Filed: Feb. 22, 2007
Latest Update: Mar. 02, 2020
Summary: 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2007 Decisions States Court of Appeals for the Third Circuit 2-22-2007 Montanye v. Wissahickon Sch Dist Precedential or Non-Precedential: Non-Precedential Docket No. 05-5286 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Montanye v. Wissahickon Sch Dist" (2007). 2007 Decisions. Paper 1582. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1582 This decision is brought to you for free and open acc
Summary: 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2007 Decisions States Court of Appeals for the Third Circuit 2-22-2007 Montanye v. Wissahickon Sch Dist Precedential or Non-Precedential: Non-Precedential Docket No. 05-5286 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Montanye v. Wissahickon Sch Dist" (2007). 2007 Decisions. Paper 1582. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1582 This decision is brought to you for free and open acce..
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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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Montanye v. Wissahickon Sch Dist" (2007). 2007 Decisions. Paper 1582.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1582
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NOT PRECEDENTIAL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. 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.
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