Case 1:15-cv-01036-LPS-CJB Document 35 Filed 10/12/16 Page 1 of 28 PageID #: 233
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
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`THOMAS KEETON,
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`Plaintiff,
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`v.
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`BOARD OF EDUCATION OF SUSSEX
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`TECHNICAL SCHOOL DISTRICT,
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`TERRIL. CORDER, in her individual and
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`official capacity as Principal of Sussex
`Technical Adult Division, James H. Groves )
`High School, and DR. MICHAEL OWENS, )
`in his individual and official capacity as
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`Director of Extended Leaming of Sussex
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`Technical Adult Division,
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`Civil Action No. 15-1036-LPS
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`Defendants.
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`REPORT AND RECOMMENDATION
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`In this action filed pursuant to 42 U.S.C. § 1983 ("Section 1983"), Plaintiff Thomas
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`Keeton ("Plaintiff') has sued Defendant Board of Education of the Sussex Technical School
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`District ("Board"), Defendant Terri L. Corder ("Defendant Corder"), individually and in her
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`official capacity, and Defendant Dr. Michael Owens ("Defendant Owens"), individually and in
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`his official capacity (collectively, "Defendants"). Presently pending before the Court is
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`Defendants' "Motion to Dismiss Plaintiffs Second Amended Complaint[,]" filed pursuant to
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`Federal Rule of Civil Procedure 12(b)(6) ("Motion"). (D.I. 30) For the reasons that follow, the
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`Court recommends that Defendant's Motion be GRANTED-IN-PART and DENIED-IN-PART,
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`as is further set out below.
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`I.
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`BACKGROUND
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`A.
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`The Parties
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`Plaintiff is a resident of Maryland. (D.I. 33 at~ 3) Until his termination in 2015, he was
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`a teacher and part-time coordinator for the Sussex Technical Adult Division. (Id. at~~ 3, 22)
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`The Board is a reorganized school board operating under 14 Del. C. § 1043. (Id. at~ 6)
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`It is the governing body of the Sussex Technical School District, a political subdivision. (Id.)
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`Defendant Corder is the Principal of Sussex Technical Adult Division, and she has served in this
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`position at all times relevant to the operative complaint here, which is the Second Amended
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`Complaint ("SAC"). (Id. at~ 4) Defendant Owens is the Director of Extended Leaming of
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`Sussex Technical Adult Division. (Id. at~ 5)
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`B.
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`Factual Background
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`Plaintiff began working as a teacher for the Sussex Technical Adult Division beginning in
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`2003, and he served as a part-time coordinator from 2011 until his the expiration of his contract
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`on June 30, 2015. (D.I. 33 at~~ 3, 22) As a teacher, he provided basic math and English
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`instruction to certain students, which prepared the students for an assessment test. (Id. at ~ 7) As
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`a coordinator, his duties included developing systems to report absences and site activity levels,
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`managing computer technology systems, converting Adult Education documents to PDF forms,
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`preparing said documents for web posting, and developing a teacher evaluation system. (Id. at~
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`8) He carried out several other "general" job duties that are set out in the SAC (e.g., taking
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`photographs at graduation ceremonies, or serving as a substitute technology instructor), but he
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`had no involvement with the selection of books or materials for Sussex Technical School District
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`curricula. (Id. at~~ 9-10) Rather, Kelly Whaley was the school employee "responsible for all
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`the curriculum items which included the selection of books and materials." (Id. at~ 12)
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`During Plaintiffs employment with Sussex Technical School District, Plaintiff alleges
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`2
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`that Defendant Corder regularly made decisions about hiring, firing, and failing to renew
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`contracts of employees; during that time, for example, Defendant Corder fired four school district
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`employees. (Id. at iii! 25, 27) Plaintiff made recommendations to Defendant Corder on personnel
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`matters (such as whether to hire part-time employees), and Defendant Corder "acted on [these
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`personnel decisions] herself, without Board of Education involvement[.]" (Id at if 26)
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`Plaintiff also alleges that for many years, he was aware that Defendant Corder had been
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`copying and/or approving the copying of textbooks, but that Defendant Corder had told him that
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`she had permission to do so. (Id at iii! 14, 17) On May 26, 2015, shortly after becoming aware
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`that Defendant Corder did not, in fact, have permission to copy textbooks, Plaintiff presented to
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`Defendant Corder a list of copyright infringements "totaling almost half a million dollars that
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`Sussex Technical Adult Division had been and was engaging in[.]" (Id. at iii! 13, 16) Plaintiff
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`proceeded to tell Defendant Corder that the illegal copyright infringement she had sanctioned
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`"was wrong, illegal, had to stop, but also had to be rectified so as to make Sussex Technical
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`School District in compliance with the law." (Id. at if 18)
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`Less than three weeks later, on June 12, 2015, Defendant Corder told Defendant Owens
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`about the statements Plaintiff had made. (Id. at if 20) On or about the week of June 22, 2015,
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`Defendant Corder recommended to Defendant Owens that Plaintiff's contract not be renewed.
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`(Id. at if 21) The following week, on June 29, 2015, Defendant Corder called Plaintiff and
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`advised him of the decision not to renew his contract. (Id at if 23) Defendant Corder also sent
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`Plaintiff a letter dated June 29, 2015 stating: '"I will not be able to offer you a part time position
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`within the Adult Division for the summer or the coming school year."' (Id at if 24) Defendant
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`Corder provided no explanation for Plaintiff's termination, or for the failure to renew his
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`3
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`contract, despite Plaintiffs "many years of exemplary service." (Id. at~ 42)
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`C.
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`Procedural Background
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`On November 10, 2015, Plaintiff filed a Complaint in this Court pursuant to Section
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`1983, naming the Board and Defendant Corder as Defendants and alleging retaliation in violation
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`of the Free Speech Clause and Petition Clause of the First Amendment, as well as a violation of
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`the Fourteenth Amendment. (D.I. 1 at~~ 44-54) On December 4, 2015, Defendants filed a
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`motion to dismiss the Complaint. (D.I. 8) That motion was subsequently mooted by Plaintiffs
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`filing of the First Amended Complaint ("FAC") on December 10, 2015. (D.I. 10) The FAC
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`alleged the same First Amendment claims that were set out in the original Complaint, as well as a
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`violation of the implied covenant of good faith and fair dealing under Delaware law; the F AC did
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`not allege a violation of the Fourteenth Amendment. (Id.)
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`. Defendants filed a motion to dismiss the F AC on December 21, 2015. (D .I. 11) On
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`January 29, 2016, Chief Judge Leonard P. Stark referred this case to the Court to hear and resolve
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`all pretrial matters, up to and including the resolution of case-dispositive motions. Briefing was
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`completed on the First Motion to Dismiss soon thereafter, on February 16, 2016. (D.I. 14)
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`On September 27, 2016, Plaintiff filed the SAC, 1 which retains the First Amendment
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`claims but no longer includes the Delaware state law claim alleging a violation of the implied
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`covenant of good faith and fair dealing. (D.I. 27) The SAC also added Defendant Owens as a
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`defendant, alleging that both he and Defendant Corder (together, the "Individual Defendants")
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`took action adverse against Plaintiff in violation of his First Amendment rights. (Id. at~~ 63, 66)
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`An updated version of the SAC, which contained cosmetic revisions, was filed on
`October 6, 2016. (D.I. 33) The Court cites to this document when referring to the SAC in this
`Rerort and Recommendation.
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`4
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`Defendants filed the instant Motion on September 28, 2016, in which they argued that the
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`SAC should be dismissed "for the [same] reasons" that they had sought dismissal of the F AC.
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`(D.I. 30 at 2-4) Defendants and Plaintiff filed short supplemental briefs regarding the instant
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`Motion, in which they included a small amount of additional argument. (D.I. 30; D.I. 32)
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`Moreover, because of the substantial similarities between the PAC and the SAC (and the
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`similarities between Defendants' arguments seeking dismissal of those respective complaints),
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`Defendants and Plaintiff both requested that the Court, in deciding the instant Motion, also take
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`into account the content of their briefing regarding Defendants' motion to dismiss the F AC. (D .I.
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`30 at 2; D.I. 32 at 1)2
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`II.
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`STANDARD OF REVIEW
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`Pursuant to Rule 12(b)(6), a party may move to dismiss the plaintiffs complaint based on
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`the failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The
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`sufficiency of pleadings for non-fraud cases is governed by Federal Rule of Civil Procedure 8,
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`which requires "a short and plain statement of the claim showing that the pleader is entitled to
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`relief1.]" Fed. R. Civ. P. 8(a)(2).
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`When presented with a Rule 12(b)(6) motion to dismiss for failure to state a claim, a
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`court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
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`2009). First, the court separates the factual and legal elements of a claim, accepting "all of the
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`complaint's well-pleaded facts as true, but [disregarding] any legal conclusions." Id. at 210-11.
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`Second, the court determines "whether the facts alleged in the complaint are sufficient to show
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`2
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`For this reason, in providing its decision below, the Court will largely cite to the
`briefing regarding Defendants' motion to dismiss the F AC.
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`5
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`that the plaintiff has a 'plausible claim for relief."' Id. at 211 (quoting Ashcroft v. Iqbal, 556
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`U.S. 662, 679 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content
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`that allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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`556 (2007)). In assessing the plausibility of a claim, the court must '"accept all factual
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`allegations as true, construe the complaint in the light most favorable to the plaintiff, and
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`determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
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`to relief.'" Fowler, 578 F.3d at 210 (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d
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`Cir. 2008)).
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`III. DISCUSSION
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`In support of the instant Motion, Defendants argue that Plaintiffs First Amendment
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`retaliation claims should be dismissed because he did not engage in protected speech. (D.I. 12 at
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`6-10; D.I. 14 at 2-3) In addition, Defendants claim that neither the Board nor the Individual
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`Defendants in their official capacities can be liable under Section 1983, as the Individual
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`Defendants' alleged actions were not pursuant to official municipal policy, custom, or practice,
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`and they were not ratified by the Board. (D.I. 12 at 4-6; D.I. 14 at 2; D.I. 30 at 2-3) Furthermore,
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`Defendants argue that Plaintiffs claims against Defendant Corder and Defendant Owens in their
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`individual capacities must be dismissed under the doctrine of qualified immunity. (D.I. 12 at 11-
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`12; D.I. 14 at 4; D.I. 30 at 3-4) Finally, Defendants assert that Plaintiff has not overcome the
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`burden necessary to recover punitive damages against Defendant Corder in her individual
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`capacity. (D.I. 12 at 3-4; D.I. 14 at 1-2) The Court will address each of these issues in turn.
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`A.
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`First Amendment Retaliation Claims
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`6
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`Count I of the SAC alleges that Defendants "took action adverse to plaintiff as a direct
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`and proximate result of and in retaliation for plaintiffs First Amendment protected speech on
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`matters of public concern." (D.I. 33 at if 63) Count II alleges that the adverse action also
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`constituted "retaliation for his exercise of [his] First Amendment right to petition the government
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`for redress of grievances." (Id. at if 66) The Court will address the Free Speech Clause and
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`Petition Clause claims together, as the analysis for both claims is identical. See Morgan v.
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`Covington Twp., 563 F. App'x 896, 900 (3d Cir. 2014). In that regard, analysis of a public
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`employee's claims of First Amendment retaliation follows a three-step test:
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`First, the employee must show that the activity is in fact
`protected. . . . Second, the employee must show that the protected
`activity was a substantial factor in the alleged retaliatory action ....
`Third, the employer may defeat the employee's claim by
`demonstrating that the same adverse action would have taken place
`in the absence of the protected conduct.
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`Hill v. City of Scranton, 411F.3d118, 125 (3d Cir. 2005) (internal quotation marks and citations
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`omitted).
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`"The threshold requirement is that the plaintiff identify the protected activity that
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`allegedly spurred the retaliation." Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir.
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`2004). Here, the SAC clearly asserts that Plaintiffs informing Defendant Corder of the allegedly
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`illegal copyright infringement, and Plaintiffs urging that such activity must stop arid be rectified,
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`amounts to the First Amendment-protected activity at issue. (See, e.g., D.I. 33 at iii! 18, 39) The
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`Court will thus go- on to analyze Plaintiffs allegations pursuant to the three-part test set out
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`above.
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`1.
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`Whether Plaintiff's Speech Was Protected
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`7
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`Whether Plaintiffs speech is protected by the First Amendment is a question of law. See,
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`e.g., Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 466 (3d Cir. 2015). The United States
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`Court of Appeals for the Third Circuit, citing to the Supreme Court of the United States' decision
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`·in Garcetti v. Ceballos, 547 U.S. 410 (2006), has explained that a public employee's statement is
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`protected by the First Amendment when: "(1) in making it, the employee spoke as a citizen, (2)
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`the statement involved a matter of public concern, and (3) the government employer did not have
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`'an adequate justification for treating the employee differently from any other member of the
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`general public' as a result of the statement he made." Hill v. Borough of Kutztown, 455 F.3d
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`225, 241-42 (3d Cir. 2006) (quoting Garcetti, 547 U.S. at 418).
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`Here, Defendants challenge (1) whether Plaintiff has adequately alleged that he spoke as a
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`citizen when making the complaints at issue; and (2) whether Plaintiff has adequately pleaded
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`that his statements involved a matter of public concern. The Court will take up these challenges
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`in order.
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`a.
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`Speaking as a citizen
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`In Garcetti, a 2006 decision, the Supreme Court provided important guidance in helping
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`lower courts determine whether a public employee speaks at a citizen. The Garcetti Court
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`explained that "[w]hen public employees make statements pursuant to their official duties, the
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`employees are not speaking as citizens for First Amendment purposes, and the Constitution does
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`not insulate their communications from employer discipline." Garcetti, 547 U.S. at 421.
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`In a series of cases thereafter, the Third Circuit considered whether a public employee's
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`complaints to a supervisor amounted to citizen speech protected by the First Amendment. In
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`those cases, the Third Circuit consistently held that "complaints up the chain of command about
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`8
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`issues related to an employee's workplace duties-for example, possible safety issues or
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`misconduct by other employees-are within an employee's official duties." Morris v.
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`Philadelphia Haus. Auth., 487 F. App'x 37, 39 (3d Cir. 2012) (citing Foraker v. Chaffinch, 501
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`F.3d 231, 240 (3d Cir. 2007), abrogated on other grounds by Borough of Duryea v. Guarnieri,
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`564 U.S. 379 (2011); Borough of Kutztown, 455 F.3d at 242). A closer look at those cases shows
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`that they drew a fairly clear line about what type of public employee "complaints up the chain of
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`command" were protected by the First Amendment, and what were not.
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`In Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006), for example, the plaintiff
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`was a former borough manager who brought, inter alia, Section 1983 claims for retaliation in
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`violation of the First Amendment against the borough and the former mayor of the borough. 455
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`F.3d at 230-33. In his complaint, the plaintiff alleged that he had received complaints from
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`borough employees about the mayor's harassing actions, and that he had reported those
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`complaints (as well as his own complaints on the same score) to the Borough Council. Id. at
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`242. The Third Circuit, however, found that the plaintiff was not speaking as a citizen when he
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`reported these complaints. Id. 3 But crucially, in Borough of Kutztown, the plaintiff himself (both
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`in his complaint and in his briefing) described how his reporting of these complaints was "part of
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`his duties as [borough] Manager" and said that he advanced the complaints "in fulfillment of his
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`responsibilities as manager and appointed enforcer of the Borough's Affirmative Action/Equal
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`Employment Opportunity Policy and Program." Id. (internal quotation marks, citations and
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`3
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`As to other aspects of the plaintiffs speech-which included "advocating and
`supporting ideas, principles, and projects that [the mayor] disfavored," the Third Circuit reversed
`the district court's dismissal and remanded, finding that it could not conclude from the record
`that the speech was unprotected. Borough of Kutztown, 455 F.3d at 242-243, 248.
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`9
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`emphasis omitted).
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`The Third Circuit again examined the question of citizen speech in Foraker v. Chaffinch,
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`501 F.3d 231 (3d Cir. 2007), a case involving three former Delaware State Troopers who had
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`served as instructors in the Delaware State Police ("DSP") Firearms Training Unit. 501 F.3d at
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`233. The three troopers were concerned about health and safety issues at the in~oor firing range
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`where they were assigned to work. Id. The troopers later spoke out about these issues by
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`sending "a number of e-mails regarding the deteriorating conditions at the range to [their]
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`superiors," as well as making similar reports to a State Auditor following the closing of the
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`range; the troopers' attorney later read their statements verbatim to a local newspaper. Id.
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`Because the troopers were not permitted to speak to the newspaper without prior approval by
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`their superiors, the DSP brought a disciplinary action against them. Id. at 234. This, in turn,
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`prompted the troopers' suit, in which they alleged that they were victims of retaliation for their
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`protected speech about the hazardous conditions at the FTU. Id. at 233, 238.
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`The Third Circuit ultimately found that the Foraker plaintiffs "were speaking pursuant to
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`their employment duties when they made their concerns known through the chain of command
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`and when they spoke with the State Auditor[,]" such that their First Amendment claims were
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`foreclosed. Id. at 247. The Foraker Court's decision, however, was motivated by its findings
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`that: (1) "[r]eporting problems at the firing range was among the tasks that [the troopers] were
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`paid to perform[,]" (2) the troopers' positions "required them to report up the chain of command"
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`and (3) that "their positions as instructors who regularly used and performed light maintenance
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`on the equipment at the range on a daily basis put any environmental concerns there within the
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`scope of their routine operations." Id. at 241-42. And though giving statements to the State
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`10
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`Auditor was not part of the troopers' everyday job duties, those statements were prompted by the
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`troopers' prior job-related complaints; thus, "[b]ecause the speech that motivated the order [to
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`speak with the State Auditor] was within their job duties, the responsibility to respond to the
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`subsequent order [to speak to the Auditor] was also within the scope of their duties." Id. at 243;
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`see also Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 988 (3d Cir. 2014)
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`(distinguishing the statements by the Foraker plaintiffs as those "made within their official
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`duties[,] since they were obligated to report that type of information up the chain of command")
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`(emphasis added).
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`Lastly, in Morris v. Philadelphia Housing Authority, 487 F. App'x 37 (3d Cir. 2012), the
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`plaintiff was the Executive Assistant to the Executive Director of the Philadelphia Housing
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`Authority ("PHA"). 487 F. App'x at 38. "His duties included the supervision and oversight of
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`various troubled departments at PHA[.]" Id. (internal quotation marks and citation omitted).
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`The plaintiff was eventually demoted and his pay was cut after he resisted participation in
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`lobbying activities on behalf of PHA, objected to a lawsuit that PHA filed, raised concerns about
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`the governance of a non-profit organization affiliated with PHA, and claimed that PHA
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`authorities were embezzling money from the nonprofit. Id. He then proceeded to file a Section
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`1983 action against PHA, the nonprofit, and his supervisors and colleagues, alleging retaliation
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`against him for protected speech. Id. However, the Third Circuit ultimately categorized the
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`plaintiffs complaints as being made "up the chain of command" and being "about issues related
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`to [his] workplace duties[,]" such that they were not protected under the First Amendment. Id. at
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`39. Important to this conclusion was the fact that the plaintiff "acknowledged that his job duties
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`included the supervision and oversight of various troubled departments at PHA[,]" such as "the
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`11
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`oversight of [the non-profit], and rooting out of financial, as well as other, problems at PHA." ·
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`Id. at 40 (internal quotation marks and citations omitted). Therefore, since the plaintiff
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`"complained to his superiors within PHA about matters arising in the scope of his employment
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`duties, his speech did not have a 'relevant analogue to speech by citizens who are not
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`government employees."' Id at 40 (quoting Garcetti, 547 U.S. at 424).
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`Thus, in cases like Borough of Kutztown, Foraker and Morris, when determining that the
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`speech at issue did not amount to a plaintiff speaking ''as a citizen," it was important not only
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`that the complaints of misconduct were made up the chain of command to the plaintiffs'
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`supervisor, but also that responsibility for communicating the speech at issue was itself a part of
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`the plaintiffs' typical workplace duties. In that type of scenario, the speech is said to deal with
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`"management disputes between the government and its employees" and not with constitutionally
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`protected conduct. Morris, 487 F. App'x at 40.4
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`4
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`Other cases from this Circuit, in which a court has found a plaintiff to have been
`speaking as a citizen, drew the same distinctions as did the courts in Borough of Kutztown,
`Foraker and Morris. Representative is the Third Circuit's decision in DeLuzio v. Monroe
`County, 271 F. App'x 193 (3d Cir. 2008). There, the plaintiff alleged that the defendant agency
`failed to promote him and then terminated him in retaliation for sending numerous memos to his
`superiors; these memos criticized the agency's provision of services and its internal policies and
`procedures. DeLuzio, 271 F. App'x at 194-95. The Third Circuit, in resolving cross appeals
`after a trial, found that "[plaintiff] DeLuzio's speech was protected by the First Amendment." Id
`at 196. The fact that the plaintiffs critical speech was directed to his immediate superiors was
`not dispositive, in that DeLuzio was complaining about matters of public concern that the
`"supervisors felt were not within [his] purview"-issues DeLuzio, in light of his status at the
`agency, was "without power to change[.]" Id. District courts within the Circuit have routinely
`come to similar conclusions as well. See, e.g. McAndrew v. Bucks Cty. Ed of Com 'rs,-982 F.
`Supp. 2d 491, 498, 500 (E.D. Pa. 2013) (noting that "as for internal reporting, speech is not
`unprotected merely because the employee complains internally through an official 'chain of
`command[,]'" and finding a deputy sheriff's reporting of fraud and misconduct in his workplace
`to implicate the First Amendment, because the "reporting of corruption and wrongdoing does not
`appear to fall within the ambit of the responsibilities of a deputy sheriff'); Sexton v. Cty. of York,
`Pa., No. 1:12-CV-00402, 2012 WL 2192250, at *4-5 (M.D. Pa. June 14, 2012) (denying a
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`12
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`In 2014, in Lane v. Franks, 134 S. Ct. 2369 (2014), the Supreme Court again weighed in
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`on this issue-in a manner that (1) jibed with the Third Circuit's analysis in the cases set out
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`above and (2) further made clear what does (and does not) count as citizen speech. The Lane
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`Court clarified that "the mere fact that a citizen's speech concerns information acquired by virtue
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`of his public employment does not transform that speech into employee-rather than
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`citizen-speech." Lane, 134 S. Ct. at 2379. Rather, it explained that the "critical question under
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`Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's
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`duties, not whether it merely concerns those duties." Id. (emphasis added); see also Flora v. Cty.
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`of Luzerne, 776 F.3d 169, 178 (3d Cir. 2015); Dougherty, 772 F.3d at 988-89.
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`In this case, to be sure, Plaintiff registered his complaints about alleged copyright
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`violations up the "chain of command"-he complained to the alleged perpetrator, his supervisor,
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`Defendant Corder. (D.I. 33 at iii! 13, 18) But the SAC specifically alleges that Plaintiffs routine
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`job responsibilities did not involve communicating such complaints. (Id. at ifif 7-10). Indeed, the
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`SAC sets out what Plaintiffs job duties were in some detail, and there is no indication that
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`investigating and reporting on unlawful copyright infringement (or, even more generally,
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`communicating to superiors about textbook selection or acquisition) fell within those duties. (Id.
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`at iii! 10, 12 (Plaintiff noting in the Complaint that he had "no involvement with the selection of
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`books and materials" and naming the employee who was responsible for that subject matter))
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`defendant's motion to dismiss, due to the court's disagreement with the defendant's theory that
`simply because plaintiffs complaints about inappropriate conduct at a county shelter were made
`"up the chain of command[,]" they must be unprotected speech).
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`13
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`Case 1:15-cv-01036-LPS-CJB Document 35 Filed 10/12/16 Page 14 of 28 PageID #: 246
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`While the issue of whether speech is protected is ultimately a question oflaw, "whether a
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`particular incident of speech is made within a particular plaintiff's job duties is a mixed question
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`of fact and law." Foraker, 501 F.3d at 240. Here, Plaintiff has alleged (with sufficient factual
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`support) that his speech did not relate to and was not required by his job duties. The Court must
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`accept all of this as true at the pleading stage. Therefore, construing the SAC in the light most
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`favorable to the Plaintiff, Plaintiff has sufficiently alleged that he was speaking as a citizen when
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`he made the statements at issue.
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`b.
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`Matter of public concern
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`The question of whether speech is on a matter of public concern is a question oflaw. See,
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`e.g., Brennan v. Norton, 350 F.3d 399, 413 (3d Cir. 2003) (citing Baldassare v. State of NJ., 250
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`F.3d 188, 195 (3d Cir. 2001)). Speech involves a matter of public concern when it can "be fairly
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`considered as relating to any matter of political, social, or other concern to the community[.]"
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`Connick v. Myers, 461 U.S. 138, 146 (1983). "Whether an employee's speech addresses a matter
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`of public concern must be determined by the content, form, and context of a given statement, as
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`revealed by the whole record." Id. at 147-48.
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`Here, the content of Plaintiff's speech, as it is described in the SAC, involves a matter of
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`public concern. Courts have explained that the "content of the speech may involve a matter of
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`public concern if it attempts 'to bring to light actual or potential wrongdoing or breach of public
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`trust on the part of government officials."' Baldassare, 250 F .3d at 195 (quoting Holder v. City
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`of Allentown, 987 F.2d 188, 195 (3d Cir. 1993)); cf Lane, 134 S. Ct. at 2380 ("The content of
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`Lane's testimony-corruption in a public program and misuse of state funds-obviously
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`involves a matter of significant public concern."). This is an accurate characterization of
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`Case 1:15-cv-01036-LPS-CJB Document 35 Filed 10/12/16 Page 15 of 28 PageID #: 247
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`Plaintiffs speech in the case at hand. Plaintiff asserts that he spoke out about having uncovered
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`alleged copyright violations "totaling almost a half a million dollars" on the part of a government
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`official, Defendant Corder; he then challenged Defendant Corder to stop the alleged wrongdoing
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`and to rectify it, so that the school district would be legally compliant and would not face
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`financial or criminal ramifications. (D.I. 33 at ifif 13, 18; see also D.I. 13 at 10)5
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`In arguing to the contrary-that Plaintiffs speech does not involve a matter of public
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`concern-Defendants rely heavily on Mella v. Mapleton Public Schools, 152 F. App'x 717 (10th
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`Cir. 2005), a decision from the United States Court of Appeals for the Tenth Circuit. (See D.I.
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`12 at 6-8; D.I. 14 at 3) In Mella, a computer specialist employed by the defendant school district
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`filed suit after the district failed to promote her. 152 F. App'x at 718-20. She claimed that the
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`decision was in retaliation for her prior actions, wherein she expressed concern to her supervisor
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`about the possible consequences of disabling a security software program (the "Fortres
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`software"). Id. at 721. One of the consequences plaintiff had identified was that if the software
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`was disabled, this could allow teachers to load personal software onto their computers in
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`violation of copyright laws; that, in turn, might cause the school district to incur significant future
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`5
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`Nor do Plaintiffs statements lose their status as those involving a matter of public
`concern due to the fact that they were communicated internally. See Givhan v. Western Line
`Consol. Sch Dist., 439 U.S. 410, 415-16 (1979) ("Neither the [First] Amendment itself nor our
`decisions indicate that [the] freedom [of speech] is lost to the public employee who arranges to
`communicate privately with his employer rather than to spread his views before the public.");
`Baldassare, 250 F.3d at 196-97 (finding that the "internal character" of the plaintiffs conduct
`was "not necessarily significant, because our inquiry focuses on the nature of the information, not
`its audience."); Azzaro v. County of Allegheny, 110 F.3d 968, 978 (3d Cir. 1997) ("[I]fthe
`content and circumstances of a private communication are such that the message conveyed would
`be relevant to the process of self-governance if disseminated to the community, that
`communication is public concern speech even though it occurred in a private context.") (citing
`Connick, 461 U.S. at 148).
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`Case 1:15-cv-01036-LPS-CJB Document 35 Filed 10/12/16 Page 16 of 28 PageID #: 248
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`liabilities. Id at 719. The Tenth Circuit, however, determined that the speech at issue "did not
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`touch on a matter of public concern" and that the plaintiff had "merely disagreed with an internal
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`policy decision about howto limit computer usage[.]" Id. at 722.
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`Defendants here argue that "Mella is strikingly similar to the present case." (D.I. 12 at 8)
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`But this ignores a key reason why the Tenth Circuit reached its result in Mella-the speech there
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`did not relate to disclosure of any actual illegal activity. As the Mella Court noted:
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`The Fortres software is merely one of several ways to prevent
`teachers from installing inappropriate material on their computers.
`Its removal is not unlawful . ... And there is no evidence that
`teachers in fact are violating c