Twitter Dee Twitter Dumb - Part 2

v.
No. 3:06CV01196 (DJS)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JEFFREY SPANIERMAN,

Plaintiff,

ABIGAIL L. HUGHES, ANNE DRUZOLOWSKI, and LISA HYLWA,

Defendants.

MEMORANDUM OF DECISION AND ORDER

The plaintiff, Jeff:r:ey Spanie:r:man ("the Plaintiff") brings

this action against the defendant.s, Abigail L. Hughes ("Hughes"),

Anne Druzolowski ("Druzolowski"), and Lisa Hylwa ("Hylwa")

(collectively, "the Defendants"), pursuant to 42 U.S.C. § 1983,

alleging violations of his rights under the First and Fourteenth

Amendments to the United States Constitution. Now pending befo:r:e

the court is the Defendants' motion for summary judgment (dkt.

# 31) pursuan t to Rule 56 of the Federal Rules of Civil Pzoc edu r'e

("Fed. R. Civ. P."). For the reasons that hereafter follow, the

Defendants' motion fo:r: summary judgment (dkt. # 31) is GRANTED.

I. FACTS

On January 2, 2003, the State of Connecticut, Department of

Education ("DOE") hired the Plaintiff to be an English teacher at

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Emmett O'Brien High School ("Emmett O'Brien") in Ansonia,

Connecticut. At all times relevant to this case: (1) Hughes was

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employed by the DOE as t.he Supe:cintendent of the Connecticut Technical High School syst.em, of which Emmett 0' Bri.en is a part; (2) Druzolowski was employed by the DOE as the Assistant Superintendent of the Connecticut Technical High School system; and (3) Hylwa was employed by the DOE as the p:rincipal of Emmett

O'Brien. The Plaintiff was part of a union that had a collective bargaining agreement ("the Agreement") with the DOE. Under the Agreement, a teacher z'e ache s tenure after completing f ou r years of full-time service.

This case involves the Plaintiff's use of MySpace.com ("MySpace"), a website that allows its users to create an online community where they can meet people. MySpace can be used to share photographs, journals, and "interests" with mutual friends. People with MySpace accounts can create a "profile," to which they can link their friends, and the owner of the profile can either invite people to become friends, or other MySpace users can ask the owner of the profile to become friends with the owner of the profile. If the owner of a profile accepts another MySpace user as a friend, the friend's profile picture is posted on the profile owner's MySpace page, along with a link to the friend's MySpace profile. The owner of a profile can kick friends off his profile, deleting that friend's profile picture from the owner's profile page. In addition, a profile owner can completely block othe:r MySpace users from viewing his profile

page. The owner of a profile tan post blogs on his own profile page, allow other MySpace users to post comments on his p:r::ofile page, o:r:: post comments on o t.he r use:r::s' profile pages.

The Plaintiff originally began to use MySpace because students asked him to look at their MySpace pages. The Plaintiff subsequently opened his own MySpace account, creating several different profiles. One of his profiles was called ~Mr. Spide:r::man, II which he mai.ntained on MySpace f rorn the summer of 2005 to the fall of 2005. The Plaintiff has testified that he used his MySpace account to communicate with students about homework, to learn more about the students so he could relate to them better, and to conduct casual,non-school related discussions.

Elizabeth Michaud (~Michaud") was a guidance counselor at Emmett O'B:r::ien. In the fall of 2005, Michaud spoke with Francesca Ford (~Fo:r::d"), a teacher at Emmett O'B:r::ien, who info:r::med Michaud that the Plaintiff had a profile on MySpace. Michaud alleges that she also :r::eceived student complaints about the Plaintiff's profile page. After her conversation with Ford, Michaud viewed the Plaintiff's ~Mr. Spiderman" profile page, reviewing it for about a half hour. Mi.chaud has testified that she was disturbed by what she saw on the Plaintiff's profile page. According to Michaud, the Plaintiff's profile page included a picture of the Plaintiff when he was ten years

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younger, unde:r which were p i ct.ure s of Emmett 0' Brien students. In addition, Michaud stated that, near the pictures of the students were pictures of naked men with what she considered "inapprop:riate comments" unde:rneath them. Michaud fu:rther testified that she was disturbed by the conversations the

Plaintiff was conducting on his profile page. Michaud stated

that the Plaintiff's conve:rsations with Emmett O'Brien students were "very peer-to-peer like," with students talking to him about what they did over the weekend at a party, or about their personal problems. Michaud felt that the Plaintiff's profile page would be disruptive to students.

After viewing the Plaintiff's "Mr. Spiderman" profile page, Michaud spoke with the Plaintiff about his email communications with students about things that were not related to school, and suggested that he us~ the school email system for the purpose of educational topics and homework. Michaud also told the Plaintiff that some of the pictures on his profile page were inappropriate. After Michaud spoke with the Plaintiff, he deactivated the "Mr. Spiderman" profile page. The Plaintiff then created a new MySpace profile on Octobe:r 14, 2005 called "Apoll068."

Ford subsequently discovered the Plaintiff's new profile page and informed Michaud of it. The Defendants also allege that Emmett 0' BzLe n students complained to Ford about the Apo.l Lo SS profile. Michaud and F'o rd separately viewed the "Apoll068"

profile and came to the conclusion that it was nearly identical to the "Mr. Spiderman" profile. The Plaintiff admits that the "Mr. Spiderman" profile and the "Apollo68" profile had the same people as friends and included the same types of communications.

Michaud reported the existence of the "Apollo68" p ro f i Le

page to her supervisor, Debbie Anderson, the Director of

Guidance. Michaud was then told to report the situation to Hylwa and to make sure that the Plaintiff had union representation. In November' 2005, Hylwa met with the Plaintiff, explained that there would be an investigation, and placed the Plaintiff on administrative leave with pay. The Plaintiff deactivated the "Apollo68" profile when he was placed on administrative leave.

Rita Ferraiolo ("Ferraiolo"), an Education Labor Relations Specialist with the DOE, was assigned to investigate the Plaintiff's MySpace profiles. During the investigation, Ferraiolo obtained a list of the friends associated with the "Apollo68" profile. She was able to match several of the friends' profiles with Emmett O'Brien students. Ferraiolo also obtained comments posted on the "Apollo68" profile page, comments made by the Plaintiff on other individuals' MySpace profile pages, and blog entries posed by the Plaintiff on his own profile page.

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On January 13, 2006, Ferraiolo met with the Plaintiff, the Plaintiff's union representative, and Hylwa to discuss his

II. DISCUSSION

MySpace activities. At this meeting, the Plaintiff had the

opportunity to explain his MySpace profiles. On March 30, 2006,

Hylwa sent a letter to the Plaintiff explaining that he had

exercised poor judgment as a teacher. That same day, Druzolowski

sent a letter to the Plaintiff informing him that the DOE would

not renew his contract for the 2006-2007 school year. The

Plaintiff then reque s t.ed a hearing. Thus, on Ap:ril 26, 2006, the

Plaintiff and his attorney met with Hughes and Ferraiolo. The

Plaintiff and his attorney were allowed to present evidence at

this hearing. Despite the Plaintiff's efforts, Hughes ultimately

agreed with Druzolowski's decision not to renew the Plaintiff's

contract. The Plaintiff received his pay and benefits until the

end of the summer of 2006, when his cont:ract with the DOE fo:r the

2005-2006 school year expired.

The Plaintiff has brought this action against the Defendants

in thei:r individual and official capacities pursuant to 42 u.s.c.

§ 1983, alleging that they violated his Fou.rt.e errt.h Amendment

rights to procedural due process, substantive due process, and

equal protection. The Plaintiff also alleges that the Defendants

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violated his First Amendment ri.qh t s to freedom of speech and

freedom of association. Title 42, Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the

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jurisdiction thereof to the deprivation of any rights, pri vileges, or immunities s e cu red by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress "

42 U.S.C. § 1983.

"[Section] 1983 'is not itself a source of

substantive rights,' but merely provides 'a method for

vindicating federal rights elsewhere conferred.'" Graham v.

Connor, 490 u.S. 386, 393-94 (1989) (citing Bakel: v. McCollan,

443 U.S. 137, 144, n.3 (1979)). "To prevail on a § 1983 claim, a

plaintiff must establish that a person acting under color of

state law deprived him of a federal right." Thomas v. Roach, 165

F.3d 137, 142 (2d Cir. 1999).

The Defendants argue that all of the Plaintiff's claims fail

as a matter of law.

The court shall analyze the parties'

arguments seriatim.1

A. SUMMARY JUDGMENT STANDARD

A motion fOl: summary judgment may be granted, "if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue of fact and that the moving party

lThe Defendants have moved for summary judgment on all claims in the complaint. In the complaint, the Plaintiff mentions his November 28, 2005 suspension, a reprimand letter dated March 30, 2006, and the March 30, 2006 letter informing him that his employment contract would not be renewed. The court notes that, although all three of these incidents could have been used to support the Plaintiff's claims, the parties, in their summary judgment memoranda, discuss only the non-renewal of the employment contract. As a result, the court's analysis shall focus solely on the non-renewal of the employment contract, and the court shall consider all claims with regard to those other incidents abandoned. See Farrar v. Town Of s t xa t f o r d , 537 F. Supp. 2d 332, 356 (D. Conn. 2008).

C. FIRST AMENDMENT RETALIATION

which a jury could conclude that his conduct was in any way

similar to Benciavenga's or Shepherd's. Because of this lack of

evidence, no rational person could regard the circumstances of

the Plaintiff to be similar to those to whom he compares himself.

As a result, the Plaintiff's LeClair selective prosecution claim

fails. Consequently, with regard to the Plaintiff's LeClair

selective prosecution claim, the Defendants' motion for summary

judgment (dkt. # 31) is GRANTED.

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The Plaintiff also asserts that the Defendants violated his

First Amendment rights. Specifically, the Plaintiff claims that

the Defendants retaliated against him because he exercised his

freedom of speech and freedom of association rights. The

Defendants argue that both types of First Amendment claims fail

as a matter of law.

1. Freedom of Speech

The Plaintiff alleges that the Defendants retaliated against

him for exercising his right to free speech. As the Second

Circuit has held,

a plaintiff making a First Amendment retaliation claim under § 1983 must initially demonstrate by a preponderance of the evidence that: (1) his speech was consti tutionally protected, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and the adverse employment

Amendment claim, where the Plaintiff argues that it was, in fact, the contents of his MySpace profile page that motivated the decision to not renew his contract.

omi tted.)

"The question of whether certain speech enjoys a

determination against him, so that it can be said that his speech was a motivating factor in the determination.

Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999); see Mount

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 u.s. 274,

283-87 (1977). If a plaintiff produces evidence of these three

elements, the government may nevertheless escape liability in

one of two ways. "One way the government may prevail is by

demonstrating by a preponderance of the evidence that it would

have taken the same adverse action in the absence of the

protected speech." Mandell v. County of Suffolk

316 F.3d 368, 382 (2d Cir. 2003). "Alternatively, the

government may show that plaintiff's speech was likely to

disrupt the government's activities, and the likely disruption

was sufficient to outweigh the First Amendment value of

plaintiff's speech." Id. at 382-83. (internal quotation marks

protected status under the First Amendment is one of law, not

fact." Morris, 196 F.3d at 110.

Before the Court reaches these issues, however, it must

first address a preliminary question-whether the Plaintiff

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expressed his views as a citizen, or as a public employee

pursuant to his official duties. The Supreme Court has held

that "when public employees make statements pursuant to their

official duties, the employees are not speaking as citizens for

First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 u.s. 410, 421 (2006). "Employees who make public statements outside the course of performing their official duties retain some possibility of Fixst Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government." Id. at 423. "When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not govexnment employees." Id. at 424. This holding is limi ted "only to the expre s s i.on s an employee makes puzsuant; to his or hex official responsibilities, not to statements or

complaints . that are made outside the duties of

employment." Id.

The parties have not specifically addressed this threshold question of whether the Plaintiff made his statements pursuant to his official duties. It is clear to the court, though, that the Plaintiff, when using his MySpace, was not acting pursuant to his responsibilities as a teacher. There is no indication in the record that the Plaintiff, as a teacher, was under any obligation to make the statements he made on MySpace. Thus, the court finds that Garcetti does not extinguish the Plaintiff's First Amendment rights.

Because Garcetti is not dispositive, the court next turns

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U.S. at 146)

Nonetheless, as the Supreme Court has held,

to the three-prong prima facie case of (1) public concern, (2)

adverse employment action, and (3) causal connection. "Central

to this inquiry is whether the speech may 'be fairly

characterized as constituting speech on a matter of public

concern.'" Morris, 196 F.3d at 110 (quoting Connick v. Myers,

461 U.S. 138, 146 (1983)). In general, "speech on 'any matter

of political, social, or othe:r concern to the community' is

protected by the First Amendment." Id. (quoting Connick, 461

when a public employee speaks not as a citizen upon mat.t e rs of public conce:rn, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavio:r.

Connick, 461 U.S. at 147. The court must "focus on the motive

of the speaker and attempt to determine whether the speech was

calculated to redress personal grievances or whether it had a

broader public purpose." Lewis v. Cowen, 165 F.3d 154, 163-64

(2d Cir. 1999). As noted by the Second Circuit, "expressing

dissatisfaction with working conditions is not, by itself,

speech on matters of public concern." Tiltti v. Weise, 155 F.3d

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596, 603 (2d CiI. 1998); see Lewis, 165 F.3d at 164 (" [S]peech

on a purely private matter, such as an employee's

dissatisfaction with the conditions of his employment, does not

pertain to a matter of public concern.") .

was elegantly articulated" in this poem.

The title of this

The court notes that the contents of the Plaintiff's

MySpace profile pages were varied.

The profile page contained,

inter alia, comments f rom the Plaintiff to other MySpace u se rs ,

comments from other MySpace use:r:s to the Plaintiff, pictures,

blogs, and poetry.

The court, having reviewed the parties'

submissions; concludes that almost none of the contents of the

Plaintiff's profile page touched matters of public concern. The

majority of the profile page consisted of personal conversations

between the Plaintiff and other MySpace users or creative

writing.

The only portion of the profile page that the Plaintiff

argues is protected speech is a poem by the Plaintiff.1o

According the Plaintiff, his "opposition to the Iraq Wa:r:

entry on the profile page is "War poem (lyrics) whatever." The

poem's lyrics read as follows:

The damage is done. No Where [sic] to run. The sand and sun aren't any fun.

They rain down all day in the fields where soldiers

IOThe Defendants also discuss an alleged telephone conversation the Plaintiff had with Druzolowski as being part of the Plaintiff's First Amendment claims. The court notes, however', that the Plaintiff does not argue in his opposition memorandum that this telephone conversation supports his First Amendment claims. The court thus considers abandoned any claims based on that conversation. See Far'r'ar, 537 F. Supp. 2d at 356. In addition, even if the court were to consider this telephone conversation, it would not be protected speech under the First Amendment. The record indicates that the telephone conversation concerned the Plaintiff's complaints or concerns about his work schedule. Such a conversation, whereby the Plaintiff expressed dissatisfaction with his working conditions, would concern matters only of personal, not public, interest, and hence would not be sufficient to support the Plaintiff's First Amendment claims. See Connick, 461 u.S. at 147; Lewis, 165 F.3d at 164; Tiltti, 155 F.3d at 603.

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lay [sic].

'I'he i r f i rea.rms held tightly. Their steps fall lightly. They watch for the enemy.

A man, woman or child they see. He could be any of the three.

In houses they go hoping bombs won't explode. For war of revenge that has no end.

The commander and [sic] chief much like a thief, will steal away at the dawn of the day.

But how many ltIill die, for Ame rLca ' s apple pie. A slice of history that will remain a mystery.

The freedom we value is being stolen away, from a new people each and everyday [sic].

The soldiers then cry, watching friends die, defending our nation, they all find salvation.

They protect the peace and and [sic] continue to head

East. •

To a land of sand and sun, that isn't any fun and leaves them no where [sic] to run.II

(Dkt. # 31, Ex. 8.)

Leaving aside the question of whether one could call this

bit of poetastry an ~elegant articulation" of the current

conflict in Iraq, the court concludes that, construing all

ambigui ties in f avo r of the Plaintiff, the poem could constitute

a political statement. That is, one could consider this poem to

be an expression of the Plaintiff's opposition to the Iraq War.

As such, it would be protected speech under the First Amendment.

Because there is no question that the Plaintiff suffered an

advel:se employment action, the issue becomes whethel: there was a

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causal connection between the Plaintiff's poem and the decision

liThe court has not altered the contents of the poem, but instead inserted -[sic]" to indicate a potential spelling or grammatical error that was present in the original. The court points out that these are only potential spelling and grammatical errors, for versifiers such as the Plaintiff often take poetic license with regard to language.

Spiderman" profile page on October 2, 2005.

(See dkt. # 31, Ex.

to not renew his employment contract. "A plaintiff can

establish the causal connection between protected expression and

an adverse employment determination indirectly 'by showing that

the p ro t.e ct.ed acti vi ty was followed by adverse t.re at.men t in

employment, or di:r:ectly by evidence of retaliato:r:y animus.'"

Cobb, 363 F.3d at. 108 (quoting Morris; 196 F.3d at 110). The

Plaintiff presents no evidence of retaliatory animus, and there

is nothing in the record to indicate that the Defendants

intended to retaliate against the Plaintiff because of the

political views expressed in his poem. Therefore, the Plaintiff

has not established a causal connection directly.

This leaves the indirect way of establishing a causal

connection t.hzouqh the t.ernpo ra I proximity between the p:r:otected

acti vi ty and the adve rs e action. In the court's view, the

Plaintiff has not established this.12 Given the nature of

MySpace, the court, assumes, for the pu.rpo s e of this analysis,

that the Defendants were aware of all the contents on the

Plaintiff's profile page, including the poem. A review of the

record indicates that the Plaintiff posted the poem on his "Mr.

8.) Based upon the parties' submitted undisputed facts, Michaud

viewed the profile page shortly thereafter, presumably before

October 14, 2005, the date that the Plaintiff created his

12There is no discussion of this temporal proximity at all by the Plaintiff ..

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The Second Circuit "has not drawn a bright line to define

"Apoll068" p:r:ofile page after being told by Michaud that the "Mr. Spiderman" page was inappropriate. The adverse action at issue is the non-renewal of the Plaintiff's employment corrt rac t , which occurred on March 30, 2006. Thus, the time period here spans approximately five and a half months.

the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action." Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F. 3d 545, 554 (2d CiL 2001) (collecting cases). Although there is no such bright line rule, "courts in the Second Circuit have rejected finding a causal inference when there were gaps of four, five, or six months between the protected activity and the alleged retaliation." Santisi v. South Huntington Union Free Sch. Dist., No. 03-CV-3847 DRH/MLO, 2006 WL 721320, at *7 (E.D.N.Y. Mar. 17, 2006) (citing Diaz v. Weill Med. Ctr. of Cornell Univ., No. 02 Civ. 7380, 2004 WL 285947, at *22 (S.D.N.Y. Feb. 13, 2004) (collecting cases), aff'd, 138 Fed. Appx. 362 (2d Cir. 2005)). As a result, the court finds that the five- to six-month interval, by itself, is insufficient to demonstrate causation. There is no additional evidence that the Plaintiff's poem played any part in the decision to not renew the Plaintiff's employment contract. The

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Defendants' correspondences with the Plaintiff did not mention the poem at all; rather, they focused on the Plaintiff's contact with Emmett O'Brien students on his MySpace profile page. The court finds that the Plaintiff has failed to establish the necessary causal connection between his exercise of the right to free speech and the allegedly retaliatory action taken against him.

Moreover, even if the Plaintiff had established this causal connection, the Defendants could still prevail by demonstrating by a preponderance of the evidence that they would have taken the same adverse action in the absence of the protected speech, or that the Plaintiff's speech was likely to disrupt school activities, and the likely disruption was sufficient to outweigh the First Amendment value of plaintiff's speech. See Mandell, 316 F.3d at 382-83. In the court's view, the Defendants would have taken the same adverse action absent the existence of the poem on the Plaintiff's MySpace page. All the evidence indicates that the action taken against the Plaintiff resulted from his interactions with Emmett O'Bri.en students. There is no indication that the poem in any way played a part in the decision to not renew the Plaintiff's employment contract.

In addition, the Defendants have submitted evidence supporting the argument that the Plaintiff's conduct on MySpace, as a whole, was disruptive to school activities. One example of

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(Id., Exs. 11 & 12.)

Another example is a November 25, 2005

the Plaintiff's conduct is a November 22, 2005 exchange with a

student, using the profile name "Byczko," that went as follows:13

Byczko: "yo, hows it going sir? i figured i would leave a comment because i' m bo r'e d :)"

the Plaintiff: "Things are going well for me. Sorry that you are bored. I'll see you tomorrow. If you ever call me sir again, you will be serving a detention sooooo long that your great grandchildren will have to finish it out. LOL"

Byczko: "hey, have to fight!

i think thats a threat, u and me might SIR!!! 101, see ya tomorrow!"

the Plaintiff: "I would never threaten you. It's a straight out promise. I'll give you a choice you can serve detention until you've copied every page of every book in my room or you can stay from tomorrow until 11- 22-3088"

exchange with a student, using the profile name "repko," that

went as follows:

the Plaintiff: "Repko and Ashley sittin in a tree.

K ISS I N G. 1st comes love then comes marriage. HA HA HA HA HA HA HA!!!!!!!!!!!!!!!!!!!!!!!! LOL"

r'epko:

"dont be jealous cuase you cant get any 101 :)"

the Plaintiff: "What makes you think I want any? I'm not jealous. I just like to have fun and goof on you guys. If you don't like it. Kiss my b ra s s ! LMAO"

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(Id. )

13The court has not altered the contents of this or any other exchange taken from the Plaintiff's MySpace profile page. The court takes notice that spelling and grammatical rules are not always closely followed in such casual or informal online exchanges, and that oftentimes certain phrases are abbreviated or expressed in a form of shorthand (e.g., "LOL" can mean "laughing out loud," and "LMAO" can mean "laughing my ass off"). Furthermore, such exchanges often contain so-called "emoticons," which are symbols used to convey emotional content in written or message form (e.g., ":)" indicates "smile" or' "happy," and": (" indicates "frown" or "sad") .

"uncomr cz-t.ab.Le . "

(See id., Ex. 21.)

It is reasonable for the

In the court's view, it was not unreasonable for the Defendants to find that the Plaintiff's conduct on MySpace was disruptive to school activities. The above examples of the online exchanges the Plaintiff had with students show a potentially unprofessional rapport with students, and the court

can see how a school's ad.ministration would disapprove of, and find disruptive, a teacher's discussion with a student about "getting any" (presumably sex), or a threat made to a student (albeit a facetious one) about detention.

Moreover, there is evidence of complaints about the Plaintiff's MySpace activities. For example, in her affidavit, Ford states that Emmett O'B:t:ien students info:t:med her of the Plaintiff's MySpace conduct, which made some of them

Defendants to expect the Plaintiff, a teacher with supervisory authority over students, to maintain a professional, respectful association with those students. This does not mean that the Plaintiff could not be friendly or humorous; however, upon review of the record, it appears that the Plaintiff would communicate with students as if he we re their peer, not their' teacher. Such conduct could very well disrupt the learning atmosphere of a school, which sufficiently outweighs the value of Plaintiff's MySpace speech.

In sum, the court finds that the Plaintiff has failed to

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educational, religious, and cultural ends .

"

Piscottano

establish a causal connection between his poem and the decision to not renew his employment contract. The court also finds that, even if such a causal connection were to exist, the Defendants would have taken the same adverse action even in the absence of the poem, and that the Plaintiff's speech was likely

to disrupt school activities. As a result, the Plaintiff's

First Amendment f:r:eedom of speech claim fails as a matter of law. Consequently, with regard to the Plaintiff's First Amendment freedom of speech claim, the Defendants' motion for summary judgment (dkt. # 31) is GRANTED.

2. Freedom of Association

"The First Amendment .

. prohibits a state, as sovereign,

from abridging an individual's right to associate with others in pursuit of a wide variety of political, social, economic,

v. Murphy, 511 F.3d 247, 268 (2d CiL 2007) (internal citations and quotation marks omitted). "[I]n order to prevail on a First Amendment f:r:eedom-of-expressive-association claim, a gove:r:nment employee must show . . . that his expressive association involved a matter of public concern-just as would a government employee complaining of a violation of his right to freedom of speech." Id. at 273. A public employee must also show that he suffered an adve:r:se employment action, and that a causal connection existed between the expressive association and the

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With regard to whether one's association with an

adverse employment action. See Konits v. Valley Stream Cent.

High Sch. Dist., 394 F.3d 121, 124 (2d Cir. 2005).

organization involves a matter of public concern, the Second

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Circuit has stated the following:

An individual's association with an organization can be deemed to involve expression on a matter of public concern in either of two ways. First, the organization itself may engage in advocacy on a matter of public concern. If it does, the individual's association with the organization may constitute, at least vicariously, expressive conduct on a matter of public concern.

Second, even where the organization itself does not purport to engage in advocacy on matters of public conc~rn, the individual's association with the organization may-although it does not necessarily-constitute approval or an endorsement of the nature and character of the organization. Such approval or endorsement itself would constitute expressive conduct on a matter of public concern if the nature or character of the organization is a matter of public concern.

Piscottano, 511 F.3d at 274 (internal citations omitted).

The Plaintiff's argument with regard his freedom of

association claim is not extensive. The court assumes that

MySpace is the organization with which the Plaintiff claims he

was associated. The court begins by pointing out that it is

unsure as to whether MySpace can properly be considered an

"organization" for the purposes of this analysis. Although one

must sign up to use MySpace, it does not constitute a specific

group that people join. Rather, it is a means through which one

can create an online community of friends, family, classmates,

interests with your growing network of mutual friends!"

(Id. )

co-workers, etc.

(See dkt. # 31, Ex. 2.) That is, MySpace is a

medium through which people meet and have contact with other

people. Presumably one could form an online organization that

expresses itself on matters of public concern and interacts with

organization members via MySpace. Such an organization, however,

would not be MySpace

..: +-. , .t=

.LLSe.Ll...

Nevertheless, assuming for the sake of argument that

MySpace could be considered an organization for First Amendment

purposes, there is no evidence in the present case that MySpace,

as an organization, purports to speak out on matters of public

concern. Rather, MySpace invites its users to "[c]reate a

private community

. and

share photos, journals and

(emphasis added). As a result, the Plaintiff's association with

MySpace would not vicariously constitute expressive conduct on a

matter of public concern. In addition, because the Plaintiff

does not argue that MySpace's nature or character is a matter of

public concern, the court fails to see the relevance of any

approval or endorsement of MySpace via the Plaintiff's

association with MySpace.

Notwithstanding the above, the court shall further assume

the Plaintiff has demonstrated that his association with MySpace

involved a matter of public concern. The Plaintiff would then

still need to show that a causal connection existed between the

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summa:r:y judgment (dkt. # 31) is GRANTED.

Judgment shall ente:r:

expressive association and the adverse employment action. This

analysis is essentially the same as the causal connection

analysis for the freedom of speech analysis, which failed as a

matter of law and need not be restated here.14 Thus, the court

concludes that the Plaintiff's First Amendment f ree dom of

association claim also fails as a matter of law. Consequently,

with :r:egard to the Plaintiff's First Amendment f:r:'eedom of

association claim, the Defendants' motion fo:r: summary judgment

(dkt. # 31) is GRANTED.

III. CONCLUSION

For the foregoing reasons, the Defendants' motion for

in favor of the Defendants on all. claims in the complaint. The

clerk shall close this file.

SO ORDERED this 16th day of September, 2008.

/s/DJS

DOMINIC J. SQUATRITO UNITED STATES DISTRICT JUDGE

14The court points out that the Plaintiff's freedom of association argument is undercut further by the fact that other Emmett O'Brien teachers had MySpace accounts, yet they apparently suffered no adverse action as a result of their association with MySpace.

-41-

STACEY SNYDER Plaintiff

CIVIL ACTION

Case 2:07-cv-01660-PD Document 47

Filed 12/03/2008 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYL VANIA

Diamond, J.

December 3, 2008

v.

NO. 07-1660

MILLERSVILLE UNIVERSITY, et al.

Defendants

MEMORANDUM

Plaintiff Stacey Snyder alleges that Defendants -- five Millersville University

administrators -- violated her First Amendment right to freedom of expression. Having held a

two day non-jury trial, I enter judgment for Defendants and offer my supporting factual findings

and legal conclusions .. Fed. R. Civ. P. 52.

PROCEDURAL HISTORY

From June 2002 until May 2006, Plaintiff attended Millersville University, where she

majored in education. On May 13,2006, after Defendants determined that Plaintiff had not

successfully met the prerequisites for obtaining the degree of Bachelor of Science in Education,

they allowed Plaintiff to graduate from MU with a Bachelor of Arts in English. Plaintiff

unsuccessfully appealed that decision to Dr. Jane S. Bray, Dean ofMU's School of Education and

Dr. Vilas A. Prabhu, MU's Provost and Vice President for Academic Affairs.

On April 25, 2007, Plaintiff filed a Complaint in this Court against Millersville

University, Bray, Prabhu, and 1. Barry Girvin, her supervisor in MU's Student Teaching

Program. She included three state law claims, and also alleged that Defendants had violated her


Filed 12/03/2008 Page 2 of 28

First Amendment free speech rights and her Fifth and Fourteenth Amendment due process rights. 42 U.S .. C. § 1983 ..

On September 17, 2007, I dismissed Plaintiffs claims against MU with prejudice on Eleventh Amendment sovereign immunity grounds. (Doc. No .. 15).. I gave Plaintiffleave to amend: (1) her ambiguous claims against the remaining Defendants in their individual capacities; and (2) her request for relief against those same Defendants in their official capacities.. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 n.10 (1989); Melo v. Hafer, 912 F. 2d 628,635 (3d Cir. 1990), affd 502 US. 21 (1991) ..

On October 12,2007, Plaintiff filed a Second Amended Complaint, again alleging that Bray, Prabhu, and Girvin, acting in their individual and official capacities, violated her First Amendment free speech rights and her Fifth and Fourteenth Amendment due process rights .. Plaintiff also brought several state law claims against Defendants in their individual capacities. I dismissed the Fifth and Fourteenth Amendment claims, ruling that Defendants had afforded Plaintiff adequate process. (Doc .. No. 23). I also dismissed Plaintiffs state law claims as noncognizable and barred by sovereign immunity. I denied Defendants' Motion to Dismiss as to Plaintiffs First Amendment claim.

On March 18,2008, Plaintiff filed a Third Amended Complaint, adding as Defendants

Dr. Judith Wenrich, MU's Student Teaching Coordinator and Director ofField Services, and Dr. Beverly Schneller, the Chair ofMU's English Department: Plaintiff alleged that Defendants Bray, Prabhu, Girvin, Wenrich, and Schneller violated her First Amendment free speech rights .. She sought monetary damages from Defendants in their individual capacities and injunctive relief from Defendants in their official capacities.

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Filed 12/03/2008 Page 3 of 28

On April 11, 2008, Defendants moved for summary judgment. I granted Defendants' Motion in part, ruling that qualified immunity barred Plaintiffs claims against Defendants in their individual capacities. (Doc. No .. 39).

On May 6 and May 7,2008, I conducted a non-jury trial on Plaintiffs claim for mandatory injunctive relief against Defendants in their official capacities. Plaintiff asks me to compel Defendants to: (1) award her a BSE and the teaching credits that will enable her to seek teaching certification from the Pennsylvania Department of Education; and (2) "take all necessary steps" to ensure that the PDE approves Plaintiffs application for initial teaching certification .. (Doc. No. 31 at 18-19.)

Under PDE regulations, Defendants do not have the authority to award Plaintiff a BSE or the teaching credits she seeks, nor can they recommend her for initial teaching certification. Moreover, Defendants did not violate her First Amendment rights. Accordingly, I conclude that Plaintiff is not entitled to mandatory injunctive relief.

FINDINGS OF FACT

In the summer of 2002, when she was twenty-two, Plaintiff enrolled at Millersville University as a full-time student. She majored in biology for one year' before switching to English and, eventually, to education. (Tr. May 6,2008 at 4-5 .. ) As part of the required education curriculum, in 2005 Plaintiff completed various field assignments at area schools, where she observed teachers and taught two mini-lessons. (TI'. May 6, 2008 at 6-7, 9, 11.) During the entire Spring Semester of2006, Plaintiff was enrolled in MU's Student Teaching Program, which entailed considerably greater responsibilities, including lesson and curriculum

3


Filed 12/03/2008 Page 4 of 28

planning, teaching a full course load, and administering exams. (Tr. May 6,2008 at 25), (Tr. May 7, 2008 at 13-15), (PI. 's Exs. 4, 5). She anticipated that upon her successful completion of the Student Teaching practicum, she would receive a BSE on May 13, 2006.

4

Millersville University's Practicum Requirements

The Pennsylvania Department of Education closely regulates the training and certification

of those who seek to become public school teachers. MU's policies and requirements reflect

those regulations .. For instance, MU requires that every student who seeks a BSE must successfully complete a Student Teaching placement. (T!. May 6, 2006 at 204, 233-235, 245- 248), (Tr. May 7,2008 at 117-124). This reflects the PDE's regulation providing that every applicant must complete a "Department-approved teacher preparation program" -- which must include a "full-time student teaching experience" -- before seeking initial teaching certification from the PDE. 22 Pa. Code §§ 49.82(b)(2), 354..25(f); (PI.'s Ex. 4 at 9). The regulations also

provide that each applicant for initial teaching certification must receive a recommendation for certification from his or her university. rd. § 49.82(b)(4). MU cannot recommend a candidate for initial teaching certification without confirming that he or she has "achieved at least a satisfactory rating" in Student Teaching. (Doc. No. 45, App. 1), (Tr, May 6,2008 at 235), (Tr. May 7,2008 at 134-136).

Plaintiffs Student Teaching Assignment

On January 16 and 17, 2006, Plaintiff attended MU' s student teacher orientation conducted by Drs. Bray and Wenrich. (Tr. May 6,2008 at 12), (PI.'s Ex. 9). Plaintiff there


Filed 12103/2008 Page 5 of 28

received a copy of the Millersville University Guide to Student Teaching .. (Tr .. May 6,2008 at 14), (Pl.'s Ex. 4). Plaintiff read and understood that manual before she began student teaching. (Tr. May 6, 2008 at Ill.) The Guide provides that MU student teachers are required to "maintain the same professional standards expected of the teaching employees of the cooperating school" and to "fulfill as effectively as possible every role ofthe classroom teacher .... " (Pl.'s Ex .. 4 at 7.) The Guide also provides that the "student teacher is a guest of the cooperating

school." (Pl.s Ex .. 4 at 7..) During the January orientation, Bray explained that student teachers

are "novice teachers:' (Tr, May 7,2008 at 139:4.)

In January 2006, Plaintiff was assigned to student teach at Conestoga Valley High School, where full-time CV faculty member Nicole Reinking would serve as her Cooperating Teacher. (Tr. May 6,2008 at 15-16). In Mid-January, Plaintiff met with Reinking in the CV Teachers' Lounge. (Tr. May 6,2008 at 16, 113). Reinking reviewed plans for the Semester and discussed Plaintiffs responsibilities. (Tr. May 6,2008 at 16). Reinking also gave Plaintiff a Teacher's Edition of the course book and a copy ofthe final exam for one of the courses Plaintiff would teach. (Tr. May 6,2008 at 113-114), (Tr. May 7,2008 at 11-12). From the time Plaintiff began as a CV student teacher in January 2006 through May 2006, she took no classes at MD., (Tr. May 6,2008 at 129.) Plaintiff followed the CV school year calendar (rather than the MU academic calendar), and was responsible for conforming to Reinking's schedule. (Tr. May 7,2008 at 14.)

After spending her first weeks observing Reinking's twelfth grade English classes, Plaintiff "started [her] teaching experience." (Tr. May 6,2008 at 20:8-9), (Tr. May 7,2008 at 12). Within two months, Plaintiff was responsible for teaching two courses while Reinking observed .. (Tr. May 6, 2008 at 23, 126). Plaintiff also taught another CV literature course, where

5

Case 2:07-cv-01660-PD Document 4'7

Filed 12/03/2008 Page 6 of 28

she was the "sole teacher" and had "complete responsibility for the students." (Tr. May 6, 2008 at 126:9-13.) By April 2006, Plaintifftaught a "full load" of courses at CV. (Tr. May 6,2008 at 117-118, 126), (Tr. May 7,2008 at 13). Her responsibilities included "writing out the lesson plans and getting the documents ready for the students," as well as understanding material "well enough to teach [it] back to the students." (Tr. May 6, 2008 at 25:2-9), (Tr. May 7,2008 at 16). Plaintiff referred to the pupils in those CV classes as "my students," and thought that they

believed her to be "their official teacher." (Pl.'s Ex. 51.) Plaintiff considered the other CV

teachers -- with whom she attended faculty meetings -- to be her colleagues. (Tr. May 6, 2008 at 93:2.)

Mid-Placement Evaluations

Throughout the practicum, Plaintiff experienced great difficulty with respect to her competence and over-familiarity with her students. Those difficulties were described in Plaintiff's evaluations, and would eventually lead to the difficulties that caused Plaintiff to bring this lawsuit.

J. Barry Girvin was Plaintiff's MU Supervisor during her time at CV" He was responsible for observing Plaintiff in the classroom and for evaluating her teaching. Gilvin observed Plaintiff seven times during the Semester.. (Tr. May 6, 2008 at 187 .) Plaintiff's "problems with discipline and also with content" concerned him. (Tr. May 6,2008 at 187:20-21..) He noted that she had difficulty maintaining a formal teaching manner.. (Tr. May 6, 2008 at 190-191.) Plaintiff explained at trial that Girvin helped her understand the importance of "putting [her] foot down." (Tr. May 6, 2008 at 20:24.) Girvin had advised her not to let the students "walk all over" her,

6


Filed 12/03/2008 Page 7 of 28

and to remember "I'm the teacher, they're the students." (Tr. May 6,2008 at 28:20-22)"

At the middle and end of Plaintiffs CV placement, Girvin evaluated her work in two separate forms -- an MU evaluation and a PDE 430 .. (Tr, May 6,2008 at 185-186.) Girvin completed Plaintiffs mid-placement evaluation on March 21,2006. He indicated that Plaintiff showed "good" or "reasonable" progress in most professionalism categories, but needed to work on appropriate communication with others -- including students, supervisors, and cooperating teachers -- and on establishing "proper teacher-student boundaries." (Pl. 's Ex. 45 at 1.) Girvin rated Plaintiffs overall performance "satisfactory." (Pl.'s Ex, 46 at 4-5 .. ) He found her professionalism "superior," but her classroom environment "unsatisfactory," and indicated that she needed to employ a "more 'down to business' approach" with the students. (Pl.'s Ex. 46 at 2.) Plaintiff understood that she needed to attain satisfactory ratings in all PDE 430 categories before MU could recommend her for Pennsylvania teaching certification. (Tr. May 6, 2008 at 30.)

Throughout the practicum, Reinking criticized Plaintiff s competence -- especially her ignorance of basic grammar, punctuation, spelling, and usage -- her inadequate classroom management, her poor understanding of the subjects she attempted to teach, and her inappropriate manner with students. (Tr. May 7,2008 at 16-39.) Reinking found that on several occasions Plaintiff would "make up an answer" or "give the wrong answer" to student questions about literature or grammar. (Tr .. May 7,2008 at 32:9-20.) Reinking believed that the students were aware of Plaintiffs errors. (Tr. May 7,2008 at 32:22-33:4.)

On March 20, 2006, Reinking completed her mid-placement evaluation of Plaintiff. (Pl.'s Ex. 65,.) She indicated that Plaintiff needed "significant remediation" in several areas, including

7


Filed 12/03/2008 Page 8 of 28

preparation, performance, and student learning .. (Pl.'s Ex. 65 at 1-3.) Reinking noted that Plaintiffs lesson plans had "[m]any errors," and that "[t]oo many students are left behind as a result of ineffective lessons .. " (Pl.'s Ex. 65 at 1-2.) Reinking indicated that Plaintiff s professionalism showed "reasonable" or "good" progress, and that Plaintiff was interested in "getting to know her students on a personal level." (Pl.'s Ex. 65 at 1.) Reinking was concerned, however, that at times Plaintiffs efforts to "share her personal life" with the students crossed into "unprofessionalism." (Tr. May 7,2008 at 21:8-11), (Pl.s Ex. 65 at 1-2). Reinking thought it especially inappropriate that Plaintiff told an English class that her Valentines Day had been "ruined" when she encountered her former husband while dining out with her boyfriend. (Tr. May 7,2007 at 22.) Reinking also noted that when Plaintiff could not control classroom behavior, she resorted to "talking over the students." (Pl..'s Ex. 65 at 1-2.) Reinking cited two instances when Plaintiff shouted "Shut-Up" at the students. (Pl.'s Ex. 65 at 2.)

It was apparent from Plaintiff s trial testimony that she greatly disliked Reinking, believing her criticisms to be unfair. (Tr. May 6,2007 at 66, 70-74.)

Plaintiffs MySpace Webpage

During the January orientation, Bray and Wenrich cautioned the student teachers not to refer to any students or teachers on their personal webpages. Wenrich described a student teacher's dismissal from his practicum after he had posted information about his Cooperating School on his personal webpage. (Tr. May 6,2008 at 231-232.) Wenrich recounted this incident because she wanted the student teachers to understand that "schools have the prerogative to remove student teachers from their placements." (Tr. May 6,2008 at 232:1-3.) Plaintiff

8

Case 2:0T-cv-01660-PD Document 47

Filed 12/03/2008 Page 9 of 28

remembered that Wenrich directed her not to post information about her students or her Cooperating Teacher on her personal webpage. (Tr .. May 6,2008 at 139-140.)

Contrary to the advice and directives she received, Plaintiff sought to communicate about personal matters with her CV students through the MySpace webpage that she maintained throughout her CV placement. On several occasions, she informed the students during class that she had a MySpace webpage. (Tr. May 7,2008 at 37-38.) Plaintiff also informed Reinking that she had discovered that "a lot of [her] students were on [MySpace] .. " (Tr, May 6, 2008 at 66-67.) Reinking warned Plaintiff that it was not proper to discuss her MySpace account with the students, and urged Plaintiff not to allow students to become involved in her personal life. (Tr. May 7,2008 at 38 .. )

ill early May 2006, Plaintiff learned that one of her CV students had recognized and approached Plaintiffs friend Bree while off campus. (TI'. May 6,2008 at 53.) Plaintiff believed that the student had recognized Bree from photos posted on Plaintiffs MySpace webpage. Plaintiff testified that she confronted the student, informing her that it was "unacceptable to talk to [her] teacher's friends and relatives outside of school basis." (Tr. May 6,2008 at 67:21-22.,) Plaintiff testified it was "inappropriate" for her student to look at a teacher's MySpace account because "there's a boundary line and there's personal information on there that [the student] should know not to look at as a student." (Tr. May 6, 2008 at 69:8,69:16-18.) Plaintiff explained that although the student could properly have looked at the webpage of a personal acquaintance, it was improper to look at Plaintiff s webpage because Plaintiff was "a person of a higher standard." (Tr. May 6, 2008 at 69: 19-24 . .)

Plaintiff s suggestion that she had heeded the direction of Reinking and others not to

9


Filed 12/03/2008 Page 10 of 28

share personal information with her students through her webpage was belied by Plaintiffs May

4, 2006 MySpace posting:

First, Bree said that one of my students was on here looking at my page, which is fine. I have nothing to hide. I am over 21, and I don't say anything that will hurt me (in the long run) .. Plus, I don't think that they would stoop that low as to mess with my future. So, bring on the love! I figure a couple of students will actually send me a message when I am no longer their official teacher. They keep asking me why I won't apply there. Do you think it would hurt me to tell them the real reason (or who the problem was)?

(PL's Ex .. 51.)

Although Plaintiff denied at trial that Reinking was "the problem" at CV, that denial was not

10

credible. (Tr. May 6, 2008 at 141-43.) Plaintiff acknowledged at trial that "my students"

referred to her CV students. (Tr .. May 6,2008 at 139-140.) Plaintiff thus wanted "[her] students"

to know that "their official teacher" had "nothing to hide" respecting her difficulties with

Reinking .. (PL's Ex .. 51.)

Plaintiffs posting also included a photograph that showed her wearing a pirate hat and /

holding a plastic cup with a caption that read "drunken pirate." (Pl.'s Ex. 51.) At trial, Plaintiff

explained that she had a "mixed beverage" in the cup. (Tr. May 6,2008 at 52.) She believed

that the photograph showed her with a "stupid expression on my face ... giving the peace sign ..

. expressing myself at the moment, basically, peace, love, happiness .... " (Tr. May 6, 2008 at

52:7-12.)

Plaintiff testified at trial that the photograph and caption had an entirely personal

meaning .. (Tr. May 6,2008 at 52.) She also acknowledged that her May 4th posting was not

directed at any CV administrators or anyone that she had "professional [contact] with .. , "~II but

was "really directed [to her] best friends." (Tr. May 6,2008 at 55:22-24,56:7-11.)


Filed 12/03/2008 Page 11 of 28

On Friday, May 5, 2006, another CV teacher accessed Plaintiffs MySpace account and saw Plaintiffs May 4th posting. (Tr. May 7, 2008 at 44.) The teacher showed the posting to Reinking, who believed that the last lines referred to her. (Tr. May 7,2008 at 47.) Reinking also thought that it was inappropriate for a student teacher to invite her students to view a photograph of herself drinking alcohol. (Tr. May 7,2008 at 67.) Reinking showed the posting to her CV Supervisor, Deann Buffington. (Tr. May 7,2008 at 49.) At trial, Buffington stated that Reinking was "very upset." (Tr. May 7,2008 at 88:7.) Buffington thought Plaintiff's posting represented a "blatant act of insubordination against Mrs. Reinking." (Tr. May 7,2008 at 100:23-24.)

Before the May 5th conversation, Reinking had reported to Buffington that she had been frustrated "on numerous occasions" by Plaintiffs lack of preparation, "inappropriate or unprofessional behavior," and problems with grammar and language. (Tr. May 7, 2008 at 81 :25- 82:3, 84), (Pl.'s Ex. 48).

Buffington contacted Acting CV Superintendent Kim Seldomridge and told him of Plaintiffs MySpace posting and of Plaintiffs "other problem areas in the way of professional responsibilities." (Tr. May 7,2008 at 89.) Seldomridge instructed Buffington to tell Plaintiff that she could not return to CV until her final evaluation. (Tr. May 7,2008 at 88.) Seldomridge also told Buffington to ask Reinking to prepare a list of Plaintiffs other unprofessional actions .. (Tr. May 7,2008 at 90.)

Conestoga Valley Does Not Allow Plaintiff To Complete The Practicum

On Monday, May 8, 2006, Buffington phoned Plaintiff at home and informed her that an issue had arisen respecting Plaintiffs professionalism. (Tr. May 6,2008 at 41..) Buffmgton told

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Filed 12/03/2008 Page 12 of 28

Plaintiff not to return to CV "under any circumstance[s]" until Thursday, May 11, 2006, when

she would receive her final evaluation. (Tr. May 6,2008 at 41 :17-22.) According to Buffington,

Conestoga Valley's administration "really did not want [Plaintiff] at [the] school at that point."

(Tr. May 7,2008 at 92:14-15.) Buffington then told Girvin that CV had barred Plaintiff from

campus. On May 9,2006, Buffington asked Reinking to document Plaintiffs "unprofessional

behavior." (Tr. May 7,2008 at 63:5-8), (Pl.'s Ex. 48).

After speaking with Buffington, Plaintiff phoned Girvin, who suggested she think about

what could have caused her difficulties at CV. (Tr. May 6,2008 at 42.) Plaintiff testified that

the "only thing that [she] could think of that would be in question was [her] MySpace account.."

(Tr. May 6,2008 at 42:15-16,,) Plaintiff spoke with Girvin again on May 9,2006. He told her

that she might not graduate or that she might not receive a BSE. (Tr. May 6, 2008 at 54: 15-17,,)

On May 9th, Plaintiff also wrote an email to Reinking "concerning student paperwork ...

documents that [she] would have been accountable for if [she] was in the school." (Tr .. May 6,

2008 at 44:12-17), (Pl.'s Ex" 55). On May 10, 2008, Plaintiff emailed a letter to Reinking,

Girvin, Buffington, Wenrich, Bray, and Seldomridge regarding the "situation that has been

evolving over the past three days .. " Plaintiff stated, "I am the only person to blame. I have to take

full responsibility for my actions and live with the consequences determined by the

administrative staffin Conestoga Valley High School and Millersville University." (PL's Ex .. 56

at 2.) Plaintiff went on:

Secondly, It is necessary that I present not only an apology to those involved, but also all present the positive experiences ... I have excelled in my own personal life by interacting with the community, especially with elementary-aged functions ... All of these experiences ..... show essential qualities of a teacher: professional interaction with staff and students inside and outside the school duration ... I look forward to seeing each and everyone of you to discuss and elevate this issue.

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Filed 12/03/2008 Page 13 of 28

(PL's Ex. 56 at 2.)

The grammar and usage eII'ors in Plaintiff's letter disturbed Buffington" (Tr. May 7,2008 at 93.) On May 11, 2006, Buffington wrote a note to Girvin stating, "this young woman, in my opinion, should not pass Student Teaching ... It will be no surprise to me if our excellent teachers here at

CV do not volunteer again to serve as cooperating teachers for Millersville students." (Tr, May

7,2008 at 98), (Pl.'s Ex. 52).

That same day, Buffington, Girvin, and Reinking met with Plaintiff at CV for the fmal evaluation of her student teaching. Buffington criticized Plaintiff's teaching competence, especially her inadequate subject knowledge. (Tr. May 6,2008 at 50.) Buffington then showed Plaintiff her MySpace posting, which Buffington described as "unprofessional," and asked Plaintiff what she would have done if one of her students had seen the posting. (Tr. May 6,2008 at 51:8-10.) After Buffington left the meeting, Plaintiff reviewed her final evaluations with Reinking and Girvin .. Although they mentioned Plaintiff's "drunken pirate" photo, they were far more concerned with the posting's text. Both Girvin and Reinking believed that in remarking about "the real reason (or who the problem was)" Plaintiff had referred to Reinking. (Tr. May 6, 2008 at 58), (Tr. May 7,2008 at 47,206).

In her final evaluation, Reinking rated Plaintiff's professionalism as "unsatisfactory," and noted that Plaintiff "evidenced some aspects of poor judgment during the Semester, especially in regard to one specific instance." (Pl.'s Ex. 59 at 1), (Tr. May 7,2008 at 62-63). Reinking also rated Plaintiff "unsatisfactory" in several areas of preparation because Plaintiff did not demonstrate strong general education, knowledge, or an in-depth understanding of the subject matter. (Pl.'s Ex. 59 at 1), (Tr. May 7,2008 at 46-47). She rated Plaintiff as "competent" or

13


Filed 12/03/2008 Page 14 of 28

"superior" in all other categories. (Pl.'s Ex .. 59 at 2-3.) In Girvin's final PDE 430 evaluation, which he completed on May 12, 2006, Girvin rated Plaintiff as "competent" or "superior' in all categories except professionalism, which he described as "unsatisfactory" based on "errors in judgment." (Pl.'s Ex. 58), (Tr. May 6,2008, at 77:9-12, 208). He noted that Plaintiff did not communicate effectively with "students, colleagues, para-professionals, related service personnel, and administrators," and had not shown an ability to "cultivate professional relationships with school colleagues." (Pl.'s Ex. 57 at 4.) He gave Plaintiff satisfactory or superior ratings in all other categories. (Pl.'s Ex .. 57.)

At trial, Reinking, Girvin, and Buffington all testified credibly that they believed Plaintiff had acted unprofessionally in criticizing Reinking -- her Cooperating Teacher -- on her webpage. (Tr, May 6,2008 at 206; May 7,2008 at 47, 100-101,206).

Millersville University Is Unable To Award Plaintiff a BSE Degree

Conestoga Valley decided to bar Plaintiff from campus because Buffington and Reinking believed that Plaintiff: (1) had disobeyed Reinking by communicating about personal matters with her students through her webpage; (2) had acted unprofessionally by criticizing Reinking to her students in the May 4th posting; and (3) had otherwise performed incompetently as a student teacher .. No one at MU had anything to do with that decision. Once CV did not allow Plaintiff to complete the practicum, however, MU could not award Plaintiff a BSE degree ..

For instance, Girvin could not, consistent with MU's PDE-·approved course of study, pass Plaintiff in Student Teaching because she had not completed the course. (Tr. May 6, 2008 at 204:15-24.) Plaintiff understood that she could not pass Student Teaching because CV had

14


Filed 12/03/2008 Page 15 of 28

removed her from her placement. (Tr. May 6,2008 at 134:22-25 .. ) Rather than fail her, however, Girvin allowed Plaintiffto withdraw from Student Teaching. (Tr. May 6,2008 at 208-209.)

As MU's Director ofField Services, Wenrich did not have the authority to reinstate Plaintiff into the practicum. The Millersville University Guide to Student Teaching provides that in consultation with a Cooperating Teacher and University Supervisor, Wenrich has "the authority to change or terminate" a Student Teaching assignment "if professional conduct is not maintained." (Pl.'s Ex. 4 at 7.) Wenrich does not have authority, however, to pass someone in

the Student Teaching Program and award her the requisite student teaching credits once that person has been removed from his or her placement. (Tr. May 62008 at 248:8-14,245:17-23, 247:22-24.) Moreover, as Wenrich explained at trial, under MU's PDE-approved course of study, no one at Millersville University had the authority to give Plaintiff a BSE "on the basis of that work she had done." (Tr. May 62008 at 248:8-14, 245:17-23, 247:22-24.)

Wenrich and Girvin spoke with Plaintiff on May 12, 2006 and explained that because she had not met MU's state-mandated Student Teaching requirement, she could not receive a BSE.. (Tr. May 6,2008 at 75, 233, 243:9-10, 247:22-24). Wenrich told Plaintiff that she had spoken with English Department Chair Schneller, and they had thought of a way to "move credits around" so that Plaintiff would receive a BA in English "instead of just no degree at alL" (Tr. May 6,2008 at 80:10-19, 234.) This was consistent with the way Wenrich had handled similar situations involving other students .. (Tr. May 6,2008 at 234.)

After meeting with Wenrich and Girvin, Plaintiff scheduled an academic appeal with Bray, the University's PDE Teacher Certification Officer. Plaintiff then met with Schneller and signed transfer credits so that she could receive a BA in English. (Tr.. May 6, 2008 at 83-84),

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Filed 12/03/2008 Page 16 of 28

(PL's Ex. 70). Once Schneller changed Plaintiffs general education credits to English Department credits, Plaintiff qualified for a BA degree in English. (Tr. May 6,2008 at 85.) Schneller informed Plaintiff that "she went to bat" for Plaintiff because she felt that Plaintiff had "worked hard and that [she] .... deserved something instead of nothing." (Tr. May 6,2008 at 84:10-12 .. ) On May 13, 2006, Plaintiff graduated from Millersville University with a BA in English. (Pl.'s Ex. 2.)

On May 15, 2006, Plaintiff met with Wenrich and Bray to appeal the decision to grant her a BA instead of a BSE. Bray explained why she could not overturn Wenrich's decision: by failing to complete Student Teaching, Plaintiff had not fulfilled MU's state-mandated prerequisites for obtaining a BSE. (Tr. May 7, 2008 at 124.) Apart from Plaintiffs failure to complete the practicum, the unsatisfactory evaluation she received on her final PDE 430 also constituted a failure of Student Teaching. (Tr. May 7,2008 at 122.) Accordingly, Bray denied Plaintiffs appeal on May 15,2006. (PL's Ex. 62.)

As Teaching Certification Officer, Bray has a legal responsibility to recommend candidates to the Pennsylvania Department of Education for initial teaching certification. Bray fulfills this responsibility by completing a PDE Form 338C, which requires the Certification Officer to verify that a candidate has "achieved at least a satisfactory rating on the [mal PDE 430." (Doc. No. 45, App. 1, PDE Form 338), (PL's Ex. 4 at 18), (Tr. May 7,2008 at 134-135). Bray does not have the authority to change that evaluation .. (Tr, May 7, 2008 at 121-122, 140), (Pl.'s Ex. 16 at 2). Accordingly, Bray could not recommend Plaintiff for initial teaching certification ..

Plaintiff appealed Bray's denial to Prabhu, who, on February 21,2007, held an academic

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Filed 12/03/2008 Page 17 of 28

appeal hearing at which Plaintiff was represented by counsel. On March 26,2007, Prabhu denied the appeal, concluding that the dispute respecting Plaintiffs BSE had been resolved appropriately by allowing her to graduate timely with a BA. (Pl.'s Ex .. 63 at 3 . .) He also determined that Plaintiff was not eligible for teaching certification because she had failed "to satisfy the proficiency standards of the Pennsylvania Department of Education." (Pl.'s Ex. 63 at

1.)

During Her Time At CV, Plaintiff Was A "Teacher" More Than A "Student"

As I discuss below, whether Plaintiff was a student or a teacher during the practicum is relevant to her First Amendment claim. This question appears to be one oflaw and fact, to be resolved by the finder of fact. See Hennessy v. City of Melrose, 194 F.Jd 237, 245 (1st Cir. 1999) (examining factual context of practicum relationship before concluding that plaintiff was entitled to the legal protections of a public employee).

From January through May 2006, Plaintiff did not attend any courses at MU. (Tr. May 6, 2008 at 129 . .) Her responsibilities arose entirely from her full-time assignment to CV. She followed the CV school calendar (not the MU calendar). (Tr, May 7,2008 at 14.) CV relied upon Plaintiff in much the same way it relied on its full-time teachers. Plaintiff planned lessons and was responsible for teaching three separate English courses .. (Tr. May 6, 2008 at 16.) Although she was observed by Reinking in two of the courses, Plaintiff taught the third course entirely by herself. (Tr .. May 6,2008 at 126:9-13.) She taught from the Teacher's Edition of the course book. (Tr. May 6,2008 at 113-114), (Tr. May 7,2008 at 11-12). Plaintiff attended inservice meetings, faculty meetings, and special school events. (Tr, May 7,2008 at 14-15), (Pl.'s

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Filed 12/03/2008 Page 18 of 28

Ex" 4 at 7). She used the Teachers' Lounge. (Tr. May 6,2008 at 113.) Others, including CV students, perceived Plaintiff to be a teacher. Plaintiff learned at the practicum' s outset that she was required to "maintain the same professional standards expected of the [CV] teaching employees." (Pl.'s Ex. 4 at 7.) Indeed, Plaintiff considered herself a teacher and believed the pupils in her CV classes were her students. (Tr. May 6,2008 at 139-140,)

During the Spring 2006 Semester, Plaintiff was also a student at MU, student teaching so that she could obtain her BSE. Her CV -related activities plainly dominated her professional life during those five months, however.. She had no assignments from MU unrelated to the practicum, and devoted virtually all her time to fulfilling her responsibilities at cv.. In these circumstances, I find that during her CV Student Teaching Placement, Plaintiff was an apprentice more akin to a public employee/teacher than a student.

CONCLUSIONS OF LAW

Plaintiff proceeds under § 1983, which allows suits against persons acting under color of state law for constitutional violations. 42 U.S.C. § 1983; W. v. Atkins, 487 U.S .. 42,50 (1988) ("[A] public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law."). Plaintiff argues that her First Amendment right to free expression protected the text and photograph in her May 4th MySpace posting.. She alleges that Bray, Girvin, Prabhu, Wenrich, and Schneller, as administrators of a public university, violated her rights because the MySpace posting "played a substantial part" in both their decision to deny her the BSE and their "refus[al] to take the necessary steps" to ensure that she received PDE teacher certification" (Doc .. No. 45 at 24.) Plaintiff seeks mandatory injunctive

18


Filed 12/03/2008 Page 19 of 28

relief against Defendants in their official capacities, demanding that they award her a BSE degree and recommend her to the Pennsylvania Department of Education for initial teaching certification ..

As I have found, Defendants do not have the authority to award Plaintiff a BSE because she failed to complete Student Teaching. As a result, Plaintiffis not eligible for initial teaching certification. Moreover, Defendants did not violate Plaintiffs First Amendment right to free expression. Accordingly, I deny her demand for mandatory injunctive relief.

A. Injunctive Relief -- Standards

A plaintiff seeking a permanent injunction must demonstrate: (1) actual success on the merits of the underlying dispute; (2) irreparable injury; (3) the inadequacy of remedies available at law; (4) that the balance of hardships between the plaintiff and defendant weigh in favor of injunctive relief; and (5) that the public interest would not be disserved by the injunction.. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,391 (2006); Shields v. Zuccarini, 254 F.3d 476,482 (3d Cir. 2001); Ciba-Geigy Corp. v. Bolar Pharmaceutical Co., Inc., 747 F.2d 844,850 (3d Cir. 1984). Injunctive relief is an "extraordinary remedy which should be granted only in limited circumstances." Am. Tel. and Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1427-28 (3d Cir. 1994) (quotations omitted). Mandatory injunctions, which require defendants to take some affirmative action, are "looked upon disfavorably and are generally only granted in compelling circumstances." Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F. Supp. 159, 166 (D .. N.J. 1988).

19

Case 2:07 -cv-01660-PD Document 47

Filed 12/03/2008 Page 20 of 28

Under § 1983, a plaintiff raising a First Amendment claim may seek related injunctive relief -- such as reinstatement to remedy past violations -- against state actors in their official capacities. See Melo v. Hafer, 912 F.2d 628, 630 (3d Cir. 1990), affd 502 U.S. 21 (1991) (in a § 1983 action against a public official, plaintiffs properly sought reinstatement for wrongful termination in violation of their First Amendment and due process rights); see also Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir. 1985) (plaintiff entitled to reinstatement ifhe establishes wrongful termination).

B. Availability Of Relief

ill her Third Amended Complaint, Plaintiff demands that I order the MU Defendants to award her a BSE and the teaching credits she needs to obtain a teaching certificate, and to recommend her to the Pennsylvania Department of Education for initial teaching certification .. I believe this demand is akin to the requests for reinstatement in Melo and Dwyer. Plaintiff is not entitled to injunctive relief, however. Under PDE regulations, the Millersville University administrators against whom she has chosen to proceed lost the authority to grant her a BSE once Conestoga Valley did not allow her to complete Student Teaching. Plaintiffs demand that I nonetheless order MU to recommend her for certification would be impermissibly futile.

The MU Defendants Do Not Have The Authority To Grant Plaintiff a BSE

As I have discussed, under PDE regulations, Plaintiff cannot obtain her BSE without successfully completing a Student Teaching placement. 22 Pa .. Code § 49.82(b)(2), 354.25(£). Plaintiff argues that because only several days remained in the practicum when CV terminated her, "[f]or all practical purposes" she successfully completed her Student Teaching Placement..

20


Filed 12/03/2008 Page 21 of 28

(Doc. No. 45 at 27.) I disagree. The evidence is undisputed that CV did not allow Plaintiff to complete her Student Teaching placement. The evidence is also undisputed that no one atMU could compel CV to allow Plaintiff to complete the practicum. Accordingly, under those same regulations MU does not have the authority to award Plaintiff the requisite student teaching credits or grant her a BSE because MU cannot give her a passing grade in a practicum she did not complete ..

Although CV administrators did not allow Plaintiff to complete the practicum, Plaintiff has decided not to sue anyone at Conestoga Valley. As I explain below, that decision was strategic. In proceeding instead only against individuals who do not have the authority to afford her the desired relief, however, Plaintiffs request for a mandatory injunction necessarily fails. See, e.g., Okpalobi v. Foster, 244 F.3d 405,431 (5th CiI. 2001) ("[I]fthe suit is against the wrong officials, no claim for injunctive relief has been stated .. "); see also Williams v. Doyle, 494 F. Supp. 2d 1019,1024 (W.D. Wis. 2007) ("[A] claim for injunctive relief can stand only against someone who has the authority to grant it.").

Ordering Defendants To Recommend Plaintiff For Certification Would Be Impermissibly Futile

Over the course of this litigation, Plaintiff has repeatedly altered her demand for relief, as her lack of entitlement to the relief she most recently sought became apparent. Thus, when it became apparent at trial that the MU Defendants lacked the authority to award Plaintiff a BSE once CV barred her from campus, I asked if Plaintiff wished to amend her Complaint a fourth time to include Defendants from CV. (TI. May 7,2008 at 246-47).. Plaintiff did not do so. Instead, she submitted a Proposed Order with her Proposed Findings and Conclusions in which she does not mention her demand that I compel Defendants to award her a BSE.. Rather, she

21

Case 2:07-cv-·01660-PD Document 47

Filed 12/03/2008 Page 22 of 28

identifies in greater detail the actions the MU Defendants must take to recommend Plaintiff for initial teaching certification .. (Doc. No .. 45 at 28.) Plaintiff now demands that I order: (1) Girvin to complete a new PDE 430 giving Plaintiff a "superior" rating in professionalism; (2) Bray to complete a new PDE 338C certifying that Plaintiff received a satisfactory rating on her PDE 430 and recommending her for initial teaching certification; and (3) all MU Defendants to "cooperate fully with any PDE inquiry into Plaintiffs application for teacher certification." (Doc. No. 45 at

28.)

As I have discussed, under PDE regulations, the MU Defendants do not have authority to pass Plaintiff in Student Teaching or award her a BSE.. It is less clear, however, as to whether they have the authority to recommend Plaintiff to the PDE for initial teaching certification .. MU uses the PDE 430 to evaluate a candidate's performance in Student Teaching. The University uses the PDE 338C to recommend candidates for initial teaching certification by verifying that the candidate received at least a satisfactory rating on the PDE 430. Neither the PDE 430 nor the PDE 338C contemplates the unusual situation presented here, however. Although Girvin testified that CV's decision to bar Plaintiff from campus played a "significant" role in his evaluation, he did not testify that he was required to give Plaintiff an unsatisfactory rating on her PDE 430 as a result ofCV's decision. (Tr. May 6,2008 at 208.) The PDE regulations do not address the question. It is thus possible (albeit quite unlikely) that Girvin could have given Plaintiff a satisfactory rating on her PDE 430 even though she was barred from CV.

The MU Defendants thus may have the authority to recommend Plaintiff for initial teaching certification. Plaintiff assumes that once MU makes this recommendation: (1) she will be eligible for initial certification under PDE regulations; and (2) that, as a practical matter, the PDE will grant Plaintiff initial teaching certification without inquiring as to whether she actually

22


Filed 12/03/2008 Page 23 of 28

completed her Student Teaching assignment. Plaintiffs first assumption is incorrect; her second assumption is contrary to the public interest.

Plaintiff assumes that because the regulations require "completion of a teacher certification program, not a student teaching assignment," her failure to complete the practicum will not prevent her from obtaining PDE certification, provided she has a recommendation from MU. (Doc" No. 45 at 26.) This is simply incorrect. Each applicant for certification must

complete "a Department-approved teacher preparation program," which must include a

"minimum 12 week full-time student teaching experience." 22 Pa. Code § 49,,82(b )(2), 354.25(f). Because Plaintiff did not complete MU's PDE-approved teacher preparation program -,- which requires successful completion of Student Teaching -- she is ineligible under PDE regulations for certification. Accordingly, assuming arguendo that MU officials have the authority to recommend Plaintiff to the PDE, she would remain ineligible for certification" In these circumstances, ordering MU to recommend Plaintiff to the PDE would be pointless and impermissibly futile" See Virginian Ry. Co. v. Sys. Fed'n No. 40, 300 U.S" 515, 550 (1937) ( "[A] court of equity may refuse to give any relief when it is apparent that that which it can give will not be effective or of benefit to the plaintiff."); United States v. Bernard Parish, 756 F.2d 1116, 1123 (5th Cir, 1985) ("It is black letter law that an injunction will not issue when it would be ineffectual."); see also Migliore v. City of Lauderhill, 415 So.2d 62,65 (Fla .. Dist. Ct. App. 1982) ("Neither mandamus nor injunctive relief is available to require the performance of a futile act."); Levine v. Black, 44 N.E.2d 774, 775 (Mass" 1942) ("It is a principle of wide application that relief by injunction will not be granted where the granting of it would be but a futile gesture ..

23

" . ""),,


Filed 12/03/2008 Page 24 of 28

Plaintiff apparently believes that because the Pennsylvania Department of Education will automatically certify her upon receiving MU's recommendation, her request for relief is not futile. Plaintiff emphasizes Bray's testimony that after receiving a recommendation for teaching certification from the candidate's university, the PDE typically does not inquire independently into a candidate's qualifications .. (Doc. No. 45 at 23 . .) Accordingly, because my Order requiring Millersville University to submit a new PDE 338C would effectively conceal Plaintiff's failure to complete the practicum, it would result in the PDE's approval of Plaintiff's application.

I believe Plaintiff's proposed deception of the Pennsylvania Department of Education would "disserve the public interest" and so would be an impermissible abuse of this Court's equitable powers .. MercExchange, 547 U.S. at 391; see also Gidatex, S.r.L. v. Campaniello Imps., Ltd., 82 F. Supp. 2d 126, 131 (S.D.N.Y. 1999) (under the doctrine of unclean hands, "[a] court may deny injunctive relief ... where the party applying for such relief is guilty of conduct involving fraud, deceit, unconscionability, or bad faith related to the matter at issue" in the litigation); see also Ne. Women's Ctr., Inc. v. McMonagle, 868 F.2d 1342, 1354 (3d Cir. 1989) (in applying the doctrine of unclean hands to a plaintiff's request for affirmative injunctive relief, "courts are concerned primarily with their own integrity ... and with avoiding becoming the abettor of iniquity") (quotations omitted). Accordingly, I will not order the MU Defendants to make it possible for Plaintiff to subvert PDE regulations ..

C. First Amendment

Finally, regardless ofMU's authority to forgive Plaintiff's failure to complete the practicum, she is not entitled to mandatory injunctive relief because Defendants did not violate her First Amendment rights. Plaintiff's free speech claim triggers different tests, depending on 24


Filed 12/03/2008 Page 25 of 28

whether she was a "teacher" or a "student" when she created her MySpace posting. The Supreme

Court and the Third Circuit afford the speech of public employees -- like public school teachers -

- First Amendment protection if their speech relates to matters of public concern:

So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.

Garcetti v. Ceballos, .547 U.S" 410, 411 (2006); see also Pickering v. Bd. of Ed., 391 U.S. 563,

568 (1968); Brennan v. Norton, 350 F.3d 399, 412 (3d Cir. 2003)" By contrast, to promote

academic freedom, these same Courts confer First Amendment protection on all student speech

unless school officials can make out a specific and significant fear that the challenged speech

would substantially disrupt or interfere with the work of the school or the rights of other students.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 u.s. 503, 509 (1969), Saxe. v. State CoIl.

Area Sch. Dist., 240 F.3d 200,211 (3d Cir. 2001); see also Dejohn v. Temple Univ., 537 F.3d

301,314 (3d CiL 2008) ("[T]he First Amendment rights of speech and association extend to the

campuses of state universities.") (quoting Widmar v. Vincent, 454 U.S. 263, 268-69 (1981 ».

If I determine that Plaintiff was a public employee or a teacher when she created her

MySpace posting, she would be obligated to show that the posting related to matters of public

concern to receive First Amendment protection. See Connick v. Myers, 461 U.S" 138, 147

(1983). If! determine that Plaintiff was a student when she created the posting, Defendants

would bear the burden of showing that they had a constitutionally valid reason for regulating her

speech beyond "a mere desire to avoid" .. discomfort and unpleasantness." Tinker, 393 U.S. at

.509; Dejohn, 537 F.3d at 317 ("a school must show that speech will cause actual, material

disruption before prohibiting it")"

I have found that Plaintiff s role as a student teacher at CV was akin to that of a public

2.5

Case 2,~07, .. cv-01660-PD Document 47

Filed 12/03/2008 Page 26 of 28

employee. This is in accord with the First Circuit's analysis in Hennessy v. City of Melrose, 194 F.3d 237 (lst Cir. 1999). There, an elementary school terminated a college student from his student teaching placement because of comments he made during the practicum. Id. at 242-43" The elementary school thus precluded Mr. Hennessy from passing the university course in which he was enrolled. Id. at 243" The First Circuit determined that although Hennessy was in the practicum as part of his university training, he was not "in any meaningful sense a pupil," and his position as a student teacher "more nearly approximated that of an apprentice" who was entitled to the First Amendment protections afforded public employees. Id. at 245. Other courts have also rejected the First Amendment claims of those removed from their practicum placements because of speech that did not touch on matters of public concern. Miller v. Houston County Bd. ofEduc., No. 06-940,2008 WL 696874, *13 (M.D. Ala. March 13,2008) (same); see also Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1293 (11 th Cir. 2007) (graduate student terminated from his placement in a hospital counseling practicum was a public employee); Andersen v. McCotter~ 100 F.3d 723, 726 (lOth Cir, 1996) (student intern working for college credit in a penitentiary was a public employee in relation to the penitentiary officials who terminated him from the program). Plaintiff notes that unlike the plaintiffs in these cases -- who sued their practicum administrators -- she has not proceeded against anyone at CV. Plaintiff s strategic choice does not alter my analysis of her posting, however.. Like the plaintiff in Miller, Plaintiff s challenged speech concerned the school where she taught, not the university where she was enrolled as a student. 2008 WL 696874, at *13. In these circumstances, whether Plaintiffs MySpace posting was protected speech does not tum on her choice of defendants"

Plaintiff contends that because she was enrolled at Millersville University in May 2006, and because her MySpace posting had academic consequences at MU, she is entitled to a

26


Filed 12/03/2008 Page 27 of 28

student's First Amendment protections. In support, she offers a decision that high school administrators violated a student's First Amendment rights when they suspended him for writing an insulting document about a teacher on his personal computer. Killion v. Franklin Reg'l Sch. Dist., 136 F. Supp. 2d 446,457 (W.D" Pa. 2001); (Doc. No. 45 at 24). That decision is inapposite. Unlike Mr. Killion, who was only a student, Plaintiff was a student teacher who explicitly acknowledged in her MySpace posting that she was the "official teacher" of "[her]

students." Like the Plaintiff in Hewlessy, Plaintiff was not "in any meaningful sense a pupil"

during the practicum. 194 F .3d at 245. Accordingly, I believe Plaintiff s status is indistinguishable from the student teacher plaintiffs in Hennessy, Miller, Watts, and Andersen. Like these plaintiffs, when Ms. Snyder created her challenged posting, she was more a teacher than a student. 194 F.3d at 245; 495 F.3d at 1293; 100 F.3d at 726; 2008 WL 696874, at *13.

In these circumstances, insofar as Plaintiff s posting touched on any matter of public concern, it was protected by the First Amendment. Garcetti, 547 U.S" at 419; Pickering, 391 U.S., at 568; Brennan, 350 F.3d at 412. Plaintiff conceded at trial, however, that her posting raised only personal matters. (Tr, May 6, 2008 at 55:22-24,56:7-11.) Accordingly, the First Amendment does not protect Plaintiffs MySpace posting. Connick, 461 U.S. at 147 (federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken when a public employee speaks upon matters of a personal interest); Brennan, 350 F.3d at 412 (the First Amendment does not protect public employees' purdy personal speech). Defendants' response to the posting thus did not violate Plaintiffs First Amendment rights,

In sum, Plaintiff has not prevailed on the merits of her First Amendment claim.

Accordingly, she has not shown a legal entitlement to a mandatory injunction against the Millersville University Defendants. See Ciba-Geigy COIp., 747 F..2d at 850.

27

BY THE COURT. s/ Paul S. Diamond

Case 2:07-cv-01660-PD Document 47 Filed 12/03/2008 Page 28 of 28

VERDICT

I return a verdict in favor of Defendants and against Plaintiff. Plaintiff s request for injunctive relief is denied.

An appropriate Order follows.

Paul S. Diamond, J.

28

Westt.aw.

Slip Copy, 2009 WL 2406235 (WD.Ky.) (Cite as: 2009 WL 2406235 (W.D.Ky.))

Only the W estlaw citation is currently available.

United States District Court, w.n, Kentucky, at Louisiville.

Nina YODER, Plaintiff v.

UNIVERSITY OF LOUISVILLE, et al., Defendants.

No.3:09-CV-205-S.

Aug, 3, 2009.

West KeySummary Colleges and Universities 81 ~9.35(3.1)

~ Colleges and Universities 81 k9 Students

81k9.35 Curriculum, Degrees, Grades, and Credits

81k9.35(3} Academic Expulsion, Suspension, or Probation

81k9.35(11.1 k. In General. Most Cited Cases

A nursing student's blog post on a social networking website about a patient's birthing experience did not violate the confidentiality provision of her university's honor code" The student was dismissed from the nursing school, which claimed that her post violated the honor code. However, the student's post did not violate the honor code because it did not contain information that could possibly lead to the discovery of the patient's identity" 42 U.S.C.A. § 1983,.

Daniel J. Canon, Daniel J. Canon, PSC, Garry R. Adams, Jr., Clay & Adams, PLLC, Louisville, KY, for Plaintiff.

Donna King Peny, Loren T. Prizant, Woodward, Hobson & Fulton, LLP, Louisville, KY, for Defendants,

MEMORANDUM OPINION

CHARLES R. SIMPSON, III, District Judge.

Page 1

*1 This matter is before the court upon the cross-motions of plaintiff Nina Yoder ("Yoder") and defendants University of Louisville ("U of L" or, "University"), Dr .. Ermalynn Kiehl ("Kiehl"), and Dr .. Marcia Hem ("Hem") (hereinafter collectively, "Defendants") for summary judgment (DN 14; DN 17). The matter has been fully briefed (DN 18; DN 19) and is ripe for disposal. For the reasons that follow, Yoder's motion for summary judgment will be granted and Defendants' cross-motion will be denied .FNI

FNI. Yoder originally filed an emergency motion for preliminary injunction in this matter on March 13, 2009. By agreement of counsel, and upon order of the court, the matter was remanded from the court's docket on April 16. Yoder has now moved to renew her motion for temporary injunctive relief (DN 22). The motion will be denied as moot in light of the court's ruling herein,

BACKGROUND

The undisputed relevant facts are these: Yoder was dismissed as a student from the U of L School of Nursing ("SON") due to a blog that she posted on her MySpace page, The blog post, entitled "How I Witnessed the Miracle of Life," ("Blog Post") was based on Yoder's experience with an obstetric patient whom she was assigned to follow through the birthing process as part of her COUI'se work. The Blog Post is reproduced in full, as follows:

As part of my mother-baby clinical (99% of the time clinicals are a waste of my time) I was assigned to find a pregnant mother and follow her around. I didn't look far. If you have ever worked a 12-hour shift in the hospital, you'd know that 50% offemales there are at various stages of pregnancy. People say that there's something in the water. I say it's the shift-basically, she works 3 days and has 4 days to do everything else, including getting knocked up .. That's how I got surprised with my own Creep-I was working nights in the ER. Never thought I'd have one, but there ya go. If yOUI' wife is infertile, send

© 2009 Thomson Reuters .. No Claim to Orig .. US Gov .. Works.

Slip Copy, 2009 WL 2406235 (W.n,Ky.) (Cite as: 2009 WL 2406235 (W.D.Ky.»

her to work at the hospital, she'll come back with triplets.

Anyway, I found my mom fairly easy-I just came to work and confronted one of the ladies" Good thing that it was her third pregnancy-and she had no problem with me being stuck to her like a tick to an ass, so I cordially invited myself to observe the glorious moment of The Popping.

Now, let's bust some myths"

1. "Pregnant women are beautiful"

No. Hell·,no"

Beautiful pregnant women are beautiful, or more like, only slightly distorted with the belly (as was the case with my "mom"), Otherwise, pregnancy makes an ok-looking woman ugly, and an ugly woman-fucking horrifying.

2. "You're all glowing"

Oh really? Is that all the sweat from having to lug 35 extra lbs?

1. "Babies are God's little miracles"

I gotta admit, there is something freakishly fascinating with the fact that one bunch of coiled protein grows a tail, forms an army, and attacks another bunch of coiled protein (which gets released by signals from a whole lot of proteins and waits patiently in a soft bed of all sorts of other proteins), then 23 + 23 becomes 46, immediately gets determined whether it's an XX or XY, or XXY or XYY, or some retarded XXXY ... anyway, it's an amazing process. But IMHO these 'miracles' are demons sent to us from hell to torture us for the whole eternity"

4" "Children are suchjoy!"

*2 Someone referred to having kids as like being pecked to death by chickens" I'll say that it's more like being ripped apart by rabid monkeys.

Page 2

Last Friday I armed myself with a camera, and journeyed to the assigned hospital, where I met my wonderful lady, getting ready to pop" Since it was her third kid, everyone expected her to shoot it out within 30 minutes" She was already getting induced by elephantine dose of Oxytocin (Mmmm, Oxytocin!)

I took my camera, put it on "Rec" and assumed the position.

45 minutes later, no baby"

1 hour 30 minutes later, no baby.

The anesthesiologist comes in and sets up my girl with an epidural. Having it done is one thing; watching someone else getting it done is another. The doc took out this teeny needle first and numbed her up. Then she took out this huge-ass 1 0 inch needle and jammed it into her spine!

I was watching the whole thing, with my face changing expressions like Louis De Funes', But I guess everything went fine, because my 'mom' was back into position in no time, waiting for the Creep to showup.

3 hours later, no baby"

I'm looking at the mother with sheer disdain, she looks at me with sheer anger, but still-no baby.

I've got to go to work this evening, and I'm starting to cuss. I haven't slept in 36 hours, so I went to my car, got my blanket, kicked the nervous spouse out of the recliner, and went to sleep.

4 hours later she starts to throw up" I jump up, and tum my camera on again, assuming the position of a greyhound, right in between her legs.

... no baby,

5 hours.

6 hours.

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Slip Copy, 2009 WL 2406235 (W.D.Ky.) (Cite as: 2009 WL 2406235 (W.D.Ky.»

7 hours"

My eyes are starting to feel like they're filled with sand, and my heart is starting to palpitate" The momma is throwing up, the daddy's stomach is growling and he's starting to bitch like a 14-year-old school girl in the mall.

8 hours later, the nurse comes in, checks the momma, and says, "ok, we're ready to push".

FINALLY!!! 1 tum my camera on again" Two more nurses, and a woman doctor come in. They put my momma into a position of American Eagle, prop her up with pillows, and shine bright light at the cooch,

The momma's family is sitting in the comer, shaking all ~ver, with the two younger brothers of the baby, the ill-laws, and the bitching spouse.

At last my girl gave one big push, and immediately out came a wrinkly bluish creature, all Picasso-like and weird, ugly as hell, covered in god knows what, screeching and waving its tentacles in the air.

15 minutes later it turned into a cute pink itty bitty little baby girl, Mom was forgotten, the whole squacking family surrounded the new Creep; she was crowned with a pink cap, wrapped into a blanket and finally shut up with a teat.

1 came to work, overwhelmed with emotions and new knowledge and experience. 1 sat down, looked mound and once again proved that women are FREAKING STUPID and don't learn from their past mistakes"

*31 said: "I want another baby!!"

The End"

Defendants' Motion for Summary Judgement, Exhibit 6.,

Yoder posted the Blog on her MySpace page on February 2, 2009" Sometime thereafter, a nursing

Page 3

s~dent informed Glenda Adams ("Adams"),FN2 the childbearing course instructor, that students were discussing the Blog Post. On February 25, Adams contacted SON Associate Dean Kiehl and explained that she was concerned Yoder had revealed confidential information about the birth mother and her baby. Kiehl reviewed the Blog Post and contacted SON Dean Hem. On February 26, Kiehl and Hem reviewed the Blog Post and agreed that it violated the SON Honor Code Pledge ("Honor Code"), the childbearing course's Confidentiality Statement ("Confidentiality A:greement"), the course consent form executed by the birth mother ("Consent Form"), and, in general, the standards of the nursing profession"

FN2. Adams is not party to this suit

The Honor Code provides:

1 join my fellow students today to pledge my commitment to the highest ideal and academic standards of my education at the University of Louisville School of Nursing.

1 recognize I am entering a profession in which 1 have responsibility for the lives of others. With that responsibility comes accountability for my actions.

Therefore, as a representative of the School of Nursing, 1 pledge to adhere to the highest standards of honesty, integrity, accountability, confidentiality, and professionalism, in all my written work, spoken words, actions and interactions with patients, families, peers and faculty"

1 pledge to work together with my peers and to support one another in the pursuit of excellence in our nursing education and to report unethical behavior.

I will work to safeguard the health and welfare of' clients who have placed their trust in me and will advocate for the client's best interest.

I recognize that these responsibilities do not end with graduation, but are a lifelong endeavor"

Id. at Exhibit 2.

© 2009 Thomson Reuters" No Claim to Oligo US Gov. Works.

Slip Copy, 2009 WL 2406235 (W.D.Ky..) (Cite as: 2009 WL 2406235 (W.D.Ky.»

The Confidentiality Agreement provides:

I do hereby agree to consider con-

fidential any and all information entrusted to me throughout my clinical rotations while a student at the University of Louisville School of Nursing .. This includes medical, financial, personal, and employment related information. I realize that information shared with others could bring harm to clients .. Further I understand that proven violation of confidentiality of any such information may be cause for immediate termination of access to further data and is grounds for immediate dismissal from the School of Nursing.

Id. at Exhibit 3

The Consent Form provides, in pertinent part:

Any information shared with the named nursing student will be used by that student only for written/oral assignments. My name and my family's name will not be used in any written or oral presentation by the named student. I understand that information regarding my pregnancy and my health care will be presented in written or oral form to the student's instructor only ..

*4 Id. at Exhibit 4 .. Yoder bound herself in writing to uphold each of these agreements.

Kiehl and Hem agreed that Kiehl should meet with Yoder about the Blog Post. On February 26, Adams contacted Yoder and asked to meet with her the next morning. Adams did not give Yoder any specific reason for the meeting.

On February 27, Yoder arrived at the SON for what she thought would be a meeting with Adams .. Instead, Yoder was greeted by KieJ:.J, Dr. Quinn Chipley ("Chipley,,)/N3 and two uniformed law enforcement officers .. FN4 Yoder was frisked for weapons and found not to have any on her person.FN5 Kiehl confronted Yoder with a printout of the Blog Post and explained to her that it was a breach of the Honor Code and patient confidentiality. Once Yoder confirmed that she had authored the Blog Post, Kiehl informed her that she would recommend to Hem that Yoder be dis-

Page 4

missed from the SON.

FN3. Chipley is a physician who provides counseling and psychological support to students ..

FN4 .. Because Kiehl had "read in [Yoder's] blogs issues about guns," Deposition of Dr .. Ermalynn Kiehl, p. 24, she contacted U ofL's Department of Public Safety ("DPS"). Officers of DPS recommended they be present at the meeting with Yoder.

FN5. It should be noted that there is no evidence in the record to suggest that Yoder might have been armed .. It is undisputed that Yoder has never brought any firearm onto University campus ..

Yoder subsequently received a dismissal letter from Hem dated March 2. The letter stated that Yoder was being dismissed from the SON because her "internet postings regarding patient activities and identification as a University of Louisville School of Nursing student violates the nursing honor code which you pledged to uphold on September 7,2008." Id. at Exhibit 8. The letter did not reference the Confidentiality Agreement. The letter explained that Yoder had the right to speak with Hem by telephone and to petition the SON's decision following the procedure established by the SON .. The letter confirmed that Yoder was provided the instructions and procedural documents.

Pursuant to SON procedure, Yoder filed a petition with the Office of Student Services' Undergraduate Academic Affairs Committee ("Committee") for review of her dismissal, Under Committee practices, Yoder was not allowed to participate in the Committee's deliberations. The Committee reviewed Yoder's petition and determined that her dismissal should be upheld. Yoder was informed of the Committee's decision by letter from Kiehl dated March 9. The letter gave no information regarding appeal rights. The letter explained that University students who are dismissed by one enrollment unit are eligible to apply for admission to another unit The letter referred Yoder to the Office of Student Services if she had any questions.

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Slip Copy, 2009 WL 2406235 (W.D.Ky.) (Cite as: 2009 WL 2406235 (W.D.Ky.))

Yoder filed this civil rights action against U of L, as well as Kiehl and Hem in their official and individual capacities, pursuant to 42 U.S.C. § 1983 on March 12. Yoder specifically alleges that Defendants violated her First Amendment right to free speech by dismissing her from the SON based on the Blog Post Yoder argues that the Honor Code is unconstitutionally broad and that the Confidentiality Agreement is unconstitutionally vague" Yoder further alleges that Defendants violated her Fourteenth Amendment right to due process by depriving her of the interest in her education without adequate notice and the opportunity to be heard"

Defendants assert that this is not a free speech case, They argue that Yoder violated her obligations as a nursing student and was dismissed from the SON program for those specific violations. They further contend that even if this were a free speech case, the Blog Post is not protected by the First Amendment. Defendants also allege that both the Honor Code and Confidentiality Agreement are constitutional, and that Yoder was afforded all the due process to which she was entitled" Defendants additionally argue that this action is barred because Yoder failed to exhaust her University remedies and that they are immune from damages.

*5 Yoder seeks summary judgment as to liability on her claims and a trial on the issue of damages. She seeks a declaratory judgment ruling that both the Honor Code and Confidentiality Agreement are unconstitutional and permanent injunctive relief prohibiting their enforcement Yoder seeks immediate injunctive relief ordering her return to classes"

The court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391(b},

DISCUSSION

A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H Kress & Co .. 398 U.S. 144, 151-60,90 S.Ct. 1598, 16 L.Ed.2d 142 (1970};

Page 5

Felix v. Young, 536 F.2d 1126, 1134 (6th Cir.1976) Not every factual dispute between the parties will prevent summary judgment The disputed facts must be material, They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit Anderson v. Liberty Lobby. Inc., 477 U.s. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The dispute also must be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party" Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the nonmoving party, but that party is requited to present some significant probative evidence which makes it necessary to resolve the patties' differing versions of the dispute at trial, First National Bank of' Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 0968}. The evidence must be construed in a light most favorable to the party opposing the motion" Bohn Aluminum & Brass Corp. v. Storm King Corp .. 303 F.2d 425 (6th Cir.1962).,

As a preliminary matter, this action is not barred for failure to exhaust University remedies" Defendants argue that because U of L policy permits students who believe they have been treated unfairly, discriminated against, or have had their rights abridged to initiate a grievance within one year' from the event giving rise to the complaint, Yoder's claims are not ripe for failure to file a grievance with the University before filing this action. Defendants' Motion for Summary Judgement at Exhibit 10. However, the law is clear that exhaustion is not a prerequisite to maintenance of an action under § 1983" Eill§y v. Board of'Regents of'State of Florida. 457 U.S. 496, 500-501, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982}; Lawrence v. Chancery Court of Tennessee. 188 F.3d 687,692 (6th Cir.l999}.

This case will be decided on the merits. However, it will not be decided on constitutional grounds, A fundamental rule of judicial restraint requires that federal courts, prior to reaching any constitutional questions, must first consider any nonconstitutional grounds for a decision. Jean v. Nelson. 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 0985}. As Defendants correctly argue, this is not ultimately a free speech case" Nor is it fundamentally a matter of due process. There is no need, therefore, for the court to discuss the constitutional questions raised by Yoder's claims.

© 2009 Thomson Reuters. No Claim to Oligo US Gov. Works"


*6 This case presents a matter of contract interpretation: Yoder was dismissed from the SON because Defendants found that her Blog Post violated both the Honor Code and the Confidentiality Agreement However, upon review of the relevant texts, the COlUt fmds that the Blog Post does not violate either of these two agreements. Therefore, there is no basis for Defendants' dismissal of Yoder from the SON ..

Defendants argue that the Blog Post violates the "confidentiality" provision of the Honor Code, as well as the Confidentiality Agreement, because it contains "identifying information" about the birth mother. Depo .. of Kiehl at 79. Neither "confidentiality" nor "identifying information" is defined anywhere within the SON's rules and regulations. Id. at 82 .. However, the Confidentiality Agreement provides that confidential information "includes medical, financial, personal, and employment related information," Defendants' Motion for Summary Judgment at Exhibit 3. Defendants assert that the Blog Post contains the following identifying information about the birth mother: the number of her children; the date that she was in labor; her behaviors; the treatment that she underwent (an epidural); her reaction to labor (vomiting); and the reactions of her family. Depo. of Kiehl at 79.

While this information appearing in the Blog Post is arguably "medical" andlor "personal," it does not "identify" the birth mother. The Blog Post does not disclose the birth mother's name, address, social security number, or the like. It does not disclose her age, race, or ethnicity. The Blog Post does not contain "financial" or "employment related information" FN6 about the birth mother. It does not disclose where she was in labor,

FN6. To the extent that "Anyway, I found my mom fairly easy-I just came to work and confronted one of the ladies," Defendants' Motion for Summary Judgement, Exhibit 6 (emphasis added), constitutes "employment related information" about the birth mother, it does not distinguish her identity ..

In sum, the Blog Post does not contain information that could possibly lead to the discovery of the birth mother's identity .. Therefore, the Blog Post does not

Page 6

violate the confidentiality provision of the Honor Code by Defendants' own terms, nor the Confidentiality Agreement If the SON wishes for its students' confidentiality obligations to extend to the giving of non-identifiable information about patients, it must give fair notice ..

Defendants argue that the Blog Post violates the "professionalism" provision of the Honor Code .. "Professionalism" is not defmed anywhere within the SON's rules and regulations. Depo. of Kiehl at 75-76. Kiehl could not provide a definition of "professionalism" when asked at her deposition. Id. When terms expressed in a formal document are undefined, the COlUt gives them their ordinary meaning, See, Asgrow Seed Co. v. Wi"nterboer, 513 U.S. 179, 187, 115 S.Ct. 788, 130 L.Ed.2d 682 (1995}. Defendants specifically argue that the Blog Post violates the professionalism provision of the Honor Code-above and beyond by disclosing confidential information about the birth mother-because of the vulgar and unprofessional manner in which it was presented.

*7 The COUIt does not disagree with Defendants that the Blog Post is vulgar .. It is generally distasteful and, in paIts, objectively offensive. However, the Blog Post is not "unprofessional." Rather, it is entirely non-professional, and therefore it falls outside the purview of the Honor Code. Yoder did not post the Blog "as a representative of the School of Nursing." Defendants' Motion for Summary Judgement at Exhibit 6 .. Moreover, the Blog Post is not "written work, spoken words, actions [or] interactions with patients, families, peers [or] faculty .. " Id. It is simply a crude attempt by Yoder to be humorous in describing an anonymous prolonged labor and delivery. It was written without any clearly intended audience and posted on Yoder's own personal MySpace page. That the Blog Post was technically accessible to the public does not fundamentally change the nature of the writing.

To be sure, Yoder's attempt at humor was an abject failure, Her observations on women, children, motherhood and the birthing process are, for the most part, crass and uncouth. The COUIt most certainly does not approve ofthe language used. However, to be fair, the Blog Post does end with a reversal of attitude and a departing message that is positive-life-affuming,

© 2009 Thomson Reuters .. No Claim to Orig. US Gov. Works ..

Page 7

Slip Copy, 2009 WL 2406235 (W.D..Ky..) (Cite as: 2009 WL 2406235 (W.D.Ky.»

even-if perversely so, Yoder writes that she is "overwhelmed with emotions and new knowledge and experience," and ultimately concludes that she wants another baby of her own. Id.

© 2009 Thomson Reuters. No Claim to Orig, US Gov. Works.

Regardless, the court does not judge the Blog Post on its comedic or literary merit. Despite what we, or Defendants, may think of it, the Blog Post does not violate the professionalism provision of the Honor Code because it was not created or used in any professional context. Again, if the SON wishes for the professionalism affirmation in the Honor Code to apply to every act or all conduct of a SON student everywhere and at all times in all contexts, it must give fair notice by explaining such obligation clearly. In this case, the SON has taken a crude attempt at humor done in a nonprofessional context, and attempted to shoe-horn it into a violation of a "professionalism" promise which speaks to conduct as a "representative of the School ofNursing." That square peg doesn't fit the round hole which the facts disclose .. Accordingly, there is no basis for Defendants' dismissal of Yoder from the SON.

Yoder must be reinstated as a student at the SON and allowed to return to classes immediately, Because Yoder succeeds on her motion for summary judgment on nonconstitutional grounds, we need not address liability for damages under 42 U.S.c. § 1983.

CONCLUSION

Because the court finds that there are no genuine issues of fact and Yoder is entitled to summary judgment as a matter of law, Yoder's motion for summary judgment will be granted and Defendants' cross-motion will be denied.

A separate order will be entered herein this date in accordance with this opinion,

W.D..Ky.,2009.,

Yoder v, University of Louisville

Slip Copy, 2009 WL 2406235 (W.D.Ky.)

END OF DOCUMENT

Westlaw.


Only the W estlaw citation is currently available.

United States District COUlt, WD. Kentucky, at Louisiville.

Nina YODER, Plaintiff v.

UNIVERSITY OF LOUISVILLE, et aI., Defendants ..

No.3:09-CV-205-S.

Aug. 3, 2009.

West KeySummary Colleges and Universities 81 ~9.35(3.1)

~ Colleges and Universities 81k9 Students

81k9.35 Curriculum, Degrees, Grades, and Credits

81k9.35(3) Academic Expulsion, Suspension, or Probation

81k9.35(3.11 k, In General. Most Cited Cases

A nursing student's blog post on a social networking website about a patient's birthing experience did not violate the confidentiality provision of her university's honor code, The student was dismissed from the nursing school, which claimed that her post violated the honor code. However, the student's post did not violate the honor code because it did not contain information that could possibly lead to the discovery of the patient's identity. 42 U.S.C.A. § 1983 .:

Daniel J. Canon, Daniel J. Canon, PSC, GaIlY R. Adams, Jr., Clay & Adams, PLLC, Louisville, KY, for Plaintiff.

Donna King PellY, Loren T. Prizant, Woodward, Hobson & Fulton, LLP, Louisville, KY, for Defendants.

MEMORANDUM OPINION

CHARLES R. SIMPSON, III, District Judge ..

Page 1

*1 This matter is before the COUlt upon the cross-motions of plaintiff Nina Yoder ("Yoder") and defendants University of Louisville ("U of L" or, "University"), Dr. Ermalynn Kiehl ("Kiehl"), and Dr .. Marcia Hem ("Hem") (hereinafter collectively, "Defendants") for summary judgment (DN 14; DN 17).. The matter has been fully briefed (DN 18; DN 19) and is ripe for disposal. For the reasons that follow, Yoder's motion for summary judgment will be granted and Defendants' cross-motion will be denied .. FNI

FN1. Yoder originally filed an emergency motion for preliminary injunction in this matter on March 13, 2009. By agreement of counsel, and upon order of the COUlt, the matter was remanded from the COUlt'S docket on April 16 .. Yoder has now moved to renew her motion for temporary injunctive relief (DN 22). The motion will be denied as moot in light of the COUlt'S ruling herein ..

BACKGROUND

The undisputed relevant facts are these: Yoder was dismissed as a student from the U of L School of Nursing ("SON") due to a blog that she posted on her MySpace page. The blog post, entitled "How I Witnessed the Miracle of Life," ("Blog Post") was based on Yoder's experience with an obstetric patient whom she was assigned to follow through the birthing process as part of her course work. The Blog Post is reproduced in full, as follows:

As part of my mother-baby clinical (99% of the time clinicals are a waste of my time) I was assigned to find a pregnant mother and follow her around, I didn't look far .. If you have ever worked a 12-hour shift in the hospital, you'd know that 50% of females there are at various stages of pregnancy. People say that there's something in the water. I say it's the shift-basically, she works 3 days and has 4 days to do everything else, including getting knocked up .. That's how I got surprised with my own Creep-I was working nights in the ER. Never thought I'd have one, but there ya go .. If your wife is infertile, send

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.


her to work at the hospital, she'll come back with triplets.

Anyway, I found my mom fairly easy-I just came to work and confronted one of the ladies .. Good thing that it was her third pregnancy-and she had no problem with me being stuck to her like a tick to an ass, so I cordially invited myself to observe the glorious moment of The Popping ..

Now, let's bust some myths,

1. "Pregnant women are beautiful"

No. Hell-no.

Beautiful pregnant women are beautiful, or more like, only slightly distorted with the belly (as was the case with my "mom"). Otherwise, pregnancy makes an ok-looking woman ugly, and an ugly woman- fucking horrifying ..

2. "You're all glowing"

Oh really? Is that all the sweat from having to lug 35 extra lbs?

1. "Babies are God's little miracles"

I gotta admit, there is something freakishly fascinating with the fact that one bunch of coiled protein grows a tail, forms an army, and attacks another bunch of coiled protein (which gets released by signals from a whole lot of proteins and waits patiently in a soft bed of all sorts of other proteins), then 23 + 23 becomes 46, immediately gets determined whether it's an XX or XY, or XXY or XYY, or some retarded XXXY ... anyway, it's an amazing process. But IMHO these 'miracles' are demons sent to us from hell to torture us for the whole eternity.

4 .. "Children are suchjoy!"

*2 Someone referred to having kids as like being pecked to death by chickens .. I'll say that it's more like being ripped apart by rabid monkeys ..

Page 2

Last Friday I armed myself with a camera, and journeyed to the assigned hospital, where I met my wonderful lady, getting ready to pop. Since it was her third kid, everyone expected her to shoot it out within 30 minutes .. She was already getting induced by elephantine dose of Oxytocin (Mmmm, Oxytocin!)

I took my camera, put it on "Rec" and assumed the position ..

45 minutes later, no baby.

1 hour 30 minutes later, no baby.

The anesthesiologist comes in and sets up my girl with an epidural, Having it done is one thing; watching someone else getting it done is another. The doc took out this teeny needle first and numbed her up .. Then she took out this huge-ass 10 inch needle and jammed it into her spine!

I was watching the whole thing, with my face changing expressions like Louis De Funes', But I guess everything went fine, because my 'mom' was back into position in no time, waiting for the Creep to showup.

3 hours later, no baby,

I'm looking at the mother with sheer disdain, she looks at me with sheer anger, but still-no baby.

I've got to go to work this evening, and I'm starting to cuss. I haven't slept in 36 hours, so I went to my car, got my blanket, kicked the nervous spouse out of the recliner, and went to sleep,

4 hours later she starts to throw up .. I jump up, and turn my camera on again, assuming the position of a greyhound, right in between her legs.

... no baby.

5 hours ..

6 hours.

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works ..

Slip Copy, 2009 WL 2406235 (WDXy) (Cite as: 2009 WL 2406235 (W.n.Ky.»

7 hours.

My eyes are starting to feel like they're filled with sand, and my heart is starting to palpitate, The momma is throwing up, the daddy's stomach is growling and he's starting to bitch like a 14-year-old school girl in the mall ..

8 hours later, the nurse comes in, checks the momma

and says, "ok, we're ready to push". '

FINALLY! !! I tum my camera on again. Two more nurses, and a woman doctor come in .. They put my momma into a position of American Eagle, prop her up with pillows, and shine bright light at the cooch,

The momma's family is sitting in the comer, shaking all over, with the two younger brothers of the baby, the in-laws, and the bitching spouse ..

At last my girl gave one big push, and immediately out came a wrinkly bluish creature, all Picasso-like and weird, ugly as hell, covered in god knows what, screeching and waving its tentacles in the air.

15 minutes later it tuIned into a cute pink itty bitty little baby girl, Mom was forgotten, the whole squacking family surrounded the new Creep; she was crowned with a pink cap, wrapped into a blanket and finally shut up with a teat

I came to work, overwhelmed with emotions and new knowledge and experience, I sat down, looked around and once again proved that women are FREAKING STUPID and don't learn from their past mistakes.

*3 I said: "I want another baby!!"

The End ..

Defendants' Motion for Summary Judgement, Exhibit 6.,

Yoder posted the Blog on her MySpace page on February 2, 2009. Sometime thereafter, a nursing

Page 3

student informed Glenda Adams ("Adams,,)/N2 the childbearing course instructor, that students were discussing the Blog Post On February 25, Adams contacted SON Associate Dean Kiehl and explained that she was concerned Yoder had revealed confidential information about the birth mother and her baby. Kiehl reviewed the Blog Post and contacted SON Dean Hem. On February 26, Kiehl and Hem reviewed the Blog Post and agreed that it violated the SON Honor Code Pledge ("Honor Code"), the childbearing course's Confidentiality Statement ("Confidentiality Agreement"), the course consent form executed by the birth mother ("Consent Form"), and, in general, the standards of the nursing profession.

FN2. Adams is not patty to this suit

The Honor Code provides:

I join my fellow students today to pledge my commitment to the highest ideal and academic standards of my education at the University of Louisville School of Nursing.

I recognize I am entering a profession in which I have responsibility for the lives of others .. With that responsibility comes accountability for my actions.

Therefore, as a representative of the School of Nursing, I pledge to adhere to the highest standards of honesty, integrity, accountability, confidentiality, and professionalism, in all my written work, spoken words, actions and interactions with patients, families, peers and faculty ..

I pledge to work together with my peers and to support one another in the pursuit of excellence in 0UI' nursing education and to report unethical behavior ..

I will work to safeguard the health and welfare of clients who have placed their trust in me and will advocate for the client's best interest.

I recognize that these responsibilities do not end with graduation, but are a lifelong endeavor.

u. at Exhibit 2.,

© 2009 Thomson Reuters, No Claim to Orig, US Gov .. Works.


The Confidentiality Agreement provides:

I do hereby agree to consider con-

fidential any and all information entrusted to me throughout my clinical rotations while a student at the University of Louisville School of Nursing" This includes medical, financial, personal, and employment reiated information .. I realize that information shared with others could bring harm to clients. Further I understand that proven violation of confidentiality of any such information may be cause for immediate termination of access to further data and is grounds for immediate dismissal from the School of Nursing,

Id. at Exhibit 3.

The Consent Form provides, in pertinent part:

Any information shared with the named nursing student will be used by that student only for written/oral assignments .. My name and my family's name will not be used in any written or oral presentation by the named student. I understand that information regarding my pregnancy and my health care will be presented in written or oral form to the student's instructor only.

*4 Id. at Exhibit 4" Yoder bound herself in writing to uphold each of these agreements ..

Kiehl and Hem agreed that Kiehl should meet with Yoder about the Blog Post On February 26, Adams contacted Yoder and asked to meet with her the next morning. Adams did not give Yoder any specific reason for the meeting.

On February 27, Yoder arrived at the SON for what she thought would be a meeting with Adams" Instead, Yoder was greeted by Kiehl, Dr. Quinn Chipley ("Chipley,,)/N3 and two uniformed law enforcement officers,FN4 Yoder was frisked for weapons and found not to have any on her person.FN5 Kiehl confronted Yoder with a printout of the Blog Post and explained to her that it was a breach of the Honor Code and patient confidentiality" Once Yoder confumed that she had authored the Blog Post, Kiehl informed her that she would recommend to Hem that Yoder be dis-

Page 4

missed from the SON,

FN3. Chipley is a physician who provides counseling and psychological support to students"

FN4. Because Kiehl had "read in [Yoder's] blogs issues about guns," Deposition of Dr" Ermalynn Kiehl, p. 24, she contacted U ofL's Department of Public Safety ("DPS"). Officers of DPS recommended they be present at the meeting with Yoder.

FN5. It should be noted that there is no evidence in the record to suggest that Yoder might have been armed. It is undisputed that Yoder has never brought any firearm onto University campus.

Yoder subsequently received a dismissal letter from Hem dated March 2. The letter stated that Yoder was being dismissed from the SON because her "internet postings regarding patient activities and identification as a University of Louisville School of Nursing student violates the nursing honor code which you pledged to uphold on September 7, 2008." Id. at Exhibit 8. The letter did not reference the Confidentiality Agreement. The letter explained that Yoder had the right to speak with Hem by telephone and to petition the SON's decision following the procedure established by the SON. The letter confumed that Yoder was provided the instructions and procedural documents"

Pursuant to SON procedure, Yoder filed a petition with the Office of Student Services' Undergraduate Academic Affairs Committee ("Committee") for review of her dismissaL Under Committee practices, Yoder was not allowed to participate in the Committee's deliberations. The Committee reviewed Yoder's petition and determined that her dismissal should be upheld .. Yoder was informed of the Committee's decision by letter from Kiehl dated March 9. The letter gave no information regarding appeal lights. The letter explained that University students who are dismissed by one enrollment unit are eligible to apply for admission to another unit The letter referred Yoder to the Office of Student Services if she had any questions.

© 2009 Thomson Reuters. No Claim to Oligo US Gov. Works,

Slip Copy, 2009 WL 2406235 (WD.Ky.) (Cite as: 2009 WL 2406235 (W.D.Ky.»

Yoder filed this civil rights action against U of L, as well as Kiehl and Hem in their official and individual capacities, pursuant to 42 U.S.C. § 1983 on March 12 .. Yoder specifically alleges that Defendants violated her First Amendment right to free speech by dismissing her from the SON based on the Blog Post Yoder argues that the Honor Code is unconstitutionally broad and that the Confidentiality Agreement is unconstitutionally vague. Yoder further alleges that Defendants violated her Fourteenth Amendment right to due process by depriving her of the interest in her education without adequate notice and the opportunity to be heard ..

Defendants assert that this is not a free speech case .. They argue that Yoder violated her obligations as a nursing student and was dismissed from the SON program for those specific violations. They further contend that even if this were a free speech case, the Blog Post is not protected by the First Amendment Defendants also allege that both the Honor Code and Confidentiality Agreement are constitutional, and that Yoder was afforded all the due process to which she was entitled. Defendants additionally argue that this action is barred because Yoder failed to exhaust her University remedies and that they are immune from damages.

*5 Yoder seeks summary judgment as to liability on her claims and a trial on the issue of damages, She seeks a declaratory judgment ruling that both the Honor Code and Confidentiality Agreement are unconstitutional and permanent injunctive relief prohibiting their enforcement Yoder seeks immediate injunctive relief ordering her return to classes ..

The COUIt has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.c. § 1331.. Venue is proper under 28 U.S.C. § 1391(h)'

DISCUSSION

A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law .. Adickes v. s.H. Kress & Co .. 398 U.S. 144, 151-60, 90 S.Ct. 1598, 16 L.Ed.2d 142 (1970};

Page 5

Felix v. Young. 536 F.2d 1126, 1134 (6th Cir.1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law goveming the issue, might affect the outcome of the suit Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (986), The dispute also must be genuine. The facts must be such that if they were proven at trial, a reasonable JUIy could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the nonmoving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial, First National Bank of Arizona v. Cities Service Co" 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (19681. The evidence must be construed in a light most favorable to the party opposing the motion, Bohn Aluminum & Brass Corp. v. Storm King Corp .. 303 F.2d 425 (6th Cir.1962}.

As a preliminary matter, this action is not barred for failure to exhaust University remedies, Defendants argue that because U of L policy permits students who believe they have been treated unfairly, discriminated against, or have had their rights abridged to initiate a grievance within one year from the event giving rise to the complaint, Yoder's claims are not ripe for failure to file a grievance with the University before filing this action. Defendants' Motion for Summary Judgement at Exhibit 10. However, the law is clear that exhaustion is not a prerequisite to maintenance of an action under § 1983. Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 500-501, 102 S.Ct. 2557, 73 L.Ed.2d 172 (l982}; Lawrence v. Chancery Court of Tennessee, 188 F.3d 687,692 (6th Cir.1999)..

This case will be decided on the merits, However, it will riot be decided on constitutional grounds .. A fundamental rule of judicial restraint requires that federal courts, prior to reaching any constitutional questions, must first consider any nonconstitutional grounds for a decision. Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992,86 L.Ed.2d 664 (l985}. As Defendants correctly argue, this is not ultimately a free speech case. Nor is it fundamentally a matter of due process .. There is no need, therefore, for the court to discuss the constitutional questions raised by Yoder's claims.

© 2009 Thomson Reuters. No Claim to Orig, US Gov. Works.

Slip Copy, 2009 WL 2406235 (Wn.Ky,) (Cite as: 2009 WL 2406235 (W.D.Ky.»

*6 This case presents a matter of contract interpretation: Yoder was dismissed from the SON because Defendants found that her Blog Post violated both the Honor Code and the Confidentiality Agreement However, upon review of the relevant texts, the court finds that the Blog Post does not violate either of these two agreements. Therefore, there is no basis for Defendants' dismissal of Yoder from the SON.

Defendants argue that the Blog Post violates the "confidentiality" provision of the Honor Code, as well as the Confidentiality Agreement, because it contains "identifying information" about the birth mother, Depo. of Kiehl at 79" Neither "confidentiality" nor "identifying information" is defined anywhere within the SON's rules and regulations, Id at 82. However, the Confidentiality Agreement provides that confidential information "includes medical, financial, personal, and employment related information." Defendants' Motion for Summary Judgment at Exlubit 3. Defendants assert that the Blog Post contains the following identifying information about the birth mother: the number of her children; the date that she was in labor; her behaviors; the treatment that she underwent (an epidural); her reaction to labor (vomiting); and the reactions of her family. Depo. of Kiehl at 79.,

While this information appearing in the Blog Post is arguably "medical" and/or "personal," it does not "identify" the birth mother. The Blog Post does not disclose the birth mother's name, address, social security number, or the like. It does not disclose her age, race, or ethnicity, The Blog Post does not contain "financial" or "employment related information" FN6 about the birth mother. It does not disclose where she was in labor,

FN6. To the extent that "Anyway, I found my mom fairly easy-I just came to work and confronted one of the ladies," Defendants' Motion for Summary Judgement, Exhibit 6 (emphasis added), constitutes "employment related information" about the birth mother, it does not distinguish her identity.

In sum, the Blog Post does not contain information that could possibly lead to the discovery of the birth mother's identity" Therefore, the Blog Post does not

Page 6

violate the confidentiality provision of the Honor Code by Defendants' own terms, nor the Confidentiality Agreement If the SON wishes for its students' confidentiality obligations to extend to the giving of non-identifiable information about patients, it must give fair' notice ..

Defendants argue that the Blog Post violates the "professionalism" provision of the Honor Code. "Professionalism" is not defmed anywhere within the SON's rules and regulations, Depo. of Kiehl at 75-76. Kiehl could not provide a definition of "professionalism" when asked at her deposition, Id. When terms expressed in a formal document are undefined, the court gives them their' ordinary meaning. See, Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187, 115 S.Ct. 788, 130 L.Ed.2d 682 (19952. Defendants specifically argue that the Blog Post violates the professionalism provision of the Honor Code-above and beyond by disclosing confidential information about the birth mother-because of the vulgar and unprofessional manner in which it was presented.

*7 The court does not disagree with Defendants that the Blog Post is vulgar. It is generally distasteful and, in parts, objectively offensive. However, the Blog Post is not "unprofessional." Rather, it is entirely non-professional, and therefore it falls outside the purview of the Honor Code. Yoder did not post the Blog "as a representative of the School of Nursing." Defendants' Motion for Summary Judgement at Exhibit 6. Moreover, the Blog Post is not "written work, spoken words, actions [or] interactions with patients, families, peers [or] faculty." Id. It is simply a crude attempt by Yoder to be humorous in describing an anonymous prolonged labor and delivery. It was written without any clearly intended audience and posted on Yoder's own personal MySpace page, That the Blog Post was technically accessible to the public does not fundamentally change the nature of the writing,

To be sure, Yoder's attempt at humor was an abject failure. Her observations on women, children, motherhood and the birthing process are, for the most part, crass and uncouth" The court most certainly does not approve of the language used" However, to be fair, the Blog Post does end with a reversal of attitude and a departing message that is positive-life-affirming,

© 2009 Thomson Reuters. No Claim to Orig US Gov. Works.

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Slip Copy, 2009 WL 2406235 (W.D.Ky.,) (Cite as: 2009 WL 2406235 (W.D.Ky.»

even-if perversely so. Yoder writes that she is "overwhelmed with emotions and new knowledge and experience," and ultimately concludes that she wants another baby of her own" Id

Regardless, the court does not judge the Blog Post on its comedic or literary merit Despite what we, or Defendants, may think of it, the Blog Post does not violate the professionalism provision of the Honor Code because it was not created or used in any professional context.. Again, if the SON wishes for the professionalism affumation in the Honor Code to apply to every act or all conduct of a SON student everywhere and at all times in all contexts, it must give fair notice by explaining such obligation clearly, In this case, the SON has taken a crude attempt at humor done in a nonprofessional context, and attempted to shoe-hom it into a violation of a "professionalism" promise which speaks to conduct as a "representative of the School of Nursing." That square peg doesn't fit the round hole which the facts disclose" Accordingly, there is no basis for Defendants' dismissal of Yoder from the SON.

Yoder must be reinstated as a student at the SON and allowed to return to classes immediately. Because Yoder succeeds on her motion for summary judgment on nonconstitutional grounds, we need not address liability for damages under 42 U.S.C. § 1983,.

CONCLUSION

Because the court finds that there are no genuine issues of fact and Yoder is entitled to summary judgment as a matter of law, Yoder's motion for summary judgment will be granted and Defendants' cross-motion will be denied.

A separate order will be entered herein this date in accordance with this opinion.

W.DXy.,,2009.

Yoder v. University of Louisville

Slip Copy, 2009 WL 2406235 (W.D"Ky.,)

END OF DOCUMENT

© 2009 Thomson Reuters" No Claim to Orig. US Gov. Works.

Westiaw~

Page 1

281 Fed.Appx .. 868,2008 WL 2350947 (CA.II (Ga .. » (Not Selected for publication in the Federal Reporter)

(Cite as: 281 Fed.Appx. 868, 2008 WL 2350947 (C.A.ll (Ga.»)

HThis case was not selected for publication in the Federal Reporter ..

Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32 .. 1 generally governing citation of judicial decisions issued on or after Jan. 1,2007. See also Eleventh Circuit Rules 36-2, 36-3. (Find CTAI1 Rille 36-2 and Find CTAI1 Rule 36-3)

United States Court of Appeals, Eleventh Circuit,

James C. SCHUSTER, Plaintiff-Appellant, v.

HENRY COUNTY, GEORGIA, Linda Angus, Defendants-Appellees.

No. 07-14270 Non-Argument Calendar.

June 10, 2008.

Background: Following his termination, former county finance director brought § 1983 action, alleging retaliation for his exercise of First Amendment rights. The United States District Court for the Northern District of Georgia, 2007 WL 1701795 granted summary judgment for county. Former employee appealed ..

Holding: The Court of Appeals held that plaintiffs speech regarding accounting abuses was made as an employee performing his job, and thus did not give rise to a claim of unconstitutional retaliation .. Affumed ..

West Headnotes

Constitutional Law 92 €;:;:;:;>1929

92 Constitutional Law

92XVIII Freedom of Speech, Expression, and Press

92XVIIICP} Public Employees and Officials 92k1929 k. Public or Private Concern;

Speaking as "Citizen" .. Most Cited Cases

Counties 104 €;::;::::J67

104 Counties

104 III Officers and Agents

I04k67 k. Removal. Most Cited Cases County finance director's comments regarding improper disbursement of county funds, accounting abuses, and failure to amend the budget were made as an employee performing his job, rather than as private citizen, and thus did not give rise to a claim of unconstitutional retaliation .. U.S.C.A. Const.Amend. 1; 42 U.S.c.A. § 1983 ..

*869 John Paul Batson, Augusta, GA, for Plaintiff-Appellant.

Timothy J. Buckley, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 05-00239-CV-TWT-1.

Before EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges ..

PER CURIAM:

**1 Plaintiff-Appellant James C. Schuster appeals the grant of summary judgment in favor of his former employer, Defendant-Appellee Henry County, in an action brought under section 1983, 42 U.S.C. § 1983, claiming Plaintiffs employment was terminated in retaliation for his exercising his First Amendment rights. No reversible error has been shown; we affirm.

Plaintiff was the Director of Finance for Henry County, and later Henry County's Finance Officer for the Special Purpose Local Option Sales Tax: ("SPLOST") department. According to Plaintiffs complaint, Plaintiffs duties as Director of Finance included ensuring that disbursals from County accounts were in compliance with County policy, generally accepted accounting principles, and applicable

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

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281 Fed.Appx, 868,2008 WL 2350947 (CAll (Ga.» (Not Selected for publication in the Federal Reporter)


law .. Plaintiff claims he was demoted shortly after he challenged the propriety under County law of a $40,000 loan made to newly hired County Manager Linda Angus (provided for in her employment contract) and challenged also the accounting treatment of a monthly disbursal to Angus of $500 .. 00. About the latter, Plaintiff argued that the disbursals should be characterized as salary and made subject to withholding tax unless Angus submitted receipts documenting actual expenses. Plaintiff also took issue with Angus's submission of meal reimbursement vouchers; Plaintiff contended these meals were not reimbursable under County policy. Plaintiff objected directly to Angus; he took his concerns also to a County staff attorney, other employees in the finance department, and the County Commissioner.

Two months after the start of Angus's employment, Angus transferred Plaintiff to the position of Finance Officer for SPLOST. Plaintiff characterizes this transfer as a demotion without cause. As SPLOST Finance Officer, Petitioner voiced objections to the use of funds outside the budgeting process approved by the Board of Commissioners. Petitioner was scheduled to present his concerns at a public meeting of the Board of Commissioners; he was removed from the meeting *870 agenda, Petitioner's continued efforts to get this matter redressed were defeated when Angus informed Petitioner that his job had been "eliminated."

Plaintiff filed this section 1983 complaint alleging that his transfer to SPLOST and later termination without cause were done in retaliation for Plaintiff speaking out about matters of public concern, including illegal, unethical and inappropriate transactions involving County monies.FN1 The district court concluded that no First Amendment protection applied ..

FNI. Plaintiff also asserted state constitutional claims .. The district court declined to accept supplemental jurisdiction over these state claims; the state claims were dismissed without prejudice,

To establish a claim of retaliation for protected speech under the First Amendment, a public employee must show, among other things, that the employee spoke as a citizen addressing a matter of public concern. See

Gareetti v. Ceballos. 547 U.S. 410, 126 S.Ct. 1951, 1958, 164 L.Ed.2d 689 (2006), A government employee whose speech is made pursuant to official responsibilities enjoys no First Amendment protection upon which a retaliation claim may be founded. See Gareetii. 126 S.Ct. at 1960 ("when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."); see also Battle v. Board of Regents for the State of Georgia. 468 F.3d 755, 760 (11 th Cir.2006). And whether the subject speech was made by the public employee speaking as a citizen or as part of the employee's job responsibilities is a question of law that the court decides. See Morris v. Crow. 117 F.3d 449,455 (11th Cir.1997).

**2 Plaintiffs complaint described his job duties as Director of Finance to include responsibility "for ensuring that disbursals from County accounts were in compliance with County policy, generally accepted accounting principles, and applicable law." And in deposition testimony, Plaintiff explained why he continued to raise his concerns about Angus's financial transactions with the County:

It is my job to make sure that the books are accurate, credible, so that when we publish financial statements, they are credible and that the public believes and it's properly reported to.

Plaintiff averred further:

I have an obligation, a stewardship function in the nature of the job. I have an obligation as a CPA, as a finance director, as a professional, to make sure the transactions are classified properly so the records are accurate so they maintain the credibility in the public's eye.

The speech for which Plaintiff claims he suffered retaliation-complaints about the disbursement of County funds to Angus and the accounting treatment of those funds-falls within the umbrella of responsibilities Plaintiff identified as his job duties as Director of Finance. And these complaints were made in the context of his employment; we recognize that Plaintiff spoke at times outside his usual chain of command .. In the light of Plaintiffs own statements about his job

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281 Fed .. Appx. 868,2008 WL 2350947 (GAll (Ga.» (Not Selected for publication in the Federal Reporter)


duties, together with the context in which Plaintiff sought redress of the irregularities of which he complained, we believe the district court concluded correctly that Plaintiff was speaking in his capacity as an employee pursuant to his official duties"

So too Plaintiffs complaints about the failure to amend the budget before reallocating and spending SPLOST funds fell within Plaintiffs responsibilities as SPLOST finance manager" Again, the district*871 COUlt concluded correctly that Plaintiff had a job duty to report improprieties to the Board, even if the discovery of such improprieties was no part of the everyday job functions of the position. See Battle. 468 F.3d at 762 n. 6 ..

Plaintiff seeks to impose a broad exception for high-level accountants from the constitutional analysis set out in Garcetti and its progeny. According to Plaintiff, a high-level accountant answers to an higher authority than his nominal supervisor: the public. But the Supreme Court recognized that a powerful network of legislative enactments are available to those who seek to expose wrongdoing; other checks exist on supervisors who might order unlawful or inappropriate acts .. Garcetti. 126 S.Ct. at 1962. We see no basis for excepting accountants from the GarcettiBattle analysis. Indeed, the Supreme COUlt rejected expressly in Garcetti "the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional responsibilities." 126 S.Ct. at 1962 ..

Because we conclude that Plaintiffs speech was speech as an employee performing his job, his allegation of unconstitutional retaliation must fail. FN2

against because of1115 blogging activity.

FN2. In his reply appellate brief, Plaintiff waived his claim that he was retaliated

**3 AFFIRMED.

C.A.ll (Ga.),2008.

Schuster v. Henry County, Ga

281 Fed.Appx. 868, 2008 WL 2350947 (GA 11 (Ga .. »

END OF DOCUMENT

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