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John L. Byars v. the School District of Philadelphia

April 30, 2013

JOHN L. BYARS,
PLAINTIFF,
v.
THE SCHOOL DISTRICT OF PHILADELPHIA, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiff, John Byars, has brought suit against Defendants, the School District of Philadelphia ("School District"), theSchool Reform Commission ("SRC") and numerous School District employees,*fn1 alleging various causes of action arising from events and ensuing publicity surrounding the School District's award of a $7.5 million contract for the installation of security cameras. Plaintiff's seventeen-count complaint asserts: defamation (Counts I, III, V, VII, IX); invasion of privacy/false light (Counts II, IV, VI, VIII, X), intentional infliction of emotional distress (Count XI); intentional interference with contractual relations (Count XII); retaliation in violation of the First Amendment, brought pursuant to 42 U.S.C. § 1983 (Count XIII); denial of due process rights under the Fifth and Fourteenth Amendments, brought pursuant to § 1983 (Counts XIV, XV); civil conspiracy (Count XVI); and aiding and abetting (Count XVII).

Presently before the Court is Defendants' Motion to Dismiss. For reasons detailed below, Defendants' motion will be granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Based upon the averments in the complaint, the pertinent facts, viewed in the light most favorable to Plaintiff, are as follows:

Plaintiff John Byars was the Executive Director of Procurement Services for Defendant, the School District of Philadelphia. His responsibilities included, among other things, administration of the School District's solicitation process for the acquisition of goods and professional services. (Compl. ¶¶ 13-14.)

On September 23, 2010, Defendant Arlene Ackerman, then-School District Superintendent,*fn2 directed Plaintiff to revoke a $7.5 million project for security camera installation preliminarily awarded to Security and Data Technologies and ordered that the award be given to IBS Communications ("IBS"). In accordance with Ackerman's instruction, Plaintiff prepared a resolution awarding the project to IBS for presentation to the School Reform Commission. The resolution was approved by the SRC on October 20, 2010. (Compl. ¶¶ 17-19, 23-24.)

On or about November 15, 2010, the Philadelphia Inquirer ("Inquirer") began an investigation into the award of the camera surveillance project to IBS. That same day, Ackerman and her staff held a meeting to discuss the investigation. Participants in this meeting included: then-Deputy Superintendent Leroy Nunery, II, Chief Communications Officer Jamilah Fraser and Deputy Chief Communications Officer Shana Kemp. Plaintiff alleges that, at this meeting, the participants devised a scheme to make him the "scapegoat for any improprieties associated with the IBS contract." Plaintiff asserts that this scheme emanated from the participants' concern that he may have cooperated with, or would in the future cooperate with, the Inquirer investigation. (Compl. ¶¶ 28, 30-31.)

On the following day, Nunery met with Plaintiff to criticizehis work performance and inform Plaintiff that he would be suspended without pay for three days during the upcoming Thanksgiving and Christmas holidays. A letter documenting the suspension was entered in Plaintiff's personnel file on November 22, 2010. However, despite Nunery's statement, no suspension was implemented in November or December 2010. Plaintiff claims that this was his first poor performance review in his eight years of employment with the School District. (Compl. ¶¶ 33-34, 36.)

On November 28, 2010, the Inquirer published an article entitled "Ackerman Steered Work, Sources Say," which was critical of the contract awarded to IBS. The article quoted Kemp as stating that Ackerman had nothing to do with the decision, but rather the "procurement officer approved it." The School District issued a press release the next day, wherein Nunery defended the IBS contract. However, Plaintiff claims that Nunery "did nothing to dispel the previously-published false statements that [Plaintiff] was responsible for selecting IBS." (Compl. ¶¶ 37-41, 43, 45-46, Ex. B, at 1, Ex. C.)

On December 2, 2010, the Inquirer published an article entitled "Ackerman Acknowledges Directing Surveillance Work to Minority Firm IBS." This article stated that Ackerman "acknowledged that she personally directed her staff" to ensure that IBS got a share of the surveillance camera contract. Further, the article quoted Nunery as stating that he "made the decision" to award the contract to IBS. When asked whether the decision was made by the chief procurement officer, Nunery replied, "No." The article mentioned that Kemp had formerly stated that Plaintiff approved the decision. (Compl. ¶¶ 47-48, Ex. D.)

On or about December 13, 2010, Plaintiff was informed that he would be suspended with pay so that an investigation into the IBS contract and subsequent disclosure of confidential information could be undertaken. Plaintiff was subsequently escorted out of the School District building in the presence of others. On January 7, 2011, the Inquirer published an article entitled "Memo Warns Philly School District Staff of Penalties for Leaks." The article named Plaintiff as one of six employees suspended during the investigation. On January 25, 2011, the Inquirer published a subsequent article entitled "Four Suspended Philadelphia School District Administrators are Back on the Job." The article reported that Plaintiff was one of two employees still under suspension. (Compl. ¶¶ 50-52, 55, 57, Ex. F.)

On January 30, 2011, the Inquirer ran an article entitled "Accused of Rigging, District to Redo Bids." This article stated that Plaintiff was accused of interfering with the competitive bidding process by seeking to steer a previously awarded contract from the Elliott-Lewis Corporation to the minority owned U.S. Facilities, Inc. The article used several quotes from a School District source supporting the accusation. Plaintiff disputes the facts reported in the article and alleges that the School District source knew of the falsity of these facts. (Compl. ¶¶ 59-61, 63, Ex. G.)

While on suspension, Plaintiff was contacted by the FBI as part of a government investigation into the IBS contract. Plaintiff subsequently advised Defendant Estelle Matthews, Chief Talent and Development Officer for the School District, and the District's general counsel, Michael Davis, of the FBI's request to conduct an interview. Sometime in January 2011, the special counsel hired by the School District to conduct an internal investigation requested that Plaintiff meet with him prior to his FBI interview. During the course of these discussions, which included Davis, Plaintiff asked that the School District provide him with private representation during his meeting with the FBI. This request was denied. (Compl. ¶¶ 64-67.)

On February 11, 2011, Plaintiff was interviewed by the FBI. On or about February 15, 2011, Plaintiff informed Davis of his meeting with the FBI. Two days later, Plaintiff received notice of a human resources conference to discuss his "improper work performance." On February 24, 2011, Plaintiff was again interviewed by the FBI. The next day, Plaintiff was informed that the three-day suspension ordered on November 22, 2010 would now be imposed in March and April 2011. (Compl. ¶¶ 68-72.)

On March 4, 2011, the School District issued a press release summarizing the findings of the internal investigation conducted by its special counsel. The press release stated that counsel had "found that Procurement Office staff decided to use IBS as the prime contractor." The press release further stated that special counsel concluded that the Procurement Office improperly delegated the role of managing the project and failed to have IBS prepare a cost estimate. (Compl. ¶¶ 75-77; Ex. H.)

On March 24, 2011, Plaintiff received a letter written by Defendant Matthews, advising that the School District was recommending his immediate termination to the SRC. The letter referenced the Elliott-Lewis incident and the three-day suspension as grounds for termination. The letter also stated that Plaintiff created and operated a website that violated the School District's Code of Ethics, despite the School District expressing approval in the past. The SRC approved the recommendation subject to Plaintiff's statutory right to challenge his termination. (Compl. ¶¶ 79-83.)

Plaintiff requested administrative review, and a multi-day hearing was later held over the course of several months. On November 15, 2012, the SRC adopted the findings and conclusions of the hearing officer, who determined that Plaintiff's termination was proper. Plaintiff appealed the decision to the Philadelphia County Court of Common Pleas, where the matter is still pending. (Compl. ¶ 83; Pl.'s Supp. Br. 1-2.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for failure to state a claim upon which relief can be granted. When ruling on a Rule 12(b)(6) motion, the court must accept the facts pled in the complaint as true and construe them in the light most favorable to the plaintiff. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The court may dismiss a complaint or claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, a plaintiff must provide more than a formulaic recitation of a claim's elements that amounts to mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570).

To determine the sufficiency of a complaint under Twombly and Iqbal, a court must take the following three steps: (1) the court must "tak[e] note of the elements a plaintiff must plead to state a claim;" (2) the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth;" and (3) "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (citations omitted).

III. DISCUSSION*fn3

A.Immunity -- Political Subdivision Tort Claims Act

Defendants first argue that, pursuant to Pennsylvania's Political Subdivision Tort Claims Act ("PPSTCA"), the School District, the SRC and the individual SRC Defendants*fn4 are immune from liability with respect to Plaintiff's state tort claims. (Defs.' Br. 30; Defs.' Reply Br. 10.) We agree.

Under the PPSTCA, local agencies, such as school districts and school reform commissions, are immune from liability "for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." 42 Pa. C.S. § 8541. While there are exceptions from the immunity granted under § 8541, none apply here. See 42 Pa. C.S. § 8542.*fn5

Municipal employees and officials "are generally immune from liability to the same extent as their employing agency, so long as the act committed was within the scope of the employee's employment." Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006) (citing 42 Pa. C.S. § 8545). However, the employee's immunity does not extend to acts that constitute "a crime, actual fraud, actual malice or willful misconduct." 42 Pa. C.S. § 8550.

Here, Plaintiff attempts to hold the individual SRC Defendants vicariously liable for the alleged misconduct of the individual School District Defendants. Plaintiff does not plead that any of the SRC members committed a crime or actual fraud, or that they acted with malice or engaged in willful misconduct. Indeed, the only factual allegation regarding these Defendants relates solely to the SRC's approval of the School District's recommendation to terminate Plaintiff, which was clearly within the scope of the SRC members' employment. (Compl. ¶ 83.) Thus, we find that Plaintiff's state law claims against Defendants Archie, McGregor-Armbrister, Dworetzky and Irizarry are barred by the PPSTCA.

Accordingly, Counts I-XII and XVI-XVII with respect to the School District, SRC, Archie, McGregor-Armbrister, Dworetzy and Irizarry are dismissed.

B.Defamation (Counts I, III, V, VII, and IX)

Defendants next argue that Plaintiff has failed to state a plausible claim for defamation. Specifically, Defendants contend that Plaintiff's defamation claims against the School District officials fail as a matter of law because those individuals maintain high public official immunity, and, in any event, Plaintiff has not pled the requisite elements to state such a claim. We address each argument in turn.

1.High Public Official Immunity Doctrine

Pennsylvania "exempts a high public official from all civil suits for damages arising out of false defamatory statements and even from statements or actions motivated by malice, provided the statements are made or the actions are taken in the course of the official's duties or powers." Smith v. Borough of Dunmore, 633 F.3d 176, 181 (3d Cir. 2011) (quoting Lindner v. Mollan, 677 A.2d 1194, 1195 (Pa. 1996)) (internal quotation marks omitted). The determination of whether a particular public officer is protected by absolute privilege depends on the nature of his duties, the importance of his office and whether or not he has policy-making functions. Lindner, 677 A.2d at 1198. Pennsylvania courts have recognized that school superintendents qualify as high public officials for purposes of this doctrine. Smith v. Sch. Dist. of Phila., 112 F. Supp. 2d 417, 425 (E.D. Pa. 2000).

In their motion, Defendants argue that high-ranking officials in the School District, including the individual School District Defendants in this case, are responsible for setting policy for Philadelphia's public education system and are therefore absolutely immune from liability for defamatory statements or actions taken in the course of their official duties. Defendants further contend that the conduct alleged in the ...


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