The opinion of the court was delivered by: Judge Sylvia H. Rambo
Before the court is Defendants' motion for summary judgment on Plaintiff's claim of employment retaliation in response to her exercise of her First Amendment right to free speech. Plaintiff alleges numerous acts of retaliation taken by Defendants because she investigated and made public her concerns about the air quality in certain school buildings within Central Dauphin School District. Plaintiff was a teacher within the School District for the times pertinent to this suit. Her claims revolve around her teaching position and her position as an assistant coach for the cross-country team at Central Dauphin High School. For the reasons that follow, summary judgment will be denied in part and granted in part.
The following facts are undisputed, except where noted. Defendants Dr. Barbara Hasson, Yvonne Hollins, and Richard Mazzatesta were employed by Defendant Central Dauphin School District ("School District"). Defendant Hasson was the District Superintendent from 1996 through July 7, 2005. (Hasson Dep. I 10:8-21, May 17, 2006.) Defendant Hollins was Assistant Superintendent for Secondary Education through July 12, 2004. (Hollins Dep. I 15:5-14; 59:21-24, May 26, 2006.) Defendant Mazzatesta was, and is, Principal of Central Dauphin High School. (Mazzatesta Dep. I 6:19-22, May 17, 2006.) Plaintiff Vickie Smith is a teacher in the Central Dauphin School District.
a. Old Central Dauphin High School*fn1
Plaintiff Vickie Smith was first hired by the School District as a long-term substitute teacher in 1988. (Defs.' Stmt. of Mat'l Facts ¶ 1; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 1.) She became a full-time, permanent employee of the School District in school year 1989-90, teaching at old Central Dauphin High School ("CDHS"). (Defs.' Stmt. of Mat'l Facts ¶ 3; Pl.'s Counter-Stmt. of Mat'l Facts ¶¶ 3, 11.)
In August 2001, while still teaching at old CDHS, Plaintiff began experiencing symptoms of illness, including shortness of breath, fatigue, and joint problems. (Defs.' Stmt. of Mat'l Facts ¶ 13; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 13.) She spoke to other teachers and the school nurse, some of whom were having similar chronic symptoms of illness. (Defs.' Stmt. of Mat'l Facts ¶ 19; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 19.) Plaintiff also contacted her union representative, Tom Ferguson. (Ferguson Dep. 59:16-24, May 26, 2006.) In response to many complaints, the teachers' union circulated a survey to the teachers asking about their health concerns. (Defs.' Stmt. of Mat'l Facts ¶ 14; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 14.) The results of the survey, completed in October 2001, plus complaints from students and parents, indicated that old CDHS was adversely affecting the health of its occupants. (Defs.' Stmt. of Mat'l Facts ¶ 15; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 15.) The union shared the results of the testing with Defendant Hasson in December 2001 and January 2002. (Smith Dep. I 50:10-52:18, Sept. 22, 2006.)
In or after February 2001, Defendant Hasson met with the teachers' union co-presidents and other administrative personnel to talk about Plaintiff's health concerns. (Hasson Dep. I 55:5-56:8.) Defendant Hasson agreed to have the old CDHS building tested. (Id. at 56:18.) The School District contracted with Analytical Laboratory Services, Inc. ("ALSI") to perform testing at old CDHS to determine the source of the problems. Testing began on or about February 15, 2001.
Plaintiff's symptoms worsened over the course of the 2001-02 school year. She saw physicians and specialists to determine the cause of her illness. (See Pl.'s Counter-Stmt. of Mat'l Facts ¶ 19.) On February 7, 2002, Plaintiff went on sick leave. (Smith Dep. I 66:17-21.) On the same date, she notified the School District's human resources office that her symptoms were caused by old CDHS. (See Pl.'s Counter-Stmt. of Mat'l Facts ¶ 19.) She also filed a worker's compensation claim.*fn2 (Smith Dep. I 54:3-15; Pl.'s Ex. 8.) Dr. Bogdon, Plaintiff's family doctor, advised her to go on a medical leave of absence from work. Dr. Bogdon suspected that Plaintiff's respiratory problems resulted from exposure to mold at old CDHS (Pl.'s Ex. 13), but her condition was not concretely diagnosed (Defs.' Stmt. of Mat'l Facts ¶ 36; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 36). Plaintiff began medical leave as of February 22, 2002. (Decl. of Vickie Smith ¶ 9.)
Plaintiff filed a complaint regarding the environmental conditions at old CDHS with the Department of Labor on March 11, 2002. (See Smith Dep. I 73:22-74:16) She filed a similar complaint with the Department of Health on March 12, 2002. (See id.; Gostin Dep. 6:11-21, Oct. 23, 2006.) Judith Gostin, an industrial hygienist and occupational health program director at the Department of Health, spoke with Plaintiff. (Gostin Dep. 6:11-21.) Ms. Gostin contacted Defendant Hasson soon after. (Id. at 9:4-12.) In their phone conversation, Ms. Gostin and Defendant Hasson set a time to meet and discuss the health concerns at old CDHS within a few weeks. (Id. at 9:21-25.)
During March and April, Defendant Mazzatesta informed the Parent-Teacher-Student Organization at old CDHS that the testing showed normal results and there was nothing wrong with the building. (Hoachlander Dep. 8:13-9:2, May 26, 2006.) On March 16, 2002, following a report in the Harrisburg Patriot-News that mold was found at old CDHS, Defendant Hasson appeared on the local news and stated that the school was safe. (Pl.'s Counter-Stmt. of Mat'l Facts ¶ 21.)
On March 18, 2002, Plaintiff requested a copy of the "initial findings" produced by ALSI after testing on old CDHS from Bill Irwin of the School District human resources department. (Id.) She was seeing a doctor on or about that date and hoped to bring information about the environment at old CDHS with her to the appointment. (Pl.'s Ex. 14.) Plaintiff then called the office of the superintendent to request a copy of the report. Dr. Bogdon was faxed a copy of the preliminary report on the same day. On March 29, 2002, Plaintiff discovered that three pages, which included the test results and ALSI's recommendations to the School District, were missing from the preliminary report faxed to Dr. Bogdon. Later, Plaintiff learned that the pages were missing because ALSI "asked that those be left out until a more conclusive report [was] available." (Pl.'s Ex. 29.)
Defendant Hasson met with Ms. Gostin, Mr. Ferguson, Defendant Mazzatesta, a representative from ALSI, and other administrators on March 26, 2002, to discuss the teachers' concerns about the environment at old CDHS and the information produced by ALSI. (Gostin Dep. 10:1-13:2.) It appears that the final report from ALSI was not publicly available until on or about the date of this meeting, March 26, 2002. (Id.; see Pl.'s Ex. 17.) The same day, Ms. Gostin toured old CDHS with Mr. Ferguson to visually inspect the building. (Gostin Dep. 13:2-14:18.) Mr. Ferguson testified that when they first arrived, Defendant Mazzatesta would not let them in to the building to inspect the problem areas. (Ferguson Dep. 15:1-17.) After consulting Defendant Hasson, Defendant Mazzatesta allowed them to tour the school independently. (Id.) Ms. Gostin did not recall Defendant Mazzatesta impeding their inspection. (Gostin Dep. 14:11-18.)
In April 2002, Plaintiff saw Dr. Shoemaker, a specialist in chronic fatigue (Pl.'s Ex. 36), and Dr. Bascom, a specialist in pulmonary, allergy, and critical care (Pl.'s Ex. 58). The advised Plaintiff to return to work as a test. They sought to determine whether her return to old CDHS would aggravate her condition. (Defs.' Stmt. of Mat'l Facts ¶ 37; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 37.) In advance of her return, Defendant Hasson issued a memorandum to Defendant Mazzatesta, with a copy to Defendant Hollins, requesting that Defendants Mazzatesta and Hollins meet with Plaintiff before she returned to the classroom.
(Pl.'s Ex. 31.) It was Defendant Hasson's "understanding that [Plaintiff] was teaching about the environmental conditions in the building and her interpretation of the air problems." (Id.) She asked them to advise Plaintiff that such discussions in class are inappropriate because they are not elements of approved curriculum. (Id.) They were instructed to tell her that she must "[s]tick to the curriculum and not elaborate on her health conditions" and that she would be supervised directly. (Id.)
When Plaintiff arrived on the morning of April 29, Defendants Hollins and Mazzatesta met her at her mailbox. The tone and tenor of the meeting, from Plaintiff's perspective, was hostile. Plaintiff states that these Defendants "threatened" regarding teaching anything but curriculum. (Pl.'s Counter-Stmt. of Mat'l Facts ¶ 39; Smith Dep. I 126:10-127:1.) Nothing in the record reflects Defendant Hollins's or Defendant Mazzatesta's recollection of the meeting.
Within twenty-four hours of her return to old CDHS, Plaintiff's symptoms returned. (Defs.' Stmt. of Mat'l Facts ¶ 41; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 41.) In spite of her severe reaction, she continued to teach at old CDHS through May 15, 2002. (Defs.' Stmt. of Mat'l Facts ¶ 42; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 42.) She went on medical leave as of May 16, 2002. (Defs.' Stmt. of Mat'l Facts ¶ 43; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 43.)
By late May 2002, Plaintiff's physicians informed her that she should not return to old CDHS, lest she suffer a permanent and profound respiratory disability. (Pl.'s Ex. 19; Sullivan Dep. 44:5-22, Oct. 16, 2006; Bascom Dep. 11:18-25, Oct. 17, 2006). On May 22, 2002, Plaintiff contacted Mr. Irwin to ask about the protocol for requesting a transfer. (Pl.'s Ex. 19.) Mr. Irwin told her to send a formal, written, request for transfer to his attention. (Id.) The next day, before Plaintiff made an official request, Mr. Irwin sent her a letter informing her that she was to be transferred from her social studies position at old CDHS to teach social studies at Linglestown Junior High School ("LJHS"). (Pl.'s Ex. 20.) According to Mr. Ferguson, the transfer was rational in light of Plaintiff's health concerns. (Ferguson Dep. 18:6-17.) LJHS was one of few air-conditioned buildings in the School District and had recently been remediated.*fn3 (Id.) It was "the most environmentally safe place for [Plaintiff] to work." (Id.; see Hasson Dep. I 95:5-19.)
On June 12, 2002, Plaintiff issued a press release, under her name, identifying her health problems, her complaints to the Department of Labor and the Department of Health, and her impression that the School District had "turn[ed] a blind eye" to the health concerns of its teachers and students. (Pl.'s Ex. 33 at 2.) The Paxton Herald picked up the release, turning it into an article with the headline "Local Teacher Breaks Silence On Toxic Mold In C.D. High." (Pl.'s Ex. 57.) Upon learning of the press release, Defendant Hasson faxed a copy to counsel for the School District stating her belief that the release was "a clear violation" of Plaintiff's contract with the School District and requesting advice. (Pl.'s Ex. 33 at 1.)
Later in June, Defendant Mazzatesta is alleged to have learned that a parent member of the Parent-Teacher-Student Organization at old CDHS, Deb Hoachlander, had been corresponding with Plaintiff regarding the mold situation at old CDHS. (Hoachlander Dep. 31:13-32:18.) He told Ms. Hoachlander that, in his opinion, Plaintiff was spreading "falsehoods" through the news media about air safety at old CDHS. (Id.) He asked Ms. Hoachlander to forward Plaintiff's emails or, alternatively, he offered to go to Ms. Hoachlander's house to read them on her computer. (Id. at 32:19-33:11.) Ms. Hoachlander got the impression that Defendant Mazzatesta sought the emails to discredit Plaintiff. (Id. at 49:2-24.) Defendant Mazzatesta does not recall the specific conversation, but did remember asking someone to show him the contents of an email rather than paraphrasing it to him. (Mazzatesta Dep. I 47:11-14.) Ultimately, Ms. Hoachlander forwarded some emails from Plaintiff having to do with web sites about mold as it affects indoor air quality. (Hoachlander Dep. 33:22-34:1.)
b. Linglestown Junior High School
In July 2002, Plaintiff met with Gus Zemba, the principal of LJHS. (Smith Dep. I 96:25.) She requested documentation about the history of mold growth and air quality at the school. (Id. at 97:4-7.) He told her to contact the School District Solicitor's office for that information. (Smith Dep. I 97:10-12.) He also told her to have her physician make the request in writing. (Pl.'s Ex. 35.) Mr. Ferguson sent a letter to Mr. Irwin requesting the same information on August 7, 2002. (Id.) Dr. Bascom wrote to Mr. Zemba on August 12, 2002. (Pl.'s Ex. 36.) She indicated that if it was likely that the building had mold growth, Plaintiff "should work elsewhere." (Id.) On August 15, 2002, Defendant Hasson advised Plaintiff that she, Mr. Zemba, and Mr. Irwin were in the process of responding to Plaintiff's requests and anticipated providing a response in two weeks. (Pl.'s Ex. 64.)
In Defendant Hasson's letter to Plaintiff, she also inquired as to whether Plaintiff would be reporting for work at LJHS for the 2002-03 school year. (Id.) She asked Plaintiff to inform Defendant Hollins if Plaintiff would be returning or if Plaintiff would be "requesting leave pursuant to the Family Medical Leave Act by completing the enclosed application." (Id.) Plaintiff reported for work at LJHS.
On September 6, 2002, Plaintiff's worker's compensation attorney sent a request to counsel for the School District for information on LJHS. (Pl.'s Ex. 63.) Mr. Ferguson sent another letter to Mr. Irwin on September 11, 2002, with another request for information as to mold growth and air quality information at LJHS. (Pl.'s Ex. 37.)
Defendant Hasson responded to Dr. Bascom on September 27, 2002. (Pl.'s Ex. 38.) She related that there had been leaks in the roof in the past, but that repairs had been made quickly enough to reduce the possibility of resultant mold. (Id.)
It appears, however, that mold was discovered near the gymnasium of LJHS on June 14, 2002, the result of a leaky water fountain. (Pl.'s Ex. 39.) Defendant Hasson was notified of the mold on or about June 20, 2002. (Pl.'s Ex. 40.) The assistant principal of LJHS wrote a memo to her stating that an environmental specialist would visit to assess the problem and that he would provide their findings immediately. (Id.) On July 24, 2002, ALSI reported on the environmental quality of LJHS. (Pl.'s Ex. 41.) ALSI suggested remediation for the area surrounding the leaky water fountain. (Id.) At the time Defendant Hasson wrote to Dr. Bascom, the School District was in the process of repairing the floor in the affected area of the gymnasium, removing the mold, and remediating the area. (Id.)
After remediation, on December 30, 2002, ALSI sampled the air in the area where water damage and fungal contamination were removed and concluded that the air at LJHS was normal. (Pl.'s Ex. 42.) ALSI indicated that the level of fungal spore concentrations "should not affect or cause complaints among most occupants." (Id.)
At the end of the 2002-03 school year, Plaintiff was still having problems with her health, though not as severe as when she taught at old CDHS. (Defs.' Stmt. of Mat'l Facts ¶¶ 54-55; Pl.'s Counter-Stmt. of Mat'l Facts ¶¶ 54-55.) Plaintiff's doctors linked her health problems to an inhalation injury due to exposure to mold at old CDHS and continued exacerbation of the injury from exposure to mold at LJHS. (Defs.' Stmt. of Mat'l Facts ¶ 56; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 56; Smith Dep. I 108:17-25.) Plaintiff's doctors wrote a report to that effect and sent it to Defendant Hasson in June 2003. (Defs.' Stmt. of Mat'l Facts ¶ 57; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 57.) Dr. Bascom informed Plaintiff that she would have to be out of an "exposed environment" for two years to even begin to recover her lung capacity. (Defs.' Stmt. of Mat'l Facts ¶ 59; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 59.)
Plaintiff's doctors were concerned that it was not safe for her to teach at either old CDHS or LJHS. (Defs.' Stmt. of Mat'l Facts ¶ 63; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 63.) On May 24, 2003, Dr. Shoemaker advised Defendant Hasson that if Plaintiff continued to work in a contaminated environment, like old CDHS and LJHS, she was "likely to become 100% disabled by virtue of her occupationally acquired illness." (Pl.'s Ex. 50 at 5.) Dr. Bascom also advised Plaintiff not to return to LJHS. (Bascom Dep. 15:5-12.) Thus, Plaintiff approached Mr. Ferguson about requesting alternative work arrangements for the coming 2003-04 school year. (Defs.' Stmt. of Mat'l Facts 65 ¶ ; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 65.)
In June 2003, Mr. Ferguson suggested to Defendant Hollins that Plaintiff be assigned to home-bound teaching or an alternative education center such as Dauphin County Prison. (Pl.'s Ex. 48 at 3; Ferguson Dep. 27:8-28:1.) He informed Defendant Hollins that LJHS was not safe for Plaintiff, bringing doctors' reports in support. (Pl.'s Ex. 48 at 1.) He sent a letter with the same information in August 2003, requesting accommodation by the School District because Plaintiff wanted to continue to teach. (Pl.'s Ex. 49.) Also in August, Mr. Ferguson wrote to Mr. Irwin about alternatives for Plaintiff. (Pl.'s Ex. 48 at 1; Pl.'s Ex 61.) Mr. Ferguson met with Defendant Hollins on August 14, 2003. (Pl.'s Ex. 48.) Defendant Hollins indicated that Plaintiff was still assigned to LJHS for the coming school year, but agreed that it was not safe for Plaintiff to be in the building. (Id.) According to Mr. Ferguson, Defendant Hollins indicated that she would support Plaintiff's request, if made, for benefits under the Family Medical Leave Act ("FMLA"). (Id.) Mr. Ferguson told her that an FMLA solution was not in Plaintiff's best interests. (Id.) Mr. Ferguson emailed Defendant Hasson on August 18, 2003, to inquire again about Plaintiff's status in the School District for the coming school year, indicating that Defendant Hollins directed him to Defendant Hasson as to Plaintiff's proposed alternative assignment for the school year. (Pl.'s Ex. 62.)
The School District did not have any alternative positions suitable for Plaintiff for the 2003-04 school year.*fn4 (Defs.' Stmt. of Mat'l Facts ¶ 68; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 68.)
On Monday, August 25, 2003, the School Board approved FMLA leave for Plaintiff, effective August 18, 2003. (Pl.'s Ex. 54.) It is undisputed that Plaintiff did not request the leave. The record is unclear as to who, exactly, requested it for her such that the School Board could subsequently approve it. Defendant Hollins testified that she was not personally involved with the decision because human resources would have handled that kind of request. (Hollins Dep. I 32:10-19; 34:7-11.) Defendant Mazzatesta had no role in placing her on FMLA leave. (Smith Dep. I 167:4-10; see Mazzatesta Dep. I 74:5-16.)
Mr. Ferguson advised Plaintiff that, to protect her employment status within the School District once she exhausted her FMLA leave, she should take a medical sabbatical. (Smith Dep. I 117:24-118:5; Ferguson Dep. 29:16-31:2.) To that end, Plaintiff sent a written request for medical sabbatical to Mr. Irwin on September 5, 2003. (Pl.'s Ex. 53.) In the letter, she again requested a work accommodation. (Id.) On September 22, 2003, the School Board approved her request for medical sabbatical, effective for school year 2003-04. (Pl.'s Ex. 55.) She received half of her regular salary while on medical sabbatical. (Defs.' Stmt. of Mat'l Facts ¶ 72; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 72.) Plaintiff claims that this sabbatical was "forced" upon her by Defendants. There is no evidence that Defendant Hasson had a role in the advent of Plaintiff's medical sabbatical. (Defs.' Stmt. of Mat'l Facts ¶ 149; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 149.) Defendant Hollins did not personally discuss a sabbatical with Plaintiff or take any action on the matter. (Hollins Dep. I 35:11-18; Smith Dep. I 168:12:15.) Defendant Mazzatesta also had no role in her medical sabbatical. (Smith Dep. I 167:12-15; see Mazzatesta Dep. I 76:9-19.)
Plaintiff filed a complaint with the Pennsylvania Human Relations Commission in September 2003. (Smith Dep. I 148:15-149:5.) She also filed a second complaint with the Department of Labor at or about that time. (Id.)
d. New Central Dauphin High School
The School District completed construction on new CDHS while Plaintiff was on medical sabbatical. (Defs.' Stmt. of Mat'l Facts ¶ 75; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 75.) The School District spent more than $200,000 to prevent any mold growth in the new building. (Defs.' Stmt. of Mat'l Facts ¶ 79; Pl.'s Counter-Stmt. of Mat'l Facts ¶ 79.) Plaintiff was assigned to new CDHS for ...