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November 30, 2009

Appeals court sides with district

Pat Litowitz

A federal appeals court rejected a New Castle man’s effort to have his civil rights complaint reinstated.

The 3rd U.S. Circuit Court of Appeals, which covers western Pennsylvania, announced its decision Monday regarding Daniel Cook’s suit against the New Castle Area School District. Superintendent George Gabriel and school board President Fred Mozzocio were named in the action, in addition to building and grounds director Paul Fulena.

“I’m disappointed, and Dan is disappointed,” said attorney Jonathan Solomon, who represents the Duquesne Street resident.

In his original suit, Cook alleged the district “eliminated his janitorial position, deliberately treated him unfairly at his new maintenance position and suppressed his speech because of his political support for certain local candidates in violation of his civil rights.”

The centerpiece of the dispute involved an Election Day discussion, which took place Nov. 6, 2007, between Cook and school cafeteria employee Jackie Trott. The pair discussed the district school board race.

Mozzocio learned of the conversation and reportedly called Andrew Gangliero, an assistant principal. Gangliero told Cook that Mozzocio wanted him to stop talking about the election or Mozzocio would come to the school and the situation might “get ugly.”

U.S. District Judge Gary L. Lancaster ruled on Dec. 16, 2008, that a legal dispute did not exist. The Pittsburgh-based judge issued a summary judgment supporting the district.

“In determining whether the dispute is genuine, the court’s function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict,” Lancaster wrote.

Solomon and attorney John W. Smart, who represented the district, appeared before a three-judge panel on Oct. 28.

The appellate court agreed with Lancaster regarding the majority of his decision. The sides differed on the free speech argument.

Lancaster wrote that Cook’s talk with Trott was not a protected activity. He said the district’s ability to maintain a functional workplace outweighed Cook’s political discussion.

The appeals court countered that Cook’s conversation was protected under the Constitution. The question to resolve was — did Mozzocio’s action adversely affect Cook’s free speech?

“Mozzocio’s response to the cafeteria conversation was at most a verbal reprimand,” the court wrote in its opinion.

Verbal reprimands, the court noted, are not viewed as adversely affecting free speech.

Solomon said Cook and his co-workers feared casual conversation could result in a reprimand.

“That was a very big reason for us to take this appeal,” he said. “That scared the (heck) out of the other employees and members of the union.

“We’re not saying the employees have a right to campaign on company time.”

Cook has a state case pending against the district. The protection of free speech is also addressed under the state constitution.

Solomon looks for that matter to be resolved out of court.

“We ought to be able to come up with some accommodation with the district,” he said.

Attempts to reach Gabriel for comment were unsuccessful.

District solicitor Charles Sapienza said he had not reviewed the appeal court’s opinion and could not comment.

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