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April 11, 1986

M. KAREN LEES, Plaintiff,

Cohill, C.J.

The opinion of the court was delivered by: COHILL

Presently before us is Defendants' Motion to Dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b). Each individual defendant was a member of the School Board of Defendant West Greene School District (the "school district") during the relevant time period. The Complaint alleges claims under 42 U.S.C. §§ 1983 and 1985 as well as under Pennsylvania common law.


 Plaintiff was employed by the school district during the 1981-1982 school year as a permanent substitute for an English teacher who was on sabbatical that year. During the spring of 1982, the teacher whose position Plaintiff was filling decided to retire rather than resume her position with the school district. Due to the retirement of the permanent English teacher, a vacancy was created in the English department.

 At a school board meeting in July, 1982, the board voted to transfer a teacher from the Social Studies department to fill the English department vacancy rather than hire a new teacher for the position. Plaintiff alleges that several parents and teachers in the school district attended this board meeting and spoke out against the transfer on educational grounds. As a resident of the district and the mother of students attending schools in the district, Plaintiff states that she attended this meeting and spoke in opposition to the transfer.

 According to the Complaint, a second vacancy arose in the English department for the 1982-1983 school year. Plaintiff began the school year as the permanent substitute for that position pending the appointment of a permanent teacher to the position. Despite Plaintiff's claim that she was recommended by the Administration to fill this position, another candidate was hired instead.

 For the remaining portion of the 1982-1983 school year, Plaintiff was employed by the school district as a substitute teacher. However, in August, 1983, the school board voted not to approve Plaintiff as a substitute teacher for the 1983-1984 school year. Consequently, her name was removed from the list of eligible substitutes.

 Again in January, 1984, the school board voted not to approve Plaintiff as a substitute teacher in the school district. Plaintiff avers that Defendant Rick Barnhart, President of the school board, made a statement at this meeting to the effect that Plaintiff, at the July 1982 school board meeting, had not conducted herself properly and did not behave in a manner appropriate for a professional. According to the Plaintiff, President Barnhart's comments were made before the entire audience attending the school board meeting including several reporters and were subsequently published in at least two local newspapers.

 Motion to Dismiss

 When considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court must construe all allegations in the complaint liberally. Columbia Pictures Industries, Inc. v. Redd Horne, Inc., 749 F.2d 154, 161 (3d Cir. 1984). The burden lies with the moving party to show that, without a doubt, "Plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). This approach is mandated because, by its nature, a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) results in a determination on the merits at an early stage of Plaintiff's case. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

 First Amendment Claim

 In her complaint, Plaintiff first alleges a cause of action under § 1983 for violations of her First Amendment right to free speech. She states that, in retaliation for speaking out against the transfer of a teacher from the Social Studies department to fill the vacancy in the English department, Defendants refused to hire her for a second vacancy which arose in the English department. In addition, they dropped her from a list of approved substitutes and refused to reinstate her on that list even though she was qualified as both a permanent and substitute teacher.

 At the outset, we note that Plaintiff need not assert a property interest to state a claim under the First Amendment. Mt. Healthy School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). Even if Plaintiff had no constitutional right to a permanent teaching position, or to a hearing prior to being removed from the substitute list or prior to being denied reinstatement on that list, the government cannot deny Plaintiff any benefit on the basis of her exercising a First Amendment right.

Even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests -- especially, his interest in freedom of speech . . . We have applied [this] principle regardless of the public employee's contractual or other claim to a job.

 Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972).

 A three-step process is applied to evaluate a public employee's claim of retaliation for exercising a First Amendment right: 1) Plaintiff must show that she was engaged in a protected activity; 2) Plaintiff must show that the activity in question was a substantial or motivating factor behind the adverse employment decision; and 3) Defendant, in order to defeat Plaintiff's claim, must show by a preponderance of evidence that, absent the protected activity, Plaintiff would have suffered the same adverse decision. Johnson v. Lincoln Univ., 776 F.2d 443, 450 (3d Cir. 1985)(quoting Trotman v. Board of Trustees of Lincoln Univ., 635 F.2d 216, 224-225 (3d Cir. 1980), cert. denied, 451 U.S. 986, 101 S. Ct. 2320, 68 L. Ed. 2d 844 (1981)). The first step, determining whether the Plaintiff was engaged in a protected activity, is a question of law, not fact. Johnson, 776 F.2d at 454 (quoting Connick v. Myers, 461 U.S. 138, 148 n.7, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983)).

 In making a determination on whether certain speech is protected, a court must determine, as a threshold matter, whether the speech touches upon matters of legitimate public concern. If it does, then the court must perform a balancing test to see if the interests of the employee, as a citizen, in commenting upon the subject at issue outweigh the interests of the government, as the employer, in promoting an efficient work environment. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). It is at the balancing stage where the employee's personal stake or motive becomes relevant. Johnson, 776 F.2d at 450.

 Speech touches upon matters of public concern when it can "fairly be considered as relating to any matter of political, social, or other concern to the community." Id., at 451 (quoting Connick v. Myers, 461 U.S. at 146). While matters which are mere extensions of personnel disputes involving purely personal concerns are not protected by the First Amendment, Connick, 461 U.S. at 148; Alinovi v. Worcester School Committee, 777 F.2d 776, 786-87 (1st Cir. 1985); Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1257 (7th Cir. 1985); Day v. South Park Indep. School Dist., 768 F.2d 696, 697 (5th Cir. 1985), mixed questions of private and public concern can be protected. Gonzalez v. Benavides, 774 F.2d 1295, 1301 (5th Cir. 1985). Likewise, the fact that a statement evolves from a personal dispute does not preclude some aspect of it from touching upon matters of public concern. Johnson, 776 F.2d at 451.

 Content, form and context as revealed by the whole record are important considerations which a court must evaluate in making a determination on whether certain speech is protected. Connick, 461 U.S. at 147-48; Johnson, 776 F.2d at 453. In an academic environment, speech should not be suppressed simply to avoid the expression of dissenting viewpoints which may cause some discomfort. Johnson, 776 F.2d at 453 (citing Trotman, 635 F.2d at 230). Teachers are in a unique position with regard to the operation of a school system. They are the members of the community most likely to have informed and definite opinions on ...

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