Deltondo v. Sch. Dist. of Pittsburgh
Deltondo v. Sch. Dist. of Pittsburgh
2024 WL 4667286 (W.D. Pa. 2024)
January 18, 2024
Dodge, Patricia L., United States Magistrate Judge
Summary
The court is considering two discovery motions regarding ESI related to Plaintiff's claim of retaliation for expressing a differing viewpoint on social issues. Defendants argue that this information is irrelevant and not properly pleaded, while Plaintiff argues it is relevant to her claim. The court has held that the public concern and disruption caused by the speech must be balanced, but more factual development and analysis is needed in this case.
Additional Decisions
DENISE DELTONDO, Plaintiff,
v.
THE SCHOOL DISTRICT OF PITTSBURGH, et al., Defendants
v.
THE SCHOOL DISTRICT OF PITTSBURGH, et al., Defendants
2:22-cv-350
United States District Court, W.D. Pennsylvania
Filed January 18, 2024
Counsel
Alfred Joseph Fluehr, Francis Alexander LLC, Swarthmore, PA, for Plaintiff.Jennifer S. Park, Myah Alease Cummings, Samantha Leigh Cook, Dentons Cohen & Grigsby P.C., Pittsburgh, PA, Ira Weiss, Weiss Burkardt Kramer, LLC, Pittsburgh, PA, Michael Disotell, Dentons Cohen & Grigsby, Wexford, PA, for Defendants.
Dodge, Patricia L., United States Magistrate Judge
MEMORANDUM ORDER
I. Relevant Procedural and Factual Background
*1 In this civil rights action, Plaintiff Denise Deltondo asserts a claim of First Amendment retaliation related to her suspension and discharge from employment as a teacher with the School District of Pittsburgh (the “District”). This claim is based on her re-posting of a Facebook post about the topic of “privilege.” In addition to the District, the remaining Defendants are the School Board, former Superintendent Anthony Hamlet and Director of Employee Relations Tiffany Waskowicz.
Presently pending before the Court for resolution are two discovery motions which will be considered together because they are closely related: Defendants’ motion for a protective order (ECF No. 63); and Plaintiff's motion to compel (ECF No. 65). Both motions have been fully briefed.
Plaintiff's Complaint originally asserted additional claims, including political affiliation retaliation and denial of due process under the Fourteenth Amendment. On March 16, 2023, the Court granted in part a motion to dismiss filed by Defendants and dismissed these claims (ECF No. 43), adopting a Report and Recommendation filed by the undersigned on January 30, 2023 (ECF No. 35).
A. Defendants’ Motion for Protective Order
Defendants contend that Plaintiff is improperly delving into discovery regarding various social issues and political affiliations of individuals even though these issues relate to claims that have been dismissed from the case and therefore are no longer relevant. They assert that despite the dismissal of Plaintiff's political affiliation claim, Plaintiff continues to seek discovery about Defendants’ ideological viewpoints, specifically, the District's adoption and implementation of diversity, equity, and inclusion, racial equity, and social justice policies and programs (“DEI and Racial Equity Policies and Programs”). They note that during Hamlet's deposition, he was asked numerous questions about views that he and the District hold on various social issues and its DEI and Racial Equity Policies and Programs. While Plaintiff takes the position that this discovery is relevant to whether they engaged in viewpoint discrimination, Defendants contend that viewpoint discrimination has not been asserted as a claim by Plaintiff.
Hamlet was also asked about his personal political affiliation, for whom he voted in presidential elections and which president's pictures were hung in District classrooms. According to Defendants, given the dismissal of Plaintiff's political affiliation claim, these topics are no longer relevant to these proceedings.
It is Defendants’ position that these deposition topics harassed and annoyed Hamlet and are nothing more than an attempt to revive the political affiliation claim or insert a viewpoint discrimination claim where one has not been pleaded. Based on these arguments, Defendants seek a protective order to preclude Plaintiff from conducting similar inquiries during the anticipated depositions of six other individuals.
As more fully discussed in connection with Plaintiff's motion to compel, Plaintiff argues in opposition that she is entitled to depose Defendants about their ideological viewpoints because they impacted, or may have impacted, the decision to discipline her. She disputes that viewpoint discrimination is a separate claim and asserts that Defendants have mischaracterized the holdings of the Third Circuit on this issue.
*2 Plaintiff also argues that Defendants’ ideological and political beliefs were a significant motivating factor in the decision to discipline her, and therefore, are relevant to the issues in this case.
B. Plaintiff's Motion to Compel
Plaintiff's motion to compel addresses many of the same issues as Defendants’ motion for protective order. She asserts that Defendants’ contention that the Court limited discovery in this case to two issues, that is, whether her speech involved a matter of public concern and whether it caused “disruption” in the District, is simply incorrect. Moreover, she contends, Defendants are withholding relevant information that is central to her claim that she suffered disciplinary action for expressing a viewpoint that differed from that held by Defendants.
Plaintiff contends that despite the fact that her discipline is a central issue in her lawsuit, Defendants have refused to produce documents regarding the reasons for her discipline. As alleged in her retaliation claim in the Amended Complaint, she claims that Defendants retaliated against her because they disagreed with the opinion expressed in her Facebook post. Thus, she argues, Defendants’ objections to Document Requests 2 through 4, 6, 7, 11, 12, 18, 19, 20 through 28 and 31 on the basis that the documents sought are neither relevant nor proportional to the needs of the case are without merit.
As noted above, Plaintiff also disputes Defendants’ objections to the extent that they attempt to carve out an improper separation between First Amendment retaliation and viewpoint discrimination. Therefore, she argues that Defendants’ objections to producing discovery related to Plaintiff or to the post between August 9, 2020 and March 20, 2021, including her suspension, the public statement, the investigation, the Statement of Charges and the Board hearing process should be rejected.
For these reasons, Plaintiff also disputes Defendants’ conclusion that the only permissible topics of discovery are whether she spoke on a matter of public concern and the issue of disruption. As to the latter, she asserts that she is entitled to inquire about the District's position that its actions were motivated by the “disruption” caused by her speech, which she contends is not supported by the record.
According to Plaintiff, Hamlet's testimony revealed that Defendants have withheld a great deal of discovery. While, according to Hamlet, it was the Board that demanded a public statement, no documents have been produced that reflect its involvement. She also notes that it was Hamlet himself who raised certain social and political issues at his deposition, during which he testified, for example, that Plaintiff's Facebook post was perceived as criticizing Black Lives Matter.
Plaintiff asks the Court to reject Defendants’ arguments and to compel Defendants to re-answer all of her document requests and make new document productions without relying on their previously asserted objections; to produce responsive documents to Request Nos. 32 through 43, 46 and 47 that seek information about Defendants’ “ideological motivations”; to either provide all documents, communications, and things from August 8, 2020 to March 20, 2021, related to her or her Facebook post that are not privileged or provide a privilege log with materials redacted as to the privileged sections; to produce her procedural due process aspects of this case such as Loudermill notices;[1] and to produce her full RISE evaluations (which measure equity) from 2013 to 2021 or submit a declaration detailing the search that was done and why they cannot be produced.
II. Analysis
*3 The Supreme Court has held that “a State may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech.” Rankin v. McPherson, 483 U.S. 378, 383 (1987). Nevertheless, “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering v. Board of Ed. of Twp. High Sch. Dist. 205, Will County, Ill., 391 U.S. 563, 568 (1968).
To plead a First Amendment retaliation claim, a government employee must allege “(1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006). To show that their speech is protected, the employee must establish first that: (1) in making it, they spoke as a private citizen, and (2) the statement involved a matter of public concern. Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). If these two elements are satisfied, “the possibility of a First Amendment claim arises.” Id. The court must then determine, under the test elaborated in Pickering v. Board of Education of Township High School District 205, Will County, Illinois, if the employee's interest in speaking outweighs the government's interest in avoiding disruption to its operations. 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Munroe [v. Cent. Bucks Sch. Dist.], 805 F.3d [454,] 466 [(3d Cir. 2015)].The inquiry into the protected status of speech is a question of law, not fact. Hill, 455 F.3d at 241. However, it is a question of law that nonetheless requires a robust factual basis, given that Pickering sets forth a uniquely “particularized” balancing test, not a simple burden-shifting threshold. Connick v. Myers, 461 U.S. 138, 149-50, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Indeed, “the state's burden in justifying a particular discharge varies depending upon the nature of the employee's expression.” Id. at 150, 103 S.Ct. 1684. As a result, the extent to which speech touches on matters of public concern cannot be answered with a simple “yes” or “no,” as the more substantially an employee's speech involves matters of public concern, the higher the state's burden will then be to justify taking action, and vice versa. See id. at 150-52, 103 S.Ct. 1684 (rejecting approach which treated the question of public concern as a “threshold inquiry,” then shifted burden to government to demonstrate interference with its responsibilities); see also Locurto v. Giuliani, 447 F.3d 159, 174 (2d Cir. 2006) (“a negative answer to the public concern question [is] not meant to license wholesale Government disregard of employee speech rights, especially outside of the workplace”) (citing United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995)). Rather, as this Court has recognized, the public concern inquiry “involves a sliding scale in which the amount of disruption a public employer has to tolerate is directly proportional to the importance of the disputed speech to the public.” Munroe, 805 F.3d at 472 (internal quotation omitted).
*4 Fenico v. City of Philadelphia, 70 F.4th 151, 162 (3d Cir. 2023).
In Fenico, police officers were subjected to discipline for making social media posts that were “offensive, racist and violent.” The Court of Appeals nevertheless held that the district court should not have dismissed the case because the “public concerns raised and potential disruption posed by these statements are simply too complex to adequately resolve Pickering balancing in the City's favor without more tailored factual development and analysis.” Id. A1t 163. See also Dougherty v. School Dist. of Phila., 772 F.3d 979, 985 (3d Cir. 2014) (noting that “the District Court found that [the school district's] motivation for firing Dougherty was a disputed issue of material fact and concluded that Dougherty made a sufficient showing of improper motivation to put the issue before a jury.”)
Defendants argue that viewpoint discrimination is not part of this case. They contend that: “Viewpoint discrimination claims generally challenge laws, regulations, or a government's policies. For example, viewpoint discrimination may serve as the basis to challenge a city's policy imposing higher fees for a march or rally that involves a controversial subject matter versus noncontroversial rallies that may need less policing.” (ECF No. 63 at 3 n.1) (citing Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 193 (3d Cir. 2008)). In Startzell, which involved counter-protestors refusing to obey a police directive to move to a less disruptive location, the court stated that, in a content-based restriction situation:
the government must show that the regulation or restriction is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. By contrast, restrictions on speech that are viewpoint neutral and subject-matter neutral may permissibly regulate the time, place, or manner of expression if they are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.
Startzell, 533 F.3d at 193 (citations omitted).
According to Defendants, such considerations do not apply in a case involving speech by a government employee. However, as Plaintiff notes, Startzell did not so hold and did not discuss Pickering. Startzell concerned a wholly different test related to governmental regulation of speech at public venues, not a First Amendment employment retaliation claim. Defendants do not respond to these points in their reply brief.
In support of their position, Defendants cite a case in which Judge Ranjan wrote that “[t]here is nothing in NTEU, Pickering, or any other precedential case from the Supreme Court or Third Circuit that forbids content or viewpoint-based discipline in the context of public employment. Content and viewpoint discrimination are concerns that ordinarily arise where the government restricts speech in public forums, not in the workplace.” Amalgamated Transit Union Loc. 85 v. Port Auth. of Allegheny County, 513 F. Supp. 3d 593, 621 (W.D. Pa. 2021) (citations omitted).
*5 However, as Plaintiff correctly notes, the Court of Appeals did not agree with this statement despite affirming the case on appeal. Rather, it stated that:
On this point, the District Court spoke too broadly ... [because] viewpoint-based government regulations on speech are nearly always presumptively suspect. See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S. Ct. 2510, 132 L.Ed.2d 700 (1995).That is no less true in the Pickering-NTEU context .... Concern over viewpoint discrimination is the very reason Pickering rejected the older rule that the First Amendment does not protect government-employee speech. In NTEU, both the majority and dissent observed that employees were not as heavily burdened by the honoraria ban as they could have been because there was no content or viewpoint discrimination. NTEU, 513 U.S. at 468, 115 S. Ct. 1003; id. at 490-91, 115 S. Ct. 1003 (Rehnquist, C.J., dissenting). So if the ban had been viewpoint discriminatory, the government's burden of justification would have been even heavier. And in Rankin v. McPherson, an employee-speech case, the Court cautioned that Pickering balancing must be undertaken with “vigilance” to “ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.” 483 U.S. at 384.
Amalgamated Transit Union Local 85 v. Port Auth. of Allegheny County, 39 F.4th 95, 108-09 (3d Cir. 2022). The Third Circuit concluded that, “contrary to the District Court's statement, public employers do not have a free hand to engage in viewpoint discrimination toward their employees. At present, it suffices to note that the more a public employer's policy looks like viewpoint discrimination—or is likely to foster such discrimination—the less likely it will be to survive scrutiny under Pickering-NTEU.” Id. at 109.[2]
In their reply brief, Defendants contend that the Amalgamated Transit Union case (which they cited) is distinguishable because Plaintiff did not challenge the District's policies, but they do not explain the relevance of this distinction. As summarized above, viewpoint discrimination is relevant in a public employee discipline context.
Thus, it is not supportable to argue, as Defendants do, that because Plaintiff has not asserted a separate claim for “viewpoint discrimination” she cannot explore in discovery whether her speech resulted in discipline because Defendants concluded that it stood in opposition to a policy or viewpoint held by the District. Indeed, the statement issued by Hamlet notes that the post was contrary to the “attitude or beliefs” of the District. No Pickering balancing test could be performed without some context of why Plaintiff's speech initiated the chain of events that form the background of this case. Moreover, this Court did not expressly or implicitly limit discovery to issues of public concern and disruption.
*6 On the other hand, the disagreement at issue is between Plaintiff's speech and a policy held by the District, not any individual person. Plaintiff may, if she chooses to do so, depose a District designee about its policies. However, some of the discovery sought from the District is far afield from the issues in this case. Request Nos. 32 through 43, in which Plaintiff admittedly seeks a whole host of documents regarding Defendants’ “ideological motivations,” goes well beyond the single claim of First Amendment retaliation. While Plaintiff may inquire into meaning the “attitude or beliefs” as used in the public statement, she may go no further.
Moreover, the personal views of Hamlet or any other individual about Black Lives Matter, anti-racism, critical race theory, systemic racism, social justice and the various other topics about which Hamlet was asked at his deposition are not part of this case. Nor are the political affiliations of Hamlet or other District employees or representatives (including which president's pictures were hung in classrooms) relevant to these proceedings. Plaintiff's comment that: “if all the Defendants vote for Democrats and generally hold left wing opinions, that tends to support retaliatory animus and improper motivation” (ECF No. 65 at 18) is unsupported and meritless. Thus, Hamlet is not required to provide any further response to Request Nos. 41 through 43, 46 and 47, all of which seek political and ideological information that has no relationship to the retaliation claim.
Moreover, in addition to dismissing Plaintiff's claim of political affiliation, the Court also dismissed her due process claim. Therefore, facts related to this claim should not be explored during the upcoming depositions or in written discovery. At the same time, discovery about the content of the Statement of Charges will be permitted. Plaintiff claims that she was retaliated against based upon her Facebook post, including the District's pursuit of discipline against her. Thus, documents related to the basis for the charges in the Statement of Charges may lead to relevant information to support or refute these charges as well as her claim that they were part of the retaliation against her. Thus, rather than being related to the dismissed due process and political affiliation claims, these requests may lead to discoverable evidence regarding the First Amendment retaliation claim.
Finally, the relief sought by Plaintiff is excessive. She has not demonstrated that she is entitled to relief that includes Defendants having to “re-answer” all of her document requests and with respect to all such requests, make new document productions without relying on their previously asserted objections. Therefore, the Court will only address those requests that are specifically identified by Plaintiff as objectionable. See ECF No. 65 at 7, 16-17.
Therefore, this 18th day of January, 2024, it is ORDERED that Defendants’ Motion for a Protective Order (ECF No. 63) is granted in part and denied in part.
Defendants’ motion is GRANTED as follows: Plaintiff is precluded from seeking discovery about the personal views of individual defendants about the District's DEI and Racial Equity Policies and Programs; their personal attitudes and beliefs about Plaintiff's Facebook post; their ideological perspectives; their political viewpoints; and their political affiliations.
Defendants’ motion is DENIED as follows: Plaintiff may seek discovery as to the DEI and Racial Equity Policies and Programs of the School District that were in effect at the time of the Facebook post; the reasons given for Plaintiff's discipline, including the meaning of “attitude or beliefs” in Hamlet's public statement; and the basis for Plaintiff's discipline, including but not limited to whether her speech was in opposition to any such policies and programs.
*7 It is further ORDERED that Plaintiff's Motion to Compel (ECF No. 65) is granted in part and denied in part:
Plaintiff's motion is GRANTED as follows:
- No later than February 16, 2024, Defendants shall either produce Plaintiff's RISE evaluations from 2013 to 2021 or submit a declaration affirming that they have produced any evaluations in their possession in full or that no other documents exist.
- To the extent that Defendants have objected and withheld documents based on their position that all counts except First Amendment retaliation have been dismissed, these objections are overruled as to certain requests. No later than February 16, 2024, they shall produce any non-privileged documents with respect to the following requests for production only: Request Nos. 2, 3, 4, 6, 7, 19, 20 through 28 and 31.
Plaintiff's motion is DENIED to the extent that it seeks discovery about the political affiliations or beliefs, ideological perspectives or the individual views of Defendants related to DEI and Racial Equity Policies of the District, the procedural due process aspects of this case such as Loudermill notices or overly broad requests related to other employees, students or various ideological matters. Accordingly, Plaintiff's request for a supplemental or “re-answer” to the following requests for production directed to all Defendants is DENIED: Requests 11, 12, 18 and 32 through 43.
Further, Plaintiff's motion to compel related to Request Nos. 41 through 43, 46 and 47 directed to Hamlet and Waskowicz are DENIED.
Footnotes
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
Defendants also cite Cochran v. City of Atlanta, Georgia, 289 F. Supp. 3d 1276, 1292 (N.D. Ga. 2017), which held that a city employee could not mount a separate viewpoint discrimination claim but did not hold that the issue of the employee's viewpoint was irrelevant to the issues in the case.