MICHAEL v. QUAKER VALLEY SCHOOL DISTRICT et al
OPINION. Signed by Judge Mark R. Hornak on 2/16/17. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LINDA R. MICHAEL,
QUAKER VALLEY SCHOOL DISTRICT
Civil Action No. 2:16-cv-00473
Judge Mark R. Hornak
Mark R. Hornak, United States District Judge
This civil right lawsuit stems from the termination of Plaintiff Linda A. Michael
("Michael" or "Plaintiff') from her position as a full-time paraprofessional with Defendant
Quaker Valley School District ("Quaker Valley" or "the District"). (ECF No. 1). In addition to
suing Quaker Valley, Michael also brought this action against Dr. Barbara Mellett ("Dr.
Mellett") in her individual capacity and official capacity as Principal of Osborne Elementary,
against Dr. Heidi Ondek in her individual capacity and official capacity as Assistant
Superintendent of Quaker Valley, and against her union, the Quaker Valley Education Support
Personnel Association, Unit 1 ("the Union"). 1
Prior to any Defendant filing an answer or other Rule 12 response, on June 14, 2016,
Michael filed her First Amended Complaint. (ECF No. 8). Defendants responded by filing
motions to dismiss. (ECF Nos. 9 and 11). By Order dated July 12, 2016, Plaintiff was given
leave to further amend on or before July 18, 2016. (ECF No. 14). Plaintiff then filed her Second
Amended Complaint ("SAC") on July 18, 2016. (ECF No. 16).
The Union responded with a
In the circumstances present in this case, claims against these public officials in their official capacities are
tantamount to claims against the District itself, and will be treated that way by the Court.
motion to dismiss, (ECF No. 20), and the other Defendants (collectively "Quaker Valley
Defendants" oir "Defendants") jointly filed a motion to strike (ECF No. 17) on July 28, 2016, and
a motion to dismiss (ECF No. 22) on August 8, 2016. Plaintiffs responses to the motions to
dismiss were held in abeyance by Order dated August 11, 2016 until such time as the Court ruled
on the motion to strike. (ECF No. 25).
On August 19, 2016, the Court denied the motion to
strike as premature, (ECF No. 34), and ordered that Plaintiff respond to the motions to dismiss
by September 9, 2016. Plaintiff responded to Quaker Valley Defendants' motion to dismiss on
September 9, 2016, (ECF No. 39), and filed a notice of dismissal with prejudice as to the Union
on September 16, 2016 (ECF No. 41), which the Court approved. (ECF No. 42). That brings us
to the present state of affairs.
After all of that, the only matter now before the Court is the Quaker Valley Defendants'
Motion to Dismiss the SAC, filed pursuant to Federal Rule of Civil Procedure 12(b)(6) alleging a
failure to state a claim. (ECF No. 22). For the reasons stated in this Opinion, the Court will
grant in part and deny in part that Motion to Dismiss.
When considering a motion to dismiss under Rule 12(b)(6), the Court must accept the
factual allegations in the sac as true and view them in the light most favorable to the plaintiff. To
survive a Rule l2(b)(6) motion, her SAC must allege "enough facts to state a claim for relief that
is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). "While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "Threadbare recitals of the dements of
a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at
663. In short, the motion to dismiss should be granted if she does not allege facts which could, if
established at trial, entitle her to relief. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
when considering a motion to dismiss under Rule 12(b)(6), a court may not
consider mattt::rs outside the complaint. In re Burlington Coat Factory Sec. Litig:., 114 F.3d 1410,
1426 (3d Cir. 1997). Consideration of such matters ordinarily will convert such a motion to a
motion for summary judgment as provided in Federal Rule of Civil Procedure 12(d) ("If, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment under Rule
56."), except that, as instructed by our Court of Appeals, a document integral to or explicitly
relied upon in the complaint may be considered without converting a Rule 12(b)(6) motion into a
summary judgment. In re Burlington Coat Factory Sec. Litig:., 114 F.3d at
Pension Benejit Guar. Corp. v. White Consol. Indus., 998 F .2d 1192, 1196 (3rd Cir.1993)). The
key, then, whm a defendant interposes documents not attached to the complaint is to determine
whether the documents actually are "integral to" or "relied upon by plaintiff to make out" her
claims or whether the documents really are just part of the defense to the claims presented.
For purposes of the present Motion, as pled by Michael in her SAC, the essential facts are
Michad was employed by Quaker Valley as a paraprofessional from August 2010 until
her termination effective April 27, 2015. (ECF No. 16,
11). During the events involved in
this dispute, Dr. Mellett was the Principal of Osborne Elementary, which is an elementary school
in the District. (ECF No. 16,
6). During that time as well, Dr. Ondek was the Assistant
Superintendent of the Quaker Valley School District. (ECF No. 16, at~ 7).
Michael worked at various locations within the District, (ECF. No. 16, at~ 11), and from
2012 to 2015 she worked at Osborne Elementary. (ECF No. 16,
12). As part of her duties,
Michael was assigned to work with a special needs child while in the classroom with a teacher,
(ECF No. 16,
13), and would provide individual assistance with the child's academic-based
questions, assist with the functioning of the classroom, and escort students between appointments
within the school and to the school's administrative offices. (ECF No. 16,
In November of 2011, Michael was elected as a Council member in Leetsdale Borough,
which is a municipality within the District. (ECF No. 16,
15, 16). Quaker Valley's School
Board held a meeting in the Fall of 2013 at which members of the community questioned Quaker
Valley's purchase and potential taking of residential properties for use as a parking lot and/or
drop-off zone for Quaker Valley High School. (ECF No. 16,
16, 17). Michael attended the
meeting, she says both in her official capacity as a Leetsdale Borough Council member and as an
individual resident of the District. (ECF No. 16,
18, 23). At a Fall 2013 School Board
meeting, Michael says that she raised issues as to the necessity of the expansion, the insufficient
investigation undertaken regarding same, and the loss of tax base that would result from a
purchase and taking (ECF No. 16,
19), and her husband addressed these issues as well,
apparently in agreement with Michael. (ECF No. 16, at ~ 20). The debate on the expansion was
reportedly intense. (ECF No. 16,
21). Michael did not return to another public School
Board meeting afterwards. She says that it was because she expressed positions contrary to that
of the School Board; she felt intimidated by certain conduct and statements, which she does not
specify, by at least one School Board member; and she feared retribution for then having
expressed positions contrary to those of the School Board. (ECF No. 16,
On or about March 27, 2014, an incident occurred with a student while Michael was
working at the Osborne Elementary School. (ECF No. 16, at
24). During state-mandated
testing, Michae:l observed the student, who was not her "primary assigned student," (ECF No.
16, at~ 33), make an obscene sexual gesture when Michael was three feet away from the student,
and although there was a teacher present in the classroom, the teacher did not witness the
gesture. (ECF No. 16,
25, 26). Michael was shocked by the elementary school child's
gesture and in response told the student to "quit acting like a jerk," but then immediately
apologized to the student and relayed the incident to the teacher. (ECF No. 16,
Michael discussed the incident with Dr. Mellett, who indicated that the student had previous
"behavioral inddents" and that she would explain the situation to the student's parents, who
were "well known" to the Defendants. (ECF No. 16, at~ 30). Michael further alleges that other
than this incident, she is not aware of any negative interactions she ever had with students in her
charge and thait at the time this incident occurred she had never been "written-up" or reported for
any misconduct. (ECF No. 16, at~~ 30, 31).
On or about April 4, 2014, Michael met with Dr. Mellett, Director of Student Services
Dr. Hoover, and Union President Cheryl Savage to discuss the March 27, 2014 incident. (ECF
32). By letter to Michael dated April 8, 2014, Dr. Mellett summarized the meeting
to have included concerns about Michael following plans as well as Michael's interaction with
her "primary assigned student" and outlined Dr. Mellett's intention to develop an improvement
plan for Michael with a specific timeline. (ECF No. 16, at
33). Both Michael and the Union
representative did not recall any discussion regarding the letter's referenced "treating and
redirecting" of Michael's "primary assigned student," and accordingly, Michael responded on
April 9, 2014 with a letter to Dr. Mellett stating that the April 4, 2014 meeting had not included
any discussion of that topic. (ECF No. 16, at~ 34). 2 On April 9, 2014, Michael also mailed to
Dr. Mellett a signed request for Michael to review her personnel file as is provided for in the
collective bargaining agreement ("CBA") between the District and the Union, and she included
with the request hand-written notes suggesting ways to improve communication and teamwork
and responding to Dr. Mellett's proposed improvement plan. (ECF No. 16,
Mellet did not provide Michael with any follow-up on the improvement plan or on Michael's
(ECF No. 16, at
Despite Michael's written request, Michael was never
provided with her records or access to her personnel file. (ECF No. 16,
Then, on or about April 22, 2014, Michael was called to the District's office and was
informed that she was suspended with pay pending investigation of an unspecified "new issue."
(ECF No. 16, at~ 38). Dr. Ondek detailed the suspension in a letter to Michael. (ECF No. 16, at
38). Then, on or about April 28, 2014, a disciplinary hearing was held with Michael, the Union
president, a Union secretary, Michael's Union representative, Quaker Valley's attorney, Dr.
Mellet, and Dr. Ondek all present. (ECF No. 16,
39). The previously discussed March 27,
2014 incident was not the subject of the April 28, 2014 disciplinary hearing. (ECF No. 16,
40). Rather, at the April 28, 2014 disciplinary hearing, Quaker Valley's attorney orally accused
Michael of grabbing the wrist of the same student involved in the March 27, 2014 incident when
Michael was escorting that student to the counselor's office as directed by a classroom teacher in
(ECF No. 16, at
Michael and her Union requested documentation
regarding the alleged February 2014 incident, but no documentation was provided to her before,
during or after the April 28, 2014 hearing, nor was the basis for the allegations of the February
2014 incident ever disclosed to her. (ECF No. 16,
42, 57, 58). Michael did indicate at the
Defendants assi~rt in their brief that the April 4, 2014 meeting included discussion regarding Michael's primary
assigned student, (ECF No. 23 at 12), however, this is contrary to the allegations in the SAC, which are what the
Court must consider in deciding the motion to dismiss.
April 28, 2014 disciplinary hearing that she had escorted the student and two other students to
the counselor's office but denied that she touched any of the students. (ECF No. 16, at~ 41).
Michael remained on suspension after the hearing and then received notice by letter on or
about November 4, 2014 from Dr. Ondek that her employment status had been changed
retroactive to October 8, 2014 to "suspended without pay." (ECF No. 16, at
44, 45, 46).
According to Michael, this letter included disparaging remarks about her character and failed to
state in writing the reason for the suspension, contrary to the requirements of the CBA. (ECF
40). The November 4, 2014 letter further indicated that Michael would be provided
with a statement of charges and a notice of right to a hearing before the School Board, but
Quaker Valley never provided to her any statement of charges or any notice of right to a hearing
before the Board. (ECF No. 16,
On November 25, 2014, after Michael had already been suspended without pay for a
month and a half, Union Representative Ms. Liz Hendra notified Michael that a grievance had
been filed on her behalf. (ECF No. 16,
copy of the filed grievance.
39, 47). Michael requested but never received a
(ECF No. 16, at
She likewise never received from
Defendants or her Union a listing of any procedures, deadlines, or guidance regarding the
grievance process other than the brief summary in the CBA itself. (ECF No. 16, at
She was never provided any Grievance Report Form, which requires signatures and guidance
through the steps of the grievance process as provided in the CBA. (ECF No. 16,
By letter dated April 20, 2015, Dr. Ondek told the following to Michael: that a final
disciplinary action had been determined; that the suspension without pay, which she had already
been in place for over six months, would be continued through April 24, 2015; and that effective
April 27, 2015, Michael was restored not to full employment but only on a part-time basis, and
then not to her position as a paraprofessional but instead to the demoted position of part-time
cafeteria cashie:r, (ECF Nos. 16,
(ECF No. 16, at
50-52; 23-3), which reduced her hours and her rate of pay.
52). Thus, Michael was suspended with pay for almost six months and
suspended without pay for more than six additional months. Effective April 27, 2015, Quaker
Valley terminated Michael from her full-time paraprofessional employment, and because she did
not accept the demotion, terminated her from all employment with the District effective that
same date. (ECF No. 16,
Although Michael participated in the April 4, 2014 meeting discussing the March 2014
incident and participated in the April 28, 2014 meeting accusing her of the February 2014
incident, she says that neither the District nor the Union identified to her the formal grievance
structure and they did not follow the grievance procedure. (ECF No. 16, at
60). The Union
also did not notify her of deadlines or opportunities to appeal and meet with School District
authorities after employment decisions were made by the Quaker Valley Defendants, (ECF No.
61), and also "discouraged" her from enforcing her rights under the CBA. (ECF No. 16,
The Quaker Valley Defendants cite to three Exhibits, A, B, and C, attached to their Brief
in Support of their Motion to Dismiss. (ECF Nos. 23-1, 23-2, 23-3). Their Exhibit A, they assert,
"is a notice letter providing Plaintiff with advance notice of the April 22, 2014 disciplinary
This document is not relied upon or referenced by Plaintiff in he:r Amended
Complaint." (ECF No. 23 at 7) (emphasis added). Given Circuit law as to consideration of such
papers at this stage of the proceeding, this ends the Court's inquiry as to Exhibit A, and it will
not be considered relative to the pending motion to dismiss.3
The Quaker Valley Defendants say that they cite and provide Exhibit A to help the Court out lest it be mislead by
Michael to infer that she had no "notice of the April 22, 2014 disciplinary hearing." Still, such is a matter outside
Exhibits B and C, say the Quaker Valley Defendants, "are documents explicitly
referenced, relied upon and/or integral to Plaintiffs claims." (ECF No. 23 at 7) (citing the SAC
45-46 regarding Exhibit B and~~ 50-51 regarding Exhibit C). According to the standard as
set out in Pension Benefit Guar. Corp., the Court needs to consider whether these Exhibits are
relied upon for or integral to Michael's claims, and therefore can be considered here.
As to Exhibit B, which is a November 4, 2014 letter from Dr. Ondek to Michael, the
Court concludes that this document is explicitly relied upon by Michael in the SAC regarding:
1) the notice of her suspension without pay; 2) the failure of the letter to provide the reasons for
the suspension; and 3) the statement that the District would provide her with a "statement of
charges" and "notice of a right to a hearing before the board of school directors." (ECF No. 16
45, 46). Further, Michael does not dispute that Exhibit B is indeed the November 4, 2014
letter she relies on. Exhibit B is relied on in and integral to Michael's claims as alleged and
appropriately may be considered without converting the motion from a motion to dismiss to one
for summary judgment.
The Quaker Valley Defendants also rely on Exhibit B to assert that the November 4, 2014
letter communicated that Michael's suspension without pay was based upon her misconduct.
(ECF No. 23 at 5). 4 The Court observes that the precise misconduct for which Michael was
suspended without pay is not specified in the letter, consistent with what is alleged by Michael,
nor is the term "misconduct" even used.
(ECF No. 23-2).
Indeed, the letter appears to
the pleadings, and moreover, Michael does not claim she was not notified of the April 22, 2014 meeting, though she
does contend that it was not a hearing and just served to notify her of her suspension. (ECF Nos. 15, at~ 38, 40 at
Defendants also assert that the letter indicates that further investigation occurred following the April 22, 2014
meeting, however, such is not indicated in the letter, nor supported by it, although Defendants' assertion that there
were further "negotiations" between the parties does find support in it. (ECF Nos. 23 at 5; 23-2). Th~: SAC supports
a conclusion only that an investigation of sorts occurred at least in the form of accusation against Michael at the
April 28, 2014 disciplinary hearing and her denial at that time. (ECF No. 16, at~~ 40, 41).
communicate a suspension without pay pending discharge and that Michael would not be able to
return to work as a paraprofessional, stating further that: "Your history has demonstrated that
you are not suited for that role, by demeanor and disposition." (ECF No. 23-2). The letter
indicates vaguely that "the district viewed the last precipitating event with great alarm," (ECF
No. 23-2), not identifying to which event the District referred-the March 2014 event, which
would be the last occurring in time, or the February 2014 event, which would be the last event
raised to Michael, or possibly some other event. The letter rather than clarifying matters, as
Defendants apparently had hoped, appears more to muddy the water as to what the reasons were
for Michael's change in employment status and tends to support Michael's allegations of lack of
meaningful and adequate notice and confusion created by Defendants. Additionally, the letter
does provide, as alleged by Michael, that in "due course" the District would be forthcoming with
a statement of ·charges and notice of right to a hearing before the School Board. (ECF No. 23-2).
As to Exhibit C, which is the April 20, 2015 letter from Dr. Ondek, Michael relies on it in
alleging that Dr. Ondek communicated to her that her suspension without pay continued through
April 24, 2015, that she would no longer be employed as a paraprofessional or have full-time
employment, (ECF No. 16 at
50-51 ), but rather "[e]ffective April 27, 2015, Plaintiff [would
be] restored from suspension without pay, but demoted and reassigned to the position of parttime cashier in the cafeteria." (ECF. No. 16
51 ). Exhibit C, as is the case with Exhibit B, is
relied on by Michael and integral to her claims, and thus, consideration of it will not convert the
motion to dismiss. The Quaker Valley Defendants point to the April 20, 2015 letter advising
Michael "of her right to follow the grievance procedure set forth in the collective bargaining
agreement if she wished to object to her demotion." (ECF Nos. 23 at 5, 23-3). Specifically, the
letter states: ;'You have the right to continue with the pending grievance with respect to your
suspension without pay, and may include this demotion within that grievance, as you and the
Association may determine. We will follow up with your union representative to resolve those
technical concerns." (ECF No. 23-3). The letter also provides that as a result of Quaker Valley's
determination, Michael was rendered partially unemployed. (ECF No. 23-3).
Section 1983 is the statutory means to vindicate the alleged violation of federal rights
conferred in federal law, but is not itself a source of substantive constitutional rights. Graham v.
Connor, 490 L.S. 386, 393-394 (1989). Michael's SAC identifies two sources of the rights she
contends were violated-the guarantee of free speech in the First Amendment to the United
States Constitution and the guarantee of due process in the Fourteenth Amendment.
First Amendment Retaliation
In Count I, Michael sues the Quaker Valley Defendants pursuant to § 1983 for violation
of her rights secured by the First Amendment, contending that the alleged February 2014
incident is merely a pretext for retaliation for her having exercised her free speech rights at a Fall
2013 school board meeting in opposing and questioning Quaker Valley's plans regarding
purchasing and taking properties. (ECF No. 16,
43). Specifically, she contends that the
February 2014 incident was a fabrication, (ECF No. 16, at
23, 72), that the February and
March 2014 incidents were minor and one was self-reported, (ECF No. 15,
23), that there is
a relationship between the student who she allegedly grabbed by the wrist and "decision-makers"
within the District, (ECF No. 16,
under color of law, (ECF No. 16, at
73), that the actions of the Quaker Valley DefE:ndants were
74), and that the actions or omissions by Defendants
Mellett and Ondek were at the direction of Quaker Valley decision-makers in retaliation for
Michael having exercised her free speech rights. (ECF No. 16,
In order for Michael, as a public employee, to succeed in establishing a First Amendment
claim for retaliation in her suspension, termination, and/or demotion, she:
"must show that [her] speech is protected by the First Amendment and that the
speech was a substantial or motivating factor in what is alleged to be the
employer's retaliatory action." Flora v. Cnty. of Luzerne, 776 F.3d 169, 174 (3d
Cir. 2015) (citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)). The
causation element may be pled by setting out: "(1) an unusually suggestive
temporal proximity between the protected activity and the allegedly retaliatory
action, or (2) a pattern of antagonism coupled with timing to establish a causal
link, or ... evidence gleaned from the record as a whole [from which] the trier of
the fact should infer causation." Lauren W ex rel. Jean W v. DeFlaminis, 480
F.3d 259, 267 (3d Cir. 2007) (internal quotation marks and citations omitted).
Plaintiffs must also plausibly plead that retaliatory acts are not de minimis but are
significant enough that they would "deter a person of ordinary firmness from
exercising his First Amendment rights." McKee v. Hart, 436 F.3d 165, 170 (3d
Fouse v. Beaver Cty., No. 2:14-CV-00810, 2015 WL 1967242, at *8 (W.D. Pa. May 1, 2015).
The Quaker Valley Defendants argue that the First Amendment retaliation claim fails
because it does not allege a sufficient causal nexus between speech and adverse action and
further fails as to Defendants Mellet and Ondek as providing no basis to plausibly conclude that
they had knowledge of Michael's protected speech. (ECF No. 23, at 8-9).
1. Causal Nexus
Focusing first on the causal nexus issue, the Quaker Valley Defendants assert that other
than alleging in conclusory fashion that Michael's First Amendment speech was the cause of the
discipline, Michael provides nothing that plausibly could show a link between her speech and her
suspension and demotion. (ECF No. 23 at 10). As stated in Fouse, a causal connection can be
shown: 1) by an unusually suggestive temporal proximity; 2) a pattern of antagonism coupled
with timing; or 3) evidence gleaned from the record as a whole from which a reasonable jury
could infer causation. 5 Fouse, 2015 WL 1967242, at *8 (citing Lauren W. ex rel. Jean W., 480
F.3d at 267). Michael alleges that she engaged in First Amendment protected speech in the Fall
of 2013 and that on or about April 4, 2014 she was called to a meeting to discuss her conduct
towards a student.
Other than to indicate she engaged in protected speech in the Fall of 2013, Michael does
not provide a specific date of her speech. 6 Therefore, the speech as alleged and the April 4, 2014
meeting, which signaled the beginning of the end for Michael, occurred at the very least nearly
four months apart and maybe as much as seven months apart. The Quaker Valley Defendants
offer that the "adverse action" really was not taken until seventeen months afterwards on April
2015, (ECF No. 23 at 9), which was when she was demoted to part-time cashier and terminated
for not accepting the demotion. But it is not that simple. The SAC provides that Quaker Valley
had communicated to her on April 22, 2014 that she was suspended with pay, and then on or
about November 4, 2014, that she was suspended without pay effective retroactively to October
8, 2014. A suspension without pay could deter a person of ordinary firmness from exercising
5Cavicchia v. Philadelphia Haus. Auth., No. CIV.A. 03-0116, 2003 WL 22595210, at *9 (E.D. Pa. Nov. 7, 2003),
ajfd. 137 F. App'K 495 (3d Cir. 2005), observes:
Pretext analysis used in Title VII cases is also useful in deciding First Amendment
retaliation claims. See Feldman v. Phi/a. Haus. Auth., 43 F.3d 823, 831 (3d Cir. 1994)
(discussing pretext in determining causation in First Amendment retaliation claim); see
also Azzaro v. County of Allegheny, 110 F.3d 968, 981 (3d Cir. 1997) (holding that Title
VII causation standards are relevant in evaluating causation under First Amendment);
Zappan v. Pa. Bd. of Prob. & Parole, No. Civ.A. 00-1409, 2002 WL 32174230, at* 11
(E.D. Pa. Nov. 25, 2002) (discussing same); Rodriguez v. Torres, 60 F.Supp.2d 334, 340
n. 2 (D. N.J.1990); Fogarty v. Boles, 938 F. Supp. 292, 299 n. 4 (E.D. Pa. 1996) (same).
Defendants vehemently contend that Michael has misstated the date of this speech, and that it really occurred in
2012. (ECF No. 23 at 2 n. l; 9 n.3). The Plaintiff disputed that in her response. (ECF No. 40). As the Court indicated
in ruling on the Motion to Strike (ECF No. 17), that factual dispute cannot be resolved at this stage. (ECF No. 34,
August 19, 2016 Text Order). What the Court can say with confidence is that if she proceeds further with this case,
Michael had bett1~r be able to show that her speech occurred in late 2013, and not a year earlier.
their free speech rights, and a suspension with pay also might suffice. 7 See Barry v. Luzerne
County, 447 F.Supp.2d 438, 450 (M.D. Pa. 2006) (a requirement is that the challenged conduct
be more than de minimis and "a reasonable jury could conclude that a suspension with pay could
deter a reasonable person from exercising his or her First Amendment rights."); Robert Cowan v.
Board of Educ. of Borough of Carteret, Civ. Act. No. 06-5459, 2010 WL 624883, at* 9 (D. N.J.
Feb. 22, 2010) (suspension with pay accompanied by threat of future discipline such as
withholding salary and increases sufficient). Considering the pleading record before: the Court,
the initial suspension occurred at least four months after the speech and the suspension without
pay occurred ten months after.
As obse:rved by our Court of Appeals in Bailey v. Commerce Nat. Ins. Services, Inc., 267
F. App'x 167, 170 (3d Cir. 2008), an elapsed time period of four months between the protected
activity and the challenged retaliatory act is not unusually suggestive of retaliatory motive. 267
F. App'x at 170 (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (200I)). Indeed,
even "a gap of three months between the protected activity and the adverse action, without more,
cannot create an inference of causation." LeBoon v. Lancaster Jewish Community Center Ass'n,
503 F.3d 217, 233 (3d Cir. 2007). Here, the timing is not "unusually suggestive" considering
7 Defendants use the term "adverse action" in their argument, as does some of the case law, but the Court is mindful
that the level of "adverse action" ordinarily required to state a claim for Title VII discrimination, which prohibits
discrimination in hiring, firing and "compensation, terms, conditions, or privileges of employment" 42 U.S.C. §
2000e-2(a0(1), see Jones v. Southeaster Pa. Transp. Authority, 796 F.3d 323, 325-326 (3d Cir. 2015) (expressly
declining to decide whether suspension with pay will support a claim of retaliation and determining that suspension
with pay does not come within the prohibition of§ 2000e-2(a)(l ), and is not "a serious and tangible" alteration of
same), is not the threshold requirement for either a Title VII retaliation claim, requiring some "material adverse"
action, Prise v. Alderwoods Group, Inc., Civ. A. No. 06-1470, 2011 WL 3047629, at *6 (W.D. Pa. July 25, 2011)
(observing as well that whether conduct is material adverse is a question of fact), or a First Amendment retaliation
claim-requiring that she show only that the action would deter a person of ordinary firmness from exercising their
free speech rights. McKee, 436 F.3d at 170; See also Alers v. City of Phi/a., 919 F. Supp. 2d 528, 554 (E.D. Pa.
2013) (noting the different standard for adverse employment actions when it comes to retaliation claims). Title VII
standards for retaliation do provide guidance as those standards are very similar. Holt v. Pennsylvania, No. CV 105510, 2015 WL 4944032, at *36, n.61 (E.D. Pa. Aug. 19, 2015).
that the suspension without pay occurred ten to twelve months after the asserted protected speech
and the demotion occurred some approximately seventeen months after the protected speech.
Even focusing on the initial suspension with pay-some four or five months after the speechthe timing alone does not resolve the issue, since,
[i]t is important to emphasize that it is causation, not temporal proximity itself,
that is an element of plaintiffs prima facie case, and temporal proximity merely
provides [one] evidentiary basis from which an inference can be drawn. The
element of causation, which necessarily involves an inquiry into the motives of an
employer, is highly context-specific. When there may be valid reasons why the
adverse employment action was not taken immediately, the absence of immediacy
between the cause and effect does not disprove causation.
Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997) (Title VII retaliation).
The Quaker Valley Defendants argue that Michael does not allege "any pattern of
antagonism which began after her protected speech except to the extent that the disciplinary
actions, which did not commence until five months later, can be considered a pattern of
antagonism." (ECF No. 23 at 9). The fact of the disciplinary meetings and hearings, though
they culminated in retaliatory action, would not tend to show an alleged "pattern of antagonism"
to support causation between her speech and her challenged discipline-as such would be a mere
bootstrapping as to causation. See Boyd v. Citizens Bank of Pennsylvania, Inc., Civ. Act. No.
2:12-cv-0032, 2014 WL 2154902, at *28 (W.D. Pa. May 22, 2014) ("[T]he occurrence of
disciplinary action following protected activity does not establish a pattern of antagonism.").
The Court agrees that the SAC does not sufficiently allege facts plausibly to show a pattern of
antagonism to support causation.
Finally,, Defendants assert in sum that the SAC "fails to allege any other facts from which
the Court could plausibly infer causation." (ECF No. 23 at 10). Where temporal proximity is
insufficient, and allegations as to protected activity followed by a period of antagonism likewise
fails, causal connection may be shown when the allegations "looked at as a whole, may suffice to
raise the inference." Kachmar, 109 F.3d at 176.
In Kachmar, for example, the court found the plaintiffs claim, which involved
opposition to discrimination, sufficient where she asserted that prior to her termination and
following her protected activity, which in that case involved opposition to discrimination, her
supervisor had commented in her review that "she was not on the management track" because of
her "feminist campaigning," and also subsequent to additional protected activity she had been
told by management to look for another job.
A plaintiff, such as Michael,
may use "evidence gleaned from the record as a whole" to show an inference of
causation. DeFlaminis, 480 F.3d at 267. Such inference can be made when an
employ1~r gives inconsistent reasons for termination, Waddell v. Small Tube
Products, Inc., 799 F .2d 69, 73 (3d Cir. 1986), engages in a series of seemingly
benign actions that essentially paved the way for an employee's termination,
Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir. 1997), or attempts to
provoke the employee by continually disciplining him for minor matters and
miscalculating the amount of time he worked, Robinson v. SEPTA, 982 F.2d 892,
895 (3d Cir. 1993).
Bifano v. Borough, No. CV 3:16-0245, 2016 WL 7404610, at *10 (M.D. Pa. Dec. 22, 2016).
As instructed by Waddell, a false justification for the retaliatory action also will support
causation. Waddell, 799 F.2d at 73; Bifano, 2016 WL 7404610, at *10. Likewise, in Godfrey v.
Upland Borough, --- F. Supp. 3d ---, 2016 WL 5298844, at *2 (E.D. Pa. Sept. 13, 2016), the
court determined that the plaintiffs had stated a claim for First Amendment retaliation for
statements made at a public meeting where the defendant subsequently forced the plaintiffs to
defend against a meritless citation. Our Court of Appeals has cautioned that in viewing the
record to dete1mine whether causation can be gleaned from it as a whole, there are "no limits set
on what [the Court has] been willing to consider," Farrell v. Planters Lifesavers Co., 206 F.3d
271, 281 (3d Cir. 2000), and the court should use a "wider lens" and consider a broad array of
circumstances to show causation. 206 F.3d at 281, 284.
Michael alleges what appears to be a series of what could be found to be "bait and
switch" meetings or quasi-hearings that also included allegedly manufactured charges, false
reports as to the: subject of various meetings, as well as false promises and irregularities in the
disciplinary pro1~ess. At this stage of the litigation and viewing the allegations as a whole "with a
wider lens" as instructed by our Court of Appeals, and then in a light favorable to Michael, the
Court gleans from the SAC averments that meet Michael's light burden at this stage of the case
to plausibly show a causal connection between that the protected activity and the alleged
retaliatory action. Therefore, the Quaker Valley Defendants' Motion to Dismiss Count I for First
Amendment Retaliation will be denied.
2. Failure to Allege the Requisite Knowledge by Defendants Ondek and
The Quaker Valley Defendants move to dismiss the retaliation claim against Defendants
Mellett and Ondek on the basis that the SAC fails to aver their knowledge of the asserted
protected speech. · (ECF No. 23 at 8, 10). Michael makes no averments in the SAC that they had
any knowledge of the protected speech, which is required to show retaliatory motive. Jones v.
School District of Philadelphia, 198 F.3d 403, 415 (3d Cir. 1999) (affirming summary judgment
where action taken by principals was without knowledge of protected activity).
Michael argues that she sets out "sufficiently plausible allegations as to the individual
defendants['] knowledge of [her] protected speech prior to any disciplinary measures being
taken[,] . . . [and also] has alleged a plausible explanation to account for the individual
defendants having knowledge of the protected speech." (ECF No. 40 at 7). Michael posits
further that, although "Plaintiff has not alleged that the individual defendants were at the school
board meeting where the protected speech occurred, the complaint does connect one defendant,
Dr. Mellett, to the central figure in the meeting in which Plaintiff felt intimidated for expressing
views contrary to the school board," (ECF No. 40 at 7) (emphasis added) (citing Second
17-22, 29-30), and also alleges that thereafter Drs. Mellett and Ondek
acted in concert. (ECF No. 40 at 7).
First, as to Dr. Mellett the "connection" claimed by Michael is wholly unexplained and
the facts regarding it are unalleged, as are the circumstances at the School Board meeting that
supposedly caused Michael to feel intimated.
Second, even an averment as to "some"
connection between Dr. Mellett and the "central figure" at the meeting is not the same as an
averment in her pleading of the requisite knowledge of Dr. Mellett of the protected speech or
facts plausibly to support that averment. Third, as to Dr. Ondek, Michael does not allege any
connection, vague or otherwise, even as to the "central figure." Fourth, her allegation that Drs.
Mellett and Ondek then acted in concert is nothing more than a conclusory allegation. Michael's
use of the term "plausible" in her argument is more that her allegations ultimately would not be
inconsistent with a finding of knowledge-which is not the same as actually making these
allegations or a sufficient showing in her pleading.
Michael distinguishes the cases of Gorum v. Sessoms, 561 F .3d 179, 188 (3d Cir. 2009),
and Ambrose v. Township of Robinson, 303 F.3d 488, 493 (3d Cir. 2002), relied on by the
Quaker Valley Defendants, because the individual defendants in those cases affirmatively
disavowed the requisite knowledge through their testimony, and the plaintiff otherwise failed to
offer evidence to contradict the disavowed knowledge. (ECF No. 40 at 7). Michael does argue
that the Quaker Valley Defendants at times seek to compare this case, which is at the pleading
stage, with cases addressing mature evidentiary records, and that their argument would hold
Michael to a standard higher than that which applies to a motion to dismiss for failun! to state a
claim. (ECF No. 40 at 6). Despite Michael's broad contention that cases involving summary
judgment have no application here, the cases obviously are instructive as to the nature of
allegations that will suffice to state a First Amendment retaliation claim, when keeping in mind
the lighter motion to dismiss standard with which the Court is familiar.
Based on the foregoing, the Court concludes that the SAC does not assert a plausible
claim for First Amendment retaliation against Defendants Mellett and Ondek. Michael does not
aver facts to show the knowledge of Mellett and Ondek regarding her protected speech. It is no
more than an implicit assertion in her brief that they "must have known." That is legally
insufficient for personal liability to attach and Count I against them will be dismissed. The SAC
is Michael's third principal pleading in this case.
She had her original Complaint, and two
amendatory "do overs" to make a case against Drs. Mellett and Ondek, and hasn't. She has had
plenty of opportunity to put some flesh on what are already very sparse pleading bones, and has
not. The First Amendment claims as to Drs. Mellett and Ondek are therefore dismissed with
prejudice. Cureton v. NCAA, 252 F.3d 267, 272 (3d Cir. 2001) (leave to amend properly denied
in light of undue delay where there were multiple prior amended pleadings); see Arthur v.
Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006) (same).
The Quaker Valley Defendants argue that Michael fails to state a claim in Count II for
violation of either substantive due process or procedural due process. (ECF No. 23 at 1).
1. Substantive Due Process
Michael's original Complaint (ECF No. 1,
Complaint, (ECF No. 8, at
70-76), and her First Amended
70-76), plainly attempted to state a claim for violation of
substantive due process and her SAC appears to retain certain "factual remnants" of her earlier
allegations, (ECF No. 16 at 82), yet no longer specifically mentions an alleged substantive due
process violation. In that vein, Michael confirms that her "Second Amended Complaint does not
allege violations of [her] substantive due process rights." (ECF No. 40 at 2). Accordingly, the
Motion to Dismiss the substantive due process claim will be denied as moot, and those claims
are deemed withdrawn.
2:. Procedural Due Process
Turning to the claims for violation of procedural due process under Count II, "[a]s the
Third Circuit has explained, [t]o 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." Corr v. Borough, --- F. Supp. 3d ---, 2016 WL
6901327, at *2 (W.D. Pa. Nov. 22, 2016) (internal quotations and citations omitted). "The
essential requirements of due process ... are notice and an opportunity to respond." Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
Furthermore, "[t]he fundamental
requirement of due process is the opportunity to be heard 'at a meaningful time and in a
meaningful manner."' Posey v. Swissvale Borough, No. 2:12-CV-955, 2013 WL 989953, at *15
(W.D. Pa. Mar. 13, 2013) (citing Mathews v. Eldridge, 424 U.S. 319, 332, (1976)).
Due process is a flexible concept and the deprivation of property entitles Plaintiff to such
process and procedural protections as the situation demands. Eldridge, 424 U.S. at 335. "Our
focus, then, res:ts upon the question of due process. 'We must bear in mind that no single model
of procedural fairness, let alone a particular form of procedure, is dictated by the Due Process
Clause.'" Dykes v. Se. Pennsylvania Transp. Auth., 68 F.3d 1564, 1571 (3d Cir. 1995) (quoting
Kremer v. Chemical Construction Corp., 456 U.S. 461, 483, (1982)).
Michael's suspens10n without pay would constitute the requisite deprivation for due
process purposes, Skrutski v. Marut, 288 F. App'x 803, 808 (3d Cir. 2008), as could her
termination from her full-time employment as a paraprofessional. 8 Indeed, Schmidt v. Creedon,
639 F.3d 587, 597 (3d Cir. 2011), recognized that "absent extraordinary circumstances, due
process requires notice and a hearing prior to suspension without pay, even where umon
grievance procedures, after the fact, fully compensate erroneously suspended employees."
Defendants make several arguments in support of their contention that Michael has not
stated a claim for denial of either pre-deprivation or post-deprivation due process, citing to the
various meetings and/or hearings alleged in the Second Amended Complaint, as well as state law
and the grievance process provided as part of the CBA. (ECF No. 23 at 11).
a. Pre-Deprivation Process
"Our Court of Appeals has held that, where a plaintiff has a property interest in
employment, due process generally requires a pre-deprivation hearing." Gilson v. Pennsylvania
State Police, 175 F. Supp. 3d 528, 544 (W.D. Pa. 2016) (citing Schmidt, 639 F.3d at 595-97),
aff'd, --- F. App'x ---, 2017 WL 280717 (3d Cir. 2017). There is no per se requirement for any
elaborate pre-deprivation hearing. Loudermill, 470 U.S. at 545; Schmidt, 639 F.3d at 596-97.
Where adequate post-deprivation procedures are available, an
employee is entitled only to [pre-deprivation] notice of the charges
against him, an explanation of the employer's evidence, and an
opportunity to present his side of the story. The hearing can be
informal and need not definitively resolve the propriety of the
8 Defendants assert as a factual matter that "Ms. Michael voluntarily abandoned her employment by failing to show
up for work at her new position." (ECF No. 23 at 5). Notably, they make no argument in their Motion and brief
regarding this point. As Michael explains it, a "part-time cashier position in the cafeteria is not equal to the position
of paraprofessional (in pay or hours)." (ECF No. 16 at 10). Moreover, according to the April 20, 2015 letter the
Defendants provided, regardless of whether she accepted the demotion, the District's decision caused her to be
unemployed, albeit partially. (ECF No. 23-3). For present purposes, she has alleged facts to support that she was
entitled to post-d1~privation process, addressed infra. Cf Lebofsky v. City of Philadelphia, 394 F. App'x 935 (3d Cir.
1010) (in the employment context generally, a demotion or reduction in pay or benefits can be indicative of a
deprivation. It should be an initial check against mistaken
decisions-essentially, a determination of whether there are
ri~asonable grounds to believe that the charges against the
employee are true and support the proposed action. An employee is
generally not entitled to notice of the reasons for his discharge in
advance of a pre-deprivation hearing, or to present his case to an
impartial decision-maker at such a hearing.
Schmidt, 639 F.3d at 596-97 (internal quotations and citations omitted)( emphasis added).
Violation of the requirement to provide an adequate pre-deprivation hearing is a claim
separate from that based on a denial of required post-deprivation process. Ordinarily, with no
constitutionally adequate pre-deprivation hearing, "a complete constitutional violation has
(allegedly) already occurred; if the Constitution requires pre-termination procedures, the most
thorough and fair post-termination hearing cannot undo the failure to provide such procedures."
Alvin, 227 F.3d at 120.
Michael specifically challenges the notice to her as untimely, having not been giving to
her in advance of the April 28, 2014 disciplinary hearing, and as inadequate, as the only notice
given at the April 28, 2014 hearing was oral, it did not include any information as to the evidence
against her, it did not include access to the evidence or to her personnel file, and though
subsequently promised, it did not include a statement of charges with reasons for the
employment action. Determining adequacy of notices requires considering both its content and
timing. Gniotekv. City of Philadelphia, 808 F.2d 241, 244 (3d Cir. 1986). "Notice is sufficient,
1) if it apprise:s the vulnerable party of the nature of the charges and general evidence against
him, and 2) if it is timely under the particular circumstances of the case." Gniotek, 808 F.2d at
Defendants argue that Michael was afforded "multiple hearings" in the form of various
meetings discussing the charges, but Michael responds that these meetings or hearings involved
differing discussions such that there were no "multiple hearings" on the same subje:ct. Michael
also argues that the way in which Defendants proceeded created confusion for her as to the root
issue regarding her alleged performance deficiencies or improper conduct, thus rendering any
claimed notice and opportunity to be heard ineffective. (ECF No. 40 at 9). For example, she
asserts that the first "meeting" on April 4, 2014 was about the March 2014 student interaction.
The April 22, 2014 meeting was to be about performance issues, but instead served simply to
notify Michael she was suspended without pay pending investigation of an unidentified "new
issue." Then, a disciplinary hearing was held on April 28, 2014. However, she alleges that "to
this day, Plaintiff does not know what is in her personnel file, nor does she know the basis of the
February 2014 incident." (ECF No. 16, at ii 58).
Perfect or comprehensive notice is not constitutionally required:
As our Court of Appeals has observed, due process does not require an employer
to provide every piece of evidence relevant to an employee's termination. . . .
[P]reterrnination notice of the charges and evidence against an employee need not
be in gn-:at detail as long as it allows the employee the opportunity to determine
what facts, if any, within his knowledge might be presented in mitigation of or in
denial of the charges. In other words, [n]otice is sufficient if is apprises the
employe:e of the nature of the charges and general evidence against her.
Kinavey v. D'Allesandro, No. Civ. Act. No. 10-364, 2010 WL 3896491, at *4 (W.D. Pa. Sept.
29, 2010) (internal citations and quotations omitted) (citing Ashton v. Whitman, 94 F. App'x 896,
900-901 (3d Cir. 2004)).
In Gilson, the plaintiff police officer received both a pre-termination notice of
misconduct and a pre-termination informal hearing, but contended that his rights were violated
because he was not notified in advance of all of the charges against him being considered as one
of the charges was for false statements he made during the investigation. Plaintiff also was given
notice orally and in writing that the investigation required truthful and complete responses or he
may be subject to administrative action. This Court concluded that the pre-disciplinary process,
in light of the post-disciplinary process available, was constitutionally adequate, having given
plaintiff pre-disdplinary notice of the misconduct as part of a summary report, a copy of the
investigatory file, which included the witnesses' identity and account of the misconduct, and
having given the plaintiff several days to review the material and an opportunity to respond. 175
F. Supp. 3d at 545. The Court of Appeals affirmed that this met the requirements for predisciplinary due process. --- F. App'x ---, 2017 WL 280717, at* 4.
Similarly, in Gniotek, the plaintiffs were police officers who had been terminated from
employment for taking bribes after an individual testified under oath in federal court police
corruption trials that he had paid the plaintiffs for protection of his illegal activities. 808 F.2d at
244. Our Court of Appeals determined that the notice adequately apprised plaintiffs of the nature
of the charges and evidence where during investigatory interviews the plaintiffs were given a
summary of the evidence against them, which included notice of the charges, the nature of the
evidence, and identifying that the witness had testified in federal court regarding the matter. 808
F .2d at 244.
The notice in Giniotek was considered timely though it occurred during the
investigatory interviews which substituted as a pre-termination hearing, and thus, was not
plaintiffs in advance.
The court observed that "[l]ack of advance notice,
however, does not constitute a per se violation of due process," 808 F.2d at 24, and depends on
the competing interests involved. Ultimately, the court held advance notice was not required as:
[t]he balance was struck by allowing the government to dismiss the employee
after only a compressed hearing and by guaranteeing to the employee "an
opportunity to present his side of the story" followed by a prompt and complete
post-ten:nination hearing. In the circumstances of this case, advance notice was
not necessary to enable the employee to present his story and would have
burdened the government's interest in quickly suspending an unsatisfactory
Gniotek v. City of Philadelphia, 808 F.2d 241, 244-45 (3d Cir. 1986).
Under Loudermill, Gniotek and Gilson, Michael's assertion that she was entitled to
"advanced" and "written" notice regarding the February 2014 incident prior to the April 28, 2014
hearing is inaccurate because oral notice at the time of hearing can suffice. Actual provision of
all the evidence likewise is not required to comport with due process in a pre-deprivation
hearing, Ashton. 94 F. App'x 896 (3d Cir. 1987), McDaniels, 59 F.3d 446 (3d Cir. 1995), but
failure to provide at least general information about the evidence will support a claim for
violation of a dght to pre-deprivation due process. Fraternal Order of Police Lodge No. 5 v.
Tucker, 868 F.2d 74, 75 (3d Cir. 1989); see Loudermill, 470 U.S. at 545.
Michael adequately alleges that she never was afforded notice of the evidence, whether
elaborate or basic, regarding the February 2014 incident. Viewing the allegations in the light
most favorable to her, she plausibly alleges a violation of her right to pre-termination
proceedings that include notice of the charges with an explanation of the evidence, Loudermill,
470 U.S. 546, and with a right to be heard in response 9 such that she is entitled to discovery on
her claim under Count II for denial of pre-disciplinary process.
b. Post-Deprivation Due Process (State Law and CBA Grievance
Next up are Michael's allegations regarding the post-deprivation process afforded
Defendants argue that Michael "is afforded post-deprivation due process through
statute by the School Code and the Local Agency Law," citing 24 Pa Stat. § 5-514, 2 Pa. Cons.
Stat. §§ 553, 752, 754, (ECF No. 23 at 14), and through the CBA's grievance procedure. (ECF
No. 23 at 16). The Court must therefore consider "whether the procedures available provided the
plaintiff with due process of law." Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).
The Court rejects Defendants' argument that because Michael denied the allegations made in the April 28, 2014
meeting, this somehow means she was afforded adequate notice and opportunity to respond to the c:harges. (ECF
No. 23 at 11 ). Anyone could deny false allegations against them with or without notice of the evidence supporting
the charges as they would know those charges to be false, yet the United States Supreme Comt's opinion in
Loudermill makes plain that due process entitles her to adequate notice regarding the evidence in order to make
effective use of that opportunity to be heard.
Michael contends that the disciplinary process engaged in was: informal, despite
requirements for a formal process; unfocused; inadequate and incomplete because Defendants
assured her they would afford her certain procedural rights but did not, (ECF No. 40 at 3), and
they did not follow the grievance process outlined in the CBA, including that defendants did not
complete the required written paperwork, (ECF No. 40 at 8); 10 and rendered improperly
confusing by D<;:fendants' conduct in failing to follow procedures and follow-up on their
assurance of notice and opportunity to respond, thus denying her of her rights. (ECF No. 40 at
3, 9, 12).
3. School Code and Local Agency Law
Our Court of Appeals explained in Alvin, in considering a claim of denial of due process
based on post-deprivation process, that:
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." Zinermon v.
Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). 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.
Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). Nevertheless, the Court clarified in Alvin,
"[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." Alvin, 227 F.3d at 120, n.4 (emphasis
added). In Alvin, the plaintiffs admitted failure to follow through with available process was
chargeable to the plaintiff and not the defendant. 227 F.3d at 120.
Defendants assert that the state statutory law provides all the post-deprivation process
that is due to Michael. (ECF No. 23 at 14-16). True enough, as far as what is on the books.
10 These allegations are some pretty strong evidence that Michael is well aware of the content of the CBA's
grievance and arbitration provisions.
Willard v. Pennsylvania Soc. for the Prevention of Cruelty to Animals, 525 F. App'x 217, 221
(3d Cir. 2013) (citing DeBlasio v. Zoning Bd ofAqjustmentfor Twp. of W. Amwell, 53 F.3d 592,
597 (3d Cir. 1995), abrogated on other grounds as recognized by United Artists Theatre Circuit,
Inc. v. Township of Warrington, PA, 316 F.3d 392 (3d Cir. 2003); Gilson, 175 F. Supp. 3d at
548-549 (collecting cases). Relying on the existence of the School Code hearing procedures, and
the Local Agency Law, Defendants argue that Michael cannot state a claim for violation of
procedural due process by the School District because she has yet to avail herself of the process
set up by statute, as she has not requested a School Board hearing, there has been no hearing
pursuant to the School Code, no adjudication pursuant to the School Code, and no judicial
review of an adjudication pursuant to the School Code. (ECF No. 23 at 15-16).
The School Code, section 5-514, 24 Pa. Stat. provides:
The board of school directors in any school district, except as herein otherwise
provided, shall after due notice, giving the reasons therefor, and after hearing if
demanded, have the right at any time to remove any of its officers, employes, or
appointees for incompetency, intemperance, neglect of duty, violation of any of
the school laws of this Commonwealth, or other improper conduct.
24 Pa. Stat.§ 5-514 (emphasis added). Similarly, the Local Agency Law provides:
No 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.
2 Pa. Cons. Stat. Ann. § 553 (emphasis added). Section 752 provides for appeal of the local
agency decision as follows:
Any pt:rson aggrieved by an adjudication of a local agency who has a direct
interest in such adjudication shall have the right to appeal therefrom to the court
vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to
judiciary and judicial procedure).
2 Pa. Cons. Stat. Ann. § 752.
Section 754, 2 Pa. Cons. Stat. Ann., provides for the process on
appeal. Under both the School Code and Local Agency Law, Michael was entitled to "due" and
"reasonable" notice, and the right to request a hearing before the Board, which though promised
never was provided by Defendants.
Michael's SAC alleges that neither the November 4, 2014 letter from District nor the
April 20, 2015 letter ever specified to her the actual misconduct resulting in the deprivation; the
November 4, 2014 letter promised her that she would be provided a statement of charges and
right to request a hearing before the School Board to commence formal proceedings in "due
course" and that to date has not occurred; and that she was never provided information on the
evidence in support of the allegations against her, yet she suffered suspension for over a year, six
months of which was without pay.
Michael further responds to Defendants' arguments regarding post-deprivation process
that the action and inaction of Defendants in effect "left Plaintiff without any post-deprivation
due process available to her." (ECF No. 40 at 13). She distinguishes Alvin, where the plaintiff
refused to avail herself of available procedural protections, from her case where she says that
Defendants were not following the process and the process was not moving forward due to the
fault of Defendants. She contends that the process in essence did not move forward because
although Defendants informed her that she would be provided with a statement of charges and
notice of right to a hearing before the School Board, the statement of charges and notice never
came and the other necessary procedures were not followed. According to Michael's allegations,
all of the statutory post-deprivation procedures cited to by Defendants "bogged down" with the
still unfulfilled November 4, 2014 indication from Dr. Ondek that a statement of charges and
notice of right to a hearing before the School Board would be provided in "due course."
Gilbert v. Homar, 520 U.S. 924 (1997) recognized that in determining what process is
due, account is to be taken of the length and finality of the deprivation, such that a temporary
loss of income as with a suspension without pay followed by sufficiently prompt post-deprivation
hearing can render the loss of income "relatively insubstantial (compared with termination) and
fringe benefits such as health and life insurance are often not affected at all." 520 U.S. at 932.
Here, it is alleged that the post-deprivation hearing was not prompt, much less sufficiently
prompt, as it had not occurred at all because the November 4, 2014 promised statement of
charges and notice of right to request the hearing before the School Board have never been
provided, and Michael was suspended without pay for numerous months. Although Michael
cannot avoid process available to her and come straight to federal court, neither can Defendants
foreclose that route by simply never moving that process forward.
Whatever post-deprivation notice and opportunity to be heard in "due course" means, it
does not mean what Michael alleges has actually occurred-it is now 2017 and the assurances
that she was given beginning in November of 2014 when she was first deprived of her pay has
never come to fruition, or so she says.
According to Michael, the promised notice and
opportunity simply has not been forthcoming. "At some point, a delay in the post-termination
hearing would become a constitutional violation." Loudermill, 470 U.S. at 547.
particular process is inadequate, effectively blocked, or a sham, that process also would not
provide the due process required by law. Alvin, 227 F.3d at 116, 118. Therefore, as to the
provisions in th1;: School Code and Local Agency law relied on by Defendants, at this stage in the
litigation and under the facts alleged by Michael, the existence of these procedures, in a vacuum,
does not bar Michael's post-deprivation due process claim.
4. Grievance Procedure in the CBA
Regarding post-deprivation procedures, Michael has one more obstacle to overcome in
order to state a claim. Just as with state law processes, the grievance process under a CBA can
provide all the process that is due Michael. Dykes, 68 F.3d at 1571 ("A public employer may
meet its obligation to provide due process through grievance procedures established m a
of course, those
process.")(quoting Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir. 1992)); Gilson, 175 F.
Supp. 3d at 548-549 (collecting cases).
The Quaker Valley Defendants argue that Michael's claim fails because she does not
allege that she availed herself of, and completed, the grievance process. (ECF No. 23 at 5, 1516) (citing (ECF No. 23-3)). Citing Garzella v. Borough of Dunmore, 280 F. App'x 169, 173
(3d Cir. 2008), they contend that Michael must pursue contractual grievance procedures, unless
the grievance process is blocked or there is evidence that it is a sham. Alvin v. Suzuki, 227 F.3d
107, 116, 118 (3d Cir. 2000).
"Where a due process claim is raised against a public employer,
and grievance and arbitration procedures are in place, we have held that those procedures satisfy
due process requirements 'even if the hearing conducted by the Employer ... [was] inherently
biased."' Dykes, 68 F.3d at 157l(citing Jackson v. Temple University, 721 F.2d 931 (3d
Our Court of Appeals in Dykes specified that "where an adequate grievance/arbitration
procedure is in place and is followed, a plaintiff has received the due process to which he is
entitled under the Fourteenth Amendment." 68 F.32d at 1565. After utilizing the procedures,
"[i]f a public employee believes that the grievance process was defective, he may seek relief
available under state law." Dykes, 68 F.3d at 1571. Michael, having alleged in her SAC the
existence of a grievance process in the CBA, is also required to allege facts plausibly
demonstrating that these post-deprivation procedures were not meaningful or adequate. Hill v.
Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (plaintiff must allege that available
procedures did not provide due process); Vurimindi v. City of Philadelphia, 521 F. App'x 62, 65
(3d Cir. 2013); Fullman v. Kistler, 617 F. App'x 124, 127 (3d Cir. 2015) (affirming dismissal of
claim where plaintiff failed to allege facts to show post-deprivation remedies were not
In Dykes, the court considered the terms of the involved CBA, which was attached by the
defendant to the: motion to dismiss and which directly addressed the matter involved--failure to
submit to drug and alcohol testing. In determining the plaintiff's claim, the court observed that:
[t]he complaint establishes that Dykes had available to him a three step grievance
process which could have been followed by arbitration. The grievance process
was exhausted and, when the union determined not to carry the matter to
arbitration, Dykes did not pursue a state court action alleging breach of the duty
of fair representation.
Dykes, 68 F .3d at 1571. It necessarily followed that Dykes failed to state a claim.
The plaintiffs due process claim also failed in Corr:
because he chose to drop the grievance process that was available to him.
Although Plaintiff filed a grievance against Springdale Borough on May 19, 2014,
he admits that he did not follow through with it once he resigned. ECF No. 44-2
at 87:2--87:17. In the Third Circuit, "[a] state cannot be held to have violated due
process when a plaintiff has refused to utilize procedural protections that were
available." Garzella v. Borough of Dunmore, 280 Fed.Appx. 169, 173 (3d Cir.
2008) (citing Alvin v. Suzuki, 227 F.3d 107 (3d Cir. 2000)). Thus, Plaintiffs due
process claim fails as a matter of law because he failed to "take[ ] advantage of
the processes that were available. Id.
2016 WL 6901327, at *3.
As with her pre-deprivation process claim, Michael alleges generally that the postdeprivation process likewise did not afford her any notice as to the evidence against her and the
failure of Defendants to follow the procedure and the manner in which they proceeded caused
her confusion such that the process was inadequate or ineffective. According to the SAC, the
grievance process under the CBA provides five steps, one informal and four formal:
a. Informal Conference, prior to invoking formal grievance steps.
b. Step 1 of the formal grievance process includes the grievant
(Plaintiff) presenting the written grievance to the appropriate
party and meeting with Principal.
c. Step 2 of the formal grievance process permits grievant
(Plaintiff) to appeal any decision at Step 1 to, and meet with
d.. Step 3 of the formal grievance process permits the grievant
(Plaintiff) to appeal any decision at Step 2 to, and meet with
the Board of School Directors.
e. Step 4 of the formal grievance process permits the grievant
(Plaintiff) to request that the association take the grievance to
(ECF No. 16,
59). The SAC also makes reference to a "Grievance Report Form" requiring
signatures and guidance regarding procedures, but it is unclear what the form required or what
entity, the School District or the Union, was required to complete the form according to the
In Meyers, cited with approval by the court of appeals in Dykes, the court noted:
[t]he post-termination grievance process consist[ed] of three steps. At Step 1, the
employee's supervisor reviews the employee's complaint and responds in writing.
At Step 2, the grievance is presented to a higher university official. This official
must dis 1.:uss the grievance with the employee and the employee's representative,
if any, and issue a written response. At Step 3, the assistant vice president for
labor relations, or the vice president's designee, reviews the grievance and issm:s a
Armstrong v. Meyers, 964 F.2d 948, 949 (9th Cir. 1992). Thus, in Meyers, the grievance process
included a grievance response by the employer in writing, and also required a written response
and written decision by the employer, affording notice and opportunity to be heard.
that the plaintiff in that case failed to state a claim for post-deprivation
denial of due process where the plaintiff had a three-step grievance process that could be
followed by arbitration, even though the plaintiff alleged that his employer and union acted in
concert to deprive him of his due process rights in the grievance process and Dyke's union failed
to obtain and present meaningful evidence and discouraged him from presenting evid1!nce on his
68 F.3d 1564.
The grievance process was exhausted and, when the umon
determined not to carry the matter to arbitration, Dykes did not pursue a state court action
alleging breach of the duty of fair representation. Dykes, 68 F.3d at 1571. Ultimately, Dykes did
not reach the issue of whether the grievance procedures were inadequate, as the plaintiff did not
raise that challenge and focused his challenge instead only on the process that actually occurred.
68 F .3d at 1570 ("Dykes does not claim that the procedures established are
per se or
that additional procedures are required."). In affirming the dismissal of the claim, the court
observed that if a public employee has grievance procedures available to her and she believes the
process was defective, she may seek relief in the form of an action against the Union alleging
breach of the duty of fair representation. 68 F.3d at 1571. Notably, Michael did initially bring
just such a claim against her Union, but subsequently dismissed the Union from this action, with
For reasons which mystify the Court, neither party here has submitted a copy of the
actual CBA laying out relevant procedures in their papers. See Dykes, 68 F.3d at 1566 n.3
(rejecting plaintiffs argument that the Court may not look at the CBA in reviewing the motion to
dismiss, as the matter sued upon clearly grew out of an alleged violation of the CBA). But we
can consider Michael's own allegations in the SAC relative to the CBA. Those allegations focus
on what her Union did or did not do for her, rather than any flaw in the contractually-defined
process itself. Indeed, in her brief in opposition to the Motion to Dismiss, Michael reiterates that
her Union faile:d to advocate on her behalf in representing her in the grievance process, that her
Union did not adequately enforce her rights "under the collective bargaining agreement" and
"discouraged her from pursuing her claims," and that her Union provided no further notices and
took no further actions in response to Defendants' final determinations. (ECF No. 40 at 12). As
noted above, Michael does lay out the multiple steps in the grievance process, and in the SAC,
admits that it ends in binding arbitration. (ECF No. 16 at iJ 59(e)). These assertions demonstrate
that Michael is well aware of her contractual grievance rights (otherwise, she could not plausibly
make them). Further, the Court notes that Michael does not allege any facts tending to show that
the grievance procedure provided in the CBA is constitutionally inadequate such that
Defendants' reliance on it to afford due process is misplaced. 11
Michael further asserts in her SAC that although she participated in meetings to discuss
incidents, the formal grievance structure was not identified to her, nor followed, but again the
crux of her allegations in such regards relates to what her Union did or did not do. (ECF No. 16
60-65). In the face of an adequate grievance procedure, such a "bias" challenge will not
state a claim for denial of post-deprivation procedural due process, Dykes, 68 F.3d at 1571
(citing Jackson v. Temple University, 721 F.2d 931 (3d Cir. 1983)), nor will a challenge that
there was mishandling, or bias exhibited against her by her Union in the grievance process,
because such a challenge must be brought only as a fair representation claim against the Union,
Ziccardi v. Commw., 456 A.2d 979, 981 (Pa. 1982), not as a claim against her employer for
violation of due process. Dykes, 68 F.3d at 1571. Finally, we know that Pennsylvania law
requires a public employer to provide to a union all relevant information regarding the subject of
a grievance/arbitration proceeding. Thus, here, by positive state law, the District was obliged to
provide any evidentiary information that Michael's Union would have needed to press her case,
fulfilling the "notice" component of due process. Pa. Dept. of Corrections v. PLRB, 541 A.2d
11 And as the Court notes below, she really can't do that. Further, the various allegations in the SAC regarding
improper motive or bias in the grievance process on the part of the Union are divorced from any allegedly related
improper conduct of Defendants, and the remedy regarding the Union's alleged failures must be sought, if at all,
through a claim against the Union for breach of the duty of fair representation. Dykes, 68 F.3d at 1571; see also
Barnes v. Southeastern Pennsylvania Transp. Authority, No. 93-3644, 1996 WL 92098, at * 6 (E.D. Pa. Feb. 28,
1996) (rejecting claim that grievance procedure was a sham were there was insufficient evidence to show concerted
action by employer and union regarding grievance process).
1168, 1170-71 (Pa. Commw. 1988); Commw. of Pa. v. PLRB, 527 A.2d 1097, 1099·-1100 (Pa.
Defendants' Motion to Dismiss Count II for violation of procedural due process will be
denied as to the claim alleging violation of pre-deprivation due process because the Court finds
that Michael has stated a claim for violation of pre-deprivation due process. It will be granted as
to the claim
violation of post-deprivation due process because the Court concludes that
the SAC does not and cannot state a claim for violation of post-deprivation procedural due
process based on Michael's own admissions as to the grievance/arbitration process and the
provisions of Pennsylvania labor law.
Plaintiff acknowledges that she. had a grievance and
arbitration proc:edure available to her to challenge the District's dismissal of her and that it
culminated in binding arbitration; boiled down, her only gripe is that her Union did not do
enough, soon enough, to help her. If true, that may have made out a fair representation claim
against her Union, but cannot support a due process claim against her public employer. Further,
as is the case relative to the claim against Ondek and Mellet, Plaintiff has had plenty of
opportunity to state her case as to an alleged denial of post-deprivation of due process, and as
noted, what she has pied demonstrates that she is well aware of that process, what it provided,
and how it worked. She had the burden of pleading and showing the inadequacy of the processes
available to her, and has now had three chances to do that. The dismissal of such claim is with
prejudice based on that reality, and in light of her own admissions as to that process in the
SAC 12 . Cureton, 252 F.3d at 273-74 ("wait and see" approach to pleading disfavored); see
Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d. Cir. 2006) (a dismissal with prejudice appropriate
where plaintiff has had repeated prior opportunities to amend and still fails to state a claim).
12 Given Michael's admissions in the SAC regarding the content of the CBA grievance/arbitration process, and the
requirements under state law for the provision of information to her Union in furtherance of that proc1!ss, the Court
also concludes that any such effort to amend would be fruitless, and therefore futile.
For the reasons stated, the Motion to Dismiss the Second Amended Complaint (ECF No.
22) filed by Defendants Quaker Valley School District, Barbara Mellett and Heidi Onclek will be
granted in part and denied in part.
The Motion to Dismiss Count I for First Amendment
Retaliation as against Defendants Barbara Mellett and Heidi Ondek will be granted with
prejudice. The Motion to Dismiss Count I as against Defendant Quaker Valley School District
will be denied. The Motion to Dismiss any claim under Count II for violation of substantive due
process will be dismissed as withdrawn. The Motion to Dismiss the claim under Count II for
denial of pre-deprivation due process will be denied. The Motion to Dismiss the claim under
Count II for denial of post-deprivation due process will be granted with prejudice.
An appropriate Order will follow.
Mark R. Hornak
United States District Judge
Dated: February 16, 2017
All counsel of record
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