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Fogarty v. Boles

August 4, 1997

JACK FOGARTY, APPELLANT

v.

JOSEPH M. BOLES, APPELLEE



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. No. 95-cv-01990)

Before: GREENBERG, ROTH, and WEIS, Circuit Jud ges.

WEIS, Circuit Judge.

Filed August 4, 1997

Argued May 20, 1997

OPINION OF THE COURT

In this claim under the First Amendment, a public school teacher asserts that he was punished because of the principal's belief that he had called the press about a matter of public interest at the school. We conclude that plaintiff fails to meet his burden of proving a violation of his free speech rights when he denies contacting, attempting to contact, or having any intention of contacting the press. Because of the absence of protected speech, we will affirm the grant of summary judgment in favor of the principal.

Faithful to our obligation to view the facts in the light most favorable to the non-moving party, we present the following version of the events from the plaintiff 's perspective. Plaintiff, Jack Fogarty, is an English teacher at Truman High School in Bristol Township, Pennsylvania. In addition to his teaching duties, for a number of years plaintiff had assumed various paid extracurricular positions, including Chairman of the English Department, Business Manager for the school play, and Faculty Advisor for the yearbook. Plaintiff received these assignments on a yearly basis from the school principal, defendant Joseph M. Boles.

Defendant became the principal at Truman in June 1990. Over the next three and one-half years, defendant and plaintiff enjoyed a relationship largely without incident, with defendant re-appointing plaintiff to each of his extracurricular positions in the successive school years. That changed in early 1994, however, when defendant did not renew the plaintiff 's appointments for the 1994-95 school year.

Plaintiff asserts that an incident occurred on December 9, 1993 that precipitated his removal. On that day, a furious defendant directed plaintiff to report to the principal's office. When he did so, defendant accused plaintiff of contacting a reporter for a local newspaper. The reporter, who at that time was en route to the school, had previously written unfavorable stories about dust and fumes from a construction project at the school, which had caused minor illnesses among the students and teachers.

When the reporter arrived, plaintiff denied that he had called him or was even acquainted with him. The reporter replied that he had received a written message from someone at the newspaper office to call plaintiff, but was unable to identify the caller. Later that day, defendant received a letter from plaintiff summarizing the episode and reiterating that he had not contacted the reporter.

In February 1994, defendant eliminated the plaintiff 's job as Business Manager of the school play. In June of that year, defendant removed plaintiff as Yearbook Advisor and declined to renew his appointment as Chairman of the English Department for the following school year. Defendant asserted various reasons for his actions unrelated to the December 9th incident involving the reporter. Plaintiff does not dispute that defendant had the discretion as principal to replace a person filling an extracurricular position on an annual basis.

The complaint in the district court alleged that the removal from extracurricular positions was a retaliatory action by defendant pursuant to his belief that plaintiff had exercised his First Amendment rights. However, in a deposition plaintiff stated that he had not called the reporter, had never talked to him, and had never felt pressure from defendant or anyone else to avoid talking with the media:

"Question: So as you stated in December of '93, and I'll ask you again this afternoon, you did ...


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