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Patricia Young, et al v. Pleasant Valley School District

May 18, 2012

PATRICIA YOUNG, ET AL., PLAINTIFFS
v.
PLEASANT VALLEY SCHOOL DISTRICT, ET AL., DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Currently pending before the Court are Defendants' motion for a new trial (Doc. No. 288) and motion for judgment as a matter of law (Doc. No. 289).

BACKGROUND

The genesis of this federal civil rights action is the admitted acts of poor judgment by an enthusiastic and popular high school teacher in selecting and commenting on classroom materials that he believed would make twentieth century history "come alive." Although no other student had objected to these materials in the seven previous school years that Defendant Bruce Smith had taught Twentieth Century History at Pleasant Valley High School, in the Spring of 2007, Plaintiff M. Young,*fn1 a talented high school junior who was enrolled in Defendant Smith's class, complained to her parents about the inappropriate nature of references, photographs, books, and videos that were part of Defendant Smith's history course.

Plaintiffs Patricia Young and William Young were understandably concerned and made immediate complaints on their daughter's behalf to the Pleasant Valley School District through its Principal John J. Gress. As is set forth in great detail below, this complaint unleashed a series of truly unfortunate and troubling consequences that derailed Plaintiff's previously happy and successful high school career. Defendant Smith was quickly suspended without pay after Mr. and Mrs. Young made their complaint. Two months later, Plaintiffs brought this lawsuit against Defendants Pleasant Valley, Smith, and Gress.*fn2 Its highly publicized filing brought notoriety to the Youngs and an angry backlash against Plaintiff M. Young that affected her so profoundly that she left her junior year of high school and the extracurricular activities she once enjoyed in favor of home schooling for the remainder of the school year. She ultimately did not return to the Pleasant Valley School District for her senior year. What might have been Plaintiff's happiest years were instead anxious and unhappy times for her and her family.

Since that time, Plaintiff M. Young has enjoyed a successful adjustment to college in one of the country's most prominent universities, and Defendant Smith has left teaching to fulfill lifelong career goals away from the classroom. In spite of these events, the lawsuit that sprang from the unhappy events of 2007 has labored on, with the parties enduring five years of lengthy discovery and the most contentious, voluminous, and vitriolic motions practice ever seen by this Court. After at least four attempts by officers of this Court to mediate an amicable end to this unfortunate matter, the case was finally tried to a jury in August 2011.

The jury credited two of Plaintiffs' claims, finding against Pleasant Valley School District on Plaintiff M. Young's First Amendment retaliation claim and against Defendant Smith on Plaintiff M. Young's Section 1983 equal protection claim.*fn3 The jury awarded Plaintiff M. Young $200,000 in compensatory damages from Defendant Pleasant Valley, $25,000 in compensatory damages from Defendant Smith, and $100,000 in punitive damages from Defendant Smith. (Id.)

In another heated exchange of briefs following trial, the parties have addressed multiple errors that Defendant claims tainted the result of the five-day jury trial. Though the parties' submissions contain an extraordinary amount of personal sniping that exceeds even the most spirited style of advocacy, when the rhetoric is separated from the legal challenges to the jury's verdict as outlined by Defendant, for the reasons explained at length below, the unavoidable conclusion is that the law dictates that this verdict be set aside.

STANDARDS OF REVIEW

I. MOTION FOR JUDGMENT AS A MATTER OF LAW

To prevail on a renewed motion for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, the moving party must establish that there was no "legally sufficient evidentiary basis for a reasonable jury to have found for [the prevailing party] on that issue." Fed. R. Civ. P. 50(a)(1). In determining whether to grant judgment as a matter of law, the court "must view the evidence in the light most favorable to the non-moving party, and determine whether the record contains the 'minimum quantum of evidence from which a jury might reasonably afford relief.'" Glenn Distribs. Corp. v. Carlisle Plastics, Inc., 297 F.3d 294, 299 (3d Cir. 2002) (quoting Mosley v. Wilson, 102 F.3d 85, 89 (3d Cir. 1996)). A court may grant judgment as a matter of law "only if, viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." LePage's Inc. v. 3M, 324 F.3d 141, 145-46 (3d Cir. 2003) (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)). "The court may not weigh evidence, determine the credibility of witnesses or substitute its version of the facts for that of the jury." Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir. 1993). Rather, the Court may grant a Rule 50 motion only "if upon review of the record it can be said as a matter of law that the verdict is not supported by legally sufficient evidence." Id. at 691-92.

II. MOTION FOR NEW TRIAL

"The court may, on motion, grant a new trial on all or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court . . . ." Fed. R. Civ. P. 59(a)(1)(A). The decision whether to grant a new trial following a jury verdict is within the sound discretion of the trial court. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980); Blancha v. Raymark Indus., 972 F.2d 507, 512 (3d Cir. 1992). The standard to be applied to a motion for new trial varies depending on the grounds upon which the motion rests. Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993). Where the motion is based on matters within the district court's discretion, such as evidentiary rulings or prejudicial statements by counsel, the court has broad latitude in ordering a new trial. Id. (citing Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990); Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir. 1960)). Where the motion argues that the jury's decision is against the weight of the evidence, however, the motion may be granted "only where the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience." Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991). Notably, when reviewing a motion for a new trial "the trial judge may consider the credibility of witnesses and the weight of the evidence." 9B Wright & Miller, Federal Practice & Procedure § 2531 (3d ed. 2012); see also Simco v. Ellis, 303 F.3d 929, 932 (8th Cir. 2002) (holding that when considering a motion for new trial on the ground that the verdict is against the weight of the evidence, the trial court "is entitled to interpret the evidence and judge the credibility of witnesses"); Watkins v. Prof'l Sec. Bureau, Ltd., No. 98-2555, 1999 U.S. App. LEXIS 29841, at *10 n.8 (4th Cir. Nov. 15, 1999); Fount-Wip, Inc. v. Reddi-Wip, Inc., 568 F.2d 1296, 1302 (9th Cir. 1978); MLMC, Ltd. v. Airtouch Commc'ns, Inc., 215 F. Supp. 2d 464, 470 (D. Del. 2002); Valentin v. Crozer-Chester Med. Ctr., 986 F. Supp. 292, 298 (E.D. Pa. 1997). Of course, the Court must proceed cautiously and avoid simply substituting its own judgment of the facts and credibility of the facts for those of the jury. Williamson, 926 F.2d at 1353.

III. MOTION FOR REMITTITUR

The use of remittitur is committed to the discretion of the trial court. Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346, 354 (3d Cir. 2001). Remittitur is warranted when an award of damages shocks the judicial conscience. Id. at 355. Where an award of damages does shock the judicial conscience, the trial court may remit the award of damages to an amount no less than the maximum recovery that does not shock the judicial conscience. Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768, 774 (3d Cir. 1987). To accomplish this task the Court should compare the award of damages with damages awarded in similar cases. See, e.g., Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 206 (3d Cir. 1996).

DISCUSSION

Defendants have raised some twelve issues in support of their motions for judgment as a matter of law, or alternatively, a new trial. In attacking the jury verdict against Defendant Pleasant Valley on Plaintiff's First Amendment retaliation claim, Defendants raise the following issues: (1) Plaintiff failed to establish Monell liability against Defendant Pleasant Valley; (2) Plaintiff failed to establish that she engaged in protected First Amendment activity; and (3) the jury verdict in favor of Defendant Gress and against Defendant Pleasant Valley is inconsistent.*fn4

In attacking the jury verdict against Defendant Smith on Plaintiff's Section 1983 equal protection claim, Defendants raise the following issues: (1) as a matter of law, individual liability is not available for Section 1983 equal protection claims based on a hostile school environment; and (2) the jury verdict was against the weight of the evidence. Defendants raise the following arguments challenging the award of damages: (1) Plaintiff failed to produce evidence supporting a finding of damages related to the Section 1983 equal protection claim; (2) the punitive damages award against Defendant Smith was excessive and without evidentiary support; and (3) Plaintiff failed to produce evidence supporting a finding of $200,000 in damages related to the First Amendment retaliation claim. Defendants also argue that the Court made the following errors justifying a new trial: (1) four evidentiary rulings; (2) three errors in the verdict slip; and (3) three errors in the jury instructions. Finally, Defendants contend that Plaintiff's counsel's conduct warrants the ordering of a new trial. The Court will address these issues in turn.*fn5

I. FIRST AMENDMENT RETALIATION

A. Monell Liability Against Defendant Pleasant Valley

Defendants first contend that the jury verdict in favor of Plaintiff and against Defendant Pleasant Valley as to Plaintiff's First Amendment retaliation claim is defective. Specifically, Defendants note that Judge Munley previously ruled that, as a matter of law, Defendant Pullo took no action that would constitute retaliation for Plaintiff exercising her First Amendment rights. Defendants further note that the jury returned a verdict indicating that the only other relevant policymaker, Defendant Gress, did not unlawfully retaliate against Plaintiff. Accordingly, Defendants conclude that Plaintiff's First Amendment retaliation claim fails as a matter of law. Plaintiff responds that Defendants did not preserve this claim via a Rule 50(a) motion, and that even if they did, the motion would necessarily fail. The Court will first consider Plaintiff's argument regarding whether the claim has been preserved. The Court will then consider the merits of Defendants' position.

1. Whether Defendants' Motion is Properly Raised

A party may only file a post-verdict motion for judgment as a matter of law pursuant to Rule 50(b) where that party has first filed a pre-verdict motion for judgment as a matter of law pursuant to Rule 50(a) that is "sufficiently specific to afford the party against whom the motion is directed with an opportunity to cure possible defects in proof which otherwise might make its case legally insufficient." Lightning Lube, 4 F.3d at 1173 (emphasis in original). The Rule 50(a) motion must "specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment." Fed. R. Civ. P. 50(a)(2). The purpose of this rule is to ensure that the non-moving party will have an opportunity to cure the defect cited by the moving party prior to the case going to the jury. See Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 183-84 (3d Cir. 1992).

At the close of Plaintiff's case-in-chief, Defendants' counsel made a verbal Rule 50(a) motion in which he argued, as it pertains to the retaliation claims against Defendant Pleasant Valley:

Your Honor, at this time we would move for judgment under Rule 50 for the three defendants, the school district, Mr. Gress, and Mr. Smith, and I'll state my reasons for each as we go.

With regard to -- I'll combine Mr. Gress and the district. I think it's important to remember what is actually before the Court, what causes of action are left, and then what causes of action the jury is going to be asked to determine. And with regard to Mr. Gress and the school district, they are actions for retaliation, the First Amendment with regard to Mr. Gress, the First Amendment and Title IX with regard to the school district.

Your Honor, I suggest that we have heard no evidence, no evidence by which a reasonable jury could conclude that there was any retaliatory activity on the part of either Mr. Gress or on the part of the school district, could conclude that a person of reasonable firmness would be deterred from exercising their rights.

The worst thing that we've heard is that potentially Mr. Gress may have told someone, but as a result of that, what has -- the only evidence that there is is that there was a call from Mr. Smith, and I'd suggest, as a matter of law, no reasonable juror could say that that was retaliatory.

There's no evidence that it was made in malice, there's no threats that were made, it was made -- all the testimony is consistent in that Mr. Smith called to try to see what the problem was and to straighten things out. No reasonable juror could say that that was retaliatory activity.

The other matters with regard to the blogs and so forth, Your Honor, cannot be reasonably -- cannot be legally ascribed to either defendant.

They would be actions of third parties all reacting to the story in the paper about the lawsuit. No reasonable juror could conclude that that retaliatory activity came from the school or Mr. Gress. (Doc. No. 304 at 515:9-516:17.) Defendants renewed this motion at the close of the evidence.*fn6

(Doc. No. 305 at 762:22-763:4.)

In the oral motion, Defendants' counsel argued that there was "no evidence, no evidence by which a reasonable jury could conclude that there was any retaliatory activity on the part of either Mr. Gress or on the part of the school district." (Doc. No. 304 at 515:21-24.) Plaintiff is correct that counsel for Defendants did not utter the word "Monell" when making Defendants' oral motion; however, Monell simply stands for the proposition that to hold a municipality liable pursuant to Section 1983, that a plaintiff must establish that the municipality itself acted. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). The Court is satisfied that Defendants' argument that Defendant Pleasant Valley did not engage in retaliatory activity was sufficient to put Plaintiff on notice that Defendants would be arguing that Defendant Pleasant Valley did not engage in retaliatory activity. Accordingly, the Court finds that Plaintiff's objection is without merit and Defendants' motion is properly raised.

2. Whether Defendant Pleasant Valley is Entitled to Judgment as a Matter of Law

In Monell v. New York City Department of Social Services, the United States Supreme Court held that municipalities are "persons" subject to liability pursuant to 42 U.S.C. § 1983. 436 U.S. at 690. A Section 1983 claim will not lie against a municipality, however, if it is based solely on a theory of respondeat superior. Id. at 691-92. Rather, a municipality may only be held liable pursuant to Section 1983 if a plaintiff is able to identify a policy or custom of the municipality that caused the constitutional violation. A.M. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 580 (3d Cir. 2004) (citing Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997)). A municipal policy is made when an official with final decision-making authority issues an official proclamation, policy, or edict. Andrews, 895 F.2d at 1480 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)). A custom or practice may give rise to municipal liability where a course of conduct, though not authorized by law, is so permanent and widespread as to virtually constitute law. Id. (quoting Monell, 436 U.S. at 690). To establish municipal liability based upon a custom or practice, a plaintiff must demonstrate that "through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged." Brown, 520 U.S. at 404 (emphasis in the original).

The only relevant school officials in this action are the school board, Superintendent Pullo, and Defendant Gress.*fn7 Concerning Superintendent Pullo, Judge Munley previously held that as a matter of law he did not engage in any acts of retaliation against Plaintiff. See Young v. Pleasant Valley Sch. Dist., No. 3:07-cv-854, 2010 U.S. Dist. LEXIS 119, at *17-*19 (M.D. Pa. Jan. 4, 2010). Plaintiff argues, however, that Superintendent Pullo retaliated against Plaintiff by permitting Defendant Smith to present a videotaped lesson on the Pentagon Papers while he was on suspension. The Court questions whether permitting a teacher to present such a lesson in the context of the Twentieth Century History class could possibly be considered retaliation. It is hardly clear that Defendant School District's failure to intervene to prevent Defendant Smith from showing the Pentagon Papers "whistle blower" video establishes retaliation, or that upon viewing the video a person of ordinary firmness would be deterred from exercising her First Amendment rights. Setting these issues aside, however, contrary to Plaintiff's assertion in her brief, there is no evidence that would support a finding that Superintendent Pullo approved the videotape. Plaintiff cites to Superintendent Pullo's testimony that Defendant Smith was given permission to teach via video; however, she ignores Superintendent Pullo's testimony when examined by Plaintiff's counsel that he was not even aware of the videotape of the Pentagon Papers lesson until after a complaint was made. (Doc. No. 304 at 568:9-13.) Because there is no evidence of record that would support a conclusion that Superintendent Pullo ever saw the Pentagon Papers lesson prior to the tape being shown to Plaintiff's class and because there is no reason to believe the conduct would have constituted unlawful retaliation even if he had, the Court must conclude that Superintendent Pullo's actions cannot support a claim against Defendant Pleasant Valley.*fn8

In the alternative, Plaintiff alleges that the school board itself retaliated against Plaintiff by failing to act to protect her. That is, Plaintiff contends that the school board is guilty of retaliation for failing to "commend or support the minor Plaintiff's right to express her opinions" after students held a "rally" on a Saturday in front of the school in support of Defendant Smith when Plaintiff's lawsuit became public. While there is ample room for debate regarding the manner in which school authorities managed the controversial discipline of Defendant Smith and the news of Plaintiff's lawsuit, the Court finds no legal basis for concluding that a claim of retaliation is properly premised on a defendant's failure to voice support for a plaintiff who files a lawsuit against him.

Plaintiff further contends that the school's inaction constitutes a "deliberate failure to prevent [student-on-student] harassment," which justifies a jury finding of retaliation. Plaintiff cites no support for this theory of unlawful retaliation. The Third Circuit has held that "failures to act cannot form the basis of a valid [Section] 1983 claim." Kaucher v. Cnty. of Bucks, 455 F.3d 418, 433 n.11 (3d Cir. 2006) (collecting cases). Even if Plaintiff were able to articulate a claim of deliberate indifference as to the conduct of her fellow students, there has been no evidence that any administrator was aware or should have been aware of threatening or harassing speech made directly to Plaintiff on school property. Indeed, there is precious little evidence that any comments were made directly to Plaintiff at school at all. Instead, most of the offending comments appear to have been relayed to Plaintiff by her friends or were found in comments made on an article about Plaintiff's lawsuit on a newspaper's website. While the comments were undoubtedly upsetting and at times disturbing, Plaintiff points to no authority for the proposition that the failure of school administrators to police anonymous comments made on a newspaper's website is actionable. Accordingly, the Court finds no basis for concluding that an alleged failure to prevent third parties from discussing Plaintiff's lawsuit could serve as the basis for a claim of unlawful retaliation.

Regarding the final potential policymaker, Defendant Gress, the Court notes that the jury concluded that he did not engage in unlawful retaliation. Defendants and Plaintiff both appear to accept that this means that a jury could not find that he engaged in unlawful retaliation. The Court disagrees. A jury verdict that Defendant Gress did not unlawfully retaliate against Plaintiff indicates only that the jury resolved any disputes of fact in Defendant Gress's favor. As Judge Munley explained in his order addressing Defendants' motion for summary judgment, "a reasonable juror could conclude that Gress revealed to Smith that plaintiffs had complained about his teaching, and that such conduct would discourage an ordinary person from complaining in the future." Young v. Pleasant Valley Sch. Dist., No. 3:07-cv-854, 2010 U.S. Dist. LEXIS 119, at *16 (M.D. Pa. Jan. 4, 2010). At trial, evidence was introduced that suggested Defendant Gress may have told Defendant Smith that Plaintiff had complained about his classroom. While the Court is skeptical that this evidence is sufficient to support a claim of retaliation, Judge Munley's prvious ruling on this issue binds this Court to so find. Defendants' real objection is not that there was no evidence to support retaliation, but rather, that the verdict finding retaliation by Defendant Pleasant Valley was inconsistent with the jury's finding that there was no retaliation by Defendant Gress. Accordingly, the Court finds that because a jury could have found that Defendant Gress engaged in retaliatory conduct, the Court cannot find that Defendant Pleasant Valley is entitled to judgment as a matter of law on this issue.

B. Whether Plaintiff Engaged in Protected First Amendment Activity

Defendants next argue that Defendant Pleasant Valley is entitled to judgment as a matter of law because Plaintiff did not engage in protected First Amendment conduct. Plaintiff responds that Defendant's argument has not been preserved, and that to the extent it has, it fails as a matter of law. The Court will consider whether the motion has been preserved before reviewing the merits of Defendants' contentions.

Regarding the issue of whether Defendants properly preserved their motion for judgment as a matter of law on the issue of whether Plaintiff engaged in protected First Amendment activity, the Court finds that Defendants have properly preserved this claim in part. As has been previously noted, a Rule 50(b) motion may only be made where the moving party has first filed a motion pursuant to Rule 50(a) on the issue. In the present matter, Defendants made a Rule 50(a) motion at the close of Plaintiff's case-in-chief, which was then renewed at the close of Defendants' case-in-chief. Nowhere in those motions did Defendants argue that Plaintiff did not engage in protected First Amendment activity. Defendants counter that they raised the issue via a Rule 12(b)(6) motion and renewed the issue during the charging conference. Defendants did raise the issue of whether Plaintiff engaged in protected activity:

I don't think that they ever stated a cause of action under the First Amendment expression clause.

I think that they -- if a cause of action exists under the First Amendment, it's under the petition clause. And I'll phrase that as an objection and ask that instead of protected speech, it's a right to petition government, because that's what was argued here. At one point I think we argued that the mere reporting of teacher misconduct didn't qualify as First Amendment. I'd say it's not protected speech, I'd say it's petitioning government. [. . .]

Okay. Again, I'll just preserve that, as well. It's an interesting question. I think that there are different aspects that may come into play with regard to what standards apply and whether or not, in fact, this is a public matter. (Doc. No. 315 at 803:11-804:20.) Although the motion was not technically raised in the context of a Rule 50(a) motion, other courts have found that a motion for judgment as a matter of law raised in the form of an objection to proposed jury instructions may excuse technical noncompliance with Rule 50(b). See, e.g., Lentz v. City of Cleveland, 333 F. App'x 42, 55 (6th Cir. 2009); Scottish Heritable Trust, PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996)). Because the issue was raised before either party delivered their closing arguments and before the case was sent to the jury, Plaintiff still could have moved for leave to call rebuttal witnesses or provide any additional evidence that she felt she needed to cure the defect. Accordingly, the Court is satisfied that the issue of whether complaints about a teacher are protected speech is preserved. Defendants did not, however, raise the issue of whether Plaintiff's parents could speak on her behalf for purposes of a First Amendment retaliation claim.

Accordingly, that issue is not preserved, and the Court will not consider it.*fn9

While the issue of whether complaints about a teacher are protected was preserved, the Court finds no merit to Defendant Pleasant Valley's contention that Plaintiff did not engage in protected First Amendment activity because she did not speak out on a matter of public concern. Defendants, relying on Azzaro v. County of Allegheny, contend that "[t]o be protected by the First Amendment, speech must 'involve a matter of public concern.'" (Doc. No. 316 at 21 (quoting Azzaro v. Cnty. of Allegheny, 110 F.3d 968, 976 (3d Cir. 1997).) Defendants, however, fail to accurately grasp the context of this rule, namely, that "a public employee's expressive conduct" is only protected when the speech is about a matter of public concern. Azzaro, 110 F.3d at 976 (emphasis added). There can be no doubt that speech regarding private matters is still subject to First Amendment protection. See Connick v. Myers, 461 U.S. 138, 147 (1983) (citing United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 223 (1967)). As Judge Munley explained in rejecting Defendants' motion to dismiss the First Amendment retaliation claims:

[T]o determine whether plaintiffs -- in particularly the two parents named as plaintiffs -- engaged in constitutionally protected conduct we simply ask whether plaintiffs engaged in protected activity, here speech. The Third Circuit Court of Appeals has held that "except for certain narrow categories deemed unworthy of full First Amendment protection -- such as obscenity, 'fighting words' and libel all speech is protected by the First Amendment." Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 283 (3d Cir. 2004) (citing R.A.V. v. St. Paul, 505 U.S. 377, 382-90 (1982)). Such "protection includes private expression not related to matters of public concern." Id. Thus, "'speech unrelated to a matter of public concern is not, like obscenity, entirely outside the protection of the First Amendment. While the government as employer may discharge a public employee for such speech, the government as sovereign may not sanction the same individual when she engages in speech as a citizen, outside the employment context.'" Id. at 284 (quoting Azzaro v. Cnty. of Allegheny, 110 F.3d 968, 976 n.3 (3d Cir. 1997)). In complaining to the school district about the content of Defendant Bruce's instruction, then, the plaintiffs engaged in a protected activity.

Young v. Pleasant Valley Sch. Dist., No. 3:07-cv-854, 2008 U.S. Dist. LEXIS 10829 at *12-*13 (M.D. Pa. Feb. 13, 2008). Because Judge Munley's decision remains the law of this case, the Court finds no basis for concluding that Plaintiff was only entitled to First Amendment protection if she was engaged in speech on a matter of public concern.

In addition, because Plaintiff has advanced an "imputed speech" theory whereby she argues Plaintiffs William and Patricia Young's speech should be imputed to Plaintiff, Defendant Pleasant Valley argues that the jury verdict against Plaintiffs Patricia and William Young and in favor of Plaintiff M. Young is inconsistent. The Court disagrees. The jury's verdict does not necessarily require a finding that Plaintiffs Patricia and William Young did not engage in protected activity. The jury could have concluded that Plaintiff's parents engaged in protected activity, but that Defendant Pleasant Valley only retaliated against Plaintiff. Accordingly, the Court finds no inconsistency in the verdicts and no basis to overrule them on these grounds. Therefore, the Court declines to enter judgment as a matter of law on the issue of whether Plaintiff engaged in protected First Amendment activity.

C. Inconsistent Verdict as to School District and Gress

Defendants next argue that Defendant Pleasant Valley is entitled to a new trial on Plaintiff's First Amendment retaliation claim because the jury returned an inconsistent verdict. Where a jury returns a verdict that is genuinely inconsistent, the proper remedy is to order a new trial. Mosley v. Wilson, 102 F.3d 85, 91 (3d Cir. 1996) (quoting Los Angeles v. Heller, 475 U.S. 796, 805 (1986) (Stevens, J. dissenting)). Defendants argue that the verdict was inconsistent in the following ways: (1) finding liability as to Defendant Pleasant Valley is inconsistent with the jury finding that Defendant Gress, the only relevant policymaker, was not liable; and (2) finding liability as to Defendant Pleasant Valley as to Plaintiff M. Young but finding no liability as to Plaintiffs Patricia and William Young. The Court has already addressed the second alleged inconsistency. Accordingly, the Court will only consider whether the jury's verdict against Defendant Pleasant Valley is inconsistent with its finding that Defendant Gress did not violate Plaintiff's rights.

As discussed, supra, to state a claim against a municipal entity pursuant to Section 1983, a plaintiff must identify a policy, practice, or custom of that municipal entity to support liability. Monell, 436 U.S. at 694. Applying this principle to the facts of this case, municipal liability is possible only on a finding that Defendant Gress retaliated against Plaintiff in violation of her First Amendment rights. In response to the query as to whether Plaintiff proved that "Defendant John Gressretaliated against [M. Young] for exercising her First Amendment right to speech," the jury answered, "No." (Doc. No. 280.) Yet in response to the same question as to Defendant Pleasant Valley, the jury made an affirmative finding of retaliation. Either the jury misunderstood the principle of municipal liability and held Defendant Pleasant Valley responsible on a respondeat superior theory, or the jury ignored the Court's instructions and arrived at a compromise verdict. It is plain, in light of the Court's previous analysis of the actions of all relevant policymakers, that the verdicts against Defendant Pleasant Valley and in favor of Defendant Gress are entirely inconsistent and irreconcilable. Accordingly, the Court finds that a new trial is warranted pursuant to Rule 59(a) of the Federal Rules of Civil Procedure as to the First Amendment retaliation claims against Defendants Gress and Pleasant Valley.

II. EQUAL PROTECTION

A. Individual Liability for Section 1983 Hostile Educational ...


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