Companiony v. Murphy et al

Filing 13

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 7/1/2015. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ISABEL CRISTINA COMPANIONY,
Plaintiff,

v.

Civ. No. 14-1054-SLR

MARK MURPHY, in his individual
capacity; MARY COOKE, in her individual
capacity; MAUREEN WHELAN, in her
individual capacity; MIKE DELOY, in his
individual capacity; WENDI CAPLE, in her
individual capacity; and JANET DURKEE, in
her individual capacity,
Defendants.

Jeffery K. Martin, Esquire of Martin & Associates, P.A., Wilmington, Delaware. Counsel
for Plaintiff.
Roopa Sabesan, Esquire and Joseph C. Handlon, Esquire, Deputy Attorneys General,
Department of Justice, Wilmington, Delaware. Counsel for Defendants.

MEMORANDUM OPINION

Dated: July\ , 2015
Wilmington, Delaware

I. INTRODUCTION
On August 15, 2014, Isabel Cristina Companiony ("plaintiff'') filed an action
pursuant to 42 U.S.C. § 1983 against Mark Murphy, 1 Mary L. Cooke, 2 Maureen
Whelan, 3 Mike Deloy, 4 Wendi Caple, 5 and Janet Durkee6 (collectively, "defendants"),
alleging procedural due process violations in relation to the termination of her
employment at Baylor Women's Correctional Institution ("BWCI"). (D.I. 1) On September
19, 2014, defendants filed the present motion to dismiss for failure to state a claim. (D.I.
6) The court has jurisdiction pursuant 29 U.S.C. § 1132 and 42 U.S.C. § 1983.

II. BACKGROUND
Plaintiff worked jointly7 for the DOE and the DOC as a teacher/supervisor at BWCI.
(D. I. 1 at 1J1J 2, 11, 12) On February 28, 2012, plaintiff met with DOC officials regarding
1

At the time relevant to the complaint, Murphy served as Secretary of Education
for the Delaware Department of Education ("DOE"). (D.I. 1 at 1J 3)
2

At the time relevant to the complaint, Cooke served as the Human Resources
Officer for the Office of Human Resources for the DOE. (D.I. 1 at 1J 4)
3

At the time relevant to the complaint, Whelan served as Director of Adult and
Prison Education for the DOE. (D.I. 1 at 1J 5)
4

At the time relevant to the complaint, Deloy served as Chief of the Bureau of
Prisons. (D.I. 1 at 1J 6)
5

At the time relevant to the complaint, Caple served as Warden of BWCI for the
Delaware Department of Correction ("DOC"). (D.I. 1 at 1J 7)
6

At the time relevant to the complaint, Durkee served as the Human Resources
and Development Director for the DOC and also served as Acting Commissioner of the
DOC in the summer of 2012. (D.I. 1 at 1J 8)
7

At the time relevant to the complaint, plaintiff was an employee of the DOE
working at BWCI in partnership with the DOC pursuant to the 2000 Memorandum of
Understanding and the subsequent 2008 Memorandum of Understanding. (D.I. 1 at 1J 2)

certain violations that a teacher committed under her supervision. (D.I. 1 at 1119) At the
end of this meeting, plaintiff was advised that her security clearance at BWCI was being
"temporarily revoked" pending the conclusion of the investigation. Id. On March 20,
2012, plaintiff attended a DOC internal affairs meeting where investigators discussed her
practices with regard to inmate worker payment and inmate worker vacation. (D.I. 1 at 11
20) On May 15, 2012, plaintiff received the DOC internal affairs report ("IA report"), which
outlined the investigation. (D.I. 1 at 1125) On May 21, 2012, plaintiff attended the internal
affairs meeting with her attorney8 and denied each of the allegations pending against her.
(D.I. 1 at 111127, 28) All of the defendants were either present or represented at this
meeting. (D.I. 1 at 1127) Following the internal affairs meeting, the decision was made to
permanently bar plaintiff from BWCI. (D.I. 1 at 1130)
After plaintiff's barring from BWCI, the parties engaged in discussions regarding
the transfer of plaintiff to another correctional institution but only if she were placed on a
"performance improvement plan." (D.I. 1 at 1135) Plaintiff objected to being placed on
such a plan. Id. On July 12, 2012, however, the DOE gave a letter of reprimand and an
improvement plan to plaintiff. (D.I. 1 at 1136) Plaintiff filed an appeal on the letter of
reprimand and was granted an appeal date. (D.I. 1 at 111136, 37) Prior to the letter of
reprimand appeal date, on August 17, 2012, plaintiff received a "notice of intent to
terminate employment letter." (D.I. 1 at 1141) The letter explained that there was "just
cause" for plaintiff's termination in the form of the DOC's decision to bar plaintiff from
working at any DOC facility. Id. The letter also identified the date of plaintiff's "pre-

8

Plaintiff's counsel was permitted to attend but not permitted to participate in the
meeting. (D.I. 1 at 1128)

2

termination hearing" as August 27, 2012. Id.
On August 24, 2012, plaintiff attended the letter of reprimand meeting and
presented evidence on her behalf. (D.I. 1 at~ 43) On August 27, 2012, plaintiff and her
counsel attended the "pre-termination hearing" where she once again presented evidence
on her behalf. (D.I. 1 at~~ 41, 44) On September 4, 2012, plaintiff received a letter
upholding the letter of reprimand against her and a termination of employment letter. (D.I.
1 at~ 45) The termination of employment letter stated that her permanent barring from
any DOC facility effectively made it impossible for her to fulfill her responsibilities as a
teacher/supervisor. Id. The letter also outlined the process for a post-termination hearing
pursuant to 14 Del. C. § 121 (a)(5). Id. Plaintiff requested and attended, with her counsel,
a post-termination hearing on October 2, 2012, but withdrew her request for a further
hearing "because DOC was not made a party to the hearing process." (D.I. 1 at~ 49)
Ill. STANDARDS

9

Plaintiff argues that the motion to dismiss at bar should be treated as a motion for
summary judgment because defendants have "misstat[ed], twist[ed], embellish[ed,]
and/or chang[ed] the facts as presented in [p]laintiff's complaint." (D.I. 11 at 10)
As a general matter, a district court ruling on a motion to dismiss may
not consider matters extraneous to the pleadings. However, an exception
to the general rule is that a "document integral to or explicitly relied upon in
the complaint" may be considered "without converting the motion [to
dismiss] into one for summary judgment."
The rationale underlying this exception is that the primary problem
raised by looking to documents outside the complaint-lack of notice to the
plaintiff-is dissipated "[w]here plaintiff has actual notice ... and has relied
upon these documents in framing the complaint."
In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426 (3d Cir. 1997)
(internal citations omitted)(emphasis omitted).
Issues with nomenclature do not raise "lack of notice" concerns. Although
defendants do supply an exhibit (D.I. 7) with their motion to dismiss, plaintiff takes no
issue with the information contained in this exhibit, such as the IA report, and "relied upon

3

A motion filed under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency
of a complaint's factual allegations. Bell At/. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must contain "a short

and plain statement of the claim showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the ... claim is and the grounds upon which it
rests." Twombly, 550 U.S. at 545 (internal quotation marks omitted) (interpreting Fed. R.
Civ. P. 8(a)). Consistent with the Supreme Court's rulings in Twombly and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), the Third Circuit requires a two-part analysis when reviewing

a Rule 12(b)(6) motion. Edwards v. A.H. Cornell & Son, Inc., 610 F.3d 217, 219 (3d Cir.
201 O); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, a court
should separate the factual and legal elements of a claim, accepting the facts and
disregarding the legal conclusions. Fowler, 578 F.3d. at 210-11. Second, a court should
determine whether the remaining well-pied facts sufficiently show that the plaintiff "has a
'plausible claim for relief."' Id. at 211 (quoting Iqbal, 556 U.S. at 679). As part of the
analysis, a court must accept all well-pleaded factual allegations in the complaint as true,
and view them in the light most favorable to the plaintiff. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002); Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). In this regard, a court may consider the

pleadings, public record, orders, exhibits attached to the complaint, and documents
incorporated into the complaint by reference. Tellabs, Inc. v. Makar Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1384-85 n.2 (3d Cir. 1994).

[it] in framing the complaint." Id.; (see D.I. 1 at~ 25) The motion at bar remains a motion
to dismiss.

4

The court's determination is not whether the non-moving party "will ultimately
prevail" but whether that party is "entitled to offer evidence to support the claims." United
States ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d 295, 302 (3d Cir. 2011). This

"does not impose a probability requirement at the pleading stage," but instead "simply
calls for enough facts to raise a reasonable expectation that discovery will reveal
evidence of [the necessary element]." Phillips, 515 F.3d at 234 (quoting Twombly, 550
U.S. at 556). The court's analysis is a context-specific task requiring the court "to draw
on its judicial experience and common sense." Iqbal, 556 U.S. at 663-64.

IV. DISCUSSION
A. Procedural Due Process

Plaintiff's § 1983 claims against defendants appear to be substantively grounded in
the Fourteenth Amendment. Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress ....
42 U.S.C. § 1983. "To state a claim under§ 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law." West v.
Atkins, 487 U.S. 42, 48 (1988).
1. Failure to utilize state remedies

The Third Circuit has explained that,
[i]n order to state a claim for failure to provide due process, a plaintiff must
have taken advantage of the processes that are available to him or her,

5

unless those processes are unavailable or patently inadequate. A state
cannot be held to have violated due process requirements when it has
made procedural protection available and the plaintiff has simply refused to
avail himself of them.
Alvin v. Suzuki, 227 F.3d 107, 116 (3d. Cir. 2000) (citations omitted). The failure to

pursue state remedies, however, is excused in instances where there is evidence that the
procedures are a sham or when access to procedure is absolutely blocked. Id. at 118
(citations omitted).
Section 121 (a)(5) of Title 14 of the Delaware Code provides an appeal process in
which plaintiff could request a formal hearing before a neutral officer, the Director of the
Office of Management and Budget, and have her attorney present. 14 Del. C. §
121 (a)(5). Plaintiff concedes that she chose not to utilize the post-termination proceeding
provided under§ 121 (a)(5), because her request to have DOC participate in the hearing
was rejected. (D.I. 1 at~ 49) This rejection, in and of itself, is not enough to suggest that
the post-termination process was inadequate or a procedural "sham." See McKeesport
Hosp. v. Accreditation Council, 24 F.3d 519, 533 (3d Cir. 1994) ("The Constitution

requires a proceeding appropriate under the circumstances; it does not require
confrontation and cross-examination in every proceeding."). Having failed to avail herself
of the hearing process pursuant to § 121 (a)(5), plaintiff has not demonstrated a violation
of due process with regard to post-termination.
2. Sufficiency of due process

A plaintiff asserting a procedural due process claim under 42 U.S.C. § 1983 must
"allege that (1) he was deprived of an individual interest that is encompassed within the
Fourteenth Amendment's protection of 'life, liberty, or property,' and (2) the procedures
available to him did not provide 'due process of law."' Hill v. Borough of Kutztown, 455

6

F.3d 225, 233-34 (3d Cir. 2006) (quoting Alvin, 227 F.3d at 116).
a. Protected property interest

To have a protectable property interest in a job, a person must have a "legitimate
claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972). Legitimate claims of entitlement to "property" are not created by the Constitution;
rather, they are created by state laws that "secure certain benefits and that support claims
of entitlement to those benefits." Id. "In the governmental context, while at-will
employment is not generally considered a property interest, employment contracts that
contain a 'just cause' provision create a property interest in continued employment."
Wilson v. MVM, Inc., 475 F.3d 166, 177 (3d Cir. 2007) (citations omitted). "This Court

has consistently held that public employees have a property interest if the employer has
set out guidelines as to grounds for discharge." Dixon v. Mayor & Council of City of
Wilmington, 514 F. Supp. 250, 253 (D. Del. 1981) (citations omitted); see also Caruso v.
Superior Court of Delaware, Civ. No. 12-277-GMS, 2013 WL 1558023, at *7 (D. Del. Apr.

12, 2013), report and recommendation adopted, Civ. No. 12-277-GMS, 2013 WL
3177751 (D. Del. June 19, 2013).
Plaintiff alleges that she has a protected property interest in her continued
employment at BWCI because her employment was subject to the termination provisions
contained in her 2006 employment contract. (D. I. 11 at 15-16) Defendants contend that
even if plaintiff's allegation is true, she nonetheless lacks a property interest in a DOC
security clearance or a job that requires a DOC security clearance. (D.I. 12 at 6) The
court will assume for purposes of this motion that plaintiff had a property interest in her
job.

7

security clearance or a job that requires a DOC security clearance. (D.I. 12 at 6) The
court will assume for purposes of this motion that plaintiff had a property interest in her
job.
In Department of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court stated
that "it should be obvious that no one has a 'right' to a security clearance." Id. at 528.
"[E]very court of appeals [that] has addressed the issue has ruled that a person has no
constitutionally protected liberty or property interest in a security clearance or a job
requiring a security clearance." Stehney v. Perry, 101 F.3d 925, 936 (3d Cir. 1996)
(citations omitted). The court recognizes that the cited cases involve federal security
clearances; however, like those clearances, the grant of a DOC security clearance in the
case at bar requires a discretionary act on the part of the granting official or department.
Plaintiff has not demonstrated a protected property interest in her position at BWCI
because it is contingent upon a DOC security clearance. Without such a protected
property interest, plaintiff has no claim for a violation of due process. Moreover, as
described below, the procedures used to revoke plaintiff's security clearance were
sufficient to provide due process.
b. Pre-termination due process

Generally, a pre-termination hearing "need not be elaborate." Cleveland Bd. Of
Educ. v. Loudermill, 470 U.S. 532, 545 (1985). "Where adequate post-termination

procedures are available, an employee is entitled only to 'notice of the charges against
him, an explanation of the employer's evidence, and an opportunity to present his side of
the story."' Schmidt v. Creedon, 639 F.3d 587, 596 (3d Cir. 2011) (citing Loudermill, 470
U.S. at 545). The pre-termination hearing "need not definitively resolve the propriety" of

8

In Department of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court stated
that "it should be obvious that no one has a 'right' to a security clearance." Id. at 528.
"[E]very court of appeals [that] has addressed the issue has ruled that a person has no
constitutionally protected liberty or property interest in a security clearance or a job
requiring a security clearance." Stehney v. Perry, 101 F.3d 925, 936 (3d Cir. 1996)
(citations omitted). The court recognizes that the cited cases involve federal security
clearances; however, like those clearances, the grant of a DOC security clearance in the
case at bar requires a discretionary act on the part of the granting official or department.
Plaintiff has not demonstrated a protected property interest in her position at BWCI
because it is contingent upon a DOC security clearance. Without such a protected
property interest, plaintiff has no claim for a violation of due process. Moreover, as
described below, the procedures used to revoke plaintiff's security clearance were
sufficient to provide due process.
b. Pre-termination due process

Generally, a pre-termination hearing "need not be elaborate." Cleveland Bd. Of
Educ. v. Loudermill, 470 U.S. 532, 545 (1985). "Where adequate post-termination

procedures are available, an employee is entitled only to 'notice of the charges against
him, an explanation of the employer's evidence, and an opportunity to present his side of
the story."' Schmidt v. Creedon, 639 F.3d 587, 596 (3d Cir. 2011) (citing Loudermill, 470
U.S. at 545). The pre-termination hearing "need not definitively resolve the propriety" of
the termination. Loudermill, 470 U.S. at 545. "It should be an initial check against
mistaken decisions -

essentially, a determination of whether there are reasonable

grounds to believe that the charges against the employee are true and support the

8

proposed action." Id. at 545-46.
As the facts demonstrate, plaintiff participated in several meetings and hearings 10
both before the revocation of her security clearance and prior to her termination. First,
prior to her permanent barring from BWCI, on May 21, 2012, plaintiff attended an internal
affairs meeting with her attorney and denied each of the allegations pending against her
in the IA report. (D.I. 1 at ,-r,-r 27, 28) All of the defendants were either present or
represented at the meeting and plaintiff was able to present a 26-page document to
support her claims. Id. Next, on August 24, 2012, plaintiff attended a meeting concerning
the letter of reprimand she received as a result of the allegations pending against her.
(D.I. 1 at ,-r 43) At this meeting, she was able to present a 17-page document. Id. Lastly,
on August 27, 2012, plaintiff attended a pre-termination meeting with her counsel and
was able to present a 19-page document in response to her pending termination. (D.I. 1
at ,-r 44)
In totality, the pre-termination procedures pass muster under Loudermill, providing
plaintiff notice, an explanation from her employer, and an opportunity to present her story.
As a facially adequate post-termination proceeding under§ 121 (a)(5) was available,
plaintiff was afforded the required pre-termination due process. 11

B. Adherence to DOC and DOE Policies
10

Plaintiff disputes defendants' use of "hearings." (D.I. 11 at 2) Plaintiff's
complaint switches between the terms "hearing" and "meeting" when discussing the
August 27, 2012 appeal. (See D.I. 1 at ,-r 41 (characterizing the appeal as a "hearing;"
D.I. 1 at ,-r 44 (characterizing the appeal as a "meeting")) The key question is the
adequacy of the proceedings, not the nomenclature.
11 Plaintiff cites at length to Caruso to establish her property right but fails to
explain why the procedures in her case were inadequate pre-termination. Caruso is not
analogous to the facts at bar in that it dealt with a coerced resignation that entailed no
form of pre-termination or post-termination due process. Caruso, 2013 WL 1558023 at
*2.

9

"To establish liability under 42 U.S.C. § 1983, a plaintiff must show that the
defendants, acting under color of law, violated the plaintiff's federal constitutional or
statutory rights, and thereby caused the complained of injury." Elmore v. Cleary, 399
F.3d 279, 281 (3d Cir. 2005). "[Section] 1983 merely provides a mechanism for enforcing
individual rights 'secured' elsewhere, i.e., rights independently 'secured by the
Constitution and laws' of the United States." Gonzaga Univ. v. Doe, 536 U.S. 273, 285
(2002). Federal and state regulations such as DOC and DOE policies do not give rise to
a liberty interest. See Rambert v. Beard, Civ. No. 09-0634, 2012 WL 760619, at *13
(M.D. Pa. Mar. 7, 2012) (compiling cases and holding that "[f]ederal and state regulations
in and of themselves do not create a liberty interest" in the disputed DOC procedure at
issue). 12
In the case at bar, the DOC and DOE policies and procedures are neither
provisions in the Constitution, nor federal law. They are state policies and procedures of
the Delaware DOC and DOE respectively. Defendants' alleged failure to follow the
prescribed disciplinary process provided for under DOE and DOC policies and
procedures is not itself a violation subject to § 1983.
V. CONCLUSION

For the aforementioned reasons, defendants' motion to dismiss (D.I. 6) is granted.
An appropriate order shall issue.

12

The court finds no need to address the issue of qualified immunity inasmuch as
defendants did not violate plaintiff's constitutional rights.
10