Judge v. Shikellamy School District et al

Filing 33

MEMORANDUM (Order to follow as separate docket entry) re 25 MOTION for Summary Judgment filed by Shikellamy School District. Signed by Honorable Matthew W. Brann on 5/1/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HOLLY JUDGE,

:
:
Plaintiff,
:
:
v.
:
:
SHIKELLAMY SCHOOL DISTRICT,:
:
Defendant.
:

Case No. 4:15-CV-00551
(Judge Brann)

MEMORANDUM
May 1, 2017
The story of Holly Judge’s professional career undoubtedly serves as
cautionary tale concerning the consequences of driving under the influence. Ms.
Judge began her career as a promising young teacher and moved steadily into the
ranks of school administration. Her professional career, however, was quickly
halted by the events of May 30, 2014. On that day, Ms. Judge was arrested for
driving under the influence. When her employer—Shikellamy School District—
learned of this arrest more than two weeks later, Ms. Judge was presented with two
alternatives: resign or face the filing of written charges for dismissal. Ms. Judge
chose the former. Through this suit, she now attempts to characterize that decision
as involuntarily procured—in legal parlance, a constructive discharge constituting
both a violation of her right to procedural due process under the Fourteenth

-1-

Amendment to the United States Constitution and a breach of the employment
contract she had with the Shikellamy School District.
The parties have since completed factual discovery concerning these claims.
The issue now before this Court is whether that factual discovery reveals a genuine
issue of material fact such that a reasonable jury could find in favor of Ms. Judge.
Defendant Shikellamy School District has filed a Motion for Summary Judgement
arguing that no such dispute exists and it is thus entitled to judgment as a matter of
law. Having considered the arguments advanced by both parties, I agree with
Shikellamy School District. Its Motion will therefore be granted, and judgment
will be entered in its favor.
I.

INTRODUCTION
Plaintiff Holly Judge (“Judge”) commenced this action on March 19, 2015

against Shikellamy School District, Patrick Kelley-Superintendent, and Shikellamy
School District Board of Education members Dr. James Hartman, Wendy Wiest,
Lori Garman, Kellie Cianflone, James Garman, C. Scott Karpinski, Thomas
Michaels, Michael Stepp, and Dr. Jeffrey Walter. In her original Complaint, she
alleged four claims: (1) a claim under 42 U.S.C. § 1983 for alleged violation of her
Fourteenth Amendment right to procedural due process; (2) a claim under 42
U.S.C. § 1983 for alleged violation of her Fourteenth Amendment right to
substantive due process; (3) a claim under 42 U.S.C. § 1983 for alleged violation

-2-

of her Fourteenth Amendment right to equal protection under the law; and (4) a
common law claim for breach of contract.1 Defendant Board of Education
members thereafter filed a Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) alleging (1) to the extent they are sued in their official capacity,
they are entitled to high public official immunity; (2) to the extent they are sued in
their individual capacity, they are entitled to qualified immunity; and (3) Plaintiff
failed to state a claim upon which relief can be granted for all of the four alleged
counts.2
On September 28, 2015, I issued a Memorandum and accompanying Order
which partially granted Defendant Board of Education members’ motion, and
significantly narrowed the remaining defendants and claims.3 Defendant Board of
Education members and Superintendent Patrick Kelley were dismissed in totality
from the action, and Judge’s claims under Section 1983 for violation of her
Fourteenth Amendment substantive due process and equal protection rights were
dismissed, together with her breach of contract claim. Judge was, however,
granted leave to amend both her breach of contract claim and her procedural due
process claim to allege the existence of a contract affording the protections of 24
P.S. § 11-1122. On October 8, 2015, Judge filed an Amended Complaint against
1

ECF No. 1.

2

ECF No. 7.

3

ECF Nos. 15 & 16.

-3-

the sole remaining defendant—Shikellamy School District— alleging (1) a claim
under 42 U.S.C. § 1983 for violation of her Fourteenth Amendment right to
procedural due process; and (2) a claim for breach of an employment contract
entered pursuant to 24 P.S. § 11-1122.4 Shikellamy School District thereafter
answered on October 22, 2015, and the parties began factual discovery.5
Following the completion of discovery, Shikellamy School District filed a
Motion for Summary Judgment seeking the entry of final judgment on both claims
in favor of Defendant.6 It has been fully briefed, and is now ripe for disposition.7
II.

FACTUAL BACKGROUND
A.

In August 2000, Holly Judge began her career in education. Over
the next fourteen years, she held various teaching and
administrative positions of gradually increasing responsibility.

Holly Judge is a 2000 graduate of King’s College, where she received a
Bachelor of Arts degree in Elementary Education with a minor in Psychology.8 In
2006, she earned a Master of Arts degree from King’s College in Reading
Education, and in 2007, a Master of Science degree from Wilkes University in K12 Administration and Supervision.9 Judge has also completed 40 credits toward a
4

ECF No. 17.

5

ECF No. 18.

6

ECF No. 25.

7

ECF Nos. 27, 29, & 30.

8

Judge Dep. (ECF No. 25-3), Exhibit 17.

9

Id.

-4-

doctoral degree in educational leadership from Wilkes University.10 She currently
holds an administrative/principal’s certification from the Commonwealth of
Pennsylvania allowing her to serve as a principal for pre-kindergarten through
twelfth grade.11
Since the time of her initial graduation from King’s College, Judge has been
continually employed in education.12 The non-administrative positions Judge held
include: (1) Education Specialist for the Early Intervention Program at John Heinz
Institute/Hazleton Area School District from 2000 through 2003; (2) Autistic
Support Teacher from 2003 through 2004; (3) Reading Specialist for Northeast
Educational Intermediate Unit # 19 from 2004 through 2006; and (4) Reading
Specialist at Lake Lehman School District from 2006 through 2008.13 In 2008,
Judge progressed to an administrative position. Her first administrative post, and
that immediately preceding her employment by Shikellamy School District, was
Assistant Junior-Senior High School Principal and Athletic Director at

10

Judge Dep. (ECF No. 25-3), at 16:13-18; Exhibit 17.

11

Def.’s Statement of Material Facts (ECF No. 26)(“Def.’s SUMF”) ¶¶ 3–4, at 2; Pl.’s Response
to Def.’s Statement of Material Facts (ECF No. 28)(“Pl.’s Resp.”) ¶¶ 3–4, at 1.
12

Def.’s SUMF ¶ 4, at 2; Pl.’s Resp. ¶ 4, at 1.

13

Judge Dep. (ECF No. 25-3), Exhibit 17.

-5-

Susquehanna Community School District.14 She held that position from 2008
through 2011.15
B.

Judge began her career with Shikellamy School District during
the 2011-2012 school year as Principal of Oaklyn Elementary. In
that position, she was responsible for teacher discipline and had
knowledge of her right to a pre-termination hearing through
various documents governing her employment.

During the 2011-2012 school year, Judge began her career with Shikellamy
School District as Principal of Oaklyn Elementary School.16 In this role, Judge’s
direct supervisor was Patrick Kelley–Superintendent of Shikellamy School
District.17 Directly pertinent to this action, Judge’s responsibilities as principal
included disciplining professional employees in her building, and overseeing the
improvement plans of teachers within those bounds.18 Judge had, in fact, overseen
the creation and administration of an improvement plan for a teacher under her
purview,19 and was aware that failure of a teacher to comply with the terms of a
plan could make them subject to termination.20

14

Def.’s SUMF ¶ 5, at 2; Pl.’s Resp. ¶ 5, at 1.

15

Id.; Judge Dep. (ECF No. 25-3), Exhibit 17.

16

Am. Compl. (ECF No. 17) ¶ 9, at 3; Answer (ECF No. 18) ¶ 9, at 3.

17

Judge Dep. (ECF No. 25-3), at 45:4-11.

18

Def.’s SUMF ¶¶ 8–9, at 3; Pl.’s Resp. ¶¶ 8–9, at 2–3.

19

Judge Dep. (ECF No. 25-3), Exhibit 8.

20

Def.’s SUMF ¶ 9, at 3; Pl.’s Resp. ¶ 9, at 3.

-6-

While employed at Shikellamy School District, Judge’s employment
governed by a “Professional Employee’s Contract” entered into on October 11,
2011.21 This contract contains the following pertinent language:
This contract is subject to the provisions of the "Public School Code of
1949" and the amendments thereto.
AND IT IS FURTHER AGREED by the parties hereto that none of the
provisions of this act may be waived, either orally or in writing, and that this
contract shall continue in force year after year, . . . unless terminated by the
Professional Employee by written resignation presented sixty (60) days
before resignation becomes effective, or by the School Board by official
written notice presented to the Professional Employee; provided, that the
said notice shall designate the cause for the termination and shall state that
an opportunity to be heard shall be granted if the Professional Employee
within ten (10) days after receipt of the termination notice, presents a written
request for such a hearing.22
Incorporated within this contract, therefore, is Section 1122(a) of the Public School
Code of 1949, codified at 24 P.S. § 11-1122(a). This section, which lists causes
for termination of contract, states the following:
The only valid causes for termination of a contract heretofore or hereafter
entered into with a professional employe shall be immorality; incompetency;
unsatisfactory teaching performance based on two (2) consecutive ratings of
the employe's teaching performance that are to include classroom
observations, not less than four (4) months apart, in which the employe's
teaching performance is rated as unsatisfactory; intemperance; cruelty;
persistent negligence in the performance of duties; wilful neglect of duties;
physical or mental disability as documented by competent medical evidence,
which after reasonable accommodation of such disability as required by law
substantially interferes with the employe's ability to perform the essential
21

Def.’s SUMF ¶ 6, at 2; Pl.’s Resp. ¶ 6, at 1–2.

22

Def.’s SUMF ¶ 7, at 2–3; Pl.’s Resp. ¶ 7, at 2.

-7-

functions of his employment; advocation of or participating in un-American
or subversive doctrines; conviction of a felony or acceptance of a guilty plea
or nolo contendere therefor; persistent and wilful violation of or failure to
comply with school laws of this Commonwealth, including official
directives and established policy of the board of directors; on the part of the
professional employe: Provided, That boards of school directors may
terminate the service of any professional employe who has attained to the
age of sixty-two except a professional employe who is a member of the old
age and survivors insurance system pursuant to the provisions of the act,
approved the first day of June, one thousand nine hundred fifty-six
(Pamphlet Laws 1973).23
Furthermore, Judge’s conduct as an administrative employee was governed by
“School Board Policy # 317,” which states the following:
All administrative employees are expected to conduct themselves in a
manner consistent with appropriate and orderly behavior. Effective operation
of district schools requires the cooperation of all employees working
together and complying with a system of Board policies, administrative
regulations, rules and procedures, applied fairly and consistently.
The Board directs that all administrative employees shalt be informed of
conduct that is required and is prohibited during work hours and the
disciplinary actions that may be applied for violation of Board policies,
administrative regulations, rules and procedures.24
...
When demotion or dismissal charges are filed against a certificated
administrative employee, a hearing shall be provided as required by
applicable law. Noncertificated administrative employees may be entitled to
a Local Agency Law hearing, at the employee's request.
When engaged in assigned duties, administrative employees shall not
participate in activities that include but are not limited to the following:

23

24 P.S. § 11-1122.

24

Def.’s SUMF ¶ 10, at 3; Pl.’s Resp. ¶ 10, at 3.

-8-

1. Physical or verbal abuse, or threat of harm, to anyone.
2. Causing intentional damage to district property, facilities or
equipment.
3. Forceful or unauthorized entry to or occupation of district facilities,
buildings and grounds.
4. Use, possession, distribution, or sale of alcohol, drugs or other
illegal substances.
5. Use of profane or abusive language.
6. Failure to comply with directives of district officials, security
officers, or law enforcement officers.
7. Carrying onto or possessing a weapon on school grounds without
authorization from the appropriate school administrator.
8. Violation of Board policies, administrative regulations, rules or
procedures.
9. Violation of federal, state, or applicable municipal laws or
regulations.
10. Conduct that may obstruct, disrupt, or interfere with teaching,
research, service, operations, administrative or disciplinary functions
of the district, or any activity sponsored or approved by the Board.25
This policy, together with other Shikellamy School District Board Policies which
are applicable to administrative employees, are accessible on the District’s

25

Judge Dep. (ECF No. 25-3), Exhibit 1.

-9-

website.26 Judge acknowledged reading these policies during her time as principal,
and further kept a binder of said policies in her office.27
C.

On May 30, 2014, Judge was arrested for driving under the
influence of alcohol. Results of a blood alcohol test later
confirmed a Blood Alcohol Content of .332—well in excess of
Pennsylvania’s legal limit of .08.

On May 30, 2014 at approximately 11:30 p.m., during the time she was
employed by Shikellamy School District as Principal, Judge was involved in a
motor vehicle traffic stop.28 Initiated by Trooper Craig Magnuson of the
Pennsylvania State Police in Selinsgrove, Pennsylvania as part of his assigned DUI
detail,29 this stop was made as Judge was leaving the Selinsgrove Hotel—a
bar/restaurant.30 After she was pulled over, Judge admitted to Trooper Magnuson
that she had consumed alcohol at this establishment prior to driving her vehicle.31
She also asked Trooper Magnuson to let her go,32 and expressed to the officer

26

Id. at 37:3-37.

27

Id. at 37:3-23.

28

Def.’s SUMF ¶ 13, at 4; Pl.’s Resp. ¶ 13, at 3.

29

Def.’s SUMF ¶¶ 14–15, at 4; Pl.’s Resp. ¶¶ 14–15, at 3. It should be noted that the parties
disagree over the impetus for Trooper Magnuson pulling over Judge. While Trooper Magnuson
stated in his deposition that he pulled over Judge because she had driven in the opposite lane
after pulling out from her parking space, Judge herself argues that she was initially told she was
pulled over for failing to use a turn signal when pulling out. See Def.’s SUMF ¶ 16, at 4; Pl.’s
SUMF ¶ 16, at 3. Because this dispute is irrelevant to the instant constructive discharge analysis,
however, the Court need examine it no further.
30

Def.’s SUMF ¶ 17, at 4; Pl.’s Resp. ¶ 17, at 4.

31

Def.’s SUMF ¶ 18, at 4; Pl.’s Resp. ¶ 21, at 4.

32

Def.’s SUMF ¶ 21, at 5; Pl.’s Resp. ¶ 18, at 4.

- 10 -

concern over the implications her impending arrest would have on her
employment.33 Judge was thereafter placed under arrest, handcuffed, and
transported to the state police barracks for blood alcohol testing.34 During the ride
to the state police barracks, Judge was talking, angry, and yelling.35 She
understood that the results of the blood test later performed were determinative of
whether she would face charges for this incident.36
Results of the blood alcohol test were returned to Trooper Magnuson on
June 17, 2014, and indicated that, at the time of her arrest, Judge had a Blood
Alcohol Content (BAC) of .332—well in excess of Pennsylvania’s legal limit of
.08.37 In light of what Trooper Magnuson stated was the highest BAC he had
encountered in his sixteen years as a state trooper, Judge was charged on June 19,
2014 with violating 75 Pa.C.S.A. § 3802(a), or DUI– general impairment, and 75
Pa.C.S.A. § 3802(c), or DUI–highest rate of alcohol.38 She obtained a lawyer for
the sole purpose of advising her how to handle her criminal charges,39 and later
entered a plea of guilty to one count of 75 Pa. C.S.A. §3802(a) – General

33

Judge Dep. (ECF No. 25-3), at 49:2 -50:23.

34

Def.’s SUMF ¶ 22, at 5; Pl.’s Resp. ¶ 23, at 4.

35

Def.’s SUMF ¶ 23, at 5; Pl.’s Resp. ¶ 22, at 4.

36

Def.’s SUMF ¶ 25, at 5; Pl.’s Resp. ¶ 25, at 4.

37

Def.’s SUMF ¶¶ 27–28, 30, at 6; Pl.’s Resp. ¶¶ 27–28, 30, at 5.

38

Def.’s SUMF ¶¶ 29, 31, at 6; Pl.’s Resp. ¶¶ 29, 31, at 5.

39

Pl.’s SUMF ¶ 26, at 4.

- 11 -

Impairment Driving Under the Influence.40 Judge received a sentence of six
months of probation and a $ 300.00 fine.41 She did not reveal this incident to
anyone at the District prior to June 19, 2014.42
D.

Superintendent of Shikellamy School District Patrick Kelley
questioned Judge on June 19, 2014 concerning this DUI arrest.
He thereafter presented Judge with a letter asking for her
resignation, or, in the alternative, advising her that she would face
the filing of written charges of dismissal. Judge chose the former
alternative—she resigned.

On June 19, 2014, nearly three weeks after Judge’s initial arrest, she
attended a meeting in her office with Patrick Kelley—the Shikellamy School
District Superintendent (“Kelley”), and Abbey Walshaw Wertz—the Shikellamy
School District Director of Education.43 During this meeting, Kelley informed
Judge that he had learned from the district solicitor that she had been involved in a
traffic stop based on suspicion of driving under the influence.44 Judge, in turn
responded that she had been subject to a traffic stop, was not formally charged, and
was given a blood alcohol test at the state police barracks.45 At the time of this
meeting, Plaintiff had not received notice of formal charges.46
40

Dep. of Holly Judge (ECF No. 25-3), at 91:11-15.

41

Def.’s SUMF ¶ 59, at 10; Pl.’s Resp. ¶ 59, at 9.

42

Def.’s SUMF ¶¶ 29, 31, at 6; Pl.’s Resp. ¶¶ 29, 31, at 5.

43

Def.’s SUMF ¶¶ 33–34, at 6; Pl.’s Resp. ¶¶ 33–34, at 5.

44

Def.’s SUMF ¶¶ 35–36, at 7; Pl.’s Resp. ¶¶ 35–36, at 5.

45

Def.’s SUMF ¶ 37, at 7; Pl.’s Resp. ¶ 37, at 5–6.

46

Pl.’s Resp. ¶ 37, at 5–6.

- 12 -

At a meeting held approximately three hours later in his office, Kelley
handed Judge a letter which read, in pertinent part:
First, I met with you after learning from two reliable sources that you were
involved in a traffic stop based upon suspicion of driving under the
influence. You stated at our meeting that you did not receive a field sobriety
test. However, later in the meeting, you eventually disclosed that a blood
alcohol test through blood testing was conducted at the State Police
barracks.
Secondly, you failed to disclose these significant events to me for a period of
twenty (20) days and any disclosure required our personal meeting and
demand for information. When confronted at the time of our meeting, you
attempted to explain that no charges had been filed and in essence, you were
released on your own recognizance, as if it was nothing more than a routine
traffic stop. You stated testing did not occur because you were not given a
field sobriety test.
Thirdly, these underlying facts leave me with no choice but to ask for your
immediate resignation. If you do choose to resign then I will offer a neutral
reference in the future upon inquiry.
Fourth, in the alternative, if you decide not to resign and DUI charges are
filed against you then I will be forced to issue a written statement of charges
for dismissal. These charges will be based upon the following elements:
* Immorality - conduct which offends the morals of the Commonwealth
and is a bad example to the youth whose ideals a professional educator or
charter school staff member has a duty to foster and elevate.
* Intemperance - a loss of self-control or self-restraint, which may result
from excessive conduct.
* Moral Turpitude - (2) conduct done knowingly contrary to justice,
honesty or good morals.47

47

Judge Dep. (ECF No. 25-3), Exhibit 2.

- 13 -

Kelley had prepared this letter in consultation with Shikellamy School District’s
then solicitor—Michael Apfelbaum.48 Kelley also represented to Judge that, if she
voluntarily resigned, he would provide a neutral statement of reference upon
request.49
Judge was given until 12:30 p.m. the following day to respond to this
letter.50 In the time following her second meeting with Kelley, Judge spoke only
with her mother about the situation and her options.51 The following day, June 20,
2014, Judge submitted a letter resigning her position with the Shikellamy School
District.52
III.

LAW
“One of the principal purposes of the summary judgment rule is to isolate

and dispose of factually unsupported claims or defenses, and we think it should be
interpreted in a way that allows it to accomplish this purpose.”53 Summary
judgment is appropriate where “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”54

48

Def.’s SUMF ¶ 46, at 8; Pl.’s Resp. ¶ 46, at 7.

49

Def.’s SUMF ¶ 49, at 8; Pl.’s Resp. ¶ 49, at 7.

50

Judge Dep. (ECF No. 25-3), at 80:14-24; Judge Dep., Exhibit 2.

51

Def.’s SUMF ¶ 51, at 9; Pl.’s Resp. ¶ 51, at 8.

52

Judge Dep. (ECF No. 25-3), at 74:25-75:5; Judge Dep., Exhibit 3.

53

Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

54

Fed. R. Civ. P. 56(a).

- 14 -

“Facts that could alter the outcome are ‘material facts,’ and disputes are ‘genuine’
if evidence exists from which a rational person could conclude that the position of
the person with the burden of proof on the disputed issue is correct.”55
“A defendant meets this standard when there is an absence of evidence that
rationally supports the plaintiff’s case.”56 “A plaintiff, on the other hand, must
point to admissible evidence that would be sufficient to show all elements of a
prima facie case under applicable substantive law.”57
“[T]he inquiry involved in a ruling on a motion for summary judgment or for
a directed verdict necessarily implicates the substantive evidentiary standard of
proof that would apply at the trial on the merits.”58 Thus, “[i]f the defendant in a
run-of-the-mill civil case moves for summary judgment or for a directed verdict
based on the lack of proof of a material fact, the judge must ask himself not
whether he thinks the evidence unmistakably favors one side or the other but
whether a fair-minded jury could return a verdict for the plaintiff on the evidence
presented.”59 “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the jury

55

Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) (Hutchinson, J.) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) and Celotex Corp., 477 U.S. at 322).
56

Clark, 9 F.3d at 326.

57

Id.

58

Liberty Lobby, Inc., 477 U.S. at 252.

59

Id.

- 15 -

could reasonably find for the plaintiff.”60 “The judge’s inquiry, therefore,
unavoidably asks . . . ‘whether there is [evidence] upon which a jury can properly
proceed to find a verdict for the party producing it, upon whom the onus of proof is
imposed.’”61 Summary judgment therefore is “where the rubber meets the road”
for a plaintiff, as the evidentiary record at trial, by rule, will typically never surpass
that which was compiled during the course of discovery.
“[A] party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.”62 “[R]egardless of whether the
moving party accompanies its summary judgment motion with affidavits, the
motion may, and should, be granted so long as whatever is before the district court
demonstrates that the standard for the entry of summary judgment, as set forth in
Rule 56(c), is satisfied.”63
Where the movant properly supports his motion, the nonmoving party, to
avoid summary judgment, must answer by setting forth “genuine factual issues that

60

Id.

61

Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 447 (1871)).

62

Celotex Corp., 477 U.S. at 323 (internal quotations omitted).

63

Id.

- 16 -

properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.”64 For movants and nonmovants alike, the
assertion “that a fact cannot be or is genuinely disputed” must be supported by:
(i) “citing to particular parts of materials in the record” that go beyond “mere
allegations”; (ii) “showing that the materials cited do not establish the absence or
presence of a genuine dispute”; or (iii) “showing . . . that an adverse party cannot
produce admissible evidence to support the fact.”65
“When opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts of record which would
contradict the facts identified by the movant.’”66 Moreover, “[i]f a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion.”67 On motion for summary judgment,
“[t]he court need consider only the cited materials, but it may consider other
materials in the record.”68

64

Liberty Lobby, Inc., 477 U.S. at 250.

65

Fed. R. Civ. P. 56(c)(1).

66

Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003)
(Weis, J.).
67

Fed. R. Civ. P. 56(e)(2).

68

Fed. R. Civ. P. 56(c)(3).

- 17 -

“[A]t the summary judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.”69 “[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.”70 “If the evidence is merely colorable . . . or is not significantly
probative, summary judgment may be granted.”71
IV.

ANALYSIS
In its Motion for Summary Judgment, Shikellamy School District seeks the

imposition of final judgment in its favor on Judge’s Section 1983 claim and her
breach of contract claim. Having determined that there is no genuine dispute of
material fact from which a reasonable jury could find in favor of Judge, I will grant
the Motion. My reasoning is as follows.
A.

Judge’s Fourteenth Amendment Procedural Due Process Claim

Section 1983 of Title 42 of the United States Code provides a cause of
action to redress violations of federal law committed by state officials.72 Section
1983 is not a source of substantive rights; rather, it merely provides a remedy for

69

Liberty Lobby, Inc., 477 U.S. at 249.

70

Id.

71

Id. at 249–50 (internal citations omitted).

72

See 42 U.S.C. § 1983.

- 18 -

violations of constitutional rights.73 To establish a claim under 42 U.S.C. § 1983, a
plaintiff must demonstrate that: (1) the conduct complained of was committed by a
person acting under color of state law; and (2) the conduct deprived the
complainant of rights secured under the Constitution or federal law.74 Here, Judge
alleges that Shikellamy School District violated her Fourteenth Amendment right
to procedural due process by failing to provide both a pre-termination opportunity
to respond, and post termination administrative procedures.
The Fourteenth Amendment provides that no “State [shall] deprive any
person of life, liberty, or property, without due process of law.”75 “To prevail on a
procedural due process claim, a litigant must show (1) that the state deprived him
of a protected interest in life, liberty, or property and (2) that the deprivation
occurred without due process of law.”76 The parties do not dispute that, as a public
employee, Judge had a property interest in her continued employment. Property
interests are not created by the Constitution, but rather “by existing rules or
understandings that stem from an independent source such as state law-rules or
understandings that secure certain benefits and that support claims of entitlement to

73

See City of Oklahoma City v. Tuttle, 471 U.S. 808, 815 (1985).

74

See Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir.
1998).
75

U.S. Const. amend. XIV, § 1.

76

Burns v. PA Dep’t. of Correction, 544 F.3d 279, 285 (3d Cir. 2008) (citing Ky. Dep’t of Corr.
v. Thompson, 490 U.S. 454, 460 (1989)).

- 19 -

those benefits.”77 Judge’s property interest is memorialized in two provisions of
Pennsylvania’s Public School Code of 1949, located at 24 P.S. § 11-1122 (“Section
11-1122”) and 24 P.S. § 5-514 (“Section 5-514”).
The operative issue which remains is whether Judge was constructively
terminated and thus deprived of procedural due process prior to deprivation of that
property interest, or, instead, voluntarily resigned and relinquished that property
interest. Shikellamy School District characterizes Judge’s exit from her position as
a voluntary resignation; Judge, on the other hand, portrays her departure as one in
which she was forced to resign and did so under protest, in a manner effectively
amounting to a constructive discharge.78
At the outset, I note that employee resignations carry a presumption of
voluntariness which “remains intact until the employee presents evidence to
establish that the resignation or retirement was involuntarily procured.”79 Even if

77

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).

78

Not addressed in the parties’ briefing but referenced throughout deposition testimony is the
“Notice of Determination” completed by the Department of Labor and Industry Office of
Unemployment Compensation Benefits which found Judge eligible for unemployment benefits.
The findings of fact contained therein, however, have no preclusive effect in the instant
determination. See Mathis v. Christian Heating and Air Conditioning, Inc., 91 F.Supp.3d 651,
657 (E.D.Pa. 2015) (citing 43 P.S. § 829; Training Associates Corp. v. Unemployment Comp.
Bd. of Review, 101 A.3d 1225, 1234 (Pa.Commw.Ct. 2014)).
79

Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999).

- 20 -

prompted to retire by some action of her employer, this presumption remains intact
so long as the employee resigns of her own free will.80
The United States Court of Appeals for the Third Circuit has further
articulated that there are two particular circumstances in which an employee’s
resignation will be considered involuntary, that is: “(1) when the employer forces
the resignation or retirement by coercion or duress, or (2) when the employer
obtains the resignation or retirement by deceiving or misrepresenting a material
fact to the employee.”81 In making this determination, a court must “examine the
surrounding circumstances to test the ability of the employee to exercise free
choice.”82
(1) No Reasonable Jury Could Find that Judge’s Resignation Was
Obtained Through the Misrepresentation of a Material Fact.
Here, Judge has advanced no argument that her resignation was attained
through deception or misrepresentation of a material fact and there exists no
evidence within the factual record from which a reasonable jury could make that
finding. In fact, review of the letter submitted to Judge on June 19, 2014, reveals
that it accurately relayed the choices available to Judge. Specifically, as previously
noted, this letter stated that:

80

Id.

81

Id. at 228.

82

Id. at 227.

- 21 -

Thirdly, these underlying facts leave me with no choice but to ask for your
immediate resignation. If you do choose to resign then I will offer a neutral
reference in the future upon inquiry.
Fourth, in the alternative, if you decide not to resign and DUI charges are
filed against you then I will be forced to issue a written statement of charges
for dismissal.83
This statement encapsulates the necessary procedure to be followed prior to
depriving Judge of her property right in continued employment. While Judge
argues that Kelley never informed her of her right to a hearing prior to
termination,84 she offers no evidence that Kelley affirmatively misrepresented her
alternatives in a way which differed from the letter.
Rather, as outlined in her deposition and noted throughout this opinion, it
was Judge’s own mistaken understanding of the letter which led her to believe she
would face immediate termination without a hearing. That mistaken
understanding is shown in the following exchanges within Judge’s deposition:
Q. What did you say?
A. I looked at him. I said, what do I do now? I don't know what to do. I
mean, is there anything I could do to change this or --- I didn't know where
to go. And he just simply told me no.85
...

83

Judge Dep. (ECF No. 25-3), Exhibit 2.

84

See Pl.’s SUMF ¶¶ 43–45, 47, at 6–7.

85

Judge Dep. (ECF No. 25-3), at 63:18-24.

- 22 -

Q. What did you understand this to mean then, issue a written statement of
charges for dismissal?
A. That I was going to be terminated. 86
...
Q. And I understand that. And I appreciate that. But I mean, knowing that
this policy is out there, although you think it doesn't apply under the
circumstances, when Mr. Kelley presented this letter to you, in your own
mind, you didn't think you'd have a right to a hearing before termination?
A. I had asked Mr. Kelley, what can I do? Is there anything I could do? I
said, what do I ---? And he told me, no. So to me, I was asking, what could I
do? Is there anything I could do? And he told me no.
Q. Did you specifically ask Mr. Kelley, well, if I don't want to resign and
you issue a written statement of charges for dismissal, would I have a right
to a hearing before the ---?
A. No, I did not.
Q. Did it ever cross your mind when you had this discussion with Mr.
Kelley, that you would have a right to a hearing?
A. No . . .87
...
Q. Does the letter say that if you do not resign you will be fired?
A. No. it states that if you choose not to resign, forced to issue a written
statement of charges for dismissal.
Q. Well, ---.

86

Id. at 67:1-5.

87

Id. at 68:1-69:2.

- 23 -

A. So to me, that is telling me that --- charges for dismissal, I’m going to be
terminated. Just like this is a letter that's telling me, here's your opportunity
to resign. If you don't resign, you will be terminated.88
Furthermore, even if the above exchange were construed to show an
affirmative misrepresentation by Kelley, Judge’s claim for constructive discharge
based on material misrepresentation would still fail as a matter of law. The Third
Circuit has held that, in order for the misrepresentation of a material fact to rebut
the presumption of voluntary resignation, it is incumbent upon the plaintiff to show
that a “reasonable person would have been misled by the agency’s
statements.”89 Therefore, neither the “subjective perceptions of the employee [n]or
the subjective intentions of the employer” are determinative.90
In Leheny v. City of Pittsburgh, the Third Circuit found that the district court
erred in failing to dismiss a procedural due process claim which was based on
allegations by police officers that a letter from the city’s disability claims
management service contained a misrepresentation of material fact.91 The police
officers argued that, because of a material misrepresentation within the letter, they
were led to believe that they would lose their Heart and Lung Act benefits, their
pension benefits, and any available worker’s compensation benefits if they did not

88

Id. at 71:18-72:6.

89

Boyd v. Rockwood Area School Dist., 105 F.App’x. 382, 385 (3d Cir. 2004).

90

Id.

91

Leheny, 183 F.3d at 228.

- 24 -

sign a supplemental agreement acknowledging their permanent disability.92
Addressing this argument, the Leheny Court held that
[a]lthough it is possible that Ryan's letter may have confused Leheny and
Ramsey concerning the applicable procedures for terminating Heart and
Lung Act benefits, no part of the letter would lead a reasonable police
officer to believe that refusal to sign the supplemental agreements would
result in termination of all benefits.93
Here, as in Leheny, no part of the letter nor the accompanying discourse as
relayed by Judge above would lead a reasonable educator and administrator of
Judge’s considerable education and experience to believe that she did not have the
legal right to a pre-termination hearing. Therefore, to the extent Judge’s argument
for a finding of constructive discharge is premised on a misrepresentation of a
material fact,94 Shikellamy School District is entitled to summary judgment
because she has failed to rebut the presumption of voluntary resignation.
(2) No Reasonable Jury Could Find that Judge’s Resignation Was
Obtained Through Coercion or Duress.
In the absence of evidence from which a reasonable jury could find a
misrepresentation of fact, success of Judge’s claim for constructive discharge is
therefore dependent on a theory that Shikellamy School District forced her
resignation through coercion or duress. To determine whether a resignation was

92

Id.

93

Id. (emphasis added).

94

I again note that Judge’s briefing makes no argument to that end.

- 25 -

involuntarily coerced, a court must consider whether the “[p]laintiff reasonably
believed that he ‘had no other choice but to quit.’ ”95 Again, the ultimate inquiry is
an objective one and a subjective belief by the employee that her only option is to
resign is irrelevant.96 Similarly irrelevant to the inquiry is the mere fact that
plaintiff is faced with unpleasant alternatives, as the existence of such alternatives
still affords plaintiff a choice.97
Courts have considered several non-dispositive factors when determining
whether a resignation was procured involuntarily due to coercion or duress,
including: (1) whether the employee was presented with an alternative to
resignation; (2) whether the employee understood the nature of the choices she was
given; (3) whether the employee had a reasonable time to choose; (4) whether the
employee was permitted to select the effective date of resignation; and (5) whether
the employee had the advice of counsel.98 Analysis of these factors in the instant
case reveals that Judge has failed to rebut the presumption of voluntary resignation
by raising a genuine issue of material fact as to whether her resignation was the
product of coercion or duress.
95

Kosciolek v. Wilkes-Barre Fire Fighters Ass’n Local 104, Civil Action No. 3:04-CV-1920,
2006 WL 3742700, at *4 (M.D.Pa. Dec. 18, 2006)(Caputo, J.)(quoting Lighton v. Univ. of
Utah, 209 F.3d 1213, 1222 (10th Cir. 2000)).
96

Id. (citing Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 173 (4th Cir.1988)).

97

Id. (citing Stone, 855 F.2d at 174; Christie v. United States, 518 F.2d 584, 587–88 (Ct.Cl.
1975)).
98

See O’Connell v. County of Northampton, 79 F.Supp.2d 529, 533 (E.D.Pa. 1999) (citing
Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995)).

- 26 -

(a) O’Connell Factor 1: Whether the Employee Was Presented
With An Alternative to Resignation
First, while Judge argues that she faced no alternative to resignation
following Kelley’s presentation of the letter, an objective analysis of the totality of
circumstances surrounding Judge’s resignation reveals that she was presented with
a valid alternative to immediate resignation—the filing of a written statement of
charges for dismissal.
In Corr v. Springdale Borough,99 the United States District Court for the
Western District of Pennsylvania granted summary judgment in favor of defendant
borough and related officials on a Fourteenth Amendment procedural due process
premised on constructive discharge. In that case, plaintiff James M. Corr, a parttime police officer, was suspected of stealing and consuming prescription pills.100
After learning of these accusations, the borough chief of police and mayor
threatened to bring criminal charges against Corr if he did not resign.101 Corr
thereafter resigned from his position rather than face potential criminal charges.102
Based on this factual pattern, Corr brought a Fourteenth Amendment procedural
due process claim premised on what he alleged was a constructive discharge.103
99

--F.Supp.3d--, No. 15-CV-00637, 2016 WL 6901327, at *2–3.

100

Id. at *1.

101

Id.

102

Id.

103

Id. at *2.

- 27 -

The Honorable Mark Hornak granted summary judgment on this alleged violation
of Corr’s right to procedural due process. Judge Hornak reasoned that, although
plaintiff contended that his resignation was involuntary since it was offered under
the unquestionably unpleasant threat of criminal charges, an alternative to
immediate resignation nevertheless existed in the form of remaining in his position
and facing the filing of said charges.104
In the instant matter, the facts when read in the light most favorable to Judge
demonstrate that she was presented with an alternative less severe than that faced
by the plaintiff in Corr. Specifically, as noted throughout, the letter presented to
Judge on June 19, 2014 stated that in the absence of her resignation, Kelley would
be forced to “issue a written statement of charges for dismissal.”105 At that
moment, Judge could therefore remain in the employ of Shikellamy School District
and face the filing of a written statement of charges with the School Board. While
unpleasant, this choice, as memorialized in the letter, nonetheless presented an
alternative.
(b) O’Connell Factor 2: Whether the Employee Understood the
Nature of the Choices She Was Given
Having determined that the evidence shows Judge was presented an
alternative to her immediate resignation, the second O’Connell factor requires the
104

Id. at *3 (citing, inter alia, Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir.
1995)).
105

Judge Dep. (ECF No. 25-3), Exhibit 2.

- 28 -

Court to address if a genuine dispute of material fact exists regarding whether
Judge understood the nature of the choices given and as previously outlined.
In her Brief in Opposition of the instant Motion for Summary Judgment,
Judge argues that she did not understand the nature of the choices given, i.e. that
she had the opportunity to “stand pat and fight”106 at a properly held pretermination hearing.107 Defendant Shikellamy School District, in turn, argues that,
because of Judge’s experience as an administrator and her sixteen years as an
educator, a reasonable employee in plaintiff's position would certainly understand
she had a choice beyond resignation or immediate termination, i.e. the right to a
written statement of charges and hearing.108
At the outset, I note that, while the summary judgment standard dictates that
I view the facts presented in this light most favorable to Judge, her subjective
perception concerning the unfairness or harshness of the circumstances, or in this
case—lack of alternatives, leading up to her resignation is not by itself
dispositive.109 Instead, the utilization of an objective test by the Third Circuit
mandates that the inquiry continue.110 Therefore, “where a separated employee
alleges that his resignation was coerced, he must show that the resignation resulted
106

Christie, 518 F.2d at 587.

107

Pl’s Opp. Br., at 6.

108

Def.’s Supp. Br., at 8.

109

Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1162 (3d Cir. 1993).

110

Mandel v. M&Q Packaging Corp., 706 F.3d 157, 169 (3d Cir. 2013).

- 29 -

from employment conditions which, under an objective standard, are so unpleasant
or so difficult that a reasonable employee in plaintiff's position would
resign.”111
Here, while Judge argues that a genuine dispute exists in that she herself was
unaware and uninformed that she had the option of facing both the formal filing of
charges and a subsequently held hearing before the school board,112 the facts
demonstrate that no reasonable jury could find that a reasonable employee with
Judge’s credentials and position would not understand that she had an alternative
to immediate resignation. First, the undisputed facts establish that Judge enjoyed a
lengthy career as an educator and school district administrator prior to her
resignation on June 19, 2014. Specifically, following her graduation from King’s
College in 2000, Judge worked for fourteen years in various teaching and
administrative positions.113 Those positions, as noted, include working as:
 an Education Specialist for Early Intervention Program at John Heinz
Institute/Hazleton Area School District from 2000 through 2003;
 an Autistic Support Teacher from 2003 through 2004;

111

Stiner v. University of Delaware, Civil Action No. 02-CV-312, 2004 WL 1949545, at *6
(D.Del. Aug. 27, 2004)(citing Leheny, 183 F.3d at 228)(emphasis added).
112

Judge Dep. (ECF No. 25-3), at 66:19 – 68:15.

113

See generally Judge Dep. (ECF No. 25-3), Exhibit 17.

- 30 -

 a Reading Specialist for Northeast Educational Intermediate Unit #
19 from 2004 through 2006;
 Reading Specialist at Lake Lehman School District from 2006
through 2008;
 an Assistant Principal and Athletic Director at Susquehanna
Community School District from 2008 through 2011; and finally
 an Elementary School Principal at Shikellamy School District from
2011 through 2014.114
Second, in her position as Elementary School Principal for Shikellamy
School District at Oaklyn Elementary, Judge was tasked with, among other things,
teacher evaluations and discipline.115 In that role, Judge was familiar with the
progression of disciplinary action to be taken against teachers; beginning with an
informal conversation, progressing to a letter of reprimand and meeting with a
union official, and ultimately culminating in a grievance process whereby teachers
had the right to an arbitration hearing.116 Judge, in fact, had overseen the creation
and administration of an improvement plan for a teacher under her purview.117 She

114

Id.

115

Judge Dep. (ECF No. 25-3), at 32:7 – 33:1.

116

Id. at 34:10 – 36:15.

117

Judge Dep. (ECF No. 25-3), Exhibit 8.

- 31 -

understood that failure to abide by the terms of the improvement plan would render
the teacher subject to termination.118
The undisputed facts also indicate that Judge had, through numerous
sources, been informed of the due process to which administrators were entitled
prior to termination. First, as a preliminary matter, Judge admitted that, in her
position as Elementary Principal at Oaklyn Elementary, she was an Act 93
employee119 and considered as such by Shikellamy School District.120 In her
position as an Act 93 administrator, Judge’s continued employment was subject to
a Professional Employee’s Contract.121 This contract contained the following
pertinent language:
This contract is subject to the provisions of the "Public School Code
of 1949" and the amendments thereto.
AND IT IS FURTHER AGREED by the parties hereto that none of
the provisions of this act may be waived, either orally or in writing,
and that this contract shall continue in force year after year, . . . unless
terminated by the Professional Employee by written resignation
presented sixty (60) days before resignation becomes effective, or by
the School Board by official written notice presented to the
118

Judge Dep. (ECF No. 25-3), at 108:13-15 (“And if you get two unsatisfactories within a
school year, ultimately, you could be terminated.”).
119

Houston v. Easton Area School Dist., 355 F.App’x 651, 653 (3d Cir. 2009) (“Act 93, 24 P.S.
§ 11-1164, part of the Pennsylvania Public School Code of 1949, requires school employers to
adopt written compensation plans for certain school administrators whose positions are not
included in a bargaining unit. (Citation omitted). Act 93 explicitly excludes superintendents,
business managers, and personnel directors from covered school administrators.” (citation
omitted)).
120

Id. at 29:6-18.

121

Judge Dep. (ECF No. 25-3), Exhibit 13.

- 32 -

Professional Employee; provided, that the said notice shall designate
the cause for the termination and shall state that an opportunity to be
heard shall be granted if the Professional Employee within ten
(10) days after receipt of the termination notice, presents a
written request for such a hearing.122
This contract was signed by Judge on October 11, 2011, and remained operative
through annual salary, compensation, and benefits amendments at the time of her
termination.123
It is also undisputed that, as Principal for Oaklyn Elementary School, Judge
was acquainted with and understood “School Board Policy # 317” which pertains
to Conduct/Disciplinary Procedures for Administrative Employees.124 This policy
stated as follows:
All administrative employees are expected to conduct themselves In a
manner consistent with appropriate and orderly behavior. Effective operation
of district schools requires the cooperation of all employees working
together and complying with a system of Board policies, administrative
regulations, rules and procedures, applied fairly and consistently.
The Board directs that all administrative employees shalt be informed of
conduct that is required and is prohibited during work hours and the
disciplinary actions that may be applied for violation of Board policies,
administrative regulations, rules and procedures.
When demotion or dismissal charges are filed against a certificated
administrative employee, a hearing shall be provided as required by
applicable law.125
122

Def.’s SUMF ¶ 7, at 2–3; Pl.’s Resp. ¶ 7, at 2 (emphasis added).

123

Judge Dep. (ECF No. 25-3), at 187:22–188:18.

124

Id. at 38:13-39:3.

125

Judge Dep. (ECF No. 25-3), Exhibit 1.

- 33 -

Judge readily admits that she was a “certificated administrative employee” within
the ambit of the policy, and that she was familiar with this policy as an elementary
principal.126
Despite this admission, Judge disputes whether this policy governed out-ofwork acts such as the arrest for her DUI. Her belief concerning the applicability of
this policy is best explained by the following exchange:
Q. You knew this policy existed. Would you agree that this policy applied to
you, as an administrative employee of the School District, with an
administrator two certification?
A. To a certain extent.
Q. What do you mean by that?
A. For being here today, I do not believe this applies, because if you read
further in it, this is talking about employees while they're performing their
job functions and on duty, so ---.
...
Q. If the superintendent, or director of education, or some other
administrator that had some kind of supervisory role over you, told you we
intend to present charges to the School Board against you, and are seeking
the termination of your employment, do you think you'd be entitled to a
hearing, based upon what this policy says?
A. If it was charges because of something I did during school time, yes.
Q. But if it was based upon conduct that happened not during school hours,
you think this policy would not apply to you?
126

Id. at 39:4-40:3.

- 34 -

A. Correct.127
This admission by Judge is damning. As noted throughout, “[r]esignations
obtained in cases where an employee is faced with such unpleasant alternatives are
nevertheless voluntary because “the fact remains that plaintiff had a
choice. [Plaintiff] could stand pat and fight.”128 Here, the testimony above
indicates that Judge knew of her right to a hearing prior to termination. She
instead disputes the applicability of “School Board Policy # 317” and ultimately
whether her DUI arrest could serve as a valid basis for her termination. This
argument does not create a triable dispute of material fact.129
Resolution of the underlying grounds for termination does not preclude the
entrance of summary judgment so long as the employer has good cause to believe
that there are in fact grounds for termination.130 In the instant matter, Kelley had
good cause to believe there were grounds for Judge’s termination. The letter
which he gave to Judge on June 19, 2014 stated those grounds as follows:
Fourth, in the alternative, if you decide not to resign and DUI charges are
filed against you then I will be forced to issue a written statement of charges
for dismissal. These charges will be based upon the following elements:
127

Id. at 40:4-16; 41:3-20.

128

Hargray, 57 F.3d at 1568 (quoting Christie, 518 F.2d at 587)(emphasis in original).

129

It is important to note that, while Plaintiff now avers that she did not believe School Board
Policy 317 applied to her DUI arrest, she admitted expressing concern about her continued
employment to Trooper Magnuson on the night of her arrest and asked that she be let go. Judge
Dep. (ECF No. 25-3), at 49:2–50:23.
130

Stone, 855 F.2d at 174.

- 35 -

* Immorality - conduct which offends the morals of the Commonwealth
and is a bad example to the youth whose ideals a professional educator or
charter school staff member has a duty to foster and elevate.
* Intemperance - a loss of self-control or self-restraint, which may result
from excessive conduct.
* Moral Turpitude - (2) conduct done knowingly contrary to justice,
honesty or good morals.131
The parties argue in extenso within their papers whether Shikellamy School
District ultimately had a valid basis to terminate Judge, and whether the
Commonwealth Court of Pennsylvania case of Zelno v. Lincoln Intermediate Unit
No. 12 Bd. of Dirs.132 fully provides that basis. This inquiry, however, is a step too
far for purposes of the instant analysis. As previously explained, the inquiry at this
stage is not whether a valid basis existed, but rather whether there was good cause
to believe it existed.
Shikellamy School District argues that such cause existed based on Judge’s
DUI arrest and her subsequent charges for the highest rate of impairment under the
Pennsylvania Vehicle Code.133 Conduct constituting “immorality” is cause for
termination of a tenured professional employee under Section 1122 of the School

131

Judge Dep. (ECF No. 25-3), Exhibit 2.

132

786 A.2d 1022 (Pa. Commw. Ct. 2001).

133

Def.’s Br., at 12–14.

- 36 -

Code.134 Immorality has been defined by the courts as “a course of conduct as
offends the morals of the community and is a bad example to the youth whose
ideals a teacher is supposed to foster and elevate.”135 In Zelno, the Commonwealth
Court of Pennsylvania upheld the termination of a teacher who had been convicted
of her third DUI on grounds that the conviction demonstrated a course of conduct
which supported a finding of immorality.136 While Judge is correct that this case
does speak to her exact circumstance as the recipient of one DUI, the Zelno court
goes on to state that, while drinking and driving is not per se immoral, “certain
circumstances . . . involving drinking and driving may constitute conduct that is
immoral under the School Code.”137
Given Judge’s arrest for what Trooper Magnuson had referred highest BAC
he had encountered in his sixteen years as a state trooper138 and her subsequent
charge with DUI: High Rate of Alcohol—or 75 Pa.C.S.A. § 3802(b), the Board
may have found that there existed “certain circumstances” making Judge’s DUI
arrest immoral. Therefore, good cause to believe that there were valid grounds for
termination based on immorality existed in the instant case. Judge’s argument

134

24 P.S. § 11–1122.

135

Horosko v. Mt. Pleasant Township School District, 6 A.2d 866 (Pa. 1939); Dohanic v.
Commonwealth of Pennsylvania, Dept. of Education, 533 A.2d 812 (Pa. 1987).
136

Zelno, 786 A.2d at 1026.

137

Id. at 1026 n. 7.

138

Magnuson Dep. (ECF No. 25-5), at 28:21-22.

- 37 -

concerning the ultimate absence of such grounds was more properly preserved for
presentation at a pre-termination hearing. To the extent she received an
unfavorable finding at that hearing and was terminated, she was entitled to appeal
that decision through the proper channels.139 By resigning prior to this hearing, she
forfeited that opportunity to litigate this issue.
(c) O’Connell Factor 3: Whether the Employee Had a
Reasonable Time to Choose
Judge also argues that she was coerced into involuntary resignation because,
after being presented with a letter from Kelley on June 19, 2014, she was granted
only until 12:30 p.m. the following day to decide.140 This deadline is confirmed by
the text of the June 19, 2014 letter, which stated:
This letter is delivered on Thursday, June 19, 2014 and I await your answer
on, or before, 12:30 pm. on June 20, 2014.141
The totality of circumstances surrounding her resignation, however, demonstrates a
much longer window of deliberation than Judge cares to appreciate. In her
139

In case the professional employe concerned considers himself or herself aggrieved by
the action of the board of school directors, an appeal by petition, setting forth the grounds
for such appeal, may be taken to the Superintendent of Public Instruction at Harrisburg.
Such appeal shall be filed within thirty (30) days after receipt by registered mail of the
written notice of the decision of the board. A copy of such appeal shall be served by
registered mail on the secretary of the school board.

24 P.S. § 11-131. See, e.g., Jackson v. Shikellamy School Dist., Civil Action No. 2267-CD-2015,
2016 WL 6080862, at *2 (Pa.Commw.Ct. Oct. 18, 2016)(showing the channels of appeal for a
school board’s determination of valid basis for termination).
140
141

Pl.’s Br. at 7.
Judge Dep. (ECF No. 25-3), Exhibit 7.

- 38 -

deposition, Judge admitted to recognizing the possible negative implications of the
DUI arrest on her continued employment as early as the night of the arrest, or May
30, 2014. This recognition is memorialized in the following testimony wherein
Judge recounts asking Trooper Magnuson to “let her go” and admits that she
relayed to him concerns about her job:
Q. At any point during the stop, did you ask the police officer to let you go?
A. Well, yes.
Q. Tell me what you remember saying to him in that regard.
A.
...
And in the course of that, I believe I had said something along the lines, like,
oh my god, I can't believe--- I was just upset. So I can't give you my exact
wording, but I --- yes, I did say at one point to please, you know, let me go.
Q. Did you express to the officer that you were concerned about your job?
A. Yes.142
In Coreia v. Schuylkill County Area Vocational-Technical School
Authority,143 plaintiff argued that he was constructively discharged through
coercion because, among other things, he was only afforded three and one half
hours in which to decide whether to resign or face termination. Finding as a matter

142

Judge Dep. (ECF No. 25-3), at 49:2–50:23.

143

Civil Action No. 04-CV-2425, 2006 WL 1310879 (M.D.Pa. May 11, 2006)

- 39 -

of law that plaintiff voluntarily resigned his teaching position, the Honorable John
E. Jones III of this Court found that the time period was greater than that alleged
because plaintiff “was in a position to view the gathering storm and focus on this
admittedly Hobson's choice at least several days prior to August 20, 2003.”144
Judge Jones further found that “[p]laintiff could have rescinded his letter of
resignation up until the time the I.U. Board accepted it.”145
In the instant matter, it is clear from the above testimony that Judge
understood as early as May 30, 2014 that her DUI arrest and the likely-to-be-filed
charges for same would put her continued employment in jeopardy. Despite this
recognition more than two weeks prior to Kelley’s presentation of the June 19,
2014 letter, Judge now argues that she did not have reasonable time to choose
between immediate resignation and remaining in her position to fight her
termination before the school board. I find that this argument alleging an
inadequate time to choose between alternatives is disingenuous, and that Judge in
fact had even more time than the plaintiff in Coreia to foresee the “gathering
storm” resulting from her DUI arrest and prepare accordingly.146
144

Id. at *9.

145

Id.

146

Cf. Caruso v. Superior Court of Delaware, Civil Action No. 12-CV-277, 2013 WL 1558023,
at *10 (D.Del. Apr. 12, 2013) (finding that plaintiff had alleged facts plausibly suggesting that
she did not have a reasonable amount of time where she alleged that she had no knowledge that
her employment was in jeopardy prior to a meeting in which she was confronted with a “take-itor-leave-it” resignation proposition).

- 40 -

Moreover, even assuming arguendo that Judge was granted only a day of
deliberation, this shortened time frame would not change this determination.
In Paroczay v. Hodges,147 the United States Court of Appeals for the District of
Columbia overturned the grant of summary judgment in favor of a defendant and
found that the plaintiff’s affidavit of the events leading to his separation created a
genuine issue of material fact as to the voluntariness of his resignation.148 This
affidavit stated that plaintiff had an interview with a personnel officer of the
Department of Commerce on the day before his resignation in which the officer
told the plaintiff that “he had derogatory information [regarding plaintiff] and that
he should resign.”149 In another interview with the officer the following day, the
officer further stated: “[i]f you do not resign now, I will press charges immediately.
As soon as I go into the front office, I will start proceedings.”150 The officer also
allegedly denied a request for more time, stating “[n]o, once you leave this office, I
will start proceedings right now. Sign [the resignation] now.”151 The Court in
Paroczay found that:
[F]or on the 16th, while [plaintiff] was given the alternative of resigning or
facing charges, there was then no suggestion of necessity for an immediate
decision. On the 17th for the first time plaintiff, according to his affidavit,
147

297 F.2d 439 (D.C.Cir. 1961).

148

Id. at 440–41.

149

Id. at 440

150

Id.

151

Id. at 441.

- 41 -

was pressed into an immediate decision at the interview; he was then faced
for the first time with being charged with serious misconduct unless he
resigned then and there. The affidavit that this occurred raised an issue as to
the voluntariness of the resignation.152
At the very least, Judge had overnight to decide whether to voluntary resign
or face the imposition of charges for dismissal. Even when viewed in the light
most favorable to her, this time pressure does not reach the level presented in
Paroczay and thus is not sufficient to nudge this factor in favor of finding that the
presumption of voluntary resignation has been overcome.
Other more recent court decisions have also imposed a more exacting
“reasonable time” standard than that presented here when finding that the
presumption of involuntariness has been overcome. For example, in Parrish v.
City of Wilmington, the District Court for Southern District of Ohio found that a
plaintiff stated a plausible claim to relief where he alleged facts indicating that he
was told he needed to render an answer concerning his resignation at that evening’s
Park Board meeting.153
Similarly, in Rhoads v. Board of Educ. of Mad River Local School Dist.,154
the United States Court of Appeals for the Sixth Circuit upheld the entry of
summary judgment in favor of the defendant school district where they had granted

152

Id. at 441.

153

3 F.Supp.3d 688, 694 (S.D. Ohio Feb. 28, 2014).

154

103 F. App’x. 888 (6th Cir. 2004).

- 42 -

the plaintiff between 10:00 a.m. and 5:00 p.m. on the same day to decide whether
to resign.155 Finally, in Dodd v. Sheppard, the United States District Court for the
District of Rhode Island found that a plaintiff was afforded reasonable time to
choose where he was offered the choice to resign at a 4:00 p.m. meeting and
thereafter rendered a typed letter of resignation later that evening.156 The Sheppard
Court also found persuasive the fact that no evidence existed showing that plaintiff
requested more time to make a decision.157
Given the persuasive examples noted above, I find that Judge had reasonable
time to choose between the alternatives presented and that this factor therefore
weighs against rebutting the presumption of voluntariness. First, consideration of
the factual record as a whole indicates that Judge first recognized the possible
effect of a DUI on the night of her arrest, and thereafter had more than two weeks
to foresee the “gathering storm.” Second, even if Judge had only overnight to
decide between the alternatives presented, other courts have found this time
pressure insufficient to rebut the presumption of voluntariness. Third, as in
Sheppard, there exists no evidence showing that Judge requested more time to
make her decision.

155

Id. at 895.

156

436 F.Supp.2d 236, 336, 339 (D.R.I. 2006).

157

Id.

- 43 -

(d) O’Connell Factors 4 & 5: Whether the Employee Was
Permitted to Select the Effective Date of Resignation and Had
the Advice of Counsel
The final two O’Connell factors appear at first blush to favor Judge;
however, closer examination reveals they do little to further her cause. First, the
undisputed facts indicate that Judge was not afforded the opportunity to choose the
date of her resignation. This factor alone, however, has not been found dispositive
by other courts in rebutting the presumption of voluntariness. In Sheppard, for
example, the District of Rhode Island found that, although this factor appears to
weigh in plaintiff’s favor, standing alone it is not enough to “tilt the scale in the
direction of a finding of coercion or duress.”158
Second, while Judge argues that she did have the advice of counsel when
making the decision to resign rather than face the filing of a written statement of
charges for dismissal, this assertion does not hold weight against the totality of
circumstances surrounding her resignation. In Stone v. University of Maryland
Medical System Corp., the United States Court of Appeals for the Fourth Circuit
addressed plaintiff’s—a former professor at the state university medical school—
argument that his resignation was the result of coercion or duress because it

158

Sheppard, 436 F.Supp.2d at 340; see also Kirk v. Hockenberry, Civil Action No. 14-CV-713,
2016 WL 374433, at *5 (S.D. Ohio. Feb. 1, 2016)(“this factor is not entitled to any significant
weight given the substantial amount of time Plaintiff was afforded to make his decision”).

- 44 -

occurred in part without the advice of counsel.159 In rejecting that argument, the
Stone court stated as follows:
It is true that Stone was forced to make the decision whether to resign or
face removal proceedings under some time pressure and that he did so
without the advice of counsel. Under different circumstances, these facts
might be sufficient to raise a genuine issue as to the voluntariness of his
resignation. (Citation Omitted). In this case, however, those facts lose their
significance when they are viewed against the background of the summary
judgment record as a whole. Stone was not a naive intern in his first clinical
assignment; he was a sophisticated and well-educated hospital administrator
with over thirty years experience as a member of the medical staffs of some
of the finest hospitals in the country. Despite his counsel's assertions to the
contrary, the undisputed facts establish that he was fully informed of the
nature of the charges against him. He knew what his rights were, and if he
did not, he was given ample time to find out. He was given several hours to
contact an attorney and failed to do so; his proffered excuse—that all the
attorneys in the City of Baltimore were at an attorneys' convention—is
patently incredible. He was permitted to seek the advice of anyone he
wished and did in fact manage to contact an old friend and fellow surgeon.160
Like the plaintiff in Stone, the undisputed facts of the instant case indicate
that Judge had the benefit of fourteen years of experience as both a teacher and
administrator, and was in no way a naïve educator at her first post-graduate
assignment.161 Furthermore, as noted above, Judge both signed her Professional
Employees Contract162 and noted her understanding of School Board Policy #

159

Stone, 855 F.2d at 177.

160

Id. at 177–78.

161

See generally Judge Dep. (ECF No. 25-3), Exhibit 17.

162

Judge Dep. (ECF No. 25-3), Exhibit 13.

- 45 -

317,163 which both referenced the right to a pre-termination hearing. Therefore,
like the plaintiff in Stone, Judge knew of her right to a hearing, and to the extent
she had reservations concerning if this applied to her exact circumstances, she had
reasonable time to contact an attorney. In fact, unlike the plaintiff in Stone and as
previously noted, Judge had more than two weeks prior to her conference with
Kelley to inquire as to the consequences her arrest may have on her continued
employment. The record, while demonstrating that Judge retained an attorney for
representation concerning her pending criminal charges, is absent of any evidence
she sought such advice.164 This failure to seek representation occurred despite the
fact that Judge was a member of Pennsylvania Association of Elementary and
Secondary Principals (PAESSP), which, as a benefit of membership, provided
legal advice to educators.165
Having fully addressed the O’Connell factors employed within the Third
Circuit, the Court concludes that there is no genuine issue of material fact as to
whether Judge’s resignation was the product of coercion or duress on the part of
Shikellamy School District. Even when viewing the evidence in the light most
favorable to Judge, I find that she was presented with two unquestionably
unpalatable options—resign immediately or face the filing of written charges and
163

Judge Dep. (ECF No. 25-3), Exhibit 1.

164

Pl.’s SUMF ¶ 26, at 4–5.

165

Def.’s SUMF ¶ 52, at 9.

- 46 -

fight termination at a subsequently held hearing. Therefore, because the objective
standard as applied to the undisputed facts dictates that a reasonable person in
Judge’s circumstances would both understand these alternatives and use the
reasonable time given to consider them, I find that Judge has failed to rebut the
presumption that her resignation was voluntary. Shikellamy School District is thus
entitled to summary judgment on Judge's Section 1983 claim for alleged violation
of her Fourteenth Amendment right to procedural due process.
B.

Judge’s Breach of Contract Claim

Shikellamy School District next seeks summary judgment on Judge’s state
law claim for breach of contract.
To plead a cause of action for breach of contract, a plaintiff must establish:
(1) the existence of a contract, including its essential terms; (2) a breach of a duty
imposed by that contract; and (3) resultant damages.166 Here, Shikellamy School
District seeks summary judgment on Judge’s breach of contract claim arguing that
she has failed to produce sufficient evidence of a breach of an essential term of the
employment contract.167 Specifically, the school district argues that, because the
undisputed facts indicate that Judge voluntarily resigned, it cannot be found to
have breached Judge’s professional contract.168 Judge, in turn, argues that the
166

See CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super. Ct. 1999).

167

Def.’s Br., at 14.

168

Id.

- 47 -

breach occurred because she was constructively discharged without a valid cause
for termination under 24 P.S. § 11-22.169 Judge again argues that her DUI arrest
could not serve as a valid basis for termination.
Having previously addressed this issue at length above, I nevertheless
reiterate that, to the extent Judge wished to make this argument, her proper method
of doing so was to “stand pat and fight” at a pre-termination hearing. If the school
board were to issue an adverse finding, Judge would, as previously explained, have
had the option to appeal that finding. Judge forfeited that opportunity through her
resignation. Therefore, because the undisputed facts indicate that Judge’s
resignation was voluntary,170 I find that she has failed to adduce evidence from
which a reasonable jury could find that Shikellamy School District breached its
contract with her. As such, summary judgment will be entered in its favor.
V.

CONCLUSION
While Ms. Judge argues that she was coerced into resigning her position as

Elementary Principal of Oaklyn Elementary, one passage within her deposition
inadvertently yet presciently touches upon the tenuous basis of her legal claims:
Q. When you handed Mr. Kelley the letter, did you tell him you were
resigning under duress?
169

Pl.’s Br., at 14.

170

Hockenberry, 2016 WL 374433, at *4 (finding that plaintiff’s procedural due process and
breach of contract claims fail as a result of his failure to rebut the presumption of voluntariness
and thus establish constructive discharge).

- 48 -

A. No.
Q. Did you tell Mr. Kelley you were resigning under protest?
A. No.
Q. Did you tell Mr. Kelley that you felt you were being coerced into
resigning?
A. No.171
Based on the undisputed facts populating the totality of circumstances
surrounding her employment, I am of the opinion that, while Judge’s comments by
themselves are not dispositive, they inadvertently coincide with the conclusion I
have independently reached. Holly Judge resigned on June 20, 2014 under neither
coercion nor duress and thus she has failed to rebut the presumption that her
resignation was voluntary. This finding is based on both my consideration of the
O’Connell factors as they relate to her employment, and the recognition that
“[i]nvoluntariness is a high standard”172 requiring that the “separated employee . . .
show that the resignation resulted from employment conditions which, under an
objective standard, are so unpleasant or so difficult that a reasonable employee in
plaintiff's position would resign.”173

171

Judge Dep. (ECF No. 25-3), at 84:3-13.

172

Corr, 2016 WL 6901327 at *3.

173

Stiner, 2004 WL 1949545, at *6 (citing Leheny, 183 F.3d at 228).

- 49 -

Consistent with the preceding analysis, I therefore find that no genuine
disputes of material fact remain as to Judge’s claims, and summary judgment will
be entered in favor of Shikellamy School District.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

- 50 -