                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-22-2007

Montanye v. Wissahickon Sch Dist
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5286




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                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                   No. 05-5286
                                   __________

                            SALLIE K. MONTANYE,
                                             Appellant
                                       v.

                    WISSAHICKON SCHOOL DISTRICT;
        WISSAHICKON SCHOOL DISTRICT BOARD OF DIRECTORS;
           DONNA LEADBEATER, President; BARBARA MOYER;
                 MARJORIE BROWN; BETSY CORNISH;
            WILLIAM MCKERMAN, III; ROBERT MCQUADE;
           YOUNG PARK; PAUL REIBACH; TERESA WILLIAMS,
        Members of the Board; STANLEY J. DURTAN, Supt. of Schools;
                 MARIA SALDVUCCI, Guidance Counselor
                                __________

                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                           (D.C. Civil No. 02-cv-08537)
                     District Judge: Honorable Jan E. DuBois
                                   __________

                            Argued on January 19, 2007

         Before: SLOVITER, RENDELL, and CUDAHY* , Circuit Judges.

                            (Filed: February 22, 2007)

__________________

   * Honorable Richard D. Cudahy, Senior Judge of the United States Court of Appeals
     for the Eighth Circuit, sitting by designation.
Gregory M. Harvey [ARGUED]
Catherine M. Reisman
Montgomery, McCracken, Walker & Roads
123 South Groad Street
Philadelphia, PA 19109

Counsel for Appellant
  Sallie K. Montanye


Michael I. Levin [ARGUED]
Joshua B. Axelrodi
Stacy G. Smith
Levin legal Group
1800 Byberry Road
1301 Masons Mill Business Park
Huntingdon Valley, PA 19006

Counsel for Appellees
  Wissahickon School District;
  Wissahickon School District Board of Directors;
  Donna Leadbeater, President; Barbara Moyer;
  Marjorie Brown; Betsy Cornish;
  William Mckerman, Iii; Robert Mcquade;
  Young Park; Paul Reibach; Teresa Williams,
  Members of the Board; Stanley J. Durtan, Supt. of Schools;
  Maria Saldvucci, Guidance Counselor


                                       __________

                              OPINION OF THE COURT
                                    __________

RENDELL, Circuit Judge.

             Sallie Montanye appeals the District Court’s dismissal of her Amended

Complaint, setting forth several causes of action under 42 U.S.C. § 1983 and the

Rehabilitation Act of 1973, 29 U.S.C. § 794 (the “Rehabilitation Act”), against the

                                            2
Wissahickon School District, Wissahickon High School and various officials of both.

Though Montanye’s Amended Complaint included several counts, only two are the

subject of this appeal: Count 1, in which Montanye alleges violations of her right to

expressive conduct under the First Amendment; and Count 2, wherein Montanye alleges

violations of Section 504 of the Rehabilitation Act. We will affirm the District Court’s

ruling on both counts.1

       I. Factual and Procedural History

       In her Amended Complaint, Montanye sets forth details of her interactions with

K.T. (“K”), a 14-year old student assigned to Montanye’s 9th grade classroom at

Wissahickon High School in September 2001. K had been on homebound instruction for

her 8th grade year due to psychological problems, and had been hospitalized for a suicide

attempt two months before commencing 9th grade. Throughout the fall of 2001,

Montanye and K’s mother discussed K’s ongoing problems at home and at school. In

January 2002, one of Montanye’s classroom aides found a note, written by K, expressing


  1
    The District Court had jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331
and 1343(a)(3). We have appellate jurisdiction under 28 U.S.C. § 1291. As Montanye
challenges the District Court’s grant of Appellees’ motion for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), our review tests the District Court’s view
of the sufficiency of the complaint. “Our review of a district court’s decision to grant a
motion to dismiss . . . is plenary.” Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d
Cir. 1998). The underlying standard governing a motion to dismiss is whether “it is clear
that no relief could be granted under any set of facts that could be proved consistent with
the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Though the
District Court later granted summary judgment in favor of Appellees with respect to
Montanye’s equal protection claims, that order is not the subject of this appeal. See
Montanye v. Wissahickon Sch. Dist., 399 F.Supp.2d 615 (E.D. Pa. 2005).

                                             3
suicidal thoughts. Montanye showed the note to Wissahickon High School Principal

Robert Anderson, who passed it along to the school’s “WIN Team,” an administrative

unit charged with assisting at-risk students. However, Montanye avers that the WIN

Team never contacted K, her mother, or Montanye about the note.

       When Montanye learned about the note and approached K’s mother about it, she

indicated to Montanye that she could not control K and that K was staying at friends’

houses and not coming home at night. K’s mother was clearly upset about the situation.

Montanye suggested to K that she ask her mother if she could see a therapist and gave her

the name of one approved by the school district. When it became clear that K would only

attend therapy sessions if Montanye accompanied her, K’s mother agreed. In February

2002, Montanye made arrangements for K to attend a session, transported K to that

session, and, with K and her mother’s permission, attended the session. Thereafter, K’s

behavior and emotional condition continued to deteriorate. In one incident, K became

hysterical at school, which led to K being admitted to a psychiatric facility for

observation. Following her release, Montanye again attended a therapy session with K.

       In March 2002, Principal Anderson directed Montanye not to attend any future

therapy sessions with K. Later that month, the WIN Team wrote a letter to Anderson

expressing concern about the propriety of Montanye’s interaction with K and other

students identified as “high risk” through the Wissahickon School District’s Student

Assistance Program (“SAP”) process.



                                              4
       In May 2002, School District Superintendent Stanley Durtan sent Montanye a

letter informing her of allegations that she had engaged in “willful neglect of duty,

insubordination, incompetency, persistent negligence in the performance of duties, willful

violation of school laws, and improper conduct growing out of” her involvement in

various situations pertaining to K. Durtan’s letter informed Montanye that a “Loudermill

hearing” would take place, giving her an opportunity to respond to the charges.2

Montanye avers that this hearing was held to “make her resign as part of the District’s

unlawful campaign against special education.” During the hearing, at which Montanye

was represented by counsel, Principal Anderson testified that he had been aware of

Montanye’s efforts with regard to K. Montanye claims that following, and because of,

this testimony, the School District told Principal Anderson to find other employment,

which he eventually did.

       Following the hearing, in June 2002, Superintendent Durtan sent Montanye a letter

– which she characterizes as a “constructive discharge letter” – setting forth various

policies, relating to her interaction with at-risk students, to which Montanye would be

required to adhere over the course of her future employment with the School District.3

The three specific directives contained in the letter were:


  2
    The term “Loudermill hearing” refers to the process a government entity must afford
to a civil servant prior to terminating his or her employment. See Cleveland Bd. of Ed. v.
Loudermill, 470 U.S. 532 (1985).
  3
   Despite Montanye’s assertions about the purpose of Superintendent Durant’s letter,
she concedes that it did not have the effect of formally discharging her.

                                              5
       (1)     that Montanye not engage in any activity or conduct not
               expressly required or reasonably implied by her job or
               contractual duties;

       (2)     that Montanye comply with legal processes and school district
               policies regarding evaluations and referrals of students,
               including the SAP; and

       (3)     that if Montanye engages in any conduct outside the school or
               outside her status of a teacher with any student or parent, she
               is to notify the school and advise the parent that she is doing
               so strictly in her personal capacity.

       Montanye’s complaint characterizes these rules as “impossible new rules for her

behavior.” She avers that the letter was designed to chill her “protected speech and

punish her for helping special education students, in accordance with [Wissahickon

School District’s] official unwritten policy, sanctioned by the School Board, of

discouraging at risk students from finding help and advancing in public school, and

therefore in life.”

       In Count 1 of her Amended Complaint, Montanye avers that her speech and

conduct, “in helping K. to get a therapist, helping K. and Mrs. T. work toward a healthy

family life and giving educational and emotional support to K an at risk student, was

Constitutionally protected speech concerning matters of great public importance” and that

this speech was infringed upon by the Loudermill hearing and the June 2002 letter.

       In Count 2, Montanye avers that under section 504 of the Rehabilitation Act of

1973, 29 U.S.C.A. § 794, defendants are prohibited from retaliating “against any

individual who provides special assistance, advocacy and support for children at risk


                                              6
within a program receiving federal funds.” Montanye contends that she was punished for

providing such assistance to K and therefore is entitled to damages.

       We will address each of these claims in turn.

       II. Count 1 – First Amendment Claim4

       As the District Court found, the Supreme Court has determined that, while

expressive conduct is protected under the First Amendment, “we cannot accept the view

that an apparent limitless variety of conduct can be labeled ‘speech’ whenever the person

engaging in the conduct intends thereby to express an idea.” United States v. O’Brien,

391 U.S. 367, 376 (1967). Rather, to determine whether a particular action or pattern of

conduct constitutes speech protected under the First Amendment, we must ask whether

“an attempt to convey a particularized message was present, and whether the likelihood

was great that the message would be understood by those who viewed it.” Texas v.

Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. State of Wash., 418 U.S. 405,

410-11 (1974)).

       The District Court opined that, here, “[Montanye’]s conduct in assisting an at-risk

student cope with her emotional and psychological problems does not possess sufficient

communicative elements to fall within the protection of the First Amendment.”

Therefore, the District Court concluded, and we agree, that while Montanye’s conduct in



  4
   Though Count 1 of Montanye’s Amended Complaint alleged constitutional violations
under the Fourteenth Amendment, which the District Court dismissed, she has elected
only to pursue her First Amendment claim on appeal.

                                             7
scheduling K’s therapy sessions, transporting her to those sessions and attending those

sessions may have involved some “kernel of expression,” there was no intent to convey

any message, let alone a particularized message, supporting special education, and no

likelihood that her interactions with K could be “understood” as conveying such a

message.

       Accordingly, we will not disturb the District Court’s finding that Montanye failed

to allege that she engaged in conduct protected by the First Amendment and its resulting

dismissal of Count I.

       III. Count 2 – Rehabilitation Act Claim5

       In her Amended Complaint, Montanye alleges that Appellees violated § 504 of the

Rehabilitation Act in conducting the Loudermill hearing and issuing the subsequent June

2002 letter. Section 504 provides that no “otherwise qualified individual with a disability

in the United States . . . shall, solely by reason of her or his disability, be excluded from

the participation in, be denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). This

section, as the District Court properly noted, also dictates that the “standards used to

determine whether this section has been violated in a complaint alleging employment



  5
   In her brief on appeal, Montanye refers to a claim against the School District for
“interference with . . . students’ protected rights” under the Rehabilitation Act and the
Americans with Disabilities Act (“ADA”). However, this claim was neither raised in
Montanye’s Amended Complaint nor in her brief below in opposition to Appellees’
motion to dismiss. Accordingly, Montanye’s claim is not properly before us now.

                                               8
discrimination under this section shall be the standards applied under . . . the Americans

with Disabilities Act of 1990.” 29 U.S.C. § 794(d). The ADA states, in relevant part,

that no “person shall discriminate against any individual because such individual has

opposed any act or practice made unlawful by this [Act] or because such individual made

a charge, testified, assisted, or participated in any manner in an investigation, proceeding,

or hearing under this [Act].” 42 U.S.C. § 12203(a). Finally, we have previously held that

we will “analyze ADA retaliation claims under the same framework we employ for

retaliation claims arising under Title VII.” Krouse v. Am. Sterilizer Co., 126 F.3d 494,

500 (3d Cir. 1997).

       Given this framework, the District Court properly determined that, to state a prima

facie case of retaliation under the ADA and the Rehabilitation Act, “‘a plaintiff must

show: (1) protected employee activity; (2) adverse action by the employer either after or

contemporaneous with the employee’s protected activity; and (3) a causal connection

between the employee’s protected activity and the employer’s action.’” Fogelman v.

Mercy Hosp., 283 F.3d 561, 567-68 (3d Cir. 2002) (quoting Krouse, 126 F.3d at 500).

       The District Court concluded that Montanye failed to allege that she engaged in

protected employee activity under the ADA or the Rehabilitation Act. We agree with the

District Court that Montanye has not alleged that she “opposed any act or practice made

unlawful by” the ADA or Rehabilitation Act, nor has she asserted that she “made a

charge, testified, assisted or participated in any manner in an investigation, proceeding, or

hearing” under the ADA or Rehabilitation Act.

                                              9
       Though Montanye argues that the Rehabilitation Act prohibits retaliation against

individuals who “provide special assistance, advocacy and support,” the District Court

correctly concluded that this is not the type of employee activity protected by the relevant

statutes. It is clear from the case law that protected activity does not include mere

assistance of special education students, but, rather, requires affirmative action in

advocating for, or protesting discrimination related to, unlawful conduct by others. See,

e.g., Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (finding that

“protected conduct” contemplates such activity as “making complaints to management,”

“writing critical letters,” “protesting against discrimination,” and “expressing support of

co-workers”). Indeed, the concept of “protected activity” at issue here is necessarily

limited to, if not speech in the strict sense, at least the sort of expressive conduct which

conveys a message. Therefore, Montanye’s Rehabilitation Act claims fail for the same

reasons that her First Amendment claims fail: Montanye has not sufficiently alleged that

her actions in helping K were expressive or communicative.

       Accordingly, we will not disturb the District Court’s conclusion that Montanye

failed to set forth a claim under the ADA and/or Rehabilitation Act.6


  6
   Appellees argue that Montanye’s claims under Count I and Count II are procedurally
barred and not properly before us. With respect to Count I, Appellees argue that
Montanye’s Notice of Appeal refers only to Count II and, therefore, that we should not
consider her appeal as to Count I. With respect to Count II, Appellees argue that
Montanye has waived her Rehabilitation Act claim because she failed to defend that
claim in her brief below in opposition to Appellees’ motion to dismiss. At oral argument,
counsel for Appellees urged that we rule in their favor on these bases. Rather than rely on
these arguably technical “procedural” grounds, however, we prefer to base our ruling on

                                              10
       IV. Conclusion

       In light of the foregoing, we will AFFIRM the Order of the District Court.

____________




the merits of the District Court’s order of dismissal.

                                             11
