that plaintiff has not proffered legally sufficient evidence to support his claim. For the reasons set forth herein, defendant's motion will be granted.
Plaintiff Jack Fogarty has been employed as an English teacher by the Bristol Township School District, a public school district, for nearly 30 years. (Pl.'s Br. Contra Def.'s Mot. Summ. J., doc. no. 18 at 2-3) From the late 1970s to the present, plaintiff has been assigned to Harry S. Truman High School. (Id. at 3)
Beginning in the early to mid 1980s, in addition to his duties as a teacher, plaintiff served as chairperson of Harry S. Truman's English department, business manager for the annual school play and advisor for the school's yearbook. (Id. at 2-4) Plaintiff received compensation over and above his teacher's salary for the work he performed in these extracurricular positions. (Id. at 2)
According to plaintiff, in the months immediately prior and subsequent to December 1993, representatives of the Bucks County Department of Health inspected the high school and uncovered a series of code violations. (Id. at 5-6) Plaintiff contends that the violations were with respect to noxious environmental conditions caused by substantial tarring work on the high school's roof. (Id. at 6) Plaintiff states that a Department of Health report issued regarding an inspection conducted on December 3, 1993, referred to the fact that "'several concerned parents' had complained as to 'dust, tar vapors, unsafe conditions, students with sore throats, asthma, [and] rashes,'" resulting from the roofing work. (Id.) According to plaintiff, a notable amount of media interest had developed concerning health issues stemming from the roof construction at Harry S. Truman High. (Id.)
Plaintiff avers that just before noon on December 9, 1993, he was summoned to defendant's office over the school's public address system. (Id. at 7) Plaintiff contends that when he arrived at defendant's office, defendant was "obviously upset." (Id.) According to plaintiff, "in a very 'gruff tone'" defendant asked him why he had called the Bucks County Courier Times, a newspaper widely distributed in Lower Bucks County. (Id.) Plaintiff alleges that he denied contacting the newspaper, but defendant stated that he had, indeed, telephoned the paper because defendant had just received a call from a Courier Times reporter, J.D. Mullaney, who said he was returning plaintiff's call. (Id.) Defendant then informed plaintiff that Mullaney was on his way to the school. ( Id.) Plaintiff states that, on his suggestion, he and defendant waited together for Mullaney to arrive. (Id.)
According to plaintiff, when Mullaney arrived at the school he greeted defendant with a friendly "'Hello Joe,'" and was introduced to plaintiff by defendant. (Id. at 8) Plaintiff contends that he immediately denied ever meeting Mullaney and told the reporter that he did not know who he was. (Id.) Plaintiff avers that Mullaney, who was accompanied by a photographer, stated that he had received a written phone message that he was to call plaintiff at the high school. (Id.) Plaintiff states that in defendant's presence, he told Mullaney that he did not contact him and stated that he had enough to worry about without having to contend with explaining to his principal that he did not call a reporter. (Id.) The meeting then concluded. (Id.) Later that same day, plaintiff states that he wrote a letter to defendant in which he again denied contacting Mullaney. (Id. at 6, 10)
Subsequent to the Mullaney incident, plaintiff contends, defendant's attitude towards him changed drastically. (Id. at 23) Plaintiff argues that, in stark contrast to his pre-December 9, 1993, treatment of plaintiff, defendant was consistently "'very quick and very gruff'" in his regular dealings with plaintiff after December 9, 1993. (Id.)
Plaintiff avers that sometime around February 1994, defendant removed him from his position as business manager of the school play. (Id. at 3-4) Shortly after the close of the 1993-1994 school year, plaintiff states, defendant advised him that he was also removing him from his position as yearbook advisor and replacing him as chairman of the English department. (Id. at 4) Plaintiff contends that defendant removed him from these positions, which he had held for many years, without warning or adequate explanation and despite his prior history of exemplary performance. (Id. at 5)
In April 1995, plaintiff filed the present action, pursuant to 42 U.S.C. Sec. 1983, alleging that defendant's actions violated his First Amendment rights. (See Compl., doc. no. 1; Am. Compl., doc. no. 6)
II. STANDARD OF REVIEW
To prevail on a motion for summary judgment, a moving party must establish that no genuine issues of material fact remain in dispute and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). An issue is "genuine" only if "there is evidence from which a reasonable trier of fact could find in favor of the nonmoving party, viewing the record as a whole in light of the evidentiary burden the law places on that party." United States v. Premises Known as 717 S. Woodward St., Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56, 106 S. Ct. 2505, 2512-14, 91 L. Ed. 2d 202 (1986)). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510, 91 L. Ed. 2d 202.
When ruling on a motion for summary judgment, the deciding court must view the evidence in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Mellon Bank Corp. v. First Union Real Estate Equity & Mortgage Inv., 951 F.2d 1399, 1404 (3d Cir. 1991). The court must accept the nonmovant's allegations as true, and resolve conflicts in the nonmovant's favor. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993). The moving party bears the burden of "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). If the movant makes a showing that there is no genuine issue of material fact, the nonmoving party may not rest on its pleadings. In these circumstances, the non-moving party must go beyond the pleadings to "establish the existence of each element on which it bears the burden of proof." J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 111 S. Ct. 1313, 113 L. Ed. 2d 246 (1991).
In his amended complaint, plaintiff alleges that defendant impermissibly retaliated against him because he mistakenly believed "that plaintiff had been communicating with a news reporter . . . with respect to matters of public importance concerning Harry S. Truman High School." (Am. Compl., doc. no. 6 at P 11) Plaintiff argues that defendant's actions violated his First Amendment Rights. He seeks damages under 42 U.S.C. § 1983.
A public employee's claim of retaliation for engaging in protected activity is examined under a three-step analysis:
First, the plaintiff must show that the activity in question was protected. To deserve protection, "the speech must be on a matter of public concern, and the employee's interest in expression on this matter must not be outweighed by any injury the speech could cause to the interest of the state as an employer in promoting the efficiency of the public services it performs through its employees." Second, the plaintiff must show that the protected activity was a substantial or motivating factor in the alleged retaliatory action. Finally, the employer can establish that it would have taken the adverse employment action regardless of whether the employee had engaged in protected conduct.
Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996) (citing Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995) (other citations omitted)) (emphasis added). Before reaching the "threshold issue" of whether plaintiff's speech was on a matter of "public concern," see Watters, 55 F.3d at 892 (citation omitted), in this case the Court must first determine if plaintiff can make a First Amendment argument, given that plaintiff himself claims that he neither said nor intended to say anything.
A. Protected Activity
Without citation to authority, defendant argues that because plaintiff denies that he ever contacted or otherwise communicated with Mr. Mullaney, there is no speech at issue in this case and, therefore, that defendant is entitled to summary judgment on plaintiff's First Amendment claim. (See Def.'s Mem. Re Mot. For Summ. J., doc. no. 15, at 3,7, 12) The Court disagrees.
"'It is essential that public employees be able to speak out freely on questions of public concern without fear of retaliatory dismissal.'" Pro, 81 F.3d at 1287 (quoting Watters, 55 F.3d at 891). The government "'cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression.'" Id. (quoting Connick v. Myers, 461 U.S. 138, 142, 103 S. Ct. 1684, 1687, 75 L. Ed. 2d 708 (1983)). While the First Amendment "does not shield a governmental employee from the possibility that his employment might be terminated - however mistaken or unreasonable that decision might be -" if the adverse employment action is "motivated by the desire or intention to curtail or retaliate for employee activity which the Constitution protects," then a First Amendment violation has occurred. Neubauer v. City of McAllen, Tex., 766 F.2d 1567, 1578-79 (5th Cir. 1985) (emphasis in original). The issue, therefore, is not whether the adverse employment action "can somehow be objectively justified, but whether it was in fact improperly motivated." Id. at 1579 (emphasis in original) (citation omitted). It is "the actual motive of the governmental employer which is crucial in first amendment discharge cases, not the accuracy of the employer's factual determination." Id. at 1580.
Following the teachings discussed above, the Court concludes that here, plaintiff's contention that defendant was mistaken in his belief that plaintiff had contacted or otherwise communicated with Mr. Mullaney does not bar plaintiff's First Amendment claim. If the adverse employment actions taken against plaintiff by defendant were "in fact improperly motivated " by defendant's, albeit erroneous, belief that plaintiff was attempting to speak on a matter of public concern, then defendant violated plaintiff's First Amendment rights.
B. Public Concern
Whether speech touches on a matter of public concern is a legal question to be determined by the court, not the finder of fact. See Connick v. Myers, 461 U.S. at 148 n.7, 103 S. Ct. at 1690 n.7; Pro, 81 F.3d at 1288. "'An employee's speech addresses a matter of public concern when it can be 'fairly considered as relating to any matter of political, social, or other concern to the community."" Pro, 81 F.3d at 1288 (quoting Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir. 1993) (quoting Connick, 461 U.S. at 146, 103 S. Ct. at 1690)). In such cases, the employee's speech is protected. However,
when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.
Id. (quoting Connick, 461 U.S. at 147, 103 S. Ct. at 1690). The public concern inquiry must be determined by reference to the "'content, form, and context of a given statement, as revealed by the whole record.'" Id. (quoting Connick, 461 U.S. at 147-48, 103 S. Ct. at 1690). The Third Circuit discussed this analysis in Holder :
The content of the speech may help to characterize it as relating to a matter of social or political concern of the community if, for example, the speaker seeks to 'bring to light actual or potential wrongdoing or breach of public trust' on the part of government officials. The form and context of the speech may help to characterize it as relating to a matter of social or political concern to the community if, for example, the forum where the speech activity takes place is not confined merely to the public office where the speaker is employed.