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Castrovinci v. Easton Area School District

United States District Court, E.D. Pennsylvania

June 27, 2017

JOHN CASTROVINCI; SUSAN M. MCGINLEY, ED.D; JAMES L. POKRIVSAK, JR.; and DAWN REAGLE, Plaintiffs,
v.
EASTON AREA SCHOOL DISTRICT; FRANK PINTABONE, Individually and in His Official Capacity as the President of the Easton Area School Board; ROBERT FEHNEL, Individually and in His Official Capacity as a Member of the Easton Area School Board; KERRI LEONARD-ELLISON, Individually and in Her Capacity as a Former Member of the Easton Area School Board; JANET MATTHEWS, Individually and in Her Capacity as a Former Member of the Easton Area School Board; WILLIAM RIDER, Individually and in His Capacity as a Former Member of the Easton Area School Board, Defendants.

          MEMORANDUM

          SCHMEHL, J.

         On September 19, 2016, Defendants moved this Court to grant summary judgment and dismiss Plaintiffs' claim of First Amendment Retaliation. (ECF Docket No. 44.) Throughout their motion, Defendants cite to the “Statement of Undisputed Facts” (“SUF”) purported to be the proposed stipulations of facts, agreed upon by both parties, that the movant is required to include with its Rule 56 motion. On October 19, 2016, Plaintiffs filed their brief in opposition to Defendants' motion for summary judgment. (ECF Docket No. 46-1.) However, Plaintiffs note that Defendants failed to communicate with Plaintiffs and stipulate to the undisputed facts (as required in the policies and procedures) before filing their dispositive motion with this Court. (ECF Docket No. 46-1, at 1-2.) Plaintiffs included a “counterstatement of facts” in their motion disputing or addressing sixty-four (64) of Defendants' “undisputed facts” cited in Defendants' original motion. (ECF Docket No. 46-2.)

         Plaintiffs all work or worked for Defendant Easton Area School District. John Castrovinci was Human Resources Director and still works at the district. Susan McGinley was Superintendent of Schools; her contract was not renewed and she was reassigned to work as a fifth grade assistant principal. James Pokrivsak was and still is the district's Director of Athletics. Dawn Reagle was Director of Special Education but resigned her position due to what she considers a constructive discharge.

         Defendants are the district itself and several board members. Frank Pintabone was a board member and at the time of the complaint had become board president. Robert Fehnel was board president during the events that give rise to this suit, and was still on the board at the time of the complaint. Janet Matthews, and William Rider were all members at the relevant time but no longer serve on the board. Kerri Leonard-Ellison, was also a member of the board, but has since passed away. (ECF Docket No. 48.)

         A. STANDARD OF REVIEW

         Summary judgment is proper when there is no genuine dispute of material fact and the movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute as to a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary judgment, the court must consider the “underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Slagle v. Cnty. of Clarion, 435 F.3d 262, 264 (3d Cir. 2006) (citations omitted). If the movant carries its initial burden of showing the basis of its motion, the burden shifts to the non-moving party to go beyond the pleadings and point to “specific facts showing that a genuine issue exists for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In other words, the non-moving party “must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue.” Podobnik v. US. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (citation and internal quotation marks omitted). Summary judgment must be granted against a non-moving party who fails to sufficiently “establish the existence of an essential element of its case on which it bears the burden of proof at trial.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).

         B. ANALYSIS

         Defendants' motion for summary judgment argues that Plaintiffs failed to show they engaged in protected First Amendment speech as it was speech pursuant to work/official duties rather than speech as a citizen on a matter of public concern. Defendants further argue that Plaintiffs failed to show the alleged retaliatory actions taken by Defendants were sufficient to deter a person of ordinary firmness from exercising his or her rights and that a causal link existed between the protected activity and retaliation.

         Plaintiffs making First Amendment retaliation claims “must show (1) that they engaged in a protected activity, (2) that defendants' retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights, and (3) that there was a causal connection between the protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).[1]

         There are a number of material facts in dispute which precludes this Court from granting summary judgment. As will be addressed below, Plaintiffs have provided support through their counterstatement of facts. (ECF Docket No. 46-2.) Three facts in particular, relating to the legal standard under First Amendment Retaliation, stand out and will be addressed in further detail: 1) Plaintiffs' speech and Thomas Drago's duties as Director of Technology; 2) Defendants' actions taken after Plaintiffs notified the police of Drago's activity; and 3) the causal connection between Plaintiffs' complaints to the Police and the actions taken by the Easton Area School District (“EASD”) Board following the complaints.

         1. Protected Activity

         First Amendment protections differ between employees speaking on matters of public concern and employees speaking pursuant to their official duties. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). “[T]he first Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Id. The Supreme Court has held if an employee speaks on a matter of public concern, the employee's speech is protected; conversely, if the employee has spoken pursuant to his or her official duties, there is no First Amendment protection. Id.; see also Morris v. Philadelphia Housing Authority, 487 Fed.Appx. 37, 39 (3d Cir. 2012). Accordingly, employee speech is not protected if the speech performed is within the scope of the employee's routine operations.

         Before answering the question of whether Plaintiffs' speech is protected, this Court must first consider Drago's responsibilities as Director of Technology to determine whether Plaintiffs were speaking on matters of public concern or within the scope of their routine employment operations. Both parties dispute the role and function of Thomas Drago as Director of Technology and whether he was permitted to remotely access various computers within the District under its “Acceptable Use Policy.” Defendants argue Drago's position gave him access to District-owned computers to perform random searches and perform computer-to-computer onsite operations; therefore, any speech relating to Drago's activity was made pursuant to Plaintiffs' official duties. (ECF Docket No. 44, at 7.) This role, Defendants claim, was understood and accepted by Plaintiff Susan McGinley. (Id.) Defendants further claim the EASD Solicitor, John Freund, believed Drago's conduct was an internal District employment matter and not a criminal matter; a belief allegedly shared by McGinley. (Id. at 8.)

         However, Drago's role as the Director of Technology is disputed by Plaintiffs. Plaintiffs allege that Drago was not permitted to internally access any person's computer at EASD without express permission from McGinley. (ECF Docket No. 46-2, at 9.) Plaintiffs also dispute the District's “Acceptable Use Policy” claiming, since the inception of this litigation, that Drago (or any member of his department) could not access another District employee's computer without express consent from McGinley. (Id. at 10-11.) Complicating matters is the fact police found pornographic images on Drago's computer, including a topless picture of one of his female subordinates, leading to criminal charges filed against Drago for violating the Pennsylvania Wiretap Act. (ECF Docket No. 9-10; see also ECF Docket No. 1, at ΒΆ7.) Defendants reject Plaintiffs' arguments and ...


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