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Garvey v. Plum Borough School District

United States District Court, W.D. Pennsylvania

December 4, 2019

MARK G. GARVEY, Plaintiff,
v.
PLUM BOROUGH SCHOOL DISTRICT, Defendant.

          MEMORANDUM OPINION

          PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Mark G. Garvey brings this action pursuant to 42 U.S.C. § 1983 and state law against Defendant, Plum Borough School District ("the District")- Plaintiff alleges that he was denied due process with respect to accusations that were made against him, and that the District suspended and ultimately terminated his employment without providing him with notice and an opportunity to be heard.

         The District has moved to dismiss Plaintiffs claims. For the reasons that follow, its motion will be granted in part and denied in part.

         I. Relevant Factual Background[1]

         Plaintiff taught physical education in the District for 13 years. Justin Stephans, who became the principal at Plum Senior High School (the "High School") in January 2017, assigned Plaintiff to teach an all-female physical education class for the 2017-2018 school year. At the time, Officer Joe Little of the Plum Police Department was the High School's school resource officer. (Compl.¶¶ 6-10.)[2]

         On October 2, 2017, Plaintiff was suspended with pay by Principal Stephans "without any explanation." Plaintiff was asked to meet with Officer Little at the Plum Borough Police Station. When he did so, Officer Little told him that Principal Stephans was reviewing video tapes of his classes to determine if he was ogling female students' breasts during "hops-in-place" exercises. Officer Little and a detective also questioned Plaintiff regarding how he contacted students outside of class. Plaintiff alleges that these concerns were wholly unfounded, that the videotapes showed that he distanced himself significantly from any close observation of the exercising girls during the "hops-in-place" exercises and that the investigation quickly ended with Principal Stephans and Officer Little concluding that he had done nothing wrong. His suspension with pay lasted two days. (Compl. ¶¶ 11-20, 114.)

         On March 5, 2018, Assistant Principal Michael Gauntner asked Plaintiff to report to the High School office to meet with him. Principal Stephans and union representative Rick Berrott also attended the meeting. Plaintiff was told to leave the High School immediately and not return until Principal Stephans called him back to work. He was not given a reason for this suspension with pay. (Compl. ¶¶ 21-24.)

         Several days later, Plaintiff was advised by union president Gray ("Gray") that he had been reported to Childline, an entity that receives reports of child abuse. Plaintiff alleges that the District reported him to Childline without advising him with the charges or giving him an opportunity to respond. (Compl. ¶¶ 21-27.)

         Officer Little, acting at the request of the District, left a voicemail message for Plaintiff on March 8, 2019 in which he asked Plaintiff to call him so that he could make a statement. Plaintiff contends that the District asked Officer Little to treat the undisclosed charges against him as a criminal matter. On March 9, 2018, Plaintiff hired a criminal defense attorney to represent him and, on the advice of counsel, did not respond to the voicemail message. (Compl. ¶¶ 28-34.)

         On March 12, 2018, Gray advised Plaintiff that Principal Stephans wanted him to come to the High School to answer some questions. Gray advised Plaintiff not to speak to Principal Stephans until the criminal charges against him were resolved and conveyed this message to Principal Stephans as well. As a result, no meeting occurred. (Compl. ¶¶ 35-40.) Instead, Principal Stephans supplied written questions for Plaintiff to answer, including asking him what had happened in the cafeteria between Plaintiff and a female student identified only as "AS." Plaintiff did not know who "AS" was or what incident was being referenced. Gray advised Plaintiff not to answer these questions without his criminal defense lawyer being present. (Compl. ¶¶ 41-44.)

         On or about March 14, 2018, Plaintiff learned for the first time that the District may have been drafting what was being referred to as a "Loudermill" letter.[3] He understood this to mean that he might be suspended without pay even though he still did not know the specific charges against him and had not been provided with an opportunity to respond.

         On March 24, 2018, Plaintiff received a criminal summons which arose out of Officer Little's investigation. The summons said nothing specific about the nature of the allegations but indicated that Plaintiff "w/the intent to harass annoy, subjected the victim to unwanted physical contact." Gray and the union's attorney advised Plaintiff of his Fifth Amendment rights and recommended against contacting Officer Little. The summons directed Plaintiff to appear before a local magisterial district judge on May 10, 2018 to defend himself against the criminal charge. Plaintiff returned the summons and pled not guilty. (Compl. ¶¶ 46-54.)

         Gray subsequently told Plaintiff that the District would be sending him a notice regarding a Loudermill hearing. On April 6, 2018, Gray informed him that a Loudermill hearing was scheduled for April 13, 2018. While Gray forwarded the Loudermill letter to Plaintiff, (Compl. ¶¶ 53-59 & Ex A.) he did not receive notice of the hearing directly from the District. According to Plaintiff, the hearing did not take place because of the pending charges against him. (Compl. ¶¶ 60-65.)

         Plaintiff was advised by Gray on April 17, 2018 that if he agreed to retire, the District would not proceed with a statement of charges or his termination. (Compl. ¶ 66.) On April 25, 2018, the attorney for the union advised Plaintiffs that the District was not willing to allow him to return to work even if he was found not guilty of the pending criminal charge and would move forward with dismissal if no agreement was reached regarding Plaintiffs retirement. (Compl. ¶ 69 & Ex. B at 1.) According to Plaintiff, this demonstrates that the District never intended to provide him with a meaningful opportunity to respond in a Loudermill setting. (Id.)

         Plaintiffs situation was not discussed at either the District's April 24, 2018 or May 22, 2018 school board meetings. (Compl. ¶¶ 68, 72.)

         Plaintiff attended a hearing on May 24, 2018 regarding his criminal charges during which several students testified. He was found not guilty by the district magistrate. (Compl. ¶¶ 71-77.) Plaintiff then asked Gray to seek his reinstatement. Gray informed him that the District intended to suspend and/or terminate him unless he chose to voluntarily retire. For the next several weeks, Plaintiff and his union representative attempted to negotiate a retirement plan that would salvage his reputation, but these negotiations were unsuccessful. (Compl. ¶¶ 78-86.)

         On June 13, 2018, Plaintiff met with Gray and Assistant Principal Szarmach at the High School to clean out his office. At a School Board meeting on June 26, 2018, he was placed on unpaid leave without an opportunity to respond to the charges.

         On June 27, 2018, the District issued an Official Statement of Charges against him, but Plaintiff did not receive it until July 11, 2018 because he was out of town. The Official Statement of Charges, which was identical to the violations outlined in the April 6, 2018 Loudermill letter, called for his termination and indicated that a hearing would be held on July 10, 2018. (Compl. ¶¶ 87-92 & Ex. C.)

         On June 28, 2018, Gray notified the District that Plaintiff was appealing his pending termination to arbitration as part of the grievance process contained in the applicable collective bargaining agreement.[4] On July 24, 2018, the District terminated Plaintiffs employment without giving him an opportunity to respond to the charges against him. The termination was reported in the media, which Plaintiff claims to have resulted in irreparable damage to his reputation. (Compl. ¶¶ 94-100.)

         Prior to any arrangements being made to conduct an arbitration regarding Plaintiffs grievance, his counsel contacted the District's solicitor on August 14, 2018 to request a hearing before the school board, thereby withdrawing the grievance demanding an arbitration hearing. His counsel told the District's solicitor that the school board suffered no prejudice by his act of opting for a board hearing rather than an arbitration and that Plaintiff did not fully understand that he had the option for a school board hearing ...


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