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Palfrey v. Jefferson-Morgan School

September 25, 2008

CONNIE L. PALFREY, PLAINTIFF,
v.
JEFFERSON-MORGAN SCHOOL, DISTRICT; CHARLES REMBOLD, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERINTENDENT OF THE JEFFERSON-MORGAN SCHOOL DISTRICT, CHARLES BARNO, INDIVIDUALLY AND IN HIS CAPACITY AS MEMBER OF THE SCHOOL BOARD OF DIRECTORS OF THE JEFFERSON-MORGAN SCHOOL DISTRICT; GREGORY A. NIVERTH, INDIVIDUALLY AND IN HIS CAPACITY AS MEMBER OF THE SCHOOL BOARD OF DIRECTORS OF THE JEFFERSON-MORGAN SCHOOL DISTRICT; ROBERT L. GREENLEE, INDIVIDUALLY AND IN HIS CAPACITY AS MEMBER OF THE SCHOOL BOARD OF DIRECTORS OF THE JEFFERSON-MORGAN SCHOOL DISTRICT; ELLEN HILDEBRAND, INDIVIDUALLY AND IN HER CAPACITY AS MEMBER OF THE SCHOOL BOARD OF DIRECTORS OF THE JEFFERSON-MORGAN SCHOOL DISTRICT; FRANK BURICH, INDIVIDUALLY AND HIS CAPACITY AS MEMBER OF THE SCHOOL BOARD OF DIRECTORS OF THE JEFFERSON-MORGAN SCHOOL DISTRICT; DONNA BROWN, INDIVIDUALLY AND IN HER CAPACITY AS MEMBER OF THE SCHOOL BOARD OF DIRECTORS OF THE JEFFERSON-MORGAN SCHOOL DISTRICT, DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

This matter is before the Court on Defendants' Motion for Summary Judgment. (Docket No. 20). In this employment discrimination action Plaintiff, Connie L. Palfrey ("Palfrey" or "Plaintiff"), alleges that her contract as a technology administrator with Defendant Jefferson-Morgan School District was not renewed because she testified before the Pennsylvania Ethics Commission during an investigation of the District's Superintendent, Dr. Rembold, for certain ethical violations. Plaintiff has filed the following five claims: (1) First Amendment retaliation under 28 U.S.C. § 1983; (2) violations of the Pennsylvania Whistleblower Law, 43 P.S. § 1423; (3) violations of the Pennsylvania Public Official and Employee Ethics Act, 65 PA C.S.A. § 1108; (4) breach of contract; and (5) wrongful discharge. These claims have been brought against the Defendant School District and the Defendant School Board Members individually and in their official capacities as School Board Members. These members include Charles Barno, Gregory A. Niverth, Robert L. Greenlee, Ellen Hildebrand, Frank Burich, and Donna Brown (collectively "Defendant Board Members"). Based on the following, Defendants' Motion for Summary Judgment [20] is GRANTED.

II. FACTUAL BACKGROUND*fn1

A. Plaintiff's Employment History at Jefferson-Morgan

Plaintiff was first employed by Defendant Jefferson-Morgan ("Jefferson-Morgan" or "Defendant School District") as a full-time secondary math teacher and supplemental computer coordinator between1987 and1989. (Docket No. 22 at ¶¶ 1 - 3; Docket No. 28 at ¶¶ 1 - 3). In 1989, Plaintiff resigned from her position with Jefferson-Morgan when her husband was transferred to West Virginia. (Docket No. 22 at ¶ 4; Docket No. 28 at ¶ 4). However, in 1997, Plaintiff returned to Jefferson-Morgan and resumed her position as a secondary math teacher and supplemental computer coordinator with the school district. (Docket No. 22 at ¶ 5; Docket No. 28 at ¶ 5). During the time period while the Plaintiff was not employed with the school, Jefferson-Morgan changed the description of the computer coordinator position to an administrative, non-bargaining unit full time position, titled "Technology Administrator." (Docket No. 22 at ¶ 6; Docket No. 28 at ¶ 6).

In April of 1999, Jefferson-Morgan entered into a three-year employment agreement with Plaintiff, which was subsequently amended on September 20, 1999. (Docket No. 22 at ¶ 7; Docket No. 28 at ¶ 7). Thereafter, on August 4, 2002, Plaintiff's first contract as a Technology Administrator expired. (Docket No. 22 at ¶ 8; Docket No. 28 at ¶ 8). The following day, Plaintiff's second three-year contract as Technology Administrator became effective. (Docket No. 22 at ¶ 9; Docket No. 28 at ¶ 9). Plaintiff was one of three district employees who had a separate employment contract. (Docket No. 22 at ¶ 10; Docket No. 28 at ¶ 10).

The terms of the contract provided that "[s]ubject to the terms and conditions of this agreement, [Jefferson-Morgan School] District does hereby employ [Plaintiff] in the capacity of the District's Technology Administrator for a term of three (3) years beginning August 5, 2002 and ending August 4, 2005." (Docket No. 23-2 at 48-49). Pursuant to the contract, Plaintiff's duties as Technology Administrator included "implementation of the District's technology plan, the installation and maintenance of the District's computer systems" as well as "[a]naly[ing] and monitor[ing] on a daily basis the proper functioning of the District's computer systems" and "tak[ing] corrective action, as necessary, by performing certain tasks or by making recommendations to the Superintendent for a change in the operation of said systems," any duties set forth in the job description of the Technology Administrator, see docket no. 31-2 at 35-36, and any "other duties as required by the Superintendent." (Docket No. 23-2 at 49-50).

The terms of the contract also set forth provisions that required the Superintendent to conduct an annual assessment to evaluate Plaintiff's performance, discuss and establish goals for the upcoming school year and alter the duties of the Technology Administrator, if necessary. (Docket No. 23-2 at 50). The contract could be amended or terminated by mutual written agreement of the parties after sixty days written notice to the other party, or Plaintiff could be terminated for any reason set forth in the Pennsylvania Public School Code of 1949 (the "Code"), 24 P.S. § 1-101, et seq.*fn2 (Docket No. 23-2 at 52). Lastly, subsection 6(k) of the contract provided that "[i]f the District does not renew this agreement at the end of the term, [Plaintiff] shall have the opportunity to 'bump back' into a professional position." (Docket No. 23-2 at 52).

B. Defendant Rembold's Employment History at Jefferson-Morgan and the Pennsylvania Ethics Commission Investigation of His Conduct

On September 21, 2001, Defendant Rembold became the Superintendent of the Jefferson-Morgan School District. (Docket No. 22 at ¶ 13; Docket No. 28 at ¶ 13). When he was hired, Defendant Rembold informed the Jefferson-Morgan School Board that he was under investigation by the Pennsylvania Ethics Commission concerning a matter related to his prior employment as Superintendent of the West Greene School District. (Docket No. 22 at ¶¶ 14-15; Docket No. 28 at ¶¶ 14-15). The Ethics Commission investigation of Defendant Rembold was publicized in the newspaper and was common knowledge in the community. (Docket No. 22 at ¶ 16-17; Docket No. 28 at ¶¶ 16-17). In fact, Defendant Rembold openly discussed the investigation with others in the district. Id.

The Pennsylvania Ethics Commission notified Defendant Rembold on March 2, 2005 that he was under investigation for activities with the Greene County Industrial Development Authority. (Docket No. 22 at ¶ 29; Docket No. 28 at ¶ 29). During the investigation, the Ethics Commission interviewed various employees from Jefferson-Morgan as well as members of the school board. (Docket No. 22 at ¶ 30; Docket No. 28 at ¶ 30).

On March 21, 2005, the Jefferson-Morgan School Board accepted Rembold's retirement, effective as of August 21, 2005. (Docket No. 22 at ¶¶ 18-19; Docket No. 28 at ¶¶ 18-19). Defendant Rembold's schedule was later reduced due to personal health reasons from April 1 to June 5, 2005. (Docket No. 22 at ¶¶ 26-27; Docket No. 28 at ¶¶ 26-27). Between June 5, 2005 until his retirement in August, Defendant Rembold only went to Jefferson-Morgan once for one-half day to clean out his office. (Docket No. 22 at ¶ 28; Docket No. 28 at ¶ 28).

C. Plaintiff's Contact With and Testimony Before the Ethics Commission

Plaintiff first had contact with the Ethics Commission in March of 2005 after she learned that one of her colleagues, Cody Haiden, had been asked by the Ethics Commission to provide information. After a discussion with Haiden, Defendant alleges that Plaintiff contacted the Ethics Commission and offered to deliver a computer hard drive for the investigation. (Docket No. 22 at ¶ 31). Plaintiff, however, contends that she did not offer the hard drive, but rather, that she was told to do so. (Docket No. 28 at ¶ 31). Then, sometime at the end of May of 2005, Plaintiff testified before the Ethics Commission regarding Defendant Rembold. (Docket No. 22 at ¶ 32; Docket No. 28 at ¶ 32). The record does not indicate a specific date of such testimony, but Plaintiff stated at her deposition that it was at the end of May. (Docket No. 30-2, Palfrey Deposition at 48). The content of Plaintiff's testimony was not divulged by the Ethics Commission and, at her deposition, Plaintiff stated that her subordinates, Adam Swinchock and Cody Kuhns, knew that she had testified, but that they would not have known the content of her testimony. Id.

D. Allegations by Defendant Rembold at the May 2005 School Board Meeting

Defendant Rembold appeared at the May 2005 School Board Meeting and informed the School Board that a document was taken from his office. (Docket No. 22 at ¶ 20; Docket No. 28 at ¶ 20). School Board Member Pochron testified that Defendant Rembold told the School Board that his office had been broken into, records were missing, documents were sent to the Ethics Commission and later added that Plaintiff was the only other person to have access to his office. (Docket No. 28 at ¶ 20). School Board Member Starostanko had the impression that, based on his comments, Defendant Rembold was accusing Plaintiff of taking the documents and forwarding them to the Ethics Commission. (Docket No. 29 at ¶ 60; Docket No. 32 at ¶ 60). Defendant Rembold, however, testified that he believed it was maintenance employee Bob Willis ("Willis") who had broken into his office. (Docket No. 22 at ¶ 22; Docket No. 28 at ¶ 22). Plaintiff believes that Defendant Rembold accused her of breaking into his office because Willis and Pochron both testified that Defendant Rembold accused Plaintiff of breaking into his office. (Docket No. 22 at ¶¶ 20-21; Docket No. 28 at ¶¶ 20-21). Pochron also testified that Defendant Rembold's comments at the May 2005 meeting were the first time that he had indicated that he was not satisfied with Plaintiff's performance or did not want to renew her contract. (Docket No. 29 at ¶ 67). Defendants, however, dispute that Defendant Rembold did not want to renew Plaintiff's contract, as he testified that he felt that her contract should be renewed. (Docket No. 32 at ¶ 67).

E. June 2005 Contact Between Plaintiff and Defendants and the Executive Session/School Board Meeting

On June 2, 2005, Plaintiff received a form letter from the Defendant School District stamped with Defendant Rembold's signature. (Docket No. 22 at ¶ 45; Docket No. 28 at ¶ 45). That letter stated the following: "Please be advised that your contract with Jefferson-Morgan School District is being amended and will be available for your review/approval upon completion. If you have any questions, please contact my office at extension 212." (Docket No. 31-3 at 34). Secretary Linda King testified that she typed the letter pursuant to Defendant Barno's direction. (Docket No. 29 at ¶ 71; Docket No. 32 at ¶ 71). King further testified that immediately after the letter was typed, Barno told her to get the letter to Plaintiff quickly so that she would not worry as the School Board just needed time to review her contract. (Docket No. 29 at ¶¶ 72-73; Docket No. 32 at ¶¶ 72-73).

Plaintiff also asked Defendant Rembold about her contract and was assured that the contract would be renewed. (Docket No. 29 at ¶ 74; Docket No. 32 at ¶ 74). During the second week of June, Defendant Barno and Plaintiff discussed her contract and Plaintiff testified that Barno told her that there were some compensation issues to be worked out and that the School Board planned to renew her contract. (Docket No. 29 at ¶¶ 75-76; Docket No. 32 at ¶¶ 75-76).

Thereafter, on June 22, 2005, the Jefferson-Morgan school board held an executive session during a routine board meeting. (Docket No. 22 at ¶ 34; Docket No. 28 at ¶ 34). Defendant Rembold could not attend because he was in the hospital. (Docket No. 22 at ¶ 35; Docket No. 28 at ¶ 35). During this session, the School Board voted against renewing the Plaintiff's contract. (Docket No. 22 at ¶¶ 36-37; Docket No. 28 at ¶¶ 36-37). The executive session was the first time that the School Board had discussed Plaintiff's performance or whether her contract would be renewed. (Docket No. 29 at ¶¶ 80-81; Docket No. 32 at ¶¶ 80-81). At the meeting, Defendant Greenlee polled the Board Members and either four or five members were not in favor of renewing Plaintiff's contract, identifying Defendants Barno, Burich, Hildebrand and Niverth. (Docket No. 29 at ¶¶ 84-86; Docket No. 32 at ¶¶ 84-86).

Defendant Barno testified that he was not in favor of retaining Plaintiff and that only two members voted in her favor. (Docket No. 29 at ¶¶ 87, 89; Docket No. 32 at ¶¶ 87, 89). Defendant Burich voted against retaining Plaintiff. (Docket No. 29 at ¶ 90; Docket No. 32 at ¶ 90). Board Members Starostanko and Pochron were in favor of retaining Plaintiff. (Docket No. 29 at ¶ 96; Docket No. 32 at ¶ 96). Pochron questioned the Board Members as to why the contract was not renewed and was not provided an answer by the Board Members. (Docket No. 29 at ¶¶ 107-108; Docket No. 32 at ¶¶ 107-108). Starostanko did not attend the June board meeting and was not aware that Plaintiff's contract was discussed at the meeting until he attended the July board meeting. (Docket No. 29 at ¶¶ 97, 98; Docket No. 32 at ¶¶ 97, 98). At their depositions, Defendants Burich, Brown, Greenlee, and Hildebrand and Board Member Pochron could not explain the apparent change between the June 2 letter and the decision to not renew Plaintiff's contract on June 22.

(Docket No. 29 at ¶¶ 110-114; Docket No. 32 at ¶¶ 110-114). After the executive session, the Board directed the Solicitor to inform Plaintiff that her contract was not being renewed. (Docket No. 29 at ¶ 104; Docket No. 32 at ¶ 104).

F. Defendants' Knowledge of Plaintiff's Testimony

Defendants maintain that as of June 22, 2005, Defendant Rembold and the Jefferson-Morgan Board Members were unaware that Plaintiff had testified before the Ethics Commission. (Docket No. 22 at ¶¶ 33, 38). Plaintiff disputes the inference that Defendant Rembold and the Defendant Board Members were not aware of any of Plaintiff's contacts with the Ethics Commission because Defendant Rembold had accused Plaintiff of breaking into his office and forwarding documents to the Ethics Commission, as testified by maintenance employee, Bob Willis, and School Board Member, Mark Pochron. (Docket No. 28 at ¶ 33, 38).

Plaintiff also testified that Cody Kuhns told her that he and Adam Swinchock had talked to Defendant Burich about her involvement with the Ethics Commission. (Docket No. 28 at ¶ 39; Docket No. 29 at ¶¶ 53-54). While Plaintiff admitted that she has no proof that this information was forwarded to the remainder of the Board Members, she "surmised" that Defendant Burich would have told this to the Board. (Docket No. 22 at ¶¶ 40-41; Docket No. 28 at ¶¶ 40-41). Both Swinchock and Burich deny discussing Plaintiff's involvement with the Ethics Commission. (Docket No. 22 at ¶¶ 42-43; Docket No. 28 at ¶¶ 42-43). Defendant Burich further denies that he relayed this information to the remainder of the Board. (Docket No. 22 at ¶ 44; Docket No. 28 at ¶ 44).

After his office was broken into, Defendant Rembold asked Willis to change the locks on his office doors. (Docket No. 29 at ¶ 57; Docket No. 32 at ¶ 57). Willis testified that these comments made by Defendant Rembold to him led him to believe that he was accusing Plaintiff of breaking into his office, stealing documents and forwarding them to the Ethics Commission. (Docket No. 31-3, Deposition of Robert Willis at 17-27). Defendant Rembold denies that he made such an allegation. (Docket No. 29 at ¶ 57; Docket No. 32 at ¶ 57). Defendant Rembold also had a private conversation with Defendant Hildebrand in which he told her that his office was broken into and that things were missing. (Docket No. 29 at ¶ 62; Docket No. 32 at ¶ 62).

G. Plaintiff is Notified of the Non-Renewal of Her Employment Contract

In a letter dated June 27, 2005, the School Board informed Plaintiff that her contract was not being renewed. (Docket No. 22 at ¶ 46; Docket No. 28 at ¶ 46). Thereafter, Plaintiff testified that she attempted to get an explanation as to why her contract was not renewed. Plaintiff testified that after receiving the letter, she asked School District Solicitor DeHaas and Defendant Greenlee for a reason why her contract was not renewed and both told her that they could not give her a reason. (Docket No. 29 at ¶¶ 251-254; Docket No. 32 at ¶¶ 251-254). She also asked Starostanko, who told her that he was not able to get a reason from the Board as well. (Docket No. 29 at ¶¶ 256-257; Docket No. 32 at ¶¶ 256-257). In an affidavit submitted by Plaintiff dated November 19, 2007, Plaintiff states that she asked Pochron for a reason why her contract was not renewed and that he told her that he did not know but that the whole Board was aware of her involvement with the Ethics Commission. (Docket No. 29 at ¶¶ 258-259; Docket No. 32 at ¶¶ 258-259).

H. July 2005 Executive Session and School Board Meeting and Defendants' Reasons for Non-Renewal of Plaintiff's Employment Contract

At the July 2005 executive session, the Board was not polled regarding Plaintiff's contract. (Docket No. 29 at ¶ 120; Docket No. 32 at ¶ 120). Subsequently, at the immediately following July 2005 school board meeting, the School Board voted to advertise the Technology Administrator position, effectively terminating her. (Docket No. 22 at ¶ 47; Docket No. 28 at ¶ 47); (Docket No. 29 at ¶ 119; Docket No. 32 at ¶ 119). Plaintiff questioned the Board Members at the public meeting as to why her contract was not renewed and she was not given an explanation. (Docket No. 29 at ¶¶ 260-261; Docket No. 32 at ¶¶ 260-261).

In its Answers to Interrogatories, the Defendant School District gave the following reasons for not renewing Plaintiff's contract: "(a.) inaccurate budgetary reports and/or requests; (b.) poor performance; (c.) poor attitude; and (d.) failure to address staff concerns in a timely fashion." (Docket No. 29 at ¶ 122; Docket No. 32 at ¶ 122). Defendant School District further answered that each Board Member acted as an individual Board Member on a Board which consisted of nine members. (Docket No. 29 at ¶ 128; Docket No. 32 at ¶ 128). As of August 4, 2005, the following were members of Defendant School Board: Charles Barno, Donna Brown, Frank Burich, Robert Greenlee, Ellen Hildebrand, and Gregory Niverth and Board Members, Mark Pochron, Mark Starostanko and Mark Grimes, who are not defendants in this matter. (Docket No. 29 at ¶ 6; Docket No. 32 at ¶ 6). Eight of the nine Board Members were present at the June 2005 Board Meeting at which time the decision was made to not renew Plaintiff's contract. (Docket No. 29 at ¶ 129; Docket No. 32 at ¶ 129).

Each Board Member that voted against renewing Plaintiff's contract answered interrogatories and/or testified as to their reasons. Defendant Barno cited problems with the District's website, Plaintiff's disinterest in working with the technology committee and suggestions by Plaintiff that the District purchase a T3 line and $60,000 worth of computers. (Docket No. 29 at ¶ 130; Docket No. 32 at ¶ 130). Defendant Brown testified that she did not want to renew the contract because of a rumor that Plaintiff was having an affair with a School District employee and complaints that things were not getting done. (Docket No. 29 at ¶ 150; Docket No. 32 at ¶ 150). Defendant Burich testified that he was against renewing Plaintiff's contract because she was spending too much money and he had heard complaints from teachers about computers not getting fixed as well as problems with Plaintiff's attitude. (Docket No. 29 at ¶¶ 154, 157; Docket No. 32 at ¶¶ 154, 157). Defendant Greenlee asserted the following reasons for his decision against renewing Plaintiff's contract: "(1) personalty conflicts with board members; (2) unprofessional in regard to demeanor; (3) teacher complaints;" and (4) that Defendant Barno had told him that Plaintiff's budget reporting was not accurate. (Docket No. 29 at ¶¶ 174, 176, 180-181; Docket No. 32 at ¶¶ 174, 176, 180-181).

Defendant Hildebrand offered the following reasons for her decision to not renew Plaintiff's contract in her Answers to Interrogatories: "(a) complaints about lab equipment not working and taking forever to get fixed; (b) complaints about new equipment getting installed in a timely manner; (c) lack of confidence in her computer knowledge and recommendations; (d) poor network availability; and (e) general overall poor performance." (Docket No. 29 at ¶¶ 188-189; Docket No. 32 at ¶¶ 188-189). Defendant Niverth was also not in favor of retaining Plaintiff and testified that his reasons for such decision were his receipt of three complaints from teachers regarding broken computer equipment, his doubt that some of the computer funds requested by Plaintiff were necessary, work orders taking a long time to be completed and labs being unusable. (Docket No. 29 at ¶¶ 210-211; Docket No. 32 at ¶¶ 210-211).

Board Member Mark Pochron was against the decision to not renew Plaintiff's contract and disagreed with the reasons given by his fellow Board Members for their decisions as unwarranted criticisms. (Docket No. 29 at ¶¶ 224-235; Docket No. 32 at ¶¶ 224-235). Board Member Starostanko also opposed the decision to not renew Plaintiff's contract. (Docket No. 29 at ¶ 239; Docket No. 32 at ¶ 239). He testified regarding the School District's reasons for not renewing Plaintiff's contract, stating that no Board Member had ever told him of the following: problems with Plaintiff's performance or attitude; problems with Plaintiff's competence; or relayed to him any complaints from third parties about Plaintiff's performance. (Docket No. 29 at ¶¶ 242, 244-246; Docket No. 32 at ¶ 242, 244-246). Starostanko also offered that he questioned the Board Members regarding why Plaintiff's contract was not renewed and in response the Board stated generally that everything that she had done was wrong, citing only the website as an example. (Docket No. 29 at ¶¶ 240-241; Docket No. 32 at ¶¶ 240-241).

I. The Expiration of Plaintiff's Employment Contract

On August 4, 2005, Plaintiff's contract with Jefferson-Morgan expired and she was not offered a bargaining unit position with the Defendant School District. (Docket No. 22 at ¶¶ 48-49). The parties have differing interpretations of the bump back provision at subsection 6(k). That section provides that Plaintiff "shall have the opportunity to bump back into a professional employee position if her employment agreement is not renewed at the end of the term." (Docket No. 29 at ¶ 262; Docket No. 32 at ¶ 262). Defendants maintain that Plaintiff was not offered another position within the District because she was not qualified and/or certified for any positions that were open within the District and that there were no positions held by someone with less seniority than Plaintiff. (Docket No. 22 at ¶ 49). Plaintiff meanwhile testified that she interprets the bump back provision as obligating the School District to return her to a bargaining unit position in the event that her contract was not renewed. (Docket No. 29 at ¶ 268; Docket No. 32 at ¶ 268). Her interpretation is that the provision was a promise by the School District to place her in a position as a result of any of the following: her bumping someone out of a job if she had more seniority, filling an open position, or if the School District created a position for her. (Docket No. 29 at ¶¶ 269-270; Docket No. 32 at ¶¶ 269-270). Plaintiff was ultimately replaced as Technology Administrator by her former subordinate, Adam Swinchok. (Docket No. 29 at ¶ 286; Docket No. 32 at ¶ 286).

J. Defendant Rembold Convicted of Ethics Violations

Finally, in an October 2006 decision, the Pennsylvania Ethics Commission determined that Defendant Rembold had violated the Ethics Act. (Docket No. 29 at ¶ 45; Docket No. 32 at ¶ 45). The matter was settled with Defendant Rembold agreeing to pay the Commonwealth $14,000 and that he would not hold public office or public employment. (Docket No. 29 at ¶ 45; Docket No. 32 at ¶ 45). Defendant Hildebrand testified that she had written Defendant Rembold a letter of recommendation in connection with his criminal sentencing. (Docket No. 29 at ¶ 209; Docket No. 32 at ¶ 209).

III. PROCEDURAL HISTORY

Plaintiff filed the instant action against Defendants Jefferson-Morgan School District and Dr. Charles Rembold on October 13, 2006. (Docket No. 1). On the same date, Plaintiff filed an Amended Complaint to include in the action Defendants Charles Barno, Gregory A. Niverth, Robert L. Greenlee, Ellen Hildebrand, Frank Burich, Donna Brown, Jefferson-Morgan School District and Dr. Charles Rembold. (Docket No. 3). On December 13, 2006, Defendants filed their Answer and Affirmative Defenses to Plaintiff's Amended Complaint. (Docket No. 6). Thereafter, the parties filed a joint motion for extension of time to complete discovery (Docket No. 17), which was granted by the Court on June 19, 2007 (Docket No. 18). Defendants filed the pending motion for summary judgment on September 28, 2007 (Docket No. 20), including a brief in support (Docket No. 21), concise statement of material facts (Docket No. 22) and corresponding appendices (Docket No. 23).

After twice receiving leave of Court for extensions of the time in which she was required to respond, Plaintiff filed her brief in opposition (Docket No. 27), response to Defendants' concise statement of material facts (Docket No. 28), Plaintiff's own concise statement of material facts (Docket No. 29) and corresponding appendices (Docket Nos. 30 and 31) on November 19, 2007. Defendants then filed their response to Plaintiff's concise statement of material facts on December 4, 2007. (Docket No. 32). As the motion is fully briefed, it is now ripe for disposition.

IV. STANDARD OF REVIEW

Summary judgment may only be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Pursuant to Rule 56, the Court must enter summary judgment against the party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In evaluating the evidence, the court must interpret facts in the light most favorable to the non-moving party, and draw all reasonable inferences in her favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). Initially, the burden is on the moving party to demonstrate that the evidence in the record creates no genuine issue of material fact. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). While the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the admissible evidence in the record would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322-323. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. The non-moving party "must point to actual evidence in the record on which a jury could decide an issue of fact its way." El v. Southeastern Pennsylvania Transp. Authority (SEPTA), 479 F.3d 232, 238 (3d. Cir. 2007) (citing Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.2006) ("In this respect, summary judgment is essentially 'put up or shut up' time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.")). "Specious objections will not, of course, defeat a motion for summary judgment, but real questions about credibility, gaps in the evidence, and doubts as to the sufficiency of the movant's proof, will." Id.

V. DISCUSSION

In their Motion for Summary Judgment, Defendants maintain that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law regarding each of Plaintiff's claims: (1) First Amendment retaliation pursuant to 28 U.S.C. § 1983, (2) violations of the Pennsylvania Whistleblower Law, 43 P.S. § 1423; (3) violations of the Pennsylvania Public Official and Employee Ethics Act, 65 PA C.S. § 1108; (4) breach of contract; and (5) wrongful discharge. (See Docket No. 21). In response, Plaintiff withdrew her claim under the Pennsylvania Whistleblower Law but argues that summary judgment against her is not warranted as she has presented sufficient evidence to establish that genuine issues of material fact exist as to her remaining claims. (See Docket No. 28). The Court now turns to the parties' arguments in support of and against the Defendants' Motion for Summary Judgment.

A. First Amendment Retaliation Claim

Defendants first argue that Plaintiff's First Amendment retaliation claim must fail as Plaintiff has not adduced sufficient evidence that "the exercise of her First Amendment Rights was a substantial or motivating factor in causing a complaint of harm." (Docket No. 21 at 3). Specifically, Defendants contend that Plaintiff has produced no evidence that any of the Defendants had knowledge of Plaintiff's testimony before the Pennsylvania Ethics Commission prior to discussing the non-renewal of her contract and that Plaintiff's reliance on the temporal proximity of the testimony to the non-renewal of her contract fails as a matter of law. (Docket No. 21 at 3-4). Plaintiff, however, maintains that sufficient facts have been produced as to both the knowledge and causation elements to defeat the Defendants' summary judgment motion. (Docket No. 27 ).

The First Amendment to the United States Constitution safeguards the right to free speech. U.S. CONST. AMEND. 1. The provisions of the First Amendment bind state actors by way of incorporation through the Due Process Clause of the Fourteenth Amendment. See Locke v. Davey, 540 U.S. 712, 718 (2004).

To prevail on her claim of First Amendment retaliation, Plaintiff must prove the following. First, she must show that her conduct was constitutionally protected, i.e., that she was exercising rights protected by the First Amendment of the United States Constitution. Ambrose v. Township of Robinson, Pa. 303 F.3d 488, 493 (3d Cir. 2002) (citing Bd. of County Comm'rs. v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996)). Second, she must show that her claimed "protected activity was a substantial or motivating factor in the alleged retaliatory action." Id. The burden then shifts to Defendants who "may defeat the [P]laintiff's case by showing that [they] would have taken the same action even in the absence of the protected conduct." Id.; see also Hill v. City of Scranton, 411 F.3d 118, 127 (3d Cir. 2005).

Here, Defendants do not contest that Plaintiff's testimony before or conversations with the Ethics Commission constituted constitutionally protected speech (see Docket No. 21 at 6), and the Court will assume for the purposes of this opinion that the Plaintiff has made a sufficient showing that her conversations/testimony constituted protected speech under the First Amendment.*fn3 Defendants also do not maintain that the status of the Defendants as individuals, board members or a school district requires the Court to analyze the causation element challenged here under a different standard or that such status is grounds for dismissal from this action.

1. Knowledge of Protected Conduct

In their motion for summary judgment, Defendants permit the Court to assume for purposes of their motion that the Plaintiff's "conversations with the Ethics Commission (whether or not they were instituted by Palfrey [ ]) were protected speech." (Docket No. 21 at 6). Defendants maintain that Plaintiff has not met her burden to prove that the Plaintiff's protected speech was a substantial or motivating factor in the decision to not renew her employment contract. Id. Specifically, Defendants argue that Plaintiff has presented no evidence that the Defendants had knowledge that Plaintiff had engaged in protected speech, i.e., that they knew that she had given testimony to (or engaged in conversations with) the Ethics Commission. Id. Plaintiff argues that she has presented sufficient evidence to create a genuine issue of material fact as to the Defendants' knowledge of her testimony before and "involvement" with the Ethics Commission and thus, defeat Defendants' motion for summary judgment. (Docket No. 27 at 7).

As previously stated, Plaintiff bears the burden to prove that her claimed "protected activity was a substantial or motivating factor in the alleged retaliatory action"of the Defendants in this matter. Ambrose, 303 F.3d at 493. Plaintiff also has the burden to prove that Defendants had knowledge of Plaintiff's claimed protected activity as the United States Court of Appeals for the Third Circuit has held that "[i]t is only intuitive that for protected conduct to be a substantial or motivating factor in a decision, the decisionmakers must be aware of the protected conduct." Id. (citation omitted). Plaintiff's Amended Complaint alleges a claim of First Amendment retaliation pursuant to 42 U.S.C. § 1983 against the Defendants and avers that:

36. Ms. Palfrey's testimony before the Ethics Commission constituted 'protected activity' under the First Amendment.

37. In June 2005, Defendant Rembold and the Board of School Directors became aware that Palfrey had testified before the Ethics Commission.

38. Ms. Palfrey's testimony before the Ethics Commission regarding Defendant Rembold was a substantial or motivating factor in the Board's decision not to renew her employment contract.

(Docket No. 3 at ¶¶ 36-38). Plaintiff is bound by these averments and in order to proceed to trial on her claim, she must present sufficient evidence at this stage that Defendants had knowledge of her testimony before the Ethics Commission or conversations with the Ethics Commission, as conceded by Defendants in their motion. See Baranowski v. Waters, et al., Civil Action No. 05-1379, 2008 WL 728366, at *23 (W.D.Pa. March 18, 2008)(citing Parilla v. IAP Worldwide Services, VI, Inc., 368 F.3d 269, 275 (3d Cir. 2004)). The Court further recognizes that while the burden to prove knowledge rests with Plaintiff, that generally "when the moving party 'exclusively' controls 'the knowledge of the events or occurrences on which the action is based' an issue of credibility is presented." Keefer v. Durkos, Civil Action No. 3:04-187, 2006 WL 2773247, at *14 (W.D.Pa. September 25, 2006) (citing 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE, § 2726 (3d ed.1998)).

Defendants' argument relies on the decision by the United States Court of Appeals for the Third Circuit in Ambrose v. Township of Robinson, to which the Court now turns. The facts of Ambrose are as follows. The plaintiff was a police sergeant who brought a First Amendment retaliation claim against the defendant township alleging that he was suspended as a result of his submitting an affidavit in support of a fellow officer's lawsuit against the township. Id. at 490. The evidence at trial established that the officer had signed the affidavit on May 13, 1999 and that the affidavit had been supplied to the township's counsel and its solicitor within a 371 page document production on June 17, 1999. Id. at 493-494. The township commissioners all denied knowing of the existence of the affidavit prior to voting to suspend the officer on July 12, 1999. Id. at 493. The Court of Appeals found that although the denials by the commissioners were not dispositive of the issue of knowledge, that the officer had the burden of proof on that issue and his claim failed because of the lack of any other evidence that the commissioners had knowledge of the affidavit. Id. The Court of Appeals also held that the knowledge of the township's counsel and its solicitor could not be imputed to the ultimate decision-makers, the voting commissioners, to sustain the officer's First Amendment retaliation claim and that temporal proximity between the protected activity and the retaliatory action were not sufficient to sustain such a claim without the plaintiff first proving knowledge by the defendants of the protected activity. Id. at 494.

After concluding that the plaintiff had failed to demonstrate that the defendant had knowledge that plaintiff filed the affidavit at issue, the Court of Appeals addressed whether the district court erred in finding that causation was present based on the "perceived support" by the plaintiff of his fellow officer. Id. at 495. The evidence of record indicated that the defendants suspected that the plaintiff had entered administrative offices after hours, stole documents and then forwarded the documents to his fellow officer for use in his lawsuit against the township. Id. at 495-496. The plaintiff denied that he had entered the offices for this purpose and testified that he only entered to use a copier. Id. at 496. The Court of Appeals agreed with the district court which had held that "unauthorized entry into closed administrative offices for the purpose of copying records is not activity protected by the First Amendment" and found that because there was no evidence that the defendants had knowledge of the claimed protected speech, that the plaintiff could not maintain a First Amendment retaliation claim. Id.

Several district courts have analyzed the requirement set forth in Ambrose, that a plaintiff must present evidence of a defendant's knowledge of the plaintiff's claimed protected activity in support of a claim that such protected activity was a substantial or motivating factor in the adverse employment action taken against the plaintiff. See Johnson v. Community College of Allegheny County, et al., Civil Action No. 05-0867, 2008 WL 2746714, at *48 (W.D.Pa. July 10, 2008)(granting defendants' motion for summary judgment on First Amendment retaliation claim as plaintiff did not adduce sufficient evidence that defendants had knowledge that she was a member of the Black Caucus or that she engaged in protected activity related to her membership in such organization); see also Uhl v. County of Allegheny, et. al, Civil Action No. 06-01028, 2008 WL 2858412 (W.D.Pa. July 22, 2008)(granting summary judgment in favor of defendants on plaintiff's First Amendment retaliation claim on grounds that plaintiff's alleged protected activity, the filing of a complaint, was confidential in nature and that plaintiff did not present any evidence to show that defendants had knowledge of the claimed protected activity); but see Perett v. Harmar Township, Civil Action No. 07-563, 2008 WL 3457014 (W.D.Pa. August 8, 2008)(denying a motion for summary judgment as the district court found that plaintiff had presented enough evidence to permit a reasonable inference that defendants had knowledge of plaintiff's claimed protected activity). These district court decisions as well as the Court of Appeals decision in Ambrose demonstrate that it is proper for the Court to analyze the evidence presented by Plaintiff in support of her argument that Defendants had knowledge of the Plaintiff's claimed protected activity in this matter.

Another decision which presents facts analogous to those of the case at bar is Keefer v. Durkos, 2006 WL 2773247, at *14 (W.D.Pa. September 25, 2006). In Keefer, the district court granted summary judgment in favor of defendants and dismissed the plaintiff's First Amendment retaliation claim because the plaintiff did not produce evidence of knowledge by defendants of the plaintiff's alleged protected activity. Id. at *17. The plaintiff in Keefer was the secretary of the school board who alleged that she was fired for filing an ethics complaint against one of the school board members. Id. at *1. The district court found that while the defendants were aware that an ethics complaint had been filed against the board member and that an investigation of the board member was ongoing, that the plaintiff did not produce any evidence that the board members had knowledge that it was the plaintiff who had initiated the ethics complaint. Id. at *15. In support of her contention that defendants had knowledge, the plaintiff testified that the board members had knowledge of her complaint based on the following: the board members had knowledge of the overall investigation; the board members must have known about the ethics complaint because everyone talked in the small town; and, that it was common knowledge that the plaintiff worked for an attorney who had requested the production of certain documents from the board member being investigated. Id. at *13. The district court rejected this argument and held that the "[p]laintiff's only manner of linking her speech to the [d]efendants' alleged knowledge of the speech is through an inference based upon speculation, and this cannot create a genuine issue of material fact." Id. at *17. As the plaintiff had failed to present sufficient evidence of the defendants' knowledge, the Court granted summary judgment in favor of defendants and dismissed the plaintiff's First Amendment retaliation claim. Id.

In light of the decision by the Court of Appeals in Ambrose and the district court decisions interpreting the requirement that a plaintiff present evidence of the defendants' knowledge at the summary judgment stage, the Court now turns to the evidence produced by Plaintiff in this matter to determine if the same is sufficient to create a genuine issue of material fact on the issue of Defendants' knowledge.

The facts viewed in the light most favorable to the Plaintiff and resolving all reasonable, non-speculative inferences in her favor establish the following. Plaintiff was employed as a technology administrator by the Defendant School District under a three year employment contract for a term starting August 5, 2002 and ending August 4, 2005. (Docket No. 23-2 at 48-49). Dr. Rembold, the Superintendent of Defendant School District, and also an individual defendant in this matter, was being investigated by the Pennsylvania Ethics Commission during this time. (Docket No. 22 at ¶¶ 14-17; Docket No. 28 at ¶¶ 14-17). Plaintiff testified before the Ethics Commission in May of 2005, but the substance of her testimony is confidential and not known except that the record reflects that it may have involved the delivery of a computer hard drive from Dr. Rembold's office at Jefferson-Morgan to the Ethics Commission. (Docket No. 30-2, Palfrey Deposition at 48). A series of events occurred at the May 22, 2005 executive session of the School Board which are at issue and discussed in greater detail below.

Plaintiff received a letter dated June 2, 2005 from the School District, under the signature of Dr. Rembold, which stated the following: "Please be advised that your contract with Jefferson-Morgan School District is being amended and will be available for your review/approval upon completion. If you have any questions, please contact my office at extension 212." (Docket No. 31-3 at 34). The School Board then voted to not renew Plaintiff's employment contract at an executive session on June 22, 2005. (Docket No. 29 at ¶¶ 80-81; Docket No. 32 at ¶¶ 80-81). Thereafter, the Solicitor sent Plaintiff a letter dated June 27, 2005 which informed her that her contract would not be renewed. (See Docket No. 23-2 at 36). At the July 2005 meeting of the School Board, the members voted to advertise the Technology Administrator position to the public. (Docket No. 22 at ¶ 47; Docket No. 28 at ¶ 47). Plaintiff's employment contract was not renewed and thus expired on August 4, 2005. She was also not offered a professional employee position and as of that date she was no longer employed by the Defendant School District.

Plaintiff claims that disputed issues of material fact exist as to the issue of whether Dr. Rembold and the voting School Board Members had knowledge of her testimony before the Ethics Commission prior to the School Board making the decision to not renew her contract in June of 2005. (See Docket No. 27). Plaintiff relies on the following to establish the Defendants' knowledge: (a) Plaintiff's testimony as to Dr. Rembold's knowledge; (b) Plaintiff's testimony as to Board Member Frank Burich's knowledge; (c) statements at the May 22, 2005 executive session of the school board to the board members by Dr. Rembold; and (d) the School Board Members' knowledge as imputed by Dr. Rembold's knowledge. The Court will discuss each, in turn.

a. Plaintiff's Evidence of Superintendent Dr. Rembold's Knowledge from Conversations with Plaintiff's Subordinates

Plaintiff argues that Defendant Rembold had knowledge of Plaintiff's testimony before the Ethics Commission. Plaintiff supports such assertion with her own testimony that relies on out-of-court statements by non-parties to this action, including Linda McCracken as well as Plaintiff's subordinates, Adam Swichock and Cody Kuhns. Defendant Rembold denies that he knew that Plaintiff testified before the Commission. (Docket No. 22 at ¶ 33 (citing Rembold Deposition at 96)). Plaintiff offered the following testimony at her deposition.

Q: When did you testify [before the Ethics Commission]?

A: I believe it was in the end of May in 2005. I believe. I'm not ...


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