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KESSLER v. MONSOUR

September 6, 1994

DALE KESSLER and SANDRA KESSLER, Plaintiffs,
v.
DR. DAVID K. MONSOUR, Superintendent, Line Mountain School District (in individual and official capacity), ALEXANDER MENIO, Principal, Line Mountain School District (in individual and official capacity), LINE MOUNTAIN SCHOOL DISTRICT and PENNSYLVANIA STATE EDUCATION ASSOCIATION, Defendants



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 September 6, 1994

 BACKGROUND:

 On April 19, 1994, plaintiffs Dale and Sandra Kessler initiated this action by filing a complaint pursuant to 42 U.S.C. §§ 1983, 1985, 1986. Plaintiffs allege the violation of Dale Kessler's civil rights through his suspension from his teaching position at the Line Mountain High School. They also set forth a pendent state claim for the intentional infliction of emotional distress.

 Before the court are defendants' motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Defendants Monsour, Menio, and Line Mountain School District move to dismiss Counts II, III, and IV, as well as plaintiffs' claim for punitive damages. Defendants Line Mountain Education Association and Pennsylvania State Education Association move to dismiss Counts III and IV.

 DISCUSSION:

 I. STANDARD FOR DISMISSAL UNDER RULE 12(b)(6)

 A motion to dismiss under Fed. R. Civ. P. 12(b)(6) admits the well pleaded allegations of the complaint, but denies their legal sufficiency. Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976). "It is the settled rule that 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Leone v Aetna Cas. & Sur. Co., 599 F.2d 566, 567 (3rd Cir. 1979) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). The complaint must be read in a light most favorable to the plaintiff with every doubt resolved in plaintiff's favor. In Re Arthur Treacher's Franchisee Litigation, 92 F.R.D. 398, 422 (E.D.Pa. 1981).

 II. STATEMENT OF FACTS

 The following are the facts alleged in the complaint, which are accepted as true for purposes of the motions to dismiss. In order to ensure that the facts are construed in plaintiffs' favor, we quote plaintiffs' recitation of the facts, absent the citations to the complaint and with some grammatical changes. See Brief in Opposition to Motion to Dismiss of Defendants Monsour, Menio, and Line Mountain School District at 1-5; Brief in Opposition to Motion to Dismiss of Defendants Line Mountain Education Association and Pennsylvania State Education Association at 6.

 Dale and Sandra Kessler are husband and wife. Since 1977 Dale Kessler has been employed as the Line Mountain High School art teacher, a tenured professional employee with the Line Mountain School District, and has been employed there since 1974. Sandra Kessler is the parent of Eli Kessler, a fifth grade student in the Line Mountain School District. Sandra Kessler is employed as an elementary art teacher in the Line Mountain School District, a tenured professional employee with the Line Mountain School District since 1980, and has been employed as a teacher since 1977.

 Dale and Sandra Kessler, as tenured professional employees of the Line Mountain School District, are subject to the protection of a collective bargaining agreement. The Pennsylvania State Education Association is the recognized collective bargaining association for teachers within the Line Mountain School District. Defendant Line Mountain Education Association is the local union responsible for the representation of teachers of the Line Mountain School District in areas including collective bargaining and the grieving of Line Mountain School decisions. Although neither Dale nor Sandra Kessler is currently a member of either the Pennsylvania State Education Association or the Line Mountain Education Association, they are members of the respective collective bargaining units by virtue of their employment within the Line Mountain School District and as such are entitled to representation by the Union. Defendant David K. Monsour was the superintendent of the Line Mountain School District during the 1993-1994 school year. Defendant Alexander Menio was the principal of the Line Mountain High School during the 1993-1994 school year.

 On or about October 27, 1993, defendant Menio gave Dale Kessler an arbitrary and illegal unsatisfactory professional employee rating signed by defendant Monsour. Neither defendant had scheduled observations nor actually observed Dale Kessler prior to this evaluation. Dale Kessler attempted, but was not allowed, to grieve or appeal the unsatisfactory rating to the school board, although the evaluation form indicates that he can pursue that course of action. Further, the evaluation form was one designed for end of year evaluation, and was therefore improperly used.

 On January 14, 1994, several students in Dale Kessler's class were throwing rubber chair stoppers around the classroom, when a stopper thrown in Kessler's direction hit and damaged a student's art project, a large mask, and disrupted the classroom. Dale Kessler responded. Not only was Dale Kessler required to justify his handling of the incident to defendant Menio, he was improperly refused the opportunity to have a representative present, having been threatened with insubordination if he did not discuss the incident immediately.

 On January 24, 1994, Dale Kessler was handed a letter by defendant Monsour informing him of his indefinite suspension with pay pending "resolution of and investigation currently being conducted by local and state police which has been brought to our attention." There was no notice or hearing prior to this action. On January 25, 1994, Dale Kessler, sua sponte, filed an appeal with the school board, which was never acknowledged by the board. On February 1 and 2, 1994, front page newspaper articles reported that a statement made by defendant District indicated that a teacher had been suspended for an alleged assault on a student and for alleged conduct potentially harmful to the safety of the student.

 On February 28, 1994, plaintiffs' attorney was told by School District Solicitor Roger Wiest that no criminal charges were brought against Dale Kessler, there was no further investigation, and he would be reinstated by defendant Monsour at a meeting that day.

 On February 28, 1994, Dale Kessler attended a meeting with defendant Monsour and Line Mountain Education Association President Thea Tafner. Dale Kessler was not permitted to have his counsel present. Defendant Monsour insisted on a private meeting. Dale Kessler was presented with a list of four expectations regarding his return to the classroom, with defendant Monsour insisting that Dale Kessler affirm each statement. Only one of the four statements related to the corporal punishment issues which ostensibly existed on January 14, 1994. When Dale Kessler asked to speak to his counsel (present in the adjoining room at the recommendation of defendant Pennsylvania State Education Association's general counsel), Tafner promptly declared the statements "specific enough," endorsed them, and stated that there was "nothing to violate the contract." Defendant Monsour subsequently refused the request to review the document and abruptly ended the meeting.

 As a consequence, Dale and Sandra Kessler purposely have been excluded from participation in District-wide art curriculum revision efforts, although they purchased materials for the 1993 Curriculum Frameworks project out of their private funds and have the most experience teaching art in the District.

 Despite numerous communications from Dale Kessler requesting a meeting with defendant Monsour to clarify the statements and with Line Mountain School Board to appeal the suspension decision and to reinstate him, there has been no response, and he remains suspended with pay. Dale Kessler was advised of his dismissal, and a hearing scheduled for April 19, 1994, by letter dated April 5, 1994, from the President of the School Board, providing inadequate notice, inadequate preparation time, and citing new grounds for dismissal.

 To Dale Kessler's knowledge, no student was reprimanded or disciplined as a result of the incident and improper behavior in Dale Kessler's classroom on January 14, 1994. On several occasions, including the January 14, 1994, incident, students told Dale Kessler that he would not be supported by the administration if he accused the students of misbehavior.

 As a result of defendants' retaliation against Dale Kessler's free speech activities, Dale Kessler remains harassed, targeted for dismissal, and in professional limbo. He belatedly learned that he was purportedly suspended pending an investigation by local and state police, and has not been permitted to return to the classroom since January 14, 1994, even though he was never contacted by state or local police, no charges were brought, and according to the District solicitor, there is no pending investigation. Moreover, despite its obligation to Dale Kessler and despite repeated requests from counsel for Dale Kessler, defendant Pennsylvania State Education Association has disavowed the responsibility for representing him, has declined to proceed to represent him, and has conspired to affect adversely his tenured employment.

 III. MOTION TO DISMISS FILED BY DEFENDANTS MONSOUR, MENIO, AND LINE MOUNTAIN SCHOOL DISTRICT

 As noted, defendants Monsour, Menio, and Line Mountain School District move for dismissal of Counts II, III, and IV, and plaintiffs' claim for punitive damages. Each of these will be discussed in turn.

 A. Count II

 Count II of the complaint purports to state a claim on the part of Dale Kessler against defendants Monsour, Menio, Line Mountain School District, and Line Mountain Education Association for violations of 42 U.S.C. §§ 1985, 1986. Complaint at 13.

 i. Section 1985

 The particular subsection of § 1985 upon which Dale Kessler relies in Count II of the complaint is not stated. However, § 1985(1) relates to a conspiracy to prevent an officer of the United States from performing official duties or taking office; § 1985(2) relates to conspiracies to obstruct justice. Neither of these subsections has any conceivable application to the facts alleged by plaintiffs, and they do not argue that they have stated a claim under either of these subsections. See Brief in Opposition to Motion to Dismiss of Defendants Monsour, Menio, and Line Mountain School District at 6.

 The only way § 1985 might apply, then, is under the only remaining subsection, § 1985(3). In order to recover under § 1985(3), a plaintiff must allege and prove: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 829-830, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-103, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971)). "The conspiracy not only must have as its purpose the deprivation of 'equal protection of the laws,' but also must be motivated by 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Id. (quoting Griffin, 403 U.S. 102).

 More recently, the Supreme Court examined a § 1985(3) claim in the context of an alleged conspiracy to prevent access to abortion clinics. Bray v. Alexandria Women's Health Clinic, 122 L. Ed. 2d 34, 113 S. Ct. 753 (1993). The Court reiterated that a § 1985(3) claim may be brought for a conspiracy motivated by racial "or perhaps otherwise class-based, invidiously discriminatory animus . . ." 122 L. Ed. 2d at 45 (quoting Griffin, 403 U.S. at 102). While again ...


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