Bartley v. Taylor

• Decision Date: 11 June 2014
• Docket Number: Civil Action No. 4:11–CV–1458.
• Citation: 25 F.Supp.3d 521
• Parties: Todd BARTLEY, Plaintiff, v. Sharon TAYLOR, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

25 F.Supp.3d 521

Todd BARTLEY, Plaintiff

v.Sharon TAYLOR, Defendant.

Civil Action No. 4:11–CV–1458.

United States District Court, M.D. Pennsylvania.

Signed June 11, 2014.

Michael Zicolello, Schemery & Zicolello, Williamsport, PA, for Plaintiff.

Michael L. Harvey, Office of Attorney General, Harrisburg, PA, for Defendant.

MEMORANDUM

MATTHEW W. BRANN, District Judge.

I. BACKGROUND:

As life imitates art¹ , so too may life imitate sport. Here, the parties are wrestling over competing interests in the First Amendment to the United States Constitution; namely, Plaintiff's right to free speech against Defendant's right to petition the government for redress of grievances (inter alia ). For the reasons that follow, the Court holds that there is no adverse impact on Plaintiff's right to free speech. Accordingly, Defendant's motion for summary judgment will be granted and this case will be dismissed.

On August 8, 2011, Plaintiff, Todd Bartley (hereinafter “Bartley”), kicked-off (to use the sports lexicon, which the court will employ in this opinion as sports lexicon is part of both Bartley's and Taylor's wheelhouse) the instant action by filing a complaint against Defendant, Sharon Taylor (hereinafter “Taylor”), in the United States District Court for the Middle District of Pennsylvania. ECF No. 1.

Bartley is a sports reporter for, and the general manager of, ESPN 1050, a radio station in Williamsport, Pennsylvania. Bartley has reported on the performance of Taylor, the (at the time of the events in question) Athletic Director for Lock Haven University (hereinafter “LHU”), in Lock Haven, Pennsylvania. In the complaint, Bartley alleges that Taylor engaged in a course of conduct to retaliate against Bartley for his critical reporting of Taylor's job performance. Specifically, Bartley alleges that Taylor retaliated against him by

refusing Plaintiff opportunities to broadcast Lock Haven University sports, the filing of a frivolous lawsuit against Plaintiff, contacting individuals at ESPN headquarters in Bristol, Connecticut, in an effort to silence Plaintiff and harm his career; directing her staff not to communicate with Plaintiff; attempting to circumvent Pennsylvania's Right to Know Act by directing her staff to communicate via handwritten or type-written notes rather than emails; attempting to charge broadcast fees for NCAA events when she had no authority to do so; denying Plaintiff a meaningful opportunity to respond to a request for proposal to broadcast Lock Haven University sporting events in violation of state rules and regulations; not selecting ESPN 1050 Williamsport to broadcast Lock Haven University sports despite the fact that it offered the best and highest value; and preventing Plaintiff from establishing an internship program at Lock Haven University.

ECF No. 1 at 2–3.

The complaint alleges four counts, Count I, First Amendment retaliation in violation of 42 U.S.C. § 1983 ; Count II, Wrongful Use of Civil Proceedings; Count III, Injurious Falsehood–Disparagement; Count IV, Defamation. Before discovery was conducted, Defendant filed a partial motion for summary judgment which was decided by (former Chief) Judge Yvette Kane, to whom this matter was previously assigned. Judge Kane dismissed the three state law claims because these counts were barred by the doctrine of sovereign immunity. Judge Kane did not dismiss Count I, stating that genuine issues of material fact preclude the Court from determining if the first count should be dismissed.²

The parties then engaged in discovery, during which time the case was reassigned to the undersigned. On August 20, 2013, Defendant filed a motion for summary judgment which has been fully briefed and is now ripe for disposition. ECF No. 36.

Today this Court holds that as a matter of law that there was no adverse impact on Plaintiff's First Amendment right to speech, and accordingly, defendant's motion for summary judgment will be granted and final judgment entered in favor of defendant and against plaintiff.³

II. DISCUSSION:

A. Undisputed Facts

Viewing the facts in the light most favorable to the non-moving party, Bartley, the facts, in chronological summary, are as follows.

Bartley is the general manager and lead investigative sports reporter for ESPN 1050, a radio station in Williamsport, Pennsylvania. ESPN 1050 is owned by the Colonial Radio Group of Williamsport. Bartley operates, but does not own, ESPN 1050. ESPN 1050 has an affiliation agreement with ESPN headquartered in Bristol, Connecticut. ESPN 1050 pays ESPN for the affiliation. The agreement between ESPN and ESPN 1050 “spells out what programming ESPN will provide ESPN Williamsport and what ESPN Williamsport's obligation is to clear that programming. That's as far as the agreement goes.” ECF No. 37 at 2 ¶ 5.

Taylor served as the Athletic Director of Lock Haven University in Lock Haven, Pennsylvania, between the years 1988 and 2012.

On May 12, 2009, Bartley emailed Troy M. Miller, who, according to Bartley's statement of facts, was employed by the LHU Foundation as director of Athletics Development. ECF No. 48 at 2, ¶ 10. Bartley emailed Miller to offer to carry the feed of a broadcast of softball regional championships. Miller referred Bartley to Taylor. Taylor responded to Bartley's email with an email that stated “the position we have taken in athletics is that there should be a fee for our product.” Bartley then emailed someone at the National Collegiate Athletics Association (“NCAA”) who responded that the rights to the sporting event are the sole property of the NCAA and LHU may not charge a broadcasting fee.

In June 2009, another LHU employee called Taylor to advise her that a broadcaster on a sports program titled The Locker Room was “bashing” LHU athletics. ECF No. 37 at 7, ¶ 29. Taylor listened to a “link to the program” (the court presumes that this refers to an audio recording of a previously aired program). ECF No. 37 at 7, ¶ 30. This was the first time Taylor had heard Bartley's broadcast. There was no guest on the program; only Bartley spoke. Taylor believed the statements Bartley made were both negative and incorrect. During the show, Bartley discussed an organization called Preserve the Legacy of Wrestling (hereinafter “PLOW”), which has also been critical of LHU athletics and Taylor.

Shortly after Taylor listened to the aforementioned broadcast, Bartley submitted a ‘right to know’ request for Taylor's emails. Spurred by the right to know request, Taylor emailed her staff. In that email, she stated that Bartley “has been working closely with the PLOW group that has set out to have [ ] me removed from the athletics department.” She further wrote, “Therefore if there is anything that you need to send to me or give to me that you do not want to have edited and used in some negative or twisted way on the local ESPN radio or web, DO NOT SENT IT TO ME ON THE COMPUTER OR VIA EMAIL.” ECF No. 37 at 8, ¶¶ 34 and 36 (emphasis in original). Bartley ultimately was supplied with this email.

On June 9, 2009, Taylor, along with another LHU employee, listened to another broadcast by Bartley. Bartley reviewed the aforementioned email written by Taylor. According to an admitted statement of fact,

Bartley backs the statements which Taylor stated were in PLOW's power point presentation, including that there was a problem with accountability, that Lock Haven had the second highest paid athletic department staff which was not producing results, that athletic program deficiencies needed to be corrected, that fund-raising drops could be directly attributed to the lack of leadership, and that people were increasingly disappointed in the athletic records.

ECF No. 37 at 9, ¶ 40. In that same broadcast, Bartley stated,

This lady of 22 years has systematically in her position, and again, if her name was Max Taylor, this guy has chased off anybody that even whispers a decenting [sic] opinion to make LHU athletics better. You know, I remember somebody my grandparents told me about that you watch on the History channel that used to do that and they called it the Allies and the allies had to go in and push this gentleman back. That's the kind of mentality you're dealing with right now. Someone needs to go in and push this lady back and say enough is enough. We've had enough.

ECF No. 37 at 10 ¶ 41. In several of Bartley's shows he suggested that Taylor should be fired. On June 15, 2009, Bartley sent an email to the Lock Haven Council of Trustees that included critical remarks about Taylor.

On June 20, 2009, Taylor saw Carol Stiff, a senior director for programming and acquisitions from ESPN headquarters in Bristol Connecticut, at a dinner event. Taylor discussed ESPN Williamsport with Stiff. Taylor then emailed Stiff on June 23 and 27, 2009 with complaints about Bartley. Stiff called Taylor and advised Taylor that Bartley was not related to ESPN.

Taylor's complaints to Stiff about Bartley had no effect on Bartley. Stiff never contacted Bartley. In fact, “[n]o one has ever called Bartley and told him that his agreement with ESPN was in jeopardy.” ECF No. 37 at 11, ¶ 48.

Additionally, on July 12, 2009, PLOW published a pamphlet about LHU which included statements about Taylor that she believed to be false.

In the summer of 2009, William Hanelly, the Vice President for Finance and Administration, along with Becky Proctor, the Director of Procurement, worked together to develop a business plan for radio coverage. At some point in 2009, Bartley solicited LHU to offer ESPN 1050's services to broadcast LHU's sporting events. Hanelly, with Taylor's input decided not to accept Bartley's offer. On July 30, 2009 Hanelly sent a letter to Bartley to inform him that LHU “decided not to move forward at that point,” adding “[w]e may review broadcasting alternatives in the future and solicit proposals at that time. We will certainly be in touch with you in that case.” ECF No. 37 at 6, ¶ 25. Hanelly testified that the unfavorable opinions broadcast on ESPN 1050 were not...