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Bobeck v. Brownsville Area School Dist.

February 10, 2009


The opinion of the court was delivered by: McVerry, J.


Presently before the Court for disposition is the MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Defendants, Brownsville Area School District, Thomas Hisiro, Lawrence L. Golembiewski, and Gerry Grant (Document Nos. 31 and 34, respectively), and the brief in opposition filed by Plaintiff, Frank Bobeck (Document No. 47).

The issues have been fully briefed and the matter is ripe for disposition. After a careful consideration of the motion, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the Motion for Summary Judgment will be granted.


On May 26, 2006, Plaintiff, Frank Bobeck ("Plaintiff"), brought this action by the filing of Complaint against Defendants in which he claims unlawful retaliation in violation of the First Amendment of the United States Constitution. In response to a Motion to Dismiss filed by Defendants, Plaintiff filed an Amended Complaint on November 15, 2006. Defendants have filed the instant motion for summary judgment in which they argue that they are entitled to judgment as a matter of law on Plaintiff's claims because Plaintiff is unable to establish a prima facie case of unlawful retaliation. Alternatively, the individual defendants, Thomas Hisiro, Lawrence L. Golembiewski, and Gerry Grant, argue that they are each entitled to qualified immunity on all claims.


In 1993, Bobeck applied for a teaching position with the Brownsville Area School District ("School District"), but was rejected. Thereafter, he filed a lawsuit against the School District under the Veterans Preference Act, 51 Pa. C.S.A. § 7101, et seq. In 1998, following a jury trial in the Fayette County Court of Common Pleas, Bobeck prevailed on his claim, which resulted in the School District hiring Bobeck.

Bobeck commenced teaching for the School District at the start of the 1998-1999 school year and was assigned to teach Mathematics at the high school. During the 1998-1999 school year, Bobeck received a letter of reprimand from Brownsville High School Principal Herman Jackson related to various classroom management issues.

During the 2000-2001 school year, Bobeck agreed to a reassignment to teach technology, computer assisted drafting, and mechanical drawing at the high school. In October of 2001, Bobeck was transferred from his position as a high school technology teacher to a position as a middle school technology teacher. While Bobeck believed that he was involuntarily transferred, he chose not to file a grievance regarding the transfer. Shortly, after the reassignment, Bobeck learned that the middle school technology classes were to be taught in the high school auditorium.*fn2 When Bobeck realized that the assignment to teach the middle school students for 2001-2002 would require him to teach in the auditorium, he attempted to be reassigned back to the high school.

Dr. Grant*fn3 overruled Bobeck's request to return to the high school and ordered him to teach technology to the middle school students. During the first semester of the 2001-2002 school year, Bobeck taught middle school technology in the high school auditorium; during the second semester, Bobeck was assigned to teach technology in whatever classroom was available. Bobeck contends that for the classes he taught in 2001-2002, he did not have use of, nor access to, any technology-equipped classroom, nor any technology equipment or related materials or supplies.

Bobeck complained to Dr. Grant that he was not able to properly teach the technology course because he lacked an appropriately-equipped classroom and up-to-date supplies. During the fall of 2001, Bobeck also complained to his principal, Kevin Fortuna, and union representatives about the "inadequate" teaching environment.

In November 2001, in preparation for the school's annual open house, Bobeck prepared several props out of cardboard and paper and labeled them as if they were various items of technology equipment. During the open house, Bobeck remained in the classroom and met with various parents and school board members. When he was questioned about the paper and cardboard props, Bobeck explained that the props represented equipment and supplies that were being denied to the students. No disciplinary action was taken against Bobeck following his display at the open house.

In January 2002, no action had been taken by the School District to improve the teaching environment for the middle school technology classes. Bobeck, in order to have a visual record, created a 1 minute and 27 second video, in which he filmed the auditorium, the seating area, the stage, his desk area, and an arrangement of props similar to the ones he had used for the open house.

The next month, in February 2002, Bobeck attended a four-day Student Assistance Program ("SAP") training in Uniontown, PA. The attendees at the training included teachers and union officials from several school districts. Bobeck brought the video with him and on the fourth day of the training, he showed it to the attendees at the close of the training session. At the SAP conference, there had been no discussion about the School District's teaching conditions or the teaching conditions at any particular school. Bobeck also had an extra copy of the video, which he gave to a representative of the Pennsylvania State Educational Association who was in attendance at the SAP conference.

In late March 2002, Bobeck was advised that a meeting was to be scheduled with him; Dr. Grant, the Superintendent; John Joseph, the Director of Curriculum; and Debbie Suba, the Director of Pupil Services and Interim Principal; to address "administrative concerns." The meeting was held on April 3, 2002. During the meeting, the showing of the videotape at the SAP conference was discussed, as well as a number of other administrative matters, such as the failure of Bobeck to submit lesson plans, his turning in grades beyond the deadline, his discussion of personal incidents with students that were unrelated to lesson plans, his poor interpersonal relationships with staff members, and his failure to adapt instruction for special needs students. Following the meeting, Ms. Suba sent Bobeck a memorandum dated April 16, 2002, in which she stated that he would be monitored with regard to the concerns of the administration. However, no discipline in the form of a reprimand, suspension or other penalty was imposed on Bobeck following the April 3, 2002 meeting.

In a separate meeting with Dr. Grant, School Director Jim Brown, and Bobeck, Dr. Grant told Bobeck that she had heard about the video from five or six Superintendents whose staff members had seen it at the SAP conference. Dr. Grant told Bobeck that she was upset and embarrassed by the video.

Despite the April 2002 criticism over the video and other administrative concerns, Bobeck finished the school year with a satisfactory performance evaluation. Bobeck admits that to his knowledge no disciplinary action was taken against him by anyone at the School District for his showing of the videotape.

Prior to the start of the 2002-2003 school year, Dr. Thomas Hisiro was named as the new middle school principal, replacing the outgoing interim middle school principal, Debra Suba. Dr. Hisiro never mentioned to Bobeck the showing of the videotape during the previous school year or any matters specifically related to Bobeck's complaints regarding the technology department or the lack of technology equipment.

During the 2002-2003 school year, Bobeck did not teach in the high school auditorium, but rather in one of three trailers acquired by the School District for instructional purposes.

On September 25, 2002, Bobeck met with Dr. Hisiro to discuss "issues relating to his performance and interaction with staff." In particular, Dr. Hisiro discussed a confrontation that Bobeck had with the school's security officer regarding the parking area; Bobeck's "ongoing negative disposition and comments," and the concern of the Bobeck's colleagues "toward his mental health and well-being." Exhibit M.

Two days later, on September 27, 2002, Dr. Hisiro sent a memorandum to Bobeck concerning his on-going dispute with Marie Hudak, and their cross-filing of harassment claims. Bobeck was instructed to eliminate his frequent visits and presence in the High School's main office. Both Bobeck and Hudak were instructed to avoid all contact with each other.

On October 11, 2002, Bobeck attended a conference with Dr. Hisiro, and a parent of a female eighth grade student, who was also in attendance at the conference. Apparently, Bobeck had told a misbehaving male student that he would let the female student (who was overweight) sit on him so that they would have to "scrape him up afterwards." At the conference, Bobeck offered an apology to the offended female student.

In January 2003, Bobeck inadvertently showed a film*fn4 to his technology class that contained inappropriate material, such as nudity and profanity. According to Bobeck, he did not know, prior to showing the film, that it contained material unsuitable for middle school aged students. Bobeck contends that he had previously seen the film on television and thought that the film version was identical to the televised version, which had not contained any unsuitable material. Bobeck believed that the movie provided insight into technology by showing the use of computers, but he did not discuss the matter with either the Principal, any administrators or other teachers before showing the film, nor did he inquire into the film's rating before he showed it to his class.

After learning that Bobeck had shown the film to his middle school students, Bobeck was ordered to submit to a psychological evaluation and was placed on paid leave. Following the completion of his psychological evaluation, Bobeck was reinstated. During the time that Bobeck was on paid leave, he never incurred ...

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