                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-2008

Hesling v. Seidenberger
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2125




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"Hesling v. Seidenberger" (2008). 2008 Decisions. Paper 918.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/918


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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                   Case No: 07-2125

                                CHRISTINE HESLING,

                                            Appellant

                                            v.

                     THOMAS SEIDENBERGER, In His Official
                        Capacity as Superintendent for the
                          Avon Grove School District


                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              District Court No. 04-cv-4874
                     District Judge: The Honorable Louis H. Pollak


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    July 1, 2008

                             Before: RENDELL, SMITH,
                             and FISHER, Circuit Judges

                                  (Filed: July 2, 2008)


                                       OPINION


SMITH, Circuit Judge.

      With this appeal, Christine Hesling argues that the District Court erred in granting

summary judgment in favor of defendant, then-Superintendent for the Avon Grove
School District Dr. Thomas Seidenberger, on her retaliation claims brought pursuant to 42

U.S.C. § 1983 and the Individuals with Disabilities Education Act (IDEA), the Americans

with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and the First

Amendment.1 Each claim emanates from actions allegedly taken against her by

Seidenberger in retaliation for her successful use of special education due process

proceedings on behalf of her two children and her special education advocacy. In a claim

for retaliation under 42 U.S.C. § 1983, a plaintiff must establish a causal relationship

between his or her protected activity and the retaliatory action. See, e.g., Thomas v.

Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (First Amendment); Lauren W. ex rel. Jean

W. v. Deflaminis, 480 F.3d 259, 267 (3d Cir. 2007) (Rehabilitation Act). Because we

conclude that Hesling has failed to establish the requisite causal connection to sustain her

claims of retaliation, we will affirm.2



   1
       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
   2
      In addition, Hesling has waived her retaliation claims under the ADA and the
Rehabilitation Act by failing to raise them in her opening brief. “An issue is waived
unless a party raises it in its opening brief, and for those purposes ‘a passing reference to
an issue . . . will not suffice to bring that issue before this court.’” Laborers’ Intern.
Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir.
1994) (citation omitted). Even if Hesling had not waived these claims, we would still
deny relief on the merits in light of the absence of a causal connection. Further, nothing
in this opinion should be construed as implying that Hesling had standing to bring a
retaliation suit under the IDEA on her own behalf, or that she was—or was not—required
to administratively exhaust said claim. Even if we assume that Hesling has standing to
protect her procedural rights under the IDEA and that there are no procedural defects in
her presentation of the claim, she has failed to show, as a matter of law, a causal
connection between the exercise of that protected activity and the alleged adverse action.

                                              2
       The alleged retaliatory act at issue is a letter to the editor of the Avon Grove Sun

written by an attorney on behalf of some administrators, not including Seidenberger, for

the Avon Grove School District.3 The letter reacted to a newspaper article written by

Hesling in her capacity as a journalist for the Avon Grove Sun.4 The letter, which was

ultimately published, contended that Hesling had a conflict of interest in reporting on

Avon Grove School Board activities because she had been involved in “litigation” with

the School District for the last two years. Hesling claims that Seidenberger was shown

the letter before it was sent to the newspaper, that he told a fellow administrator about her

advocacy efforts on behalf of an organization known as Casualties of Public Education

(COPE), that he did not have any significant disagreement with the content of her

newspaper article, but that nonetheless he did not prevent the administrators from sending

the letter, and took no disciplinary action against them.

       In a claim for retaliation, plaintiffs “must show (1) that they engaged in a protected

activity, (2) that defendants’ retaliatory action was sufficient to deter a person of ordinary

firmness from exercising his or her rights, and (3) that there was a causal connection

between the protected activity and the retaliatory action.” Lauren W. ex rel. Jean W., 480

F.3d at 267 (citations omitted). Even if we agree that the first two elements are met,



   3
     The record indicates that the attorney was retained for purposes wholly unrelated to
the Hesling article.
   4
    Hesling wrote part-time on a freelance basis for the Avon Grove Sun, a local
newspaper, covering Avon Grove School Board meetings and School District activities.

                                              3
Hesling has failed to show the necessary causal relationship between her protected

activity and the adverse action. To establish the requisite causal connection

       a plaintiff usually must prove either (1) an unusually suggestive temporal
       proximity between the protected activity and the allegedly retaliatory action, or (2)
       a pattern of antagonism coupled with timing to establish a causal link. In the
       absence of that proof the plaintiff must show that from the evidence gleaned from
       the record as a whole the trier of the fact should infer causation.

Lauren W. ex rel. Jean W., 480 F.3d at 267 (citations and quotation omitted).

       While the record reflects some frustration on the part of Seidenberger with

Hesling, there is no testimony suggesting an ongoing pattern of antagonism or evidencing

any connection between Seidenberger’s feelings and the letter. Seidenberger was not one

of the administrators who retained the attorney, did not request that the letter be written or

sent, and was only shown the letter briefly after it had already been written. While

Seidenberger did provide information regarding COPE, we do not see how this changes

the calculus. There is no evidence in the record to show that Seidenberger had any other

connection whatsoever to the letter, which is the only alleged retaliatory act at issue.

There is also no evidence to suggest that the letter was in response to anything other than

disagreement with the article’s substantive accuracy and Hesling’s perceived conflict of

interest and failure to disclose that conflict in the article. Further, Seidenberger did not

have the ability to take disciplinary action against the administrators for sending the letter.

See generally Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968).

       Finally, the temporal proximity here is not unusually suggestive so as to establish



                                              4
the requisite causal connection. The record reflects Seidenberger’s knowledge that

Hesling’s due process proceedings with the School District had been ongoing for about

two years. With Hesling’s ongoing protected activity, it cannot be said that the timing of

this letter is unusually suggestive.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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