Gallagher v. Wakefield Sch. Dist. CV-94-583 02/28/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert J. Gallagher
v. Civil No. 94-583-B
Wakefield School District, SAU #64, Margaret L. Galabrun, Lawrence Tufts, Charles W. Perrine, and Deborah White
MEMORANDUM AND ORDER
Robert Gallagher was dismissed from his position as a sixth
grade teacher in Wakefield, New Hampshire. He challenges the
adeguacy of the school board's termination procedures and the
sufficiency of the evidence supporting its decision in claims
against the Wakefield School District, School Administrative Unit
# 64, and the two school board members who presided at the
termination hearing (collectively "the school district
defendants"). He also asserts defamation claims against Charles
Perrine and Deborah White based on statements they allegedly made
to newspaper reporters. The school district defendants and White
have moved for summary judgment. For the reasons that follow, I
grant both motions. I. BACKGROUND
Gallagher had several disagreements with Wakefield School
District administrators during the 1990-91 school year. After he
showed his class the film "My Life as a Dog," school principal
Katherine Kramer sent him a letter reminding him that he was
reguired to follow the curriculum. Gallagher responded with a
letter defending his decision to show the movie and accusing
Kramer of "duplicity with regard to the curriculum." Kramer also
sent Gallagher a memorandum describing a conversation in which
she instructed Gallagher to remove the book "Where Do Babies Come
From" from his classroom literature shelf. Gallagher responded
to this directive with a memorandum in which he defended the use
of the book and called her "rather tunnel-visioned and
insensitive" because she had taken the book from one of his
students who had it in the school's cafeteria.
On March 21, 1991, School Superintendent Thayer Wade sent
Gallagher a memorandum describing an earlier meeting with
Gallagher. According to the memorandum, Wade informed Gallagher
that he should not have shown "My Life as a Dog" or exposed his
students to "Where Do Babies Come From" because they concerned
subjects that were not part of the sixth grade curriculum. Wade
also reportedly admonished Gallagher for criticizing Kramer and
2 he closed the memorandum by stating "[a]t this point, I have real
concern about your continued work as a teacher in the Wakefield
school system." Gallagher responded with a letter in which he
again defended his actions and communications. Two days later,
Wade suspended Gallagher with pay for "gross misconduct and not
following the proper program for your classroom." On April 26,
1991, the school district's attorney stated in a letter to
Gallagher's attorney that Gallagher had been suspended "because
of parental allegations that Mr. Gallagher was hugging and
kissing girls in his classroom." The letter did not disclose any
other grounds for the suspension.
On June 24, 1991, Wade notified Gallagher that he planned to
ask the school board to terminate Gallagher's contract because
Gallagher had failed to disclose prior criminal convictions for
extortion on his employment application. Wade's letter does not
include any other grounds for his decision to recommend
Gallagher's dismissal.
The school board commenced a hearing on Wade's reguest to
dismiss Gallagher on July 11, 1991. Gallagher was given a list
of eight reasons supporting Wade's reguest prior to the start of
3 the hearing.1 The hearing consisted of four separate sessions
that spanned a three-month period. Council member Douglas McNutt
participated in the first day of the termination hearing but
recused himself from any further involvement after he accepted a
job with the school district attorney's law firm. The two
remaining council members completed the hearing without McNutt.
The board received heresay evidence during the hearing from the
parents of several of Gallagher's students who alleged that
Gallagher had engaged in inappropriate physical contact with
their children2 had berated a child in front of his peers for
having offensive body odor, and had blamed another child in front
1 Those reasons were:
(1) providing incorrect or incomplete responses on his employment application, (2) engaging in inappropriate conduct with students, (3) refusing to follow the established curriculum, (4) failing to follow established procedures for obtaining permission to present materials outside the curriculum, (5) presenting materials to students without first obtaining reguired approval, (6) using false and misleading letters to parents when obtaining their permission to present materials outside of the curriculum, (7) being hostile and insubordinate to his supervisors, and (8) failing to disclose a prior felony conviction for extortion.
2 In one case, Gallagher allegedly promised a fourth grade student a candy bar if he let Gallagher tickle him. In another case, Gallagher allegedly knocked a student to the ground and climbed on top of her during a snowball fight. He also allegedly kissed another student on the cheek.
4 of the class for preventing the class from being able to see any
more movies. The board also received evidence that Gallagher had
mailed $100 to several of his students as an advance on an
anticipated settlement of a future lawsuit he planned to file
against the school district. Finally, the board received
evidence that Gallagher had been convicted of extortion in 1974
and had been serving a prison sentence at a time when the board
interpreted his employment application to indicate that he had
been employed as a full time teacher. Gallagher offered
testimony from several parents to rebut the evidence against him.
However, he refused to testify at the hearing.
Following the hearing, the board issued a written decision
dismissing Gallagher pursuant to N.H. Rev. Stat. Ann. 189:13.3
The board found that Gallagher had (1) repeatedly tickled,
hugged, and kissed his students in an inappropriate manner; (2)
N.H. Rev. Stat. Ann. 189:13 provides:
The school board may dismiss any teacher found by them to be immoral or incompetent, or one who shall not conform to regulations prescribed; provided, that no teachers shall be so dismissed before the expiration of the period for which said teacher was engaged without having previously been notified of the cause of such dismissal, nor without having previously been granted a full and fair hearing.
5 inappropriately berated a student based on his personal hygiene,
and ridiculed other students who complained to their parents
about things that went on in his classroom; (3) sent several of
his students $100 bills with letters stating that he was making
the payments to include the students in an anticipated future
settlement of legal claims arising from his suspension and
dismissal; (4) failed to follow the curriculum and established
procedures for presenting materials not included in the
curriculum; (5) been insubordinate when given instructions on the
curriculum by his supervisors; (6) wrongly failed to disclose his
prior conviction for extortion; and (7) sent a misleading letter
to his students' parents reguesting permission to show "My Life
as a Dog" in class.
Deborah White and Charles Perrine participated in a public
rally outside the school administration building on November 17,
1991, during one of the school board's meetings concerning
Gallagher's dismissal. Both White and Perrine made a number of
statements about Gallagher that were reported in newspaper
articles covering the rally. Among White's reported statements
were that Gallagher: (1) was "shady," (2) was "of guestionable
character," (3) was "very manipulative," and (4) had not changed
since his 1974 extortion conviction.
6 II. STANDARD OF REVIEW
Summary judgment is appropriate only if the facts taken in
the light most favorable to the nonmoving party show that no
genuine issue of material fact exists and that the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4 (1st Cir.
1994). The purpose of summary judgment is "to pierce the
boilerplate of the pleadings and assay the parties' proof in
order to determine whether trial is actually reguired." Wynne v.
Tufts Univ. Sch. of Med., 976 F.2d 791, 793-94 (1st Cir. 1992),
cert, denied, 507 U.S. 1030 (1993).
On issues that the nonmoving party must prove at trial, the
moving party initially need only allege the lack of evidence to
support the nonmoving party's case. Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). If this standard is satisfied, the
nonmoving party cannot rely on the pleadings alone to oppose
summary judgment, but must come forward with properly supported
facts to demonstrate the existence of a genuine dispute
concerning a material fact. Id. at 323-24. A "material fact" is
one "that might affect the outcome of the suit under the
governing law," and a genuine dispute concerning a material fact
7 exists if "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
III. DISCUSSION
The school district defendants have filed a joint motion
seeking summary judgment as to Gallagher's claims against them.
Deborah White moves for summary judgment on Gallagher's
defamation claims against her. I address the motions separately
beginning with the school district defendants.
A. The School District Defendants' Motion
Gallagher claims that the school board violated his due
process rights by: (1) failing to provide sufficient advance
notice of the reasons for his proposed dismissal; (2) admitting
heresay evidence at the termination hearing; (3) limiting his
right to testify on his own behalf; and (4) allowing a member of
the school board who later joined the school district attorney's
law firm to participate in the first day of the hearing.4 He
also argues that the board deprived him of procedural due process
4 I do not separately consider Gallagher's argument based on the New Hampshire Constitution's due process clause because he has not argued that his right to due process under the state constitution differs materially from his right to due process under the United States Constitution. by terminating him based on insufficient evidence. I address the
sufficiency of each claim in turn.5
1. Notice
The Fourteenth Amendment's Due Process Clause requires
notice that is "reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the action [to be taken] and afford them an opportunity to
present their objections." Mullane v. Central Hanover Bank &
Trust C o ., 339 U.S. 306, 313 (1950)). This reasonableness
requirement extends both to the content of the notice and its
timeliness. See generally. In re Ruffalo, 390 U.S. 544, 550-52
(1968) (delaying notice that a particular action was a disbarment
offense until after subject has presented his case violates due
process); Phares v. Gustafsson, 856 F.2d 1003, 1010 (7th Cir.
1988) (notice delayed until the commencement of pretermination
hearing satisfied due process where subject was given a one week
continuance to respond); Gniotek v. Philadelphia, 808 F.2d 241,
244 (3d Cir. 1986) (notice of charges provided at commencement of
employee suspension hearing adequate), cert, denied, 481 U.S.
1050 (1987); Brasslett v. Cota, 761 F.2d 827, 836 (1st Cir. 1989)
5 I assume that Gallagher has a constitutionally protected property interest in continued employment because defendants do not contend otherwise. (notice adequate where fire chief was notified of possibility of
discharge and "was afforded an ample opportunity to defend his
actions and rebut any erroneous allegations").
Gallagher received a detailed statement notifying him of the
reasons for his proposed dismissal prior to the commencement of
the termination hearing. Although the school administration
raised a number of different reasons for his suspension and
dismissal at different times, he received notice of all the
reasons before his dismissal hearing. Moreover, he was not
required to present his response to the charges until almost a
month after the hearing commenced.6 Finally, notwithstanding
Gallagher's contrary assertions, the school board did not base
its termination decision on uncharged misconduct. Although the
board stated that it had decided to terminate Gallagher in part
because he had engaged in a "number of incidents" of misconduct,
it is clear from the context of this statement that the board was
referring to the numerous incidents of misconduct described in
the hearing notice. Accordingly, Gallagher's notice argument
fails.
6 The board called Gallagher to testify on the second day of the hearing, September 3, 1991. However, he refused to testify, and he was not required to present any evidence on his own behalf until the third day of the hearing, on November 3, 1991.
10 2. Hearsay
Gallagher next argues that defendants violated his due
process rights by admitting hearsay evidence from parents who
testified about specific incidents which were reported to them by
their children.
New Hampshire school boards are not bound to follow the
rules of evidence. See N.H. Code Admin. R. Ed. 202.02(h).
Moreover, the First Circuit has determined that administrative
agencies like the school board may rely on hearsay without
violating the subject's due process rights if the hearsay
evidence is relevant and reliable. Beauchamp v. De Abadia, 77 9
F.2d 773, 775 (1st Cir. 1985). The evidence in guestion in this
case was obviously relevant and Gallagher offers no evidence to
support his claims that it was especially unreliable. Therefore,
this claim necessarily fails.7
7 Gallagher could not succeed with his due process claim even if the board erred in admitting the hearsay testimony. The proponent of a due process claim cannot succeed unless he can establish that he was prejudiced by the alleged due process violation. Carsetti v. Maine, 932 F.2d 1007, 1014 (1st Cir. 1991). Here, the board had ample non-hearsay evidence to justify its decision to terminate Gallagher. Therefore, he cannot demonstrate that he was prejudiced by the admission of the hearsay evidence.
11 3. Gallagher's Refusal to Testify
When counsel for the school district called Gallagher to
testify on the second day of the hearing, he refused to do so on
the grounds that the school district had charged him with various
crimes. He also argued that he should be allowed to delay his
testimony until after the resolution of a state court proceeding
commenced by the school district that sought records pertaining
to Gallagher's involvement with foster children from the Division
of Child and Youth Services8 pertaining to his involvement with
foster children. The hearing officer informed Gallagher that
because the termination hearing was a civil proceeding, he was
obligated to testify when called absent a privilege not to do so,
that the board could draw adverse inferences from his failure to
testify, and that he would not be allowed to testify later on his
own behalf if he refused to testify when called. Gallagher
nevertheless refused to testify. In response, the board noted in
its decision that Gallagher's refusal to testify at the hearing
when he was "in the best position to set the record straight,"
indicated that the testimony of others was accurate.
Prior to 1994, the Division for Children, Youth, and Families (DCYF) was known as Division for Children and Youth Services (DCYS). N.H. Rev. St. Ann. 212.2 (Supp. 1994).
12 The essence of Gallagher's argument against summary judgment
on this issue seems to be that the board violated his right to
due process by preventing him from testifying on his own behalf
because the board would not delay the hearing until the DCYS
proceeding was over. First, there is no dispute that the school
board hearing was a civil proceeding. Thus, Gallagher did not
have a constitutional right to refuse to testify regardless of
what guestions might be asked because that right applies only in
criminal and guasi-criminal proceedings. See Allen v. Illinois,
478 U.S. 364, 368 (1986). Further, while the Fifth Amendment
privilege against self-incrimination permits a person in a civil
proceeding to refuse to answer particular guestions "'where the
answers might incriminate him in future criminal proceedings,1"
id. (guoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984)), the
privilege may not be invoked "'if the testimony sought cannot
possibly be used as a basis for, or in aid of, a criminal
prosecution against the witness.1" Pillsbury Co. v. Conbov, 459
U.S. 248, 273 (1983) (Blackmun, J. concurring and guoting Brown
v. Walker, 161 U.S. 591, 597 (1896)). Here, Gallagher cannot
invoke the privilege because he refused to testify at all,
without first determining what he would be asked.
13 Gallagher offers no legal support for his argument that the
board was obligated to delay the hearing until the DCYS
proceeding was resolved, and I have found none. He also does not
explain why the Fifth Amendment privilege would not have provided
him with sufficient protection against self-incrimination to
allow him to testify as reguested on subjects that would not have
a tendency to incriminate him. Thus, I reject his claim that the
board's failure to delay its hearings violated his due process
rights.
Finally, I find no merit in Gallagher's argument that the
board improperly drew adverse inferences from his failure to
testify. See Baxter v. Palmiqiano, 425 U.S. 308, 318-20 (1976).
The board concluded that Gallagher's refusal to explain the
reported incidents of his inappropriate behavior, when he was in
the best position to know what happened, meant that the parents'
reports were accurate. The board was entitled to draw this
inference from Gallagher's failure to testify. See id. at 319
(in a civil proceeding, failure of a party to contest evidence
presented against him may be taken as acguiescence); see also
F.D.I.C. v. Elio. 39 F.3d 1239, 1248 (1st Cir. 1994).
Accordingly, summary judgment is granted as to this claim.
14 4. Conflict of Interest
Gallagher next contends that the school board's decision
violated his right to due process because one member of the board
operated with a conflict of interest. It is undisputed that
school board member Douglas McNutt participated as a member of
the board at the first day of Gallagher's dismissal hearing held
on August 5, 1991. Before the second day of the hearing, held on
September 3, 1991, McNutt accepted a position as an attorney in
the law firm of the school district's attorney. Accordingly, at
the beginning of the hearing on September 3, McNutt stated that
he had to withdraw because of a conflict of interest. Although
McNutt remained a member of the school board, he did not
participate further in the hearings or in the board's decision.
Gallagher nevertheless argues that McNutt's association with the
school district's law firm and his continued membership on the
board tainted the board's decision. I disagree.
A decision making body violates due process if its decision
is biased or if bias is probable due to prejudgment of the facts
or outcome, substantial and direct personal or pecuniary
interest, or hostility toward parties or their counsel. Marshall
v. Jerrico, Inc., 446 U.S. 238, 242-43 (1980); Withrow v. Larkin,
421 U.S. 35, 46-47 (1975); Gibson v. Berrvhill, 411 U.S. 564,
15 578-79 (1973); Roland M. v. Concord School Committee, 910 F.2d
983, 997-98 (1st Cir. 1990), cert, denied, 499 U.S. 912 (1991).
To show unconstitutional bias, Gallagher must "overcome a
presumption of honesty and integrity in those serving as
adjudicators" by identifying an influence strong enough that it
"poses such a risk of actual bias or prejudgment that the
practice must be forbidden if the guarantee of due process is to
be adeguately implemented." Withrow, 421 U.S. at 47. A
speculative, contingent, or remote interest does not violate the
due process reguirement. Aetna Life Ins. Co. v. Lavoie, 475 U.S.
813, 826 (1986) .
Gallagher has failed to explain how McNutt's actions could
have affected the two remaining school board members who made the
termination decision. Thus, he has not carried his burden to
demonstrate a sufficient interest or risk of actual bias to
overcome the presumption of integrity in the school board's
decision making process. Summary judgment is granted on this
issue.
16 5. Sufficiency of the Evidence
Sufficient evidence in support of an agency's decision
exists to satisfy due process requirements9 as long as the
decision is supported by "some evidence." Superintendent, Mass.
Correctional Inst, v. Hill, 472 U.S. 445, 454 (1985); Beauchamp,
779 F.2d at 776. Evidence was introduced at the hearing that
Gallagher had sent a letter and a one hundred dollar bill to
several of his students as part of what he claimed was an
"advance" on his anticipated recovery in a lawsuit against the
town. This evidence alone is sufficient to justify the school
board's decision to dismiss Gallagher pursuant to N.H. Rev. Stat.
Ann. § 189:1. Accordingly, I grant summary judgment as to this
claim as well.
B. Deborah White's Motion
Gallagher charges that White defamed him in four statements
that were reported in the press. White contends that her
statements were expressions of opinion rather than actionable
statements of fact.
9 I construe Gallagher's insufficiency of the evidence allegation as part of his due process claim under § 1983. N.H. Rev. Stat. Ann. § 189:14 gives a dismissed teacher a right to recover any lost salary resulting from a dismissal in violation of N.H. Rev. Stat. Ann. § 189:13. However, Gallagher has not made a claim for relief under § 189:14.
17 To prove defamation under New Hampshire law, a private
individual plaintiff must show that the "defendant failed to
exercise reasonable care in publishing, without a valid
privilege, a false and defamatory statement of fact about the
plaintiff to a third party." Independent Mechanical Contractors,
Inc. v. Gordon T. Burke & Sons, Inc., 138 N.H. 110, 118 (1993);
accord Duchesnave v. Munro Enters., 125 N.H. 244, 250 (1984) . A
statement is defamatory only if it "tends to lower the plaintiff
in the esteem of any substantial and respectable group of
people." Nash v. Keene Publishing Corp., 127 N.H. 214, 219
(1985) .
Opinions can serve as the basis for a defamation claim if
the opinion reasonably implies false and defamatory facts.
Milkovich v. Lorain Journal Co., 497 U.S. 1, 20-21 (1990);
Duchesnave, 125 N.H. at 249. However, a statement of opinion is
not actionable unless it is "sufficiently factual to be
susceptible of being proved true or false." Milkovich, 497 U.S.
at 21; accord Phantom Touring, Inc. v. Affiliated Publications,
953 F.2d 724, 727-28 (1st Cir.), cert, denied, 504 U.S. 974
(1992). Further, an opinion cannot serve as the basis for a
defamation action if it is apparent from the surrounding context
that the opinion is based solely on disclosed non-defamatory
18 facts. Standing Committee on Discipline of the U. S. Dist. Court
for the Cent. Dist. of Cal. v. Yaaman, 55 F.3d 1430, 4439 (9th
Cir. 1995); Nash, 127 N.H. at 219; Restatement (Second) of Torts
§§ 566, cmt. c (1977) ("A simple expression of opinion based on
disclosed . . . nondefamatory facts is not itself sufficient for
an action of defamation, no matter how unjustified and
unreasonable the opinion may be or how derogatory it is.")• With
these general principles in mind, I examine the specific
statements at issue to determine whether a reasonable juror could
find them defamatory.
White made statements about Gallagher at the rally held
during the school board's meeting considering his dismissal.
Three area newspapers printed articles that included guoted
statements by White which Gallagher argues are defamatory.10
White "published" the challenged statements to third parties when
she talked with the reporters, not when the reporters published
their articles in the newspapers. Thus, everything that White
said to the reporters, not merely what each reporter chose to
include in the particular articles, must be considered when
10 White does not dispute the substance of her statements as guoted in the newspaper articles, but she states in her deposition that the articles omitted some of the discussion relevant to the context of her statements.
19 evaluating the challenged statements. Therefore, I examine the
evidence in the record of White's discussions with the reporters
to determine whether the challenged statements could reasonably
be interpreted to infer undisclosed, verifiable, and defamatory
factual assertions.
The challenged statement in the Carroll County Independent
appeared as follows:
Gallagher was also cited as a felon, having been convicted of extortion in Massachusetts in 1974. Takis and White agreed that Gallagher had paid his debt to society, but White said, "Has he changed? I don't think he really has."
Carroll County Independent, November 27, 1991 (emphasis added).
Gallagher charges that White's statement, "Has he changed? I
don't think he really has," implies that Gallagher has engaged in
criminal activity since his extortion conviction. The context of
White's statement makes the factual premise of her conclusion
clear, however. The Independent article includes White's
references to Gallagher sending one hundred dollar bills enclosed
in a letter to each of his students, his conviction on extortion
charges in Massachusetts in 1974, and her concern that Gallagher
concealed his felony conviction when he applied for the teaching
position in Wakefield. In her deposition. White confirms that
she discussed Gallagher's extortion record with the Independent
20 reporter and explained that she thought Gallagher continued to be
dishonest because he did not include his conviction on his
employment application and he gave his students one hundred
dollar bills after treating them unfairly and unkindly in the
classroom. In that context, the factual basis for White's
conclusion that Gallagher had not changed is adeguately
explained, and thus no reasonable juror could understand that her
statement implied other undisclosed defamatory facts about
Gallagher. Since Gallagher does not challenge the accuracy of
the disclosed facts on which White's opinion was based, her
statement is not actionable.
Two other statements appeared in one article in The Times:
"We want him out," said Debra White of Wakefield, one of the rally's organizers. "We don't feel Gallagher is a positive role model for our children. He is a very powerful person; he is very manipulative. He's just not the kind of person we want our children taught under." White said she and others opposed to Gallagher's reinstatement have been "bombarding" the school board with phone calls, lobbying for his dismissal. "We don't feel our tax money is being wisely spent. We feel there are enough decent teachers who have decent backgrounds, who aren't shady," said White.
Id., vol. 1, no. 6, Nov. 26-Dec. 3 (emphasis added). Foster's
Daily Democrat reported a similar statement by White:
Gallagher was suspended, with pay, in April by Wade. Wade has released no official reason for Gallagher's suspension.
21 Mrs. White said the school could easily hire another teacher in Gallagher's place. "There's probably so many unemployed teachers out there. W e 're paving a man with questionable character," she said.
(Copy provided is undated and emphasis is added).
White argues that the statements characterizing Gallagher as
"manipulative," lacking a "decent background," having a
"guestionable character," and as "shady" are not actionable
because they cannot reasonably be interpreted to state actual
facts about Gallagher. I agree. See Lewis v. Time Inc., 710
F.2d 549, 554 (9th Cir. 1983) (holding that labelling plaintiff
"shady" was a "wholly subjective comment, not the kind of factual
expression for which the Constitution permits liability to be
imposed.") Myers v. Plan Takoma, Inc.,472 A.2d 44, 48 (D.C.
A p p . 1983) (leaflet labeling plaintiffs a "shady group of bar
owners" does not imply verifiable facts) . See also, e.g.,
Beverly Hills Foodland, Inc. v. United Food and Commercial
Workers Union, Local 655, 39 F.3d 191, 196 (8th Cir. 1994)
("'Unfair' is a term reguiring a subjective determination and is
therefore incapable of factual proof."); McCabe v. Rattiner, 814
F.2d 839, 842 (1st Cir. 1987) ("we observe that the word "scam"
does not have a precise meaning"); Catalfo v. Jensen, 657 F.
Supp. 463, 468 (D.N.H. 1987) ("The word sleazy itself .. . does
not have a precise meaning such that is capable of
22 verification"); but see Kleier Advertising, Inc. v. Premier
Pontiac, Inc., 921 F.2d 1036, 1045 (10th Cir. 1990) (use of term
"shady" may qualify as a defamatory statement in certain
contexts).
The statements at issue cannot be considered defamatory even
if they could be understood to imply verifiable facts, because it
is apparent from the context in which the statements were made
that they were based only on disclosed nondefamatory facts. In
her deposition. White stated that the Times article omitted part
of her discussion with the reporter in which she explained that
Gallagher was manipulative because, as an adult, he was a very
powerful person in the eyes of the children, and that permission
slips he sent home with the children did not properly explain to
the parents the content of the movie he intended to show the
class. She also discussed the gift of one hundred dollar bills
to his students as being manipulative. She further explained
that her statement suggesting Gallagher was shady and lacked a
decent background was made in the context of discussing his
omission of his felony conviction from his employment
application.11 Similarly, her remark that Gallagher was of
11 To the extent that Gallagher contends in opposition to summary judgment that White's statements about his employment application were false and defamatory, I note that the school
23 "questionable character" was based on his felony conviction. In
that context, those who heard her remarks could not reasonably
infer that she based her statements on undisclosed information
about Gallagher's misconduct. Instead, her remarks are clearly
her opinion based on expressed nondefamatory facts.
Because I conclude that no reasonable listeners could infer
actionable facts from White's statements, I resolve the issue as
a matter of law and grant summary judgment in White's favor.
IV. CONCLUSION
For the foregoing reasons, the school defendants' motion for
summary judgment (document no. 23) is granted, and White's motion
for summary judgment (document no. 28) is granted.
SO ORDERED.
Paul Barbadoro United States District Judge
February 28, 1996
board made a finding in its decision that Gallagher intentionally failed to identify part of his teaching experience as part time for the purpose of concealing his felony conviction. The board also found, based on the evidence at the hearing, that Gallagher had not revealed his felony conviction as part of his application process. Gallagher's affidavit that he "honestly and completely" filled out the application does not create a factual dispute.
24 cc: James Burke, Esq. Richard Uchida, Esq. Dennis Hallisey, Esq. Steven Sacks, Esq.