MEMORANDUM
Plaintiffs William LaTorre and his company, LaTorre Consulting, Inc. (together, “Plaintiffs”), bring this action against Downingtown Area School District and its
I. BACKGROUND
During the 2013-2014 and 2014-2015 school years, Plaintiff William LaTorre worked at Downingtown East High School—a facility of Defendant Downing-town Area School District (“DASD” or “the' School District”)—as an armed school resource officer.
For the 2014-2015 school year, LaTorre was also hired in a new DASD position: Chief Security Officer (“CSO”). See id. at 61:19-24; LaTorre Dep. 61:7-18. Specifically, on September 24, 2014, DASD signed a contract with Plaintiff LaTorre Consulting, Inc.(“LCI”); LaTorre owns LCI and is its only employee. See Contract Services Agreement, ECF No. 20-4; LaTorre Dep. 10:8-11, 42:6-11. As CSO, LaTorre— through LCI—was
responsible to oversee all security matters, including, but not limited to, review of and advice on video surveillance and other security needs and operations (including cyber security), consult with and meet with CLIENT and its representatives on a routine basis, coordinate and supervise drills designed to enhance the safety and improve emergency response (including the establishment of an incident command system and protocol and training thereon), serve as a liaison and periodically interface with all relevant law enforcement agencies, emergency responders (fire, ambulance, etc.) and any CLIENT private security service engaged, survey, assess, and provide written recommendations to enhance security regarding all of CLIENT’S facilities and CLIENT’S Emergency Operations and Communications Plans and advise and consult on all relevant policies, Codes of Conduct and protocols related to any security issue.
Contract Services Agreement at ¶ 2. The contract further noted that “[t]his Scope of Services is not intended to identify each and every area for which CONTRACTOR shall have responsibility, and is not intended to limit the CONTRACTOR’S responsibility under this Agreement. The CLIENT shall have the right under this Agreement to identify any other area of security for which CONTRACTOR shall be responsible.” Id.
The incident underlying this lawsuit began on September 30, 2014, just a few days after LCI and DASD entered into the contract. That morning, Gordon’s Sports Supply—a sporting goods and hunting supply store in Eagle, Pennsylvania—contacted the police regarding an attempted break-in and potential theft the night before. Jones Dep. 7:17-8:21, Apr. 15, 2016, ECF No. 20-7. Based on surveillance videos, the responding detective—Detective Jones—concluded that (1) a crossbow scope—but no ammunition, guns, or anything else—had been taken, id. at 9:23-10:15; and (2) the perpetrator was a boy, approximately 13 years old, id. at 13:3-14:3. Because of the apparent age of the
That same afternoon, while LaTorre, Jones, and school administrators were investigating this situation, the DASD public relations director, Pat McGlone, got a call from Mike Neilon, a television reporter. Mussoline Dep. 14:19-23; 16:10-21. The reporter told McGlone that the news station was dispatching a news crew to Lionville because they had learned that there was a child in the school with weapons and ammunition, and that there was possibly an active shooter situation. Id. at 14:24-15:3. After confirming with Lionville and DASD officials that Neilon’s information was false, and that the student had no weapons, the DASD superintendent, Defendant Lawrence Mussoline, instructed McGlone to call Neilon back and tell him that his information was wrong. Id. at 15:4-16, 17:10-21. McGlone did so, but Neilon said he would not call off the news team because his source was “excellent.” Id. at 15:17-19,17:4-6.
LaTorre was aware that the media was pursuing a story at Lionville because he was on a call Mussoline made to confirm Lionville’s information. LaTorre Dep. 137:25-140:17. He also learned from Detective Jones, later that afternoon, that the news station had a news van parked at Gordon’s Sports Supply, which happened to be located across the street from the police station. Id. at 145:25-146:15. Detective Jones expressed his concern, which LaTorre shared, about getting the student into the police station—without attracting the attention of the news van—for the purposes of formally interviewing him, completing paperwork, etc. Id. at 146:13-147:18.
LaTorre then called Neilon, for the purpose of “see[ing] if [LaTorre] could exercise influence on [Neilon] to not .cover a story on this child.” Id. at 149:21-150:13. Specifically, LaTorre told Neilon, “I think you should kill the story. There’s nothing there.” Id. at 152:10-14. Neilon informed LaTorre that the District Attorney’s Office was also “telling him to back off” and that Neilon had decided to do so by pulling the news van. Id. at 153:7-10.
Mussoline was “ecstatic” that LaTorre “was able to get the vans called off.” Mus-soline Dep. 27:18-23. But he was also very concerned about the source of Neilon’s false information, and why Neilon thought the source was so solid that McGlone could not persuade Neilon that the story was false. Id. at 27:1-17. Mussoline asked Neil-on whether he could confirm or deny that LaTorre was Neilon’s original source. Id. at 28:3-9. Neilon said that while he could
On October 1, the day after the investigation and LaTorre’s conversation with Neilon, Mussoline suspended LaTorre. Id. at 30:2-9. He also instructed Signaf 88 that LaTorre could not perform services for DASD as an employee of Signal 88 while suspended. Compl. Ex. F, ECF No. 1. Over the next few days, Mussoline interviewed several people in an effort to determine who gave false information to Neilon. Mussoline Dep. at 36:7-41:20. At the conclusion of these interviews, Mussoline determined that he had “just ... lost confidence” in LaTorre, id. at 48:5-6, and, at the advice of the district solicitor, decided that this loss of confidence justified the termination of the contract between DASD and LCI, id. at 48:6-11. Accordingly, on October 6, Mussoline met with LaTorre. According to LaTorre, Mussoline told La-Torre that he had no proof LaTorre was the leak, and then said: “I really wish you would have told me that you called the media to cancel their response to the child at the police station.... We need people we can trust. And I’m going to exercise the contract.” LaTorre Dep. 198:18-25. In La-Torre’s view, Mussoline “seemed more upset that he didn’t know” that LaTorre placed the call to Neilon than the fact that LaTorre did place the call. Id at 232:15-20.
At any rate, on October 6, DASD terminated its contract with LCI and LaTorre. Compl. Ex. G, ECF No. 1.
LaTorre and LCI (“Plaintiffs”) filed the instant action on September 21, 2015. The complaint contained two counts, both alleging violations of the First Amendment— one as to Mussoline and one as to DASD. ECF No. 1. Defendants filed a motion to dismiss, ECF No. 7, which the Court denied, ECF No. 16. Defendants then filed an answer, ECF No. 17, and the parties engaged in discovery. Thereafter, on May 20, 2016, Plaintiffs and Defendants filed cross-motions for summary judgment. ECF Nos. 18,19. They also filed responses to each other’s motions, ECF Nos. 22, 23, and the Court held a hearing on the motions on April 18, 2017, see ECF No. 25. The motions for summary judgment are now ripe for disposition.
II. LEGAL STANDARD
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion for summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd.,
The Court will view the facts in the light most favorable to the nonmoving party. “After making all reasonable inferences in the nonmoving party’s favor, there is a genuine issue of material fact if a reason
The guidelines governing summary judgment are identical when addressing cross-motions for summary judgment. See Lawrence v. City of Phila.,
III. DISCUSSION
Plaintiffs’ claim is that DASD and Mus-soline terminated the contract, in violation of the First Amendment, in retaliation for LaTorre speaking to Neilon about calling off the news vans. Defendants request that the Court enter judgment in their favor and close the case. Plaintiffs request that the Court enter judgment in their favor as to liability, presumably leaving damages for resolution through settlement or trial.
The same legal framework appliés to both motions: “To establish a First Amendment retaliation claim, a public employee must show that (1) his speech is protected by the First Amendment and (2) the speech was a substantial or motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden to the employer to prove that (3) the same action would have been taken even if the speech had not occurred.” Dougherty v. Sch. Dist. of Phila.,
Important factual distinctions between this case and the typical First Amendment retaliation case
As a result of this case’s unusual—if not unique—factual position, the Court’s analysis is not nearly as straightforward as either motion for summary judgment contends. At any rate, this memorandum proceeds with analysis of each of the compo
A. Whether the Speech Is Protected
In order to establish the first element of the employee’s burden of proof— that the speech at issue is protected by the First Amendment—the employee must demonstrate that (1) he spoke as a citizen, not as an employee; (2) the speech involved a matter of public concern; and (3) the government lacked an adequate justification “for treating the employee differently than the general public based on its needs as an employer.” Dougherty,
1. Whether LaTorre Spoke as a Citizen
The first question is whether La-Torre spoke as a citizen or as a school district employee when he asked Neilon to call off the news vans.
If LaTorre spoke as an employee, his speech is not protected by the First Amendment. Garcetti v. Ceballos,
“Whether a particular incident of speech is made within a particular plaintiffs job duties is a mixed question of fact and law.” Dougherty,
(1) whether the employee’s speech relates to “ ‘special knowledge’ or ‘experience’ acquired through his job, Gorum,561 F.3d at 185 ) (citing Foraker,501 F.3d at 240 ); (2) whether the employeeraises complaints or concerns about issues relating to his job duties ‘up the chain of command’ at his workplace, Foraker, 501 F.3d at 241 ; (3) whether the speech fell within the employee’s designated responsibilities, Gorum,561 F.3d at 186 ; and (4) whether the employee’s speech is in furtherance of his designated duties, even if the speech at issue is not part of them. See Foraker,501 F.3d at 243 .
Kimmett v. Corbett,
Here, several issues preclude a holding either that LaTorre necessarily spoke as an employee, as Defendants urge, or that LaTorre necessarily spoke as a citizen, as Plaintiffs urge.
First, as a practical and general matter, it is difficult, at best, to pronounce the scope of LaTorre’s ordinary job duties undisputed, considering that the job had existed for only a few days when the incident occurred. See Hrg’ Tr. 26:11-13 (“He was on the job for only a week, which hampers, to some extent, our analysis of what the job included ....”). There is little basis for determining the actual scope of LaTorre’s expected duties, other than his job description—which, again, the Supreme Court has warned courts to avoid relying on. See Garcetti,
But even setting aside that particular problem, and considering the constitutional significance of the speech in light of the limited information that does exist, the Kimmett factors can point either way depending on whether the facts are viewed in the light most favorable to Plaintiffs or to Defendants. Specifically, the second and third factors clearly point in Plaintiffs’ favor, while the first and fourth clearly point in Defendants’ favor: It is evident that LaTorre’s speech did not involve raising intra-workplace issues up his own chain of command, and also that interfacing with the media was not explicitly designated in his job description. These considerations support Plaintiffs’ argument that LaTorre spoke as a citizen, not as an employee. On the other' hand, it is also evident that LaTorre’s speech related to knowledge he acquired through his job, and that the speech was made in furtherance of duties that were designated in his job description. These considerations support Defendants’ argument that LaTorre spoke as an employee, not as a citizen.
Therefore, viewing the big picture of this incident from two different perspectives, a reasonable jury could find for either side. Viewing the facts in the light most favorable to Defendants—-specifically, the facts that LaTorre learned the information he relayed to Neilon through a meeting and conversations he participated in as part of his undisputed job duties, that LaTorre called a school administrator to pass on portions of the information before calling Neilon, and that LaTorre knew the school district desired the outcome he sought by placing the phone call—a reasonable jury could determine that LaTorre “intended to carry out the intentions of both the District administration and Police Department to eliminate or correct any coverage of the false ‘lockdown’ story being pursued by the media.”
Because, on the record before the Court at this time, a reasonable jury could find for either Plaintiffs or Defendants on this issue, genuine issues of material fact remain as to whether LaTorre spoke as an employee or a citizen. This factor therefore supports neither of the motions for summary judgment.
2. Whether the Speech Involved a Matter of Public Concern
The next question in determining whether LaTorre’s speech is protected by the First Amendment is whether the speech involved a matter of public concern.
“[S]peech implicates a matter of public concern when ‘it can be fairly considered as relating to any matter of political, social or other concern to the community,’ or when ‘it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’” Munroe v. Central Bucks Sch. Dist.,
Here, again, the type of speech at issue is uncommon, if not unique, in First Amendment case law: the speech furthered the goal of keeping false information from the public, rather than revealing true information to the public. Nonetheless, even viewing the facts in the light most favorable to Defendants, no reasonable jury could find that LaTorre’s speech was not on a matter of public concern. Certainly, the public has a legitimate interest in news relating to shootings at public schools—and in the prevention of false reports on the same subject, considering that such reports could incite unnecessary panic in the community. Accordingly, La-
Defendants’ best argument is that the context in which the statements were made is private. See Miller v. Clinton Cty.,
Importantly, moreover, LaTorre’s speech did not concern personal grievances about his job, which is a type of speech that is clearly unprotected by the First Amendment. See, e.g., Miller,
Accordingly, the Court finds that La-Torre’s speech involved a matter of public concern. This conclusion is necessary, but not sufficient, to the success of Plaintiffs’ motion for summary judgment, and does not defeat Defendants’ motion for summary judgment.
3. Whether Defendants Had an Adequate Justification
The third and final factor in determining whether LaTorre’s speech is protected by the First Amendment is whether Defendants had an adequate justification “for treating the employee differently than the general public based on its needs as an employer.” Dougherty,
This consideration in the First Amendment analysis “reflects the importance of the relationship between the speaker’s expressions and employment.” Garcetti,
In order to determine whether Defendants had an adequate justification for its treatment of Plaintiffs, the Court must ask whether LaTorre’s “interest in the speech outweighs any potential disruption of the work environment and decreased efficiency of the office.” Curinga v. City of Clairton,
Here, Plaintiffs argue that Defendants had no adequate justification for firing Plaintiffs because LaTorre’s speech “eliminate[ed] ... a threat of disruption that might have resulted from unwelcome publicity,” rather than creating a disruption. Pis.’ Resp. at 16, ECF No. 23. In so arguing, Plaintiffs miss the point of this factor. It is undisputed that LaTorre’s phone call to Neilon at least contributed to the elimination of the disruption of a false news story about the school and/or one of its students. But that does not mean that the phone call could not also have caused any disruptions in the functioning of the internal workplace of the school. Viewing the facts in the light most favorable to Defendants, a reasonable jury could agree, for example, that a school superintendent might not want his chief security officer to place calls to the media about matters of school security without first having authorization to do so.
Accordingly, there remain genuine disputes of material fact as to whether Defendants had an adequate justification for their termination of the contract. This conclusion is sufficient to deny Plaintiffs’ motion for summary judgment.
• • •
In summary, Plaintiffs have failed to show that no genuine disputes of material fact exist as to all three of the above factors, while Defendants have failed to show that no genuine disputes of material fact remain as to at least one of the above factors, and that they are entitled to judgment as a result. Accordingly, Plaintiffs have failed to establish that LaTorre’s speech is necessarily protected by the First Amendment, and Defendants have failed to establish that LaTorre’s speech is necessarily unprotected by the First Amendment.
Because Plaintiffs carry the burden as to this element and cannot win judgment without prevailing on it, the Court will deny Plaintiffs’ motion for summary judgment. As to Defendants’ motion, one issue remains.
B. Whether the Speech was a Substantial Factor in the Termination Decision
Assuming that LaTorre’s speech is protected by the First Amendment, the next question—and the second element of the First Amendment retaliation analysis—is whether LaTorre’s speech “was a substantial or motivating factor” in Defendants’ choice to fire Plaintiffs. Dougherty,
This element is a question of fact. Gorum,
That is not the case here, where the facts are not so decisive that a reasonable jury could only find for one side. To the contrary, while many of the bare facts are undisputed, the inferences to be drawn from them are not. Viewing the facts in the light most favorable to Plaintiffs, La-Torre’s speech was, at the least, the initial force that led to the termination of the contract, and thus was a “substantial or motivating factor.” On the other hand, viewing the facts in the light most favor
In fact, even in Plaintiffs’ view, Defendants likely fired Plaintiffs because Musso-line suspected that LaTorre originally supplied Neilon’s faulty information. If so, and if Mussoline was wrong, the termination of Plaintiffs’ contract may have been unfair— but not necessarily unconstitutional. That firing would arise to a constitutional level only if LaTorre’s phone call to Neilon—if protected in the first place—was a substantial or motivating factor in the process. See Borough of Duryea v. Guarnieri,
Accordingly, this element properly remains a question of fact for the jury. As a result, the Court will also deny Defendants’ motion for summary judgment.
IV. CONCLUSION
For the foregoing reasons, the Court will deny both motions for summary judgment.
ORDER
AND NOW, this 22nd day of May, 2017, for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that the parties’ Motions for Summary Judgment (ECF Nos. 18, 19) are DENIED.
AND IT IS SO ORDERED.
Notes
. During this time, his work was through a security company called Signal 88, which is not a party to this case.
. For his part, Detective Jones disputes that this conversation occurred. He testified that, to his knowledge, there was never a news van outside Gordon's, and that he never told La-Torre there was a news van near the police station. Jones Dep. 34:16-35:21.
. Reed remembers that this phone call occurred, but does not remember what he and LaTorre discussed. Reed Dep. 12:1-13:25, Apr. 22, 2016, ECF No. 20-11.
. According to LaTorre, Neilon claimed that he did not know who the source was, except that it was a DASD administrator. LaTorre Dep. 190:4-192:1.
. Indeed, the parties have not identified—and the Court has not found—any cases with remotely similar facts.
. As the Sixth Circuit recently discussed, there is a circuit split over this issue. The Third, Seventh, Eighth, and Ninth Circuits "have concluded that 'whether the speech in question was spoken as a public employee or a private citizen presents a mixed question of fact and law, while the D.C., Fifth, and Tenth. Circuits” have held that it is solely a question of law. Mayhew v. Town of Smyrna, No. 16-5103,
. It may well be true, no matter what, that LaTorre was also concerned for and motivated by the child’s wellbeing, as he contends.
. Plaintiffs also rightly point out that Defendants make no attempt to explain how Plaintiff's speech was made pursuant to his ordinary duties in his security officer role with Signal 88, which was also terminated pursuant to this incident. See Pls.' Resp. at 13, ECF No. 23.
. Indeed, because Plaintiffs must prove all elements of the protected-speech element, this determination is sufficient to defeat Plaintiffs’ motion for summary judgment. For the sake of completeness, however, this memorandum will continue to analyze the remaining arguments in Plaintiffs’ motion.
. For his part, LaTorre claims that he was motivated by a desire to protect the student, who has a disability. He goes on to argue that there is a public concern inherent in advocacy on behalf of disabled students.
. At the hearing, when asked if Defendants had adequate justification for the termination of the contract, defense counsel said, “I think that if you proceed with the analysis, there was adequate justification but we don’t even get there under the applicable law, Garcetti, Lane vs. Franks. They have to prove protected speech, and that’s analyzed in terms of, was he speaking as a citizen, and was it a matter of public concern?” Hr’g Tr. 27:10-16. This
. This argument, of course, conflicts with Defendants’ argument that the phone call to Neilon was within the ordinary scope of La-Torre’s job duties, such that LaTorre spoke as an employee. But these arguments can exist in the alternative; only one needs to succeed for Defendants to be entitled to judgment.
. Moreover, if Defendants terminated the contract due to an incorrect belief that La-Torre was the leaker, that situation would not, on its own, rise to a First Amendment violation because the "speech” at issue did not, according to LaTorre, even occur. See Fogarty,
. There is a third and final element of the First Amendment retaliation analysis—whether the same action would have been taken in the absence of the speech at issue. But this element, which places the burden on the defendant, comes into play only if the plaintiff has first established that his speech is protected by the First Amendment and was a substantial or motivating factor in the action taken. Here, Plaintiffs have not established as much, and Defendants make no argument with respect to this element, so the Court need not consider it.