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Romano v. Philadelphia School District

May 26, 2009

MICHAEL ROMANO
v.
PHILADELPHIA SCHOOL DISTRICT AND MICHELLE BURNS



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

MEMORANDUM

Defendants the Philadelphia School District (the "School District") and Michelle Burns, the Principal of Tilden Middle School ("Tilden"), have filed a Motion for Summary Judgment in this action in which Plaintiff asserts a § 1983 retaliation claim, and a claim under the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat. §§ 1421-1428, based on discipline he suffered as a school nurse at Tilden after he voiced concern that Tilden was not complying with its statutory duties to report in-school acts of violence. For the following reasons, we deny the Motion.

I. BACKGROUND

In October of 2000, the School District hired Plaintiff as a school nurse and assigned him to be the primary nurse at Tilden. (Pl. Dep. at 183:9-13; 183:19-184:2.) One of Plaintiff's responsibilities as a nurse was to complete various medical screenings of students, including growth, vision and hearing screenings, and screenings for scoliosis. (Pl. Dep. at 88:24-89:16.) The undisputed record evidence shows that Plaintiff did not complete all of the required medical screenings for either the 2003-2004 school year or the 2004-2005 school year. (Pl. Dep. at 137:22-138:6.)

At the beginning of the 2005-2006 school year, Defendant Michelle Burns took over as principal of Tilden. (Burns Dep. at 8:7-17.) During that year, Plaintiff worked full-time at Tilden, and he was assisted by three part-time nursing assistants. (Jackson Dep. at 24:8-26:17; Pl. Dep. at 235:21 - 236:2.) Plaintiff's only screening responsibility was to screen 5th grade students. (Pl. Dep. at 236:12-24.) Nevertheless, he did not complete those 5th grade screenings. (Id. at 237:11-12.)

In the course of the 2005-2006 school year, Plaintiff had a series of performance-related issues. Principal Burns criticized Plaintiff during the school year for not respecting the School District's internet policy and held a conference with Plaintiff to discuss this issue. (Id. at 273:16-274:2.) Also, on December 7, 2005, Burns sent a Memorandum to Plaintiff, advising him that a conference had been scheduled to "discuss some concerns with regards to [his] disregard to follow established procedures and some other concerns regarding [his] professionalism with regards to the health room." (Ex. D-12.) At the conference, which was held on January 11, 2006, Burns specifically addressed Plaintiff's (1) refusal to follow the Assistant Principal's directive to treat a student who had been in a fight on December 2, 2005, and who had "numerous marks and blood over her face;" and (2) disregard of the "established chain of command with regards to reporting incidents that take place at Tilden . . . ." (Ex. D-13; Pl. Dep. at 266:11-267:9.) Following the conference, which Plaintiff attended with his union representative, Plaintiff consulted with legal counsel because he considered the assertion that he had refused to follow a directive to be "a grave allegation." (Id. at 265:12-18; 268:7-269:10.)

Also during the 2005-2006 school year, Assistant Principal Lola Marie Davis-O'Rourke, who was Plaintiff's direct supervisor, Principal Burns, and Student Health Coordinator Sandra Jackson met with the three Tilden nursing assistants and Plaintiff,*fn1 at a nursing assistant's request.

(Jackson Dep. at 37:5-38:4; 40:8-13.) At that meeting, the nursing assistants expressed concern that they were being required to do a lot of work that Plaintiff should have been doing -- namely, treating sick students and reviewing records of transfer students -- and that, as a result, they were unable to complete their own screening responsibilities. (Id. at 41:3-43:1.) At the end of the school year, over one hundred hearing screenings remained uncompleted, and Jackson therefore directed Plaintiff to finish those screenings in September of the following school year.*fn2 (Pl. Dep. at 237:14-18; 239:5-14; 306:4-16; Jackson Dep. at 85:4-12.) At the same time, in spite of Plaintiff's various performance issues, Principal Burns gave Plaintiff a year-end "Satisfactory" rating. (Pl. Ex. 34.)

In the 2006-2007 school year, Tilden was reorganized so that its enrollment decreased from 1200 students to 578 students. (Burns Dep. at 17:8-21.) Plaintiff was the only nursing professional assigned to the school for that academic year, i.e., in contrast to the prior year, no part-time nursing assistants were assigned to assist him. (See Pl. Dep. at 247:18-23.) During the first half of the 2006-2007 school year, Plaintiff was again notified of certain concerns regarding his performance at Tilden. On October 30, 2006, Burns sent Plaintiff a "Conference Notice," scheduling a meeting "to discuss [Plaintiff's] failure to notify administration . . . [that he] would not be returning to work from [his] lunch on Monday, October 23, 2006." (Ex. D-16.) Five weeks later, on December 6, 2006, Burns sent Plaintiff another memo, advising him that, as of the date of the memo, Plaintiff had "failed to comply with the state mandates regarding immunizations of students who are out of compliance," and directing him to "have the first immunization notification letters completed for all students who are out of compliance" by December 8, 2006. (Ex. D-17.)

On March 22, 2007, Plaintiff sent an email to Principal Burns, stating, in relevant part, as follows:

In view of the recent media spotlight on violence in schools, I am concerned (as I am sure that you are) that all staff at Tilden be knowledgeable concerning record keeping, disclosure, and protocols relating to acts of violence at our school.

Although I have been here seven years, I have not been provided with any law enforcement protocols or memorandum of understanding which sets forth procedures to be followed when an incident involving an act of violence or possession of a weapon by any person occurs on Tilden school property. Do we have any such protocols or memorandum of understanding? I think we should. Please provide them to me and other staff promptly, so that we can be sure to properly handle these situations according to protocols relating to acts of violence at our school.

Also, do we keep records or surveys of the number of incidents involving acts of violence at Tilden? . . . . If we do keep any such records, I assume they are public information and I would like to review these records for the past five years.

Similarly, do we keep records or surveys of all cases involving possession of a weapon by any person on Tilden property? I would like to review these records for the past five years.

From a healthcare standpoint, I also have concerns about the number of drug and alcohol possession and usage cases at the school. Do we keep records of such incidents? If so, I would like to review these records for the past five years. * * * Please provide me a written response within one week if possible.

Thank you. (Pl. Ex. 7.) Burns replied that the information Plaintiff sought was available either in the Student Code of Conduct or on the School District website. (See Pl. Ex. 8 at 1.) On March 28, 2007, Plaintiff sent an email to James Golden, the Chief Safety Executive for the School District, advising Golden of the correspondence with Burns and explaining that he had not been able to find the requested information in the locations that Burns had identified. (Id.; Golden Dep. at 7:19-23.) Given his inability to find the information, Plaintiff asked Golden whether Tilden was, in fact, in compliance with 24 Pa. Cons. Stat. § 13-1303-A, which requires the public to have access to information regarding acts of violence at a school. (Pl. Ex. 8 at 1-2.) Plaintiff requested that Golden advise him within one week as to "how the public can have easy access to" certain specified information regarding violence incidents at Tilden and the reporting of such incidents. (Pl. Ex. 8 at 2-3.)

On March 30, 2007, Plaintiff sent an email to Lola Marie Davis-O'Rourke, whom he had also copied on his email to Golden. (See id. at 1.) In that email, he noted both that he had not yet received the information that he had requested in his March 22 and March 28 emails, and that he and his attorney had been unable to locate the information on the School District web site. (Id. at 4.) He therefore asked her to "[k]indly indicate exactly where on the Phila. School District web site the requested information . . . is located. (Id. at 4 (emphasis in original).) According to Davis-O'Rourke, she received this email twice and, after the second email, she responded that Plaintiff could find the information he sought on the School District Web site page and further explained "how to navigate through" the Web site page. (Davis-O'Rourke Dep. at 115:3-17.)

On April 10, 2007, Plaintiff met with Jackson and Davis-O'Rourke "due to his numerous e-mails requesting . . . assistance in completing his screenings,"*fn3 and Jackson's determination that he had, in fact, not finished or completed a great number of screenings. (Davis-O'Rourke Dep. at 88:1-4; Jackson Dep. at 103:12-104:9; 107:9-13.) At the meeting, Jackson raised a number of issues regarding Plaintiff's conduct. (Davis-O'Rourke Dep. at 90:5-9.) First, she alerted him that he should stop using personal "codes" in his nursing notes because other people needed to be able to read the notes to see what treatments he was giving to students. (Id. at 90:11-91:4.) Second, Jackson discussed with him an incident involving an incomplete Section 504 form for a student.*fn4 (Id. at 93:6-17.) Third, she raised his request for more assistance with screenings. (Id. at 93:20-94:2.) Together, they came up with an "action plan" to assist Plaintiff in making some headway on his screenings, which called for the health office to be closed to students on Wednesday, Thursday and Friday of that week, so that Plaintiff could spend (a) Wednesday completing 13 hearing screenings that were left over from the prior school year, (b) Thursday finishing up notes that he needed to put into the computer, and (c) Friday doing 8th grade vision screenings. (Davis-O'Rourke Dep. at 100:13-101:13.) At the conclusion of the meeting, Davis-O'Rourke told ...


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