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Latorre v. Downingtown Area School District

United States District Court, E.D. Pennsylvania

May 22, 2017

WILLIAM N. LATORRE, et al., Plaintiffs,


          EDUARDO C. ROBRENO, J.

         Plaintiffs William LaTorre and his company, LaTorre Consulting, Inc. (together, “Plaintiffs”), bring this action against Downingtown Area School District and its superintendent, Lawrence Mussoline (together, “Defendants”). Plaintiffs allege that Defendants retaliated against them, in violation of the First Amendment, after LaTorre spoke to a reporter about a matter involving a student. Each side has now moved for summary judgment. For the reasons that follow, the Court will deny both motions.

         I. BACKGROUND

         During the 2013-2014 and 2014-2015 school years, Plaintiff William LaTorre worked at Downingtown East High School - a facility of Defendant Downingtown Area School District (“DASD” or “the School District”) - as an armed school resource officer.[1] LaTorre Dep. 51:16-24, Apr. 6, 2016, ECF Nos. 20-1, 20-2, 20-3, 20-4. In that position, LaTorre was “watching kids come in the building, parking cars, or whatever, just general security of the school.” Mussoline Dep. 12:13-15, Apr. 12, 2016, ECF No. 18-1.

         For the 2014-2015 school year, LaTorre was also hired in a new DASD position: Chief Security Officer (“CSO”). See id. at 61:19-24; LaTorre Dep. 61:7-18. Specifically, on September 24, 2014, DASD signed a contract with Plaintiff LaTorre Consulting, Inc. (“LCI”); LaTorre owns LCI and is its only employee. See Contract Services Agreement, ECF No. 20-4; LaTorre Dep. 10:8-11, 42:6-11. As CSO, LaTorre - through LCI - was

responsible to oversee all security matters, including, but not limited to, review of and advice on video surveillance and other security needs and operations (including cyber security), consult with and meet with CLIENT and its representatives on a routine basis, coordinate and supervise drills designed to enhance the safety and improve emergency response (including the establishment of an incident command system and protocol and training thereon), serve as a liaison and periodically interface with all relevant law enforcement agencies, emergency responders (fire, ambulance, etc.) and any CLIENT private security service engaged, survey, assess, and provide written recommendations to enhance security regarding all of CLIENT's facilities and CLIENT's Emergency Operations and Communications Plans and advise and consult on all relevant policies, Codes of Conduct and protocols related to any security issue.

         Contract Services Agreement at ¶ 2. The contract further noted that “[t]his Scope of Services is not intended to identify each and every area for which CONTRACTOR shall have responsibility, and is not intended to limit the CONTRACTOR's responsibility under this Agreement. The CLIENT shall have the right under this Agreement to identify any other area of security for which CONTRACTOR shall be responsible.” Id.

         The incident underlying this lawsuit began on September 30, 2014, just a few days after LCI and DASD entered into the contract. That morning, Gordon's Sports Supply - a sporting goods and hunting supply store in Eagle, Pennsylvania - contacted the police regarding an attempted break-in and potential theft the night before. Jones Dep. 7:17-8:21, Apr. 15, 2016, ECF No. 20-7. Based on surveillance videos, the responding detective - Detective Jones - concluded that (1) a crossbow scope - but no ammunition, guns, or anything else - had been taken, Id. at 9:23-10:15; and (2) the perpetrator was a boy, approximately 13 years old, Id. at 13:3-14:3. Because of the apparent age of the boy - that is, knowing that the boy would have been a student - Detective Jones contacted LaTorre for help identifying the boy. Id. at 16:2-10. Jones provided LaTorre with stills from the surveillance videos, and LaTorre was able, later that day, to identify the boy as a student at Lionville Middle School (“the student”). Id. at 18:24-21:1. The student's belongings were checked, and it was determined that he “was not in possession of [any stolen items] at the school.” Id. at 31:6-23.

         That same afternoon, while LaTorre, Jones, and school administrators were investigating this situation, the DASD public relations director, Pat McGlone, got a call from Mike Neilon, a television reporter. Mussoline Dep. 14:19-23; 16:10-21. The reporter told McGlone that the news station was dispatching a news crew to Lionville because they had learned that there was a child in the school with weapons and ammunition, and that there was possibly an active shooter situation. Id. at 14:24-15:3. After confirming with Lionville and DASD officials that Neilon's information was false, and that the student had no weapons, the DASD superintendent, Defendant Lawrence Mussoline, instructed McGlone to call Neilon back and tell him that his information was wrong. Id. at 15:4-16, 17:10-21. McGlone did so, but Neilon said he would not call off the news team because his source was “excellent.” Id. at 15:17-19, 17:4-6.

         LaTorre was aware that the media was pursuing a story at Lionville because he was on a call Mussoline made to confirm Lionville's information. LaTorre Dep. 137:25-140:17. He also learned from Detective Jones, later that afternoon, that the news station had a news van parked at Gordon's Sports Supply, which happened to be located across the street from the police station. Id. at 145:25-146:15. Detective Jones expressed his concern, which LaTorre shared, about getting the student into the police station - without attracting the attention of the news van - for the purposes of formally interviewing him, completing paperwork, etc. Id. at 146:13-147:18.[2] As a result of this conversation, LaTorre called Rob Reed, a DASD official, to inform him that a news van was parked across the street from the police station. Id. at 148:17-149:11. In response, Reed said that other school district employees had gone home for the day, and that they would pick up the issue the next day. Id. At 149:12-18.[3]

         LaTorre then called Neilon, for the purpose of “see[ing] if [LaTorre] could exercise influence on [Neilon] to not cover a story on this child.” Id. at 149:21-150:13. Specifically, LaTorre told Neilon, “I think you should kill the story. There's nothing there.” Id. at 152:10-14. Neilon informed LaTorre that the District Attorney's Office was also “telling him to back off” and that Neilon had decided to do so by pulling the news van. Id. at 153:7-10.

         Mussoline was “ecstatic” that LaTorre “was able to get the vans called off.” Mussoline Dep. 27:18-23. But he was also very concerned about the source of Neilon's false information, and why Neilon thought the source was so solid that McGlone could not persuade Neilon that the story was false. Id. at 27:1-17. Mussoline asked Neilon whether he could confirm or deny that LaTorre was Neilon's original source. Id. at 28:3-9. Neilon said that while he could confirm that LaTorre called off the news vans, he would not say who gave him the false information in the first place.[4] Id. at 28:10-20. In general, Mussoline's confidence in LaTorre “was waning because of Neilon's confirmation that he had had this ability [to get the news vans called off] that Ms. McGlone apparently lacked.” Id. at 32:7-11.

         On October 1, the day after the investigation and LaTorre's conversation with Neilon, Mussoline suspended LaTorre. Id. at 30:2-9. He also instructed Signal 88 that LaTorre could not perform services for DASD as an employee of Signal 88 while suspended. Compl. Ex. F, ECF No. 1. Over the next few days, Mussoline interviewed several people in an effort to determine who gave false information to Neilon. Mussoline Dep. at 36:7-41:20. At the conclusion of these interviews, Mussoline determined that he had “just . . . lost confidence” in LaTorre, Id. at 48:5-6, and, at the advice of the district solicitor, decided that this loss of confidence justified the termination of the contract between DASD and LCI, Id. at 48:6-11.

         Accordingly, on October 6, Mussoline met with LaTorre. According to LaTorre, Mussoline told LaTorre that he had no proof LaTorre was the leak, and then said: “I really wish you would have told me that you called the media to cancel their response to the child at the police station. . . . We need people we can trust. And I'm going to exercise the contract.” LaTorre Dep. 198:18-25. In LaTorre's view, Mussoline “seemed more upset that he didn't know” that LaTorre placed the call to Neilon than the fact that LaTorre did place the call. Id. at 232:15-20.

         At any rate, on October 6, DASD terminated its contract with LCI and LaTorre. Compl. Ex. G, ECF No. 1.

         LaTorre and LCI (“Plaintiffs”) filed the instant action on September 21, 2015. The complaint contained two counts, both alleging violations of the First Amendment - one as to Mussoline and one as to DASD. ECF No. 1. Defendants filed a motion to dismiss, ECF No. 7, which the Court denied, ECF No. 16. Defendants then filed an answer, ECF No. 17, and the parties engaged in discovery. Thereafter, on May 20, 2016, Plaintiffs and Defendants filed cross-motions for summary judgment. ECF Nos. 18, 19. They also filed responses to each other's motions, ECF Nos. 22, 23, and the Court held a hearing on the motions on April 18, 2017, see ECF No. 25. The motions for summary judgment are now ripe for disposition.


         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A motion for summary judgment will not be defeated by ‘the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A fact is “material” if proof of its existence or nonexistence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

         The Court will view the facts in the light most favorable to the nonmoving party. “After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth., 593 F.3d 265, 268 (3d Cir. 2010). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the nonmoving party who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed.R.Civ.P. 56(e)).

         The guidelines governing summary judgment are identical when addressing cross-motions for summary judgment. See Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). When confronted with cross-motions for summary judgment, “[t]he court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.” Schlegel v. Life Ins. Co. of N. Am., 269 F.Supp.2d 612, 615 n.1 (E.D. Pa. 2003) (Robreno, J.) (alteration in original) (quoting 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (1998)).


         Plaintiffs' claim is that DASD and Mussoline terminated the contract, in violation of the First Amendment, in retaliation for LaTorre speaking to Neilon about calling off the news vans. Defendants request that the Court enter judgment in their favor and close the case. Plaintiffs request that the Court enter judgment in their favor as to liability, presumably leaving damages for resolution through settlement or trial.

         The same legal framework applies to both motions: “To establish a First Amendment retaliation claim, a public employee must show that (1) his speech is protected by the First Amendment and (2) the speech was a substantial or motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden to the employer to prove that (3) the same action would have been taken even if the speech had not occurred.” Dougherty ...

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