ORGANTINI v. METHACTON SCHOOL DISTRICT et al

Filing 49

MEMORANDUM AND ORDER THAT THE DEFEDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. NO. 34) IS GRANTED IN ITS ENTIRETY. THE PLAINTIFF'S CLAIMS ARE ACCORDINGLY DISMISSED WITH PREJUDICE. THE CLERK OF COURT IS DIRECTED TO MARK THIS CASE CLOSED FOR ALL PURPOSES. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 2/6/08. 2/6/08 ENTERED AND COPIES E-MAILED. (jpd)

O R G A N T I N I v. METHACTON SCHOOL DISTRICT et al

D o c . 49

I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA C Y N T H IA MANDERACH O R G A N T IN I, P l a i n t i f f, v. : : : : : : : : : : C IV IL ACTION

N O . 06-02213

M E T H A C T O N SCHOOL DISTRICT, et al., D e f e n d a n t s.

MEMORANDUM STENGEL, J. February 6, 2008

C yn th ia Organtini, a former cafeteria employee of the Methacton School District, b ro u g h t this employment action against Methacton and certain of its employees. The d e f en d a n ts moved for summary judgment. After hearing oral argument on the d e f en d a n ts ' motions, and for the reasons outlined below, I will grant summary judgment o n all counts, dismissing the plaintiff's complaint. I. B A CK G R O UN D C yn th ia Organtini claims that her termination from employment at the Methacton S c h o o l District violated her Fourteenth Amendment procedural and substantive due p ro c e ss rights, and that Methacton officials hurt her reputation by acts of slander during a n d after her termination. Organtini was an employee of Methacton for a total of eleven (1 1 ) years. She was hired in 1994 as a general helper, and worked as a cashier at the

1

Dockets.Justia.com

A rc o la Intermediate School from 1995 until 1999. In 1999, Organtini became the a ss is ta n t cook at the Methacton High School ("MHS"), and shortly thereafter became the M H S cafeteria manager, the position she held through the events of April-June of 2005, w h ic h spawned this litigation. A s part of her position as cafeteria manager, plaintiff was responsible for handling c a f e ter ia money, including both bank deposits and petty cash. Ms. Organtini claims to h a v e repeatedly expressed concern over the security of the cafeteria money, asking her s u p e rv is o r, Todd Holmes, to purchase a safe, and suggesting that the locks on the c a f e ter ia office doors be changed. The parties dispute the actions taken in response to th e s e concerns, and the forcefulness of the plaintiff's efforts to boost security. O n April 26, 2005, Ms. Organitini discovered that approximately $500 was m issin g from the MHS cafeteria manager's office. The next day, Ms. Organtini's s u p e rv is o r, Paula Germinario, issued a "written warning" admonishing Ms. Organtini for lea v in g money unattended in her unlocked office and informing her that future incidents o f the kind could lead to "further disciplinary action up to and including termination." (Def. Ex. A, p. 62, deposition Ex. 4.) Several further incidents of theft followed in the next two months. On May 26, 2 0 0 5 , Ms. Organtini reported that approximately $100 of "petty cash" was missing from h e r office. On June 6, 2005, $260 in "starter roll money" was taken from a cashier's bag. And, finally, on June 9, 2005, a bank deposit bag containing over $2,300 was stolen from

2

O rg a n tin i's desk drawer. Prior to the June 9, 2005 incident, MHS had issued a directive changing the money s a f eg u a rd in g procedures, requiring plaintiff to bring the cafeteria money to the School D is tric t's central administration office in the Farina Building. Following the last incident o n June 9, 2005, Organtini was suspended for the remainder of the school year (3 days) w ith pay, and escorted out of the building by Germinario and possibly other a d m in i str a tiv e officials.1 O rg a n tin i has never been accused of committing any of the thefts. In her statement o f facts, she avers that the Facility Supervisor, Dennis McCall, told her that if a thief was n o t found, the school would assume that Organtini stole the money. After Organtini left th e building on June 9, 2005, she claims that defendant Dr. Jeffrey Miller, the S u p e rin te n d e n t of Methacton, insinuated that Organtini was responsible for the thefts. Miller was allegedly confronted by co-workers of the plaintiff and questioned about u n f a ir treatment. In reply, Miller asked the other employees, "How do you know it's not C ind y? " Organtini also claims that defendant Elizabeth Whalen (a co-worker) " d is s e m in a te d false accusations against Plaintiff's character, telling fellow employees that P la in tif f was being investigated by the school District and that Plaintiff often left money la yin g around the office." O n June 10, 2005, Miller sent a letter to Organtini, informing her of her right to a Organtini claims she was escorted by "administrative officials while the Pennsylvania State Police were present in the cafeteria area." 3
1

h e a rin g . Organtini replied requesting a hearing, which was set for August 25, 2005. According to the defendants' Statement of Undisputed Facts, Organtini met with Miller o n June 14, 2005, to discuss the reasons for her suspension. That meeting is referenced in a letter from Miller to Organtini dated June 23, 2005, which was written in response to h er June 22, 2005 letter (through counsel) requesting a hearing on termination. After a se rie s of communications between plaintiff's counsel and Methacton (through its s o lic ito r, Charles Sweet), Methacton sent a letter on July 11, 2005, offering "in lieu of a d is m is s a l" to transfer Organtini to the position of Elementary Cafeteria Manager at the A u d u b o n Elementary School. Organtini rejected this position, due to a longstanding p h ys ic a l condition, fibromyalgia, that prevented her from performing the functions of the jo b . Methacton then sent Organtini a letter informing her that the August 25, 2005 h e a rin g on termination would be cancelled and that Miller would recommend to the B o ard of School Directors that Organtini be demoted and transferred to a cashier's p o sition at the Arcola School cafeteria. The Board voted to act on Miller's re c o m m e n d a tio n on August 23, 2005, at a public meeting, and Miller sent a letter in f o rm in g Organtini of the decision on August 24, 2005. Ms. Organtini never reported to the job at Arcola. According to the plaintiff, this p o s itio n was not only a demotion, but under the school's collective bargaining agreement (" C B A " ) it was a union position, which had to be filled on the basis of seniority in the u n io n . Ms. Organtini did have seniority at the time. Ms. Organtini protested her transfer

4

in a letter through counsel and requested a "full hearing before the Board to properly d e te rm in e [her] employment status with the Methacton School District." Methacton re sp o n d e d that Organtini was not entitled to a hearing under the School Code because she h a d not been terminated. On September 27, 2005, the Board terminated Organtini from th e Arcola position for abandoning her duties. Ms. Organtini does not dispute the g ro u n d s for her September 27, 2005 termination from the Arcola position. T h e complaint contains four counts: (1) a 42 U.S.C. § 1983 claim against Methacton and Miller for infringing upon her procedural due process rights by denying h e r a hearing upon her removal as cafeteria manager; (2) a § 1983 claim against M e th a c to n and Miller for denying her substantive due process under the theory of a state cre ated danger; (3) a Pennsylvania state law defamation claim against Miller;2 (4) a P e n n s ylv a n ia state law defamation claim against Elizabeth Whalen. II. L EGAL STANDARD S u m m a ry judgment is appropriate "if the pleadings, depositions, answers to in ter ro g a to rie s, and admissions on file, together with affidavits, if any, show that there is n o genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if the evidence is such th a t a reasonable jury could return a verdict for the non-moving party. Anderson v.

Count III originally also charged the School District with defamation. That claim was dismissed by the late Judge Green (Document #16), because Methacton enjoys statutory immunity from defamation claims under Pennsylvania's Political Subdivision Tort Claims Act ("PSTCA"). 42 Pa. C.S. § 8541. 5

2

L ib e rty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might af fe ct the outcome of the case under governing law. Id. A party seeking summary judgment always bears the initial responsibility for inf o rm ing the court of the basis for its motion and identifying those portions of the record th a t it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v . Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of p ro o f on a particular issue at trial, the movant's initial Celotex burden can be met simply b y "pointing out to the district court that there is an absence of evidence to support the n o n -m o v in g party's case." Id. at 325. After the moving party has met its initial burden, " th e adverse party's response, by affidavits or otherwise as provided in this rule, must set f o rth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by m a k in g a factual showing "sufficient to establish the existence of an element essential to th a t party's case, and on which that party will bear the burden of proof at trial." Celotex C o rp . v. Catrett, 477 U.S. at 322. Under Rule 56, the court must view the evidence p re se n te d on the motion in the light most favorable to the opposing party. Anderson v. L ib e rty Lobby, Inc., 477 U.S. at 255. The court must decide not whether the evidence u n m is ta k a b ly favors one side or the other but whether a fair-minded jury could return a v e rd ict for the plaintiff on the evidence presented. Id. at 252. If the non-moving party h a s exceeded the mere scintilla of evidence threshold and has offered a genuine issue of

6

m a te ria l fact, then the court cannot credit the movant's version of events against the o p p o n e n t, even if the quantity of the movant's evidence far outweighs that of its o p p o n e n t. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3 d Cir. 1992). IV. D I S C U S S IO N T h e plaintiff has failed to raise a genuine issue of material fact as to the nature of h e r termination from the School District. Ms. Organtini claims that her transfer, first to a p o s itio n which she was physically unable to perform, then to a union position which she w a s allegedly not qualified to occupy, amounts to an intentional, constructive firing. The d e f en d a n ts contest this assertion, contending that Organtini was transferred to a new p o s itio n and not "removed" in any sense that would entitle her to a hearing. Organtini c ite s no legal definition of constructive discharge, nor any objective test for determining if a constructive discharge has occurred.3 The Third Circuit set forth the contours of a c o n stru c tiv e discharge claim under the due process clause in Rusnak v. Williams, 44 Fed. A p p x . 555, 558 (3d Cir. 2002) (citing Leheny v. City of Pittsburgh, 183 F.3d 220 (3d Cir. 1 9 9 9 )): E m p lo ye e resignations and retirements are presumed to be voluntary. This p re su m p tio n remains intact until the employee presents evidence to e sta b lis h that the resignation or retirement was involuntarily procured. If an

The plaintiff has not directed the Court to a single case discussing the possibility that a "transfer" constitutes a "termination" for due process purposes. In general, her property interest theory requires speculation beyond reasonable inferences from the facts presented to survive summary judgment. 7

3

e m p l o ye e retires of his own free will, even though prompted to do so by so m e action of his employer, he is deemed to have relinquished his property in te re st in his continued employment for the government, and cannot c o n te n d that he was deprived of his due process rights. 1 8 3 F.3d at 227-228 [internal citations omitted]. The court then set out the test for in v o lu n tar y discharge established in Leheny: [T]here appear to be two circumstances in which an employee's resignation o r retirement will be deemed involuntary for due process purposes: (1) w h e n the employer forces the resignation or retirement by coercion or d u re ss , or (2) when the employer obtains the resignation or retirement by d e c e iv in g or misrepresenting a material fact to the employee. 44 Fed. Appx. at 558 (citing Leheny, 183 F.3d at 228). Neither of these situations has o c c u rre d in this case. M s . Organtini has not come forward with specific facts to establish either coercion o r misrepresentation. According to Organtini, the School District first offered her a job s h e could not accept due to a physical condition barring strenuous activity, then offered h e r another job at Arcola that would not require heavy lifting, but which she allegedly c o u ld not accept under the school's collective bargaining agreement ("CBA"). At the tim e of her appointment to the Arcola position, Ms. Organtini was not a member of the B a rg a in in g Unit that includes employees of the kitchens or cafeterias within the M e th a c to n School District; as a manager at MHS, she could not belong to a Bargaining U n it. Under the CBA, the Arcola position must be filled based on seniority within the B a rg a in in g Unit. Organtini maintains that because she did not have union seniority to q u a lif y over members of the Bargaining Unit for the position at Arcola, she could not 8

a c c e p t the position. (See Pl. Ex. M, at 25-26.) She asserts that the composite of these p la c em e n t decisions by the Board operated as a "veiled dismissal." Organtini's argument c o n c e rn in g the second placement, however, is not grounded in the terms of the CBA itself (w h ic h she has not produced), and calls for speculation beyond reasonable inferences f ro m the facts. Typically, if an employer violates the terms of a CBA, the union is required to take a p p ro p ria te action. See Glover v. St. Louis-San Francisco Ry., 393 U.S. 324, 329 (1969) (statin g the general rule that a plaintiff employee must exhaust his or her remedies under a C B A ); Wilkins v. ABF Freight Sys., 2005 U.S. Dist. LEXIS 20305 (E.D. Pa. Sept. 15, 2 0 0 5 ) ("Ordinarily, suits against an employer for violation of the CBA, pursuant to § 301 (2 9 U.S.C.S. § 185) of the Labor Management Relations Act, 29 U.S.C.S. § 141 et seq., a re brought together with an allegation against the representing union for breach of the d u ty of fair representation"). In Pennsylvania, "a union employee cannot state a claim for w ro n g f u l termination or breach of the CBA against an employer." Phillips v. Babcock & W ilc o x , 349 Pa. Super. 351, 355, 503 A.2d 36, 38 (1986), appeal denied, 514 Pa. 618, 5 2 1 A.2d 933 (1987) (action for wrongful discharge available only when employment at w ill) (emphasis added). As a non-union employee, Ms. Organtini fails to invoke any right o r obligation, under the CBA or elsewhere, that would require her to decline the position a t Arcola. To assume under these facts that the appointment amounted to m is re p re se n ta tio n or coercion on the part of the Board would extend well beyond the

9

b o u n d s of reasonable inference. Ms. Organtini has not met her burden of coming forward w ith facts from the record to show that her claim has any legal merit. Therefore, under C e lo te x , the question of whether Organtini's transfer constitutes a termination must be re so lv e d in favor of the defendants. See Celotex Corp. v. Catrett, 477 U.S. at 322. A. C o u n t 1: Denial of Hearing upon Removal (§ 1983 Procedural Due Process­Methacton and Miller)

In Count I, the plaintiff claims that the events of June-July 2005 constitute a te rm in a tio n from her position as cafeteria manager, which entitled her to a hearing under th e procedural arm of the due process clause in light of her property interest in continued e m p lo ym e n t. Alternatively, citing Local Agency Law Section 553, the plaintiff argues th a t even for a demotion, she was entitled to a hearing. The plaintiff also claims that the d a m a g e to her reputation caused by the circumstances of her alleged termination, coupled w ith the loss of her purported property interest in continued employment, violates her lib e rty interest in her reputation. The plaintiff has no factual support, nor can she meet th e requirements of the "stigma-plus" test. I will therefore grant the defendants' motion f o r summary judgment as to Count I of the Complaint. 1. P ro p e rty Interest

Procedural due process claims, to be valid, must allege state-sponsored deprivation o f a protected interest in life, liberty or property. See Zinermon v. Burch, 494 U.S. 113, 1 2 5 (1989). If such an interest has been or will be deprived, procedural due process re q u ire s that the governmental unit provide the individual with notice and a reasonable 10

o p p o rtu n ity to be heard. Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 6 8 0 (3d Cir. 1991) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1 9 8 5 )). The Supreme Court has determined that a public employee has a protected p ro p e rty interest in continued employment by the government. See Cleveland Bd. of E d u c . v. Loudermill, 470 U.S. 532, 547-548. Property interests arise only from state law. Poteat v. Harrisburg School District, 33 F. Supp. 2d 384, 390 (M.D. Pa. 1999) (citing L a rs e n v. Senate of the Commonwealth of Pennsylvania, 154 F.3d 82, 92 (3d Cir. 1998). There is no general property right in continued public employment in Pennsylvania absent a contractual or statutory right. See Werner v. Zazyczny, 681 A.2d 1331, 1336 (Pa. 1 9 9 6 ). Organtini cites two statutory bases to establish her property right and entitlement to a hearing: (1) Section 514 of the Public School Code; (2) Section 553 of Local Agency L a w . I find that neither creates a property interest for the plaintiff. a) P u b lic School Code Section 514

S e c tio n 514 of the Public School Code of 1949 4 grants the right to a hearing to n o n p ro f e ss io n a l employees prior to termination. See 24 P.S. § 5-514. The relevant p o r tio n of the Public School Code provides: T h e board of school directors in any school district, except as herein o th e rw is e provided, shall after due notice, giving the reasons therefore and a f ter hearing if demanded, have the right at any time to remove any of its
4

Act 14 of March 10, 1949, P.L. 30, as amended, 24 P.S. § 1-101 et seq. ("Public School 11

Code").

o f f ic e rs , employees, or appointees for incompetency, intemperance, neglect o f duty, violation of any of the school laws of this Commonwealth or other im p ro p e r conduct. 2 4 P.S. § 5-514. From the plain language of Section 514, it is clear that a hearing is not a v a ila b le in cases of transfer or demotion; the hearing right is triggered only by removal. See Moriarta v. State College Area School District, 601 A.2d 872, 873 (Pa. Cmwlth. 1 9 9 2 ) ("[t]he word `removal' means discharge or dismissal . . ."); Miller v. Quakertown C o m m u n ity School District, 18 Pa. D. & C.3d 416, 419-420 (Bucks County CCP 1981) (S e c tio n 514 "refers to the removal (dismissal) of a nonprofessional employee and not to the demotion of such an employee").5 T h e plaintiff claims there is a material issue of fact as to whether she was te rm in a te d or transferred from her position as cafeteria manager. She claims that the June 1 0 , 2005 letter informing her that the administration would recommend her removal to the B o ard , and her subsequent request for a hearing, evidence an intent to remove on the part o f Methacton that continued through the decision to transfer her to the cashier position at A rc o la . That intent was carried out, Organtini claims, when the School District offered h e r two positions which the administration allegedly knew she could not accept. I find

Defendants point out, and plaintiff does not rebut in her brief, that professional employees are granted a right to a hearing on demotion or transfer under Section 1151 of the Public School Code. A "professional employee" must be certified; nowhere in either Section 1101 of the Public School Code (defining "professional employee") or the Pennsylvania Department of Education regulations is a cafeteria manager identified as a "professional employee." (See Def. Br. at 5-6.) Section 514 confers this hearing right only in cases of removal, as discussed above. Therefore, in order to claim a property interest created by the Public School Code, the plaintiff must argue that she was removed. 12

5

th e plaintiff's version of the facts unpersuasive and speculative. Her theory is that she w a s denied a hearing in this roundabout way (i.e. by being transferred in lieu of outright re m o v a l) because the defendants "did not want the school board and the community to k n o w that Methacton had a thief working in the school." By taking this position, O rg a n tin i contradicts herself, simultaneously arguing that School District officials b ra z en ly and publicly escorted her out of the building on the day of the fourth incident of th e f t, insinuating in no subtle way that she was a thief working in the school. In short, S e c tio n 514 of the Public School Code provides no property interest in continued e m p lo ym e n t requiring a procedural due process hearing where Organtini, a n o n p ro f e ss io n a l, was demoted and transferred to another position. She has failed to make a n y showing that this offer of another position was "removal." Her invitation to speculate o r extrapolate from the facts is not the kind of evidence Ms. Organtini must show under R u le 56 and Celotex to defeat a summary judgment motion. See Celotex, 477 U.S. at 322. b) L o c a l Agency Law

T h e plaintiff rests her alternative property interest argument on Local Agency Law S e c tio n 553,6 which reads, in pertinent part: "No adjudication of a local agency shall be v a lid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard." The question raised in this case is whether or not Organtini's

6

2 Pa. C.S.A. § 553. 13

tr a n s f e r/d e m o t io n constitutes an "adjudication" 7 under Local Agency Law. If it does, th e n Section 553 would provide the statutory property interest in Organtini's employment n e c e s s a ry to make out a procedural due process claim for denial of a hearing. No q u e stio n of material fact exists for a jury in determining whether a property interest exists u n d e r Section 553. I make this finding after a review of Miller v. Quakertown C o m m u n ity School District, 18 Pa. D. & C.3d 416, 419-420 (Bucks County CCP 1981), w h ic h held that a demotion may constitute an "adjudication" in certain circumstances. In Miller, the Court of Common Pleas of Bucks County held that a demotion in v o lv in g a 60% reduction in salary should be considered an "adjudication," subject to the h e a rin g requirement of the Local Agency Law. Id. at 420 (holding that "appellant was n o t properly demoted until after a hearing pursuant to section 553 of the Local Agency L a w ). It is important to note that the defendant in Miller had already stipulated to d a m a g e s in anticipation of this result and had acknowledged that a hearing ought to be p ro v id e d . Id. The language of this 1981 opinion specifically limits its holding to "this p a rtic u la r demotion." Id. Moreover, defendants present a persuasive argument that the P e n n s ylv a n ia Supreme Court's opinion in Werner v. Zazyczny, 681 A.2d 1331 (Pa. 1996)

Under Pennsylvania law, an "adjudication" is defined in relevant part as: "[A]ny final order, decree, decision, determination, or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities, or obligations of any or all of the parties to the proceedings in which the adjudication is made." 2 Pa. Cons. Stat. § 101. See Werner v. Zazyczny, 681 A.2d 1331, 1335 (Pa. 1996). 14

7

fu rth er undermines the holding in Miller.8 I find that the Miller case should not govern th e Court's holding on this motion for summary judgment. Pennsylvania's Local Agency L a w does not provide the statutory basis for requiring a hearing upon demotion of a n o n p ro f e ss io n a l government employee. A d d itio n a lly, the facts averred by the plaintiff do not echo the severity in reduction o f pay and benefits presented to the court in Miller. The plaintiff in this case cannot point to specific facts in the record that show a reduction of pay and benefits equaling, or even ap p roa ch ing , the gravity of diminution in compensation displayed in Miller. I will therefore grant summary judgment and dismiss Organtini's procedural due p ro c e ss claim for denial of a hearing. 2. L ib e r ty Interest

I will likewise grant summary judgment and dismiss the plaintiff's procedural due p ro c e ss claim based on deprivation of her liberty interest in reputation. "[T]o make out a d u e process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest." Paul v.

The court in Werner held that a non-union, non-civil service government employee is an at-will employee, and holds a property right in his employment only "where he can establish a legitimate expectation of continued employment through either a contract or a statute." 681 A.2d at 1336 (denying plaintiff a removal hearing because he could identify no contractual or statutory grant of rights). The defendants' argument in the present case is that this holding makes the conclusion in Miller impossible, because the plaintiff in Miller, like Organtini, could point to no contract or statute granting him rights upon demotion or transfer. The plaintiff attempts to distinguish Werner as involving Administrative Agency Law and not Local Agency Law, but as defendants argue, the two schemes share common definitions, including the definition of "adjudication." 2 Pa. Cons. Stat. § 101. 15

8

D a v is , 424 U.S. 693, 701 (1976); see also Hill v. Borough of Kutztown, 455 F.3d 225, 2 3 6 (3d Cir. 2006). This requirement is known as the "stigma-plus" test. In Hill, the T h ird Circuit stated that in the public employment context, "[t]he creation and d iss e m in a tio n of a false and defamatory impression is the `stigma,' and the termination is th e `plus.'" Hill, 455 F.3d at 236. To satisfy the "stigma" prong of the test, it must be alleg ed that the purportedly stigmatizing statements: (1) were made publicly; and (2) were f a ls e . Id. To satisfy the "plus" prong of the test, the Third Circuit in Hill explained that S u p rem e Court precedent is less than clear on the appropriate standard; however, term ination is sufficient. Id. The defendants cite precedent from the D.C. Circuit Court o f Appeals finding that a demotion in position of public employment is insufficient to s a tis f y the "stigma-plus" test. O'Donnell v. Barry, 148 F.3d 1126, 1141 (D.C. Cir. 1998). However, in the same case the D.C. Circuit affirms its previous holding that a demotion a n d reduction in pay may indeed satisfy the "plus" prong of the test.9 I find that plaintiff h a s failed to satisfy either prong of the test. a) " S tig m a "

T o establish "stigma," the plaintiff points to (1) Dennis McCall's statement to her th a t if a thief was not identified, she was a suspect, (2) the manner in which she was

"This circuit has since [Davis] said that a demotion may also suffice to trigger a due process claim. `For a defamation to give rise to a right to procedural due process, it is necessary--we need not say when it is sufficient--that the defamation be accompanied by a discharge from government employment or at least a demotion in rank and pay." O'Donnell v. Barry, 148 F.3d at 1141 (citing Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C. Cir. 1983)). 16

9

e sc o rte d to her car on the day of the fourth incident, and (3) defendant Miller's comment, " H o w do you know it's not Cindy?" on the same day to Organtini's co-workers. The defendants counter that there is no connection between these communications a n d her actual termination date of September 27, 2005 (following her failure to report to h e r position at Arcola). The "stigma-plus" test, they assert, requires a nexus between the " p lu s " (termination, and maybe demotion with reduction in pay) and the "stigma" (d e f am a to ry statements). At the time of the events described in the plaintiff's brief, she w a s suspended without pay, which the Third Circuit has deemed insufficient to trigger p ro c e d u ra l due process protection. Edwards v. California University of Pennsylvania, 1 5 6 F.3d 488, 492 (3d Cir. 1998) (dismissing a "stigma-plus" claim based on suspension w ith o u t pay). Defendants also point out that the Third Circuit has gone no further than id e n tif yin g termination as sufficient to trigger a liberty interest under the due process c la u se , not demotion or transfer. See Hill, 455 F.3d at 236.1 0 I find that summary judgment is proper on this prong alone for two reasons: (1) the p lain tiff has failed to raise a genuine issue as to the defamatory nature of the acts in

The School District's actions do not constitute a termination. While Organtini does refer in her brief to the Hill court's determination that defamation in the course of a "constructive discharge" satisfies the stigma-plus test, she presents nothing more than hyperbolic restatements of the facts to support a claim of constructive discharge (e.g. referring the court to the "incredibly suspect transfer opportunities given to plaintiff by defendants"). To consider the School District's actions to be a termination, the court would have to accept the plaintiff's sinister overlay on an uncomplicated transfer of job responsibilities. 17

10

q u e stio n ; they are not defamatory as a matter of law;1 1 (2) if the alleged communications w e re sufficient to satisfy the "stigma" portion of the test, there is no connection between th e statements and the plaintiff's termination.

b ) "Plus" T h e plaintiff has not shown, as a matter of law, that the action taken to d e m o te /tra n sf e r her to the position of cashier at Arcola triggered a liberty interest under d u e process jurisprudence. The plaintiff has failed to demonstrate that she was c o n stru c tiv e ly discharged, which would permit her some hope of satisfying this prong of th e test in light of Hill. See Hill, 455 F.3d at 238 (constructive discharge raises a liberty in te re st, even where, as a matter of state law, the plaintiff lacks a property interest in the

The first statement was not "published;" the act of escorting Organtini to the parking lot was not a "statement;" and Dr. Miller's comment was not defamatory. (See Def. Br. at 13.) To establish a prima facie case for defamation, the plaintiff must show: (1) defamatory character of the communication (2) publication by the defendant (3) application to the plaintiff (4) understanding by the recipient of its defamatory meaning (5) understanding by the recipient of it as intended to be applied to the plaintiff (6) special harm resulting to the plaintiff from its publication (7) abuse of a conditionally privileged occasion. 42 Pa. C.S. § 8343(a). Miller's statements were not defamatory in meaning (elements 1 and 4) because the evidence on the record shows that the witnesses to whom the statements were published did not consider the contents of the statements to be true, nor did the statements negatively impact their respective opinions of Organtini. In order for a communication to be defamatory, "it must tend to harm the reputation of another so as to lower her in the estimation of the community or to deter third persons from associating or dealing with her." Feldman v. Lafayette Green Condominium Assoc., 806 A.2d 497, 500 (Pa. Cmwlth. 2002). Organtini fails to present evidence beyond bald assertions that Dr. Miller's statements were defamatory under this definition. 18

11

jo b she or he lost). I will, therefore, dismiss the plaintiff's due process claim for failure to sa tisf y either prong of the "stigma-plus" test. 3. I m m u n ity (Miller) and Policy or Practice Requirement (Methacton) a) M ille r

D r. Jeffrey Miller, the Superintendent claims qualified immunity as to Organtini's f e d era l constitutional claims. The doctrine of qualified immunity provides government o f f icia ls performing discretionary functions with immunity from suit insofar as their c o n d u c t does not violate "clearly established statutory or constitutional rights of which a re a s o n a b le person would have known." Wilson v. Layne, 526 U.S. 603, 609 (1999). Because I have dismissed Organtini's federal claims on the merits, I also agree with the d e f en d a n ts that no "clearly established statutory or constitutional rights" were ever v io la te d by Organtini's transfer/demotion, meaning that no reasonable person would have k n o w n of such a violation. Therefore, I agree that Dr. Miller should enjoy qualified im m u n ity as the superintendent of Methacton. b) M e th a c to n

D e f en d a n t Methacton argues that Organtini's federal claims must be dismissed b e c au s e she has not established that a "policy, practice or custom" of the School District d e p riv e d her of any constitutional rights. See Monell v. New York City Dep't of Social S e rv ice s, 436 U.S. 658, 690 (1978). Organtini argues that her claims are not subject to th e "policy, practice or custom" requirement established in Monell, because that case

19

d is c u ss e d the absence of respondeat superior liability for municipal entities, and her c laim is brought directly against the School District for its own actions. See Owen v. City o f Independence, Missouri, 455 U.S. 622 (1980) (no immunity from suit for m u n ic ip a litie s );1 2 Brown v. Pa. Dep't of Health Emergency Med. Servs. Training Inst., 3 1 8 F.3d 473, 478 (3d Cir. 2003) (municipality may be held liable for substantive due p ro c e ss violations, even where none of its employees is liable). A municipality may be h e ld liable if its policy or practice is the "moving force" behind the constitutional v io la tio n . Id. at 400; see also Sanford v. Stiles, 456 F.3d 298, 314 (2006) (stressing that "in order for municipal liability to exist, there must still be a violation of the plaintiff's c o n stitu tio n a l rights"), Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992) (statin g that the municipality itself must be the "wrongdoer"). Additionally, as the Third C irc u it held in Sanford, Organtini must show that the municipality acted with "deliberate in d if f ere n c e" toward her rights in order for municipal liability to attach. Sanford, 456 F .3 d at 314; see also Brown, 318 F.3d at 479 ("[T]he Supreme Court has instructed that `d e lib e ra te indifference' is the necessary standard in order to establish § 1983 liability of a municipality.") In this case, I find the School District's Monell argument to be consistent with the T h ird Circuit's ruling in Sanford v. Stiles, 456 F.3d 298 (2006). First, I have rejected

The plaintiff seems to misinterpret the defendants' argument on this question as a claim to immunity, which it is not. Methacton argues, rather, that Organtini must first establish that the actions were taken according to a policy or practice officially adopted by the school. 20

12

O rg a n tin i's constitutional claims on the merits, making her argument for liability u n te n a b le under Brown and progeny. Second, Organtini has not come forward with any e v id e n c e of a school policy responsible for the harm she alleges, nor has she established th a t the School District's actions were taken with "deliberate indifference" toward her rig h ts. On the contrary, the evidence of record reflects the School District's efforts to a c co m m o d a te Organtini by offering her a cashier's position at Arcola, when her physical c o n d itio n prevented her from taking the manager position at Audubon Elementary. B. C o u n t II: State-Created Danger (§ 1983 Substantive Due Process­Methacton and Miller) S ta te -C r e a te d Danger

1.

T h e "state-created danger" doctrine is an exception to the general rule that the g o v e rn m e n t has no duty to provide citizens with assistance. In DeShaney v. Winnebago C o u n ty Dep't of Soc. Serv., 489 U.S. 189 (1989), the United States Supreme Court held th a t only "in certain limited circumstances [does] the Constitution impose[] upon the S ta te affirmative duties of care and protection with respect to particular individuals." Id. a t 198. The Third Circuit has recognized two exceptions to the general no duty rule: (1) w h e re there exists a "special relationship" between the state and an individual and (2) w h e re the state has created a danger that causes harm to an individual. Brown, 318 F.3d a t 478. T h e second exception is the "state-created danger" exception and it requires proof o f four elements: 21

(1 ) (2) (3 ) (4 )

th e harm ultimately caused was foreseeable and fairly direct; a state actor acted with a degree of culpability that shocks the conscience; a relationship existed between the state and the plaintiff such that the p la in tif f was a foreseeable victim of the defendant's acts; and th e state actor affirmatively used his or her authority in a way that created a d a n g e r to the plaintiff or that rendered that citizen more vulnerable to d a n g e r than had the state not acted at all.

Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006). However, as a p r e re q u is ite to bringing any Section 1983 action, including a substantive due process c la im based on the "state-created danger" doctrine, the plaintiff bears the burden of e sta b lis h in g that there has been a deprivation of a constitutional right. Rivas v. City of P a s s a ic , 365 F.3d 181, 193-94 (3d Cir. 2004). She cannot do so. C itin g the First Amendment alone, and no case law, Organtini asserts that the d e f en d a n t's alleged failure to provide security measures in the cafeteria at Methacton H ig h School led to the plaintiff being accused of theft and "ostracized by her c o m m u n ity," violating her First Amendment right to free association. I find this a rg u m e n t utterly without merit and unsupported by First Amendment case law. Further, it s h o u ld be noted that, under Hill, "public employment is not a fundamental right entitled to substantive due process protection." Hill, 455 F.3d 225, 235 n.12. I will therefore d is m is s her "state-created danger" claim as a matter of law. 2. I m m u n ity (Miller) and Policy or Practice Requirement (Methacton)

A s discussed above, in Section B(3), notwithstanding the viability of Organtini's claim s on the merits, it is clear that Miller enjoys qualified immunity, and that Organtini's

22

su it against Methacton would fail under Monell. C. C o u n ts III and IV: Defamation under Pennsylvania Law (Miller and Whalen)

Because I have now dismissed all federal claims in this case, I will decline to e x e rc is e this Court's supplemental jurisdiction over Organtini's state law defamation c la im s , and dismiss them for lack of jurisdiction. Mine Worker v. Gibbs, 383 U.S. 715 (1 9 6 6 ) (holding that it is improper for a federal court to retain jurisdiction over a matter w h ic h consists of solely state claims). "Certainly, if the federal claims are dismissed b e f o re trial, even though not insubstantial in a jurisdictional sense, the state claims should b e dismissed as well." Id. at 726-27. V. C O N C L U S IO N Based on the foregoing, I will dismiss all the claims in the Complaint. An a p p r o p r ia te Order follows.

23

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA C Y N T H IA MANDERACH O R G A N T IN I, P l a i n t i f f, v. : : : : : : : : : : C IV IL ACTION

N O . 06-2213

M E T H A C T O N SCHOOL DISTRICT, et al., D e f e n d a n t s.

ORDER

A N D NOW, this 6th day of February, 2008, upon consideration of the d e f e n d a n ts ' Motion for Summary Judgment (Docket No. 34), it is hereby ORDERED th a t the motion is GRANTED in its entirety. The plaintiff's claims are accordingly D IS M I S S E D WITH PREJUDICE. The Clerk of the Court is directed to mark this case C L O S E D for all purposes.

B Y THE COURT:

/s/ Lawrence F. Stengel LAWRENCE F. STENGEL, J.