Baker v. Benton Area School District et al

Filing 26

MEMORANDUM (Order to follow as separate docket entry) re: 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Columbia Montour Snyder Union Counties of Central Pennsylvania Service System and 19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Kelly Kocher, Lindsay Rado, Benton Area School District, and Coleen Genovese. Signed by Honorable Matthew W. Brann on 8/28/2017. (jn) (Main Document 26 replaced on 8/28/2017) (jn).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STEPHANIE BAKER,

:
:
Plaintiff,
:
:
v.
:
:
BENTON AREA SCHOOL DISTRICT, :
COLUMBIA MONTOUR SNYDER
:
UNION COUNTIES OF CENTRAL
:
PENNSYLVANIA SERVICE
:
SYSTEM, COLEEN GENOVESE,
:
KELLY KOCHER, and
:
LINDSAY RADO,
:
:
Defendants.
:

No. 4:16-CV-02311
(Judge Brann)

MEMORANDUM OPINION
AUGUST 28, 2017
Defendants – Benton Area School District (“BASD”), Columbia Montour
Snyder Union Counties of Central Pennsylvania Service System (“CMSU”),
Coleen Genovese, Kelly Kocher, and Lindsay Rado – all moved to dismiss
Plaintiff Stephanie Baker’s complaint for failure to state a claim on which relief
can be granted. For the reasons that follow their motions are granted in part and
denied in part.

BACKGROUND 1

I.

A.

Ms. Baker’s Employment with BASD

In March 2013, Ms. Baker began working as a counselor at BASD. 2 At the
time of her hiring, she was employed “through” a company called Synergy
Systems Group, Inc.3 In January 2016, CMSU – a “governmental association”
formed by Columbia, Montour, Snyder, and Union Counties – assumed Synergy’s
functions. 4 As a result of that reorganization, Ms. Baker was given a new title –
“D & A Prevention Specialist” – and her job became a civil service position.5 Like
other staff members similarly situated, she was required to take a civil service
exam and was placed on a six-month probationary period.6
B.

The Video Incident

In the fall of 2015, Ms. Baker learned about a video that had been posted to
social media by a BASD student. 7 The video, taken in a school restroom, featured
two BASD special education students and included a background of “vulgar,
1

When considering a motion to dismiss for failure to state a claim, a court assumes the truth of
all allegations made in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
material in this “Background” section, then, is taken entirely from Ms. Baker’s Complaint,
ECF No. 1, and is presumed true for purposes of these motions to dismiss.

2

ECF No. 1 ¶ 14.

3

Id.

4

Id. ¶ 15.

5

Id. Presumably, “D & A” stands for “Drug and Alcohol.”

6

Id.

7

Id. ¶¶18-19.

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sexually explicit music.”8 Ms. Baker showed the video to Ms. Genovese (principal
of BASD’s Middle/Senior High School) and Ms. Kocher (the school’s guidance
counselor). 9 Ms. Genovese, in turn, notified the student’s mother (a member of
BASD’s school board), and the video was taken down. 10 Through Ms. Kocher,
Ms. Genovese sent an order to all BASD staff – including Ms. Baker – indicating
that neither the special education students’ parents nor Children & Youth Services
were to be notified about the video. 11 At some point, Ms. Genovese and Ms. Rado
(the school’s director of special education) “made fun of” the video. 12
Ms. Baker alleges that Ms. Genovese, Ms. Kocher, and Ms. Rado knew that
Ms. Baker “disapproved” of the way they handled the video incident, and that
these individuals decided that Ms. Baker “was a danger to them” and that “their
positions would be safer if Ms. Baker was gone from [BASD].” 13
C.

June 1, 2016 Reprimand

On June 1, 2016, Ms. Baker was called to a meeting with Allison Wilson
(her immediate supervisor at CMSU and a “very good friend” of Ms. Kocher) and

8

Id. ¶ 18.

9

Id. ¶ 19.

10

Id.

11

Id. ¶ 20.

12

Id. ¶ 22.

13

Id. ¶ 23.

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Barbara Gorrell (CMSU’s “D&A Administrator” and Ms. Wilson’s supervisor).14
At that meeting, Ms. Baker was told that, because of some reported problems with
her attendance at work, her probationary period was being extended by three
months, to a total of nine months.15
D.

The Anonymous Letter and Resulting Investigation

In the summer of 2016, an anonymous letter was sent to BASD’s
superintendent and school board members. 16 The letter, which was written at least
in part by Ms. Baker, 17 discussed the video incident and a host of other problems at
BASD, including BASD’s “misuse of special education law” to allow the
graduation of unqualified students.18 After receiving the letter, the BASD
superintendent began an investigation into its allegations, leading Ms. Genovese
and Ms. Rado to “orchestrate a vote of ‘no confidence’” in the superintendent.19
As a result, BASD hired an outside attorney to conduct the investigation.20

14

Id. ¶¶ 24-25.

15

Id. ¶ 26-27, 29.

16

Id. ¶ 30.

17

The complaint indicates that Ms. Baker “was the author or one of the authors” of the letter.
Id. ¶ 36.

18

Id. ¶¶ 31-32.

19

Id. ¶¶ 33-34.

20

Id. ¶ 35.

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Ms. Baker alleges that, because BASD, Ms. Genovese, Ms. Kocher, and Ms.
Rado “correctly suspected” Ms. Baker’s authorship of the letter, they “decided that
they had to eliminate Ms. Baker from the school system.” 21
E.

September 15, 2016 Meeting

On September 15, 2016, Ms. Baker attended another meeting with Ms.
Wilson and Ms. Gorrell.22 There, Ms. Wilson and Ms. Gorrell told Ms. Baker that,
although there were no new reported problems with Ms. Baker’s work
performance, her probationary period was being extended by another six months,
to a total of fifteen months.23 When questioned about this decision, Ms. Wilson
and Ms. Gorrell indicated that they had made a mistake at the June 1, 2016 meeting
by imposing a three-month extension when they should have imposed a six-month
extension. 24
Also at this meeting, Ms. Gorrell told Ms. Baker of a plan to send out
evaluation forms to the teachers, staff, and students of the six districts where
CMSU had prevention specialists (including BASD) to review the work of those
specialists (including Ms. Baker).25 Ms. Baker expressed her eagerness for these
evaluations, since she had a “great working relationship” with the individuals at
21

Id. ¶¶ 36-37.

22

Id. ¶ 38.

23

Id. ¶¶ 39-40.

24

Id.

25

Id. ¶¶ 16, 41

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BASD and thought that CMSU “would be very impressed” with the results.26
However, Ms. Baker also “expressed concern about possible retaliation” by Ms.
Genovese, Ms. Kocher, and Ms. Rado (presumably in the form of negative
comments about Ms. Baker on the planned evaluations) because of the ongoing
investigation and the fact that Ms. Baker might have to testify or be interviewed as
part of that investigation. 27 Ms. Gorrell stated that “all the evaluations would be
taken into account.” 28
F.

The Evaluations

On September 20, 2016, the evaluation forms were emailed to BASD staff
by Ms. Kocher.29 The email containing the forms was originally sent by Ms.
Gorrell to Ms. Wilson who, in turn, sent it to Ms. Kocher.30 Although Ms. Gorrell
had indicated that CMSU’s five other prevention specialists would also be
evaluated, they were not; the forms’ questions “were specifically about Ms. Baker”
and referred to her by name. 31 A number of individuals at BASD informed Ms.
Baker that they gave her “extremely positive evaluations.”32

26

Id. ¶ 41.

27

Id. ¶ 42.

28

Id.

29

Id. ¶ 44.

30

Id.

31

Id. ¶¶ 44-45.

32

Id. ¶ 47.

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G.

Ms. Baker’s Cooperation with the Investigation

On September 23, 2016, Ms. Baker met with the attorney conducting the
investigation, and told him what she knew about the video incident and about
BASD’s graduation of unqualified students.33
H.

Termination of Ms. Baker

On September 26, 2016 – three days after Ms. Baker met with the attorney –
Ms. Wilson called Ms. Baker to schedule a meeting to discuss the results of the
evaluations. 34 Ms. Baker was unable to meet that day, so the meeting was
scheduled for September 28, 2016.35
The meeting was attended by Ms. Baker, Ms. Wilson, Ms. Gorrell, and
Richard Beach (CMSU’s mental health administrator).36 There, Ms. Baker was
told that, although there were “several very positive and nicely written
evaluations,” a few “were so extremely negative that [CMSU] had no choice but to
terminate” her. 37 Ms. Baker asked if those negative evaluations were from
individuals “being investigated for unethical conduct,” but was refused an
answer. 38 Ms. Baker was also denied a chance to review the comments on the
33

Id. ¶ 48.

34

Id. ¶ 49.

35

Id.

36

Id. ¶¶ 49-50.

37

Id. ¶ 50.

38

Id.

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negative evaluations.39 Ms. Baker was given an opportunity to resign, but she
refused to do so.40
Ms. Baker alleges that Ms. Genovese, Ms. Kocher, and Ms. Rado made
“negative and false comments” about her (presumably on the evaluations) as “part
of the scheme to have [her] terminated,” which – as evidenced by CMSU’s
termination of her on September 28, 2016 – was ultimately successful. 41
I.

Procedural History

On November 17, 2016, Ms. Baker instituted the instant action. In Count I
of her complaint, brought under 42 U.S.C. § 1983, she alleged that BASD, CMSU,
Ms. Genovese, Ms. Kocher, and Ms. Rado 42 retaliated against her for exercising
her First Amendment free speech rights and “conspired with each other and with
others to” do so.43 Specifically, she alleged that the defendants “impos[ed] adverse
employment consequences on her” – including the June 1, 2016 reprimand, the two
extensions of her probationary period, the “targeted” evaluation, and her
termination – because she “sp[o]k[e] out about issues of public concern within the

39

Id.

40

Id. ¶ 52.

41

Id. ¶ 51.

42

BASD, Ms. Genovese, Ms. Kocher, and Ms. Rado are represented jointly in this matter. For
convenience, this Court will refer to this group collectively as the “BASD Defendants.”
When one or more of those defendants are singled out, they will be referred to by name.

43

ECF No. 1 ¶¶ 54-55.

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BASD” – presumably, because she participated in authoring the anonymous letter
and cooperated with the resulting investigation.44
In Count II, brought under the Pennsylvania Whistleblower Law, 45 she
similarly alleged that CMSU and the BASD Defendants retaliated against her for
reporting “wrongdoing” and/or “waste,” as those terms are described under that
law. 46
In Count III, brought under 42 U.S.C. § 1983, she alleged that CMSU
violated her due process rights by terminating her “without notice or an
opportunity to be heard.”47
In Count IV, she alleged that Ms. Genovese, Ms. Kocher, and Ms. Rado
“published defamatory and false communications” against her – presumably, by
making the allegedly “negative and false comments” about her on the evaluations –
which “harmed [her] reputation and lowered her in the estimation of the
community.” 48

44

Id. ¶ 57.

45

43 P.S. § 1421 et seq.

46

ECF No. 1 ¶ 61-64.

47

Id. at 19-20, ¶ 67. (Ms. Baker’s complaint contains two paragraphs numbered 67.)

48

Id. at 20 ¶¶ 65-67. (Ms. Baker’s complaint contains two paragraphs numbered 65, 66, and
67.)

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On December 12, 2016, CMSU moved to dismiss the claims against it
(Counts I, II, and III) for failure to state a claim on which relief can be granted. 49
On December 13, 2016, the BASD Defendants moved to dismiss the claims
against them (Counts I, II, and IV), also for failure to state a claim on which relief
can be granted. 50 Ms. Baker responded to these motions on December 22 and 28,
2016. 51 In her response to BASD’s motion, she withdrew her 42 U.S.C. § 1983
claim against BASD. 52 CMSU replied to Ms. Baker’s response on January 5,
2017, 53 and the BASD Defendants did so on January 11, 2017. 54
II.

DISCUSSION
A.

Standard of Review

When considering a motion to dismiss for failure to state a claim upon which
relief may be granted, 55 a court assumes the truth of all factual allegations in a

49

ECF No. 15.

50

ECF No. 19.

51

ECF Nos. 21, 22.

52

Ms. Baker withdrew this claim because she admitted that she had failed to identify any
official policy or custom of BASD that led to her alleged injury. See Monell v. New York
City Dep’t of Soc. Servs., 436 U.S. 658, 689 (1978); Bd. Of County Comm’rs of Bryan
County, Oklahoma v. Brown, 520 U.S. 397, 403 (1997).
CMSU raised this Monell-based argument in its reply to Ms. Baker’s response. However,
this Court may not consider arguments raised for the first time in a reply brief. See, e.g.,
United States v. Yeaman, 194 F.3d 442

53

ECF No. 23.

54

ECF No. 24.

55

Federal Rule of Civil Procedure (“FRCP”) 12(b)(6).

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plaintiff’s complaint and draws all inferences in favor of that party; 56 the court
does not, however, assume the truth of any of the complaint’s legal conclusions. 57
If a complaint’s factual allegations, so treated, state a claim that is plausible – i.e.,
if they allow the court to infer the defendant’s liability – the motion is denied; if
they fail to do so, the motion is granted.58
B.

First Amendment Retaliation Claim

To prevail on a claim for First Amendment retaliation brought under 42
U.S.C. § 1983, a plaintiff must prove (1) that she had “engaged in [First
Amendment-]protected activity,” (2) that the defendant’s allegedly retaliatory
action was “sufficient to deter a person of ordinary firmness from exercising [her
First Amendment] rights,” and (3) that there was a “causal connection between the
protected activity and the retaliatory action.” 59 For the reasons stated in this
section, Ms. Baker’s First Amendment retaliation claims (Count I) against BASD
and CMSU are dismissed; those against Ms. Genovese, Ms. Kocher, and Ms.
Rado, however, survive.

56

Phillips v. Cnty. Of Allegheny, 616 F.3d 224, 228 (3rd Cir. 2008).

57

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See also Connelly v. Lane Const. Corp., 809
F.3d 780, 786 (3rd Cir. 2016).

58

Id.

59

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3rd Cir. 2007).

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1.

Whether Ms. Baker Alleged That She Was Injured By an
Official Policy or Custom of CMSU or BASD

In their motion to dismiss, the BASD Defendants argue that Ms. Baker’s
complaint failed to allege that the District itself had an official policy or custom in
place that led to her injury. In her response to that motion, Ms. Baker concedes
that point and withdraws her claim against the District. Therefore, her First
Amendment retaliation claim against BASD is dismissed.
CMSU does not make a similar argument in its motion to dismiss, although
it does make that argument when replying to Ms. Baker’s response. Although this
Court generally does not consider arguments raised for the first time in a reply
brief, it may do so in its discretion,60 and will do so here.
Under 42 U.S.C. § 1983, “[e]very person” may be liable for the injuries that
result from their violations of the constitution. For purposes of that statute, a
municipality or other local governmental body a considered a “person,”61 but may
not face § 1983 liability “solely because it employs a tortfeasor.” 62 Instead, a
plaintiff asserting a § 1983 claim against such a body must point to some official
policy or custom of the body that lead to the alleged injury. 63

60

Banknorth, N.A. v. BJ’s Wholesale Club, Inc., 442 F.Supp.2d 206, 215 (M.D. Pa. 2006).

61

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978).

62

Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 403 (1997).

63

Id.

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In her complaint, Ms. Baker identified CMSU as a “governmental
association” formed by several Pennsylvania counties; therefore, it may be
considered a “person” under § 1983. Ms. Baker fails, however, to point to any
official policy or custom of CMSU that led to her termination. Although she
discusses the actions of several CMSU employees – including Ms. Wilson, Ms.
Gorrell, and Mr. Beach – nowhere does she allege, nor can her complaint be
construed as plausibly alleging, that those employees were acting pursuant to some
CMSU policy or custom. Therefore, her First Amendment retaliation claim against
CMSU is also dismissed. The Court, however, grants Ms. Baker leave to amend
her complaint to allege such a policy or custom. 64
2.

Whether Ms. Baker Alleged that Ms. Genovese, Ms.
Kocher, and Ms. Rado “Conspired” or Agreed with Each
Other

To state a claim of conspiracy under 42 U.S.C. § 1983, a plaintiff must
allege that there was some “combination, agreement, or understanding” between
the alleged co-conspirators.65 The BASD Defendants argue that Ms. Baker’s
complaint failed to plausibly allege a conspiracy because it fails to allege that
defendants “had any discussions or agreements” about her termination.

64

FRCP 4(a).

65

Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997).

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First, while Ms. Baker’s complaint alleges a “conspiracy,” 66 it also alleges
that each of the remaining defendants (Ms. Genovese, Ms. Kocher, and Ms. Rado)
retaliated against her individually; 67 therefore, her First Amendment retaliation
claim against those individuals may survive on this basis alone. Second, while it is
true that Ms. Baker does not allege any specific “discussions or agreements”
among the defendants, she does allege that their “negative and false comments”
were “part of [a] scheme” – i.e., that they were part of some common plan amongst
them. Since a scheme or common plan necessarily requires some sort of
discussion or agreement, Ms. Baker has plausibly alleged a conspiracy.
3.

Whether Ms. Baker Alleged That She was Engaged in
Activity Protected by the First Amendment

The BASD Defendants argue that Ms. Baker’s complaint failed to allege that
she engaged in activity protected by the First Amendment.
When a government employee like Ms. Baker alleges that she was retaliated
against for her speech, her speech must have been that of a “citizen addressing
matters of public concern,” and not “pursuant to [her] official duties” as a
government employee.68 Whether a government employee’s speech is made
66

ECF No. 1 ¶ 56-58.

67

The complaint alleges that Ms. Genovese, Ms. Kocher, and Ms. Rado “made negative and
false comments about Ms. Baker.” ECF No. 1 ¶ 51. For purposes of deciding this motion,
we interpret that language as alleging that those defendants made those comments
individually on Ms. Baker’s evaluations.

68

Garcetti v. Ceballos, 547 U.S. 410, 417, 421 (2006).

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pursuant to her official duties requires a “practical” inquiry, 69 and “is a mixed
question of fact and law.” 70 Speech is addressed to a matter of public concern, in
turn, “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.”71
According to Ms. Baker’s complaint, she participated in authoring an
anonymous letter sent to the BASD superintendent and school board that accused
BASD of, inter alia, “misus[ing] special education law” to allow the graduation of
unqualified students. Ms. Baker does not allege that providing such information to
the superintendent and school board was done “pursuant to [her] official duties”; in
fact, the anonymous nature of the letter cuts strongly against coming to such a
conclusion. This “mixed question of fact and law,” then, cannot be resolved
without development of the record. Further, the quality of education provided by
public schools can certainly be classified as a “concern to the community” and
consequently a matter of “public concern.” Therefore, Ms. Baker has alleged facts

69

Id. at 424.

70

Dougherty v. School Dist. Of Philadelphia, 772 F.3d 979, 988 (3rd Cir. 2014) (internal
quotation marks and citation omitted).

71

Lane v. Franks, 134 S.Ct. 2369, 2380 (2014) (internal quotation marks and citation omitted).

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sufficient to show that she was engaged in activity protected by the First
Amendment. 72
4.

Whether Ms. Baker Alleged that the Defendant’s
Retaliatory Action Was Sufficient to Deter a Person of
Ordinary Firmness From Exercising Her First Amendment
Rights

The BASD Defendants argue that Ms. Baker’s complaint failed to allege that
their allegedly retaliatory conduct was sufficient to deter a person of ordinary
firmness from exercising her First Amendment rights.
Courts often hold that conduct consisting merely of “criticism, false
accusations, or verbal reprimands” is insufficient to adversely affect an employee’s
exercise of her First Amendment rights and is, therefore, unactionable.73 Poor
employment evaluations, however, may be actionable, even if those poor

72

The BASD Defendants argue that because Ms. Baker’s comments were “derive[d] from
‘special knowledge’ or ‘experience’ acquired on the job,” they automatically relate to her
official duties and, therefore, lose their First Amendment protection. The BASD Defendants
rely on several Third Circuit cases for this proposition, including Foraker v. Chaffinch, 501
F.3d 231 (3rd Cir. 2007). Although that case discusses “special knowledge” and
“experience,” it does not stand for the proposition advanced. Rather, the conclusion
reached– that the plaintiffs’ speech was not protected – turned on the fact that reporting such
“special knowledge,” etc., was part of the plaintiffs’ official duties. Foraker, 501 F.3d at
241; see Flora v. County of Luzerne, 776 F.3d 169, 177 (3rd Cir. 2015) (answering a similar
argument by noting that Foraker “considered how the employee learned of the information
as only one non-dispositive factor among many”); see also Lane v. Franks, 134 S.Ct. 2369,
2379 (2014) (“[T]he mere fact that a citizen’s speech concerns information acquired by
virtue of his public employment does not transform that speech into employee – rather than
citizen – speech.”).

73

McKee v. Hart, 436 F.3d 165, 170 (3rd Cir. 2006) (internal quotation marks and citation
omitted).

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evaluations do not lead directly to adverse employment consequences. 74 Of
course, because it is “well-settled that a State cannot condition public employment
on a basis that infringes the employee’s constitutionally protected interest in
freedom of expression,” 75 termination from one’s job is also actionable.76
The BASD Defendants argue that the alleged “negative and false comments”
about Ms. Baker were simply “criticism, false accusations, or verbal reprimands.”
These comments, however, allegedly took the form of poor employment
evaluations. Additionally, Ms. Baker alleges a conspiracy in which those
comments were “part of the scheme to have [her] terminated.” Therefore, the
alleged retaliatory actions of the BASD Defendants – the comments alone or as
part of the scheme to have Ms. Baker terminated – were sufficient to deter a person
of ordinary firmness from exercising her First Amendment rights.

74

Suppan v. Dadonna, 203 F.3d 228, 234-35 (3rd Cir. 2000) (holding that low rankings on
employees’ evaluations were “sufficient to deter [] person[s] of ordinary firmness” from
exercising their First Amendment rights, even if plaintiffs could not show that the low
rankings prevented them from being promoted).

75

Garcetti v. Ceballos, 547 U.S. 410, 413 (2006) (emphasis added) (internal quotation marks
and citation omitted).

76

See also Brennan v. Norton, 350 F.3d 399, 419 (3rd Cir. 2003) (“A public employer
adversely affects an employee’s First Amendment rights . . . when it makes decisions which
relate to promotion, transfer, recall, and hiring” (emphasis added)(internal quotation marks
and citation omitted)).

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5.

Whether Ms. Baker Alleged a Causal Connection Between
Her Speech and Her Termination.

CMSU argues that Ms. Baker’s complaint failed to allege that there was a
causal connection between Ms. Baker’s speech and her termination. Although Ms.
Baker’s First Amendment retaliation claim against CMSU has been dismissed,
CMSU relies on this argument to support another argument, infra, regarding Count
II of Ms. Baker’s complaint. Therefore, it will be addressed.
In order to prove a causal connection between protected activity and an
alleged retaliatory action, a plaintiff must show either (1) an “unusually suggestive
temporal proximity” between the two, (2) a “pattern of antagonism coupled with
timing,” or (3) “evidence gleaned from the record as a whole” that allows the “trier
of fact [to] infer causation.” 77 CMSU focuses its argument here solely on
“temporal proximity,” citing cases that it believes shows that the length of time
between Ms. Baker’s speech and her termination is insufficient to prove a causal
connection between the two.
According to her complaint, Ms. Baker authored a letter to the BASD
superintendent and school board sometime in the summer of 2016 78 that accused
BASD of, inter alia, “misus[ing] special education law” to allow the graduation of
unqualified students. On September 23, 2016, Ms. Baker met with the outside
77

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3rd Cir. 2008) (internal
quotation marks and citation omitted).

78

The complaint does not provide an exact date.

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attorney conducting the investigation into the accusations made in that letter,
telling him what she knew about the graduation of unqualified students . Five days
later, on September 28, 2016, Ms. Baker was told that she was losing her job
because of several “extremely negative” comments received during an evaluation
that had taken place over previous several days (i.e., since September 20, 2016,
when the evaluation forms were first sent out). The timeframe, then, is tight –
perhaps “unusually suggestive.”
Ms. Baker, however, alleges more than temporal proximity. The letter’s
accusations of “misuse of special education law” would directly implicate the
school’s administration and special education staff – i.e., Ms. Genovese, the
principal; Ms. Kocher, the guidance counselor; and Ms. Rado, the director of
special education, the same people that Ms. Baker accused of making the
“extremely negative” comments. The totality of factual allegations “gleaned from
the [complaint] as a whole,” then, allow this Court to plausibly infer causation.
6.

Whether Ms. Genovese, Ms. Kocher, and Ms. Rado Are
Entitled to Qualified Immunity

Ms. Genovese, Ms. Kocher, and Ms. Rado argue that they are entitled to
qualified immunity because Ms. Baker’s “right not to receive unfavorable
performance evaluations was not clearly established at the time” of their allegedly
retaliatory actions.

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When faced with a suit for damages under 42 U.S.C. § 1983, defendants
may avoid liability if their actions were objectively reasonable in light of rules
“clearly established” at the time. 79 At the time of the alleged retaliatory actions, it
was “clearly established” that protected speech may not be punished by either poor
employment evaluations 80 or by termination. 81 Therefore, Ms. Genovese, Ms.
Kocher, and Ms. Rado are not entitled to qualified immunity.
C.

Pennsylvania Whistleblower Claim

The Pennsylvania Whistleblower Law (“PWL”) states that “[n]o employer
may discharge, threaten, or otherwise discriminate or retaliate against an employee
. . . because the employee . . . makes a good faith report [about] an instance of
wrongdoing or waste by a public body or . . . any other employer.” 82 For the
reasons stated in this section, Ms. Baker has plausibly alleged PWL claims against
CMSU, BASD, Ms. Genovese, Ms. Kocher, and Ms. Rado, and those claims
survive. Her request for a jury trial on these claims, however, is denied.

79

Anderson v. Creighton, 483 U.S. 635, 639 (1987).

80

Suppan v. Dadonna, 203 F.3d 228 (3rd Cir. 2000); cf McKee v. Hart, 436 F.3d 165 (3rd Cir.
2006) (holding that defendant was entitled to qualified immunity because “making a few
comments over the course of a few months . . . asking an employee to focus on his job” was
not a “clearly established” violation of the First Amendment).

81

Garcetti v. Ceballos, 547 U.S. 410 (2006).

82

43 P.S. § 1423(a).

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1.

Whether Ms. Baker was an “employee” under the PWL

The BASD Defendants argue that Ms. Baker’s complaint failed to allege that
she was an “employee” or “contractual agent” of BASD, or that Ms. Genovese,
Ms. Kocher, or Ms. Rado “had the authority to hire, supervise, or discharge” her.
The PWL defines “employee” as “[a] person who performs a service for
wages or other remuneration under a contract of hire, written or oral, express or
implied, for an employer.” 83 The PWL defines “employer” as “[a] public body or
any of the following which receives money from a public body to perform work or
provide services relative to the performance of work for or the provision of
services to a public body: (1) [a]n individual[,] (2) [a] partnership[,] (3) [a]n
association[,] (4) [a] corporation for profit[, or] (5) [a] corporation not for profit.” 84
There is no argument that BASD, a public school, is not a “public body”
under the PWL; it undoubtedly qualifies, then, as an “employer” under that law.
Ms. Baker has alleged that Ms. Genovese, Ms. Kocher, and Ms. Rado work in
various positions at BASD – i.e., that they “receive money from [that] public body
to perform work” there; therefore, she has alleged that they also qualify as
“employer[s]” under the PWL. Ms. Baker alleged that she provided counseling

83

43 P.S. § 1422.

84

Id.

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services at BASD – i.e., that she “perform[ed] services” for that “employer”;
consequently, Ms. Baker has alleged that she was an “employee” under the PWL.
The BASD Defendant’s argument that Ms. Baker failed to allege that she
was an “employee” or “contractual agent” of the BASD is irrelevant. The PWL’s
definition of “employee,” set out above, requires the performance of service, under
contract, “for an employer”; it does not require the performance of service under a
contract with a PWL-defined “employer.” 85
The BASD Defendants’ argument that Ms. Baker failed to allege that Ms.
Genovese, Ms. Kocher, or Ms. Rado “had the authority to hire, supervise, or
discharge” her is also irrelevant. The BASD Defendants seem to have based this
argument on a previous version of the PWL. Before 2014, the PWL defined
“employer” as “[a] person supervising one or more employees, including the
employee in question; a superior of that supervisor; or an agent of a public body.” 86
The current version of the PWL, however, contains no requirement that the alleged
employer have a supervisory position over the alleged employee.

85

See Rankin v. City of Philadelphia, 963 F.Supp. 463, 469-72 (E.D. Pa. 1997) (holding that
plaintiff was an “employee” for purposes of the PWL, even though his contract was with a
private corporation, not the city itself).

86

43 P.S. § 1422 (2013) (emphasis added). This language was changed in 2014 by Pa. Act No.
87 (H.B. 118).

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2.

Whether Ms. Baker alleged that she made a claim of
“wrongdoing” or “waste”

CMSU argues that Ms. Baker’s complaint failed to allege that she reported
wrongdoing or waste.
The PWL prohibits retaliation for reports of “wrongdoing or waste.”87 The
PWL’s definition of “wrongdoing” is expansive, and includes violations of state
law that are “not of a merely technical or minimal nature.”88 The PWL defines
“waste” to include “[a]n employer’s conduct . . . which result[s] in substantial
abuse, misuse, destruction, or loss of funds or resources belonging to or derived
from Commonwealth or political subdivision sources.”89
According to her complaint, Ms. Baker’s letter to the BASD superintendent
and school board reported BASD’s “misuse of special education law” to allow the
graduation of unqualified students. The use of taxpayer dollars to provide a legally
insufficient education to public school students appears to be both a violation of
state law and an abuse of public funds. Therefore, Ms. Baker has plausibly alleged
that she reported “wrongdoing or waste.”

87

Note the disjunctive: a report of wrongdoing or a report of waste will suffice.

88

“Wrongdoing” is defined as “[a] violation which is not of a merely technical or minimal
nature of a Federal or State statute or regulation, of a political subdivision ordinance or
regulation or of a code of conduct or ethics designed to protect the interest of the public or
the employer." 43 P.S. § 1422. See also Golaschevsky v. Com., Dept. of Environmental
Protection, 554 Pa. 157, 162-63 (1998).

89

43 P.S. § 1422.

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3.

Whether the BASD Defendants’ Alleged Retaliatory
Actions Were Actionable Under the PWL

The BASD Defendants argue that Ms. Baker’s complaint failed to allege that
the BASD Defendants took “any adverse employment action as a matter of law
against” her. Their argument on this issue consists entirely of a reference to their
argument that was analyzed – and rejected – supra, § II.B.4. Therefore, the BASD
Defendants’ alleged retaliatory actions were actionable under the PWL.
4. Whether Ms. Baker Alleged a Causal Connection Between Her
Speech and Her Termination.
As it did in response to the First Amendment retaliation claim, CMSU
argues that, for purposes of her PWL claim, Ms. Baker’s complaint failed to allege
a causal connection between her speech and her termination. For the reasons
stated supra, § II.B.5, that argument is rejected.
5.

Jury trial

In their motion to dismiss, the BASD Defendants argued that Ms. Baker is
not entitled to a jury trial on her PWL claim, pointing to Bensinger v. University of
Pittsburgh Medical Center.90 In her response to that motion, Ms. Baker agrees and
withdraws her request for a jury trial on that claim.

90

98 A.3d 672 (Pa. Super. Ct. 2014).

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D.

Due Process Claim

CMSU argues that Ms. Baker’s due process claim fails as a matter of law
because Ms. Baker, as a probationary employee, was not entitled to the full scope
of protection afforded regular employees under the Pennsylvania Civil Service Act,
and because Ms. Baker’s complaint failed to allege facts sufficient to show that she
was denied the due process protection afforded to probationary employees.
When considering a motion to dismiss, a court assumes the truth of all
factual allegations contained in the complaint. 91 However, this assumption of truth
does not apply to the complaint’s legal conclusions, and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements,” are
insufficient to state a plausible claim for relief. 92 Under the Pennsylvania Civil
Service Act, a probationary employee may be removed if, “in the opinion of the
appointing authority[,] the probation indicates that such employee is unable or
unwilling to perform the duties satisfactorily or that the employee’s dependability
does not merit continuance in the service.”93 A probationary employee is entitled

91

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

92

Id.

93

71 P.S. § 741.603(a).

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to written notice of her termination under the law, 94 but due process does not
require a hearing before that termination. 95
Ms. Baker bases her due process claim entirely on the allegation that she
was terminated “without notice or an opportunity to be heard.” According to her
complaint, she was called to a meeting with Ms. Wilson, Ms. Gorrell, and Mr.
Beach, where she was told that, because of a few “extremely negative” evaluations,
it was necessary to terminate her. Although she claims that the CMSU agents
refused to disclose the contents or authors of those evaluations, she does not allege
that CMSU failed to provide her the requisite written notice or a post-termination
hearing.96 Therefore, Ms. Baker’s complaint has failed to “show[] that [she] is
entitled to relief” on her due process claim against CMSU, 97 and, because this
Court cannot “infer more than the mere possibility of misconduct” on that claim, 98
it is dismissed. The Court, however, grants Ms. Baker leave to amend her
complaint to allege facts sufficient to show that she was denied any required notice
or hearing. 99

94

71 P.S. § 741.950.

95

Grausam v. Murphey, 448 F.2d 197 (3rd Cir. 1971).

96

According to 71 P.S. §741.951(a), however, post-termination hearings are guaranteed to
regular – not probationary – employees.

97

FRCP 8(a)(2).

98

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

99

FRCP 4(a).

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E.

Defamation Claim

To prevail on a claim for defamation, a plaintiff must prove:
(1) The defamatory character of the communication
(2) Its publication by the defendant
(3) Its application to the plaintiff
(4) The understanding by the recipient of its defamatory meaning
(5) The understanding by the recipient of it as intended to be applied to the
plaintiff
(6) Special harm resulting to the plaintiff from its publication[, and]
(7) Abuse of a conditionally privileged occasion.100
For the reasons stated in this section, Ms. Baker’s defamation claims (Count IV)
are dismissed in their entirety.
1.

Whether BASD is immune to this claim

BASD argues that it is immune to Ms. Baker’s defamation claim under the
Pennsylvania Political Subdivision Tort Claims Act. 101 In reply, Ms. Baker agrees
and withdraws her defamation claim against BASD.
2.

Whether Ms. Baker Alleged Facts Sufficient to Show that
the Alleged Communications Were Defamatory

BASD argues that Ms. Baker’s complaint Ms. Baker’s complaint failed to
allege facts sufficient to show that the alleged communications by Ms. Genovese,
Ms. Kocher, and Ms. Rado were defamatory.

100

42 Pa.C.S. § 8343.

101

42 Pa.C.S. § 8541.

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Under Pennsylvania law, a communication is defamatory “if it tends so to
harm the reputation of another as to lower him in the estimation of the community
or to deter third persons from associating or dealing with him.” 102 The alleged
defamatory communication must be false, 103 and statements of opinion only are
generally not actionable.104
As it relates to her defamation claim, Ms. Baker’s complaint alleges only
that she was terminated by CMSU for a “few . . . extremely negative” comments
on her evaluations, and that Ms. Genovese, Ms. Kocher, and Ms. Rado were
responsible for those “negative and false comments.” She does not allege the exact
contents of those comments, and admits that she does not have that information. 105
She does not even allege what questions or types of questions were posed on the
evaluation forms; it is unknown, then, whether the evaluation forms sought factual
information (e.g., on Ms. Baker’s attendance) which could be falsified, or whether
they sought merely the evaluator’s opinion. Therefore, Ms. Baker’s complaint has
failed to “show[] that [she] is entitled to relief” on her defamation claim against
Ms. Genovese, Ms. Kocher, and Ms. Rado,106 and, because this Court cannot “infer

102

Thomas Merton Center v. Rockwell Intern. Corp., 497 Pa. 460, 464 (1981).

103

Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304 (1984), rev’d on other grounds, 475
U.S. 767 (1986).

104

Baker v. Lafayette College, 516 Pa. 291, 297 (1987).

105

ECF No. 1 ¶ 50; ECF No. 22 at 21-22.

106

FRCP 8(a)(2).

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more than the mere possibility of misconduct” on that claim, 107 it is dismissed.
The Court, however, grants Ms. Baker leave to amend her complaint to allege that
the communications by Ms. Genovese, Ms. Kocher, and Ms. Rado were
defamatory. 108
III.

CONCLUSION
For the reasons stated above, Ms. Baker’s First Amendment retaliation

claims (Count I) against CMSU and BASD are dismissed, but her First
Amendment retaliation claims against Ms. Genovese, Ms. Kocher, and Ms. Rado
survive. Ms. Baker’s PWL claims (Count II) survive, but her request for a jury
trial on those claims is denied. Her due process claim (Count III) and her
defamation claims (Count IV) are dismissed in their entirety. Ms. Baker may
amend the dismissed claims as indicated above.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

107

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

108

FRCP 4(a).

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