Yelland v. Abington Heights School District et al

Filing 78

MEMORANDUM (Order to follow as separate docket entry) re 64 MOTION to Amend/Correct 1 Complaint, filed by William H. Yelland, 65 MOTION for Partial Summary Judgment filed by William H. Yelland.Signed by Honorable Malachy E Mannion on 12/8/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM H. YELLAND,

:
:

Plaintiff

CIVIL ACTION NO. 3:16-2080
:

v.

(JUDGE MANNION)
:

ABINGTON HEIGHTS SCHOOL
DISTRICT, et al.,
Defendants

:
:

MEMORANDUM
I.

BACKGROUND1
On October 27, 2017, plaintiff William H. Yelland filed a motion for leave

of court to amend his complaint, (Doc. 64), with respect to his 14th
Amendment post-termination due process claim, under 42 U.S.C. §1983,
which was contained in Count II of his original complaint, (Doc. 1). This claim
was previously dismissed by the court in its February 9, 2017 Memorandum
and Order. (Doc. 18, Doc. 19). Plaintiff submitted his proposed amended
complaint as an exhibit. (Doc. 63-56). Plaintiff simultaneously filed a motion
for partial summary judgment, (Doc. 65), pursuant to Fed. R. Civ. Pro. 56.
Plaintiff seeks summary judgment on his post-termination due process claim
as contained in his proposed amended complaint. (Doc. 65-1). Plaintiff also

1

Since the complete background of this case was detailed by the court
in its February 9, 2017 Memorandum, (Doc. 18), it will not be fully repeated
herein. See also 2017 WL 529837.

contends that even if the court denies his motion to amend his complaint to
add his proposed 14th Amendment post-deprivation due process claim, he
should be found to be excused from pursuing any further remedies provided
by the State, including the recently scheduled school board hearing. Both of
plaintiff’s motions have been briefed by the parties, a statement of material
facts and response have been filed, and exhibits have been submitted. On
November 28, 2017, plaintiff’s reply brief regarding both of his pending
motions was filed with an attached exhibit. (Doc. 73).
Based on the foregoing, the court will DENY plaintiff’s motion for leave
to amend his complaint regarding his 14th Amendment post deprivation
procedural due process claim because he still has available remedies through
the State to challenge the recommendation for his dismissal through the
school board hearing and appellate avenues, despite the delay.
The court will also DENY IN ITS ENTIRETY plaintiff’s motion for partial
summary judgment since it finds that plaintiff must proceed with the school
board hearing and then pursue his appellate remedies provided by the State.
Further, the court will not excuse plaintiff from participating in the school
board hearing and from pursuing his State appellate remedies.

2

II.

STANDARDS OF REVIEW2
A.

Motion to Amend Complaint

The plaintiff’s moves for leave to file an amended complaint pursuant
to Fed. R. Civ. P. 15(a)(2), since the time for amending the complaint as of
right has expired. See Fed. R. Civ. P. 15(a)(1). Rule 15(a)(2) states: “a party
may amend its pleading only with the opposing party’s written consent or the
court’s leave. The court should freely give leave when justice so requires.”
The Third Circuit has adopted a liberal approach to the amendment of
pleadings in order to ensure that “a particular claim will be decided on the
merits rather than on technicalities.” Dole v. Arco Chem. Co., 921 F.2d 484,
486–87 (3d Cir. 1990). Amendment, however, is not automatic. See Dover
Steel Co., Inc. v. Hartford Accident and Indent., 151 F.R.D. 570, 574 (E.D.
Pa.1993). Leave to amend should be granted absent a showing of “undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of the allowance of the amendment, futility of
amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Oran
v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000).
Futility of amendment occurs when the complaint, as amended, does

2

Based on its discussion herein, the court sees no need to include the
standard for a summary judgment motion. The applicable standard is also set
forth in the briefs of the parties.
3

not state a claim upon which relief can be granted. See In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997) (“In assessing ‘futility,’
the district court applies the same standard of legal sufficiency as applies
under Rule 12(b)(6).”). If the proposed amendment “is frivolous or advances
a claim or defense that is legally insufficient on its face, the court may deny
leave to amend.” Harrison Beverage Co. v. Dribeck Importers, Inc., 133
F.R.D. 463, 468 (D.N.J.1990).
B.

Section 1983

The school district, the school board and the school officials are state
actors for purpose of §1983. See Kline ex rel. Arndt v. Mansfield, 454
F.Supp.2d 258, 262 (E.D.Pa. 2006).
To state a claim under section 1983, a plaintiff must meet two threshold
requirements. He must allege: 1) that the alleged misconduct was committed
by a person acting under color of state law; and 2) that as a result, he was
deprived of rights, privileges, or immunities secured by the Constitution or
laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v.
Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels
v. Williams, 474 U.S. 327, 330-331 (1986).
“A defendant in a civil rights action must have personal involvement in
the alleged wrongs; liability cannot be predicated solely on the operation of
respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir.
1988). See also Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)(citing
4

Rode). “Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207.
Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir. 1997);
Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).

III.

DISCUSSION
In his proposed amended Count II, plaintiff alleges that all defendants

denied him post-termination process by refusing to participate in arbitration
after his April 23, 2015 and May 14, 2015 requests to refer the
recommendation to dismiss him from his teaching position to an arbitrator,
which he made pursuant to the Abington Heights Education Association’s
Collective Bargaining Agreement (“CBA”). He alleges that AHSD “arbitrarily
decided” that he waived his right to arbitrate. He also alleges that AHSD then
refused to submit the issue of arbitrability to an arbitrator. On December 20,
2016, the Pennsylvania Labor Relation Board (“PLRB”) issued a Final Order
adopting the Hearing Examiner’s (“HE”) August 25, 2016 Proposed Decision
and Order recommending that AHSD must arbitrate the question of
arbitrability and dismissing AHSD’s exceptions to the HE’s proposed decision.
Plaintiff then alleges that AHSD did not pursue a further appeal of the
PLRB decision. He avers that “[a]fter the School District delayed for nearly
two years [from his initial request for arbitration], the parties finally submitted
the question of arbitrability to the appointed arbitrator.” Plaintiff alleges that
5

this delay is “incontrovertibly attributable to the School District.” Further,
plaintiff alleges that the delay “was substantially in excess of the time frame
set forth in Pennsylvania’s School Code [24 P.S. §11-1127], which requires
that a hearing take place not ‘sooner than ten (10) days nor later than fifteen
(15) days after . . . [detailed] written notice [of the charges is provided].’”
Plaintiff avers that “[t]he delay itself constitutes a post-deprivation due process
violation” and, that this delay caused him to suffer harm entitling him to
monetary damages as well as injunctive relief. (Doc. 63-56 at 28-29).
As a backdrop, plaintiff explains, (Doc. 61 at 9), that he requested,
through the union lawyer, a grievance arbitration to dispute his suspension
and the recommendation that he be dismissed. However, he states that after
he was arrested on the criminal charges, his defense counsel, on May 19,
2015, waived the grievance arbitration the union lawyer requested and instead
requested a hearing before the school board. He states that since his defense
counsel was not authorized to make the request, a legitimate dispute arose
as to whether he was entitled to arbitration or a school board hearing. He
states that even though there was a valid disagreement between the parties
as to the remedy, “there was no reasonable dispute that an arbitrator, in the
first instance, was obliged to determine the question of arbitrability.”
Additionally, plaintiff states, (Doc. 61 at 9-10), that based on the PLRB’s
final decision dated December 20, 2016, the question of arbitrability was
finally submitted to an arbitrator. On August 4, 2017, the arbitrator determined
6

that the request by his criminal lawyer for a school board hearing regarding
his termination superseded the initial request by the union lawyer for a
grievance arbitration. Thus, AHSD scheduled a school board hearing which
was to begin on October 30, 2017.
Plaintiff now contends that it is AHSD’s refusal to submit the initial
question of arbitrability to arbitration, and the ensuing 20-month delay until the
refusal was found by the PLRB to be an unfair labor practice, which gives rise
to his proposed amended post-deprivation due process claim. As such,
plaintiff asserts that the 20-month delay caused by AHSD constitutes a denial
of due process, and that he should be excused from participating in the
school board hearing that has been scheduled based on Alvin v. Suzuki, 227
F.3d 107 (3d Cir. 2000).
It is defendants’ position that plaintiff’s request to amend his complaint
should be denied since he cannot pursue a claim for post-deprivation due
process until he avails himself of the school board hearing and the appeal
remedies provided by the State. Thus, defendants argue that plaintiff’s
proposed amended claim fails because he undisputedly has not yet availed
himself of, and completed, the school board process.
The 14th Amendment prohibits a state from “depriv[ing] any person of
life, liberty, or property without due process of law.” U.S. Const. amend. XIV,
§1. “[A] procedural due process analysis involves a two step inquiry: (1) does
the complaining party have a protected liberty or property interest and, if so,
7

(2) does the available process comport with all constitutional requirements.”
Bowen v. Ryan, 2006 WL 3437287 (M.D. Pa. Nov. 29, 2006) aff'd, 248
F.App’x 302 (3d Cir. 2007); see also Shoats v. Horn, 213 F.3d 140, 143 (3d
Cir. 2000).
In Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000), the Third Circuit
discussed a post-deprivation due process claim and stated, “the due process
violation ‘is not complete when the deprivation occurs; it is not complete
unless and until the State fails to provide due process.’ If there is a process
on the books that appears to provide due process, the plaintiff cannot skip
that process and use the federal courts as a means to get back what he
wants.” (internal citation omitted). The Third Circuit then stated that “[w]e do
not hold that a party need wait forever before suing, but only that, if the
process is moving forward, and the avenues of internal appeal have not been
triggered, then a suit claiming inadequacy of procedural protection is
premature.” Id. Thus, a plaintiff bringing a claim post-deprivation due process
claim “must have taken advantage of the processes that were available,
unless those processes were patently inadequate.” Id.
A state provides constitutionally adequate procedural due process when
it provides reasonable post-deprivation remedies. DeBlasio v. Zoning Bd. of
Adjustment, 53 F.3d 592, 597 (3d Cir. 1995), overruled on other grounds sub
nom, United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392
(3d Cir. 2003). In Zinermon v. Burch, 494 U.S. 113, 125-26 (1990), the
8

Supreme Court stated:
a §1983 action may be brought for a violation of procedural
due process, but here the existence of state remedies is
relevant in a special sense. In procedural due process
claims, the deprivation by state action of a constitutionally
protected interest in “life, liberty, or property” is not in itself
unconstitutional; what is unconstitutional is the deprivation
of such an interest without due process of law. (citations
omitted). The constitutional violation actionable under
§1983 is not complete when the deprivation occurs; it is not
complete unless and until the State fails to provide due
process. Therefore, to determine whether a constitutional
violation has occurred, it is necessary to ask what process
the State provided, and whether it was constitutionally
adequate. This inquiry would examine the procedural
safeguards built into the statutory or administrative
procedure of effecting the deprivation, and any remedies for
erroneous deprivations provided by statute or tort law.
“When adequate post-deprivation procedures exist, a plaintiff must avail
him or herself of those procedures to properly state a procedural due process
claim.” Kairo-Scibek, 880 F.Supp. 2d at 561. The adequacy of a
post-deprivation hearing frequently depends on whether it is provided in a
timely manner. See Cleveland Board of Education v. Loudermill, 470 U.S. at
547. No doubt that “[a]t some point, a delay in the post-termination hearing
would become a constitutional violation.” Id. Further, “[w]here a particular
process is inadequate, effectively blocked, or a sham, that process also would
not provide the due process required by law.” Michael v. Quaker Valley
School District, 2017 WL 639374, *15 (W.D.Pa. Feb. 16, 2017) (citing Alvin,
9

227 F.3d at 116, 118); see also Mariano v. Borough of Dickson City, 40
F.Supp.3d 411 (M.D.Pa. 2014) (“Where there is an available grievance
process, a plaintiff alleging a procedural due process violation must pursue
that process before seeking redress in the courts, unless the grievance
process is blocked or there is evidence that it is a sham.”) (citing Garzella v.
Borough of Dunmore, 280 Fed. Appx. 169, 173 (3d Cir. 2008)).
The court now examines the grievance process available in
Pennsylvania for a teacher to challenge his/her dismissal.
In Damiano v. Scranton Sch. Dist., 135 F. Supp. 3d 255, 273-74 (M.D.
Pa. 2015), this court stated:
The Pennsylvania Public School Code of 1949, 24 P.S.
§§11–1127, et seq., sets forth a statutory remedy and mandates
an administrative process for challenging demotions and
dismissals [of professional employees of school districts] that
ends by an appeal to the Pennsylvania Secretary of the
Department of Education. See Merritt v. W. Mifflin Area Sch. Dist.,
56 Pa.Cmwlth. 126, 424 A.2d 572 (Pa.Cmwlth. 1981). District
Defendants followed the statutorily mandated process for
dismissal of professional employees by providing plaintiff with a
hearing before the board of school directors. The procedure for
dismissal of a professional employee is set forth in 24 P.S.
§§11–1127 through 11–1131, and provides for notice and hearing
before the board of school directors and a detailed statement of
the charges against the employee, for a 2/3 vote by school board
members to effectuate dismissal.
If the school board votes to terminate the professional employee, he/she
can appeal the decision to the Secretary of the Department of Education,
pursuant to 24 P.S. §11–1132. The decision of the Secretary of the
10

Department of Education can then be appealed to the Pennsylvania
Commonwealth Court. Id. at 274.
Here, plaintiff has not yet been terminated and despite the delay in
scheduling the school board hearing, the avenue for plaintiff to challenge the
recommendation for his dismissal has not been foreclosed and, he still has
the opportunity to be fully heard by the school board and to present all of his
evidence, including the student witnesses, before a final decision by the board
is made. Plaintiff’s appellate remedies after the school board renders a
decision also remain.
Additionally, as the court in Michael, 2017 WL 639374, *14, explained
the Pennsylvania School Code, 24 P.S. §5-514, provides that a school board
has the right to remove an employee “for incompetency, intemperance,
neglect of duty, violation of any of the school laws of this Commonwealth, or
other improper conduct”, but only after “due notice, giving the reasons
therefor, and after hearing if demanded.” Under Local Agency Law, 2
Pa.C.S.A. §553, “[n]o adjudication of a local agency shall be valid as to any
party unless he shall have been afforded reasonable notice of a hearing and
an opportunity to be heard.” Following a hearing and decision by a local
agency, such as the school board, Local Agency Law provides for an appeal
process regarding the decision “to the court vested with jurisdiction of such
appeals by or pursuant to Title 42 (relating to judiciary and judicial
procedure).” 2 Pa.C.S.A. §752, §754. Thus, “[u]nder both the School Code
11

and Local Agency Law, [plaintiff] was entitled to ‘due’ and ‘reasonable’ notice,
and the right to request a hearing before the [School] Board.” Michael, 2017
WL 639374, *14.
In its February 9, 2017 Memorandum, the court found that plaintiff was
a professional educator employed by AHSD under the Pennsylvania School
Code, and that he had a protected property interest in his employment with
AHSD. Indeed, defendants do not dispute this. The court then stated:
Defendants concede that plaintiff began to avail himself of his
administrative remedies under the CBA by seeking arbitration but
point out that they objected to arbitration claiming that plaintiff
waived his right to arbitrate based on timeliness. However,
AHSD’s objection did not prevail and the District was ordered to
participate in arbitration by the PLRB about five months ago.
Subsequently, AHSD appealed the PLRB’s decision and its
appeal is presently pending. (Doc. 16 at 2 n. 2). Thus, defendants
contend that plaintiff’s post-termination due process claim is not
yet ripe since AHSD’s appealed the decision of the PLRB hearing
examiner and no decision regarding its appeal has been
rendered. The State has thus not yet finally decided if AHSD must
arbitrate plaintiff’s wrongful termination grievance. Defendants
state that arbitration may still be available to plaintiff and that their
appeal of the PLRB decision is currently pending at the State
level. As such, defendants contend that post-termination process
is still available to plaintiff in the State and it has not yet been
foreclosed.
(Doc. 18 at 22-23).
Thus, the court dismissed plaintiff’s post-deprivation due process claim
as premature since AHSD’s exceptions were pending to the HE’s finding that
AHSD’s refusal to submit the question of arbitrability to arbitration was an
unfair labor practice.
12

After the court’s prior decision, the PLRB dismissed AHSD’s exceptions
and entered a Final Order on December 20, 2016 directing AHSD to submit
the question of arbitrability to arbitration. AHSD submitted to arbitration in
January 2017. The arbitrator then found that plaintiff’s request for a school
board hearing superseded his request for arbitration.
Plaintiff states that based on the PLRB’s final decision, “[AHSD] now
proposes to hold a school board hearing on non-consecutive evenings
starting October 30, 2017, to determine whether the Superintendent’s
termination recommendation should be adopted.” He states that “[he] seeks
leave to amend his Complaint to reinstate a now-ripe claim for
post-deprivation due process and for partial summary judgment on the
question of whether he needs to participate in the hearing.” Plaintiff contends
that AHSD’s initial refusal to arbitrate his grievance “itself constitutes a denial
of due process.” Plaintiff states that after this court dismissed his postdeprivation due process claim from his original complaint, the PLRB
dismissed AHSD’s exceptions to the HE’s proposed decision and issued its
final order directing that AHSD must submit the question of arbitrability to an
arbitrator. (Doc. 61 at 4-5). Plaintiff then essentially argues that since the HE
found that AHSD’s refusal to submit the question of arbitrability to an
arbitrator was “an unfair labor practice,” AHSD’s delay of about one year and
eight months “gives rise to a ripe post-deprivation claim” entitling him to
amend his complaint to re-assert his proposed Count II. Specifically, he states
13

that the delay from the dates he requested arbitration in April and May 2015
to the date that AHSD finally submitted to arbitration in January 2017 “was
unlawfully caused by the District.” (Id. at 12).
The court finds that neither party is without fault for the delay, and that
all of the delay was not caused by AHSD. Some the delay was caused when
plaintiff’s criminal defense counsel requested a school board hearing after the
initial request by the union lawyer for grievance arbitration was made on
plaintiff’s behalf under the CBA. It is of no moment that plaintiff now claims
that he did not authorize his criminal defense counsel to request the school
board hearing, since the request on his behalf was in fact made. When the
union lawyer initially advised the board that plaintiff did not want a hearing, the
board did not schedule one and a motion to dismiss plaintiff from his teaching
position was put on the board’s agenda. Further, after plaintiff’s criminal
defense counsel requested a school board hearing, a hearing was scheduled
for June 3, 2015. However, as plaintiff’s criminal defense counsel indicated
in an email on that date, all of the parties agreed to stay plaintiff’s hearing
before the school board until the complete resolution of the criminal charges
that were pending against him. Plaintiff’s defense counsel also specifically
stated that the parties waived any due process claim regarding the fact that
the hearing was not occurring within the requisite time frame under the School
Code and Local Agency Law. Counsel for AHSD agreed with the content of
the email sent by plaintiff’s criminal defense counsel.
14

Subsequently, on July 9, 2015, plaintiff’s union lawyer wrote to AHSD
again stating that plaintiff wanted to challenge the recommendation of
dismissal through arbitration. Plaintiff then would not participate in the school
board hearing, and maintained that he had requested an arbitration. AHSD
objected to arbitration claiming that plaintiff had waived his right to request
arbitration. On September 25, 2015, the union filed a charge with the PLRB
against AHSD claiming that the district violated the PERA by refusing to
arbitrate plaintiff’s grievance. (See Doc. 1-1). The matter then went to the
PLRB which eventually found on December 20, 2016 that AHSD’s refusal to
submit the question of arbitrability to arbitration was an unfair labor practice.
However, the HE also found that the parties had a legitimate disagreement
as to whether plaintiff had elected to proceed by arbitration. AHSD then
submitted to arbitration in January 2017. The arbitrator later found that
plaintiff’s request for a school board hearing superseded his request for
arbitration. AHSD then scheduled a school board hearing to commence on
October 30, 2017. (See Doc. 68-1, Doc. 68-2).3
Subsequently, the arbitrator concurred with AHSD’s position and found
3

The court notes that to the extent that plaintiff seeks the court not to
consider the exhibits attached to defendants’ brief, (Doc. 68-1, Doc. 68-2),
based on the doctrine of collateral estoppel with respect to the factual findings
of the PLRB, his request is denied and the court will consider the exhibits.
The exhibits are relevant and material to plaintiff’s instant motion to amend his
complaint to add his post-deprivation due process claim based on delay itself.
As such, the court finds that the issues with respect to plaintiff’s instant
motion in this case are different from the issues in the PLRB’s decision.
15

that the grievance arbitration option was waived by plaintiff, and that the
grievance filed by the union on plaintiff’s behalf was not arbitrable since he
later requested a school board hearing. As defendant point out, (Doc. 69 at
11), “Plaintiff elected not to appeal the arbitrator’s conclusion that Plaintiff’s
request to proceed before a Board hearing superseded the Union’s request
to arbitrate.” Further, since no hearing was yet conducted by the school
board, there has been no final decision made by the board to date regarding
plaintiff’s termination. Rather, defendant Mahon’s recommendation that
plaintiff be dismissed from his AHSD teaching position is presently pending.
The school board cannot make a decision as to whether plaintiff will be
terminated until the hearing is completed. (Doc. 68-2, at 2-3). Indeed, plaintiff
will be able to present all of the testimonies of the student witnesses who
were deposed in this case, at the school board hearing to support his position
that he should not be dismissed.4 The school board has scheduled the

4

Plaintiff’s statement of facts, (Doc. 62), contains several paragraphs
detailing the student testimonies indicating, in part, that plaintiff was only
engaging in horseplay with the students. Thus, they shall not be repeated
herein. The court also notes that defendants’ indicate “there is eye witness
testimony and evidence from the Victims (referred to as Students A, B, and
C) that contradicts [plaintiff’s contention that the alleged assaults on the
student “never happened”]. (Doc. 69 at 13, Doc. 70-1, Doc. 70-4, Doc. 70-6).
The court also finds that several of plaintiff’s statement of facts detailing
the testimonies of the students and challenging the Grounds for his Dismissal
are not relevant for purposes of his pending motions regarding his
post-deprivation due process claim. The relevant paragraphs with respect to
the instant motions are largely found in plaintiff’s statement of facts at Doc.
62 at 55-61. The court has discussed these relevant facts herein.
16

hearing to proceed in a manner to allow plaintiff to present all of his
evidence.5 Nonetheless, plaintiff now requests this court to allow him to
bypass the established Pennsylvania statutory procedure, including the
school board hearing that has been scheduled and, instead to proceed
directly with his proposed amended post-deprivation due process claim in this
court. Based on all of the circumstances of this case, the court finds that there
has not been undue delay regarding his post-deprivation due process rights.
Nor does the court find that defendants were the sole cause for all of the
delay. Moreover, the court finds that legitimate disputes existed between the
parties that had to be resolved before the school board hearing could be
scheduled.
Additionally, plaintiff is seeking to state a claim for post-deprivation due
process based on delay alone. In FDIC v. Mallen, 486 U.S. 230, 242, 108
S.Ct. 1780, 1788 (1988), the Supreme Court stated:
In determining how long a delay is justified in affording a
post-suspension hearing and decision, it is appropriate to
examine the importance of the private interest and the harm to
this interest occasioned by the delay; the justification offered by
the Government for delay and its relation to the underlying
governmental interest; and the likelihood that the interim decision
may have been mistaken.
Interestingly, the Third Circuit in Ritter v. Cohen, 797 F.2d 119, 123-24

5

The court notes that the October 30, 2017 school board hearing was
continued while plaintiff’s two instant motions were pending pursuant to
plaintiff’s request.
17

(3d Cir. 1986), held that a 20-month delay between the alleged deprivation
and the post-termination hearing did not violate plaintiff’s due process rights.
(citing Givens v. U.S. R.R. Bd., 720 F.2d 196, 201 (D.C.Cir. 1983)
(nineteen-month delay to adjudicate an appeal of denial of railroad benefits
does not violate due process, where plaintiff offers no evidence of intentional
delay) cert. denied, 469 U.S. 870, 105 S.Ct. 219 (1984)). The delay in Ritter
is the same period of delay that plaintiff Yelland is alleging in this case.
Furthermore, as discussed, plaintiff fails to establish a delay attributable only
to defendants and, he fails to establish that there was no justification for the
delay. The court also finds no evidence that defendants intentionally or
maliciously caused any delay in this case. See Fanti v. Weinstock, 2014 WL
5586348 (M.D.Pa. Nov. 3, 2014), aff’d, 629 Fed.Appx. 325 (3d Cir. 2015)
(Court found that 17-month delay did not constitute a violation of due process,
particularly where there was no evidence that it was done intentionally or
maliciously by PennDOT.).
To summarize, after plaintiff elected, through his criminal defense
counsel, a school board hearing under the School Code, AHSD scheduled a
hearing before the board in June 2015. (Doc. 68-1). Plaintiff’s defense
counsel then requested a continuance of the hearing until plaintiff’s criminal
trial was concluded. After the criminal trial, the parties then disputed the
appropriate venue to decide the recommendation for plaintiff’s dismissal, i.e.,
arbitration or a school board hearing. An arbitrator eventually found that a
18

school board hearing was the proper venue. Thus, under such circumstances
of this case, the 20-month delay fails to state a claim for deprivation of due
process.
Further, the court finds that notwithstanding the delay, AHSD availed
itself of the process made available by the State to challenge plaintiff’s
request for arbitration, and finally the proper venue has been determined for
plaintiff to challenge the recommendation to dismiss him. In fact, on
September 7, 2017, plaintiff’s counsel indicated that plaintiff accepted the
arbitrator’s decision on arbitrability and, that he wished to proceed with a
school board hearing if AHSD would not reconsider the dismissal
recommendation. (Doc. 68-2 at 4). Thus, under the instant facts, the delay
itself does not constitute a due process violation. “[A] cause of action for a
due process violation does not accrue at Plaintiff’s suspension or termination,
rather it accrues when Plaintiff seeks to grieve [his] deprivation and is denied
that opportunity.” Damiano, 135 F.Supp.3d at 274 (quoting Belas v. Juniata
County School Dist., 2005 WL 2100666, *8 (M.D.Pa. Aug. 26, 2005)).
Specifically, plaintiff still has the opportunity to challenge the recommendation
for his dismissal at the State level through the school board hearing despite
the delay. As such, his post-deprivation due process claim has not accrued.
The court finds that plaintiff must still pursue the hearing recently established
by the school board. The above detailed post-deprivation process the State
provides before the dismissal of professional employees by a school district
19

is both available to plaintiff and constitutionally adequate. Thus, plaintiff must
avail himself of the State procedures still available to him before he can
pursue his post-deprivation due process claim.
In light of its findings the court sees no need to address defendants’
second argument that “this court lacks jurisdiction to enter an order excusing
Plaintiff from pursuing his well-defined state law remedies.” (Doc. 68 at 4).
Next, plaintiff argues that AHSD’s act of blocking access to the process
by refusing to arbitrate his wrongful termination claim as required by the CBA
excuses him from any obligation to pursue process. The court finds that the
alleged blocking of access by AHSD to arbitration does not relieve plaintiff
from participating in the hearing scheduled by the school board. Rather,
AHSD was following the process provided by the State by challenging
plaintiff’s request for arbitration and, then by filing objections to the HE’s
proposed decision. Also, as discussed, the court finds that all of the delay
after Mahon’s recommendation for plaintiff’s dismissal was not only
attributable to defendants.
Additionally, plaintiff contends that he should be excused from
participating in the hearing since the process the school board has made
available is futile. He states that “the proposed hearing is demonstrably futile
because the process until now has been a sham”, and that “the school board
members, have evidently made up their minds already” based on the
representation of AHSD’s solicitor, who is not counsel of record in this case
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for defendants, that “the District is willing to discuss a resolution of this lawsuit
only if the resolution does not involve [plaintiff’s] reinstatement.” (Doc. 61 at
5-6, Doc. 62 at 61). Plaintiff states that “presumably” the solicitor got his
instructions from the school board and, that this demonstrates “it is
inconceivable” the school board will reinstate him to his teacher position at the
conclusion of the hearing it has scheduled. The court finds no evidence
showing that the school board has already determined plaintiff should be
dismissed, especially since the hearing was continued at plaintiff’s request
and no evidence has even been presented to the board, including the
testimonies of the student witnesses who were deposed in this case (whose
testimonies are extensively detailed in plaintiff’s statement of facts). The
conclusions which plaintiff draws from the facts of this case will not suffice as
evidence to show that a decision has already been made by the school board
and that any hearing will be a sham.
Finally, plaintiff maintains that he should be excused from participating
in the hearing since it will be patently inadequate based on the school board’s
conflict of interest. He states that “even if school board members have not
made up their minds, the school board has an inescapable conflict of interest
fundamentally non-neutral and otherwise incapable of reasonably and fairly
adjudicating [his] termination.” (Doc. 61 at 6). Plaintiff contends that during
discovery, the student witnesses testified that the alleged assault incident
which lead to his suspension was merely horseplay with student T.K. that
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lasted a few seconds, and that these students told administrators this during
AHSD’s investigation conducted after his suspension. He then states that “the
administrators intentionally omitted from their investigative report any
information contrary to the termination decision they had already reached.”
(Id.). Plaintiff also states that if the school board decided to reinstate him after
the hearing is completed, this would undermine defendants’ case at the trial
in the instant court action which shows the board’s “irreconcilable conflict of
interest” rendering the hearing “patently inadequate.” (Id.).
Plaintiff’s argument regarding the alleged conflict of interest by the
school board is tenuous at best, in light of the court’s above findings. In fact,
if the court accepted plaintiff’s contention, then in any case in which a school
board was conducting a hearing to decide if a teacher should be terminated
and the teacher had a parallel civil rights action pending under §1983 raising
a due process challenge to his dismissal, the teacher would always be
excused from participating in the hearing based on the school board’s socalled conflict of interest.
Moreover, with respect to all of plaintiff’s claims as to why he should be
excused from participating in the school board hearing, the court emphasizes
that plaintiff will be able to appeal any unfavorable decision by the school
board to the Secretary of the Pennsylvania Department of Education, and
then he can appeal the Secretary’s decision to the Pennsylvania
Commonwealth Court. Significantly, plaintiff does not claim that these
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appellate remedies provided by the State are in any way inadequate.
Futility is one of the grounds that can serve as the basis for denying
leave to amend a complaint as well as prejudice. See Shane v. Fauver, 213
F.3d 113,115 (3d Cir. 2000). Based on the above discussion, the court finds
futility in allowing plaintiff to amend his post-deprivation due process claim. It
would also be prejudicial to defendants not to allow them to conduct a full
evidentiary hearing and rule on Mahon’s recommendation for plaintiff’s
dismissal as it is the process well-established by the State.
As such, the court will deny plaintiff’s motion to amend his complaint to
re-assert his post-deprivation due process claim. The court will also deny
plaintiff’s partial motion for summary judgment regarding his proposed
amended post-deprivation due process claim and any relief sought therein.
Further, the court will deny plaintiff’s partial motion for summary judgment
insofar as plaintiff states in his reply brief, (Doc. 73 at 6), that he is seeking
partial summary judgment with respect to his request for back pay as well as
lost future earnings based on his allegations “that his termination, denial of
pre-deprivation due process, the sham investigation, and the malicious
prosecution have generally (and wrongfully) rendered him unemployable in his
chosen field”, since it is not yet clear what his alleged damages will be after
the school board hearing. As discussed, plaintiff has not yet been terminated
and, he still has available and adequate remedies provided by the State to
seek reinstatement to his teaching job. Also, plaintiff can seek summary
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judgment separately as to his other remaining claims in this case, including
his pre-deprivation due process claim and his malicious prosecution claim.
Finally, the court will deny plaintiff’s request with respect to his partial motion
for summary judgment seeking the court to excuse him from participating in
the school board hearing.

IV.

CONCLUSION
For the foregoing reasons, plaintiff Yelland’s motion for leave to amend

his complaint, (Doc. 64), regarding his 14th Amendment post-deprivation
procedural due process claim is DENIED. Plaintiff Yelland’s motion for partial
summary judgment, (Doc. 65), is DENIED IN ITS ENTIRETY. A separate
order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: December 8, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-2080-03.wpd

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