United States District Court, W.D. Pennsylvania
MICHAEL C. BOSCO, JR., Plaintiff,
PITTSBURGH BOARD OF PUBLIC EDUCATION and JOHN and/or JANE DOE, Defendants.
Stewart Cercone, Senior United States District Judge
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.
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.
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).
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).
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.
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
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.
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.
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
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.
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.
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.
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.
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.
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).
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
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 . . .
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 ...