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McGreevy v. Stroup

June 28, 2005

LINDA MCGREEVY, APPELLANT
v.
ROGER STROUP, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS PRINCIPAL OF BERMUDIAN SPRINGS ELEMENTARY SCHOOL; KATHLEEN TSOSIE, INDIVIDUALLY AND IN HER CAPACITY AS ASSISTANT PRINCIPAL OF BERMUDIAN SPRINGS ELEMENTARY SCHOOL DISTRICT; GERALD SOLTIS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF BERMUDIAN SPRINGS SCHOOL DISTRICT; BERMUDIAN SPRINGS SCHOOL DISTRICT



On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. No. 01-cv-01461). District Judge: Honorable Sylvia H. Rambo.

The opinion of the court was delivered by: Sloviter, Circuit Judge.

PRECEDENTIAL

Argued: October 4, 2004

Before: SLOVITER, BECKER, and STAPLETON, Circuit Judges.

OPINION

Linda McGreevy, a school nurse, filed this civil rights action under 42 U.S.C. § 1983, against defendants: the Bermudian Springs School District (the "District"); Gerald Soltis, the District's superintendent; Roger Stroup, principal of the Bermudian Springs Elementary School; and Kathleen Tsosie, the assistant principal of the Bermudian Springs Elementary School, claiming that defendants violated her First Amendment rights by giving her a grossly unsatisfactory employment rating in retaliation for her advocacy on behalf of two disabled students and her reports to state authorities regarding perceived violations of state requirements.

The United States District Court for the Middle District of Pennsylvania granted defendants' motions for summary judgment on all but one issue. During trial, the Court granted defendants' motion for judgment as a matter of law on the remaining issue. McGreevy filed a timely notice of appeal.*fn1

I. Facts

Linda McGreevy was employed as the school nurse at the Bermudian Springs School District Elementary School beginning in 1994. McGreevy is a licensed professional nurse, a pediatric nurse practitioner, and a certified school nurse. She holds a school nurse certificate from Millersville University, a Masters of Education from Penn State University, a certified nurse practitioner degree from the College of Medicine and Dentistry of New Jersey and Rutgers and a Bachelor of Science Nursing Degree from Fairleigh Dickenson University. She is also qualified to be a school principal. Between 1994 and 1999, McGreevy consistently received outstanding employment ratings, scoring 75 or higher out of a possible 80 points. Under the District's categories of ratings, 75-80 is considered "excellent," the highest possible category.

In 1999, McGreevy began to speak out on four issues which the District Court concluded were constitutionally protected speech. She advocated on behalf of the mother of two orthopedically disabled children in order to gain them special assistance; she criticized the School District's employment of an unlicensed individual to conduct pesticide spraying which caused many students and teachers to become ill; she communicated with the Pennsylvania Department of Health regarding her incorrect listing as supervising middle school nurse; and she filed two complaints with the state's Office for Civil Rights, one with respect to the District's handling of the two children and the other regarding her employment rating of 71 for the 1999-2000 school year.

In advocating for the two disabled boys, McGreevy contacted the Bureau of Compliance of the Pennsylvania Department of Education and spoke with Brenda Tantow. The exact content of this conversation is in dispute. According to Tantow, McGreevy told her that the children were in danger of being physically injured, that the District kept two sets of records on the children, and that principal Stroup was gathering information against the boys' mother to release to Children's Services in an effort to have them removed from their home. McGreevy denied making the latter two statements.*fn2 There was a meeting involving McGreevy, Soltis, Stroup and the former assistant superintendent of the District to discuss McGreevy's alleged statements to Tantow. Afterwards, Soltis prepared a memorandum summarizing the meeting, which was placed in McGreevy's personnel file.

Shortly after the conversation with Tantow, McGreevy informed the Pennsylvania Department of Health that unlicensed pesticide spraying had occurred at the school and that, as a result, a number of students and teachers had become ill. McGreevy's information led to an investigation and ultimately the Pennsylvania Department of Agriculture levied a fine on the District. Soon after the spraying incident, McGreevy learned that she was incorrectly listed as the middle school nurse and she so informed the Department of Health.*fn3 As a result, the Pennsylvania Department of the Auditor General, Office of Special Investigations, began an investigation of the School District and eventually ordered withholding of future reimbursements from the Pennsylvania Department of Health for school nurse services. At the end of the 1999-2000 school year McGreevy received a rating of 71, her lowest rating to date.

According to McGreevy, shortly after the Auditor General began his investigation of the School District in December of 2000, the school officials significantly increased their harassment of her. McGreevy states that she was constantly criticized and berated by principal Stroup, assistant principal Tsosie and superintendent Soltis. McGreevy claims that because of this harassment, she suffered such constant and severe migraine headaches that she was compelled to take a twoweek leave and ultimately compelled to resign, which she attempted by letter dated March 20, 2001.

According to the District, McGreevy's March resignation was ineffective and hence not accepted. As a result, the District's counsel sent McGreevy a letter dated May 7, 2001 stating that if she did not return to work by May 14, 2001 she would be deemed to have abandoned her employment, her employment would be terminated and she would be replaced. McGreevy did not return to work and was notified by letter, dated July 17, from the attorney for the School Board that she was deemed to have abandoned her position and the District was determining whether to dismiss her. That letter also warned her about the possible loss of her RN license.

On June 1, 2001, McGreevy received a copy of her official rating of 40 for the 2000-2001 school year. On November 2, 2001, the District informed the Public School Employees Retirement Systems that McGreevy had been terminated as of November 2, 2001. On November 30th, the School Board sent her a written list of reasons for her dismissal and informed her that there would be a hearing to determine if she should be dismissed. It is McGreevy's position that her employment had been terminated the previous spring.

On August 2, 2001, McGreevy filed a complaint under 42 U.S.C. § 1983, alleging violations of her First Amendment rights and unlawful taking of her intellectual property without due process of law. That complaint named as defendants the District and school officials Soltis, Stroup and Tsosie in their official and individual capacities. McGreevy filed a motion to amend her complaint on September 18, 2002, to add, inter alia, state law claims of libel, slander, tortious interference with contract, common law conspiracy, and intentional infliction of emotional distress. The District Court denied McGreevy's motion as to her intentional infliction of emotional distress and § 1983 takings claims, but permitted her to file an amended complaint asserting her § 1983 First Amendment claim, and her state law claims of defamation, tortious interference with contract and common law conspiracy.

Following several pre-trial motions, the District Court issued a summary judgment order on March 26, 2003 dismissing McGreevy's § 1983 claim against the District, stating that there was no "evidence of any policy, practice or custom" of its Board of Directors that violated McGreevy's First Amendment rights. The same order dismissed McGreevy's complaint against all three officials in their individual capacities on the ground that they were entitled to qualified immunity. Finally, the Court dismissed all remaining claims asserted in the amended complaint. The sole remaining issue left for trial was "whether Defendant Soltis, Stroup and Tsosie, acting in their official capacities, retaliated against Plaintiff by giving her a 40 out of 80 on her June of 2001 employment evaluation." App. at 1.

Trial commenced on September 2, 2003. At the close of McGreevy's case, the District Court granted defendants' motion for judgment as a matter of law, stating that "[p]laintiff presented no evidence from which a reasonable jury could conclude that either the District or the school officials in their official capacities had a practice or custom of using these evaluations for [a retaliatory purpose]." App. at 41.

This appeal followed.

II. Discussion

A. Standard of Review

We have plenary review over the District Court's grant of summary judgment and apply the same standard as the District Court. Blair v. Scott Specialty Gases, 283 F.3d 595, 602-03 (3d Cir. 2002). We must view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion and decide "whether there are any genuine issues of material fact such that a reasonable jury could return a verdict for [the non-moving party]." Debeic v. Cabot Corp., 352 F.3d 117, 128 n.3 (3d Cir. 2003) (citing Fed. R. Civ. P. 56(c)). The standard of review for orders granting judgment as a matter of law is also plenary and we likewise apply the same standard as the District Court. "A motion for judgment as a matter of law under Federal Rule 50(a) should be granted only if, viewing the evidence in the light most favorable to the nonmoving party, there ...


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