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Migiliore v. Ackerman

United States District Court, Third Circuit

August 12, 2013

RICHARD W. MIGLIORE, J.D. Plaintiff,
v.
ARLENE ACKERMAN, Superintendent; THE SCHOOL DISTRICT OF PHILADELPHIA, THE SCHOOL REFORM COMMISSION; and, COMMISSIONERS ROBERT L. ARCHIE., JR., ESQUIRE, Chairman, DENISE McGREGOR ARMBRISTER, JOSEPH A. DWORETZKY, ESQUIRE, and JOHNNY IRIZARRY; LUCY FERIA, Regional Superintendent; JAMES DOUGLASS, Assistant Regional Superintendent; ESTELLE G. MATTHEWS, Chief Talent Development Officer; ANDREW ROSEN, ESQUIRE, Human Resources Representative; and MARY SANDRA DEAN, Principal. Defendants.

MEMORANDUM

DuBOIS, JAN E., J.

I. INTRODUCTION

This case involves the free speech and due process rights of a former public school assistant principal. Plaintiff, Richard Migliore, was a public school employee for over thirty years and an assistant principal since 1994. In September 2009, however, Migliore submitted his notice of retirement following a dispute over whether he would be demoted from his position as an assistant principal. On June 20, 2011, Migliore filed suit against numerous defendants on the grounds that they retaliated against him in violation of his free speech rights, denied him due process, and failed to prevent wrongful acts against him. In his Second Amended Complaint, he asserts claims against the School District of Philadelphia, former superintendent Dr. Arlene Ackerman, former regional superintendent Lucy Feria, former assistant regional superintendent James Douglass, former human resources employee Estelle Matthews, employee relations deputy Andrew Rosen, and former principal Mary Sandra Dean. Migliore has also named as defendants the School Reform Commission (“SRC”)–the governing body of the School District–along with commissioners of the SRC: former chairman Robert Archie, Jr., Joseph Dwortetzky, Esq., Johnny Irizarry, Esq., and Denise Armbrister. Each of the individual defendants are named in their personal capacities. (Second Am. Compl. at ¶1.) Presently before the Court are cross-motions for summary judgment. For the reasons that follow, the Court denies Migliore’s motion, and grants in part and denies in part defendants’ motion.

II. BACKGROUND

A. Career History Through 2006-2007 School

Year Migliore began his teaching career in 1975 at University City High School in Philadelphia, Pennsylvania and spent 18 years at that school as a teacher. (Defendants’ Undisputed Facts, at ¶¶16-17.) Migliore then worked as an assistant principal, primarily at Furness High School, until 2006, when he was assigned to Jules Mastbaum Vocational/Technical School (“Mastbaum”) in Philadelphia. (Id. at ¶¶ 22-23.) Defendant Mary Sandra Dean was the principal of Mastbaum at that time. (Id.) Dean claims that she spoke with Migliore several times about problems with his job performance during his first year at Mastbaum, the 2006-2007 school year, but states she did not put any specific complaints in writing that year. (Id. ¶¶ 34-37.)

For several years prior to his assignment to Mastbaum, Migliore was engaged in writing a book entitled “Whose School is It? The Democratic Imperative for Our Schools” (“The Book”). The Book generally discusses principles of “school governance and leadership.” (Pl. Ex. A; Pl. Statement of Material Facts, at ¶13.) On August 8, 2007, Migliore addressed the SRC concerning the contents of his soon-to-be-published Book and provided the SRC commissioners with copies of the Book. (Pl. Resp. at 10.) Migliore claims that prior to the address, he received a call from the assistant to Regional Superintendent Feria, who said that if he spoke to the SRC he would be “committing suicide.” (Id.) Migliore also claims that he met with Feria the following week, gave her a copy of the Book, and she expressed displeasure with the chapter titled the “The Inherent Immorality of Bureaucracy.” (Id.)

B. 2007-2008 School Year

Upon returning to Mastbaum for the 2007-2008 school year, Migliore contends that he experienced “immediate” hostility from Dean, although Dean claims that she was not aware of Migliore’s address to the SRC or its contents. (Id.; Deposition of Mary Sandra Dean, at 106.) Dean also testified at her deposition that she was not aware that Migliore was working on the Book prior to its publication. (Deposition of Mary Sandra Dean, at 103.) Specifically, Dean stated that she had gone into Migliore’s office, although she could not recall when, and Migliore told her, “I wrote a book and I’m going to do another chapter . . . [and] I’m thinking about putting you in my book.” (Id. at 104.) Dean responded, “Be very careful what you put in writing.” (Id. at 105.) For his part, Migliore claims that Dean first became aware of the Book some time in the fall of 2007. (Deposition of Richard Migliore, at 61.) Migliore concedes that he does not “think that [Dean] read the book, ” but believes that she certainly saw the Book’s cover and could “surmise what [the book] means . . . . ” (Id. at 57.)

Dean claims that she wrote “four or five” disciplinary memoranda known as “204’s” during the 2007-2008 school year in relation to Migliore’s “job performance.” (Deposition of Mary Sandra Dean, at 121.) Migliore disputes this statement and argues that only “one 204 was written pertaining to the school year 2007-2008 . . . . ” (Pl. Answer to Defs’ Facts, at ¶ 39.) Migliore further claims that at one point during the year, because he had written a “satisfactory observation” of a provisional teacher who Dean “didn’t like, ” Dean told Migliore that he should transfer to a different school, or she would “write so much paper on you that you will lose your job by the end of the year.” (Pl. Resp. at 11; Deposition of Richard Migliore, at 60.)

Following this exchange, Migliore wrote a letter entitled “Transfer Request and Filing of Formal Complaint” to Mike Lerner, then-president of his union, the Commonwealth Association of School Administrators (“CASA”). (Pl. Ex. B.) In the letter, Migliore wrote that Dean was “obviously looking for reasons she can use to justify ‘writing me up’ . . . . It is clear that I am working within a ‘hostile working environment’ and it is affecting me.” (Id.) Migliore requested in the letter that Lerner “officially begin the process of requesting a transfer, ” from Mastbaum to another school. (Id.) Migliore later participated in a conference with regional superintendent Feria concerning this request, but it was denied. (Pl. Resp. at 11.)

C. 2008-2009 School Year

On August 23, 2008, Migliore again addressed the SRC on issues of democracy and school governance and repeatedly mentioned the Book. (Pl. Resp. at 11.) He again gave the SRC commissioners copies of the Book following this address. (Id.) Migliore adds that he had also given then-superintendent Ackerman a copy of the Book earlier that month and that she had “eagerly” accepted it. (Id.) Dean contends that she was not aware of Migliore’s second address to the SRC or its contents.

A subsequent letter from then-superintendent Ackerman and then-Chairman Archie states that during the 2008-2009 school year Dean wrote numerous disciplinary memoranda concerning Migliore’s job performance, including complaints regarding his failure to complete a task concerning textbook accounting and locker assignments, his failure to complete the distribution of Workmen’s Compensation forms to staff members, and his failure to monitor weekly lesson plans. (Pl. Ex. S, at 1.) The letter goes on to state that Dean twice recommended that Migliore be suspended without pay for multiple days, and on December 19, 2008 Migliore was suspended for two days without pay for certain of these failures. (Id.)

D. Recommendation of Demotion

The letter from then-superintendent Ackerman and then-Chairman Archie concludes by stating that on May 29, 2009, Dean issued a 204 which stated that Migliore had been “consistently negligent in the performance of [his] duties as an assistant principal, ” and recommended that Migliore be demoted from assistant principal to teacher. (Id. at 2.) This recommendation was reiterated in a “204 conference summary” issued by Dean on June 15, 2009. (Defendants’ Undisputed Facts, at ¶70.) On June 25, 2009, assistant regional superintendent James Douglass participated in a “secondary conference” with Migliore regarding Dean’s demotion recommendation. (Id. at ¶75.) Douglass subsequently issued a “Record of Conference, ” which recommended that Migliore be demoted from his position as assistant principal. (Id.) Then-regional superintendent defendant Lucy Feria claims she participated in a secondary conference in May or June of 2009 and recommended Migliore’s demotion, though Migliore disputes that Feria was present at any such conference. (Id. at ¶78; Pl. Answer to Defs’ Facts, at ¶78.) Migliore claims that after the June 25, 2009 conference he turned in his keys upon Dean’s request and moved all of his belongings out of his Mastbaum office. (Pl. Ex. KK, at 491.)

On July 23, 2009, Migliore received an email from School District’s Office of Professional Staffing which stated that they had been “notified of your demotion from assistant principal at Mastbaum High School.” (Def. Ex. 15.) Migliore responded that this was “interesting to hear since I have not been given official notice yet and this situation was very much in controversy.” (Def. Ex. 16.) The Office of Professional Staffing responded that “we were told this was final, but we don’t always get the correct information. I would advise you to choose a location [to work as a teacher], and you can always give it up later in the summer if things work out.” (Id.) Milgiore later sent that office an e-mail stating that he did not wish to choose a teaching position because, “[a] demotion can not take place without a vote of the School Reform Commission . . . I have not yet been demoted and do not expect to be.” (Def. Ex. 19.) On July 29, 2009, Migliore received a form titled “Assignment Introduction, ” which Migliore claims officially assigned him to a position as a teacher. (Pl. Statement of Material Facts, at ¶41.)

On August 14, 2009, then-superintendent Ackerman and then-Chairman Archie sent Migliore the letter mentioned above, which summarized several 204’s and other disciplinary memoranda issued by Dean and stated that Ackerman and Archie “would recommend to the School Reform Commission that you be demoted to the position of teacher.” (Pl. Ex. S.) The letter noted that plaintiff was “entitled to request a hearing before the School Reform Commission . . .” and set August 25, 2009 as the date for such a hearing. (Id. at 3.)

On August 18, 2009, Migliore sent a letter to Francis Bielli, Assistant General Counsel for the School District, requesting a hearing and stating Migliore’s intent to appeal the recommendation of his demotion. (Pl. Ex. T.) Bielli then notified Migliore that he had received his notice of appeal and request for a hearing. (Pl. Ex. At U.) Bielli stated that the hearing previously scheduled for August 25, 2009 would be postponed, and that he would be requesting available dates from SRC commissioners for a future hearing. (Id.) However, before a new hearing date could be scheduled, Migliore submitted his notification of retirement on August 31, 2009. (Pl. Ex. AA.) In his retirement notification, Migliore stated that his last day of work was June 30, 2009 and that his position was assistant principal. (Id.) On September 3, 2009, the Retirement Department for the school district sent Migliore a letter to “acknowledge [his] retirement from [his] position with the School District of Philadelphia at the close of business June 30, 2009.” (Pl. Ex. CC.)

E. Hearings and Procedural History

Following his notice of retirement, the SRC held multiple hearings regarding the recommendation that Migliore be demoted from assistant principal. (Defendants’ Undisputed Facts, at ¶101.) In all, the SRC held hearings before Commissioner Dworetzky on May 25, 2010, September 14, 2010, September 29, 2010, and January 6, 2011. (Id. at ¶102.) At the conclusion of the hearings, Commissioner Dworetzy “found that Migliore was not constructively discharged . . . [and] recommended to the SRC that the SRC dismiss the matter without further hearing because Migliore had not been demoted prior to his retirement and had not been constructively discharged.” (Id. at ¶107.) By resolution dated June 15, 2011, the SRC resolved that Milgiore retired from the School District effective June 30, 2009, and adopted the findings of Commissioner Dworetzky. (Id. at ¶108.)

Milgiore then appealed that decision to the Secretary of Education. Migliore v. Sch. Dist. of Philadelphia, 2013 WL 3156533, at *3 (Pa. Commw. Ct. June 18, 2013).[1] “After conducting a de novo review, the Secretary, by order dated August 3, 2012, found that Migliore was not demoted or constructively discharged, but rather that he had voluntarily retired. Thus, he denied Migliore’s appeal.” Id. On August 29, 2012, Migliore appealed to the Pennsylvania Commonwealth Court on several grounds, including “whether Migliore’s due process rights were violated . . . . ” Id. at *1. In an opinion issued on June 18, 2013, the Commonwealth Court held in relevant part that Migliore was “demoted in fact, ” but no state law violation occurred because he voluntarily resigned before a hearing could be held. Id. at *4-6. In addition, the court ruled that because Migliore ...


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