FIALKOVICH v. DUQUESNE CITY SCHOOL DISTRICT et al
Filing
27
MEMORANDUM OPINION that the 19 MOTION for Summary Judgment filed by Defendants Duquesne City School District (Duquesne School) and Allegheny Intermediate Unit (AIU) be granted, as the record presents no genuine issue of material fact and the Defendants are entitled to judgment in their favor. Signed by Chief Magistrate Judge Lisa Pupo Lenihan on 03/28/2012. (jmb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RONALD W. FIALKOVICH,
Plaintiff,
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vs.
DUQUESNE CITY SCHOOL DISTRICT and
ALLEGHENY INTERMEDIATE UNIT,
Defendants.
Civil Action No. 10-1489
Chief Magistrate Judge Lisa P. Lenihan
ECF No. 19
MEMORANDUM OPINION ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
I. Conclusion
The Motion for Summary Judgment filed by Defendants Duquesne City School District
(“Duquesne School”) and Allegheny Intermediate Unit (“AIU”) (hereinafter collectively
“Defendants”), in this (a) Constitutionally-protected speech and (b) State law wrongful discharge
action filed by a police officer formerly employed by the above-name school district will be
granted, as the record presents no genuine issue of material fact and the Defendants are entitled to
judgment in their favor, as more fully set forth below.
1
II. Factual and Procedural History
Duquesne School is a single building facility previously operating as a Grades K-12
school, and a “distressed school district” which, as a result, is managed by AIU in accordance with
a 2007 Intergovernmental Agreement between Defendants and the Pennsylvania Department of
Education (the “DOE”).1 It is also operated under the auspices of a DOE-appointed Board of
Control. Effective with the 2007-2008 school year, Duquesne School ceased operation as a high
school and its enrollment was reduced to Grades K-8. The prior principal was replaced, effective
September 2008, with Davaun Barnett (“Principal Barnett”).
Plaintiff (“Fialkovich”) was employed by Duquesne School from approximately 2005 or
January, 2006 through June, 2009, initially as a part-time and then as a full-time member of the
school’s police force. His employment, and that of the other three (3) full-time Duquesne School
police officers (including the Chief of the Duquesne School police force, Chief Hicks), was
pursuant to a one-year renewable contract expiring each June 30th. During his initial
employment, Plaintiff and other school police officers carried guns in the school building, issued
students criminal citations (for, e.g., fighting, tumultuous behavior, harassment, use of tobacco on
premises), attended criminal hearings before the local magistrate, and assisted teachers with
student discipline incidents.
In 2008, upon Duquesne School’s cessation as a high school and restriction of its student
population to younger students, i.e., Grades K-8, and under the direction of new Principal Barnett,
1
See Complaint at para. 12 (stating that AIU “was appointed to oversee the finances and to direct and manage the
administration personnel of the Defendant School District”). As Defendants’ Motion will be granted in its entirety on
other grounds, the Court need not address Defendants’ observation that, under the terms of the Intergovernmental
Agreement, the police officers remained employees of Duquesne School. See Defendants’ Brief in Support of
Motion for Summary Judgment (hereafter “Defendants’ Brief in Support”) at 2 n. 2; id. at 14 (asserting that wrongful
discharge claim against AIU should be dismissed as it was never Plaintiff’s employer).
2
police officers stopped carrying guns in the school building.2 They were also directed to
consult/notify Principal Barnett prior to issuing a citation to and arresting a student. See
Complaint at para. 14.
The police officers continued to write citations throughout the school year, without
advance notice to or consultation with Principal Barnett or other school administration.3 Chief
Hicks communicated that he felt the request was an improper infringement on the officers’
authority and duty to uphold the law.4 In April 2009, Principal Barnett directed erection of a “no
parking” sign across the street from the elementary entrance to the school, where Plaintiff had
previously parked his vehicle – with school permission and placard –5 assertedly to facilitate
2
Defendants aver that the officers were prohibited from continuing to carry guns in the school and directed to secure
them during the school day. Plaintiff denies this assertion and avers that Chief Hicks recommended they be “locked
up”. Compare Defendants’ Concise Statement of Material Facts at 5 with Plaintiff’s Counterstatement of Facts at 3.
3
See Complaint at para. 15 (“Mr. Barnett was advised by Chief Joseph Hicks that he would not adhere to this
‘directive’ from Mr. Barnett, because he did not want to jeopardize the safety of the staff, students or officers prior to
seeking an arrest while a physical confrontation was ensuing.”). Compare Appendix at A.288 (April 16, 2009 Memo
from Principal Barnett to School Police advising of call from parent of 5th Grade child criminally cited for disorderly
conduct, without notice to school administration, and directing that “[c]itations will be written after a student has
received due process by a Duquesne City School District administrator”); id. (further explaining administration
guidelines, including that “[a]ll drug and weapon violations will be cited” and that “an administrator may request that
a citation is issued to a student after multiple infractions of the student code of conduct” such as recurrent involvement
“in a fight”).
4
Appendix at A.271 (Undated communication from Chief Hicks stating that in November, 2008 he informed
Principal Barnett that “no Police Chief has the authority to exclude or refrain his personnel from issuing citations
because police officers are empowered by law to do so” and warned Principal Barnett of “possible criminal charges” if
the school “continued to harass [Hicks’] staff when we issue citations”); id. (asserting Hicks’ opinion that “as a sworn
police officer we do not have to have permission from no one, not one person to make an arrest or to issue citations”
according to law which cannot “be superseded by school policies” and that “Mr. Barnett does not honor our role, law
enforcement powers nor does he honor our authority in this school district”); see also Appendix at A.325 (Plaintiff’s
deposition testimony that Barnett’s request that police inform him before a citation was issued interfered with his
ability to do his job as a school police officer because “If a citation is going to be issued, it’s going to be issued. I
don’t have to have a second guess of my job description . . .”); id. (“[Barnett] don’t [sic] supersede Commonwealth of
Pennsylvania laws . . .”). Cf. Plaintiff’s Counterstatement of Facts at 4 (citing “Chief Hicks’ letter stat[ing] that he
hoped to include school administration in all decisions but could not, by law, instruct his officers not to issue citations
when they had the legal authority to do so”); cf. also Defendants’ Concise Statement of Material Facts at 6 (citing
Chief Hicks’ communication to William Addy, Director of Human Resources at AIU, stating that Principal Barnett
“can’t be my boss, and I can’t be his”).
5
See Complaint at para. 17-19.
3
dismissals.6 Plaintiff failed to comply with Principal Barnett’s request(s) that he remove his car
from that location, and has indicated that he was “engaged in the performance of his job at the
middle school, and was unable to comply with this directive”.7 Plaintiff was not disciplined but
was called to a meeting with Principal Barnett and Chief Hicks, which “quickly deteriorated into a
verbal disagreement between Mr. Barnett and Officer Fialkovich”. By letter of that same date,
Plaintiff was advised that he “was instructed to comply with all expressed and implied directives
given by the administration” and “[a]ny willful disregard or refusal . . . will be interpreted as
insubordination . . . subject to disciplinary action including but not limited to suspension or
termination.”8 The record reflects other disagreements of opinion between the police officers and
Defendants.9
During this period, Chief Hicks communicated with the school administration regarding
his disagreements with Principal Barnett and with changes the administration was attempting to
implement regarding the role of the police force in the now Grades K-8 school. Multiple e-mail
communications documenting Chief Hicks’ objections to the changes in police parameters, and
6
It was subsequently determined that the school lacked authority to post the no parking designation and the sign was
removed.
7
See Complaint at para. 24; see also Plaintiff’s Counterstatement of Facts at 4 (stating that Plaintiff “did not refuse to
move his car, but was unable to do so because of work obligations”). Cf. Plaintiff’s Brief in Opposition at 8 (averring
that Principal Barnett posted no-parking signs “without asking Mr. Fialkovich for permission and without explaining
the rationale to Mr. Fialkovich”).
8
See id. at para. 26-28; Appendix at A.281 (also observing that “[i]t is not in the best interest of the Duquesne School
District for any employee to decide if they should or should not follow the request of administration or policies of the
district”).
9
The officers made a 2008 request for a police vehicle, which was denied. Defendants also aver that Plaintiff made
a 2009 request for body armor, a bullet-proof vest and gun, which was denied. Plaintiff disputes that he made a
request other than for reimbursement “for items related to his uniform”, although “it appears as though the school
officials refused to purchase body armor, a holster or a gun for Plaintiff.” Compare Defendants’ Concise Statement
of Material Facts at 5 with Plaintiff’s Counterstatement of Facts at 3. Cf. Appendix at A.327 (Plaintiff’s deposition
testimony that “whole police force” made a request for body armor or a bullet-proof vest).
4
school policy/philosopy, are of record.10 On April 3, 2009, Chief Hicks emailed Superintendent
Cheryl Fogarty (“Superintendent Fogarty”) informing her that he had contacted Stephen Zapalla,
the Allegheny County District Attorney (the “Allegheny County DA’s Office”) regarding his
objections to Duquesne School’s restrictions on his law enforcement authority and assertedly
improper motives.11
10
See, e.g., Appendix at A.272 (undated communication from Chief Hicks advising that “[s]chool police officers have
been given the power and authority by law, to arrest, enforce good order . . . . We also are empowered through
legislation to issue citations and have the same municipal police powers as any other police agency in this
[C]ommonwealth. To simply [sic] it, we are no different than any other police agency or department in Pennsylvania.
Additionally, totally apart from our law enforcement powers we have been given the same disciplinary authority over
students that have [sic] been given to principals and assistant principals. So it comes to no surprise, I have been in
contact since late last year with a ‘higher’ outside agency . . . Mr. Barnett can not supervise those who have been
sworn to uphold the law . . . . That is why police departments have a police chief . . . . I have run out of options and
I have expired my patience. Instead of Mr. Barnett working alongside me, he instead chooses to work above us and
above the law. If Mr. Barnett is not controlled and a resolution can not be reached . . . then I will have no other option
but to forward my documents . . . to [the District Attorney].”); A.286-287 (undated communication from Chief Hicks
to Director of Human Resources for AIU, noting that “[t]he predecessors of the Barnett administration has [sic] never
come up against attempted to overrule the police . . . . From my professional experience, the current administration . .
. wihes to control, supervise or otherwise overrule the personnel who have been sworn under oath to uphold the laws of
Pennsylvania and the United States with fidelity. The administration cannot supervise those who have been sworn to
enforce Federal, State and Local Laws because they do not possess the required knowledge to do so. As a Police
Chief, I am highly decorated and viewed by the courts as a leader, supervisor or boss . . . . The administration continues
to ‘do it their way’ and it leads to verbal disagreements between us. . . . . To the administration it is about projecting
power or being the only voice or authority in the building. Instead of being incorporated into the school police
department, they wish to control it.”).
11
See Defendants’ Brief in Support at 6 & n. 3 (explaining that Superintendent Fogarty was employed by the AIU
and served as Superintendent of Record pursuant to the Intergovernmental Agreement); id. (noting that Chief Hicks
provided a copy of his letter to the Allegheny County DA’s Office by email to Superintendent Fogarty).
See also A.276-77 (communication from Chief Hicks to Dr. Fogarty, advising that meeting of February 24, 2009
was “a complete failure” and he had “attempted to explain to you that as an ‘accredited police department’ in this
[C]ommonwealth, we are to be considered a ‘separate sovereignty’ because there is [sic] state laws that we are sworn
by oath to uphold but the [D]istrict believes that they [sic] can overrule or ignore these laws and our authorities . . .
.[Y]ou think you can overrule or question a police related incident and attempt to supervise police officers the way that
you see it? Well as a high ranking official in the eyes of the courts I will no longer entertain it. . . . During my tenure
here at the district my voice was always heard and it was a voice that was more important than any others regarding
school climate and safety.”); id. (“I have been in touch with the Allegheny County District Attorney’s Office over the
past several weeks and I have uncovered a ‘host’ of criminal violations and student rights violations and I provided all
the relevant and pertinent information and a compilation of other evidence . . . to the DA’s Office . . . . I have also
already had a scheduled meeting with the [District Attorney’s Office] and have forwarded all pertinent information on
school fact finding prima fascia [sic]. . . . I believe that I have expired [sic] all available options and resources and the
issues has [sic] been referred to a ‘higher authority’ namely the . . . District Attorney’s Office . . . .”).
Cf. Complaint at para. 32 (asserting that Principal Barnett’s “job performance rating was based, inter alia, upon
statistics showing that the rate of violence had decreased”).
5
Plaintiff and the other police officers were informed in May, 2009 that their contracts
would not be renewed.12 Defendants aver, and Minutes of the meeting with representatives of
Defendants and the Board of Control reflect, that Plaintiff and the other police officers were
advised they were not re-employed because of differences of opinion regarding the best approach
to student discipline in an elementary/middle school building (e.g., a reactive, armed police
presence focused on issuance of citations and arrests vs. a more proactive, postive-reinforcement
approach going forward)13 and cost considerations. The four (4) officers were replaced with two
(2) private firm security guards who, unlike the police officers, do not have the power to issue
criminal citations or arrest students.14
Plaintiff alleges that his Constitutionally-protected rights were violated when Defendants
retaliated against him in response to Hicks’ complaints to the Allegheny County DA’s Office
alleging that Defendants were (a) constraining the school police force in a manner which
improperly interfered with/impeded their rights and duties as law enforcement officers, and (b)
improperly motivated by an intention to (i) reduce the number of incidents reportable under
Pennsylvania statutes intended to promote school safety, and (ii) create a false appearance of
improved school environment/safety. Count I of Plaintiff’s Complaint is brought under 42
U.S.C. Section 1983, for First and Fourteenth Amendment violations, and quite succinctly alleges
violations arising from “terminat[ion] in retaliation for his exercise of his right to speak on matters
12
Although Board of Control meetings were held, and the issues discussed, in February or March, 2009, there are no
notes of that decision-making process of record. Cf. Defendants’ Concise Statement of Material Facts at 9; Plaintiff’s
Counterstatement of Facts at 7-8.
13
Cf. Plaintiff’s Counterstatement of Facts at 7 (“At the beginning of the 2008-2009 school year, Principal Barnett
began to put together a plan to teach ‘red flag’ students about proactive behavior.”).
14
See Complaint at para. 46.
6
of public concern.” See Complaint at para. 49-50 (emphasis added).
Plaintiff further alleges, in Count II of his Complaint, that the non-renewal of his annual
contract constituted a “wrongful discharge” – without further elaboration – because he was
“discharged . . . in order to reduce the mandated reporting of incidents” within the School Safety
Act and, accordingly, in violation of the public policy underlying the Safe Schools Act. See id. at
para. 54-55.
Presently pending is Defendants’ Motion for Summary Judgment.
III. Summary Judgment Standard
Summary judgment is to be granted when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c). A fact is "material" if proof of its existence or non-existence
might affect the outcome of the suit under applicable law. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). And a dispute is "genuine" if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. Id.
On a motion for summary judgment, the facts and the inferences to be drawn therefrom
should be viewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)). The moving party has the initial burden of identifying evidence which
demonstrates the absence of a genuine issue of material fact. The party opposing the motion,
however, cannot rely merely upon bare assertions, conclusory allegations, or speculations to
support his claim. The nonmoving party Amust do more than simply show that there is some
7
metaphysical doubt as to the material facts,@ Matsushita, 475 U.S. at 586, and must produce more
than a Amere scintilla@ of evidence to demonstrate a genuine issue of material fact. See Big Apple
BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir.1992). One of the
principal purposes of the summary judgment rule is to dispose of factually unsupported claims or
defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
IV.
Analysis
A. Count I - Free Speech – First and Fourteenth Amendments
The parties correctly agree (1) that to prevail on his § 1983 claim of retaliation for
protected speech, Plaintiff must proffer sufficient evidence that (a) he engaged in
constitutionally-protected conduct/speech on matters of public concern, and (b) the protected
conduct was a substantial factor in the alleged retaliatory termination; and (2) that whether
particular conduct is protected under the First Amendment is a question of law. See Defendants’
Brief in Support at 4 (citing Ambrose v. Township of Robinson, Pa., 303 F.3d 488, 498 (3d Cir.
2002); Plaintiff’s Brief in Opposition at 2 (citing Hill v. Borough of Kutztown, 455 F.2d 225, 241
(3d Cir. 2006)); see also Matsey v. Westmoreland County, 185 F.App'x 126, 132 (3d Cir. 2006)).
Plaintiff’s proffer of sufficient evidence would then shift the burden to Defendants to show that the
action would have been taken absent the protected conduct. See, e.g., Springer v. Henry, 435
F.3d 268, 275 (3d Cir. 2006).
As its first ground for grant of summary judgment as to Count I, the Court observes that
Plaintiff’s Complaint and both parties’ briefs discuss Chief Hick’s allegations to the Allegheny
County DA’s Office. Reading the Complaint in the light most favorable to Plaintiff, the Court
will assume that this is the Constitutionally-protected speech underlying Count I’s conclusory
8
allegations.15 As Defendants properly observe, there is no allegation and nothing of record
suggesting that Plaintiff participated in Chief Hicks’ communication with the Allegheny County
DA’s Office or made any direct communication of his own to that office, or any public office, or in
any public forum.16 See Complaint at para. 36-37 (asserting that “Chief Hicks indicated that he
had been in contact with the Allegheny County District Attorney’s Office, reporting what he
believed to be crimes of Official Oprression, Obstruction of Law and Other Governmental
Functions, and Suppression of Crime, which he believed to have been carried out and covered up
by Mr. Barnett. These allegations were based upon the belief held by members of the Police
Department that student crime in [Duquesne School] was being covered up . . . and that the
[Defendants] were suppressing the reporting of such crime.”) (emphasis added).17
15
See Plaintiff’s Brief in Opposition at 3 (identifying “the speech in question” as “ a letter from Police Chief Joseph
L. Hicks to Allegheny County District Attorney Stephen Zapalla”). Cf. Plaintiff’s Counterstatement of Facts at para.
58 (asserting that “as Chief of Police, Chief Hicks spoke for Plaintiff during this meeting”). This latter assertion also
appears to refer to Chief Hicks’ communication(s) with the Allegheny County DA’s Office. See also Plaintiff’s Brief
in Opposition at 5 (referring to a meeting between Chief Hicks and District Attorney Zappalla).
16
Plaintiff does not dispute that he, himself, “had no conversation with Allegheny County District Attorney or his
representative, and no involvement in communication with the District Attorney’s Office”. See Defendants’ Concise
Statement of Material Facts at para. 58; Plaintiff’s Answers to Defendants’ First Set of Interrogatories at 14. And
Plaintiff admits that there is “no evidence Hicks ever had any further communications with anyone at the District, AIU
or the District Attorney’s Office regarding any contact with the District Attorney’s office” or that “the District
Attorney’s Office . . . contacted anyone at the School District [or] commence[d] any investigation as a result of Hick’s
letter”). See Plaintiff’s Counterstatement of Facts at para. 55-56. See also infra n. 17.
17
There is no evidence of record that, in his communication to the Allegheny County DA’s Office, Chief Hicks was
acting Christian to Plaintiff’s Cyrano, or speaking the accusations, assertions, or beliefs of other than himself. There
is no evidence that in corresponding with the District Attorney’s Office Chief Hicks was acting as an agent for
Plaintiff. On the contrary, the uncontroverted evidence of record indicates that (a) Chief Hicks repeatedly referred to
the beliefs and communications in the first person, and (b) Plaintiff concedes that he neither participated in the
communication nor was made aware of the contents by Hicks. See Defendants’ Brief in Support at 7 (citing
correspondence at Appendix A.276); id. (providing record citations to averments that Plaintiff had no input into the
contents of Chief Hicks’ letter, was not informed of its contents by Chief Hicks, had no conversation with the District
Attorney’s office, and believed Chief Hicks sent the letter because he was Chief of Police). Chief Hicks’ bare
recitation that he was writing “on behalf of “ his department as well as the President of the Teachers’ Union cannot
overcome the absence of evidence of agency for the Plaintiff in his individual capacity. Cf. Appendix at A.287
(correspondence of Chief Hicks to AIU explaining that “[s]ince [Officer Fialkovich] is a police officer for the district
he has always and will continue to answer to me”).
See generally id. (“I have been in contact with the . . . District Attorney’s Office for several weeks now and I have
9
The First and Fourteenth Amendments to which Plaintiff directs this Court provide
Constitutional protections for certain speech or other expressive conduct. Thus, the individual
with legal standing is the one who exercises his protected rights, i.e., the speaker. These
Amendments do not, nor could they, provide a cause of action against any other individual/entity
on the basis of beliefs which Plaintiff has not expressed. And neither Plaintiff nor Defendants
discuss any authority allowing a cause of action for conduct against a plaintiff allegedly taken in
retaliation for a third party’s speech (e.g., as a collateral consequence).18 In the complete absence
of any allegation in the Complaint, or any evidence of record, of protected speech or other
expressive conduct by Plaintiff known to a representative of a Defendant and therefore forming a
plausible basis for a claim of unconstitutional retaliation, there is simply no genuine issue of
material fact.19 Neither party, nor this Court’s independent research, identifies any authority for
had several telephone conversations with them and I have also sat down and met with them in person. I have reported
crimes of official oppression, obstruction of law and other governmental functions and the suppression of crime that
has also been carried out and covered up by Mr. Barnett and I have the proof. Mr. Barnett refuses to work alongside
me but instead he wishes to work above me . . . . Since I have authority as a law enforcement officer and . . . then same
disciplinary authority over students given to principals and other administrators, then he cannot be my boss and I
cannot be his. . . . . [T]he administration believes that a school policy supersedes state laws and they are painfully
wrong. The things that have been inappropriately done and the lack of respect for my authority has [sic]forced me to
seek the assistance of an outside agency. Since he has not and will not listen to me, then I have been forced to bring in
someone that he will have to listen to.”). Cf. infra n. 21.
In addition, despite Plaintiff’s assertion that Chief Hicks was speaking for him in reporting allegations of
Defendants’ interference with police officers’ legal authority and statutory violations, Plaintiff avers that he “in no
[way] defined the extent of any conflict [beween the school police and the AIU], nor was he in a position to testify
about the extent of any conflict.” See Plaintiff’s Counterstatement of Facts at 3. Cf. Complaint at para. 33 (“At all
times material hereto there existed a persistent and ongoing conflict beween members of the School Police
Department and the Defendant [AIU].”)
18
The limitation of standing to an individual exercising his rights, as a citizen, to expressive conduct reflects an
appropriate balance between constraints on government agencies’ official action and the protection of Constitutional
rights. Cf. City of San Diego v. Roe, 543 U.S. 77, 80-82 (2004) (observing, in recognition of governmental entity’s
right to impose restraints on employee speech, considerations relating to potential “compromise [of] the proper
functioning of government offices”); Connick v. Myers, 461 U.S. 138, 150 (1983) (discussing balancing of value of
expressive conduct against “the government's interest in the effective and efficient fulfillment of its responsibilities to
the public”).
19
Compare, e.g., Ambrose v. Township of Robinson, Pa., 303 F.3d 488 (3d Cir. 2002) (police officer allegedly
10
Plaintiff’s unique claim.
As a second, independent ground for grant of summary judgment as to Count I, the Court
observes that, even if Hicks’ speech were regarded, for purposes of Constitutional protection, as
Plaintiff’s own, the speech alleged in the Complaint was made by Chief Hicks in his official
capacity and did not constitute protected public speech within the ambit of the cited Amendments.
A public employee makes a protected statement for purposes of a First Amendment
retaliation claim when he (1) speaks as a citizen, (2) involving a matter of public concern, and (3)
the employer lacks adequate justification for treating the employee differently from any other
member of the general public as a result of the statement. See, e.g., Hill v. Borough of Kutztown,
455 F.3d 225, 241-42 (3d Cir. 2006); see also Garcetti v. Ceballos, 547 U.S. 410, 417 (2006)
(noting that First Amendment “protects a public employee’s right, in certain circumstances, to
speak as a citizen addressing matters of public concern”). When the employee speaks “pursuant
to [his] official duties”, he is not speaking as a public citizen for First Amendment purposes, and
the Constitution does not insulate those communications. Garcetti, 547 U.S. at 421.
Chief Hicks reported, in his capacity as the Chief of Police of Duquesne School, to the
Allegheny County DA’s Office, what he purportedly believed to be criminal conduct on the part of
the Defendants (e.g., obstruction of justice and intereference with his official duties). He was, in
his own view, protecting and performing his official duties. This is the tenor of his
communication20 and it is one which does not constitute public speech. See, e.g., Fulmer v.
Commonwealth of Pennsylvania, 2011 WL 915846 (W.D. Pa. Mar. 16, 2011) (granting summary
suspended in retaliation for providing supportive affidavit for colleague’s lawsuit against township).
20
Chief Hicks’ letter was written on his official letterhead, designated “Duquesne City School District Police
Department, Joseph L. Hicks, Chief of Police”. See Defendants’ Brief in Support at 7 (citing Appendix at A.276).
11
judgment for defendants where communications of State Police crime section commander,
initiating internal affairs investigation regarding misconduct, constituted speech made in
connection with official duties); McNamee v. County of Allegheny, 2007 WL 2331878 (W.D. Pa.
Aug. 13, 2007) (granting summary judgment for defendants where long-term care facility’s
Director of Nursing’s “reporting to the Department of Health”, an outside agency, and
participation in subsequent investigation were within official duties). Compare, e.g., Pickering v.
Bd. of Educ., 391 U.S. 563 (1968) (holding that teacher’s letter to newspaper criticizing his school
district’s handling of funds obtained through tax increases was protected speech). Compare
generally Garcetti, 547 U.S. at 419 (“The First Amendment limits the ability of a public employer
to leverage the employment relationship to restrict, incidentally or intentionally, the liberties
employees enjoy in their capacities as private citizens.”) (citing Perry v. Sindermann, 408 U.S.
593, 597 (1972)).21
And even if Plaintiff were to assert that the conclusory allegations of Count I were intended
21
Plaintiff asserts that Chief Hicks’ communication to the District Attorney’s office was protected because
“report[ing] the actions or inactions of school officials to the District Attorney” . . . “did not represent a task that Chief
Hicks ‘was employed to do’.” Plaintiff’s Brief in Opposition at 5 (distinguishing Garcetti, 547 U.S. at 421 (deputy
district attorney’s memo to district attorney questioning viability of search warrant was within his job duties to
communicate with district attorney regarding pending cases).
It is clear from the written record, however, that the crux of the ongoing disagreement between Chief Hicks and
Defendants turned on the former’s conviction that (a) the scope and authority of his official duties as Chief derived
from law enforcement powers invested in him by the State and (b) this investiture preempted any asserted
modifications to those authorities/duties by Defendants. And it is clear that Chief Hicks was reporting perceived
improper/impermissible infringements to the District Attorney (i.e., to higher State law enforcement authority) in his
official capacity and not as a private citizen. Cf. Armbruster v. Cavanaugh, 2010 WL 816385,*4 (E.D.Pa. Mar.9,
2010) (observing that when a public employee, such as campus police officer, raises complaints or concerns “up the
chain of command regarding job duties or assignments, such speech is undertaken in the course of performing the
job”); Baranowski v. Waters, 2008 WL 4000406, at *18 (W.D.Pa. Aug.25, 2008) (noting that formal job description
does not determine whether speech is outside scope of employee's duties); Connick v. Myers, 461 U.S. 138, 147–48,
(1983) (noting that protected nature of speech is determined by the “content, form, and context . . . as revealed by the
whole record”). Compare Plaintiff’s Brief in Opposition at 5 (asserting that Defendants failed to present a credible
argument that communication with District Attorney was “pursuant to the official duties of Chief Hicks, Mr.
Fialkovich or any of the individual officers”).
12
to encompass Chief Hicks’ other communications (i.e., internal communications directed to
Defendants), as speech conveyed inside the workplace rather than publicly, and concerning
matters of employment (i.e., concerning the parameters of what he and school police officers were
authorized/employed to do, his official duties), that speech was similarly outside the ambit of the
First Amendment. Cf., e.g. Garcetti, 547 U.S. at 420-21 (“Underlying our cases has been the
premise that while the First Amendment invests public employees with certain rights, it does not
empower them to ‘constitutionalize the employee grievance.’”) (quoting Connick v. Myers, 461
U.S. 138, 147 (1983); id. at 422 (observing that while public “employees retain the prospect of
constitutional protection for their contributions to the civic discourse”, this “prospect of
protection, however, does not invest them with a right to perform their jobs however they see fit”);
Miller v. Clinton County, 544 F.3d 542 (3d Cir. 2008); DeLuzio v. Monroe County, 271
Fed.Appx. 193, 196 (3d Cir. 2008).
The nature of Chief Hicks’ speech thus presents a second, equally insurmountable, hurdle
to Plaintiff’s claim that Defendants’ failure to renew his employment contract was
unconstitutionally retaliatory under the First and Fourteenth Amendments.22
B. Count II - Wrongful Discharge
Plaintiff alleges that the failure to renew his employment contract constituted a wrongful
22
Defendants’ extensive assertions that Superintendent Fogarty “was the only individual employed by either
Defendant” who knew of Chief Hicks’ letter to the District Attorney’s office, “only one of the individuals involved in
the decision to not renew the contracts of” the police officers, and not “the ultimate decision maker” are misplaced.
See Defendants’ Brief in Support at 8-12; Defendants’ Concise Statement of Material Facts at 7 (“No one else at the
School District or the AIU was sent a copy of [Hicks’] communication with the District Attorney nor was anyone other
than Cheryl Fogarty even aware of its existence . . . .”). Superintendent Fogarty’s knowledge of Chief Hicks’
communication and her participation in the decision-making process would suffice within a summary judgment
analysis. See Error! Main Document Only.Lakeside-Scott v. Multnomah Co., 556 F.3d 797, 801-09 (9th Cir.
2009); Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 593 (3d Cir. 1998); cf. Abramson v. William Patterson
College of New Jersey, 260 F.3d 265, 268 (3d Cir.2001).
13
discharge in violation of Pennsylvania public policy under the Safe Schools Act.23 To succeed on
a claim of wrongful discharge (pursuant to the narrow public policy exception to the employment
at will doctrine), he must evidence violation of a “clear mandate of public policy.” See, e.g.,
Lambert v. Environmental Restoration Group, Inc., 2008 WL 723328 (W.D. Pa. Mar. 14, 2008);
McLaughlin v. Gastrointestinal Specialist, Inc., 750 A.2d 283 (Pa. 2000). See also Kuzel v.
Krause, 658 A.2d 856, 860 (Pa.Commw.Ct. 1995) (quoting Yaindl v. Ingersoll–Rand Co., 422
A.2d 611, 617 (Pa.Super.Ct. 1980)) (“A claim for wrongful discharge is made out when the
plaintiff establishes that his or her discharge is a violation of a clearly definable right that ‘strikes
at the heart of citizens' social right, duties and responsibilities.’”).
The Pennsylvania Public School Code, School Safety Act, 24 P.S. Section 13-1301 to
1303, creates an “Office for Safe Schools” within the Department of Education (the “DOE”), and
requires that the administrators of public schools within the Commonwealth submit annual reports
(a) of incidents involving acts of violence; possession of a weapon; or possession, use or sale of
controlled substances, alcohol or tobacco, and (b) including all incidents of conduct constituting a
criminal offense within certain cited sections of the Pennsylvania Criminal Code. See 24 P.S.
Section 1303(b). The Pennsylvania Courts have recognized a “public policy of protecting
students from violence on school property” derived from the School Safety Act. Shamokin Area
School Dist. v. Amer. Fed. of State, County and Municipal Employees Dist. Council 86, 20 A.3d
579, 582 (Pa. Comwlth. Ct., 2011).
The Court notes that the statutory provisions address public school adminstrators’ creation
and maintenance of particular records. Neither the Public School Code provisions, nor the
23
The Court observes that Plaintiff’s Brief in Opposition addresses only Count I of Plaintiff’s Complaint and provides
no counter-argument to Defendants’ request for summary judgment as to Count II, Wrongful Discharge.
14
obvious public interest in protecting students from violence on school premises, impose additional
requirements beyond those of the Criminal Code regarding when students become subject to
reportable criminal sanctions, nor do they constrain public schools’ authority or discretion to
design, implement and/or manage its disciplinary approaches and procedures. And although the
statute refers to consultation with school “security personnel” in the context of an “advisory
committee”, it requires a Memorandum of Understanding signed by, and a review of the school’s
annual report by, the “Police Department with jurisdiction over” the school district. 24 P.S. at
1303. Finally, the statute contains provisions for disciplinary action by the DOE (and potential
criminal sanctions) against a school administrator who fails to file or falsifies a report, or fails to
enter a Memorandum of Understanding with or make required incident reports to, the Police
Department with jurisdiction. See id.
Plaintiff’s Complaint alleges that “Principal Barnett interfered with the School Police in
the performance of their duties, by concealing from them information concerning fights and
assaults on students and faculty members” or by advising School Police “that he wanted to be
notified before any student was cited and arrested”; or by permitting students to return to school
with no sanctions for having violated school policy. 24 As detailed above, the Public School Code
24
See Complaint at para. 34; id. at para. 14 & 16.
But cf. Defendants’ Brief in Support at 7 (outlining matters complained of in Chief Hicks’ letter as (1) Principal
Barnett’s request that he have opportunity to contact parents prior to contacting 911 in cases of student injury; (2)
failure to expel a student for a weapons violation and failure to report it; (3) Principal Barnett’s demand that police
officers obtain “permission” before effecting an arrest and establish a procedure for contacting parents of students to
be issued citations; (4) AIU’s denial of police request for an emergency vehicle; and (5) failure to report a criminal
violation) (citing Appendix at A.276-77). No further specificity or evidence regarding the pertinent allegations has
been provided of record. See, e.g., Plaintiff’s Answers to Defendants’ First Set of Interrogatories at 10-13
(requesting identification of evidence regarding concealment of crime); Appendix at A.326-27, 331-34, 338-39
(Plaintiff’s deposition testimony as to his general inability to identify specific information sufficient to create genuine
issue of fact as to allegations of suppression/concealment); id. at A.333 (testimony as to no knowledge of any
investigation or charge arising from Chief Hicks’ allegations to the District Attorney); id. at A.335-36, 344-45
(testimony as to general unfamiliarity with reporting or knowledge of whether particular incidents were included in
15
does not speak to a public school’s discretionary authority over disciplinary policies/procedures or
the scope of employment of particular security personnel. His Complaint allegations
notwithstanding, Plaintiff has proffered no evidence that the Defendants failed to create or
maintain statutorily-mandated records or annual reports, or that the School District failed to
comply with statutory requirements regarding the Police Department of jurisdiction, or – moreover
- that the non-renewal of Plaintiff’s at-will employment contract was in violation of a clear public
policy mandate (i.e., safety in public schools).
As also detailed at length above, the Court’s review of the extensive documentation of
record in this case reflects policy disagreements regarding the most appropriate role of security
personnel at Duquesne School following its transition to a Grades K-8 building, and changes in
administration, in 2008.25 There is no Pennsylvania public policy precluding a school district’s
decision to retain a private security firm rather than a police force. Indeed, many - particularly
elementary and middle - schools do not deem it either necessary or appropriate to retain police
officers to maintain order and community safety on school premises. Cf. 24 P.S. Section 1303,
supra (referencing school “security personnel” and “Police Department” with jurisdiction). The
School Chief of Police, and the school police officers, elected to dispute policy changes and
disregard administrative direction. Chief Hicks repeatedly communicated his belief that neither he
nor the other officers were subject to Defendants’ authority. Their contracts were not renewed.
district’s annual reports).
25
Cf. Defendants’ Brief in Suppport at 11 (“The Board of Control, acting with the Principal and the AIU, made the
decision to address student discipline in a more positive, proactive approach . . . . This philosophy did not meet with
that of the school police.”).
16
V. Conclusion
For the reasons set forth above, Defendants’ Motion for Summary Judgment will be
granted. A separate Order will follow.
LISA PUPO LENIHAN
United States Chief Magistrate Judge
Dated:
March 28, 2012
17
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