, 888 (1990).
“To prevail on a motion for summary judgment, the non-moving party must show
specific facts such that a reasonable jury could find in that party’s favor, thereby establishing
a genuine issue of fact for trial.” Galli v. New Jersey Meadowlands Comm’n, 490 F.3d 265,
270 (3d Cir. 2007) (citing Fed. R. Civ. P. 56(e)). “While the evidence that the non-moving
party presents may be either direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.” Id. (quoting Hugh v. Butler
County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In deciding a motion for summary
judgment, "the judge's function is not himself to weigh the evidence and determine the truth
4
of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S.
at 249.
B. Claim of First Amendment Retaliation
The Supreme Court has “made clear that public employees do not surrender all their
First Amendment rights by reason of their employment. Rather, the First Amendment
protects a public employee's right, in certain circumstances, to speak as a citizen addressing
matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). However,
restrictions on employee speech “are justified by the consensual nature of the employment
relationship and by the unique nature of the government’s interest.” Borough of Duryea v.
Guarnieri, 131 S. Ct. 2488, 2494 (2011).
This tension requires that “[w]hen a public employee sues a government employer
under the First Amendment's Speech Clause, the employee must show that he or she spoke
as a citizen on a matter of public concern.” Id. at 2493 (citing Connick v. Myers, 461 U.S.
138, 147 (1983)). Therefore, as an initial matter, the Court must determine: (a) whether
Hara was speaking as a citizen; and (b) whether she was speaking on a matter of public
concern. If both are answered in the affirmative, the Court must then determine “whether
the relevant government entity had an adequate justification for treating the employee
differently from any other member of the general public.” Garcetti v. Ceballos, 547 U.S. 410,
418 (2006). Specifically, such “adequate justification” requires the Court to “balance the First
Amendment interest of the employee against ‘the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees.’” Duryea,
131 S. Ct. at 2493 (citing Pickering v. Board of Ed. of Township High School Dist. 205, Will
5
Cty., 391 U.S. 563, 568 (1968)).
In a First Amendment retaliation action, a Plaintiff must, in addition to demonstrating
the existence of protected speech outlined above, ultimately show that such “protected
activity was a substantial factor in the alleged retaliatory action.” Kougher v. Burd, 274 Fed.
Appx. 197, 201 (3d Cir. 2008). While the Defendants reserve opinion as to whether the
Plaintiff’s newspaper action constituted such a substantial factor, they move for summary
judgment solely on the theory that Plaintiff’s action was not protected speech. (Doc. 5 at
4-5). Whether speech is protected or not is a question of law. Connick, 461 U.S. at n.7;
Kougher, 274 Fed. Appx. at 201.
(1.) Matter of Public Concern
As the Defendants do not contest that the Plaintiff’s newspaper article was addressing
a matter of public concern, the Court finds that this element is satisfied.
(2.) Speaking as a Citizen
Though unclear, it also appears that Defendants do not contest the Plaintiff’s
assertion that she was speaking as a citizen. In their Reply Brief, the Defendants write that
they “explained in their initial brief that this issue is neither in dispute nor is it controlling as
to the outcome of the motion for summary judgment.” (Doc. 51 at 7). The Court agrees with
the Defendants that this is “merely the starting point of the analysis” and is satisfied with the
Plaintiff’s assertion that she wrote the article on her own time from her own home. (Doc. 48
at 4). As such, the Court will turn to the crucial question of this Motion, whether the
government employer’s interest outweighed Plaintiff’s First Amendment rights.
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(3.) Balanced Against the Government’s Interest
“Government employers, like private employers, need a significant degree of control
over their employees' words and actions; without it, there would be little chance for the
efficient provision of public services.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
However, any such restrictions must be tailored to preclude only speech that has the
potential to disrupt the agency’s functions. Id. Thus, the question is “whether the relevant
government entity had an adequate justification for treating the employee differently from any
other member of the general public.” Id. (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568
(1968)). However, such a determination “must be balanced against the employee's interest
in addressing matters of public concern and enabling the electorate to make informed
decisions.” Curinga v. City of Clairton, 357 F.3d 305, 309-10 (3d Cir. 2004). In addressing
this delicate balance, a court must 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 regular operation of the
enterprise." Id. at 310 (citing Rankin v. McPherson, 483 U.S. 378, 388 (1987)).
The Defendants contend that “[b]ecause [Plaintiff] was in a position of leadership in
PDE,
defendants
were
entitled
to
impose
discipline
for
plaintiff’s
deliberate,
counter-productive, and potentially deal-breaking opposition to the transfer of SSSD to
private ownership and operation.” (Doc. 45 at 4). Such opposition consists of Hara’s letter
to the editor, published in the Scranton Times, which elaborated upon the virtues of SSSD,
arguing that “[i]t is important for SSSD to exist” and that “[e]xtinction is not an option [for
SSSD].” (Doc. 48-1, Ex. A). Hara’s letter further made light of the Governor’s proposed
7
budget cut for the SSSD, and that “SSSD, and all of [its] many supporters, do not agree with
this proposal.” (Id.). She closes with an appeal to the public, stating: “continue to write
letters, contact your legislators, and ask the good Governor Rendell for a change of heart,
so that SSSD will remain one ‘great good place’ and a public place as it has been for nearly
130 years.” (Id.).
The Court cannot readily conclude that this letter is sufficient to impair discipline by
superiors or interfere with harmony among co-workers. Curinga, 357 F.3d at 309-310.
Instead, the Court will analyze the article in light of its “detrimental impact on close working
relationships for which personal loyalty and confidence are necessary,” and its potential to
“interfere[] with the regular operation of the enterprise.” Id. In urging the Court that Hara’s
letter had the potential to jeopardize support for their plan in the General Assembly,
Defendants allege that the negative effects of Plaintiff’s speech were exacerbated as it was
made “during a critical transition period” by a “high-ranking or influential public employee.”
(Doc. 45 at 1). Defendants claim that “[t]he speech activity of the plaintiff in this case created
both actual harm and the reasonably foreseeable risk of failure in the negotiations and
transfer of ownership of SSSD to the Western Pennsylvania School for the Deaf.” (Id. at 7).
While there is some disagreement as to the exact timing of events, it is clear that a
decision was made prior to Plaintiff’s letter to the editor to discontinue public operation of the
SSSD, although this decision could not technically be finalized until the General Assembly
actually voted on it. (Tommasini Dep. 89:14-21; 36:3-10, April 19, 2011, Doc. 48-11).
Plaintiff leverages the need for political approval to argue that it would be impossible for her
to have known at the time of her writing the letter that the school would definitely be closed,
and that it would therefore be impossible for her to foil a plan she did not even know about,
8
claiming that “no one told her [SSSD] was definitely closing until after she submitted the
Letter to the Editor.” (Doc. 48 at 10-11). However, in her deposition, Plaintiff states that she
was informed at the end of April, 2009 that the SSSD would be closed as of June 30, 2009.
(Hara Dep. 63:24-64:19; 82:17-23, April 8, 2011, Doc. 48-9). Moreover, she knew that the
school would be closing around that date as of February 4, 2009. (Id. at 82:2-20). The
record is very clear that Hara did know, at the time her letter was published, that her
superiors were making a full attempt to close the SSSD.
Plaintiff next claims that as she lacked concrete information or the power to make or
change policies, there was no real potential for her to disrupt the SSSD proceedings. (Doc.
48 at 14). As such, Plaintiff argues that the letter could not have been disruptive as it only
provided information that allowed the community to fight for the school, and points to a
dearth of evidence that her actions actually instigated any turmoil. (Doc. 48 at 8). The Court
agrees that there is no such evidence, although, whether Plaintiff actually affected a change
is not relevant, as a government employer may impose conditions “directed at speech that
has some potential to affect the entity's operations.” Garcetti v. Ceballos, 547 U.S. 410, 418
(2006) (emphasis added). Moreover, that the transformation was still in progress weighs
against the Plaintiff, for it is her potential to undermine her employer’s ongoing and
unrealized efforts that legitimize her employer’s interest in curtailing that speech.
The very intention of Hara’s letter was to intrude on the plans of her supervisors, and
as the Court finds that Plaintiff”s speech had real potential to disrupt her employer’s plans
regarding the SSSD, it is not protected as a matter of law. Hara, as Superintendent of
SSSD, was the highest ranking employee at that school and was told by her superior that
her support would be necessary to facilitate the transition. (Zahorchak Decl. at ¶ 11, Doc.
9
44-1). Additionally, as the PDE’s plan required political affirmation, a popular appeal had the
real potential to undermine the PDE’s plans, especially when authored by the SSSD’s
Superintendent.
While clear that Plaintiff’s speech had the potential to disrupt the plans of her
organization, it is less clear whether Hara’s conduct was additionally detrimental to vital
working relationships.1 To be as such, there must be a sufficiently close nexus between the
two parties to form a plausible basis for reliance. “The crucial variant in this balance appears
to [be] the hierarchical proximity of the criticizing employee to the person or body criticized.”
Sprague v. Fitzpatrick, 546 F.2d 560, 564 (3d Cir. 1976). Sufficient standing within the
organizational structure is a gauge used by courts to analyze the detrimental potential of a
particular employee’s speech.
The genesis of this notion is Pickering, supra, where the Supreme Court opined that
a teacher’s public criticisms were not outweighed by its employer’s interests as the teacher’s
comments did not have the potential to impede on his performance as a teacher or interfere
with the school’s overall operations. 391 U.S. 572-73. Similarly, in Watters v. City of
Philadelphia, a “close working relationship” was determined to be lacking between the Police
Commissioner and the manager of an employee assistance program for the department as
the manager was determined to be too far removed from the Commissioner within the chain
1
As an initial matter, the Court notes that the working relationship between Hara and her
superiors had already become strained over Plaintiff's persistent resistance to the changes that were
happening at the SSSD. (Brennan Dep. 67:16-71:2, Mar. 28, 2011, Doc. 48-13). The Pennsylvania
Secretary of Education, Gerald L. Zahorchak, attested that Hara's opposition to the changes at the
SSSD made it rather difficult to address the issues with her. (Zahorchak Decl. at ¶ 16, Doc. 44-1).
In fact, the decision had been made to terminate Plaintiff's employment prior to her letter and a
termination letter had been written, but the Governor's Office ultimately intervened, not wanting to
increase the attention surrounding the closure of the school. (Brennan Dep. at 70:23-72:25).
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of command, evinced by insufficient responsibility and an inability to shape policy. 55 F.3d
886, 898 (3d Cir. 1995). Such “[p]roximity within an organizational hierarchy is a significant
factor in the employer's demonstration that a public employee's speech had a detrimental
impact on a necessarily close working relationship.” Swineford v. Snyder County, 15 F.3d
1258, 1272-73 (3d Cir. 1994).
Conversely, Sprague v. Fitzpatrick presented an instance of an extremely close
nexus, where the First Assistant District Attorney was the effective “alter ego” of the District
Attorney though acting as a conduit for information and assisting to formulate policy. 546
F.2d 560, 562 (3d Cir. 1976). The Third Circuit held that the closeness of the working
relationship between the parties had effected an “egregious example of disruptive impact.”
Id. at 565. Notably, that court also commented that “[i]f the arousal of public controversy
exacerbates the disruption of public service, then it weighs against, not for, first amendment
protection in the Pickering balance.”
The above cases offer factors to consider when making the difficult determination that
an individual’s free speech rights may be outweighed by her employer’s interest. Using them
as guides, the Court determines that Hara’s sensitive leadership position within the hierarchy
balances firmly against her. Hara was not the literal alter-ego of the Superintendent, nor
does it appear that she had the direct ability to shape policy beyond the SSSD, but she was
certainly the information conduit. The Court agrees that Plaintiff’s position as Superintendent
of the SSSD placed her in square proximity with the upper echelons of the Department of
Education, both in practice and in the eyes of the public, affording her a serious potential to
arouse public controversy. Moreover, as the top official at the SSSD, Hara was instrumental
in the transition of the school, and the argument that she was “not in the top 10% of the
11
organization hierarchy,” (Doc. 48 at 3), while unsubstantiated, is also ultimately unavailing.
Hara’s eminent position at SSSD caused her to be relied upon by the Pennsylvania
Secretary of Education to further their policies in specific regard to the SSSD, and her
actions cut directly against this goal, having “the potential to deprive the faculty, staff, and
students of leadership and information during a time of uncertainty.” (Zahorchak Decl. at ¶
18, Doc. 44-1). Ultimately, it is Plaintiff’s position at the SSSD and her employer’s reliance
on her that are most persuasive in tipping the balance in Defendants’ favor.
Plaintiff’s case is similar to Smith v. School District of Philadelphia. 158 F.Supp.2d
599 (E.D. Pa., 2001). There, the plaintiff was removed from his position on part of the
“School Support Team” when an inflammatory letter he had previously written to the school’s
principal came to the public’s attention. Id. at 601-03.
In a resulting action for First
Amendment retaliation, that court noted the wake of actual disruption that his letter caused,
not relevant to the instant case, but it also reflected on the unique position the plaintiff held
within the school district’s operating structure:
[P]laintiff was a member of a team specifically created for the evaluation of
Carver as a result of Carver's failure to meet its performance goals. The
Carver Support Team was responsible for meeting with staff and parents from
Carver, interviewing teachers and students, and distributing a survey to staff
and parents. The maintenance of healthy working relationships with the other
team members, teachers, administrators, and parents at Carver was thus
essential to plaintiff's performance of his responsibilities on the Carver Support
Team.
Id. at 608.
While not even a full employee, a volunteer with a “quasi-employment
relationship,” that plaintiff’s regular proximity to sensitive parties was highly relevant in
evaluating the instability his words could sew.
Analogous to Smith, during SSSD’s
transformation, Hara’s particular working relationships with her students, their parents, and
12
the community similarly placed her in a delicate position for which her actions would be
subjected to intensified public scrutiny and would have heightened consequences. As such,
the Court finds Superintendent Hara’s hierarchical proximity to the body criticized, the
Pennsylvania Department of Education, sufficiently close as to warrant a very strong interest
on the part of the public employer.
In weighing the Plaintiff’s interest in free speech, Defendants argue that Plaintiff’s
interest should be given less weight as Plaintiff’s proffered objective of supporting deaf
education at the SSSD “was precisely the goal of the PDE, which decided . . . that the school
would operate more successfully under the direction of a private organization.” (Doc. 45 at
11). Such an argument was found persuasive when a doctor spoke out against the closure
of a government laboratory, but where the clinical activities were not ultimately terminated,
but transferred to another facility. Yu v. U.S. Dept. Veterans Affairs, No. 08-933, 2011 WL
2634095 at *17 (W.D. Pa. July 5, 2011). In light of the reduced net utility of the doctor’s
speech, that court found he held a diminished interest in the free speech itself. Id. Such
logic must be used carefully as it could potentially discount the value of free speech in
instances where such speech ultimately achieved its intended effect, but the Court notes it
is relevant in the instant situation where the school was ultimately not abandoned, but
transformed. The record indicates that the SSSD operated in substantially the same form
for the year following the transition to private management, at which point the “vast majority”
of students were transferred around Scranton, though some had educational requirements
that necessitated their transfer to Pittsburgh. (Tommasini Tr., 43:13-46:7). While the
Plaintiff could not be expected to have predicted the future, in her Answer to Defendants’
Statement of Facts she contests Defendants’ assertion that they could have simply
13
abandoned the school, stating that “PDE had federal and state obligations to continue the
school since they had accepted federal monies and could not just abandon the deaf
children.” (Doc. 49 at ¶ 45). As such, the Court determines the value of Plaintiff’s free
speech is significantly outweighed by the detrimental potential it had on close working
relationships and on the PDE’s operations at the SSSD.
III. Conclusion
Since, as a matter of law, the public employer’s interest outweighs Plaintiff’s interest
in free speech, the Court finds that Plaintiff’s speech is ultimately unprotected. Therefore,
the Court will grant the Defendants’ Motion for Summary Judgment on Plaintiff’s First
Amendment retaliation claim. In so granting the Defendants’ Motion, the Court deems moot
Defendants further arguments pertaining to qualified immunity and excess damages.
An appropriate order follows.
October 31, 2011
Date
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
14
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MONITA HARA,
CIVIL ACTION NO. 3:09-CV-1014
Plaintiff,
(JUDGE CAPUTO)
v.
THE PENNSYLVANIA DEPARTMENT OF
EDUCATION, JOHN TOMMASINI, AND
CHRISTINE BRENNAN,
Defendants.
ORDER
NOW, this 31st day of October, 2011, IT IS HEREBY ORDERED that the Defendant’s
Motion for Summary Judgment (Doc. 43) is GRANTED.
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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