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August 12, 1999


The opinion of the court was delivered by: Van Antwerpen, District Judge.


Plaintiff David J. Basile ("Plaintiff") brings this action against Defendants The Elizabethtown Area School District, The Elizabethtown Area Board of School Directors, Dr. Allan L. Thrush, Debra Weaver, Steven Houser, Carol Myers, Robert L. Enk, Barbara A. Hippensteel, A. John Larue, Carol A. Miller, Michael S. Moulds, Jamie H. Rowley, Andrew L. Saylor, Thomas M. Troutman, and Kathleen Weaver (collectively referred to as "Defendants"), alleging that he was deprived of his right to a veteran's preference in appointment to a non-civil service position. The suit arises from Plaintiffs two failed attempts to secure a teaching position with the Elizabethtown Area School District. Plaintiff asserts claims for violations of the Fifth Amendment, Eighth Amendment, Ninth Amendment and Fourteenth Amendment. Plaintiff also alleges as a pendent state claim a violation of the Pennsylvania Veterans' Preference Act, 51 Pa.C.S. § 7104. The court has before it Defendants' Motion for Summary Judgment; Plaintiffs Reply to Defendants' Motion; Plaintiffs Motion for Summary Judgment; Defendants' Reply to Plaintiffs Counter-Motion; Defendants' Response to Plaintiffs Reply; and Plaintiffs Second Reply Brief.

On July 8, this court approved a stipulation by Plaintiff and Defendants to decide this case as a non-jury matter on the basis of the Parties' May 25, 1999 stipulation of facts and without a formal trial. We adopt as our findings of fact, under Fed.R.Civ. Pro. 52(a), each of the following numbered paragraphs, taken directly from the jointly-prepared Statement of Facts submitted by the parties. These facts are sufficient to enable us to render a decision on the issues the parties have identified.

Jurisdiction is proper under 28 U.S.C. § 1331, 1343 and 1367(a). Venue is proper under 28 U.S.C. § 1391 (b).


1. The School Board for the Elizabethtown Area School District ("School District") has not approved any written policy regarding Veterans' Preference. The School District has not adopted any written policy regarding Veteran's Preference.

2. The School Board, the Superintendent and the interview team are aware of the Veteran's Preference Act ("VPA").

3. The team that interviewed Mr. Basile has never applied a Veterans' Preference policy to any candidate.

4. The School District receives several hundred applications annually for elementary school teaching positions.

5. Each of these applications is reviewed by at least one member of the elementary school interview team, which consists of principals or acting principals of the elementary schools in the School District.

6. Each applicant must submit a completed application, three recommendations, a copy of his or her resume, a copy of his or her teaching certificate, and certifications for criminal record and a child abuse checks. The applicants, having supplied the required documents, are referred to as candidates.

7. The candidates are divided in alphabetical order among members of the interview team.

8. Each team member uses a district approved form, the Review of Application for Professional Employment, to rate the applicants on various areas of competency.

9. The team also considers candidates who have previous classroom experience and those who have dual certification in elementary and special education. The team considers dual certification because a number of the classrooms are to include students identified those needing specially designed instruction.

10. For 1995 and 1996, the application form, Review of Application for Professional Employment form and interview checklist do not contain any reference to a candidate's military status.

11. The 1997 application form does mention U.S. military service, in the "other qualification" section.

12. Each candidate is evaluated according to the characteristics in the Review of Application for Professional Employment form, and is given a rating of "A, B or C or unable to assess." The highest rated candidates receive a C and are those first considered for interviews. Average candidates are B candidates, and are rarely considered for interviews. Candidates who will not be considered for an interview receive an A.

13. Requirements for successful candidates include: a 3.5 GPA on a 4.0 scale; an A grade in student teaching; involvement with students outside of the candidate's college studies; some teaching experience; at least three references extolling the qualities that the School District believes are important; and the ability to write correctly and clearly, as evidenced by the application. "C" candidates are those receiving the highest ratings combining those factors.

14. A number of candidates serve as substitutes in the School District, and are known to the principals for whom they work. The principals will discuss their experience working with the substitutes when the applications are being reviewed.

15. Long-term substitutes are observed and measured by the School District's Approved Observation form, and those with strong observations are given a preference for an interview over those who are not. Anything less than a strong observation by a principal will preclude a long-term substitute from receiving a C rating.

16. Day-to-day substitutes are also considered, but only if they receive overall good reports from classroom teachers for whom they substituted. Day-to-day substitutes who receive less than an overall good report are precluded from receiving a C rating.

17. The interview team also considers previously interviewed candidates.

18. Previously interviewed candidates who scored high on the approved elementary administration interview checklist form are considered strong candidates and are granted interviews.

19. Once a candidate is selected to be interviewed, he or she is interviewed by the available members of the elementary school interview team.

20. The interviewers use standard questions for each interviewee. They complete an interview checklist, and take notes during the interview on the candidate's answers.

21. To the best of the interview team's knowledge, none of the standard questions specifically asked about a candidate's military status.

22. During the interview, the team inquires about a candidate's background and experiences, and considers information contained in the candidate's application or resume.

23. At the end of the interview a writing sample exercise is given to the candidate. It is completed independently. If the candidate previously completed a writing sample, then he or she would not be required to complete the exercise.

24. After an interview, the interview checklist is completed.

25. The points on the checklist are totaled and averaged, with each candidate receiving a rating score.

26. At the completion of the interviews, the team generally discusses the candidates and ranks them according to their scores. The team then determines a minimum threshold score, below which candidates are no longer considered viable.

27. The minimum threshold score to qualify for the in-depth analysis stage varies annually. The score is determined according to the quality of the candidates and the number of positions available that year.

28. During the in-depth analysis stage, the interview team again reviews the candidates. The following factors are considered: how well the candidate matches a particular position, based on teaching philosophy, teaching style, personality, school building and district goals, and overall staffing considerations; the candidate's strengths and weaknesses; and the quality of the candidate's experience and teaching strategies. The interview team may choose to re-interview certain candidates.

29. During the in-depth stage no preapproved forms or checklists are used.

30. At the completion of the in-depth analysis stage, the only remaining candidates are those the interview team feels are competent to receive a job offer, pending a background check.

31. Normally there are more candidates than positions after the in-depth analysis stage. The remaining candidates are grouped according to their ...

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