United States District Court, E.D. Pennsylvania
WILLIAM N. LATORRE, et al., Plaintiffs,
DOWNINGTOWN AREA SCHOOL DISTRICT, et al., Defendants.
EDUARDO C. ROBRENO, J.
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.
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. 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
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.
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
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.
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
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. 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.
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.
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. 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.
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.
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
rate, on October 6, DASD terminated its contract with LCI and
LaTorre. Compl. Ex. G, ECF No. 1.
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.
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.
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
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)).
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.
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 ...