BOSCO v. PITTSBURGH BOARD OF PUBLIC EDUCATION et al

Filing 33

OPINION resolving 23 defendant's motion to dismiss plaintiff's amended complaint. Signed by Judge David S. Cercone on 9/14/17. (mwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL C. BOSCO, JR.,
Plaintiff,
v.
PITTSBURGH BOARD OF PUBLIC
EDUCATION and JOHN and/or
JANE DOE,
Defendants.

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2:16cv1264
Electronic Filing

OPINION
Michael C. Bosco, Jr., ("plaintiff") commenced this civil rights action against the
Pittsburgh Board of Public Education (defendant or “the Board”) and John and/or Jane Doe,
seeking redress for the alleged publication of false information regarding plaintiff's prior work
history at a Pittsburgh public school. This publication assertedly has infringed on plaintiff's
protected liberty interest in pursuing an occupation, resulting in an alleged violation of
substantive due process under the Fourteenth Amendment. Presently before the court is the
Board’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the reasons set
forth below, the motion will be denied.
It is well-settled that in reviewing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) "[t]he applicable standard of review requires the court to accept as true all
allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the non-moving party." Rocks v. City of Philadelphia, 868
F.2d 644, 645 (3d Cir. 1989). Under the Supreme Court's decision in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 561 (2007), dismissal of a complaint pursuant to Rule 12(b)(6) is
proper only where the averments of the complaint plausibly fail to raise directly or inferentially
the material elements necessary to obtain relief under a viable legal theory of recovery. Id. at

544. In other words, the allegations of the complaint must be grounded in enough of a factual
basis to move the claim from the realm of mere possibility to one that shows entitlement by
presenting "a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Id. In contrast, pleading facts that only offer "'labels or conclusions' or 'a formulaic recitation of
the elements of a cause of action will not do,'" nor will advancing only factual allegations that
are "'merely consistent with' a defendant's liability." Id. Similarly, tendering only "naked
assertions" that are devoid of "further factual enhancement" falls short of presenting sufficient
factual content to permit an inference that what has been presented is more than a mere
possibility of misconduct. Id. at 1949-50; see also Twombly, 550 U.S. at 563 n. 8 (A complaint
states a claim where its factual averments sufficiently raise a "'reasonably founded hope that the
[discovery] process will reveal relevant evidence' to support the claim.") (quoting Dura
Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347 (2005) & Blue Chip Stamps v. Manor Drug
Stores, 421 U.S. 723, 741 (1975)); accord Morse v. Lower Merion School Dist., 132 F.3d 902,
906 (3d Cir. 1997) (a court need not credit "bald assertions" or "legal conclusions" in assessing a
motion to dismiss) (citing with approval Charles Alan Wright & Arthur R. Miller, FEDERAL
PRACTICE AND PROCEDURE § 1357 (2d ed. 1997) ("courts, when examining 12(b)(6) motions,
have rejected 'legal conclusions,' 'unsupported conclusions,' 'unwarranted inferences,'
'unwarranted deductions,' 'footless conclusions of law,' or 'sweeping legal conclusions cast in the
form of factual allegations.'").
This is not to be understood as imposing a probability standard at the pleading stage.
Iqbal, 556 U.S. at 678 ("'The plausibility standard is not akin to a 'probability requirement,' but it
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asks for more than a sheer possibility that a defendant has acted unlawfully.'"); Phillips v. County
of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (same). Instead, "[t]he Supreme Court's
Twombly formulation of the pleading standard can be summed up thus: 'stating ... a claim
requires a complaint with enough factual matter (taken as true) to suggest the required element ...
[and provides] enough facts to raise a reasonable expectation that discovery will reveal evidence
of the necessary element.'" Phillips, 515 F.3d at 235; see also Wilkerson v. New Media
Technology Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) ("'The complaint must state
'enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.'") (quoting Phillips, 515 F.3d at 235) (citations omitted). "Once a claim has
been stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint." Twombly, 550 U.S. at 563.
The record read in the light most favorable to plaintiff establishes the background set
forth below. Up until April of 2012, plaintiff was a long-time employee of the Pittsburgh Public
School District ("the district"). Hired in 1984, plaintiff worked within the district for almost 30
years. During the 2011-2012 school year, plaintiff was employed as a physical education teacher
at Martin Luther King Elementary School. On or about November 15, 2011, and January 25,
2012, plaintiff was involved in two altercations with students and subsequently was suspended.
The details of the incidents are not disclosed. No child abuse investigation occurred under
Pennsylvania's Child Protective Services Law, 23 Pa.C.S. § 6301 ("the CPSL").
Plaintiff and the Board entered into a mutual settlement and release agreement in April of
2012. Plaintiff agreed to resign voluntarily and not pursue any civil actions against the Board for
claims that accrued before signing the agreement. In return, plaintiff received a severance
package.
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Plaintiff began apply for new employment positions in 2015, applying to Bentworth
School District in June of 2015, Ambridge School District in August of 2015, and Montour
School District in February of 2016. Each of these school districts was then required to obtain a
Commonwealth of Pennsylvania Sexual Misconduct/Abuse Disclosure Release form under Act
168 of the Public School Code ("Act 168 form") from plaintiff's former employer. The Act 168
form required the district to answer several inquiries about any prior history of child abuse or
sexual misconduct by plaintiff.
In completing the Act 168 forms the district consistently answered "yes" to the question
"has the applicant been the subject of an abuse or sexual misconduct investigation by any
employer, state licensing agency, law enforcement agency, or child protective services
agency…?" Plaintiff asserts that this answer is "materially and patently false" because he has
never been the subject of an investigation for child abuse as defined under the CPSL. And this
"false" answer purportedly has deprived him of acquiring any position with a school district that
involves direct contract with children, thereby depriving him of his "right" to pursue an
occupation in education.
The Board attacks plaintiff's amended complaint on a number of fronts. First, it asserts
that as a matter of law plaintiff's allegations regarding the disclosures to three prospective
employers cannot supply the foundation to establish that the information was publically
disseminated. Second, the circumstances giving rise to plaintiff's separation from employment
preclude him from establishing a misrepresentation. Third, plaintiff's alleged loss of prospective
employment opportunities cannot supply a protectable property or liberty interest under the
Fourteenth Amendment. Finally, the Board asserts that plaintiff has not been foreclosed from an
entire occupation because Act 168 forms are not required at all schools within the
Commonwealth.
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Plaintiff contends that disseminating information to prospective employers satisfies the
limited dissemination needed to allege public disclosure, and the information disseminated was
false because he was not investigated for "child abuse" within the meaning of the CPSL. In
addition, the district's conduct has foreclosed plaintiff from an entire occupation because the Act
168 form is required at both public and private schools in Pennsylvania. Thus, plaintiff contends
that the amended complaint makes the requisite showing for a violation of his right to
substantive due process under the Fourteenth Amendment.
In general, § 1983 does not itself create substantive rights, but instead provides a vehicle
for vindicating a violation of a federal right.1 Groman v. Township of Manalapan, 47 F.3d 628,
633 (3d Cir. 1995). A cause of action under § 1983 has two elements: a plaintiff must prove (1)
a violation of a right, privilege or immunity secured by the constitution and laws of the United
States (2) that was committed by a person acting under color of state law. Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cr. 1996); Kelly v. Borough of Sayerville, 107 F.3d 1073, 1077 (3d Cir.
1997); Berg v. City. Of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000) ("The Plaintiff must
demonstrate that a person acting under color of law deprived him of a federal right.") (citing
Groman, 4 F.3d at 633).
Claims premised on misrepresentation alleged to be in violation of substantive due
process are analyzed under the "stigma-plus" doctrine. Hill v. Borough of Kutztown, 455 F.3d
225, 236 (3d Cir. 2006) (citing Paul v. Davis, 424 U.S. 693 (1976)). In order to meet the stigma
requirement, it must be shown that there was a harm to one's reputation consisting of the
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Section 1983 creates liability against "[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia,
subjects or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws." 42 U.S.C. § 1983.
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publication of a substantially and materially false statement that infringed upon the "reputation,
honor, or integrity of the [individual]." Brown v. Montgomery County, 470 F. App'x 87, 91 (3d
Cir. 2012). To satisfy the "plus" requirement, the claimant must show the defendant caused a
deprivation of some additional constitutionally protected right or interest, such as the right to
pursue a chosen occupation. See Kahan v. Slippery Rock University of Pennsylvania, 50 F.
Supp. 3d 667, 711 (W.D. Pa. 2014).
Plaintiff's averments sufficiently advance a plausible showing of public dissemination. It
has been recognized that the threshold for publication in a stigma-plus claim can be satisfied
when an employer places stigmatizing information into an employee's personnel file and
disseminates it to prospective employers. See Velger v. Cawley, 525 F.2d 334 (2d Cir. 1975)
(information about a suicide attempt placed in an employee’s personnel file and given to
prospective employers sufficient to plead public dissemination) (reversed on other grounds)
(Codd v. Velger, 429 U.S. 624 (1977)); see also, Smith v. Borough of Pottstown, No. CIV.A. 961941, 1997 WL 381778 at *14 (E.D. Pa. 1997) (public dissemination adequately established
where the employer placed stigmatizing information in the employee's personnel file and made
comments to members of other police departments about employee). Here, plaintiff avers that
defendant falsely indicated he was the subject of a child abuse investigation and disseminated
that information to three school districts with no operating connection to defendant. These
alleged facts are sufficient to meet the plausibility standard for public dissemination.
The Board's assertion that the information was not publicized is thus unavailing. The
Board cites cases such as Yu v. U.S. Dept. of Veteran Affairs to buttress its position. There, the
court held that the defendant's dissemination of stigmatizing information to two different
organizations was not sufficient to establish publication. 528 F. App’x. 181, 185 (3d Cir. 2003)
But the instant case is distinguishable. In Yu, the organizations that received the information
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were "operating partners" with the defendant. Id. Here, it must be inferred that the prospective
employers, three school districts that were separate and unrelated operating entities from the
district, were not in any such relationship. And merely being a school district within the
Commonwealth does not render all district-to-district communications non-public. Cf., Smith v.
Borough of Pottstown, 1997 WL 381778, at *14 (finding communications between Norristown
Police Department and Pottstown Police Department established public disclosure between
separate entities, notwithstanding both were formal Pennsylvania police departments).
Therefore, the Board's argument does not as a matter of law eliminate plaintiff's ability to
proceed.
Further, the Board's assertion that the publicized information was not false similarly falls
short. As the Supreme Court in Codd v. Velgar observed, a stigma requirement cannot be met if
the information that is being disseminated is true. 429 U.S. at 633 (1977). Implicit within the
parties' respective positions here is a disagreement about which part of the Act 168 form gives
rise to a falsity—defendant focuses on whether an investigation occurred; plaintiff focuses on
whether the actions for which he was investigated can be considered child abuse. It appears
from the submissions to date that the Code and relevant form obligated the district to account
about both concepts in its response. In other words, there must have been an investigation
involving a child and that investigation must have related to an alleged form of child abuse or
sexual misconduct as defined by the CPSL. It follows that whether the averred altercations
constituted child abuse, as per the Act 168 form, is a key discerning factor as to whether a
plausible showing of falsity has been made.
This inquiry is thus two-fold: (1) the reach of the Act 168 form, and therefore the CPSL,
with regard to the concept of child abuse, and (2) whether the prior altercations involved conduct
within this definition. Act 168 defines “abuse” as “conduct which falls under the purview and
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reporting requirements of 23 Pa. C. S. Ch. 63.” 24 P.S. § 1-111.1(n). Although plaintiff argues
that the district's failure to follow the reporting requirements of the CPSL sufficiently establishes
that the altercations were not within the purview of child abuse, the district's purported failure to
do so does not answer the question of whether plaintiff's actions properly can be designated as
child abuse. Even though the investigation may not have followed the protocol enumerated in 23
Pa. C.S. Ch. 63, this does not create a sufficient showing that plaintiff's actions were not
something that should have been handled through that process.
Notwithstanding any failure by the district to comply with the reporting requirements, the
court must begin its inquiry by looking to the CPSL's definition of “child abuse.” It defines child
abuse as:
1. Causing bodily injury to a child through any recent act or failure to act.
...
5. Creating a reasonable likelihood of bodily injury to a child through any recent act or
failure to act.
…
8. Engaging in any of the following recent acts:
a.

Kicking, … [or] throwing, … a minor child in a manner that endangers the
child.

b.

Unreasonably restraining or confining the child. …

c.

…

23 Pa. C. S. § 6303(b.1).
The district suspended plaintiff for two "altercations," the facts of which are not
developed in the record and averred to be outside the scope of this definition. While plaintiff's
failure to supply additional information as to the exact nature of the altercations comes perilously
close to presenting nothing more than a legal conclusion, the actual factual information presented
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must be construed in the light most favorable to the plaintiff. Rocks, 868 F.2d at 645. An
investigation by the County Children and Youth Services did not occur. A finding pursuant to
the CPSL that either altercation was a form of child abuse did not occur. Plaintiff was not fired
for either incident. With no information indicating or suggesting that the altercations caused
bodily injury to the child, created a reasonable likelihood of bodily injury, or involved kicking,
throwing or unreasonably restraining a child, the court will draw the inference that they did not.
It follows that the district's indication to the contrary on the Act 168 form can be considered
materially and substantially false for the purposes of the instant motion.
Likewise, the Board's contention that plaintiff has not advanced a plausible showing that
the dissemination has infringed on a protectable interest is wide of the mark. In order to succeed
on a stigma-plus claim, a plaintiff must prove that the defendant's actions encroached upon some
additional right or interest. Kahan, 50 F. Supp. 3d at 711. Here, plaintiff seeks to satisfy this
requirement by plausibly demonstrating that the district has infringed on his liberty interest in
pursuing his chosen occupation.
The Fourteenth Amendment guarantees all persons born or naturalized in the United
States the "liberty to pursue a calling or occupation." Simpson v. Nicklas, 500 F. App'x. 185,
188 (3d Cir. 2014). It is well settled that this right protects participation in an occupation as a
whole. See Piecknick v. Pennsylvania, 36 F.3d 1250, 1262 (3d Cir. 1994) ("It is the liberty to
pursue a calling or occupation . . . that is protected by the Fourteenth Amendment."). However,
it does not encompass a specific job or role in an occupation, nor does it protect against
deleterious effects arising from defamation such as impugning one's business reputation. See
Klug v. Chicago School Reform Bd. of Trustees, 197 F.3d 853 (7th Cir. 1999) (a plaintiff's
demotion from dean of incoming freshman at a high school to teacher at an elementary school
did not constitute a deprivation of a protectable liberty interest); Sadallah v. City of Utica, 383
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F.3d 34 (2d Cir. 2004) (damage to business reputation and deprivation of good will in business
were merely deleterious effects of defamation and did not satisfy the "plus" requirement).
Hence, a defendant's stigmatizing conduct must rise to the level of foreclosing the
plaintiff from an entire occupation. See Smith, 1997 WL 381778 at *13 (plus requirement
deemed satisfied where the alleged stigma caused the plaintiff, a former police officer, to fail
background checks and therefore infringed upon his ability to secure a job with any other police
force in the state); see also, Fetsch v. City of Rosenberg, No. 6:11-cv-6343-TC, 2013 WL
2631495, at *7 (D. Or. June 11, 2013) (stigmatizing allegations regarding a police officer's lack
of honesty—a "cornerstone for a position in law enforcement"—satisfied the plus requirement).
Here, the affirmative answer on the Act 168 form is a sufficient factual predicate to demonstrate
at the pleading stage that the door to pursuing a career in education has been closed. This is so
because a reasonable inference can be drawn that plaintiff will be able to generate evidence to
establish that few if any school districts would hire a candidate who has been investigated for
child abuse. Cf. Fetsch, 2013 WL 2631495 at *7 (evidence pertaining to the effects from an
accusation of dishonesty sufficient to establish a police officer was foreclosed from continuing
his career).
Further, it is clear that the defendant's persistent dissemination would reasonably extend
to both private and public schools, thereby bolstering plaintiff's ability to prove he has been
foreclosed from an entire occupation. In this regard the satisfaction of the plus requirement
depends on the influence of the Act 168 form, which comes from 24 P.S. § 1-111.1(b)(1)(iii)(A)
(a part of the "Public School Code of 1949"). Although the title suggests that this code is solely
applicable to public schools, 24 P.S. § 1-111.(a.1) plainly states that "beginning April 1, 2007,
this section shall apply to all current and prospective employees of public and private schools."
Thus, both public and private schools are required to issue the Act 168 form, and therefore it has
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the potential to influence plaintiff's ability to get a job within any school entity. Cf. Tilson v.
School Dist. Of Philadelphia, No. 89-1923, 1990 WL 98932 (E.D. Pa. July 13, 1990) (finding
that the background check requirement in 24 P.S. § 1-111 is mandated for employees of both
public and private school entities). It therefore appears at this juncture that plaintiff's allegations
rise to a plausible showing of foreclosure from an entire occupation.
For the reasons set forth above, the Board's motion to dismiss will be denied. An
appropriate order will follow.2
Date: September 14, 2017

s/David Stewart Cercone
David Stewart Cercone
United States District Judge

cc:

Joel S. Sansone, Esquire
Massimo A. Terzigni, Esquire
Brian P. Gabriel, Esquire
(Via CM/ECF Electronic Mail)

It readily is apparent that a number of inferences have been drawn in plaintiff's favor.
Reasonable jurists could disagree about many of these. Although the amended complaint leaves
much to be desired with regard to today's pleading standards, the court has chosen to proceed in
this manner because it believes that the parties and those who face similar scenarios in the future
will be better served by the lucidity gained in the development and refinement of the presented
area of law pursuant to a clarified record.
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