                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-2004

Reppert v. Reading Sch Dist
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2458




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Recommended Citation
"Reppert v. Reading Sch Dist" (2004). 2004 Decisions. Paper 706.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/706


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                                         NOT PRECEDENTIAL

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                   _______________

                        No. 03-2458
                     ________________

                     EDWIN REPPERT,
                                         Appellant

                              v.

    READING AREA SCHOOL DISTRICT; READING AREA
 SCHOOL DISTRICT EDUCATION BOARD; IRENE M. CARSON,
IN HER OFFICIAL CAPACITY AND INDIVIDUALLY; KENNETH
CHRISTIAN, IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY;
   DR. C. EVE KIMBALL, IN HER OFFICIAL CAPACITY AND
 INDIVIDUALLY; EUGENE C. LAMANNA, ESQ., IN HIS OFFICE
  CAPACITY AND INDIVIDUALLY; RONALD MCDOWELL, IN
        HIS OFFICIAL CAPACITY AND INDIVIDUALLY
            ____________________________________

        On Appeal From the United States District Court
            For the Eastern District of Pennsylvania
                    (D.C. No. 01-CV-05696)
          District Judge: Honorable Herbert J. Hutton
        _______________________________________

            Submitted Under Third Circuit LAR 34.1(a)
                      May 4, 2004
   Before: SLOVITER, FUENTES and BECKER, Circuit Judges


                    (Filed: May 14, 2004)

                 _______________________

                        OPINION
                 _______________________
BECKER, Circuit Judge.

       This is an appeal from an order of the District Court granting summary judgment

to the defendants, Reading Area School District (“District”) and various officials of the

District. Because the parties are fully familiar with the background facts and procedural

history we need not set them forth, and limit our discussion to our ratio decidendi.

       Reppert seeks to proceed on both federal and state claims. The District Court

dismissed his state law claim on the ground that it was preempted by the National Labor

Relations Act (“NLRA”). See Reppert v. Reading Area Sch. Dist., No. 01-5696, 2003

U.S. Dist. LEXIS 7769, at *13 (E.D. Pa. Apr. 16, 2003). As the Court aptly noted,

Reppert’s papers do not identify exactly what state causes of action he is asserting, hence

the defendants “can only . . . point to the allegedly offending conduct and show that such

conduct is arguably governed by the NLRA.” Id. at *12. It appears to us, based on the

papers, that Reppert’s state law claims arise from his termination from employment with

the District, and that the termination was based on allegedly false representations that

Reppert made to the District in his capacity as union shop steward, i.e. the alteration of

the statement of Mr. Moll’s doctor based upon which Moll sought (and Reppert as shop

steward sought on his behalf) to be placed in another position under the collective

bargaining agreement between the union and the District. Under these circumstances,

Reppert’s termination is governed by the NLRA, and the preemption decision was

correct.



                                              2
       In contrast, and contrary to the statements in Reppert’s appellate brief, his § 1983

claims were not dismissed on preemption grounds. The District Court clearly stated that

“Accordingly, in this case, Plaintiff’s section 1983 claims are not within the sole

jurisdiction of the NLRB. The Court determines, therefore, that it has jurisdiction to hear

such claims.” Id. at *9. The threshold problem here (again) was the conclusory nature of

Reppert’s complaint. As the District Court noted:

       Moreover, the gravamen of the complaint is that Plaintiff was fired for exercising
       his right to free speech as a member of a union. Plaintiff pleads no facts support a
       Fourth or Fourteenth Amendment claim. Thus the Court construes Plaintiff’s
       claim as one alleging infringement of his First Amendment rights.

Id. at *16 (footnote omitted).

       With respect to the First Amendment claims, the District Court reasoned that

Reppert’s § 1983 claims were dismissed because the conduct that resulted in his dismissal

“does not relate to a matter of public concern.” Id. at *19. Rather, the Court concluded

that the termination arose in the context of “his personal business as a union official” and

concerned Mr. Moll’s health, “rather than any union business which might possibly be

important to the community.” Id. at *19-20. In sum, in the absence of allegations that

Reppert was punished for speaking out on a matter of public concern, or that his First

Amendment rights were otherwise abridged, Reppert’s § 1983 claim was “dismissed for

failing to raise a genuine issue of material fact regarding the deprivation of his

constitutional rights.” Id. at *20.

       Because “[t]he inquiry into the protected status of speech is one of law, not fact,”

                                              3
Connick v. Myers, 461 U.S. 138, 148 n.7 (1983), and there are no factual disputes here

about what was actually said, the question is not, strictly speaking, whether Reppert

raised a genuine issue of material fact, but rather whether, as a constitutional matter, his

speech was on a matter of public concern. This technicality aside, the District Court’s

analysis was correct. To be protected, a public employee’s speech must address a matter

of public concern, id. at 146, which it does if “it can be ‘fairly considered as relating to

any matter of political, social, or other concern to the community.’” Holder v. City of

Allentown, 987 F.2d 188, 194 (3d Cir. 1993) (quoting Connick, 461 U.S. at 146). Mr.

Moll’s interest in changing jobs and Reppert’s fraudulent conduct can scarcely be

considered to be of public concern.

       The judgment of the District Court will be affirmed.




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