Cook v. New Castle Area School District

353 F. App'x 769
CourtCourt of Appeals for the Third Circuit
DecidedNovember 23, 2009
DocketNo. 09-1183
StatusPublished

This text of 353 F. App'x 769 (Cook v. New Castle Area School District) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. New Castle Area School District, 353 F. App'x 769 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellant Daniel Cook filed this civil rights action in the Court of Common Pleas of Lawrence County, Pennsylvania, against the school district which employs him and several school officers. The defendants removed it to federal court and moved for summary judgment. Cook appeals from the order entering summary judgment in their favor.1 We will affirm.

The following facts are presented in the light most favorable to Cook.

I.

Twenty-three years ago, Cook began working for the New Castle Area School District (“School District”). In 2006, he was employed by the School District as a janitor. The School District is a municipal entity that is governed by nine elected officials. Defendant Fred Mozzocio (“Moz-zocio”) serves as one of those elected offi-ciáis and was president of the school board during the time period relevant to this litigation. He was reelected to the board in a 2007 election. Defendant George Gabriel (“Gabriel”) is employed as the Superintendent of the School District, and defendant Paul Fulena (“Fulena”) works as the District’s Director of Building and Grounds.

In his off hours, Cook regularly participated in local elections by putting up yard signs, organizing campaign events, distributing literature, and working at the polls. In the spring of 2007, Cook volunteered for defendant Mozzocio’s primary campaign for the school board position. The primary election was held in early May 2007, and Mozzocio received enough votes to proceed to the general election in November.

On May 31, 2007, the School District posted a notice for a new maintenance position and requested bids. Cook claims that Fulena called him before the job was posted and asked if he was likely to bid for it. Apparently Cook believed that if he expressed interest in the job, it would not be created, so he replied that he was not interested in the position. When the School District posted the job, however, Cook bid on it. According to Cook, Gabriel then called him to ask why he told Fulena he would not bid on the job. Cook responded that he believed that Fulena would not have created the job if he thought Cook would bid on it. In fact, Cook believed the maintenance position was actually created for David Colella, a custodian with less seniority than Cook. Cook claims that Mozzocio confirmed this belief in a telephone call. Gabriel hired Colella for the new position.

[772]*772In a June 7, 2007, letter, Gabriel informed Cook that he had denied Cook’s bid for the maintenance position because neither his bid nor his personnel files showed that he was competent in carpentry or electricity, which the position required. Cook filed a grievance with his union pursuant to the Collective Bargaining Agreement (“CBA”).

The grievance proceeded to the tripartite hearing required under the CBA. There, Cook presented evidence of his competency for the position for the first time. The School District objected to the use of this evidence because it was not presented during the bidding process, but the arbitrator allowed Cook to present it. In a decision rendered in Cook’s favor on November 1, 2007, the arbitrator found that he had tendered sufficient evidence of his competency to perform the maintenance job.

Cook decided to support Mozzocio’s opponents in the general election for the school board. As part of these efforts, Cook placed a large sign for one of Mozzo-cio’s opponents in his sister’s yard — which faced the School District’s administrative office building.

On the day of the general election, November 6, 2007, Cook engaged in a casual conversation about the school board election in the school cafeteria with Jackie Trott, a School District cafeteria worker and childhood friend of Cook’s. Cook states that he was on break at the time of the conversation, but the record does not establish whether Trott was also on break. Cook claims that Trott initiated the conversation by asking who his neighborhood was supporting in the school board election. Cook responded that he and the people in his neighborhood were supporting Mozzocio’s opponents, the “girls.” Trott informed Cook that she was planning on working the polls for Mozzocio that afternoon.

Trott apparently reported this conversation to Mozzocio or to someone who relayed its contents to Mozzocio. Shortly after the conversation, the principal of the school Cook worked in approached Cook and told him that Mozzocio had just called him. He informed Cook that Mozzocio had asked him to tell Cook that if Cook did not stop talking about Mozzocio and the election at work, Mozzocio would come to the school and that things might “get ugly.” App. at 69-71, 81-82. Cook reported the principal’s warning to his supervisors, Fulena and Gabriel. Cook was never disciplined for his conversation with Trott.

Cook began his new maintenance job the following Monday, November 12, 2007. His first thirty days were served on probation. While Cook was on probation, Cook claims that Mozzocio and Gabriel pressured his supervisor, Fulena, to find Cook incompetent or risk losing his own job. Cook maintains that Fulena responded to this pressure by assigning Cook tasks that were normally performed by two persons, and, thereby, setting him up to fail. However, Cook completed the tasks successfully, and Fulena determined at the end of the probationary period that Cook had proven himself competent to perform the job. Cook continues to hold his maintenance job with the School District.

II.

Cook contends that his speech during his conversation with Trott constituted protected activity and that Mozzocio’s reaction to that speech constituted retaliation which violated his First Amendment rights. The District Court concluded, however, that Cook’s speech to Trott was not protected activity under the teachings of Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). While the Court agreed that the topic of this conversation — the election of a public [773]*773official—was a matter of public concern, it held that the “defendants’ interest in maintaining a functional workplace outweighs [Cook’s] interest in having a casual discussion about a local School Board election with, another school employee during working hours.” App. at 22 (internal quotation marks and citation omitted).

We find it unnecessary to address the issue of whether this conversation constituted protected activity. We may assume, arguendo, that it was protected. “The elements of First Amendment retaliation include conduct by the defendant ‘sufficient to deter a person of ordinary firmness from exercising his constitutional rights,’ and ‘a causal link’ between plaintiffs constitutionally protected activities and the defendant’s retaliatory conduct.” Marten v. Godwin, 499 F.3d 290, 299 (3d Cir.2007) (quoting from Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir.2006)). “[C]ourts have declined to find that an employer’s actions have adversely affected an employee’s exercise of his First Amendment rights where the employer’s alleged retaliation acts were criticism, false accusations or verbal reprimands.” Brennan v. Norton, 350 F.3d 399, 419 (3d Cir.2003) (quoting from Suarez Corp. Indus. v.

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Related

Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Marten v. Godwin
499 F.3d 290 (Third Circuit, 2007)
Brennan v. Norton
350 F.3d 399 (Third Circuit, 2003)

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Bluebook (online)
353 F. App'x 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-new-castle-area-school-district-ca3-2009.