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Baker v. Benton Area School District

United States District Court, M.D. Pennsylvania

October 29, 2019

STEPHANIE BAKER, Plaintiff,
v.
BENTON AREA SCHOOL DISTRICT, COLUMBIA MONTOUR SNYDER UNION COUNTIES OF CENTRAL PENNSYLVANIA SERVICE SYSTEM, COLEEN GENOVESE, KELLY KOCHER, and LINDSAY RADO, Defendants.

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge

         I. BACKGROUND

         “A poet or other who can make nothing clear, can stir up enough sediment to render the bottom of a basin as invisible as the deepest gulf in the Atlantic.”[1]

         This Court, sitting about 170 miles from the Atlantic, finds the bottom of this basin-a summary judgment ruling in full favor of Defendants-only partially visible. Plaintiff has stirred up enough factual sediment to cloud the Court's view and impair a conclusive victory for Defendants.

         Defendants Benton Area School District (“BASD”), Coleen Genovese, Kelly Kocher, and Lindsay Rado (collectively with BASD, the “BASD Defendants”) moved for summary judgment against Plaintiff Stephanie Baker. Defendant Columbia Montour Snyder Union Counties of Central Pennsylvania Service System (“CMSU”) also moved for summary judgment against Baker.

         A. Procedural History

         Baker sued Defendants on November 17, 2016.[2] Her Complaint had four claims. Count I alleges under 42 U.S.C. § 1983 that Defendants retaliated against Baker for exercising her free speech rights, and “conspired with each other and with others to” do so.[3] Count II alleges under the Pennsylvania Whistleblower Law[4] that Defendants retaliated against Baker for being a whistleblower.[5] Count III alleges that CMSU violated Baker's due process rights under 42 U.S.C. § 1983 by terminating her without notice or an opportunity to be heard.[6] Count IV alleges that Defendants Genovese, Kocher and Rado published defamatory and false communications about Baker.[7]

         On August 28, 2017, I decided Defendants' motions to dismiss.[8] I dismissed Baker's First Amendment retaliation claim (Count I) against CMSU and BASD. I also dismissed Baker's due process claim (Count III) and defamation claim (Count IV) in their entirety. But I granted Baker leave to amend her Complaint.

         Baker filed an Amended Complaint on October 4, 2017.[9] The BASD Defendants and CMSU each moved for summary judgment on July 8, 2019.[10]Each of these motions are now ripe for disposition. For the reasons that follow, each of these motions is GRANTED IN PART AND DENIED IN PART.

         II. DISCUSSION

         A. Standard of Review

         I begin my analysis with the standard of review which undergirds summary judgment. “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.”[11]Summary judgment is appropriate where “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.”[12] “Facts that could alter the outcome are ‘material facts,' and disputes are ‘genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.”[13] “A defendant meets this standard when there is an absence of evidence that rationally supports the plaintiff's case.”[14] “A plaintiff, on the other hand, must point to admissible evidence that would be sufficient to show all elements of a prima facie case under applicable substantive law.”[15] When deciding whether to grant summary judgment, a court should draw all reasonable inferences in favor of the non-moving party.[16]

         “The inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.”[17] Thus, “if the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.”[18] “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”[19] “The judge's inquiry, therefore, unavoidably asks . . . ‘whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'”[20] The evidentiary record at trial, by rule, will typically never surpass that which was compiled during the course of discovery.

         “A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”[21] “Regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.”[22]

         Where the movant properly supports his motion, the nonmoving party, to avoid summary judgment, must answer by setting forth “genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”[23] For movants and nonmovants alike, the assertion “that a fact cannot be or is genuinely disputed” must be supported by: (i) ”citing to particular parts of materials in the record” that go beyond “mere allegations”; (ii) ”showing that the materials cited do not establish the absence or presence of a genuine dispute”; or (iii) “showing . . . that an adverse party cannot produce admissible evidence to support the fact.”[24]

         “When opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must ‘identify those facts of record which would contradict the facts identified by the movant.'”[25] Moreover, “if a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.”[26] On a motion for summary judgment, “the court need consider only the cited materials, but it may consider other materials in the record.”[27]

         Finally, “at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”[28] “There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”[29] “If the evidence is merely colorable . . . or is not significantly probative, summary judgment may be granted.”[30]

         B. Undisputed Facts[31]

         With that standard outlining the Court's framework for review, I now turn to the undisputed facts of this matter.

         1. Baker's Employment with Synergy and Issues with Her Attendance

         In March 2013, Synergy Systems Group, Inc. (“Synergy”) hired Baker to work as a “Blended Counselor” with BASD.[32] Baker has a degree in criminology from Indiana University of Pennsylvania. She does not have a certification from the Pennsylvania Department of Education.[33] When Baker was working with BASD's middle/high school (seventh to twelfth grade), Genovese was the principal, Kocher was the guidance counselor, and Rado was the special education director.[34]

         When Baker was working at BASD under Synergy, she sometimes needed to attend off-site meetings with Synergy's CEO, Glenn Simington.[35] Baker did not tell Genovese about these meetings beforehand.[36] Genovese would then get upset because she didn't know where Baker was.[37] Genovese memorialized these concerns in an email titled “Absences” of March 12, 2015, where she told Baker:

As the building principal, please make me aware of when you will and will not be in the district (sick, personal, vacation days etc). I realize that I am not the one who approves your days, but I need to be aware of when you will be out. Me knowing your whereabouts is always important, but especially at this time of year moving to graduation when we need all hands on deck.

         Baker replied that she was “sorry for not telling you personally that I was leaving today” and would “be sure to do so in the future.”[38]

         In November or December 2015, Kocher brought more issues with Baker's attendance to Genovese's attention, relating that Baker was “coming late . . . almost every single day” and “leaving early.”[39] Genovese discussed this with Baker, instructing Baker again to let her know when Baker would be out.[40]

         After this discussion, Genovese heard that Baker had been saying negative things about Genovese in the community. Some of Kocher's family told Genovese that Baker was at a wine fest in October 2015. Per Kocher's family, Baker was intoxicated and told them how much she hated Genovese and that Genovese was a “bitch” and a “cunt.”[41] Genovese also heard that Baker had been talking to teachers about how much she hated the school district.[42]

         Baker would tell Rado about discipline issues that Baker saw in BASD, like students showing bullying behaviors. Rado would tell Baker that she needed to bring these issues up with Genovese, because they were out of Rado's department (special education).[43] Baker would tell Rado that Baker did not agree with some of the decisions that Genovese made on these issues.[44]

         2. Fall 2015: The Video Incident

         In fall 2015, Baker became aware of a cell phone video. A BASD twelfth-grade boy had filmed two eighth-grade boys[45] in the middle/high school's restroom. The twelfth-grader flipped the camera around. He and the eighth- graders were all in the same frame.[46] The eighth-graders extended their middle fingers to the camera.[47] Vulgar, sexually explicit rap music was playing in the background.[48] All three students were fully-clothed and laughing.[49] The twelfth-grader later uploaded the video on Instagram.[50]

         After the video went up on Instagram, another BASD student told Baker about it.[51] Baker watched the video. Right after watching the video, Baker decided that Genovese needed to know about it.[52] She went to Genovese's office. Genovese, Kocher, Rado, and a Pennsylvania state trooper were already there. They all watched the video.[53]

         At that point Baker was a mandated reporter.[54] Baker did not believe the video warranted a report to the authorities.[55] And no one who watched the video in Genovese's office, including the state trooper, expressed that it would trigger a mandated reporter's reporting duty.

         Genovese and Kocher met with all the students in the video.[56] The twelfth-grader told Genovese and Kocher that he was “trying to be funny” in making the video.[57] Genovese gave the twelfth-grader an in-school suspension for violating BASD's cell phone policy.[58] Genovese informed the twelfth-grader's parent about the incident and about the punishment she had meted out for the twelfth-grader.[59]Genovese decided to not inform the eighth-graders' parents.[60]

         3. The Post-Video SAP Meeting

         At some point after the video incident, BASD held a Student Assistance Program (“SAP”) meeting.[61] At this meeting, before Kocher arrived, Baker raised concerns about whether the school should have notified the eighth-graders' parents about the video incident.[62] Genovese was not in attendance.[63]

         Kocher then arrived and informed the group that a decision had been made not to inform the eighth-graders' parents. Baker raised her disagreement.[64]Kocher acknowledged Baker's disagreement. Kocher and Deb Ross (the school nurse) joked as to whether Baker was going to be the one to tell Genovese that she disagreed with Genovese's decision.[65] The conversation ended at that point.[66]Kocher noted that Baker raising her concerns about the video incident in the SAP meeting was inappropriate, because the incident was not a SAP issue but a discipline issue.[67]

         4. Baker's Change in Employment from Synergy to CMSU

         In January 2016, Synergy dissolved. CMSU took over Synergy's functions. CMSU decided to absorb Synergy's “blended” staff (including Baker) and offer them positions. Baker became a CMSU employee. Her title was Drug and Alcohol Prevention Specialist.[68]

         Baker received a probationary appointment.[69] She knew going into this position that if she showed acceptable performance for six months, she would be promoted to regular civil service status.[70] CMSU gave Baker access to its personnel policies and staff manual via the company Intranet.[71] Baker also received this manual via email in April 2016 and reviewed it.[72]

         Baker started her appointment with multiple introductory meetings with CMSU personnel to review policies and procedures.[73] Baker's job duties did not change with her move from Synergy to CMSU.[74] CMSU gave her a job description document that memorialized her duties.[75] The job description indicated that Baker's regular work schedule would be from Monday to Friday, during school hours. She would work a total of 37.5 hours a week. The job description listed Baker's exact start and end times as “varies.”[76] This was because school hours varied. And Baker would sometimes have to work a weekend or an evening.[77]

         CMSU required Baker to submit weekly timesheets to her supervisor.[78] This was Allison Wilson, a Prevention Supervisor with CMSU.[79] Wilson reviewed timesheets to make sure the employee had worked the recorded hours. She would also monitor sick time and vacation time.[80] Wilson explained to Baker that if Baker intended to use sick or vacation time, Baker would need to attach an additional form to her time sheet.[81] CMSU's written policies also required her to seek approval for time off and notify her supervisor (Wilson) if she needed unexpected time off.[82]

         CMSU's written policy on overtime stated:[83]

Employees whose FLSA status is Non-exempt will be compensated by payment for all hours worked in excess of their regular workweek. Hours worked in excess of 40 hours per week will be reimbursed at a rate of not less than time and one-half the regular hourly rate. Except in the case of emergencies, non-exempt staff adhere to their established work schedule and secure their supervisor's approval whenever overtime is anticipated. . . . Compensatory time is permissible for FLSA exempt employee on an hour-per-hour basis. The decision for granting overtime shall be made by individual departments of CMSU.

         CMSU encouraged its employees to “flex” their time within a given pay period. This meant employees would adjust their timesheets so that the timesheets wouldn't show them working over their normal hours. Then CMSU could avoid having to pay overtime.[84] Baker never told Wilson that she did not understand CMSU's flextime policy.[85]

         Wilson's supervisor was Barbara Gorrell, a Drug and Alcohol Administrator with CMSU.[86] Richard Beach was CMSU's Administrator. This is CMSU's highest position.[87]

         5. May 2016: Concerns with Baker's Attendance

         In May 2016, Baker texted Kocher and Genovese. She said she was going to come into school, get her laptop, and then work from home for the day.[88]Kocher and Genovese were not sure if CMSU's policies allowed that.[89] Genovese directed Kocher to call CMSU.[90] Kocher agreed, thinking that the last time Genovese tried to handle a perceived problem with Baker's attendance, Genovese afterwards heard that Baker was spreading negative comments about Genovese in the community.[91] Kocher called Wilson.[92]

         On one day in May 2016, Baker indicated on her timesheet that she had worked. But she was not working that day. She was out sick.[93]

         6. May 31, 2016: The Written Warning and Meeting

         Wilson issued Baker a “Written Warning” dated May 31, 2016.[94] The warning reads as follows. Baker admitted in her deposition that she did not inform Ms. Wilson of her taking off early from work or of her late arrivals.[95]

This letter serves as a formal reprimand for your violation of program policy, failure to report your absence(s) from work, inaccurately reporting hours worked on your timesheet and tardiness.
I was informed that you were absent from working specifically on 5/23/16 and came into work approximately 1 hour late on 5/24/16.
You failed to notify me of either of these absences and did not reflect any use of sick and/or personal time used during these times.
Additionally, I was made aware of concerns that you have been frequently tardy in the morning when arriving to working and during the month of May have either left early from work or came in late due to personal reasons. None of this time was reported to me or reflected in your timesheets.
As stated in the policy and procedural manual, all staff are to seek approval for time off and notify their immediate supervisor when unexpected time off is needed. Staff is also expected to accurately report hours worked on their weekly timesheets.
* *

         CMSU also extended Baker's probationary period another three months. She became ineligible for a bonus. And she was on notice that “further incidents of this nature are subject to disciplinary action up to and including termination of employment.”[96]

         On June 1, 2016, Baker met with Wilson and Gorrell. They reviewed the warning.[97] Wilson reviewed CMSU's policies and procedures, including the policy on time reporting and overtime.[98] Around this time, Ross noted that Baker “got excited about things and . . . got more and more irritated.”[99]

         7. June 22, 2016: Baker's Six-Month Performance Review

         Baker was up for a six-month performance review at the end of June 2016. This review happened on or around June 22, 2016. Baker met with Wilson.[100]

         In the review, Baker scored “unsatisfactory” for “work habits.”[101] She received the following comments.[102] Baker did not dispute that she failed to inform Wilson of the events that these comments referenced.[103]

During this reporting period, Stephanie failed to keep her supervisor informed of changes to her work schedule and did not inform her immediate supervisor when taking time off. School Staff members report that she was late and left early on several occasions. Additionally, Stephanie did not accurately report hours worked on her timesheet. This was addressed and Stephanie was made aware that she must notify her immediate supervisor as soon as possible when taking accrued time off and of any changes to her work schedule.
The review also noted in the “additional evaluation comments”:[104]
Stephanie is aware that she must improve her tardiness and is also expected to accurately report hours worked on her timesheets. She will notify her supervisor immediately of any changes to her schedule and obtain approval from her supervisor before taking any accrued time off.
We will be extending Stephanie's probationary period by an additional 3 months due to her violation of program policy, tardiness and failure to accurately report hours.

         8. Summer 2016: The Anonymous Letter

         In July or August 2016, Plaintiff and two co-authors[105] drafted an anonymous letter.[106] They sent the letter to BASD's superintendent and to BASD school board members. The letter addressed Baker's and the co-authors' concerns with BASD.[107]

         Baker and her co-authors had been discussing the letter and drafting for several months. They met a handful of times. Baker typed the letter. But she did not contribute to all its content.[108] She didn't contribute to sections on (a) an alleged violation of special education law; (b) a change in morale at the middle/high school under Genovese; and (c) complaints about the use of paraprofessionals.[109] She did contribute to six sections: (a) surveys that the BASD superintendent had sent out; (b) the video incident; (c) the school's “blended and cyber academy”; (d) the school's turnover rate; (e) the school's anti-bullying program; and (f) the “339 program.” The Court's transcription of these six sections follows.

         (a) Surveys[110]

         The survey you distributed at the end of the school year sparked a significant amount of continued conversation amongst the faculty and staff in the Middle/High School. Many people were reluctant to complete the survey primarily because they were to be returned to Paula Shannon, recognizing that confidentiality and anonymity would most definitely be breached. We're sure it's very telling that many people went through inter-office mail to have you receive their surveys. Also telling, is the lengths at which people took to remain anonymous, for example, writing with their non-dominant hand, scanning and copying completed surveys, and having others write their responses for them. All of this was done out of fear of being recognized and the retribution that would follow. The few surveys that were given to Paula were, in fact, shared with Coleen and subsequently they sat and read them, laughing at the concept of the survey in general.

         (b) The Video Incident

         During the school year, a 30-second article revealed a situation that occurred at the high school, of which students, parents and community members were aware of. [S.F.], a senior, exploited two 8th grade learning support students ([Z.G. and K.J.]) by videotaping them in restroom facilities. The video was placed on Instagram with sexually explicit music and vulgar comments. Coleen called Shane's mother, Ann [F], directly to notify her of the online video; it was immediately taken off social media. The victims' parents should have been notified as well; however, Coleen specifically stated that no one was allowed to inform them. [S]'s only punishment for this heinous act was one day of in-school suspension. It appears that the law and school policy would support notification of the police, Children & Youth, and an expulsion hearing to determine the appropriate discipline. This incident should not have been minimized as a joke! He received preferential treatment. (Could it have something to do with Coleen and Ann (and their husbands being seen dining together at a social event?)

         Blended and Cyber Academy[111]

         The Blended and Cyber Academy . . . has been another embarrassment in the community. Everyone is aware that there is no true curriculum being taught or followed and students merely complete “packets” of work independently. [A.H.] was a regular education student (without an IEP) who has miraculously completed all educational credits via the [Academy], despite excessive absences. An educational plan was created to ensure her graduation without academic accountability. What is the credibility of this program if students can complete all graduation credits in such a short amount of time? How can we justify giving these students the same diploma that we give to the students who work hard, for years, to meet the PA state required academic graduation requirements?

         Turnover[112]

         Some other issues that are linked to the administration include the turnover rate of employees. The former Special Education Director (April Farrell) and her secretary (Shannon Yarnell) left due to the hostile and unprofessional work environment that was created in the office. Ironically, two friends of the office staff were hired to fulfill these positions. It's common knowledge that Coleen and Lindsay Rado are best friends and former co-workers, and Tiffany Kester and Paula Shannon are close friends. . . .

         The Anti-Bullying Program[113]

         The school district is not in compliance with the state mandated anti-bullying program, as there is none. Several staff members were trained to teach the Olweus anti-bullying curriculum which was implemented in the past; however, recently it has been removed from the middle-school students' schedules. How do you justify eliminating a state mandated program?

         The “339 Program”[114]

         [W]hile we are unaware of the specific guidelines required by the 339 programs, we are aware that Kelly Kocher has not complied with the mandated requirements; the Benton school district has not attended any of the mandated meetings for this program.

* *

         Baker didn't make anyone at CMSU aware of the letter when she was drafting it. Nor did she complain to anyone at CMSU about the letter's subjects of concern.[115]

         9. BASD's Reactions to the Letter

         On August 22, 2016, the BASD superintendent emailed Genovese and Rado about the letter. This was the first they'd heard of it.[116] They talked to the superintendent about the letter. But he refused to show them the letter.[117]

         Kocher learned about the letter later that fall when Genovese and Rado told her about it.[118] Kocher never saw the letter at any relevant time.[119] Genovese saw the letter sometime in the fall of 2016.[120] Rado saw the letter before Baker was terminated.[121] Rado also heard a rumor from one of the teachers that Baker wrote the letter.[122]

         10. Fall 2016: Comments about Baker; Baker Brings Concerns About Student Discipline to Rado

         In the beginning of the 2016-2017 school year, BASD faculty members came to Genovese with comments about Baker.[123]

• Jodi Kline, the head of BASD's math department, told Genovese that Baker was “constantly questioning [Genovese's] decisions, ” “talk[ing] terribly behind your back, ” and “say[ing] that she doesn't agree with anything . . . that you're doing as far as in the way that [Genovese] disciplined kids.”[124]
• Genovese's secretary, Cathy Hartman, said she wanted to quit the SAP team because “all [Baker] did was stir up trouble, was a horrible distraction, talked about things that were not relevant to the SAP process . . . [and] had this hatred for [Genovese] and that was just affecting [Baker's] ability to do her job.”[125] Hartman memorialized her concerns in a note dated September 14, 2016.
• Chris Mitchell, the head of the science department, said that Baker kept coming into his classroom and asking him to set up meetings with the superintendent. Mitchell did not understand and thought Baker was “jumping the chain of command.” Mitchell also wrote a memo dated September 14, 2016 where he documented one instance of Baker asking for a meeting with the superintendent.[126] Rado's understanding was that Baker was trying to get Mitchell to join the superintendent's advisory committee in order to talk to the superintendent about the performance of administrators.[127]
• Ross believed that Baker was “undermining, ” “trying to generate some animosity in some way, ” “creating that havoc” and “stirring the pot.” Examples were saying “mean girl type things” with a “middle school mentality, ” “describing [cliquey] relationships, ” “taking one hour lunches and being behind closed doors for an extended period of time, ” and “indicat[ing] that [Genovese] would make fun of the way people dressed.”[128]Ross stated that it seemed to her that “that was [Baker's] focus like even beyond her job, ” and that Baker was “with certain staff members talking all the time, ” and, though Ross didn't “know what they were talking [about], ” “it just seemed like it was again a stirring pot mentality.”[129]

         Kocher also heard from at least seven school personnel that Baker was saying that “we were all cliquey, ” “that we were horrible professionals, ” and that Baker “didn't like the way that [she] handled certain students or situations.”[130] Genovese heard from Kocher that at field hockey practice, Baker “told the kids that [Genovese did] X, Y and Z and [Genovese was] a liar and . . . a terrible person.”[131]

         Baker would also go to Rado with concerns about student discipline, which was out of Rado's domain as special education coordinator.[132] This happened multiple times.[133]

         To try and address the above, Genovese requested that Kocher set up a meeting with CMSU.[134]

         11. September 12, 2016: The Meeting at CMSU

         On or around September 12, 2016, Genovese, Kocher, Wilson, Beach, and Gorrell met.[135] The meeting participants did not make a formal decision to terminate Baker at that meeting.[136] The anonymous letter was not the reason for the meeting.[137] But the participants discussed the letter and its contents, including the subjects to which Baker contributed.[138] The participants did not discuss distributing surveys about Baker.[139]

         Wilson and Beach remembered that Genovese and Kocher expressed suspicion about Baker's involvement with the letter.[140] Aside from the letter, Kocher and Genovese showed “disappointment” and “dismay” about Baker's “work behavior” and “attitude.”[141] They said that Baker was “difficult to work with” and “questioned authority, ” and that Baker was “taking sides” in “a situation in Benton between the school staff and the superintendent, ” “trying to get teachers to align with the superintendent to go against the school administration.”[142]Kocher and Genovese described that “these are all the reports we are hearing from the teachers and we are [at] kind of a loss now as to what to do, ” with Kocher saying she was “sad” and “upset.”[143] The CMSU participants heard “concerns . . . that [Baker] had been making inappropriate comments to other staff in the district about . . . Genovese and to community members out in the community.”[144] And Kocher stated that Baker had been unprofessional and disrespectful to Kocher in a parent meeting after Baker had received her reprimand in May.[145] Genovese and Kocher expressed that they could not work with Baker anymore.[146]

         12. CMSU's Reaction to the September 12, 2016 Meeting

         CMSU believed its employees had a certain role. Wilson testified that “as an employee, it's inappropriate to go out and bad-mouth those who you work for. I don't think that's professional.” Wilson testified that it wasn't Baker's job “to question what's going on in the district.”[147] Gorrell testified that “we certainly have spoken with the school-based staff that their role is not to get involved with personnel issues or any of the dynamics or cooperation or lack of amongst staff within the school, that that's not our role, that they as CMSU employees stay out of personnel matters.”[148] Per Gorrell, CMSU employees in school districts needed to “be able to meld within those school districts and each particular climate, ” not “align themselves with different staff members or take sides, ” and “abide by the rules and step in line, stay in your own lane.”[149] CMSU conveyed to Baker that if she perceived problems with the school she was working in, she should bring concerns to Wilson, her supervisor.[150]

         Gorrell testified that following the September 12, 2016 meeting, “we [at CMSU] were all astounded. We were disappointed. We felt that there was irreparable damage perhaps between the relationship that was going on there with school administration.”[151]

         CMSU then drafted a termination letter for Baker around September 15, 2016.[152] But CMSU ultimately decided against terminating Baker on or around September 15, 2016.[153] CMSU instead extended Baker's probationary period.[154]

         CMSU decided to distribute a survey about Baker's performance.[155] Gorrell prepared the survey with questions pulled from a civil service form. Wilson reviewed the survey before it was finalized.[156] At first CMSU only disseminated surveys about Baker's performance because it was only having issues with Baker. But CMSU has since implemented the survey for other school-based employees when they are up for review.[157]

         13. September 15, 2016: Baker's Performance Review

         On September 15, 2016, Baker met with Wilson and Gorrell. The purported reason was an employee review and evaluation.[158] Baker's performance review 18. As Baker points out, see ECF No. 68 at 147, this is disputed: “the extension of probation was allegedly because of perceived issues about being late for work or working a day from home.” stated that Baker “needs improvement” on “Communications, ” noting: “Stephanie needs to develop communication skills that include her ability to exercise discretion and appropriate boundaries.”[159] This rating related to the concerns that Genovese and Kocher had raised about Baker's professionalism. Wilson and Gorrell discussed general professionalism concerns and emphasized the importance of being professional, but they did not mention Genovese and Kocher's specific complaints.[160]

         The performance review stated Baker “needs improvement” on “Interpersonal Relations/Equal Employment Opportunity (EEO).”[161] “Needs improvement” is defined as “Often has difficulty getting along with others. Allows personal bias to affect job relationships. . . . Requires reminders regarding needs and sensitivities of others. . . . Inconsistently adheres to EEO diversity program requirement.”[162]

         Baker's “overall rating” on the performance review was “needs improvement.” The review noted: “As the blended outreach coordinator/prevention specialist, maintaining professionalism and promoting a productive and harmonious work environment is crucial. CMSU intends to conduct additional evaluations including direct communications with School personnel to insure that all aspects of Stephanie's work are satisfactory and comply with expectations of her role there.”[163]

         At the meeting, Wilson and Gorrell informed Baker that CMSU would be extending her probation another six months, and that CMSU intended to distribute surveys about Baker's performance to BASD.[164] Baker showed concern about the surveys. Baker said that she had disagreed with how Genovese handled “a situation that happened at school” “involv[ing] a student and a SAP meeting”- i.e., the video incident-and that Genovese had directed everyone in the following SAP meeting not to contact parents.[165] Baker did not say when this SAP meeting occurred.[166]

         Baker said that an “anonymous letter” referenced the SAP meeting issue. She said that Genovese and Kocher were upset with Baker because they thought she wrote the anonymous letter.[167] Baker expressed her “concern for retaliation and any negative surveys that would come from the office slash guidance office [Genovese and Kocher].”[168] Baker denied writing the letter.[169]

         Baker claims that she never discussed the letter with anyone at CSMU before CMSU distributed the surveys.[170] Baker does not believe that she ever told anyone at CMSU that she wrote the letter.[171] Baker was not aware of any conversations between CMSU staff and Kocher, Genovese, or Rado about the letter prior to CMSU distributing the surveys.[172]

         14. Reactions to the September 15, 2016 Performance Review

         After the September 15, 2016 performance review, Wilson contacted Kocher to figure out what was going on in terms of the things Baker had just told her about the SAP meeting and purported directive not to report the video incident.[173]

         Also, Baker attempted to contact Wilson on her cellphone “a couple, a few” times.[174] Wilson did not take Baker's calls because it was “uncomfortable” and “awkward.”[175] Gorrell emailed Baker “and said . . . we've made a decision and it's really not something we can negotiate at this point nor are we willing to.”[176]

         Wilson ultimately spoke with Baker when Baker called her office. Baker expressed that the extension of her probationary period was unfair. She also asked Wilson to not mention the SAP meeting situation with BASD.[177] Wilson asked “if there was something going on that made [you] uncomfortable, why [you] wouldn't have come to me sooner with it.” Baker told Wilson “that it happened during her employment with Synergy, that that specific incident didn't occur while she was employed with CMSU.”[178] Baker also said that it was Kocher (not Genovese) who had directed the personnel in the SAP meeting not to contact parents. Wilson thought Baker “changed her story” and was “uncomfortable”; that was a “red flag” for Wilson.[179] Wilson did not inform Baker about her conversation with Kocher.[180]

         15. September 9, 2016 and September 16, 2016: Baker's Timesheets

         In the week ending September 9, 2016, Baker worked overtime. She could not “flex” the additional hours off, because it was a short week (due to Labor Day).[181] Baker “was late sending this timesheet” to Wilson, so Wilson “had to call her to find out what hours she worked this week and . . . recorded them down for her.”[182] Baker and Wilson agreed that Wilson would submit overtime for Baker for that week.[183] Wilson marked down 1.5 hours of overtime for Baker on her timesheet.[184]

         In the week ending September 16, 2016 (a full week of school), Baker only logged 37 hours on her timesheet. Wilson asked Baker why she only logged 37 hours instead of 37.5. Baker replied that she “was flexing time off from the flex time I had the week before.” Wilson “reminded [Baker that she had] put in overtime for [Baker] for that” over the phone.[185] Wilson crossed off the 0.5 hours of “flex [time] used” that Baker had recorded on her September 16, 2016 timesheet.[186]

         Wilson or Gorrell informed Beach of the above sometime between September 15, 2016, and September 28, 2016.[187]

         16. September 19, 2016: The Surveys

         On September 19, 2016, Gorrell emailed the surveys to Genovese and Kocher, copying Wilson and Beach.[188] Gorrell's cover email stated that she needed the surveys, which she called “a questionnaire/evaluation, ” “in order to complete an evaluation of Stephanie Baker's work performance.” Kocher then sent the surveys to the entire staff at the BASD high school.[189] The opening paragraph of the surveys specifically stated that CMSU was “requesting this information as part of our employee evaluation process.”[190]

         CMSU then received the completed surveys. Wilson and Beach read every one.[191] Gorrell read “[t]hose that came across my desk.”[192] Nineteen were positive and six were negative.[193]

         • Genovese wrote on her survey that:[194]

• “I have received complaints from faculty regarding Stephanie trying to set private meetings with the Superintendent on his behalf. I have received complaints from faculty and my secretary regarding Stephanie's perceived repeated ''stirring the pot" behavior. I have received complaints about Stephanie complaining about how I handle discipline issues. She will state to people that she does not agree with how it was handled and explain how she thinks It should've been handled.”
• “Following an incident where I addressed her punctuality, it was reported to me by several community members shortly after I addressed her that she was bad-mouthing me publically”
• “It was reported to me by my guidance counselor, Kelly Kocher, that Stephanie Baker went into a meeting at CMSU on September 15, 2016 and reported to their team that I save a directive to my SAP ream not to report a “reportable” incident to parents and/or Chlldren and Youth. I was also told by Kelly that the next day, she recanted that version of her story to her boss and then stated that I wasn't in fact the one who gave the directive, but instead it was Kelly that gave it on my behalf. That is an outright lie which states that I gave an illegal directive. This is an attack on my professionalism, my ethics, and my character not only as the principal of this school, but as an individual.”
• “I do not feel that Stephanie Baker has the ability to be effective in her job at Benton MS/HS.”

         • Kocher wrote on her survey that:[195]

• “In most situations Stephanie handles herself in a professional manner and adheres to policies and procedures; however, I believe that she sometimes steps out of her realm of duties. As a CMSU mental health worker, she should come here, do her job and go home. Unfortunately I believe that Stephanie sometimes gets caught up in some negative feelings she has for this district/principal. She really needs to keep those thoughts and feelings in check as a professional instead of openly talking about it to various staff members. It makes them feel uncomfortable. Most of us just want to work as a team peacefully and when Steph does that, it makes it uncomfortable and difficult… and really hard to fix.”
• “[Baker's] weaknesses are that she gets caught up in drama and sometimes creates it. When it gets to the point where faculty and staff members are saying that she is stirring the pot, there is great concern about her effectiveness in our school. Trust begins to deteriorate and then team work is affected. I begin to wonder If she is talking about my effectiveness, decisions and how I handle situations to other staff members… and then ultimately I do not want to go to her with things to handle.

         • Rado wrote on her survey that:[196]

• “I am hearing that she has involvement in trying to, “rally, ” teachers together in an attempt to speak with the superintendent regarding the performance of administrators”
• “I am an administrator in the district. There have been multiple instances of times when she should have informed the principal of things that are going on instead of myself (IE bullying issues, repeated offenses of having the same conversations with students and their behavior isn't changing). I have told her this a few times and she still continues to only seek me out.”
• “I used to think [that Baker could develop and maintain positive and constructive relationships with other staff], but not anymore after learning about her recent behaviors of being involved in the creation of an anonymous letter and seemingly "working for" the superintendent to try and throw administrators under the bus. At times, I have also given her a directive, only for her to challenge what I am telling her to do; she is not in a position to undermine me, but she has before.”
• “Conduct and ethical behavior related to security is in question as of late, I have every reason to believe she, along with the superintendent, have collaborated to write an anonymous letter about the administrators in the district. In that letter, confidential information was disseminated to community members, as student's names and private case information was mentioned in detail.”

         Genovese did not request on her survey that Baker be removed from BASD, disciplined in any way, or terminated. Kocher and Rado also made no such request.[197] Genovese, Kocher, and Rado did not discuss the content of their surveys with each other or anyone else.[198]

         Wilson testified that the negative surveys raised “some concerns with regard to some of the feedback that was received.”[199] Beach testified that the negative surveys conformed to perceived issues with Baker's time because those surveys said that Baker “wasn't available, that she wasn't around, that she couldn't be contacted.”[200]

         The BASD superintendent commented on his survey that “there has been nothing relayed to me from my administrators with the exception of punctuality that was solved last year that is of question in her job performance.” Beach did not find this helpful because the surveys “were sent out in September. And then last year when she had the punctuality problem, there were only two months of the school year that he's accounting for in this evaluation is this year. And obviously after this, she had problems with her punctuality and her time reporting and being where she was supposed to be and taking off when she wasn't supposed to take time off.”[201]

         17. September 28, 2016: CMSU Terminates Baker

         Beach decided to terminate Baker. One factor was the September 2016 timesheet issue. Another factor was the survey responses. Another factor was the complaints made by Genovese and Kocher.[202] Another factor was Baker's relationship with BASD staff. Another factor was the letter, its contents, and CMSU's belief that Baker authored it.[203] After Beach made the decision, Beach notified Genovese. Genovese asked Beach to hold off on terminating Baker until after the upcoming school board meeting.[204]

         On September 28, 2016, Baker met with Wilson, Gorrell, and Beach. They informed Baker that CMSU was terminating her from her employment.[205] Baker received a termination letter stating that she was being terminated due to “Unsatisfactory Work Performance” and “Violation of Program Policies and Procedures.”[206]

         C. Analysis

         1. The Court's Prior Motion to Dismiss Ruling

         Baker argues that the “law of the case” doctrine mandates that the Court deny Defendants' summary judgment motions.[207] I disagree.

         Baker is right that the Court denied portions of Defendants' motions to dismiss Baker's original complaint.[208] But the “law of the case” doctrine - a “judicial rule of practice meant to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit”[209] - doesn't help Baker here. This doctrine “does not limit the power of trial judges to reconsider their [own] prior decisions.” United States ex rel. Petratos v. Genentech Inc., 855 F.3d 481, 493 (3d Cir. 2017) (citing Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997). Interlocutory orders such as a denial of a motion to dismiss “remain open to trial court reconsideration, and do not constitute the law of the case.” Id. (citing Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994). This Court's prior denial of portions of Defendants' motions to dismiss thus doesn't dictate my consideration of Defendants' motions for summary judgment.[210]

         This threshold point is now behind us.[211] I move to the parties' more substantive arguments. In this discussion, I keep in mind that the core of Baker's claims here involve allegations about what certain defendants were thinking or what certain defendants knew. Retaliation, conspiracy, defamation - they all hinge on a defendant's mental state. And “inferring mental state from circumstantial evidence is among the chief tasks of factfinders. We rely on the good sense of jurors (and, where applicable, trial judges) to distinguish [a defendant's mental state] where the direct evidence is necessarily scanty.” United States v. Wright, 665 F.3d 560, 569 (3d Cir. 2012), as amended (Feb. 7, 2012).

         2. Baker's § 1983 Claim of First Amendment Retaliation

         a. First Amendment Claims and Pennsylvania's Intermediate Units

         Trying to build another threshold barrier, the BASD Defendants argue that because Baker was employed by CMSU and not by BASD, Baker can't sue the BASD Defendants under a theory of First Amendment retaliation.[212] The BASD Defendants note that they “are unaware of any case in which First Amendment protections have been expanded to protect an individual who is not an employee or independent contractor of a public entity.” They also cite a Third Circuit statement that “if expansion in [First Amendment holdings] is to come the source should be the Supreme Court.”[213]

         The Court's own research contradicts the BASD Defendants' statement about the barren field of case law. In Versarge v. Twp. of Clinton N.J., 984 F.2d 1359, 1364 (3d Cir. 1993), Judge Collins J. Seitz, writing for a unanimous three-judge panel of the United States Court of Appeals for the Third Circuit, “assume[d], without deciding, ” that the Third Circuit could treat a volunteer firefighter the same as a public employee for purposes of a First Amendment retaliation claim. Judge Jane Richards Roth, in a short unanimous opinion in Houston v. Twp. of Randolph, 559 Fed.Appx. 139, 142 (3d Cir. 2014), held that the plaintiff's “role as a volunteer firefighter [was] sufficient to trigger First Amendment scrutiny.” And Judge Thomas J. Ambro, again writing for a unanimous panel in Eggert v. Bethea, 625 Fed.Appx. 54, 55 (3d Cir. 2015), made the same kind of Versarge assumption by performing the standard First Amendment analysis on a volunteer EMT.

         But what of district courts within the Third Circuit? Well, in Jones v. Indiana Area Sch. Dist., 397 F.Supp.2d 628, 633 (W.D. Pa. 2005), the plaintiff- an employee of an “intermediate unit” just like CMSU-sued her intermediate unit employer alongside the school district in which the intermediate unit was providing services. Her claims included First Amendment retaliation. Judge David Cercone of the Western District of Pennsylvania allowed the case to survive summary judgment. In Smith v. Sch. Dist. of Philadelphia, 158 F.Supp.2d 599, 606 (E.D. Pa. 2001), Judge Jan E. DuBois of the Eastern District of Pennsylvania applied Pickering to a plaintiff who was “acting as a volunteer member of [a support team] and thus had a quasi-employment relationship with the school district.”[214] And in Snyder v. Millersville Univ., No. CIV.A. 07-1660, 2008 WL 5093140, at *14 (E.D. Pa. Dec. 3, 2008), Judge Paul S. Diamond of the Eastern District of Pennsylvania held that First Amendment protections extended to a student teacher.

         Moving outside the Third Circuit and its district courts, at least four other Circuits have concluded that volunteers, student teachers, and interns receive First Amendment protections. See Gratsch v. Hamilton County, 2001 WL 406440 (6th Cir. Apr. 3, 2001) (“Although Gratsch was more of an independent contractor or volunteer, rather than an employee, the district court appropriately analyzed his claims under the test applied to employee speech. His relationship with the state in this context resembled an employer-employee relationship more than it resembled the relationship between sovereign and private citizen.”); Hennessy v. City of Melrose, 194 F.3d 237, 244 (1st Cir. 1999) (concluding that a student teacher is entitled to First Amendment protection); Andersen v. McCotter, 100 F.3d 723 (10th Cir. 1996) (concluding that an intern who received a part-time salary is entitled to First Amendment protection); Janusaitis v. Middlebury Volunteer Fire Dep't, 607 F.2d 17 (2d Cir. 1979) (affording volunteer firefighter First Amendment protection).

         Further, the Court is reluctant to contradict a prior Third Circuit statement. But the Court finds this statement inapposite when considering how Pennsylvania's intermediate units work. The Supreme Court itself expanded the sweep of First Amendment holdings to include independent contractors in the first place. In O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 726 (1996), Justice Anthony Kennedy rejected various policy arguments in declining “to draw a line excluding independent contractors from the First Amendment safeguards of political association afforded to employees.” And the Pennsylvania statute that governs intermediate units shows that intermediate units are closer to full-fledged school district employees than they are to independent contractors. “Each school district of the Commonwealth shall be assigned to an intermediate unit, and shall be entitled to the services of an intermediate unit. . . . Intermediate units shall be part of the public school system of this Commonwealth.” 24 P.S. § 9-901-A. Intermediate units must provide their assigned districts with auxiliary services, which include guidance, counseling, psychological and visual services, remedial services, and speech and hearing services. 24 P.S. § 9-922.1-A. They can also provide a host of other services if their board of directors authorizes it. 24 P.S. § 9-914-A.

         It defies logic to include independent contractors and volunteers within the First Amendment's sweep, but then exclude intermediate units, which their enacting statute reveals are dependent contractors.[215] The Supreme Court has already set the outer bound here as independent contractors. My ruling-which falls right in line with how another Pennsylvania district court has handled this exact same situation-does not expand the outer bound.[216] Given Third Circuit and district court persuasive authority, as well as the nature of intermediate units, the Court rejects BASD Defendants' threshold argument.

         b. The Elements of Retaliation

         Baker claims that Defendants “retaliated against [her] because [she] exercised her First Amendment free speech rights” in co-authoring the anonymous letter, and in speaking to other BASD faculty about whether they would speak with BASD's superintendent.[217] Baker must show “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citations omitted).

         As a public employee, [218] Baker's speech-the anonymous letter and speaking to other BASD faculty about speaking to the superintendent-would constitute “protected activity” (satisfying the first prong above) if “(1) in making it, [she] spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have an adequate justification for treating the employee differently from any other member of the general public as a result of the statement [s]he made.” Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (quotations omitted). “A public employee's speech involves a matter of public ...


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