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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 ...

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