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Krolczyk v. Goddard Systems, Inc.

Superior Court of Pennsylvania

May 23, 2017


         Appeal from the Order Entered March 3, 2016 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): 2008 CV 11907, 2008 CV 12139-CV



          BOWES, J.

         G. Michelle Krolczyk and Lydia DiCola ("Plaintiffs"), who instituted these wrongful discharge/defamation lawsuits, appeal from the March 3, 2016 order entering summary judgment in favor of Goddard Systems, Inc., Nicole Wishard, t/a the Goddard School of Harrisburg, the Goddard School, a fictitious name (collectively "Goddard"), and FLH, Inc., which is the franchisor of Goddard (collectively "Defendants"). We reverse the decision dismissing their wrongful discharge cause of action, but affirm the grant of summary judgment as to the defamation claim.

         Ms. Wishard owned and operated Goddard, a private school, and was the president of FLH, Inc. Ms. Krolczyk is a state certified pre-school educator through the academic board of private schools in Pennsylvania. Ms. DiCola is a Florida and Texas certified early childhood education teacher. We have consolidated the cases for purposes of appellate review as they were instituted based upon the same series of events, which occurred when Plaintiffs were co-instructors in a classroom at Goddard.

         In late 2007 and early 2008, Plaintiffs were working as pre-school teachers for Goddard co-instructing children aged three and four in a classroom known as the Junior Genius classroom. Ms. Wishard dismissed both women on February 14, 2008, and, the following day, a letter was disseminated to their students' parents regarding their termination. In their lawsuits, Plaintiffs alleged that they were wrongfully discharged after informing Ms. Wishard that they were going to report, as required by Pennsylvania law, that they suspected that one of their students, A.G., was being abused or neglected. They averred that the letter given to the parents was defamatory. Their cases were dismissed based upon the grant of summary judgment.

         The record indicates the following. A.G., a student in the Junior Genius classroom, was four years old when the pertinent events transpired. A.G.'s mother was Jennifer G., who was the Director of Education for Goddard and who supervised Plaintiffs. A.G. was developmentally delayed and extremely aggressive. Plaintiffs delineated that, during the waning months of 2007, A.G. engaged in the following behavior in their classroom: 1) called the teachers and other students profane names; 2) repeatedly threatened to shoot and kill or to stab the teachers and other students; 3) on numerous occasions, physically assaulted and threw objects at teachers as well as other students; 4) bit Plaintiffs and their co-workers with sufficient force to break the skin and leave welts and bruises; 5) otherwise terrorized students to such an extent that those students no longer wanted to attend Goddard; 6) continually defecated on himself and resisted efforts to clean up the feces; and 7) physically and verbally prevented the teachers from instructing any of their students. Based upon A.G.'s conduct, Plaintiffs suspected that he was being either neglected or abused. Jennifer G. admitted that her son's chronic bowel incontinence and hyper-aggression supported Plaintiffs' suspicion that he was being abused or neglected. Specifically, Jennifer G. conceded that "late stage potty training and inappropriate aggression" were "indicators" of a "possibility of abuse" and that her son A.G. had both of these "red flags." Deposition of Jennifer G., 4/13/11, at 78.

         Prior to December 2007, Plaintiffs sought help with A.G. from Ms. Wishard, suggesting that intervention from a state agency might be appropriate. Ms. Wishard failed to undertake any affirmative action, and instead, directed Plaintiffs neither to contact any child welfare agency nor to report that they suspected that A.G. was being abused or neglected. Since the above-delineated inappropriate behavior neither abated nor was addressed, in December 2007, Plaintiffs began to keep a daily journal to document A.G.'s conduct and their efforts to redirect his aggressive behavior. The journal indicated the following. A.G. urinated and/or defecated himself December 4th, December 5th, December 14th, December 17th, and, following the holiday break, on January 7th, January 9th, January 10th, January 11th, January 14th, January 16th, January 23rd, January 25th, January 29th, January 31st, February 4th, and February 6th, 2008. On many of these occasions, A.G. defecated in his pants more than once.

         On December 5th, A.G. threatened violence against children and adults and was very disruptive. On December 14th, he tormented and physically harassed a classmate, and on December 17th, he threw wooden blocks at a sleeping child. On that occasion, A.G. was restrained in the presence of Jennifer G., who immediately removed A.G. from the classroom. On January 8th, A.G. kicked, scratched, and tried to bite Ms. Krolczyk several times and informed her that he was "going to get a machine gun and load it with bullets and blow her head off." Deposition of Jennifer G., 4/13/11 at Exhibit D-12 (the "Journal") at 368. He also threw his shoes at her and said that he was going to break her nose. The following day, A.G. again threatened to kill Ms. Krolczyk as well as another student, and punched and scratched Ms. Krolczyk on the face. A.G. also pulled Ms. DiCola's hair and kicked her. He was restrained on this occasion.

         On January 11th, A.G. struck a child with a toy, and was again restrained; Ms. Krolczyk told Jennifer G. about this incident. On January 22nd, A.G. threw his shoes at Ms. Krolczyk and called her profane names. On January 23rd, A.G.'s father dragged him from the classroom as A.G. was crying. On January 25th, A.G. called Ms. Krolczyk profane names and told Ms. DiCola, who was pregnant, that he was going to take a knife and remove her baby and that his father was going to kill her with his gun. He also informed Ms. Krolczyk that he was going to kill the police so they could not "get his Mom." Journal at 384.

         On January 28th, A.G. broke the toilet seat, threw water on the bathroom floor, and began to roll around. On February 4th, A.G. bit Ms. Krolczyk in her forearm, leaving a mark. On the morning of February 5th, A.G. began to scream and flail his arms, and, when Ms. Krolczyk carried him from the room, he buried his teeth in her forearm. He also bit her later that afternoon. On February 6th, A.G. threatened students and teachers with physical violence, screamed, and would not follow directions.

         Thursday, February 7, 2008, was A.G.'s last day under Plaintiffs' supervision. A.G. began the day by continually defecating in his pants. Since his hostile behavior began to escalate, another employee at Goddard, Ms. Angie, whose last name is not revealed in the record, offered to help to control him. During naptime, A.G. repeatedly refused to lie down and be quiet. He was playing with a toy, and each time A.G. engaged in disruptive behavior, Ms. Krolczyk told him that she would take it away from him. As A.G. persisted in his actions, the toy was removed. A.G. immediately began to act out inappropriately. Ms. Angie held down his feet, and Ms. Krolczyk restrained him by hugging him. Journal at 408. Becoming more agitated, A.G. attempted to bite Ms. Krolczyk, and, when Ms. DiCola intervened, he bit her forearm and refused to release his teeth from her flesh, which began to bleed.

         The journal continued that Ms. DiCola "attempted to activate the reflex of tilting your head back by gently pressing on the nerve cluster underneath his nose, against his lip to force him to release his bite." Journal at 409. A.G. was not affected by this action, and Ms. Angie and Ms. Krolczyk "helped break his grip" on Ms. DiCola's arm. Id. All three women, Ms. Angie, Ms. Krolczyk, and Ms. DiCola, held A.G. in order to calm him down. The journal delineated that, during this episode, A.G. was "completely out of control, " and appeared to be in a "full-blown, adrenaline-fueled rage" and "out of his mind and body." Id. Eventually, the three women quieted A.G. and laid him down on his mat next to the sleeping children. Five minutes later, Jennifer G. came into the classroom and was told about the incident. She listened and nodded and then left with A.G., who did not return to school the following day.

         On Monday, February 11, 2008, Plaintiffs gave Ms. Wishard their journal. Deposition of Lydia DiCola, 5/8/13, at 63. Since A.G.'s behavior gave rise to a suspicion by Plaintiffs that he was being abused or neglected, on February 13, 2008, Ms. Krolczyk called the hotline of the Pennsylvania Department of Education and asked how she and Ms. DiCola should proceed to report their suspicion of abuse or neglect. Plaintiffs were instructed to meet with Ms. Wishard and inform her about their shared suspicion of abuse or neglect. They were also told that they should report their suspicion of abuse or neglect by filing a formal report of suspected child abuse with the local department of the Pennsylvania Department of Public Welfare.

         On February 14, 2008, Plaintiffs met with Ms. Wishard and informed her that A.G.'s behavior was indicative that he was being abused or neglected at home. They also notified Ms. Wishard that they had contacted the Department of Education, and they conveyed to Ms. Wishard that they intended to formally report to the Department of Public Welfare that they suspected there was abuse or neglect in A.G.'s home. Plaintiffs were mandated reporters of suspected abuse under Pennsylvania law.

         Within hours of the February 14, 2008 meeting, Ms. Wishard called Plaintiffs at home and said that they were fired. Ms. Krolczyk testified that Ms. Wishard informed her that she was being discharged, "Based on the conversation we had this afternoon and your decision [i.e., to report suspected abuse or neglect of A.G.], that your services are just no longer needed here, we'll call today your last day and go our separate ways." Deposition of G. Michelle Krolczyk, 5/8/13, at 150. Ms. Wishard thereafter sent a letter to the parents delineating that Plaintiffs were terminated "for various reasons" but Ms. Wishard assured them "that protecting both the children's interest as well as the parents' interest as well as the good of this school are the deciding factors for my decision." Deposition of Jennifer G., 4/13/11, at Exhibit I.

         During her deposition, Ms. Wishard claimed that Plaintiffs were dismissed for having "inappropriate contact with a student" by restraining A.G. Deposition of Nicole Wishard, 6/2/10, at 40, 51. She relied specifically on the February 7, 2008 incident, as described in the journal, when A.G. was hugged by Ms. Krolczyk, Ms. DiCola had applied pressure to A.G.'s upper lip, Ms. Krolczyk and Ms. Angie had removed his teeth from Ms. DiCola's bleeding arm, and all three women held him in order to calm him down.

         Ms. Wishard admitted that the journal indicated that Plaintiffs restrained A.G. "in order to prevent him from hurting himself, a teacher, or another child" and that there was no indication that Plaintiffs physically abused A.G. in any manner by hitting, beating, or kicking him. Id. Ms. Wishard also acknowledged that the journal indicated that Ms. Angie was involved in restraining A.G., but that she was not discharged, ostensibly because Ms. Wishard interviewed Ms. Angie and Ms. Angie denied restraining A.G. While Ms. Wishard asserted that she would fire any teacher who restrained a student, cross-examination indicated that there were other instances of restraint where teachers were not fired. When deposed, Jennifer G. acknowledged that another teacher, J.S., had not been terminated even though she pinched a child's forearm. Deposition of Jennifer G., 4/13/11, at 23-24. Indeed, Jennifer G. herself restrained a child and was not dismissed. Id. at 52.

         After discovery was conducted, Defendants filed a motion for summary judgment. They asserted that Plaintiffs' wrongful discharge claims were not viable because Plaintiffs were fired for a valid, legitimate, and non-prohibited reason, as outlined in Ms. Wishard's deposition, i.e., they restrained A.G. in violation of school policy. Defendants also averred that the letter was not defamatory. The trial court granted summary judgment on the wrongful discharge claims by finding that, in accordance with the testimonial deposition of Ms. Wishard, Defendants had offered a "separate, plausible and legitimate reason" for the terminations. Trial Court Opinion, 3/3/16, at (unnumbered page) 5. It rejected the position that the reason was pre-textual.[1] In concluding that Defendants "proffered a legitimate nondiscriminatory reason for terminating Plaintiff[s'] employment, the court ruled that Plaintiffs were dismissed solely because they "had been physically restraining a four-year-old boy for several months[.]" Id. at (unnumbered page) 6. In dismissing the defamation count, the trial court noted that Plaintiffs had not incurred special harm and apparently decided that the letter sent to parents was not defamatory per se. Id. at (unnumbered page) 9 ("A fair reading of this letter shows that it is not fairly calculated to harass Plaintiff[s'] reputation.").

         In this appeal from the grant of summary judgment, Plaintiffs raise these averments:

A. Did the lower court err in dismissing Appellant[s'] claim[s] for wrongful termination when there were material issues of fact vital to the adjudication of said claims, including, but not limited to, a temporal proximity between the protected activity (i.e., reporting suspected abuse) and the adverse job action (i.e., termination) which could be measured in minutes and/or hours, as well as material issues of fact which could establish that the asserted "legitimate" basis for termination was, in fact, a post-hoc pretext?
B. Did the lower court err, as a matter of law, when it violated the Nanty-Glo rule in entering judgment against Appellant[s] on the basis of the Appellee[s'] own deposition testimony concerning the facts and circumstances giving rise to Appellee[s'] decision to terminate Appellant[s'] employment?
C. Did the lower court erred [sic] in entering judgment against Appellant[s'] "defamation" claim[s] when the facts of the case establish that Appellees published a false and misleading letter which adversely affected Appellant[s'] ...

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