Viviano v. Hazleton Area School District et al
MEMORANDUM (Order to follow as separate docket entry) re 8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Hazleton Area School District, Francis Antonelli Signed by Honorable A. Richard Caputo on 12/17/14. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 3:14-cv-1018
HAZLETON AREA SCHOOL DISTRICT
and FRANCIS ANTONELLI,
Presently before the Court is a Motion to Dismiss Plaintiff’s Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants Hazleton Area
School District and Dr. Francis Antonelli (Doc. 8). Because Plaintiff fails to assert sufficient
factual allegations in his Amended Complaint (Doc. 6) to plausibly state a claim that the
Defendants violated his rights to procedural due process and liberty as protected by the
Fourteenth Amendment’s Due Process Clause, the Motion to Dismiss will be granted.
The facts as set forth in the Amended Complaint (Doc. 6) are as follows:
Plaintiff Dr. Thomas Viviano was hired by Defendant Hazleton Area School District
(“the District”) to serve as the Director of the District’s Career Center, pursuant to a threeyear contract dated September 4, 2013. (Doc. 6, ¶¶ 5-7.) Defendant Dr. Francis Antonelli
is the Superintendent of the District. (Id. at ¶ 4.) The District is a municipal corporation or
government entity within the Commonwealth of Pennsylvania. (Id.)
Viviano asserts that he was a diligent employee. (Id. at ¶ 8.) Viviano’s salary and
benefits were withheld beginning in mid-March, 2014. (Id. at ¶ 18.)
On March 31, 2013, Defendant Antonelli sent a letter to Viviano, which the Complaint
characterizes as “mendacious,” stating that Plaintiff had resigned his employment. (Id. at
¶ 10.) Plaintiff alleges that Antonelli was doing “everything in his power to force Plaintiff out
of his position.” (Id.) Plaintiff asserts that Antonelli knew that Plaintiff was not resigning, but
was instead being forced out of his job. (Id.) The School Board of the Hazleton Area School
District was aware that Antonelli wanted the plaintiff to resign his position. (Id. at ¶ 11.)
A member of the school board, Dr. Robert Childs, sent an undated letter to other
board members criticizing them for their conduct toward Viviano. (Id. at ¶ 12; Doc. 6-1, Ex
A.) In this letter, attached to the Complaint as Exhibit A, Dr. Childs wrote that Viviano was
“being subjected to a campaign of character assassination that was utterly unfounded,” and
that Viviano was an “exemplary educator.” (Id. at ¶ 24.) Dr. Childs wrote of his “alarm” at
watching the District “force out” Viviano over the course of eight (8) months because some
members and Defendant Antonelli were upset that another candidate was not chosen for his
job. (Doc. 6-1.) According to the letter, these Board members were “determined” to replace
Viviano with their chosen candidate. (Id.) Dr. Childs also mentions “the ‘warehousing class’
mess” and a “dust-up last fall” because Dr. Viviano did not live in the school district. (Id.)
Plaintiff’s attorney also sent the District a letter on April 4, 2014, writing that his client
“has been subjected to a series of untoward, adverse and inappropriate actions directed
against him.” (Id. at ¶ 13.) The District took no actions in response. (Id. at ¶ 16.)
Based on the foregoing, Plaintiff Viviano commenced the instant action on May 27,
2014. (Doc. 1.) On August 5, 2014, Plaintiff filed an Amended Complaint (Doc. 6). The
Amended Complaint asserts Fifth and Fourteenth Amendment Due Process Clause claims
pursuant to 42 U.S.C. § 1983–Count I for violations of the right to procedural due process
and Count II for violations of the Plaintiff’s liberty interest. (Doc. 6, ¶¶ 26-47.)
Defendants filed this Motion to Dismiss for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6) on August 19, 2014 (Doc. 8), and a Brief in Support on
August 29 (Doc. 9). Plaintiff filed a Brief in Opposition to the motion on September 16, 2014
(Doc. 10). Defendants' Motion to Dismiss is now fully briefed and ripe for disposition.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in
whole or in part, for failure to state a claim upon which relief can be granted. When
considering such a motion, the Court's role is limited to determining if a plaintiff is entitled to
offer evidence in support of his claims. See Semerenko v. Cendant Corp., 223 F.3d 165,
173 (3d Cir. 2000). The Court does not consider whether a plaintiff will ultimately prevail.
See id. A defendant bears the burden of establishing that a plaintiff’s complaint fails to state
a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct.
2197, 167 L. Ed. 2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Detailed factual allegations are not
required. Twombly, 550 U.S. at 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929. However, mere
conclusory statements will not do; “a complaint must do more than allege the plaintiff's
entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Instead, a complaint must “show” this entitlement by alleging sufficient facts. Id. “While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868
(2009). As such, “[t]he touchstone of the pleading standard is plausibility.” Bistrian v. Levi,
696 F.3d 352, 365 (3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint,
a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,”
Twombly, 550 U.S. at 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929, meaning enough factual
allegations “‘to raise a reasonable expectation that discovery will reveal evidence of’” each
necessary element. Phillips v. Cnty of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929). “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868.
“When there are well-pleaded factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679, 556
U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993)).
The Court may also consider “undisputedly authentic”
documents when the plaintiff’s claims are based on the documents and the defendant has
attached copies of the documents to the motion to dismiss. Pension Benefit Guar., 998 F.2d
at 1196. The Court need not assume the plaintiff can prove facts that were not alleged in
the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n. 13 (3d
Cir.1998), or credit a complaint's “‘bald assertions'” or “‘legal conclusions.’” Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).
In his Complaint, Plaintiff Viviano asserts that Defendants Hazleton Area School
District and Superintendent Francis Antonelli violated his Due Process Clause rights under
two theories. First, by constructively discharging him before his contract ended, without
adequate process, they deprived him of his property interest in continued employment–thus
violating his right to procedural due process. Second, they deprived him of his right to liberty,
an interest also protected by the due process clause, when they created stigma around him.
Defendants’ motion to dismiss raises three main arguments. First, they assert that
Plaintiff failed to state procedural due process and liberty claims because he voluntarily
resigned his position. Second, they argue that the Complaint does not list any concrete
actions that could establish that Defendants subjected Plaintiff to constructive discharge, or
any public statements that could establish that they subjected him to stigma. Third, they
argue that Plaintiff failed to allege any facts that could establish a right to punitive damages
against Defendant Antonelli.1
A. Constructive Discharge
Parties agree that Plaintiff resigned his position; however, Plaintiff asserts that it was
the result of a constructive discharge. Defendants’ first argument in their Motion to Dismiss
is that “where Plaintiff voluntarily resigned his position, he cannot demonstrate that he was
denied due process rights.” (Doc. 8, ¶ 5.) However, Defendants recognize that were the
resignation a “constructive discharge,” he could indeed make that claim. (Id. at ¶ 6.)
There are two circumstances in which an employee's resignation is deemed
involuntary for due process purposes: “(1) when the employer forces the resignation or
retirement by coercion or duress, or (2) when the employer obtained the resignation or
retirement by deceiving or misrepresenting a material fact to the employee.” Rife v. Borough
of Dauphin, 647 F. Supp. 2d 431, 449-50 (M.D. Pa. 2009) (quoting Leheny v. City of
Pittsburgh, 183 F.3d 220, 228 (3d Cir.1999)).
With respect to constructive discharge, “a court must determine ‘whether a reasonable
jury could find that the [employer] permitted conditions so unpleasant or difficult that a
reasonable person would have felt compelled to resign.’” Duffy v. Paper Magic Grp., Inc.,
265 F.3d 163, 167 (3d Cir. 2001) (quoting Connors v. Chrysler Fin. Corp., 160 F.3d 971, 972
I do not address Defendants’ Motion to Dismiss Plaintiff’s claim for punitive
damages here, as I dismiss Plaintiff’s underlying claims, thus making an analysis
of remedies irrelevant.
(3d Cir.1998) (citations omitted)).
Defendants argue that Plaintiff’s resignation letter is proof that there was no
constructive discharge, and attach a copy to their Motion. However, the letter in itself does
not disprove constructive discharge. Defendants assert that the letter was sent before the
actions Plaintiff claims forced his resignation. However, Plaintiff asserts that he faced a
hostile work environment for a period preceding his letter. Additionally, Dr. Childs’ letter to
the School Board (attached to the Complaint as Exhibit A) does not contain a date, but
centers on “the past eight months.” (Doc. 6-1.) The majority of resignations, whether
authentic or constructive, are accompanied by a letter of resignation.
The letter of
resignation does not prevent the plaintiff from claiming constructive discharge.
Defendants’ second argument is more persuasive: that the Complaint and
accompanying document fail to mention any specific actions on the part of Defendants that
could plausibly make out a claim for relief on the grounds of constructive discharge.
Again, the inquiry for a court with respect to constructive discharge is “whether . . . the
[employer] permitted conditions so unpleasant or difficult that a reasonable person would
have felt compelled to resign,’” Duffy, 265 F.3d at 167. A resignation is also considered not
voluntary “(1) when the employer forces the resignation or retirement by coercion or duress,
or (2) when the employer obtained the resignation or retirement by deceiving or
misrepresenting a material fact to the employee.” Rife, 647 F. Supp. 2d at 449-50. Plaintiff
asserts that he was compelled to resign by a hostile work environment and also
mendacious letter sent by Defendant Antonelli.
Plaintiff’s Complaint and the accompanying letter by Dr. Childs do not state facts to
establish either of those grounds. Accepting as true all facts in the complaint, Plaintiff has
not pleaded “enough facts to state a claim to relief that is plausible on its face,” for a claim
of constructive discharge, as required by Twombly, 550 U.S. at 570. Plaintiff’s complaint and
the accompanying letter assert that there was a culture of hostility, in which board members
upset that their candidate had not been chosen as Director subjected Plaintiff to an
exceedingly unpleasant work environment. However, the Complaint does not describe any
specific actions or events that took place, nor does it assert any facts that indicate such an
environment. The Complaint and accompanying exhibit discuss “untoward” behavior but do
not allege any actual instances of behavior on the part of the District or Antonelli.
The only concrete action on the part of any defendant that Plaintiff describes is that
Defendant Antonelli sent a “mendacious letter to the Plaintiff, alleging that the Plaintiff had
resigned his employment.” (Doc. 6, ¶ 10.) However, Plaintiff fails to describe the letter
beyond that, and not does allege how such a letter could have caused the constructive
discharge. Viviano asserts that Defendant Antonelli was “doing everything in his power” to
force out Viviano, but does not provide a single example of this. Dr. Childs’ letter mentions
“the ‘warehousing class’ mess” and a “dust-up last fall” because Viviano did not live in the
district, but does not include any facts about these incidents.
Count II of Plaintiff’s Complaint alleges that he was deprived of the right to liberty, as
guaranteed by the Due Process Clause, when Defendants made false public statements
about him, creating stigma. Defendants’ Motion to Dismiss argues that “Dr. Childs’ letter
does not contain any public statements that could establish ‘stigma plus.’” (Doc. 8, ¶ 8-9.)
I examine the Complaint as a whole to determine if Plaintiff has asserted any public
statements that could plausibly establish stigma.
For a public employee to prevail under § 1983 on a theory of stigma in connection
with a job loss, the employee must prove that stigmatizing statements about him were
created and disseminated, and that he was terminated. Hill v. Borough of Kutztown, 455
F.3d 225, 236 (3d Cir. 2006) (citing Wisconsin v. Constantineau, 400 U.S. 433 (1971)).
Such statements must be false and made publically. Id. To prevail on a reputation-based
liberty interest claim, a plaintiff must assert, in addition to stigmatizing statements, the loss
of “some more tangible interests such as employment.” Id. (Citing Paul v. Davis, 424 U.S.
693, 701 (1976)). “When such a deprivation occurs, the employee is entitled to a nameclearing hearing.” Id. As discussed above, Plaintiff Viviano has not successfully alleged
constructive discharge, and so cannot assert a claim for the loss of a “tangible interest.”
However, even if he had, the Complaint does not allege enough facts to establish that
Viviano experienced stigma as the result of his job loss. In the complaint, Plaintiff states that
he suffered a “character assassination,” and faced public scorn, but does not allege any
specific facts. Additionally, Plaintiff does not present any facts to support his claim that he
suffered stigma as a result of these public statements.
In Plaintiff’s Brief in Reply to Defendants’ Motion to Dismiss (Doc. 10), Plaintiff
explains that the “public statement” he references is a “publically issued letter stating he had
resigned.” (Doc. 10, 9.) However, Plaintiff does not adequately allege that this letter created
the stigma or character assassination claimed, and does not assert this fact in his Amended
Complaint (Doc. 6). Plaintiff’s complaint and accompanying letter contain largely assertions
and conclusions, which alone do not allow it to survive a motion to dismiss.
For the reasons stated above, Defendants’ Motion to Dismiss will be granted.
Plaintiff’s claim will be dismissed without prejudice. Plaintiff is granted leave to amend his
Complaint within thirty (30) days.
An appropriate order follows.
December 17, 2014
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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