The opinion of the court was delivered by: Judge John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS
Pending before this Court are two Motions for Summary Judgment. (Rec. Docs. 88, 90). For the reasons that follow, the Motions will be granted.
On September 27, 2006, Plaintiff Linda Stengle ("Plaintiff" or "Stengle") initiated the instant action by filing her first Complaint. (Rec. Doc. 1). On October 31, 2006, prior to any responsive pleadings, Plaintiff filed an Amended Complaint. (Rec. Doc. 12). On March 21, 2007, we issued a Memorandum and Order (Rec. Doc. 30) granting in part and denying in part a Motion to Dismiss the Amended Complaint (Rec. Doc. 21) that had been filed by two Defendants to this action, the Pennsylvania Department of Education ("PDE") and Linda O. Rhen ("Rhen").*fn1
On July 13, 2007, this Court granted Plaintiff leave to file a Second Amended Complaint. (Rec. Doc. 41). Plaintiff's Second Amended Complaint named six (6) additional Defendants.*fn2 On October 10, 2008, a Motion for Summary Judgments was filed by Defendants PDE, Helling, Castlebuono, Fullerton, Tierney, Tommasini, and Rhen (two or more referred to collectively as "PDE Defendants"). (Rec. Doc. 88) (the "PDE Motion"). On the same day, a Motion for Summary Judgment was filed on behalf of Defendants ODR, LLIU, and Smith (two or more referred to collectively as "ODR Defendants"). (Rec. Doc. 90) (the "ODR Motion"). Having been fully briefed, these Motions are ripe for disposition.
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. See id. at 325.
Rule 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. See Celotex, 477 U.S. at 322-23 (1986).
It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (citations omitted).
Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
STATEMENT OF MATERIAL FACTS
As required by the aforesaid standard of review, our factual recitation herein is based upon our viewing of the evidence, and drawing of all inferences in the light most favorable to the non-moving party, the Plaintiff.
At all times relevant to the instant action, Plaintiff Stengle was an independent contractor who entered into consecutive yearly contracts*fn3 to be an ODR special education due process hearing officer with either the LLIU 13 or LLIU 16.(See Rec. Doc. 89 ¶ 9; Rec. Doc. 91 ¶ 7).*fn4 The ODR is an office and program that is tasked with coordinating and managing the statewide special education dispute resolution system. (See Rec. Doc. 89 ¶ 15; Rec. Doc. 91 ¶ 3).*fn5
At the time in question, Defendant Smith was the Director of the ODR. Id. 4:19- 21.*fn6
Although the ODR and PDE are separate entities, they have a fiscal relationship; namely, a subunit of the latter, known as the "Bureau of Special Education," is responsible for ensuring that the Pennsylvania Training and Technical Assistance Network, of which ODR is a part, has the necessary funding to complete its programs. (Rec. Doc. 89 ¶ 18).*fn7 However, the PDE has no further oversight into ODR. (Id.). At all relevant times, Defendants Rhen, Tierney, Tommasini, Castlebuono, Helling, and Fullerton were employees of PDE.*fn8
In or about October or November 2005, Plaintiff was appointed to the Gaskin Advisory Panel (the "Gaskin Panel" or "Panel").*fn9 (Rec. Doc. 89 ¶ 21).
Plaintiff was one of two hearing officers appointed to the Panel,*fn10 which was meant to work with PDE, and specifically the Bureau of Special Education, to implement the Gaskin Settlement Agreement (the "Gaskin Agreement"). (Id. ¶ 22).The first Gaskin Panel meeting was held in mid-December 2006 and was attended by, inter alia, Plaintiff, Defendants Rhen and Fullerton, and two LLIU members. (Id. ¶ 32); Stengle Dep. 160:13-14. At this meeting, Plaintiff expressed her belief that the Gaskin Agreement should be fully implemented, pointed out perceived deficiencies in previous attempts to do so, and expressed concerns about the meeting process itself.*fn11 Although there were no verbal displays of displeasure with Plaintiff's comments, Plaintiff asserts that discontent could be inferred from Defendant Rhen's facial expressions (frowning and flushing of the face). (See id. ¶ 35).
In February 2006, Plaintiff started an internet blog in which she regularly discussed special education issues.*fn12 (Id. ¶ 41).The purpose of the blog was to "share information about inclusion and the implementation of the Gaskin Settlement Agreementfrom the perspective of one parent of a class member and to provide a means to share information with other class members." (Rec. Doc. 107 Ex. P, p. 1).*fn13 In articulating this information, Stengle relied on her experiences as a hearing officer and in the special education industry, which engendered discussions involving Gaskin issues and other legal issues with which she was confronted in her capacity as a hearing officer. (Rec. Doc. 89 ¶ 43).
In or around the spring of 2006, Defendant Fullerton became a regular reader of Plaintiff's blog. (Id. ¶ 44). Fullerton perceived the blog as "bashing" the PDE and ultimately informed Rhen and Brinkley that the blog addressed Gaskin issues. (Id. ¶ 45-46).*fn14 On April 13, 2006, Rhen wrote a letter to Plaintiff asking her to correct misinformation on her blog thatcaused confusion in the education community. (Id. ¶ 47).Concerns about the content of Plaintiff's blog were not limited to personnel inside PDE and ODR. These complaints are too numerous to recount them in their totality; however, we will memorialize several in order to highlight their content and scope.
Anne Hendricks, of the Levin Legal Group, contacted Defendant Smith and stated her opinion that, given Stengle's statements against school districts, Plaintiff was not able to maintain the impartialityrequired of a hearing officer. (Id. ¶ 50).*fn15
A parent involved in the litigation of a case that was to go before a hearing officer stated that after review of Plaintiff's blog, she did not want Plaintiff to be the hearing officer in her case because she doubted Plaintiff's ability to maintain impartiality. (Id. ¶ 53).Attorney Faust also emailed Defendant Smith regarding his concerns regarding Stengle's ability to remain impartial. (Id. ¶ Ex. S).*fn16 Scott Wolpert, a school district attorney, requested Plaintiff's recusal*fn17 from a case, citing her blog as a reason. (Rec. Doc. 91 ¶ 28(e)). Judy Gran, lead attorney for the Gaskin litigation, requested Stengle's recusal from a case because of her blog and her position on the Gaskin Panel. (Id. ¶ 28(f)). In May ...