The opinion of the court was delivered by: Hay, Magistrate Judge
Presently before this Court for disposition is a motion for summary judgment brought by defendants Bethlehem-Center School District ("Bethlehem") and Herman B. Jackson ("Jackson"), Bethlehem's Superintendent.*fn1
Plaintiffs, Karen Drill ("Drill"), a member of Bethlehem's Board of Directors, and Joseph X. Matesich ("Matesich"), a former employee at Bethlehem, commenced this action under 42 U.S.C. § 1983 alleging that defendants had instituted a "chain of command" policy ("the Policy") pursuant to which staff members are forbidden to have direct communication with members of Bethlehem's Board of Directors (the "Board") without first seeking approval from Jackson. Plaintiffs complained that the Policy restricts communication on matters of public concern between school district employees and elected board members thereby violating their right to free speech. As well, Matesich alleged that he was given a five day suspension without pay, demoted from the Automated Systems Coordinator to an Automated Systems Technician and ultimately fired in retaliation for violating the Policy.
The record demonstrates that Matesich was hired by Bethlehem as its Automated Systems Coordinator in October of 2000 after several other candidates had been offered but rejected the position.*fn2 Jackson was subsequently hired as Bethlehem's Superintendent after a five to four vote by the Board.*fn3 Jackson testified that certain members of the Board, including Drill and Danny Symcheck ("Symcheck"), made him feel unwelcome and would monitor his activities.*fn4
In July of 2001, a seminar was given by the Department of Education for school district superintendents at which Jackson received a laptop computer.*fn5 Jackson testified that he believed the computer was given to him personally and, because he already had two laptops at home, decided to sell the one he received at the conference.*fn6 It appears that in December of 2001, Bethlehem's security officer, Tex Calhoun ("Calhoun"), was in the office of Joseph Nepa ("Nepa"), Bethlehem's business manager and Matesich's supervisor, when Jackson came in and asked if anyone knew of anyone who may be interested in purchasing a laptop computer.*fn7 Calhoun indicated that he was interested and subsequently purchased the computer from Jackson for $1100.00.*fn8
At some point surrounding the transaction, Jackson, having apparently forgotten his password, was having difficulty getting into the computer and called Matesich to his office to set the computer up so that Calhoun could access it.*fn9 Having thereby learned of the proposed sale and believing that the laptop at issue was the property of the school district, Matesich commenced an investigation including contacting the "Intermediate Unit," the Department of Education and Dell Corporation.*fn10
Matesich learned that the laptops were purchased with grant money for use by the school districts, that they were the property of the school district and that the serial number on the computer Jackson sold to Calhoun matched the number on the laptop Jackson received at the seminar.*fn11
It appears undisputed that Matesich never approached Jackson or anyone else in the administration about his concerns over the sale, stating that he wanted to get all the information first, but did tell Drill and Symcheck, two Board members who were opposed to Jackson.*fn12 Matesich also approached Nepa and suggested that Bethlehem should have a policy regarding equipment that was acquired at seminars.*fn13 When asked by Nepa whether his suggested policy concerned Jackson's laptop, Matesich stated that he "avoided the issue."*fn14 It nevertheless appears that rumors began circulating that Jackson had stolen the computer and sold it. Consequently, according to Jackson, despite having been told by Bethlehem's solicitor, Dennis Makel ("Makel"), that there was nothing wrong with his having sold the computer since it was given to him, Jackson returned the money to Calhoun and retrieved the computer.*fn15 It also appears that Jackson spoke to Matesich about the rumors at which time, according to Jackson, Matesich "blew him off."*fn16 Matesich, on the other hand, testified that Jackson badgered him with questions and berated him about his attitude and not being a team player. Matesich also testified that he nevertheless began questioning Jackson about whether he had a laptop that belonged to the district and whether he had been to a seminar where he received a Dell laptop, at which time Jackson told him it was none of his business and, when Matesich began to ask yet another question, began shouting that he was the superintendent and told Matesich he was going to sue him.*fn17
Further, it appears that, at Makel's suggestion, Jackson wrote a letter to Matesich asking him to respond to certain questions concerning the rumors that had been spreading and the proposed policy he suggested to Nepa.*fn18 According to Jackson, Matesich did not provide an appropriate reply.*fn19
It also appears undisputed that after learning from Matesich that Jackson had sold the computer, Drill contacted the Ethics Commission which, in turn, interviewed Matesich during the course of its investigation.*fn20 The Ethics Commission issued its adjudication on April 18, 2003, concluding that Jackson had committed an unintentional violation of the Ethics Act and noting that Jackson agreed to pay a $500 fine to settle the matter.*fn21
Sometime in early 2003, prior to the Ethic's Commission's adjudication, discussions took place regarding the need to upgrade and/or develop Bethlehem's technology program which appears to have been beyond Matesich's knowledge or capabilities.*fn22 Jackson testified that he had consequently recommended to the Board that Richard DeMarco ("DeMarco"), a friend of Nepas's who had experience in the field, be given the job and that DeMarco was, in fact, hired as a consultant.*fn23
DeMarco subsequently developed a plan, one which Matesich concedes he did not agree with, which he presented to the Board and technology committee on March 19, 2003.*fn24 While DeMarco was presenting his proposal, a representative of Star Tech Company, DeMarco's competitor, appeared to offer a counter proposal having been told by Matesich that it was okay to do so.*fn25 Matesich had apparently invited the Star Tech representative to attend the meeting without authorization or knowledge by either Jackson or Nepa which was in direct contravention to a directive issued to Matesich on numerous occasions that he was to provide him and Nepa with any information before it was brought to the Board's attention.*fn26 Matesich testified that he believed it was an open meeting for quotes and that if DeMarco was giving a quote he could have another quote there too.*fn27 Matesich also testified, however, that he had already given Nepa quotes from Star Tech and another company named Computer Centerline, and that Nepa had rejected them as being too high.*fn28 It was also Matesich's testimony that usually his role was just to get the proposals and give them to Nepa to use.*fn29
Nevertheless, as a result of the incident, Jackson issued a letter to Matesich on March 20, 2003, advising him that he had recommended to the Board that, effective March 21, 2003, Matesich be suspended for five days without pay, be transferred to another position and be placed on six months probation.*fn30 In another letter dated March 25, 2003, Jackson informed Matesich that the Board had voted the previous day to transfer him to the position of Technology Technician at the same rate of compensation and to place him on six months probation.*fn31
Plaintiffs filed a complaint commencing this lawsuit on May 15, 2003, wherein they brought claims against both defendants for violating their civil rights under the First and Fourteenth Amendments to the United States Constitution (Count I); for violating Matesich's civil rights by demoting him and by denying him a job performance evaluation and bonus (Count II); for violating Matesich's right to due process under the Fifth and Fourteenth Amendments by subjecting him to an adverse job action without notice or an opportunity to be heard (Count III); and for violating Matesich's civil rights under the First, Fifth and Fourteenth Amendments by retaliating against him when he attempted to keep the line of communication with board members open (Count IV). Matesich also brought state law claims for breach of contract against Bethlehem (Count V); negligent and intentional infliction of emotional distress against both defendants (Count VI); and a claim for punitive damages against Jackson (Count VII).
Defendants thereafter filed a motion to dismiss pursuant to which this Court dismissed all of plaintiffs' claims except those brought at Count IV, to the extent Matesich alleged that he was retaliated against in violation of his First and Fourteenth Amendment rights, and Matesich's claim for punitive damages against Jackson brought at Count VII.*fn32
In the interim, in October of 2003, it appears that Jackson began experiencing some problems with his desktop computer and Matesich was contacted to fix them.*fn33 Matesich apparently last worked on the computer on October 23 rd and, according to Jackson, when he returned to his office afterward all of the information he had stored on the computer and his palm pilot, including dates he had entered on his calendar, had been wiped out. Jackson testified that when he asked Matesich why the information had been removed and not restored, Matesich explained that when Microsoft 2000 Pro is reinstalled it destroys all of the existing data on the computer. When ...