Filed: Jan. 20, 2009
Latest Update: Apr. 11, 2017
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 1-20-2009 Schlegel v. Koteski Precedential or Non-Precedential: Non-Precedential Docket No. 07-4166 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Schlegel v. Koteski" (2009). 2009 Decisions. Paper 2013. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2013 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 1-20-2009 Schlegel v. Koteski Precedential or Non-Precedential: Non-Precedential Docket No. 07-4166 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Schlegel v. Koteski" (2009). 2009 Decisions. Paper 2013. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2013 This decision is brought to you for free and open access by the Opinions of the ..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-20-2009
Schlegel v. Koteski
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4166
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Schlegel v. Koteski" (2009). 2009 Decisions. Paper 2013.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2013
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4166
HARRY SCHLEGEL,
Appellant
v.
RENA LYNN KOTESKI, School Director, individually and in her official capacity;
JEFFREY MATTHEWS, School Director, individually and in his official capacity;
SUSAN CALDWELL, School Director, individually and in her official capacity; GARY
HORNER, School Director, individually and in his official capacity; BARBARA
KRAUS, School Director, in her official capacity; SCOTT KOLAR, School Director, in
his official capacity; DAN LIOY, School Director, in his official capacity; TOM
MCGOUGH, School Director, in his official capacity; PAUL OLIJAR, School Director,
in his official capacity; PLUM BOROUGH SCHOOL DISTRICT; TODD MINK, former
School Director, in his official capacity; JAN SCHOENENBERGER, former School
Director, individually; DIANA TRESCO, former School Director, individually,
On Appeal of a Decision of the United States District Court
for the Western District of Pennsylvania (No. 05-cv-1429)
District Judge: Terrence F. McVerry
Submitted under Third Circuit L.A.R. 34.1(a)
October 24, 2008
Before: RENDELL and SMITH, Circuit Judges,
and POLLAK, District Judge.*
*
Honorable Louis H. Pollak, Senior Judge of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation
(Filed: January 20, 2009)
OPINION
POLLAK, District Judge
Plaintiff-appellant Harry Schlegel appeals from a September 26, 2007 final order
of the United States District Court for the Western District of Pennsylvania granting
summary judgment in favor of the defendants. Schlegel brought this civil rights suit
under 42 U.S.C. § 1983, claiming that the defendants retaliated against him in violation of
the First Amendment. Defendants are the Plum Borough School District, together with a
dozen individuals, present and former directors of the School District, sued individually
and in their official capacities. 1 Schlegel argues that the District Court erred in
concluding that the conduct of the individual defendants warranted absolute legislative
immunity. He further argues that the District Court failed to examine the entire record
and erroneously concluded that no causal link existed to support plaintiff’s retaliation
claim against the School District as a municipal entity. We have jurisdiction under 28
U.S.C. § 1291 and will affirm.
I.
1
In this opinion, we will refer to the municipal entity as the “School District,” to
individual directors as “school directors” or “directors,” and to the voting body of
directors, acting for the School District, as the “school board” or the “board.”
2.
Because we write primarily for the parties, we will summarize what is a lengthy
and involved set of interactions between many community members in Plum Borough,
Allegheny County, Pennsylvania.
Plaintiff-appellant Harry Schlegel is the elected Real Estate Tax Collector for the
Plum Borough School District. He was appointed to the position in 2000, following the
early departure of his predecessor, then chose to run for the office in 2001 and again in
2005. Schlegel won both elections.
The Real Estate Tax Collector is an elective position governed in part by
Commonwealth statute, specifically 72 P.S. § 5511.36a. This law requires that the
compensation for elected tax collector positions be set by the formal decision of a local
body some months before the election for the office. The school board sets the
compensation for the tax collector position at issue in this lawsuit.
The school board voted, at appropriate sessions and as required by statute, and set
the compensation for the tax collector position on January 28, 1997, January 30, 2001,
and November 30, 2004 – in short, every four years and, in each instance, several months
in advance of the next election cycle for the office. The November 2004 vote is the only
one at active issue in this lawsuit,2 but in both that vote and the January 2001 vote, the
board changed the financing scheme in ways that lowered the compensation for the Real
2
As discussed below, the statute of limitations for this § 1983 action is two years.
We have, however, considered the broader record in our review of the causation element
of plaintiff’s claim.
3.
Estate Tax Collector. The board also altered the duties of the office in those years, in
ways that Schlegel alleges made the position more burdensome. Schlegel also avers that
the board denied him privileges afforded to his predecessor, such as free rent and
photocopying.
Schlegel has been a very politically active and outspoken member of the Plum
Borough community for many years. He occupied other elective offices prior to his
appointment as Real Estate Tax Collector. He has clashed with other active members of
the community on many occasions, most notably with individual directors of the School
District who at different times voted to set the compensation of the tax collector position.
For example, in 1994, Schlegel complained to an Allegheny County Commissioner about
possible misuse of county property by an individual (and defendant here) who later served
on the school board while Schlegel served as tax collector. In another instance, at a
school board meeting in 2004, Schlegel tendered, from his personal checking account, a
payment of taxes owed by borough residents serving in the military. He did so as a
protest against the board for not waiving the taxes of such persons. The record describes
a host of other expressions by Schlegel that appeared to lead him into some form of
conflict or disagreement with individuals named as defendants in this matter.
On October 13, 2005, Schlegel brought suit under 42 U.S.C. § 1983 against
serving and former school directors as well as the School District. He asserted that the
defendants retaliated against him for his protected First Amendment activities by reducing
4.
his compensation, increasing his duties, and refusing to furnish established appurtenances
of his position. Following discovery, the defendants moved for summary judgment,
which the District Court granted. Schlegel has appealed.
II.
The District Court granted summary judgment to the individual defendants on the
ground that they were entitled to absolute legislative immunity. This left the plaintiff
with recourse against the Plum Borough School District alone. Schlegel argues that the
individual school board members acted in an administrative capacity, and thus did not
enjoy absolute immunity. Our review of this grant of summary judgment is plenary, and
we draw all reasonable factual inferences in favor of the non-moving party. Doby v.
DeCrescenzo, 171 F.3d 858, 867 (3d Cir. 1999). We find no error in the conclusion of
the District Court and will affirm.
Absolute immunity applies to official actions taken “in the sphere of legitimate
legislative activity.” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998). Legislative immunity
shields legislators, but also public officials outside the legislative branch when they
perform legislative functions. Id. This court has found this to include “members of a
municipal council acting in a legislative capacity.” Aitchison v. Raffiani,
708 F.2d 96, 99
(3d Cir. 1983).
“In determining whether legislative immunity attaches to municipal actors
engaging in arguably administrative activities, we ask whether the activities are ‘both
5.
substantively and procedurally legislative in nature.’” Baraka v. McGreevy, 481 F.3d
187, 198 (3d Cir. 2007) (quoting In re Montgomery Cty.,
215 F.3d 367, 376 (3d Cir.
2000)). The procedural prong of the test examines whether the action was taken by
means of an established and legitimate process, and the substantive prong looks to
whether the actions at issue involve policy-making decisions of a general scope. Gallas
v. Superior Court,
211 F.3d 760, 774 (3d Cir. 2000).
Schlegel complains about the recasting of the duties of the Real Estate Tax
Collector, the reduction of the compensation for the office, and the elimination of
perquisites he viewed as incident to the position. In part, the individual defendants took
such actions pursuant to the directives of 72 P.S. § 5511.36a, which states that “[w]hen
any taxing district or taxing authorities propose to either raise or reduce the compensation
or salary for the office of an elected tax collector, such action shall be by ordinance or
resolution, finally passed or adopted prior to the fifteenth day of February of the year of
the municipal election.”
Procedurally, the individual defendants took the actions at issue by means of an
established and legitimate process, as required by Gallas, 2111 F.3d at 776. Those who
sat on the school board in 2004, and set the scope of the job and its compensation for the
next term, followed the law of the Commonwealth and acted as previous boards had when
6.
making the same decisions in the past.3 Schlegel advances no evidence of improper,
illegitimate process.
Substantively, the decisions at issue were legitimate because they involved policy-
making of a general scope. While the actions may have had an adverse impact on
Schlegel as the individual who eventually was elected to the position of Real Estate Tax
Collector, the decisions concerned the scope of the office and expenditures of public
funds on a public function for the citizens of Plum Borough. We have found that “the
elimination of a public employment position – as opposed to the firing of a single
individual – constitutes a ‘legislative’ act.” In re Montgomery Cty., 215 F.3d 367, 377
(3d Cir. 2000). If the elimination of a position is legislative, the redefinition of an
elective office, including the setting of funding for it under a specific Commonwealth
statute, clearly constitutes legislative conduct.
Schlegel contends that the school directors did not draft or enact legislation. He
further argues that the school board’s decisions did not have general policy implications,
but, rather, that the board’s decisions only affected him as the particular individual who
collected taxes. We find both lines of argument unpersuasive. This court has never
suggested that a process resulting in the promulgation of a comprehensive legislative
scheme is required for legislative immunity. Furthermore, the challenged board decisions
3
Those who were no longer serving on the board in 2004 would, in any event, be
shielded from liability by the applicable two-year statute of limitations. See infra note 4.
7.
did have policy ramifications in Plum Borough: (a) how tax dollars were to be collected
and (b) how much taxpayer money was to be allocated to a public function. The second
type of policy decision has been found to be substantively legislative by the Supreme
Court, Bogan, 523 U.S. at 56, and, quite recently, by this court, Baraka, 481 F.3d at 199-
200. In short, Schlegel has failed to demonstrate that the 2004 decision of the board
concerned him specifically — rather than the office that he held in 2004 and intended to
run for again in 2005. The board’s adjustments to the office of Real Estate Tax Collector
were clearly legislative in nature, thus cloaking the individual board members with
absolute immunity.
III.
Next, we examine the grant of summary judgment to the Plum Borough School
District as the remaining defendant. In reviewing the motion for summary judgment, the
District Court looked to the actions of the School District, as taken by the school directors
in their official capacities, that fell within the applicable two-year statute of limitations 4
and found no proof of the required element of causation between Schlegel’s protected
activities and his claims of retaliation within that period. Schlegel challenges this finding
on two grounds. First, he objects that the District Court failed to review the entire record,
including activities beyond the limitations period, to determine if the School District acted
4
Generally, the limitations period for § 1983 claims is the applicable state law
period for personal injury torts. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113,
123 n. 5 (2005). In Pennsylvania, this period is two years. 42 Pa. C.S.A. § 5524.
8.
in a retaliatory manner. Second, he argues that a pattern of antagonism by individual
school directors and by the school board, combined with the timing of the board’s 2004
vote, creates enough of an inference of causation to defeat summary judgment as to the
School District. Our review of the District Court’s decision to grant summary judgment
on this retaliation claim is plenary, and we apply the same Rule 56 standard as the District
Court. Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994); Fed. R. Civ. P.
56(c).
To prevail on a § 1983 claim of retaliation for the exercise of First Amendment
rights, a plaintiff must show that (1) he engaged in a protected activity, (2) the defendant
took adverse action sufficient to deter a person of ordinary firmness from exercising his
rights, and (3) a causal connection existed between the protected activity and the adverse
action. Lauren W. v. Deflaminis, 480 F.3d 259, 267 (3d Cir. 2007). Causation may be
proved in various ways. A showing of “unusually suggestive” temporal proximity
between the protected activity and the adverse action can be sufficient. Doe v. C.A.R.S.
Protection Plus, Inc.,
527 F.3d 358, 369 (3d Cir. 2008). A plaintiff also can prove
causation, despite a lack of suspicious temporal proximity, by coming forward with
evidence of a pattern of antagonistic conduct against the plaintiff subsequent to his
protected conduct. Woodson v. Scott Paper Co.,
109 F.3d 913, 920-21 (3d Cir. 1997).
Lastly, the plaintiff can seek to prove causation by pointing to the record as a whole for
evidence that suggests causation. Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 281
9.
(3d Cir. 2000).5
We agree with the District Court that the plaintiff is restricted by the two-year
statute of limitations from pursuing damages for any actions of the School District before
October 13, 2003, two years prior to the inception of this suit. By this we mean that the
adverse action examined under the second prong of the three-part Deflaminis retaliation
test is restricted to the limitations period. It is in evaluating causation under the third
prong that a district court, and this court, may review the broader record to determine if
there is sufficient evidence from which a reasonable jury could find that a link exists
between the plaintiff’s protected conduct and the defendant’s adverse action.
Schlegel identifies a good deal of protected free speech. He asserts that the School
District took adverse action against him in 2004 by increasing his duties and reducing his
compensation. What is missing from the equation, however, is the causal link between
his protected activity and the adverse action, and this missing link arises directly from the
nature of the tax collector position and the mandated legislative activity of the school
board regarding the position.
5
We note the observations of this court in Deflaminis:
A court must be diligent in enforcing these causation requirements because
otherwise a public actor cognizant of the possibility that litigation might be filed
... could be chilled from taking action that he deemed appropriate....
Consequently, a putative plaintiff by engaging in protected activity might be able
to insulate himself from actions adverse to him that a public actor should take.
480 F.3d at 267.
10.
When the school board voted on the duties and compensation of the Real Estate
Tax Collector on November 30, 2004, the position Schlegel held was that defined by the
board prior to the 2001 election. The position defined by the board’s November 30, 2004
vote was the position of Real Estate Tax Collector as it was to exist subsequent to the
2005 election, more than a year after the board’s vote. Thus, in deciding to run for
reelection in 2005, Schlegel chose to seek a position whose perquisites and compensation,
as a matter of public record, were not to be the same as those of the position Schlegel
occupied prior to the 2005 election. In deciding to run again in 2005, Schlegel exercised
his free choice to accept, if elected, the position as redefined. Schlegel had no
constitutionally-protected vested interest in the particular features of the position as it
existed in 2004, no matter what reasons animated the board in redefining the position.
These undisputed facts sever the causal chain and defeat Schlegel’s claim of retaliation
brought against the School District.
IV.
For the reasons given, we will affirm the judgment of the District Court (1)
dismissing plaintiff’s suit against the individual defendants on grounds of legislative
immunity, and (2) granting summary judgment in favor of the School District with respect
to plaintiff’s claim of retaliation.
11.
