IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN .

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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIARICHARD W. MIGLIORE, J.D.,Plaintiff,CIVIL ACTIONv.ROBERT L. ARCHIE, JR., ESQUIRE,Chairman;DENISE MCGREGOR ARMBRISTER;JOSEPH A. DWORETZKY, ESQUIRE;LUCY FERIA, Regional Superintendent;JAMES DOUGLASS, Assistant RegionalSuperintendent;ESTELLE G. MATTHEWS, Chief TalentDevelopment Officer;ANDREW ROSEN, ESQUIRE, HumanResources Representative;ARLENE ACKERMAN, Superintendent;THE SCHOOL DISTRICT OFPHILADELPHIA;THE SCHOOL REFORM COMMISSION;JOHNNY IRIZARRY;MARY SANDRA DEAN, Principal;Defendants.NO. 11-4018DuBois, J.December 16, 2014MEMORANDUMI.INTRODUCTIONThis case involves the free-speech rights of a former public school assistant principal,plaintiff Richard Migliore. Presently before the Court is the Motion for Entry of Judgment ofdefendants Robert L. Archie, Jr., Denise McGregor-Armbrister, and Johnny Irizarry, anddefendant Joseph A. Dworetzky’s Joinder in that Motion. The Court construes the Motion forEntry of Judgment, joined in by defendant Dworetzky, as a Motion for Reconsideration of theCourt’s Memorandum and Order dated August 12, 2013. For the reasons that follow, the Motion

for Reconsideration is granted, and, upon reconsideration, the Motion for Summary Judgmentwhich was previously denied is granted with respect to plaintiff’s First Amendment retaliationclaim against defendants Robert L. Archie, Jr., Joseph A. Dworetzky, Denise McGregor Armbrister, and Johnny Irizarry (“the SRC defendants”).II.BACKGROUNDThe background of this case is set forth in detail in the Court’s August 12, 2013Memorandum and Order, denying plaintiff’s Motion for Summary Judgment and granting in partand denying in part the joint Motion for Summary Judgment that was filed on behalf of alldefendants in this case. See Migliore v. Ackerman, No. 11-4018, 2013 WL 4079650 (E.D. Pa.Aug. 12, 2013). The facts will be recited in this Memorandum only as necessary to address theissues presented by the SRC defendants’ instant Motion for Entry of Judgment.A. Relevant Employment HistoryIn 2006, plaintiff was assigned to work as an assistant principal of Jules MastbaumVocational/Technical School (“Mastbaum”). Defendant Mary Sandra Dean was the principal ofMastbaum at that time. For several years prior to his assignment to Mastbaum, plaintiff wasengaged in writing a book entitled “Whose School is It? The Democratic Imperative for OurSchools” (“the Book”). The Book advocates for the adoption of democratic practices inschool governance and is critical of the School District of Philadelphia (“School District”)and the School Reform Commission (“SRC”).Despite having allegedly been told by the assistant to Regional Superintendent LucyFeria that he would be “committing suicide” by doing so, plaintiff addressed the SRC ontwo separate occasions, August 8, 2007 and August 23, 2008, concerning the contents of his2

Book and his advocacy for a democratic system of governance within the School District. Inhis speeches, plaintiff repeatedly mentioned the Book. 1Plaintiff contends that, as a result of his speeches before the SRC and the Book, heexperienced hostility from defendants Dean; former superintendent Dr. Arlene Ackerman;former regional superintendent Lucy Feria; former assistant regional superintendent JamesDouglass; former human resources employee Estelle Matthews; and employee relationsdeputy Andrew Rosen (“the School District defendants”). Plaintiff claims, inter alia, that atone point Dean told him he should transfer to a different school, or she would “write somuch paper on you that you will lose your job by the end of the year.” Plaintiffsubsequently requested a transfer, but his request was denied.Dean continued to write numerous disciplinary memoranda concerning plaintiff’s jobperformance, including complaints of his failure to complete a task concerning textbookaccounting and locker assignments, his failure to complete the distribution of Workmen’sCompensation forms to staff members, and his failure to monitor weekly lesson plans. Deanalso twice recommended that plaintiff be suspended without pay for multiple days, and onDecember 19, 2008, plaintiff was suspended for two days without pay for certain of thesefailures.1Plaintiff asserts that he provided the then-SRC commissioners with copies of the Bookfollowing his speeches to the SRC. Plaintiff, however, has not presented any evidence thatdefendant McGregor-Armbrister — who was appointed to the SRC in 2007 — or defendantsArchie, Dworetzky, and Irizarry — who were appointed to the SRC in 2009 — were present atthe above-mentioned SRC hearings or received a copy of the Book on those dates. (See Mem.Law Supp. Mot. for Entry of Judgment in Favor of Former Commissioners of the School ReformCommission, Defs. 15–16.)3

B. Administrative Demotion by the School District DefendantsOn May 29, 2009, Dean issued a disciplinary memorandum which stated thatplaintiff had been “consistently negligent in the performance of [his] duties as an assistantprincipal,” and recommended that he be demoted from assistant principal to teacher.Following a series of conferences within the School District in which Dean’srecommendation of demotion was upheld, plaintiff asserts that he turned in his keys uponDean’s request and moved all of his belongings out of his Mastbaum office. Thereafter,plaintiff received emails from the School District’s Office of Professional Staffing in whichthat Office informed plaintiff that it had been “notified of [his] demotion from assistantprincipal at Mastbaum High School” and advised him to select a location to continueworking as a teacher. Plaintiff responded that he did not wish to choose a teaching positionbecause, “[a] demotion can not [sic] take place without a vote of the School ReformCommission” and stated that “I have not yet been demoted and do not expect to be.” 2 OnJuly 29, 2009, plaintiff received a form titled “Assignment Introduction,” which plaintiffcontended officially assigned him to a position as a teacher.C. Recommendation of Demotion to the SRCOn August 14, 2009, plaintiff received a letter signed by then-superintendent ArleneAckerman and then-Chairman of the SRC Robert L. Archie, Jr. which summarized several2Section 11-1151 of the School Code provides, in relevant part, that “there shall be nodemotion of any professional employe[e] either in salary or in type of position, except asotherwise provided in this act, without the consent of the employe[e], or, if such consent isnot received, then such demotion shall be subject to the right to a hearing before the boardof school directors and an appeal in the same manner as hereinbefore provided in the case ofthe dismissal of a professional employee.” 24 Pa. Cons. Stat. Ann. § 11-1151. This statutehas been interpreted to require a hearing before a demotion of a tenured employee can belegally effectuated. See, e.g., Migliore v. Sch. Dist. of Philadelphia, No. 1663 C.D. 2012, 2013WL 3156533, at *3–*4 (Pa. Commw. Ct. June 18, 2013), reargument denied (July 29, 2013),appeal denied, 84 A.3d 1066 (Pa. 2014).4

disciplinary memoranda issued by Dean and stated that Ackerman and Archie would“recommend to the School Reform Commission that you be demoted to the position ofteacher.” The letter noted that plaintiff was “entitled to request a hearing before the SchoolReform Commission . . .” and set August 25, 2009 as the date for such a hearing.On August 18, 2009, plaintiff sent a letter to Francis Bielli, Assistant GeneralCounsel for the School District, requesting a hearing and stating his intent to appeal therecommendation of his demotion. Bielli notified plaintiff that the hearing previouslyscheduled for August 25, 2009 would be postponed, and that he would be requestingavailable dates from the SRC commissioners for a future hearing. However, before a newhearing date could be scheduled, plaintiff submitted his notification of retirement on August31, 2009. In his retirement notification, plaintiff stated that his last day of work was June30, 2009, and that his position was assistant principal. On September 3, 2009, theRetirement Department for the School District sent plaintiff a letter to “acknowledge [his]retirement from [his] position with the School District of Philadelphia at the close ofbusiness June 30, 2009.”D. SRC Hearings and Procedural HistoryFollowing plaintiff’s retirement, by letter dated September 14, 2009, Bielli initiallyinformed plaintiff that a hearing before the SRC would not be held because plaintiff ha dwaived his right to a hearing of the impending demotion when he retired from the SchoolDistrict. However, after plaintiff filed a “Petition to Proceed” with the SRC, the SRCgranted plaintiff’s request to proceed with scheduling a hearing. The SRC ultimately heldhearings on May 25, 2010, September 14, 2010, September 29, 2010, and January 6, 2011. Atthe conclusion of the hearings, defendant Dworetzky, the former SRC Commissioner who5

presided over the hearings, “recommended to the SRC that the SRC dismiss the matter withoutfurther hearing because [Dworetzky found that plaintiff] had not been demoted prior to hisretirement and had not been constructively discharged.” Because of his findings, Dworetzky didnot reach the merits of the allegations concerning plaintiff’s job performance or therecommendation of demotion contained in the August 14, 2009 letter signed by Ackerman andArchie. On June 15, 2011, the SRC — which at this time was comprised of, as relevant here,Dworetzky, Archie, McGregor-Armbrister, and Irizarry — voted unanimously to adopt thefindings of Commissioner Dworetzky and passed a Resolution stating that plaintiff had retiredfrom the School District effective June 30, 2009.Plaintiff then appealed that decision to the Secretary of Education. Migliore v. Sch.Dist. of Philadelphia, 2013 WL 3156533, at *3 (Pa. Commw. Ct. June 18, 2013), reargumentdenied (July 29, 2013), appeal denied, 84 A.3d 1066 (Pa. 2014). “After conducting a de novoreview, the Secretary, by order dated August 3, 2012, found that [plaintiff] was not demotedor constructively discharged, but rather that he had voluntarily retired. Thus, he denied[plaintiff’s] appeal.” Id.On August 29, 2012, plaintiff appealed the Secretary of Education’s order to theCommonwealth Court of Pennsylvania on several grounds, including “whether [his] dueprocess rights were violated . . . . ” Id. at *1. In an opinion issued on June 18, 2013, theCommonwealth Court held, in relevant part, that although plaintiff was “demoted in fact”when he was removed from his position as an assistant principal by the administrative staffwithout a prior SRC hearing, no state law violation had occurred because he voluntarilyresigned before a hearing could be held. Id. at *4-6. In addition, that court ruled thatbecause plaintiff was offered a hearing prior to his resignation, and because the SRC6

eventually held hearings, “[plaintiff] was afforded due process.” Id. at *7. TheCommonwealth Court thus affirmed the order of the Secretary of Education. Id.During the pendency of his proceedings in state court, plaintiff filed the instant suitin this Court on June 20, 2011 against numerous defendants on the grounds that they retaliatedagainst him in violation of his free-speech rights, denied him due process, and failed to preventwrongful acts against him. Plaintiff and defendants filed cross-motions for summaryjudgment on September 17, 2012, and October 22, 2012, respectively. By Order andMemorandum dated August 12, 2013, the Court denied plaintiff’s Motion for SummaryJudgment and granted in part and denied in part defendants’ joint Motion for SummaryJudgment. The Court dismissed plaintiff’s due process and neglect to prevent claims, 3holding that “[t]he only claims remaining in the case are [plaintiff’s] First Amendmentclaims concerning his speeches and Book against all individual defendants in their personalcapacities.” Migliore, 2013 WL 4079650, at *12 (E.D. Pa. Aug. 12, 2013).On October 15, 2013 and November 6, 2013, defendants Joseph A. Dworetzky and theEstate of Arlene Ackerman, respectively, moved for judgment in their favor and against plaintiff,arguing that, in light of the Court’s August 12, 2013 Memorandum and Order, a reasonable jurorcould not find that they retaliated against plaintiff for exercising rights protected by the FirstAmendment. By Order dated June 17, 2014, the Court treated the Motions for Entry of Judgmentas Motions for Reconsideration of the Court’s August 12, 2013 Memorandum and Order, and3Plaintiff decided not to pursue his neglect to prevent claim under 42 U.S.C. § 1986.Accordingly, the Court did not consider that claim on the merits. With respect to plaintiff’s dueprocess claim, after concluding that “[a]ll elements of issue preclusion . . . ha[d] been satisfied,”the Court gave preclusive effect to the decision of the Commonwealth Court of Pennsylvania inMigliore, 2013 WL 3156533 (Pa. Commw. Ct. June 18, 2013), and held that plaintiff wastherefore “precluded from arguing in this action that his due process rights were violated.”Migliore v. Ackerman, No. 11-4018, 2013 WL 4079650, at *11 (E.D. Pa. Aug. 12, 2013).7

denied the Motions on the ground that they were “untimely and meritless.”Thereafter, on July 21, 2014, defendants Robert L. Archie, Jr., Denise McGregorArmbrister, and Johnny Irizarry — all former commissioners of the SRC — filed the instantMotion for Entry of Judgment in which defendant Joseph A. Dworetzky has joined.III.DISCUSSIONA.Preliminary Issue: Nature of the SRC Defendants’ MotionBefore the Court addresses the merits of the SRC defendants’ arguments, it must addressthe preliminary issue of which legal standard and procedural rule to apply to their Motion.Although styled as a “Motion for Entry of Judgment,” the SRC defendants’ Motion seeksreconsideration of the Court’s Memorandum and Order dated August 12, 2013. See Favia v. Ind.Univ. of Pa., 7 F.3d 332, 338 (3d Cir. 1993)