The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Plaintiff commenced this civil rights action seeking relief for alleged violation of her First Amendment rights. Presently before the court is plaintiff's motion for preliminary injunction. A hearing was held on October 28 and 29, 2009, wherein each side presented a number of witnesses and exhibits. The parties thereafter filed supplemental briefs and proposed findings and conclusions. The matter is ripe for adjudication. For the reasons set forth below, the motion will be granted.
Requests for injunctive relief invoke the court's equitable discretion. Resolving such motions requires a delicate balance of equitable factors. Requests for injunctive relief are to be resolved on a case-by-case basis. There are four general requirements: the moving party must (1) produce evidence sufficient to convince the court that in absence of the relief requested imminent irreparable injury will result; (2) establish a likelihood of success on the merits; (3) demonstrate that granting the relief will not result in greater harm to the other party; and (4) establish that granting the relief will be in the public interest. Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1985); Campbell Soup Co. v. Conagra, Inc., 977 F.2d 86, 90-91 (3d Cir. 1992); ERCI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987) (citing SI Handling Systems, Inc., v. Heisley, 753 F.2d 1244, 1254 (3d Cir. 1985)). All of the above factors are balanced with regard to any final decision and the strength of any one factor may affect the necessary showing with regard to another. Marxe v. Jackson, 833 F.2d 1121, 1128 (3d Cir. 1987).
Plaintiff has been employed with Chartiers Valley School District ("CVSD") for the past twenty-one years, progressing from a substitute teacher, to a middle school teacher, to an instructional support teacher for the entire district.*fn1 She obtained a doctorate degree in May of 2000 and thereafter became principal of special programs or special education director. Plaintiff then entered into a five year employment contract with CVSD for the position of assistant superintendent. She was appointed to the position on October 19, 2004. The contract provided that plaintiff's employment would commence on November 1, 2004, and end after a period of five years.*fn2
Two years into plaintiff's term as assistant superintendent a contractal issue arose with one of CVSD's employees, Tim McConnell. At the time McConnell was both the Dean of Students at the middle school and the basketball coach. Pennsylvania Public School regulations require a Dean of Students to have a Pennsylvania Public School Certificate or emergency permit. 22 Pa. Code Chapt. 49, § 49.11(a)&(b). McConnell held the position for three consecutive school years, commencing in the fall of 2004.
McConnell's need to obtain certification became a topic of concern in negotiating a renewal of his contract in 2006. During the negotiations, McConnell indicated he was not interested in going back to college and asked that the requirement be removed or his job description changed so certification would no longer be required. McConnell's May 28, 2006, contract required him to obtain certification by enrolling at a university no later than July of 2006. The administration became aware that McConnell had failed to enroll as required. A formal conference was scheduled and Anthony Skender, the new superintendent, asked plaintiff to investigate enrollment policies at local universities in order to determine the opportunities that had been available. At the conference McConnell was given an opportunity to explain why he had not enrolled.
Skender initially proposed that McConnell receive a 10 day suspension. At its next scheduled meeting Skender met with the Chartiers Valley School District Board of Directors ("board") in executive session about the proposed suspension. The members of the board informally made recommendations as follows: five members supported a twenty day suspension, three members supported a ten day one, and one member was opposed to any suspension. Skender suspended McConnell on August 24, 2006, for twenty days without pay.
McConnell appealed his suspension and a public hearing was held on November 1, 2006, before a hearing officer appointed by the board. Plaintiff was asked to appear at the hearing by the district's (and board's) solicitor and testify under oath regarding certain background facts and events leading to McConnell's suspension.
The appeal suspension hearing was a formal proceeding authorized by Pennsylvania law governing local agencies. A neutral hearing officer conducted the hearing and a court stenographer recorded the testimony. McConnell's suspension proved to be a contentious issue in the community both at the hearing and thereafter. There were between 50 and 100 members of the public present. Plaintiff testified that "based on McConnell's history with his contracts, he has not complied with going to college." McConnell Hearing Transcript (Plaintiff's Exhibit No. 5) at 160. She also recounted the meetings between her, Superintendent Skender and McConnell concerning his failure to obtain the requisite certification and the board members' general reaction to his failure to comply with the terms of his contract.
Board members Jeff Choura and Bridget Kelly were in the front row of the audience during plaintiff's testimony. Several times during the course of plaintiff's testimony Choura and Kelly booed and expressed their disapproval of plaintiff's testimony.
McConnell's attorney pursued a line of questioning with plaintiff in an attempt to show there was bias expressed against McConnell in an executive session of a board meeting when his suspension was brought up for discussion. Plaintiff was asked if any board members had commented or said that "McConnell had snubbed his nose" at the board or school administration. She recalled a statement being made to that effect. Upon further questioning she could not recall who had made the comment. At that juncture the comments and expressions of disapproval became so disruptive that the solicitor for the district asked the hearing officer to remind the members of the audience that the format was not a public meeting, but instead was a public hearing, and those in attendance would have to refrain from reacting verbally to the testimony.
Plaintiff was then questioned about McConnell's prior contracts and the amount of time over which he had failed to obtain the "certification" or "accreditation" that was necessary to hold the Dean of Students position. She recounted that acquiring certification had been an obligation in McConnell's employment contracts since 1998. McConnell Hearing Transcript (Plaintiff's Exhibit No. 5) at 103. When asked to expound on whether McConnell had in effect "snubbed his nose" at the administration with regard to pursuing the certification or accreditation needed to occupy the Dean of Students position, plaintiff testified:
Again, I don't know that I would have used those words but based on the history of the contracts, yes, that is what happened.
Id. at 156. McConnell's attorney established through further questioning that the Pennsylvania Department of Education had not raised the issue of McConnell's failure to satisfy the requirements needed to maintain the Dean of Students with the district's administration in writing or through an audit. He also established that plaintiff was unaware of any earlier written notice being given to McConnell that he was in violation of his prior contracts. Id. at 158-61.
When asked if she could recall the way board members had voted in the informal poll, plaintiff indicated she could not recall.
At the conclusion of plaintiff's testimony, board member Choura stood up, yelled out that he wanted the record changed, and alleged "she's (plaintiff's) lying." He continued to shout and asked that plaintiff's comments be stricken from the record. He asked to be heard. The hearing officer advised Choura that he could not speak unless he was called as a witness. The solicitor then asked to go off the record and the hearing officer granted that request. No additional testimony was taken that day.
The hearing officer ultimately recommended that McConnell's suspension be upheld. At a regular board meeting in February of 2007, the board adopted the hearing officer's recommendation by a vote of five to two, with Choura and Kelly voting against upholding McConnell's suspension.
At a special action school board meeting on April 10, 2007, a motion was presented to open up all boys basketball coaching positions for the 2007-08 school year. The board voted five to four to open up the positions, with Choura and Kelly voting against opening up the contracts. Choura commented that this "is a very black day in the history of Chartiers Valley." Board member Petronsky noted that opening the positions up did not mean the board would not rehire the coaches currently occupying the positions.
On April 20, 2007, Pennsylvania Department of Education performed an audit of CVSD. It imposed a fine of $11,826.60 for the failure to have an appropriate instructional certificate for McConnell.
There was significant public outcry concerning the opening of McConnell's coaching position. At the next board meeting a number of residents appeared and read statements in support of rehiring McConnell. Skender recommended that the board rehire McConnell as the head varsity basketball coach. Choura moved to adopt the recommendation and the measure was carried by a vote of 8 to 1. During the course of the discussions that evening, Choura referred to Petronsky's comment that opening the contract does not mean that the person will not be retained. He then remarked that "that is exactly what it means."
In August of 2007 the board passed motions to create a new position of Transportation/Activities Coordinator and assign McConnell to the position for one year. This in effect permitted McConnell to maintain his employment without certification. Board member Choura voted no, stating that he was a "big fan" of McConnell, and felt it was unfair to penalize McConnell by placing him in the new position and reducing his salary by about $10,000.
At that very same meeting, the issue of raises for administrative members came up for vote, which included raises for Skender, plaintiff, Director of Human Resources Donald Kaminski, and so forth. Six members voted in favor of the raises, with board members Choura and Kelly abstaining from voting on the ground that the weekly packet distributed to board members did not contain the information about the raises and they wanted to see the proposal in writing before voting. Another member noted that the raises had been discussed at the board meeting held three months prior. Choura and Kelly acknowledged that the discussion had occurred, but said they wanted to review the raises.
On February 26, 2008, the board adopted a settlement agreement that reduced McConnell's suspension from 20 days to 10 and awarded him 10 days of back pay. The measure also eliminated any requirement that McConnell return to college.
Plaintiff received a letter from the CVSD dated March 27, 2009, notifying her that her contract was set to expire on October 31, 2009. The board secretary indicated that he was notifying her 210 days in advance of that expiration, as required by her contract.*fn3 The renewal of plaintiff's contract was placed on the agenda of the next three executive session school board meetings. No action was taken on the matter at those sessions or the formal meetings that followed those sessions.
During the first few weeks of May 2009, plaintiff worked with Director of Human Resources Don Kaminski to form a proposed contract containing some provisions she wanted to be included in her new contract. Kaminski assisted plaintiff by incorporating those provisions into the draft contract template that was used by the solicitor of the district. In the middle of May Kaminski worked with plaintiff on a number of issues in order to create a contract that could be presented by the administration to the board. After further suggestions and advice from Kaminski, a version that appeared to be acceptable to plaintiff was crafted.
On May 12, 2009, Kaminski suggested to the board in executive session that they form a committee to deal with the renewal of plaintiff's contract. A number of the board members agreed that doing so was a good idea and certain members expressed their desire to be on the committee.
On May 26, 2009, Art Turner, facilities manager for the school district, dropped by plaintiff's office as he did from time to time. He told plaintiff that "you remind me of Eleanor Roosevelt." Plaintiff giggled and asked what he meant. Turner said because you're a strong leader, a good woman and "she" never let them see her cry. Plaintiff asked "why am I going to cry." Turner relayed that Choura had just told him that because plaintiff testified against McConnell, she was never going to get a contract.
On May 28, 2009, School Board Solicitor Alfred Maiello received a call from Superintendent Skender advising that there appeared to be a mistake or some unresolved issues in the contract that was to be presented to the board. Attorney Maiello was aware that the issue of plaintiff's contract would be presented to the board that night, so he and his partner, Attorney Michael Brungo, drove down to the school to resolve all discrepancies so that a contract that plaintiff would sign could be presented to the board. After a lengthy meeting of several hours, a proposed contract was prepared by Attorney Brungo and given to Skender for presentation to the board that night.
The advice conveyed to the board prior to the formal school board meeting by Maiello and Brungo was that the board had three options concerning a contract for plaintiff: it could do nothing, in which case the "prior" contract would renew, but its terms would be uncertain; it could approve the contract to be presented; or it could open up plaintiff's position, which would permit the board to further consider plaintiff's proposed contract and negotiate any terms or changes thought by the board to be necessary. In executive session concern was raised that the proposed contract had not been included in the packet circulated to board members prior to the meeting, and as a result the members had not yet had an opportunity to review and consider the actual terms of the contract. Attorney Brungo advised that if the board was unwilling to approve the contract actually presented, then it was his advice that they should open up the position so that they would have adequate time to negotiate with plaintiff. The solicitor emphasized that opening up the contract did not mean that the board could not continue with discussions about a contract and then enter into a contract with plaintiff. It would just comply with the mandatory notice requirement under the School Code and keep the prior contract from renewing automatically. He presented a handwritten statement to Board President Patty Figorski explaining that the action to open up the contract was being taken in order to gain additional time to consider the contract, and the action was not any reflection on the performance of plaintiff.
At the May 28, 2009, formal school board meeting, Skender presented a proposed contract for plaintiff near the end of the meeting and recommended that it be approved. A discussion ensued concerning Skender's presentation of the contract without advanced notice and the board members' frustration with receiving contracts and being asked to vote on them without time to review and discuss the matter. Choura moved to notify plaintiff that it was the board's decision to open up her contract and consider other candidates for the assistant superintendent position. Kelly seconded the motion. The board approved the motion by a 6-3 vote. The approving members noted that the decision was not to be understood as a negative reflection on plaintiff's performance. Board member Frey voted against opening up plaintiff's contract, and made comment that Skender had not recommended such action and she was wholeheartedly and vehemently against it. An exchange between Frey and Choura ensued, and Frey eventually left the meeting.
The original minutes from that meeting reflected that the board received the contract shortly before being asked to vote on it and the members voting affirmatively wanted additional time to review the contract. The minutes also generally indicated that comments had been made to the effect that the decision to open up plaintiff's contract was no reflection on plaintiff's performance. Joan Kendra, an office specialist in the human resources department, who had been attending and transcribing school board meetings since 1994, transcribed the minutes from the meeting within a few days thereafter.
Kendra took shorthand notes of board meetings and used a tape recorder as a backup measure. She had always produced the minutes by summarizing what had occurred at the meeting as reflected in her shorthand notes. She only listened to the tape if her notes were unclear.
After the minutes had been made available to the board, Kendra was called to Board Secretary Nick Morelli's office and asked by him and Figorski if she knew why there was no tape of the meeting. Kendra explained that the recorder had malfunctioned and there was no tape available. Kendra was then told that she had to amend the minutes and handed statements purporting to be verbatim statements of Figorski and Kelly made at the meeting regarding plaintiff and the decision to open up her contract.
The original version of the minutes indicated that Figorski commented that "this action does not preclude our consideration of Dr. Whitfield from a contract, but as responsible board members we want to take additional time to review the contract before us" and the action taken "is not a reflection on Dr. Whitfield." The original minutes indicated Kelly said "we want to be thorough" and reiterated that "this has nothing to do with Dr. Whitfield." "She has sat here for 16 years and other contracts are before us months before they are up. It is the law."
The amended statements Kendra was required to incorporate into the minutes provided the following rendition of Figorski's comments: "this action is being taken to allow the Board the appropriate time needed to review the contract. Our solicitor has recommended to all of us that this is our most responsible course of action. Timing and the law have made this our only choice. Again, it is not a reflection on Dr. Whitfield." The portion regarding Kelly's statements was revised to provide: "We want to be thorough. This has nothing to do with Dr. Whitfield's performance. I have been on this board for 16 years and never remember a contract being given to us with such short notice. We being responsible board members could not in good conscience sign a contract that we saw 10 minutes before coming out to a voting meeting. Again, this has nothing to do with Dr. Whitfield's performance."
Kendra had never before been told or even asked to amend the minutes of a board meeting she had transcribed. She was not asked to review her shorthand to determine what it reflected concerning Figorski and Kelly's statements at the meeting; she simply was told she had to amend the minutes and was handed statements that were to be incorporated into the minutes. While Figorski and Kelly had made statements at the meeting that reflected some of the same thoughts, the exact words in the revised amendments were not stated at the meeting.
On June 1, 2009, Figorski sent an email to all board members asking for their input on plaintiff's proposed contract. She asked that each member either respond by indicating he or she was okay with the contract as written, or provide any suggestions or comments. Figorski indicated that she and board member Ohliger would review everyone's input and discuss their suggestions with solicitors Maiello and Brungo. Board members Frey, McIntyre and Petronsky responded to Figorski's email indicating they were fine with the contract as presented. Board member Galluze proposed changes to the contract. Frey also wanted to know when the board had decided against forming a committee to work on plaintiff's contract. Figorski never responded to Frey's email.
On June 9, 2009, Solicitors Maiello and Brungo received a letter advising that plaintiff had hired counsel to represent her in all matters concerning her employment with the school district. The letter highlighted what plaintiff claimed to be differences between the contract she signed in October of 2004 and the contract that was shown to her in February or March of 2009 and which was being represented as the official 2004 contract. It highlighted the asserted failure to provide timely notice under the former version and the failure to pay a difference between the cost for certain health care coverage and the coverage actually selected by plaintiff. It invited negotiation as to these issues so as to avoid litigation.
Solicitor Maiello notified the board that plaintiff had engaged counsel. Maiello advised that in light of plaintiff obtaining representation, he could no longer have discussions directly with plaintiff concerning her contract. Such direct discussions would have to go through plaintiff's counsel. He also advised that the board should no longer discuss any contract issues directly with plaintiff, but instead should direct any communications for plaintiff to her attorney. He did not advise that the board members should no longer discuss any issues surrounding plaintiff's contract among themselves or that they could not or should not seek to reach agreement among themselves with regard to a contract for plaintiff.
At the next board meeting Solicitor Maiello was asked in executive session if plaintiff was required to attend executive meetings or could she come on an as-needed basis. Maiello advised that the School Code did not give an assistant superintendent the right to attend school board meetings and she could be excluded from any such session as deemed appropriate. It was his understanding that plaintiff would be asked to attend thereafter on an as-needed basis.
Figorski directed Skender to advise plaintiff that she would no longer be permitted to attend school board meetings, which he did. Plaintiff was not permitted to attend any school board meeting after June 9, 2009, regardless of whether the agenda for any particular meeting or session did or did not involve matters pertaining to her contract.
In July of 2009, plaintiff was meeting with Human Resources Director Donald Kaminski. Art Turner walked into the office. Plaintiff asked Turner if he was going to tell the truth when he was called to testify. Turner said "no" or "no, I'm going to lie." From Kaminski's perspective the question was asked with intent and Turner's response was given in the same vein, ...