                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2005

McGreevy v. Stroup
Precedential or Non-Precedential: Precedential

Docket No. 03-4624




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                                              PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 03-4624


                   LINDA MCGREEVY,
                          Appellant

                                v.

 ROGER STROUP, individually and in his official capacity as
    Principal of Bermudian Springs Elementary School;
  KATHLEEN TSOSIE, individually and in her capacity as
         Assistant Principal of Bermudian Springs
                 Elementary School District;
 GERALD SOLTIS, individually and in his official capacity as
   Superintendent of Bermudian Springs School District;
    BERMUDIAN SPRINGS SCHOOL DISTRICT


       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
                    (D.C. No. 01-cv-01461)
         District Judge: Honorable Sylvia H. Rambo


                  Argued: October 4, 2004

      Before: SLOVITER, BECKER, and STAPLETON,
                     Circuit Judges.

                   (Filed:   June 28, 2005)


Richard C. Angino (Argued)
Angino & Rovner
Harrisburg, PA 17110
       Attorney for Appellant

Stephen S. Russell (Argued)
Stock & Leader
York, PA 17404

       Attorney for Appellees




                   OPINION OF THE COURT




SLOVITER, Circuit Judge.

        Linda McGreevy, a school nurse, filed this civil rights
action under 42 U.S.C. § 1983, against defendants: the
Bermudian Springs School District (the “District”); Gerald
Soltis, the District’s superintendent; Roger Stroup, principal of
the Bermudian Springs Elementary School; and Kathleen Tsosie,
the assistant principal of the Bermudian Springs Elementary
School, claiming that defendants violated her First Amendment
rights by giving her a grossly unsatisfactory employment rating
in retaliation for her advocacy on behalf of two disabled students
and her reports to state authorities regarding perceived violations
of state requirements.

      The United States District Court for the Middle District of
Pennsylvania granted defendants’ motions for summary
judgment on all but one issue. During trial, the Court granted
defendants’ motion for judgment as a matter of law on the
remaining issue. McGreevy filed a timely notice of appeal.1




       1
       The District Court had jurisdiction under 28 U.S.C. § 1331
and we have jurisdiction to review the District Court’s final orders
pursuant to 28 U.S.C. § 1291.


                                 2
                                I.
                               Facts

       Linda McGreevy was employed as the school nurse at the
Bermudian Springs School District Elementary School
beginning in 1994. McGreevy is a licensed professional nurse, a
pediatric nurse practitioner, and a certified school nurse. She
holds a school nurse certificate from Millersville University, a
Masters of Education from Penn State University, a certified
nurse practitioner degree from the College of Medicine and
Dentistry of New Jersey and Rutgers and a Bachelor of Science
Nursing Degree from Fairleigh Dickenson University. She is
also qualified to be a school principal. Between 1994 and 1999,
McGreevy consistently received outstanding employment
ratings, scoring 75 or higher out of a possible 80 points. Under
the District’s categories of ratings, 75-80 is considered
“excellent,” the highest possible category.

       In 1999, McGreevy began to speak out on four issues
which the District Court concluded were constitutionally
protected speech. She advocated on behalf of the mother of two
orthopedically disabled children in order to gain them special
assistance; she criticized the School District’s employment of an
unlicensed individual to conduct pesticide spraying which
caused many students and teachers to become ill; she
communicated with the Pennsylvania Department of Health
regarding her incorrect listing as supervising middle school
nurse; and she filed two complaints with the state’s Office for
Civil Rights, one with respect to the District’s handling of the
two children and the other regarding her employment rating of
71 for the 1999-2000 school year.

       In advocating for the two disabled boys, McGreevy
contacted the Bureau of Compliance of the Pennsylvania
Department of Education and spoke with Brenda Tantow. The
exact content of this conversation is in dispute. According to
Tantow, McGreevy told her that the children were in danger of
being physically injured, that the District kept two sets of records
on the children, and that principal Stroup was gathering
information against the boys’ mother to release to Children’s

                                 3
Services in an effort to have them removed from their home.
McGreevy denied making the latter two statements.2 There was
a meeting involving McGreevy, Soltis, Stroup and the former
assistant superintendent of the District to discuss McGreevy’s
alleged statements to Tantow. Afterwards, Soltis prepared a
memorandum summarizing the meeting, which was placed in
McGreevy’s personnel file.

        Shortly after the conversation with Tantow, McGreevy
informed the Pennsylvania Department of Health that unlicensed
pesticide spraying had occurred at the school and that, as a
result, a number of students and teachers had become ill.
McGreevy’s information led to an investigation and ultimately
the Pennsylvania Department of Agriculture levied a fine on the
District. Soon after the spraying incident, McGreevy learned
that she was incorrectly listed as the middle school nurse and she
so informed the Department of Health.3 As a result, the
Pennsylvania Department of the Auditor General, Office of
Special Investigations, began an investigation of the School
District and eventually ordered withholding of future
reimbursements from the Pennsylvania Department of Health for
school nurse services. At the end of the 1999-2000 school year
McGreevy received a rating of 71, her lowest rating to date.

       According to McGreevy, shortly after the Auditor


       2
        The District Court noted in its opinion that the mother of
the boys also confirmed that McGreevy did not give her the
misinformation alleged. App. at 5-6.
       3
          The middle school had a Licensed Nurse Practitioner
(LNP) but under the Practical Nurse Law a LNP must act under the
supervision of a professional nurse. The Public School Code
provision, 24 Pa. Const. Stat. §§ 1402(a.1), 1401(8), requires a
school district to provide each student with school nurse service by
a licensed, registered nurse properly certificated by the
Superintendent of Public Instruction. In this case, it was incorrect
to list McGreevy, who was the certified nurse for the elementary
school, as the certified nurse for the middle school because
McGreevy did not supervise the LNP.

                                 4
General began his investigation of the School District in
December of 2000, the school officials significantly increased
their harassment of her. McGreevy states that she was
constantly criticized and berated by principal Stroup, assistant
principal Tsosie and superintendent Soltis. McGreevy claims
that because of this harassment, she suffered such constant and
severe migraine headaches that she was compelled to take a two-
week leave and ultimately compelled to resign, which she
attempted by letter dated March 20, 2001.

        According to the District, McGreevy’s March resignation
was ineffective and hence not accepted. As a result, the
District’s counsel sent McGreevy a letter dated May 7, 2001
stating that if she did not return to work by May 14, 2001 she
would be deemed to have abandoned her employment, her
employment would be terminated and she would be replaced.
McGreevy did not return to work and was notified by letter,
dated July 17, from the attorney for the School Board that she
was deemed to have abandoned her position and the District was
determining whether to dismiss her. That letter also warned her
about the possible loss of her RN license.

        On June 1, 2001, McGreevy received a copy of her
official rating of 40 for the 2000-2001 school year. On
November 2, 2001, the District informed the Public School
Employees Retirement Systems that McGreevy had been
terminated as of November 2, 2001. On November 30th, the
School Board sent her a written list of reasons for her dismissal
and informed her that there would be a hearing to determine if
she should be dismissed. It is McGreevy’s position that her
employment had been terminated the previous spring.

        On August 2, 2001, McGreevy filed a complaint under 42
U.S.C. § 1983, alleging violations of her First Amendment
rights and unlawful taking of her intellectual property without
due process of law. That complaint named as defendants the
District and school officials Soltis, Stroup and Tsosie in their
official and individual capacities. McGreevy filed a motion to
amend her complaint on September 18, 2002, to add, inter alia,
state law claims of libel, slander, tortious interference with

                                5
contract, common law conspiracy, and intentional infliction of
emotional distress. The District Court denied McGreevy’s
motion as to her intentional infliction of emotional distress and §
1983 takings claims, but permitted her to file an amended
complaint asserting her § 1983 First Amendment claim, and her
state law claims of defamation, tortious interference with
contract and common law conspiracy.

       Following several pre-trial motions, the District Court
issued a summary judgment order on March 26, 2003 dismissing
McGreevy’s § 1983 claim against the District, stating that there
was no “evidence of any policy, practice or custom” of its Board
of Directors that violated McGreevy’s First Amendment rights.
The same order dismissed McGreevy’s complaint against all
three officials in their individual capacities on the ground that
they were entitled to qualified immunity. Finally, the Court
dismissed all remaining claims asserted in the amended
complaint. The sole remaining issue left for trial was “whether
Defendant Soltis, Stroup and Tsosie, acting in their official
capacities, retaliated against Plaintiff by giving her a 40 out of
80 on her June of 2001 employment evaluation.” App. at 1.

        Trial commenced on September 2, 2003. At the close of
McGreevy’s case, the District Court granted defendants’ motion
for judgment as a matter of law, stating that “[p]laintiff
presented no evidence from which a reasonable jury could
conclude that either the District or the school officials in their
official capacities had a practice or custom of using these
evaluations for [a retaliatory purpose].” App. at 41.

       This appeal followed.

                               II.
                           Discussion

A. Standard of Review

       We have plenary review over the District Court’s grant of
summary judgment and apply the same standard as the District
Court. Blair v. Scott Specialty Gases, 283 F.3d 595, 602-03 (3d

                                 6
Cir. 2002). We must view the underlying facts and all
reasonable inferences therefrom in the light most favorable to
the party opposing the motion and decide “whether there are any
genuine issues of material fact such that a reasonable jury could
return a verdict for [the non-moving party].” Debeic v. Cabot
Corp., 352 F.3d 117, 128 n.3 (3d Cir. 2003) (citing Fed. R. Civ.
P. 56(c)). The standard of review for orders granting judgment
as a matter of law is also plenary and we likewise apply the same
standard as the District Court. “A motion for judgment as a
matter of law under Federal Rule 50(a) should be granted only if,
viewing the evidence in the light most favorable to the
nonmoving party, there is no question of material fact for the
jury and any verdict other than the one directed would be
erroneous under the governing law.” Beck v. City of Pittsburgh,
89 F.3d 966, 971 (3d Cir. 1996) (internal quotations omitted).

B. Individual Capacity Liability

        McGreevy argues that the District Court erred in holding
that the individual defendants were entitled to qualified
immunity on her § 1983 claim against them. The doctrine of
qualified immunity shields government officials from civil
liability as long “as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In considering a defendant’s motion
for summary judgment on the ground of qualified immunity, our
task is to first determine whether the facts, and inferences drawn
therefrom, taken in the light most favorable to the plaintiff,
establish that the official’s conduct violated a constitutional
right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, “we
must next determine whether, as a legal matter, the right that the
defendant’s conduct allegedly violates was a clearly established
one, about which a reasonable person would have known.”
Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). Defendants
are entitled to qualified immunity only if the constitutional or
statutory violation alleged is not clearly established.

1. McGreevy’s Speech was Protected by the First
Amendment

                                7
        “Although public employees do not relinquish their right
to free speech by virtue of their employment, neither do they
enjoy absolute First Amendment rights.” Ceballos v. Garcetti,
361 F.3d 1168, 1173 (9th Cir. 2004). To determine whether a
public employee’s speech is entitled to First Amendment
protection, we apply a three-step test derived from the Supreme
Court’s decisions in Connick v. Myers, 461 U.S. 138 (1983), and
Pickering v. Board of Education, 391 U.S. 563 (1968). First, we
must determine whether the speech addresses a matter of public
concern. See Baldassare v. New Jersey, 250 F.3d 188, 194 (3d
Cir. 2001) (citing Connick v. Myers, 461 U.S. 138, 147 (1983).
If it does, we then employ the Pickering balancing test to
determine whether an employee’s interest in the speech
outweighs the state’s countervailing interest as an employer in
promoting workplace efficiency and avoiding workplace
disruption. See Pickering, 391 U.S. at 568 (requiring courts to
strike “a balance between the interests of the [employee], as a
citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency
of public services it performs through its employees”). Finally,
if these criteria are met, plaintiff must show that the protected
activity was a substantial or motivating factor in the alleged
retaliatory action. See Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977). A public employer can
rebut an employee’s claim of retaliation by demonstrating that it
would have reached the same decision, even in the absence of
the protected conduct. Baldassare, 250 F.3d at 195. Whereas
the first and second step inquiries are questions of law for the
court, the final inquiry presents a question of fact for the jury.

a. Matter of Public Concern

       A public employee’s speech addresses a matter of public
concern when it relates to an issue of “political, social, or other
concern to the community.” Connick, 461 U.S. at 146. The
Supreme Court has distinguished between employee speech
addressing matters of personal interest, and speech which truly
target matters of public concern. In Connick, the Court held that
an assistant district attorney’s solicitation of her colleagues’

                                 8
views on office morale, the policy for transferring employees,
the need for a grievance committee, and the level of confidence
in supervisors was speech intended primarily “to gather
ammunition for another round of controversy” in the individual’s
personnel dispute. Id. at 148. By contrast, the Connick
plaintiff’s speech regarding “the issue of whether assistant
district attorneys are pressured to work in political campaigns[,]
is a matter of interest to the community upon which it is essential
that public employees be able to speak out freely without fear of
retaliatory dismissal.” Id. at 149.

        In the case before us, it is undisputed that McGreevy’s
advocacy on behalf of the two disabled students, her notice to
state officials that she was not a middle school nurse, and her
objection to pesticide spraying by an unlicensed individual, were
matters of true public concern. See, e.g., San Filippo v.
Bongiovanni, 30 F.3d 424, 435 n.13 (3d Cir. 1994) (stating that a
Rutgers University professor was speaking on matters of public
concern when he made statements in a school newspaper
criticizing the University for inadequate ventilation in the
chemistry labs, testified in a grand jury regarding an
investigation into the manufacture of illegal drugs in the
University’s laboratories, criticized the faculty’s attempt to
secure funding for a mass spectrometer by deceiving federal
funding agencies, and voiced his dissatisfaction with senior
members of his department over their efforts to obtain an
inappropriate percentage of his federal grants); Zamboni v.
Stamler, 847 F.2d 73, 78 (3d Cir. 1988) (finding that a civil
service employee’s criticism of county prosecutor’s
reorganization and promotion plan was constitutionally protected
speech). Defendants do not argue otherwise.

b. The Pickering Balancing

       Although McGreevy’s speech did concern matters of
public interest, it is protected speech only if the court also finds
that her interests in the speech outweigh the state’s
countervailing interests in the “efficiency and integrity in the
discharge of official duties, and [in maintaining] proper
discipline in the public service.” Connick, 461 U.S. at 150-51.

                                  9
The “more tightly the First Amendment embraces the speech the
more vigorous a showing of disruption must be made.” Hyland
v. Wonder, 972 F.2d 1129-139 (9th Cir. 1992).

       “Speech involving government impropriety occupies the
highest rung of First Amendment protection.” Swineford v.
Snyder County Pa., 15 F.3d 1258, 1274 (3d Cir. 1994).
Therefore, defendants in the present case bear a truly heavy
burden. We agree with the District Court that “there is no
allegation on the part of Defendants that Plaintiff’s conduct
greatly disrupted the functioning of the Bermudian Springs
elementary school.” App. at 18. Because no substantial
countervailing administrative interest has been proffered, we
hold that for summary judgment purposes, McGreevy’s speech
was protected by the First Amendment.

c. Retaliation

        Finally, we also agree with the District Court that
McGreevy “has satisfied her prima facie burden of proof . . . .
[and] it is for the jury to decide whether Plaintiff’s
constitutionally protected activity was a substantial or motivating
factor in Defendant’s decision to give Plaintiff 40 out of 80 on
her 2000-2001 evaluation.” App. at 24. Defendants do not
contest this finding.

2. The Constitutional Right was Clearly Established

        We part ways with the District Court however, over its
conclusion that the school officials are entitled to qualified
immunity.4 Despite finding that McGreevy was engaging in
protected speech, the court nonetheless found that she “ha[d]
failed to come forward with case law that closely corresponds to
Defendants’ actions which would indicate that Defendants



       4
        Although McGreevy named assistant principal Kathleen
Tsosie as a defendant, at oral argument counsel agreed to drop the
claim against her and therefore our decision only pertains to
defendants Stroup and Soltis.

                                10
should have been aware that what they were doing was
unlawful.” App. at 28. In arriving at this decision, the Court
relied heavily on decisions of our sister circuits which hold that
“because Pickering’s constitutional rule turns upon a fact-
intensive balancing test, it can rarely be considered ‘clearly
established’ for the purposes of the Harlow qualified immunity
standard.” App. at 27 (citing Guericio v. Brody, 911 F.2d 1179,
1183-85 (6th Cir. 1990); Melton v. Oklahoma City, 879 F.2d
706, 728-29 (10th Cir. 1989); Dartland v. Metro. Dade County,
866 F.2d 1321, 1323 (11th Cir. 1989); Noyola v. Texas Dept. of
Human Res., 846 F.2d 1021, 1024 (11th Cir. 1988); Benson v.
Allphin, 786 F.2d 268, 276 (7th Cir. 1986)).

        We are not convinced by the District Court’s analysis.
Recent decisions (many from the same circuits as the above cited
cases) have definitively held that “where the [Pickering]
balancing factors weigh heavily in favor of the employee, the
law is clearly established, and qualified immunity is therefore
unavailable.” Ceballos, 361 F.3d at 1181; see, e.g., Kinney v.
Weaver 367 F.3d 337, 372 n.41 (5th Cir. 2004) (distinguishing
the circuit’s prior holding in Noyola, and stating that
“[u]nderscoring the fact that Noyola does not purport to
command a particular result, three of the four Fifth Circuit
Pickering cases that cite Noyola deny the official’s claim of
qualified immunity”); Paradis v. Montrose Mem’l Hosp., 157
F.3d 815, 819 (10th Cir. 1998) (denying qualified immunity after
Pickering balancing because the case law clearly established that
plaintiff’s speech was a matter of public concern and entitled to
protection under the First Amendment); Williams v. Com. of
Ky., 24 F.3d 1526, 1537 (6th Cir. 1994) (same).

        As a general matter, a right is “clearly established” when
the contours of the right are “sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.” Saucier, 533 U.S. at 202. To be “clearly established”
does not mean that “the very action in question has previously
been held unlawful,” Hope v. Pelzer, 536 U.S. 730, 739 (2002);
rather it merely means that in light of preexisting law, the
unlawfulness of the official’s conduct was reasonably and
objectively apparent. Wilson v. Layne, 526 U.S. 603, 615

                                 11
(1999). Indeed, the Supreme Court has made clear that “officials
can still be on notice that their conduct violates established law
even in novel factual circumstances.” Hope, 536 U.S. at 741.

        In the case before us, the illegality of the officials’ actions
was “sufficiently clear that they can fairly be said to have been
on notice of the impropriety of their actions.” Kinney, 367 F.3d
at 372. Defendants have not proffered any legitimate
countervailing interests in limiting McGreevy’s speech, much
less a countervailing interest which would outweigh McGreevy’s
interest in addressing matters of such weighty public concern.
When the balance of cognizable interests weigh so heavily in an
employee’s favor, our cases make plain that the law is clearly
established. See, e.g., Czurlanis v. Albanese, 721 F.2d 98, 107
(3d Cir. 1983) (holding that county employees’ speech at board
meeting was constitutionally protected because it was a matter of
public concern and because the county was unable to set forth a
sufficient countervailing interest); Monsanto v. Quinn, 674 F.2d
990, 999 (3d Cir. 1982) (holding that internal revenue
department employee’s speech was constitutionally protected
because it was a matter of public concern and because no
substantial disruption was alleged); Trotman v. Bd. of Tr., 635
F.2d 216 (3d Cir. 1980) (reversing motion to dismiss for
defendants and holding that faculty member’s criticism of
university president constituted core speech); see also Porter v.
Califano, 592 F.2d 770, 773 (5th Cir. 1979) (reversing summary
judgment for defendants in a suit by a clerk-typist suspended for
writing a letter critical of her superiors because at a minimum,
the state must “clearly demonstrate that the employee’s conduct
substantially and materially interferes with the discharge of
duties and responsibilities inherent in such employment”).

        We therefore hold that qualified immunity must be denied
and that the District Court erred in granting summary judgment
for the school officials in their individual capacities.

C. District’s Liability

       McGreevy also asserted a claim against the District as
well as against Stroup and Soltis in their official capacities. The

                                  12
District Court held that the District was entitled to summary
judgment because “plaintiff has failed to adduce evidence of any
policy, practice, or custom of the Bermudian Springs School
Board of Directors that violated her First Amendment rights.”
App. at 25. The Court held that only the School Board was a
final policymaker for purposes of § 1983.

         In Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 694
(1978), the Supreme Court established that a municipality cannot
be held liable under § 1983 for the constitutional torts of its
employees by virtue of respondeat superior. Instead, a
municipality may only be liable for the torts of its employees in
one of three ways: First, the municipality will be liable if its
employee acted pursuant to a formal government policy or a
standard operating procedure long accepted within the
government entity, Jett v. Dallas Independent School District,
491 U.S. 701, 737 (1989); second, liability will attach when the
individual has policy making authority rendering his or her
behavior an act of official government policy, Pembaur v. City
of Cincinnati, 475 U.S. 469, 480-81 (1986); third, the
municipality will be liable if an official with authority has
ratified the unconstitutional actions of a subordinate, rendering
such behavior official for liability purposes, City of St. Louis v.
Proprotnik, 485 U.S. 112, 127 (1988).

        For purposes of deciding the present appeal, we need
focus only on the second method by which liability may attach.
The Supreme Court’s decision in Pembaur makes clear that an
official with policymaking authority can create official policy,
even by rendering a single decision. As the Court stated in that
case, “it is plain that municipal liability may be imposed for a
single decision by municipal policymakers under appropriate
circumstances.” 475 U.S. at 480. The Court further explained
that the power to establish policy is not the exclusive province of
the legislature and held that “Monell’s language makes clear that
it expressly envisioned other officials ‘whose acts or edicts may
fairly be said to represent official policy.’” Id. at 480 (quoting
Monell, 436 U.S. at 694). Accordingly, even one decision by a
school superintendent, if s/he were a final policymaker, would
render his or her decision district policy. Therefore, in order to

                                13
determine if the District can be held liable for the school
officials’ actions, in this case McGreevy’s 40 rating, we must
determine whether superintendent Soltis was a final
policymaker, a question of state law.

       The District Court believed that under Pennsylvania law,
a school superintendent is not a final policymaker. Instead,
according to the Court, the “school board is the final policy
maker for the district as to all employment decisions [including
employment ratings].” App. at 25. The Court then concluded
that because the superintendent is not a final policymaker and
because the “Plaintiff has failed to adduce evidence of any
policy, practice or custom of the Bermudian School Board of
Directors that violated her First Amendment rights,” the District
was entitled to summary judgment. App. at 25.

        In holding that a school superintendent is not a final
policymaker, the District Court relied on 24 Pa. Const. Stat. §§
5-508, 5-514, 10-1081 of the Pennsylvania Code. Under § 5-
508, a majority vote of the school board is required when
“[d]ismissing a teacher after a hearing.” 24 Pa. Const. Stat. § 5-
508. Similarly, § 5-514 states that the school board has “the
right at any time to remove any of its officers, employees or
appointees for incompetence, intemperance, neglect of duty,
violation of any of the school laws of this Commonwealth, or
other improper conduct.” 24 Pa. Const. Stat. § 5-5-514.
According to the District Court, these statutes demonstrate that
the school board is the final policymaker with regard to all
employment decisions, including employee ratings. In addition,
the Court further justified its decision by relying on § 10-1081
which lists the “duties of district superintendents” but does not
mention employment ratings. Lastly, the District Court relied on
decisions of the Courts of Appeals for the Seventh and Eighth
Circuits which held that the school board and not the school
superintendent has the ultimate responsibility for all school
district policies. See Springdale Educ. Ass’n v. Springdale Sch.
Dist., 133 F.3d 649, 653 (8th Cir. 1998); Duda v. Franklin Park




                                14
Sch. Dist., 133 F.3d 1054, 1061 (7th Cir. 1998).5

       The fact that the Pennsylvania Code provides that the
school board is the final policymaker regarding dismissal of
employees does not mean that a school board action is a
prerequisite for imposition of liability on the District. Although
dismissal by the school board may be based, in part, on the
employee’s employment rating, 24 Pa. Const. Stat. § 11-1123
makes clear that the superintendent is the final policymaker over
ratings determinations. Section 1123 provides:

       Rating shall be done by or under the supervision of the
       superintendent of schools or, if so directed by him, the
       same may be done by an assistant superintendent, a
       supervisor, or a principal, who has supervision over the
       work of the professional employe [sic] or temporary
       professional employe [sic] who is being rated: Provided,
       That [sic] no unsatisfactory rating shall be valid unless
       approved by the district superintendent.

Id. This section unambiguously gives the superintendent final
policymaking authority with regard to employment ratings.

       As we explained in Kneipp v. Tedder, 95 F.3d 1199 (3d
Cir. 1996), “[i]n order to ascertain who is a policy maker a court
must determine which official had final, unreviewable discretion
to make a decision or take action.” Id. at 1213 (internal
quotations omitted). In this case, defendants argued, and the
District Court agreed, that under Kneipp the School Board is the
final policymaker because the Board would have had the power
to review McGreevy’s rating if she had appealed. We disagree.



       5
         The District Court made the latter two arguments in its
September 4, 2003 judgment as a matter of law (pertaining to the
officials’ liability in their official capacities) and its December 2,
2003 denial of McGreevy’s motion for a new trial, respectively.
These discussions, however, are pertinent to the instant discussion.



                                 15
        McGreevy did not appeal to the School Board with
respect to her 40 rating, and she was not required to take such an
appeal under either the Pennsylvania statute or § 1983. There is
no exhaustion requirement under § 1983. Patsy v. Bd. of
Regents, 457 U.S. 496, 502 (1982). Absent an appeal, the
School Board has no input with respect to an employee’s rating.
In such cases, the superintendent has final unreviewable
authority to issue employment ratings, an authority he can, and
did in this case, delegate to the principal.

        Pennsylvania case law is in accord. See Milberry v. Bd.
of Educ., 354 A.2d 559, 561 (Pa. 1976) (stating that the public
school code does not “grant the board sole authority to make
decisions concerning the rating . . . of a . . . teacher.”); Graham v.
Mars Area Sch. Dist., 415 A.2d 924, 926 (Pa. Commw. Ct. 1980)
(holding that a “final rating” as opposed to a “general rating,” is
that “in which the district superintendent certifies that the teacher
has received either a satisfactory or unsatisfactory rating for the
period of his employment”).

        Because the school superintendent is a final policymaker
with regard to ratings, his ratings and/or those of the school
principal constitute official government policy.
It follows that the District Court erred in granting summary
judgment for the District. A reasonable jury could find that the
40 rating given to McGreevy by the principal and adopted by the
Superintendent was in retaliation for the exercise of her First
Amendment rights. If the jury so found, the District would be
subject to liability.

D. Official Capacity Liability

        The same analysis is applicable to McGreevy’s claim
against Soltis and Stroup in their official capacities. Mitros v.
Borough of Glenholden, 170 F. Supp. 2d 504, 506 (E.D. Pa.
2001) (“Where a suit is brought against a public offic[ial] in his
[or her] official capacity, the suit is treated as if [it] were brought
against the governmental entity of which he [or she] is an
offic[ial].”) (citing Brandon v. Holt, 469 U.S. 464, 471-72
(1985)). In contrast to the District Court’s order granting

                                  16
summary judgment for the District, the Court allowed
McGreevy’s claim against the individual defendants to proceed
to trial. In its memorandum dated March 26, 2003, the District
Court stated:

       because the court finds that Plaintiff has engaged in
       constitutionally protected activity and because there has
       been a prima facie showing of adverse employment action
       by Defendants, it is for the jury to decide whether
       Plaintiff’s constitutionally protected activity was a
       substantial or motivating factor in Defendant’s decision to
       give Plaintiff 40 out of 80 on her 2000-2001 evaluation.
       Accordingly, the court will deny Defendant’s motion for
       summary judgment as to this narrow issue.

App. at 24.

        However, at the conclusion of McGreevy’s case the Court
granted judgment as a matter of law to the individual defendants
because “Plaintiff presented no evidence from which a
reasonable jury could conclude that either the District or the
individual Defendants in their official capacities had a practice or
custom of using these evaluations for anything other than their
intended purposes.” App. at 41. Nothing in the District Court’s
opinion refers to the issue of whether McGreevy’s
constitutionally protected activity was a substantial or motivating
factor in the decision to give her a 40 rating on her 2000-2001
evaluation. Instead, the District Court used precisely the same
reason for granting judgment as a matter of law to the individual
defendants acting in their official capacities that it used in
granting summary judgment to the District. Inasmuch as we
have determined that the grant of summary judgment to the
District was erroneous as a matter of law because the District’s
liability could be based on acts of its policymakers, it follows
that there can be liability under § 1983 imposed on those
policymakers for actions taken in their official capacities.
Therefore, we hold that it was error to grant judgment as a matter
of law for the individual defendants in their official capacities.

E. The Common Law Claims

                                17
        McGreevy included in her complaint state law claims of
defamation, tortious interference with contract and civil
conspiracy. The District Court rejected each of those claims in
its second order granting summary judgment.

        McGreevy argues that the unsatisfactory rating she
received was defamatory because it harmed her reputation and
would deter third persons from associating with her. In rejecting
this claim, the District Court noted that the employment rating is
privileged. Under Pennsylvania law, 22 Pa. Code § 351.21,
McGreevy was required to be evaluated once a year. The
Pennsylvania Superior Court has held that under such
circumstances, “an employee who is a party to the [employment]
contract has consented to the publication of such statements,
making them absolutely privileged.” Baker v. Lafayette Coll.,
504 A.2d 247, 249 (Pa. Super. Ct. 1986), aff’d 532 A.2d 399 (Pa.
Super. Ct. 1987). It follows that McGreevy’s evaluation cannot
form the basis of a defamation claim.

        The District Court rejected McGreevy’s claim for tortious
interference with contract on the ground that McGreevy failed to
provide evidence to support her claim. McGreevy does not raise
that issue in her brief and we therefore deem it waived. Ghana v.
Holland, 226 F.3d 175, 180 (3d Cir. 2000).

       The District Court rejected McGreevy’s conspiracy claim,
holding that McGreevy “failed to provide evidence that
Defendants acted in a concerted fashion or effort to prevent her
from performing her job or her legal duties.” App. at 35. The
District Court also stated that “Plaintiff has provided no evidence
that Defendants committed any underlying tort or engaged in a
conspiracy of any sort.” App. at 35.

       A claim for civil conspiracy requires that two or more
people conspire to do an unlawful act. A claim for civil
conspiracy “cannot be pled without also alleging an underlying
tort.” Boyanowski v. Capital Area Intermediate Unit, 215 F.3d
396, 405 (3d Cir. 2000). McGreevy argues that the underlying
tort was defamation. As stated above, the employment rating was
privileged and therefore not defamatory and as a result there is

                                18
no underlying tort upon which to base a claim of civil
conspiracy.

        McGreevy also appeals the District Court’s October 24,
2002 Order denying her motion to amend her complaint to assert:
1) a state law claim of intentional infliction of emotional distress;
and 2) a § 1983 claim alleging an unconstitutional taking of her
nursing license due to the District’s misrepresentation of her
position to state officials. The District Court evaluated the
motion to amend under Fed. R. Civ. P. 15, and pursuant to the
five factors set forth in Foman v. Davis, 371 U.S. 178 (1962):
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party, and
futility of amendment.6 After careful analysis, the Court
determined that both claims were futile. We agree.

        The tort of intentional infliction of emotional distress
requires a showing that the defendants acted in a manner “so
outrageous in character and so extreme in degree as to go beyond
all possible bounds of decency and to be regarded as atrocious
and utterly intolerable in a civilized society.” Restatement
(Second) of Torts § 46 cmt.; see also Jones v. Nissenbaum,
Rudolph & Seidner, 368 A.2d 770, 773 (Pa. Super. Ct. 1976).
Although the record indicates that McGreevy’s work
environment was both unpleasant and stressful, the harassment
McGreevy alleges does not meet the Pennsylvania definition for
intentional infliction of emotional distress. During the time of
the alleged harassment, McGreevy’s job tasks never changed, she
was never assigned degrading work and she consistently received
pay raises. As we stated in Cox v. Keystone Carbon Co., 861
F.2d 390, 393 (3d Cir. 1988), “it is extremely rare to find conduct
in the employment context that will rise to the level of
outrageousness necessary to provide a basis for recovery for the
tort of intentional infliction of emotional distress.” Id. at 393.



       6
        Although the takings claim was asserted in McGreevy’s
original August 2, 2001 complaint, the District Court evaluated
each of the original counts pursuant to the Foman factors as well.

                                 19
As a result, we have no basis to overturn the District Court’s
order denying McGreevy’s proposed amendment.

        McGreevy’s takings claim alleging that defendants
misrepresented her position to state officials fares no better.
McGreevy is in possession of her nursing license and she has
failed to allege that the District interfered with her possession in
any way that would deprive her of its use.

                               III.
                            Conclusion

       For the reasons set forth we will reverse the order of the
District Court granting summary judgment to the District and to
the school officials in their individual capacities, and we will
reverse the order of the District Court granting judgment as a
matter of law to the school officials in their official capacities.
We will affirm the order of the District Court granting summary
judgment on the state law claims.7

       We will remand this matter to the District Court for
further proceedings in accordance with this opinion
____________________




       7
          Although McGreevy appeals the denial of a motion for a
new trial we need not address that issue given our disposition of
this case.

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