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FOGARTY v. BOLES

August 30, 1996

JACK FOGARTY, Plaintiff,
v.
JOSEPH M. BOLES, Defendant.



The opinion of the court was delivered by: ROBRENO

 EDUARDO C. ROBRENO, J.

 August 30, 1996

 Plaintiff Jack Fogarty is a public school teacher at Harry S. Truman High School in Levittown, Pennsylvania. Defendant is Joseph M. Boles, the principal of Harry S. Truman High. Plaintiff alleges that defendant violated his First Amendment rights when he removed him from three compensated extracurricular positions in retaliation for what defendant believed was plaintiff's association with a newspaper reporter. Defendant has moved for summary judgment asserting that plaintiff has not proffered legally sufficient evidence to support his claim. For the reasons set forth herein, defendant's motion will be granted.

 I. BACKGROUND *fn1"

 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 ...


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