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Stengle v. Office of Dispute Resolution

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


April 27, 2009

LISA J. STENGLE, PLAINTIFF,
v.
OFFICE OF DISPUTE RESOLUTION, ET AL, DEFENDANTS.

The opinion of the court was delivered by: Judge John E. Jones III

MEMORANDUM

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.

PROCEDURAL HISTORY

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.

STANDARD OF REVIEW

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 2006, Smith forwarded an email from a child advocate and school district counsel, both of whom were trying to have Stengle recuse herself because of their concerns about her impartiality.

(Rec. Doc. 89 ¶ 56).*fn18

Faced with numerous emails expressing doubts over Plaintiff's ability to remain impartial in her duties as a hearing officer, Defendant Smith sought legal advice. Smith consulted Ed Titterton ("Titterton"), an attorney who provided consulting services to ODR,*fn19 and Robert Frankhouser ("Frankhouser"), an attorney from IU-13. (Id. ¶ 58, 60).*fn20 Smith's specific concerns involved whether it was appropriate for a hearing officer who was required to be impartial to advocate issues of least restrictive environment in a blog when those same issues came before her. (Id. ¶ 59).

Frankhouser was tasked with: (I) determining if Stengle's blog posts were appropriate given her responsibilities as a hearing officer; (II) advising on the decision of whether to renew Plaintiff's hearing officer contract; and (III) to advise on how remove Plaintiff from that position. (See id. ¶ 61, 62). Frankhouser's initial impression of the blog can be characterized as one of shock; he was "surprised that a hearing officer who heard due process cases involving districts and parents and disabled kids would engage in that kind of advocacy." Frankhouser Dep. 15:14-21, July 3, 2008.*fn21 Frankhouser's legal opinion was that Stengle's contract should be "non-renewed." (Rec. Doc. 89 ¶ 64).*fn22 Defendant Smith ultimately followed Frankhouser's advice when, on June 2, 2006, she sent Plaintiff a letter*fn23 notifying Plaintiff that her contract as a hearing officer was non-renewed. (Id. Ex. W).*fn24

The letter set forth three reasons*fn25 for the decision to non-renew: (I) Plaintiff's blog constituted "advocacy ," which ultimately compromised her ability to serve as an impartial hearing officer; (II) in refusing to recuse herself in one matter and using intemperate and inappropriate language in denying the recusal motion; and (III) Plaintiff failed to comply with timeliness requirements in rendering her opinions.*fn26 (See id.). It is noteworthy that, since 2002, Smith has not renewed the contracts of four additional hearing officers. (Rec. Doc. 91 ¶ 40).*fn27

Prior to sending this letter, and on the advice from counsel, Smith informed the other PDE Defendants of the decision to non-renew Stengle's contract. (Rec. Doc. 89, Ex. W; Frankhouser Dep. 38).*fn28 Defendant Helling replied with an email, stating, "I'm glad you and the IU are doing the right thing. I thought the termination letter was very well done. This may be difficult and I wish you all the best as this matter proceeds." (Rec. Doc. 89 Ex. Y). Additionally, Defendant Castlebuono, issued a letter to PDE personnel apprising them of ODR's decision to non-renew Stengle's contract. (Id. Ex. AA). In this letter, Castlebuono insinuates that although ODR and PDE are separate entities, given Stengle's husband's active involvement in the special education world, the decision to non-renew her contract could precipitate serious political consequences for PDE. (Id.).*fn29

DISCUSSION

As a preliminary matter we note that the PDE Defendants take issue with the responses Plaintiff has given to their statement of undisputed facts. In particular, PDE Defendants claim that paragraphs to which Plaintiff responded by raising a hearsay objection should be admitted as true. In the Third Circuit, "hearsay statements can be considered on a motion for summary judgment if they are capable of admission at trial." Shelton v. Univ. of Med. & Dentistry of New Jersey, 223 F.3d 220, 223 (3d Cir. 2000) (citations omitted). The statements at issue involve conversations between individuals who have already been deposed in this case. Accordingly, there is no reason to believe that the declarant will not be able to testify regarding the alleged hearsay statement at trial. Therefore, we elect to consider these statement as we dispose of the instant Motion.

PDE Defendants also take issue with Plaintiff's allegedly improper denials to statements of fact. As they note, it is not the Court's task to wade through improper denials and legal argument in search for a genuine issue of material fact. U.S. v. Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008) (quoting U.S. v. Dunkel, 927 F/2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs"). Accordingly, all denials unaccompanied by a citation to the record shall be deemed admitted.

Further, PDE Defendants argue that improper citations to the record should be discounted and their corresponding statements of facts admitted as true. Although such action is technically within our discretion, we will decline the invitation to do so. The miscitations are not so numerous as to burden the Court and we can understand how these mistakes can occur when citing to a record as voluminous as the one sub judice. Where these miscitations have occurred, the Court has made a good faith effort to locate the proper record evidence in support of denial. If we have found this evidence, we have considered it in our resolution of the instant matter where relevant. If we were unsuccessful in locating the proper evidence after a diligent effort to do so, we have considered the statement of fact corresponding the to miscited evidence admitted.*fn30

Having resolved these preliminary matters, we proceed to the substance of this case. To recapitulate, Plaintiff has lodged the following counts and allegations in her Second Amended Complaint: (I) violations of the First and Fourteenth Amendments pursuant § 1983, asserted against ODR; (II) violations of the First and Fourteenth Amendments pursuant to § 1983, asserted against Smith in her individual capacity; (III) conspiracy to violate First and Fourteenth Amendment rights pursuant to § 1983, asserted against Smith, Tierney, Tommasini, Castlebuono, Helling, Fullerton, and Rhen; (IV) violations of § 504 of the Rehabilitation Act of 1973, asserted against ODR, PDE, LLIU, Smith, and Rhen; (V) violation of Pennsylvania's Whistleblower Law, 43 Pa. C.S. §§ 1422-1428, asserted against ODR and Smith; and (VI) violations of the First and Fourteenth Amendments pursuant to § 1983, asserted against LLIU. Accordingly, the ODR Motion involves all six counts of the Second Amended Complaint, while the PDE Motion only addresses counts III and IV. We will address these claims seriatim.

A. THE ODR MOTION*fn31

I. Count I-- First and Fourteenth Amendment Violations Against Defendant ODR

At the outset, we note that Plaintiff appears to utilize the Fourteenth Amendment not as an independent cause of action, but as a mechanism to enforce the First Amendment against state actors. Therefore, our analysis of substantive law shall be confined to Plaintiff's First Amendment claim.

The First Amendment to the United States Constitution states, in pertinent part, "Congress shall make no law . . . abridging the freedom of speech." U.S. CONST. amend I. At bottom, Plaintiff asserts a First Amendment retaliation claim, essentially claiming that her free speech was abridged in retaliation for operating her blog. The Third Circuit has announced a three-part test that is to be used in analyzing such claims. First, "the employee must demonstrate that his/her speech is protected, that is, it [was spoken as a citizen and] addresses a matter of public concern and the 'employee's interest in the speech outweighs' the employer's countervailing interest 'in promoting workplace efficiency and avoiding workplace disruption.'"*fn32 Reilly v. City of Atlantic City, 532 F.3d 216, 224 (3d Cir. 2008) (quoting Springer v. Henry, 435 F.2d 268, 275 (3d Cir. 2006)). Second, the employee bears the burden of proving "that his/her speech was 'a substantial or motivating factor' in the retaliatory action against him/her." Reilly, 532 F.3d at 224 (citing Springer, 435 F.2d at 275)). If satisfied, the burden then shifts to the employer, who must "prove that the 'allegedly retaliatory action would have been taken absent the protected [speech].'" Reilly, 532 F.3d at 224 (citing Springer, 435 F.2d at 275)). As we shall see, Plaintiff ultimately fails the first prong of this test. See infra p. 26.

ODR Defendants argue that Plaintiff's speech, as contained on her blog, occurred within the ambit of her official duties as an impartial hearing officer. In supporting this contention, ODR Defendants note that we must examine the "content, form, and context of [the] statement[s], as revealed by the whole record." Hill, 455 F.3d at 243 (quoting Ranking v. MacPherson, 483 U.S. 378, 384 (1987)). Accordingly, ODR Defendants contend that Plaintiff has conceded that: (I) her blog was an extension of her membership on the Gaskin Panel; (II) her blog addressed topics that were before her as a hearing officer; and (III) she relied upon her experience as a hearing officer in writing the blog and addressing special education issues contained therein. However, Plaintiff has adduced evidence supporting her contention that her conduct on the blog was an ultra vires act. First, she notes that the "preface" of her blog states, "This journal is intended to share information about inclusion and the implementation of the Gaskin Settlement Agreement from the perspective of on parent of a class member and to provide a means to share information with other class members. Interested others are welcome to participate as well." (Rec. Doc. 109, Ex 29) (emphasis added). Further, Plaintiff contends that nowhere in her hearing officer contract was she obliged to publicly express her opinions on inclusion or the Gaskin Agreement.*fn33

In light of these contentions, we believe that the Plaintiff has adduced evidence from which a reasonable jury could conclude that she was not maintaining her blog in her official capacity as a hearing officer. Merely incorporating knowledge gleaned from her experience as a hearing officer into an independently created, maintained, and operated blog does not necessarily render her actions within the scope of her official duties. We believe Plaintiff has satisfied her burden in this regard and we will therefore proceed with the First Amendment analysis.

ODR Defendants concede that Plaintiff's speech was a matter of public concern, (Rec. Doc. 94 p. 10), and so we consider whether Plaintiff's interest in her speech outweighs ODR's interest in promoting workplace efficiency and avoiding workplace disruption. In the case sub judice, the Plaintiff's interest is obviously in exercising her right to free speech. The government's interest is in ensuring that impartial due process is afforded those seeking resolution of special education issues.

It is clearly established law that "[m]aintaining the appearance of impartiality of the judiciary is an interest of vital importance." Kirchgessner v. Wilentz, 884 F. Supp. 901, 912 (D.N.J. 1995) (citing U.S. Civil Serv. Comm'n v. Nat'l Assoc. of Letter Carriers, 413 U.S. 548, 564 (1973). In Civil Serv. Comm'n, the Supreme Court of the United States stated, "[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also crucial that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent." Civil Serv. Comm'n, 413 U.S. at 565 (emphasis added) (addressing issues of impartiality in the executive branch). As a colleague in our Circuit has noted, "[W]hen weighing the competing interests between a public employer's need to have wide discretion in running an efficient operation and the speech and associational rights of its employees, the judiciary has greater concerns of maintaining its impartiality both in appearance and in fact than other branches of government." Kirchgessner, 884 F. Supp at 912 (Lechner, J.).

Although the aforementioned sentiments were made in regard to Article III judges, "the role of the [administrative law judge], the impartial officer designated to hear a case, is similar to that of an Article III judge." Tennessee Student Assist. Corp. v. Hood, 541 U.S. 440, 457 (2004) (quoting Federal Maritime Comm'n v. South Carolina State Ports Auth., 535 U.S. 743, 758 (2002)). Further, our Circuit has recognized that the role of a federal hearing officer or an administrative law judge is "functionally comparable" to that of an Article III judge. See Figueroa v. Blackburn, 208 F.3d 435, 441 (quoting Butz v. Economou, 438 U.S. 478, 513 (1978)). We believe that the analogy drawn in Butz and adopted in Figueroa applies with equal force to the instant matter.*fn34 Accordingly, we can easily conclude that the maintenance of Plaintiff's impartiality, and appearance thereof, was crucial to the effective operation of the hearing officer system. However, this conclusion does not end our inquiry, as we must balance this crucial government interest against Plaintiff's interest in exercising her free speech rights.

The Free Speech Clause of the First Amendment is a pillar of our American system of governance. It is the vehicle through which dissenting, minority opinions challenge the status quo. The Free Speech Clause affords the public the opportunity to assess the merits of the dissenting opinion, to examine the majoritarian view in light thereof, and to adapt, revise, or refine the status quo accordingly. This, in turn, produces societal progress, as it ensures that antiquated ideas and beliefs fade from the popular consciousness. However, the right to free speech is not absolute, as there are times when countervailing interests outweigh it. We are cognizant that the Supreme Court has recently articulated on such instance; "[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively." Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

Cognizant of this precedent, Plaintiff contends that her conduct did not prevent the ODR from operating efficiently and effectively. Plaintiff notes that the ODR Defendants base their disruption argument on two claims: (I) Plaintiff's refusal to recuse herself in a single case; and (II) numerous complaints involving concerns about Plaintiff's impartiality. Plaintiff proceeds to claim that the case in which she refused to recuse herself was appealed on numerous grounds, only one of which was her ostensible bias. Accordingly, she asserts that her blogging activity did not produce additional work for the ODR because the case would have been appealed even if her blog did not exist. Plaintiff further contends that a multitude of the "numerous complaints" regarding her alleged bias were either mistakenly lodged against her or were lodged because the complainant wanted the hearing officer to contravene the law and knew that Plaintiff would not do so.*fn35

Put bluntly, Plaintiff's arguments miss the mark. The Supreme Court has stated that in order to pass constitutional muster, restrictions on free speech must be "directed at speech that has some potential to affect the entities' operations." Garcetti, 547 U.S. at 421 (emphasis added). Accordingly, the government need not point to actual disruptiveness in order for its conduct to be rendered constitutional. See id. Plaintiff's contentions only address actual incidents of alleged disruptiveness, meaning that even if we accept her views concerning these incidents, it would not necessarily render ODR Defendants' conduct unconstitutional. In order to do so, Plaintiff would be obliged to show that the conduct in question, her blogging activities, had no potential to disrupt government operations. The facts of this case belie this possibility.

Regardless of whether Stengle's blog activity qualified as "advocacy," her conduct in that regard had the potential to raise questions as to her impartiality and indeed did just that. Plaintiff acknowledges that two attorneys, Andrew Faust of Sweet Stevens and Anne Hendricks of Levin Legal Group, stated that they intended to file formal recusal motions because they questioned Plaintiff's ability to be impartial in light of her blog entries. (See Rec. Doc. 109 p. 15). While those attorneys never filed the contemplated motions, that fact does not alter the essential inference to be drawn from this factual array. Again, actual disruptiveness need not occur; ODR Defendants need only target potential disruptiveness. From these facts, one can readily infer that Plaintiff's blog had the potential to induce recusal motions from those who came before her in her hearing officer capacity. If such a motion were to be filed, either one of two things could happen. Plaintiff could recuse herself, or she could elect to deny the motion and hear the case to its conclusion. In either instance, governmental efficiency would be adversely affected.

If Plaintiff denied the motion and retained the case, the losing party could appeal the decision on due process grounds, alleging that it was denied an impartial adjudication of its rights. See Everett v. Marcase, 426 F. Supp. 397, 401 (standing for the proposition that a hearing officer's lack of impartiality gives rise to a due process claim). This would entail additional governmental resources being dedicated to the appeal, which would clog dockets and ultimately reduce governmental efficiency. On the other hand, if Plaintiff chose to grant the motion and recuse herself, the case would be transferred to another hearing officer, which would not only serve to delay resolution of the case, but also to clog the docket of the newly assigned hearing officer, thereby reducing his or her ability to efficiently dispose of his or her load. Accordingly, it is easy to see that an increased number of recusal motions would severely hamper the government's ability to efficiently and effectively resolve special education issues. Since Plaintiff's blog had the potential to induce such motions, and since the blog was easily accessible to anyone with an internet connection, it is our determination that said blog posed a legitimate threat to the efficient operation of the due process system at issue. Accordingly, we conclude that Plaintiff's free speech rights could be constitutionally abridged under the extant circumstances, and she has thus not suffered a deprivation of those rights as afforded under the First Amendment. Consequently, we will grant the ODR Motion to this extent.

II. Count II-- First and Fourteenth Amendment Violations Against Defendant Smith (individually)

The above analysis applies equally to Plaintiff's free speech claim against Defendant Smith. Simply stated, Plaintiff did not suffer a deprivation of her First Amendment rights. Even if she had, we believe that the doctrine of qualified immunity would protect Defendant Smith.

Qualified immunity protects government officials performing discretionary functions so long as their conduct does not violate established constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Plaintiff must adduce specific allegations or evidence as to the allegedly violative conduct of Smith in order to avoid the vesting of qualified immunity. See Good v. Dauphin Soc. Servs., 891 F.2d 1087, 1092, 1096-97 (3d Cir. 1990). Essentially, we must determine whether there was a constitutional violation and whether there was good reason for Smith to know her actions were unconstitutional. Wilkie v. Robbins, 127 S.Ct. 2588, 2617 (2007) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)); see also Pearson v. Callahan, ____ S.Ct. _____, 2009 WL 128768 (2009) (modifying Saucier to the extent that courts need not first determine whether facts alleged or shown by plaintiff make out violation of constitutional right).

As recounted above, First Amendment retaliation cases require courts to engage in the three part balancing test articulated in Reilly and Springer. As such, there is no "bright-line" rule in this particular area of law. Even if Defendant Smith's actions were unconstitutional, which we believe they were not, absent such a rule, she had no way of knowing they were unconstitutional. To the contrary, we believe that given the importance of hearing officer impartiality and the threat to Plaintiff's impartiality posed by Plaintiff's blog, Smith reasonably believed that her actions were constitutional, insofar as they preserved the impartiality of the due process system at issue in this case. Plaintiff has provided no case law challenging anything that undergirds this conclusion. Consequently, even if Plaintiff had suffered an unconstitutional abridgment of her First Amendment rights, which again we firmly believe she did not, Defendant Smith would be cloaked with qualified immunity as to that claim. Accordingly, the ODR Motion will be granted to this extent, as it relates to Defendant Smith.

III. Count III--Conspiracy to Violate the First and Fourteenth Amendments Against Defendant Smith

Plaintiff's conspiracy claim, as contained in Count III of the Second Amended Complaint, is based in 42 U.S.C. § 1983, not 42 U.S.C. § 1985. In order to maintain a § 1983 conspiracy claim, Plaintiff "must plead with particularity the 'circumstances' of the alleged wrong doing in order to place the defendants on notice of the precise misconduct with which they are charged. Only allegations of conspiracy which are particularized, such as those addressing (1) the period of the conspiracy, (2) the object of the conspiracy, and (3) certain actions of the alleged conspirators taken to achieve that purpose, will be deemed sufficient." Labalokie v. Capital Area Intermediate Unit, 926 F. Supp. 503, 508-09 (M.D. Pa. 1996) (citations omitted). However, before addressing these issues, as a threshold matter in all § 1983 claims, Plaintiff must aver that Defendant Smith deprived her of her constitutional rights while acting under color of state law. See Carter v. City of Philadelphia, 989 F.2d 117, 119 (3d Cir. 1993). We have already concluded that Plaintiff's First Amendment rights were not unconstitutionally abridged. Therefore, she cannot maintain a § 1983 claim of conspiracy to violate her First Amendment rights. Accordingly, we will grant the ODR Motion in this regard as it relates to Defendant Smith.

IV. Count IV--Rehabilitation Act Violations Against Defendants

ODR, LLIU, and Smith § 504 of the Rehabilitation Act ("RA") bars "both federal agencies and private entities that receive federal funding from discriminating on the basis of disability . . . ." Freed v. CONRAIL, 201 F.3d 188, 191 (3d Cir. 2000). Plaintiff's Rehabilitation Act claim, as memorialized in Count IV of the Second Amended Complaint, is a retaliation claim. The anti-retaliation provision of the RA states, in relevant part, "No recipient or other person [of Federal financial assistance] shall intimidate, threaten, coerce, or discriminate against any individual . . . because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part." 34 C.F.R. § 100.7(e). Essentially, Plaintiff's claim seems to be that her hearing officer contract was non-renewed as a result of her criticism of the ODR's failure to fully implement the Gaskin Settlement (specifically involving concerns over least restrictive environment and inclusion), which was manifested in her blog and through her statements at the initial Gaskin Panel meeting in December 2006.

Retaliation claims under § 504 of the RA and the American with Disabilities Act are analyzed identically. See Derrick F. V. Red Lion Sch. Dist., 586 F. Supp. 2d, 282, 300 (M.D. Pa. 2008) (Rambo, J.). Accordingly, the instant claim is subject to the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), although both parties appear to have ignored the applicability of this case to the instant matter. Under the McDonnell schema, the initial burden is on the plaintiff to satisfy the elements of a prima facie case of retaliation. Shaner v. Synthes, 204 F.3d 494, 499 (3d Cir. 2000). In doing this, the plaintiff must show: "(1) that she engaged in protected activity, and the retaliator knew of the involvement; (2) adverse action was taken by the defendant either during or after the protected activity that was sufficient to deter a person of ordinary firmness from engaging in protected activity; and (3) a causal connection between the protected activity and the adverse action." Id. at 499. If a plaintiff establishes her prima facie case, the burden of production shifts to the defendant to advance a legitimate, non-retaliatory reason for the adverse action. Id. at 500. If the defendant is successful in this endeavor, the burden of production shifts back to the plaintiff to identify sufficient evidence for a fact finder to conclude that the defendant's legitimate, non-retaliatory reason is pretextual. Id. at 501. However, the "defendant may defeat the claim of retaliation by showing that it would have taken the same action even if the plaintiff had not engaged in the protected activity." Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

As Plaintiff notes, the RA was ratified in order to, inter alia, "achieve equality of opportunity, full inclusion, and integration in society, employment, independent living, and economic and social self-sufficiency, for [disabled] individuals." 29 U.S.C. § 701 (emphasis added). In spite of this, ODR Defendants urge that Stengle's criticisms of the incomplete implementation of the Gaskin Agreement, which addressed issues of inclusion, was not a "protected activity" because it did not constitute "advocacy."

We find this contention both ironic and inconsistent, since ODR Defendants based their argument for dismissal of Plaintiff's First Amendment claim on the assertion that these statements did in fact constitute advocacy. Regardless, within the employment context, "making complaints to management [and] writing critical letters to customers" are acceptable forms of advocacy. Isler v. Keystone Sch. Dist., 2008 WL 3540603 (W.D. Pa. 2008) (quoting Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2nd Cir 1990)). We believe that Plaintiff's "pointing out of problems" with the implementation of § 504 and the Gaskin Settlement at the first Gaskin Panel training session is similar to "complaining to management," since LLIU members were present at that session. Further, we consider her blog activity analogous to "writing critical letters to customers" since the blog was read by those who had special interests in special education (i.e., the "customers" of the ODR and LLIU). "A plaintiff alleging a claim of retaliation need not demonstrate that the conduct he or she opposed was actually a violation of the law, so long as he or she possessed a reasonable, good faith belief that the underlying actions of the employer actually violated the law." Isler at * 9 (citing Aman v. Cort Rental Furniture Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (discussing a prima facie case of discrimination under Title VII, which, as seen in Derrick F., 586 F. Supp. 2d at 299, requires the same showing as a prima facie case of discrimination under the RA)). There is nothing in the record to case doubt upon Plaintiff's candor in expressing her concerns.

Accordingly, we are of the opinion that Stengle was in fact engaged in "protected activity." We believe that the ODR Defendants were aware of this activity because: (I) LLIU employees were present at the initial Gaskin Panel training session;*fn36 and (II) Defendant Smith, who ran the ODR, was unequivocally aware of the statements contained in Plaintiff's blog. Consequently, Plaintiff has established the first prong of her prima facie case.

As for the second prong, Plaintiff has established that after her criticism, her contract as a hearing officer was non-renewed. Further, we believe that the threat of such action is certainly sufficient to dissuade a reasonable person from engaging in criticism. However, in order to conclude that Plaintiff has established the second prong of her prima facie case, we must find that the ODR Defendants played a role in the adverse action. Defendant Smith has admitted that she was the individual who determined that Plaintiff's contract as a hearing officer would be non-renewed. Smith was an employee of ODR and LLIU 13.*fn37 Therefore, Plaintiff has satisfied the second prong of her prima facie case, meaning that we will proceed to the third prong.

"To establish the requisite causal connection a plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link. In the absence of that evidence the plaintiff must show that from the 'evidence gleaned from the record as a whole' the trier of fact should infer causation." Lauren W., 480 F.3d at 267 (internal citations and quotations omitted). Plaintiff has adduced a multitude of evidence indicating that Defendant Smith was concerned about the content of her blog and the inferences that could be drawn therefrom. In fact, Plaintiff's blog activities were cited as one of the reasons for her non-renewal. Accordingly, in light of this explicit statement, we conclude that Plaintiff has satisfied the third prong of her prima facie and has therefore carried her burden with regard thereto.*fn38 This, then, shifts the burden of production to ODR Defendants.

ODR Defendants have articulated non-discriminatory reasons for Plaintiff's non-renewal. First and foremost, ODR Defendants claims that Plaintiff was not non-renewed because of the mere fact that she maintained a blog or even because she criticized or "bashed" the ODR on that blog; rather, they claim that she was non-renewed because the content of the blog caused members of the public, some of whom were parties in cases she heard as hearing officer, to question her impartiality, which ultimately inhibited the effective administration of the hearing officer system. Further, ODR Defendants claim that there are two additional non-retaliatory reasons for her non-renewal articulated in her non-renewal letter--(I) her refusal to recuse herself in one matter and her use of intemperate and inappropriate language in denying the recusal motion, and; (II) her failure to comply with timeliness requirements. This satisfies ODR Defendants' burden and shifts the onus back to Plaintiff to prove pretext. As we will describe below, Plaintiff has failed to carry this burden.

Simply put, Plaintiff has failed to adduce any evidence that calls into question the legitimacy of ODR Defendants first non-retaliatory reason, the perceived compromise of her impartiality occasioned by her blog. Plaintiff has not produced any evidence from which a reasonable jury could infer that she was non-renewed merely because she maintained the blog or because of the fact that she criticized ODR in it. As aforestated, it was the deleterious effect the blog had on ODR's efficiency, as well as on Plaintiff's need to present herself as an unbiased hearing officer, that ultimately caused her non-renewal. There is absolutely no indication in the record evidence that the concerns regarding her impartiality were subterfuge for retaliatory animus. To the contrary, ODR received innumerable complaints from the public regarding her perceived bias on certain issues, and these perceptions eventually seeped into her work environment, as parties began to file recusal motions to remove her as the hearing officer in certain cases.*fn39

It is apparent that Plaintiff felt that she could firewall her blogging activities so that they did not interfere with her duties as an impartial hearing officer, and we do not question her honest intentions in this regard. However, while she may have been able to maintain her impartiality in fact, the public perception was that such a feat was impossible.*fn40 And, unfortunately for Plaintiff, as is many times the case, perception became reality. No matter how many reassurances she uttered, in the minds of the public and bar there arose a fundamental conflict between Plaintiff's blogging activities and her duties as a hearing officer that could not be resolved.*fn41

This, as we have noted, presented the ODR with legitimate administrative problems that carried with them measurable consequences for the effective, efficient, and legitimate operation of the hearing officer system. Plaintiff was at least quasi-judicial, if not fully judicial, in her function, and this fact should have restrained her from engaging in unbridled blogging regarding issues that conceivably could have come before her. Accordingly, it is evident that the concerns regarding her impartiality were real and palpable and placed the ODR Defendants in an untenable situation. There is nothing in the record evidence calls this into question, we hold that the Plaintiff has not successfully rebutted ODR Defendant's non-retaliatory reason for her non-renewal. We will therefore grant the ODR Defendants' Motion insofar as it addresses Plaintiff's RA claim.

V. COUNT V--Violation of the Pennsylvania Whistleblower Law Asserted Against Defendants ODR and Smith

The germane section of the Pennsylvania Whistleblower Law ("PAWL") states, "No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment because the employee . . . makes a good faith report . . . to the employer or appropriate authority [of] an instance of wrongdoing or waste." 43 P.S. § 1423 (1986). The statute contains a definition section that addresses words integral to the proper interpretation of the statute. Among the words included in the definition section is "employee." That word is defined as "[a] person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied, for a public body." Id. § 1422. The statute proceeds to define an "employer" as "[a] person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body." Id. Defendants contend that the Plaintiff cannot maintain a cause of action under the PAWL because she is not an "employee" as defined by that statute.

Specifically, ODR Defendants contend that Plaintiff qualifies as an "independent contractor," which is a categorization that is not encompassed by the term "employee." To support this, ODR Defendants note that Plaintiff used an IRS Form 1099 to represent this status to the Internal Revenue Service during the years relevant to this lawsuit. Additionally, ODR Defendants note that Plaintiff has admitted to her status as an independent contractor her Undisputed Statement of Material Facts appurtenant to the ODR Motion. (Compare Rec. Doc. 91 ¶ 7 with Rec. Doc. 108 ¶ 7). Accordingly, we too will consider Plaintiff's status as that of an independent contractor.

With this established, ODR Defendants point to persuasive authority from the Eastern District of Pennsylvania in support of the proposition that independent contractors do not fall under the purview of "employees" for purposes of the PAWL. In Rankin v. City of Philadelphia, Judge Brody concluded that there is a viable interpretation of the PAWL under which "the 'contract of hire' language [in the definition of "employee"] . . . serves to exclude [from that definition] volunteers, independent contractors, and others who might otherwise seek to bring an action under the Whistleblower Law." Rankin v. City of Philadelphia, 963 F. Supp. 463, 470 (E.D. Pa.1997). Plaintiff's only response to this contention is to claim that ODR Defendants position is a misinterpretation of the case law. Based upon the above-quoted language, it is clear to us that ODR Defendants have not misapprehended the essence of Rankin; rather, it is the Plaintiff who distorts its holding.*fn42

Judge Brody's holding and reasoning are based on a meticulous semantic analysis of the PAWL. After a careful reading of Rankin and a thorough reflection upon the PAWL, we see nothing in the case sub judice that casts doubt upon Judge Brody's methodology or conclusions. Further, the Plaintiff has failed to provide us with any viable reason for discounting the dictates established in Rankin within the context of the case at bar. Accordingly, we find Rankin to be persuasive in our resolution of the instant matter. Consequently, we conclude that because Stengle qualifies as an "independent contractor," a designation that precludes her from being an "employee," as that term is defined in the PAWL, she cannot satisfy the definitional requirements necessary for maintaining a viable PAWL claim. Therefore, we will grant the ODR Motion to this extent.

VI. Count VI--Violation of the First and Fourteenth Amendments Against Defendant LLIU

We have already concluded that Plaintiff did not suffer an unconstitutional abridgment of her Free Speech rights. Accordingly, on this basis we will grant the ODR Motion to this extent as it relates to Defendant LLIU.

B. THE PDE MOTION

I. Count III--Conspiracy to Violation the First and Fourteenth Amendments Against Defendants Tierney, Tommasini, Castlebuono, Helling, and Rhen

As we have explained above, Plaintiff's conspiracy claim is made pursuant to § 1983. Accordingly, there must be an underlying constitutional violation in order for the PDE Defendants to be held liable for conspiracy. Since we have concluded that there was no violation of Plaintiff's Free Speech rights, PDE Defendants cannot be held liable for conspiracy to violate same. Consequently, we will grant the PDE Motion to this extent.

II. Count IV--Rehabilitation Act Violations Against Defendants PDE and Rhen (individually)

As we have stated above, Plaintiff has not adduced any evidence that indicates the non-retaliatory reason for her non-renewal, her perceived impartiality, was a pretext for retaliatory animus. Accordingly, even if Plaintiff could establish a prima facie case of retaliation against Defendants PDE and Rhen, she cannot maintain her RA claim because she cannot rebut the non-retaliatory reason for her non-renewal, as required by the burden shifting scheme announced in McDonnell Douglas. Therefore, we will grant the PDE Motion to this extent. CONCLUSION:

To reiterate, this Court fully recognizes the cherished right of free speech, as well as the commendable goals of the RA. But these cannot wash away the bona fide concerns that arise when a judicial officer elects to disseminate her opinions in cyberspace with little or no restraint. Because of her position, Plaintiff's attempts to qualify her stances as solely her own were entirely ineffectual. With particular jobs come certain precise responsibilities. In Plaintiff's case, one of these included avoiding even the appearance of bias via extra-judicial comments. Plaintiff's deep concerns about the special education issues and the resulting creation of her blog ultimately caused her to face a dilemma that she alone created. The choices she freely made thereafter led to her non-renewal, and as aforestated we do not find any of the Defendants' conduct actionable under the circumstances.

For the foregoing reasons, we will grant both the ODR Motion (Rec. Doc. 90) and PDE Motion (Rec. Doc. 88) in their entireties. An appropriate Order will enter.


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