Lapinski v. Board of Education of the Brandywine School District , 163 F. App'x 157 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-24-2006
Lapinski v. Bd of Ed Brandywine
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1709
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1709
THOMAS F. LAPINSKI,
Appellant
v.
THE BOARD OF EDUCATION OF THE BRANDYWINE SCHOOL DISTRICT;
JOSEPH P. DEJOHN; DONALD FANTINE, JR.; RALPH ACKERMAN; PAUL HART;
ROBERT BLEW; NANCY DOOREY; G. LAWRENCE PELKEY, JR.;
G. HAROLD THOMPSON; RAYMOND TOMASETTI, JR.
On Appeal from the United States District Court
for the District of Delaware
(Dist. Ct. No. 00-cv-00173)
District Judge: Hon. Kent A. Jordan
Argued January 10, 2005
Before: ROTH and CHERTOFF,* Circuit Judges, and RESTANI,** Chief Judge.
(Filed: January 24, 2006)
*
Judge Chertoff heard oral argument in this case but resigned prior to the time the
opinion was filed. The opinion is filed by a quorum of the panel. 28 U.S.C. § 46(d).
**
The Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
SWARTZ CAMPBELL LLC
919 Market Street
P.O. Box 330
Wilmington, Delaware 19899
BY: NEIL R. LAPINSKI (Argued)
Attorneys for Appellant
YOUNG CONAWAY STARGATT & TAYLOR, LLP
The Brandywine Building
1000 West Street, 17th Floor
P.O. Box 391
Wilmington, Delaware 19899-0391
BY: BARRY M. WILLOUGHBY (Argued)
WILLIAM W. BOWSER
SCOTT A. HOLT
Attorneys for Appellees
OPINION OF THE COURT
ROTH, Circuit Judge.
Appellant Thomas F. Lapinski appeals the decision by the District Court granting
summary judgment for appellees. We will reverse and remand.
I
The facts of this case are set forth in detail in the District Court’s opinion. We
briefly set forth only the most relevant facts here, in the light most favorable to Lapinski.
Lapinski alleges that, during his time as principal of Mount Pleasant High School
(MPHS), appellees engaged in certain retaliatory actions against him due to “whistle
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blowing” letters he wrote and statements he made to appellee former superintendent
Joseph P. DeJohn and other Brandywine School District administrators. The specific
whistle blowing activities are set forth in the District Court’s opinion, see Lapinski v. Bd.
of Educ., No. 00-173, 2004 U.S. Dist. LEXIS 1124, at *3-7 & nn.3-4 (D. Del. Jan. 29,
2004), and we will not repeat them here. Lapinski alleges that in response to these
whistle blowing activities, appellees decided in December 1999 not to renew his
employment contract, though under Delaware law Lapinski could have stayed on at
MPHS as a teacher, earning a teacher’s salary rather than the higher principal’s salary.
On March 13, 2000, Lapinski filed a complaint alleging, inter alia, various forms
of First Amendment retaliation. On January 29, 2004, the District Court granted
appellees’ motion for summary judgment. Lapinski thereafter filed a motion for
reargument, which the District Court denied.
II
Our review of a District Court’s grant of summary judgment is plenary. See Fed.
Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir. 2003). We
assess the record using the same summary judgment standard that guides district courts.
See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). To prevail on a
motion for summary judgment, the moving party must demonstrate “that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(c).
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In granting appellees’ motion for summary judgment, the District Court noted that
Lapinski had voluntarily resigned as the principal of MPHS after learning that appellees
did not intend to renew his contract. Concluding that an employee’s decision to resign or
retire, even in the face of pending termination, is presumptively voluntary, the District
Court required Lapinski to show that he had been constructively discharged.
We need not address whether Lapinski was constructively discharged, as
appellees’ failure to renew Lapinski’s employment contract constitutes an adverse
employment action for purposes of Lapinski’s First Amendment retaliation claim. In
Suppan v. Dadonna, we held that defendants’ action of placing plaintiffs lower on
promotion ranking lists in retaliation for the exercise of their First Amendment free
speech rights was sufficiently adverse to state a claim for retaliation. 203 F.3d 228, 234-
35 (3d Cir. 2000). In doing so, we relied primarily on Rutan v. Republican Party, 497
U.S. 62 (1990). The Rutan “Court rejected the argument that the First Amendment rights
of public employees had ‘not been infringed because they [had] no entitlement to
promotion, transfer, or rehire.’” Suppan, 203 F.3d at 234 (alteration in original) (quoting
Rutan, 497 U.S. at 72). See also Brennan v. Norton, 350 F.3d 399, 419 (3d Cir. 2003)
(“A public employer adversely affects an employee’s First Amendment rights when it
refuses to rehire an employee because of the exercise of those rights or when it makes
decisions, which relate to promotion, transfer, recall and hiring, based on the exercise of
an employee’s First Amendment rights.” (quotation marks omitted)).
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We therefore conclude that appellees’ failure to renew Lapinski’s employment
contract was “sufficient to deter a person of ordinary firmness from exercising his First
Amendment rights,” Suppan, 203 F.3d at 235. That Lapinski had a right under Delaware
law to remain at MPHS as a teacher does not change our conclusion. Even though
appellees could not have terminated Lapinski’s employment entirely, the nonrenewal was
a demotion in title and salary and therefore actionable conduct. See, e.g., Brennan, 350
F.3d at 419; Baldassare v. New Jersey, 250 F.3d 188, 201 (3d Cir. 2001) (noting that it is
clearly established that a public employee cannot be demoted in retaliation for exercising
his or her First Amendment rights).
III
For the foregoing reasons, we will reverse the judgment of the District Court and
remand for further proceedings not inconsistent with this opinion.
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