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Bosco v. Pittsburgh Board of Public Education

United States District Court, W.D. Pennsylvania

September 27, 2019

MICHAEL C. BOSCO, JR., Plaintiff,


          David Stewart Cercone, Senior United States District Judge

         Michael C. Bosco, Jr., ("plaintiff") commenced this civil rights action against the Pittsburgh Board of Public Education (defendant or “the Board”) and John and/or Jane Doe, seeking redress for the alleged publication of false information regarding plaintiff's prior work history at a Pittsburgh public school. Plaintiff maintains that the publication infringed on his protected liberty interest to pursue an occupation, thereby resulting in a violation of substantive due process under the Fourteenth Amendment. Presently before the court are the Board’s motions for summary judgment and to dismiss the John and/or Jane Doe defendants. For the reasons set forth below, summary judgment will be granted as to all claims in the case.

         Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Rule 56 "'mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986)). Deciding a summary judgment motion requires the court to view the facts, draw all reasonable inferences and resolve all doubts in favor of the nonmoving party. Doe v. Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).

         The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. Nat'l State Bank v. Fed. Reserve Bank of New York, 979 F.2d 1579, 1581-82 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial, " or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(E)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" . . . "and cannot simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); Sec. & Exch. Comm'n v. Bonastia, 614 F.2d 908, 914 (3d Cir. 1980) ("[L]egal conclusions, unsupported by documentation of specific facts, are insufficient to create issues of material fact that would preclude summary judgment."). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence is merely colorable or lacks sufficient probative force summary judgment may be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).

         The record as read in the light most favorable to plaintiff establishes the background set forth below. Plaintiff was employed as a physical education teacher with Pittsburgh Public Schools from August 30, 1994, to June 18, 2012. In November of 2011 and January of 2012 plaintiff was subject to disciplinary action as a result of two separate incidents involving his interaction with students under his supervision. The second incident resulted in a five day suspension to be followed by a recommendation of termination. Following an investigation of this incident plaintiff was placed on unpaid leave of absence. Thereafter, plaintiff and defendant entered into a settlement agreement calling for plaintiff to remain on unpaid leave through the end of the school year, at which time he would be separated from employment with the separation being deemed a voluntary resignation. This approach permitted plaintiff to remain eligible for a severance package, which he received. Plaintiff separated from his employment on June 18, 2012.

         The first incident leading to discipline against plaintiff occurred on November 15, 2011, at the Martin Luther King Elementary School. Plaintiff admittedly picked up a noncompliant third-grader by lifting the student up around the waist and carrying the child to the side of the gymnasium. A critical incident report was generated and filed. Three statements by students claiming to have witnessed the incident were attacked to the report. A disciplinary meeting was held. Plaintiff was in attendance as well as Jody Buchelt Spolar, who at that time was the Board's Chief Human Resources Officer. Also in attendance was Shana Nelson, Principal at Martin Luther King Elementary School, Mike Perella, Assistant Principal, and Mary Van Horn, a Pittsburgh Federation of Teachers representative. As a result of this incident plaintiff received and served a ten-day suspension.

         The second incident occurred on January 25, 2012. Plaintiff was trying to get a non-compliant student who was sitting on a bench to stand up. He approached the bench and pulled or "yanked" it up. The student did not stand up as plaintiff intended. Instead, the student fell backwards and hit his head on the wall. The student complained that his head was hurting and he was sent to the school nurse's office. The incident was captured on surveillance video and that video has been introduced into the current record.

         A critical incident report was generated. It contained the signed statements of two teachers who spoke to students involved in the incident after it had occurred. It also contained a signed statement by the child involved as well as a signed statement by a parent of that child.

         A disciplinary meeting was initiated five days later on January 30, 2012. Plaintiff attended the meeting as did Chief Human Resources Officer Jody Buchelt Spolar, Principal Shana Nelson, Assistant Principal Mike Perella, and representative Mary Van Horn. The investigation into the incident was ongoing.

         On February 9, 2012, plaintiff was informed that he would receive a five day disciplinary suspension. The suspension would be followed by a recommendation that he be terminated. Ms. Spolar described the incident on the video as reflecting that plaintiff approached the bench, jerked it upwards and caused the child to fall backwards, hitting his head on the wall and falling to the floor. Plaintiff did not file a grievance and he was placed on an unpaid leave of absence on February 13, 2012.

         Plaintiff and the Board executed a settlement on March 22, 2012. It called for plaintiff to remain on unpaid leave until the end of the school year. At that point he would be deemed to be separated from employment with defendant pursuant to a voluntary resignation. This resolution permitted plaintiff to avoid termination and receive a severance package.

         Plaintiff has sought and obtained a variety of employment positions since May of 2012. He has worked as a substitute teacher, a high school softball coach, performed the functions of an assistant principal, taught on-line classes and graded the coursework of online students. This included working as a permanent substitute in the Penn Hills School District at the Linton Middle School from March of 2015 through June of 2015 and September of 2015 through January of 2016.

         In June of 2015 plaintiff applied for a high school physical education position with Bentworth School District. He was one of eight candidates interviewed for the position. He did not advance beyond the interview stage and he did not obtain the position. The Bentworth School District did not inquire with or seek any information from defendant about plaintiff's employment in the Pittsburgh Public Schools.

         In October of 2015, plaintiff was interviewed and became one of two finalists for an interim assistant high school principal position with the Ambridge Area School District. Plaintiff did not obtain the position.

         As part of the application process for the position with the Ambridge Area School District plaintiff was required to complete a Commonwealth of Pennsylvania Sexual Misconduct/Abuse Disclosure Form ("Act 168 Form"). Act 168 Forms are standard forms developed by the Pennsylvania Department of Education. Under the School Code, a school entity must obtain a completed Form before it may offer employment to an applicant that will "be employed by or in a school entity in a position involving direct contact with children." 24 P.S. § 1-111.1(b)(1)(iii)(A)-(B). As part of this process the school entity seeking to hire the applicant is required to conduct a review that includes contacting former school employers regarding the information required. 24 P.S. § 1-111.1(b)(2)(ii)(A)-(B).

         The Act 168 Form includes sections that must be completed by both the applicant and the applicant’s former school employers. Plaintiff indicated on the form that he had not "[b]een the subject of an abuse or sexual misconduct investigation by any employer, …" or "been disciplined, discharged, . . . resigned from or otherwise separated from employment while allegations of abuse or sexual misconduct were pending . . . ." See 24 P.S. § 1-111.1(b)(2)(ii)(B). Defendant likewise indicated "No" to the same section of the form and did not otherwise provide any negative information in completing the form.

         After being unable to obtain long-term employment in an educational position, plaintiff became concerned that defendant might be completing the Act 168 Form negatively. He submitted an Act 168 Form to defendant with regard to plaintiff's past employment and arranged for it to be returned to his friend and Montour School District Board member, Mark DiClemente. Defendant completed the form and returned it to DiClemente as requested. This time, defendant answered yes to the question of whether plaintiff had ever "[b]een the subject of an abuse or sexual misconduct investigation by any employer, …" or "been disciplined, discharged, . . . resigned from or otherwise separated from employment while allegations of abuse or sexual misconduct were pending . . . ."

         DiClemente shared the content of the returned Form with plaintiff, the Montour School District superintendent and one other Montour School Board member. In a subsequent discussion the superintendent advised plaintiff that defendant's ...

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