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Ronald W. Fialkovich v. Duquesne City School District and Allegheny


March 28, 2012


The opinion of the court was delivered by: Chief Magistrate Judge Lisa P. Lenihan

ECF No. 19


I. Conclusion

The Motion for Summary Judgment filed by Defendants Duquesne City School District ("Duquesne School") and Allegheny Intermediate Unit ("AIU") (hereinafter collectively "Defendants"), in this (a) Constitutionally-protected speech and (b) State law wrongful discharge action filed by a police officer formerly employed by the above-name school district will be granted, as the record presents no genuine issue of material fact and the Defendants are entitled to judgment in their favor, as more fully set forth below.

II. Factual and Procedural History

Duquesne School is a single building facility previously operating as a Grades K-12 school, and a "distressed school district" which, as a result, is managed by AIU in accordance with a 2007 Intergovernmental Agreement between Defendants and the Pennsylvania Department of Education (the "DOE").*fn1 It is also operated under the auspices of a DOE-appointed Board of Control. Effective with the 2007-2008 school year, Duquesne School ceased operation as a high school and its enrollment was reduced to Grades K-8. The prior principal was replaced, effective September 2008, with Davaun Barnett ("Principal Barnett").

Plaintiff ("Fialkovich") was employed by Duquesne School from approximately 2005 or January, 2006 through June, 2009, initially as a part-time and then as a full-time member of the school's police force. His employment, and that of the other three (3) full-time Duquesne School police officers (including the Chief of the Duquesne School police force, Chief Hicks), was pursuant to a one-year renewable contract expiring each June 30th. During his initial employment, Plaintiff and other school police officers carried guns in the school building, issued students criminal citations (for, e.g., fighting, tumultuous behavior, harassment, use of tobacco on premises), attended criminal hearings before the local magistrate, and assisted teachers with student discipline incidents.

In 2008, upon Duquesne School's cessation as a high school and restriction of its student population to younger students, i.e., Grades K-8, and under the direction of new Principal Barnett, police officers stopped carrying guns in the school building.*fn2 They were also directed to consult/notify Principal Barnett prior to issuing a citation to and arresting a student. See Complaint at para. 14.

The police officers continued to write citations throughout the school year, without advance notice to or consultation with Principal Barnett or other school administration.*fn3 Chief Hicks communicated that he felt the request was an improper infringement on the officers' authority and duty to uphold the law.*fn4 In April 2009, Principal Barnett directed erection of a "no parking" sign across the street from the elementary entrance to the school, where Plaintiff had previously parked his vehicle -- with school permission and placard --*fn5 assertedly to facilitate dismissals.*fn6 Plaintiff failed to comply with Principal Barnett's request(s) that he remove his car from that location, and has indicated that he was "engaged in the performance of his job at the middle school, and was unable to comply with this directive".*fn7 Plaintiff was not disciplined but was called to a meeting with Principal Barnett and Chief Hicks, which "quickly deteriorated into a verbal disagreement between Mr. Barnett and Officer Fialkovich". By letter of that same date, Plaintiff was advised that he "was instructed to comply with all expressed and implied directives given by the administration" and "[a]ny willful disregard or refusal . . . will be interpreted as insubordination . . . subject to disciplinary action including but not limited to suspension or termination."*fn8 The record reflects other disagreements of opinion between the police officers and Defendants.*fn9

During this period, Chief Hicks communicated with the school administration regarding his disagreements with Principal Barnett and with changes the administration was attempting to implement regarding the role of the police force in the now Grades K-8 school. Multiple e-mail communications documenting Chief Hicks' objections to the changes in police parameters, and school policy/philosopy, are of record.*fn10 On April 3, 2009, Chief Hicks emailed Superintendent Cheryl Fogarty ("Superintendent Fogarty") informing her that he had contacted Stephen Zapalla, the Allegheny County District Attorney (the "Allegheny County DA's Office") regarding his objections to Duquesne School's restrictions on his law enforcement authority and assertedly improper motives.*fn11

Plaintiff and the other police officers were informed in May, 2009 that their contracts would not be renewed.*fn12 Defendants aver, and Minutes of the meeting with representatives of Defendants and the Board of Control reflect, that Plaintiff and the other police officers were advised they were not re-employed because of differences of opinion regarding the best approach to student discipline in an elementary/middle school building (e.g., a reactive, armed police presence focused on issuance of citations and arrests v. a more proactive, postive-reinforcement approach going forward)*fn13 and cost considerations. The four (4) officers were replaced with two (2) private firm security guards who, unlike the police officers, do not have the power to issue criminal citations or arrest students.*fn14

Plaintiff alleges that his Constitutionally-protected rights were violated when Defendants retaliated against him in response to Hicks' complaints to the Allegheny County DA's Office alleging that Defendants were (a) constraining the school police force in a manner which improperly interfered with/impeded their rights and duties as law enforcement officers, and (b) improperly motivated by an intention to (i) reduce the number of incidents reportable under Pennsylvania statutes intended to promote school safety, and (ii) create a false appearance of improved school environment/safety. Count I of Plaintiff's Complaint is brought under 42 U.S.C. Section 1983, for First and Fourteenth Amendment violations, and quite succinctly alleges violations arising from "terminat[ion] in retaliation for his exercise of his right to speak on matters of public concern." See Complaint at para. 49-50 (emphasis added).

Plaintiff further alleges, in Count II of his Complaint, that the non-renewal of his annual contract constituted a "wrongful discharge" -- without further elaboration -- because he was "discharged . . . in order to reduce the mandated reporting of incidents" within the School Safety Act and, accordingly, in violation of the public policy underlying the Safe Schools Act. See id. at para. 54-55.

Presently pending is Defendants' Motion for Summary Judgment.

III. Summary Judgment Standard

Summary judgment is to be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

On a motion for summary judgment, the facts and the inferences to be drawn therefrom should be viewed in the light most favorable to the non-moving party. SeeMatsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The moving party has the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. The party opposing the motion, however, cannot rely merely upon bare assertions, conclusory allegations, or speculations to support his claim. The nonmoving party Amust do more than simply show that there is some metaphysical doubt as to the material facts,@ Matsushita, 475 U.S. at 586, and must produce more than a Amere scintilla@ of evidence to demonstrate a genuine issue of material fact. SeeBig Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir.1992). One of the principal purposes of the summary judgment rule is to dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

IV. Analysis

A. Count I - Free Speech -- First and Fourteenth Amendments

The parties correctly agree (1) that to prevail on his § 1983 claim of retaliation for protected speech, Plaintiff must proffer sufficient evidence that (a) he engaged in constitutionally-protected conduct/speech on matters of public concern, and (b) the protected conduct was a substantial factor in the alleged retaliatory termination; and (2) that whether particular conduct is protected under the First Amendment is a question of law. See Defendants' Brief in Support at 4 (citing Ambrose v. Township of Robinson, Pa., 303 F.3d 488, 498 (3d Cir. 2002); Plaintiff's Brief in Opposition at 2 (citing Hill v. Borough of Kutztown, 455 F.2d 225, 241 (3d Cir. 2006)); see also Matsey v. Westmoreland County, 185 F.App'x 126, 132 (3d Cir. 2006)). Plaintiff's proffer of sufficient evidence would then shift the burden to Defendants to show that the action would have been taken absent the protected conduct. See, e.g., Springer v. Henry, 435 F.3d 268, 275 (3d Cir. 2006).

As its first ground for grant of summary judgment as to Count I, the Court observes that Plaintiff's Complaint and both parties' briefs discuss Chief Hick's allegations to the Allegheny County DA's Office. Reading the Complaint in the light most favorable to Plaintiff, the Court will assume that this is the Constitutionally-protected speech underlying Count I's conclusory allegations.*fn15 As Defendants properly observe, there is no allegation and nothing of record suggesting that Plaintiff participated in Chief Hicks' communication with the Allegheny County DA's Office or made any direct communication of his own to that office, or any public office, or in any public forum.*fn16 See Complaint at para. 36-37 (asserting that "Chief Hicks indicated that he had been in contact with the Allegheny County District Attorney's Office, reporting what he believed to be crimes of Official Oprression, Obstruction of Law and Other Governmental Functions, and Suppression of Crime, which he believed to have been carried out and covered up by Mr. Barnett. These allegations were based upon the belief held by members of the Police Department that student crime in [Duquesne School] was being covered up . . . and that the [Defendants] were suppressing the reporting of such crime.") (emphasis added).*fn17

The First and Fourteenth Amendments to which Plaintiff directs this Court provide Constitutional protections for certain speech or other expressive conduct. Thus, the individual with legal standing is the one who exercises his protected rights, i.e., the speaker. These Amendments do not, nor could they, provide a cause of action against any other individual/entity on the basis of beliefs which Plaintiff has not expressed. And neither Plaintiff nor Defendants discuss any authority allowing a cause of action for conduct against a plaintiff allegedly taken in retaliation for a third party's speech (e.g., as a collateral consequence).*fn18 In the complete absence of any allegation in the Complaint, or any evidence of record, of protected speech or other expressive conduct by Plaintiff known to a representative of a Defendant and therefore forming a plausible basis for a claim of unconstitutional retaliation, there is simply no genuine issue of material fact.*fn19 Neither party, nor this Court's independent research, identifies any authority for Plaintiff's unique claim.

As a second, independent ground for grant of summary judgment as to Count I, the Court observes that, even if Hicks' speech were regarded, for purposes of Constitutional protection, as Plaintiff's own, the speech alleged in the Complaint was made by Chief Hicks in his official capacity and did not constitute protected public speech within the ambit of the cited Amendments.

A public employee makes a protected statement for purposes of a First Amendment retaliation claim when he (1) speaks as a citizen, (2) involving a matter of public concern, and (3) the employer lacks adequate justification for treating the employee differently from any other member of the general public as a result of the statement. See, e.g., Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006); see also Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (noting that First Amendment "protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern"). When the employee speaks "pursuant to [his] official duties", he is not speaking as a public citizen for First Amendment purposes, and the Constitution does not insulate those communications. Garcetti, 547 U.S. at 421.

Chief Hicks reported, in his capacity as the Chief of Police of Duquesne School, to the Allegheny County DA's Office, what he purportedly believed to be criminal conduct on the part of the Defendants (e.g., obstruction of justice and intereference with his official duties). He was, in his own view, protecting and performing his official duties. This is the tenor of his communication*fn20 and it is one which does not constitute public speech. See, e.g., Fulmer v. Commonwealth of Pennsylvania, 2011 WL 915846 (W.D. Pa. Mar. 16, 2011) (granting summary judgment for defendants where communications of State Police crime section commander, initiating internal affairs investigation regarding misconduct, constituted speech made in connection with official duties); McNamee v. County of Allegheny, 2007 WL 2331878 (W.D. Pa. Aug. 13, 2007) (granting summary judgment for defendants where long-term care facility's Director of Nursing's "reporting to the Department of Health", an outside agency, and participation in subsequent investigation were within official duties). Compare, e.g., Pickering v. Bd. of Educ., 391 U.S. 563 (1968) (holding that teacher's letter to newspaper criticizing his school district's handling of funds obtained through tax increases was protected speech). Compare generally Garcetti, 547 U.S. at 419 ("The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.") (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972)).*fn21

And even if Plaintiff were to assert that the conclusory allegations of Count I were intended to encompass Chief Hicks' other communications (i.e., internal communications directed to Defendants), as speech conveyed inside the workplace rather than publicly, and concerning matters of employment (i.e., concerning the parameters of what he and school police officers were authorized/employed to do, his official duties), that speech was similarly outside the ambit of the First Amendment. Cf., e.g. Garcetti, 547 U.S. at 420-21 ("Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to 'constitutionalize the employee grievance.'") (quoting Connick v. Myers, 461 U.S. 138, 147 (1983); id. at 422 (observing that while public "employees retain the prospect of constitutional protection for their contributions to the civic discourse", this "prospect of protection, however, does not invest them with a right to perform their jobs however they see fit"); Miller v. Clinton County, 544 F.3d 542 (3d Cir. 2008); DeLuzio v. Monroe County, 271 Fed.Appx. 193, 196 (3d Cir. 2008).

The nature of Chief Hicks' speech thus presents a second, equally insurmountable, hurdle to Plaintiff's claim that Defendants' failure to renew his employment contract was unconstitutionally retaliatory under the First and Fourteenth Amendments.*fn22

B.Count II - Wrongful Discharge

Plaintiff alleges that the failure to renew his employment contract constituted a wrongful discharge in violation of Pennsylvania public policy under the Safe Schools Act.*fn23 To succeed on a claim of wrongful discharge (pursuant to the narrow public policy exception to the employment at will doctrine), he must evidence violation of a "clear mandate of public policy." See, e.g., Lambert v. Environmental Restoration Group, Inc., 2008 WL 723328 (W.D. Pa. Mar. 14, 2008); McLaughlin v. Gastrointestinal Specialist, Inc., 750 A.2d 283 (Pa. 2000). See also Kuzel v. Krause, 658 A.2d 856, 860 (Pa.Commw.Ct. 1995) (quoting Yaindl v. Ingersoll--Rand Co., 422 A.2d 611, 617 (Pa.Super.Ct. 1980)) ("A claim for wrongful discharge is made out when the plaintiff establishes that his or her discharge is a violation of a clearly definable right that 'strikes at the heart of citizens' social right, duties and responsibilities.'").

The Pennsylvania Public School Code, School Safety Act, 24 P.S. Section 13-1301 to 1303, creates an "Office for Safe Schools" within the Department of Education (the "DOE"), and requires that the administrators of public schools within the Commonwealth submit annual reports

(a) of incidents involving acts of violence; possession of a weapon; or possession, use or sale of controlled substances, alcohol or tobacco, and (b) including all incidents of conduct constituting a criminal offense within certain cited sections of the Pennsylvania Criminal Code. See 24 P.S. Section 1303(b). The Pennsylvania Courts have recognized a "public policy of protecting students from violence on school property" derived from the School Safety Act. Shamokin Area School Dist. v. Amer. Fed. of State, County and Municipal Employees Dist. Council 86, 20 A.3d 579, 582 (Pa. Comwlth. Ct., 2011).

The Court notes that the statutory provisions address public school adminstrators' creation and maintenance of particular records. Neither the Public School Code provisions, nor the obvious public interest in protecting students from violence on school premises, impose additional requirements beyond those of the Criminal Code regarding when students become subject to reportable criminal sanctions, nor do they constrain public schools' authority or discretion to design, implement and/or manage its disciplinary approaches and procedures. And although the statute refers to consultation with school "security personnel" in the context of an "advisory committee", it requires a Memorandum of Understanding signed by, and a review of the school's annual report by, the "Police Department with jurisdiction over" the school district. 24 P.S. at 1303. Finally, the statute contains provisions for disciplinary action by the DOE (and potential criminal sanctions) against a school administrator who fails to file or falsifies a report, or fails to enter a Memorandum of Understanding with or make required incident reports to, the Police Department with jurisdiction. See id.

Plaintiff's Complaint alleges that "Principal Barnett interfered with the School Police in the performance of their duties, by concealing from them information concerning fights and assaults on students and faculty members" or by advising School Police "that he wanted to be notified before any student was cited and arrested"; or by permitting students to return to school with no sanctions for having violated school policy. *fn24 As detailed above, the Public School Code does not speak to a public school's discretionary authority over disciplinary policies/procedures or the scope of employment of particular security personnel. His Complaint allegations notwithstanding, Plaintiff has proffered no evidence that the Defendants failed to create or maintain statutorily-mandated records or annual reports, or that the School District failed to comply with statutory requirements regarding the Police Department of jurisdiction, or -- moreover - that the non-renewal of Plaintiff's at-will employment contract was in violation of a clear public policy mandate (i.e., safety in public schools).

As also detailed at length above, the Court's review of the extensive documentation of record in this case reflects policy disagreements regarding the most appropriate role of security personnel at Duquesne School following its transition to a Grades K-8 building, and changes in administration, in 2008.*fn25 There is no Pennsylvania public policy precluding a school district's decision to retain a private security firm rather than a police force. Indeed, many - particularly elementary and middle - schools do not deem it either necessary or appropriate to retain police officers to maintain order and community safety on school premises. Cf. 24 P.S. Section 1303, supra (referencing school "security personnel" and "Police Department" with jurisdiction). The School Chief of Police, and the school police officers, elected to dispute policy changes and disregard administrative direction. Chief Hicks repeatedly communicated his belief that neither he nor the other officers were subject to Defendants' authority. Their contracts were not renewed.

V. Conclusion

For the reasons set forth above, Defendants' Motion for Summary Judgment will be granted. A separate Order will follow.

LISA PUPO LENIHAN United States Chief Magistrate Judge

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