Zugarek v. Southern Tioga School Dist., 401CV02090.

Citation214 F.Supp.2d 468
Decision Date22 August 2002
Docket NumberNo. 401CV02090.,401CV02090.
PartiesRichard ZUGAREK, and Elaine Zugarek, Plaintiffs v. SOUTHERN TIOGA SCHOOL DISTRICT; Southern Tioga School District, Board of Education; Albert Lindner; Ronald T. Boyanowski; Roxanne S. Landis; Terry B. Osborne; Dennis B. Crumb; Jeffrey A. Rush; Steven C. Whipple; Michael W. Lemasters; William P. Johnston; Martha Bastian; and William Miller, in their Individual and Official Capacities,<SMALL><SUP>1</SUP></SMALL> Defendants
CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania

John R. Fenstermacher, Mark K. Emery, The Law Offices of Mark K. Emery, Harrisburg, PA, for Plaintiffs.

Ellis H. Katz, Sweet, Stevens, Tucker, & Katz, LLP, New Britain, PA, Jason R. Wiley, Sweet, Stevens, Tucker & Katz, LLP, Doylestown, PA, for Defendants.

MEMORANDUM

MCCLURE, District Judge.

BACKGROUND:

On November 5, 2001, plaintiffs Richard Zugarek and Elaine Zugarek, husband and wife, commenced this civil rights action against defendants with the filing of a complaint pursuant to 42 U.S.C. § 1983.2 Plaintiffs' complaint also includes the supplemental state law claims of defamation, intentional infliction of emotional distress, and loss of consortium. Plaintiffs allege that defendants have unfairly subjected plaintiff to a strict evaluation process to which other teachers at the Southern Tioga School District ("the School District") have not been subjected, and that plaintiff has been retaliated against for exercising her First Amendment rights with respect to that process.

On January 2, 2002, defendants moved to dismiss plaintiffs' complaint. That motion was fully briefed by defendants.

On January 4, 2002, plaintiffs filed an amended complaint ("Plaintiffs' Amended Complaint").

By stipulation and order dated January 16, 2002, the court directed that defendants' motion to dismiss filed January 2, 2002 be deemed responsive to Plaintiffs' Amended Complaint filed January 4, 2002 and also be deemed to have been filed on behalf of additional defendants Martha Bastian and William Miller, named in the amended complaint.

On January 22, 2002, plaintiffs filed their brief in opposition to defendants' motion to dismiss.

For the reasons that follow, defendants' motion to dismiss Plaintiffs' Amended Complaint will be granted.

DISCUSSION:

I. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) admits the well-pleaded allegations of the complaint, but denies their legal sufficiency. Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). In reviewing a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations of the complaint and draw all reasonable inferences in the light most favorable to the plaintiff. Bd. of Trs. of Bricklayers & Allied Craftsmen Local 6 of New Jersey v. Wettlin Assoc., Inc., 237 F.3d 270, 272 (3d Cir.2001) (citation omitted). However, a court "need not accept as true unsupported conclusions and unwarranted inferences." Doug Grant, Inc. v. Great Bay Casino Corp., 232 F.3d 173, 184 (3d Cir. 2000) (citations and internal quotation marks omitted).

"The complaint will be deemed to have alleged sufficient facts if it adequately put the defendants on notice of the essential elements of the plaintiff['s] cause of action." Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir.2000). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations." Ramadan v. Chase Manhattan Corp., 229 F.3d 194, 195-96 (3d Cir.2000) (citing Alexander v. Whitman, 114 F.3d 1392, 1398 (3d Cir.1997)). "The issue [under Rule 12(b)(6)] is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir.2000) (citations and internal quotation marks omitted). "In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred." Behm v. Luzerne County Children & Youth Policy Makers, 172 F.Supp.2d 575, 580 (M.D.Pa. 2001) (citing Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993)).

"Confronted with [a 12(b)(6)] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law." Commonwealth of Pennsylvania v. PepsiCo, Inc., 836 F.2d 173, 179 (3d Cir.1988). "[A] complaint should not be dismissed merely because a plaintiff's allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory." Bowers v. Hardwick, 478 U.S. 186, 201-202, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (citations and internal quotation marks omitted). "The defendant bears the burden of showing no claim has been stated." Gould Electronics, Inc. v. United States, 220 F.3d 169, 178 (3d Cir.2000) (citation omitted).

The court looks only to the facts alleged in the complaint and any attachments, without reference to any other parts of the record. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994).

II. STATEMENT OF FACTS

We accept as true the following factual averments in Plaintiffs' Amended Complaint.

Plaintiff Elaine Zugarek has been employed as a teacher with the School District since September 1991. From 1991 to 1999, plaintiff had been periodically observed and evaluated, receiving a satisfactory review each time.

On or about March 30, 1999, despite such satisfactory reviews, plaintiff was allegedly advised by defendant Lindner, Principal of North Penn High School, that the School District Superintendent, defendant Boyanowski, had decided that the School District was going to "get rid of her." Allegedly, plaintiff was advised that, due to Boyanowski's decision, it would be easiest if plaintiff serve out the remainder of the school year and then leave.

Lindner and Boyanowski placed plaintiff on an improvement plan from March to June of 1999. In the fall of 1999, Lindner purportedly stated to several individuals in the school and general public that they "should not worry about [plaintiff,]" as "she will be gone by October" of that year.

Evaluations and the improvement plan continued to be conducted by Lindner and Boyanowski in the fall of 1999. According to plaintiff, those evaluations utilized standards that were not used in evaluating any other teacher.

Allegedly, Lindner received criticism for his improper evaluation of plaintiff, and embarked on a course of conduct to terminate her employment. On or about January 18, 2000, Boyanowski advised plaintiff that she would be receiving a letter from the School District terminating her employment. On January 21, 2000, when plaintiff arrived at North Penn High School, Lindner escorted her to Boyanowski's office, and, at that time, Lindner and Boyanowski advised plaintiff that she was being suspended, without pay, effective immediately.

In the spring of 2000, the Board of Education of the Southern Tioga School District ("the Board") voted unanimously to terminate plaintiff's employment.

Plaintiff appealed the decision of the Board. As part of that appeal, an arbitration was scheduled. Despite the pending arbitration, which was not completed until May of 2001, the School District, in December of 2000, contacted the State Department of Education to have plaintiff's teaching license suspended. In May of 2001, the arbitration was concluded. Plaintiff's termination was overturned and she was reinstated.

Prior to plaintiff's return to the high school in the fall of 2001, the administration purportedly advised teachers not to associate with plaintiff. Further, upon plaintiff's return to the high school, Lindner began weekly evaluations of plaintiff. However, no other teachers were subjected to weekly evaluations. Lindner and Boyanowski required plaintiff to provide specific and detailed plans of everything that she was going to do in a lesson, and further required plaintiff to follow that plan with no deviation. Purportedly, despite being told not to deviate from the plan, Lindner criticized plaintiff for not varying from the plan as needed. Again, no other teachers were placed on an improvement plan or required to follow such procedures. Plaintiffs allege further that prior to commencing the evaluations, defendants threatened to discharge plaintiff.

Defendants have continued to engage in the evaluation of plaintiff through the fall of 2001 up to and including the date of filing of plaintiffs' complaint. Plaintiff alleges that, although permitted under the plan, she has never been advised as to whether she is improving or not. Plaintiff has responded in writing to every evaluation, stating that "she is being treated differently than other teachers and is being singled out by [][d]efendants for disparate treatment and ultimate discharge." The Board, having knowledge of the improvement plan and evaluations of plaintiff, purportedly permitted the actions of the School District to continue.

III. DEFENDANTS' MOTION TO DISMISS

Plaintiffs' Amended Complaint consists of four counts, including claims of a violation of plaintiff's First Amendment rights under 42 U.S.C. § 1983 (Count I), defamation (Count II), intentional infliction of emotional distress (Count III), and loss of consortium (Count IV).

Defendants move to dismiss Plaintiffs' Amended Complaint on the following grounds: (1) that all claims under Count I should be dismissed against all individually named defendants sued in their official capacities; (2) that plaintiff's speech is not a matter of public concern, and, thus, is not protected under the First Amendment; (3) that plaintiff's due process rights were not violated; (4) that Counts II, III, and IV are barred by the political subdivision Tort Claims Act, 42 Pa. Cons.Stat. Ann. § 8541 against the School...

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