Opinion
2:15-cv-1674 ECF 97 98
02-16-2021
CURTIS BAKER, Plaintiff, v. MOON AREA SCHOOL DISTRICT, et al., Defendants.
Cathy Bissoon, Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' AND PLAINTIFF'S CROSS MOTIONS FOR SUMMARY JUDGMENT
LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is recommended that Plaintiff's Motion for Summary Judgment (ECF No. 97) be granted only as to Defendants' Counterclaim for breach of contract, and that Defendants' Motion for Summary Judgment (ECF No. 98) be granted only as to dismissal of the Individual Defendants. It is further recommended that the remainder of both Motions for Summary Judgment be denied in all other respects. Specifically:
As to Count I, the pre-deprivation due process claim, questions of material fact preclude summary judgment regarding Defendants' failure to provide constitutionally-sufficient process prior to depriving Plaintiff of both the ability to perform his functions as a superintendent in December, 2015 and his superintendent's salary in February, 2016.
As to Count II, the breach of contract claim, questions of material fact preclude summary judgment regarding Defendants' failure to provide the pre-proceeding process required under Section 7 of Plaintiff's employment agreement.
As to Count III, the claim for violation of the 24-hour notice provision of Pennsylvania's Sunshine Act, 65 Pa. Cons. Stat. § 708(b), questions of material fact preclude summary judgment regarding notice of the December 7, 2015 executive session/meeting convened by a newly-seated Board which then suspended Plaintiff with pay.
II. FACTUAL AND PROCEDURAL HISTORY
Plaintiff, Curtis Baker, was hired as the superintendent of the Moon Area School District (“MASD” or “District”) for a four-year period commencing November 25, 2013. ECF No. 65-A (Baker's employment contract). During 2014 and 2015, there was substantial division within the District regarding fiscal policy and the related decision to close and repurpose the Hyde Elementary School, a decision to which Individual Defendant Board members Testa and Hauser were strongly opposed. Defendants Bogatay, Harper, Scappe, Wolowicz, and Zieger - who were also opposed to said closure - successfully ran for election to the Board in November 2015 on a collective ticket, defeating five (5) of the incumbents. ECF No. 99 at ¶¶ 7, 9. They were seated at a public Board meeting on December 7th (a date previously noticed as required by Pennsylvania's Sunshine Act), which meeting was adjourned following nomination and election of officers. ECF No. 65-G (Minutes of “Reorganization Meeting”). Following an executive session held by the newly-seated Board immediately after said adjournment, Baker was informed he was being placed on administrative leave with pay for alleged unspecified misconduct and escorted from the building. District Solicitor Cambest handed Baker a letter stating that if the “newly constituted Board” placed Baker on administrative eve that evening “pursuant to Section 1080 ....and Paragraph Eight” of his contract, he was to immediately turn over all property (keys, hard drives, IDs and passwords, etc.) and was barred from the building without prior authorization. The letter does not identify any particular inquiry or charge against him. ECF No. 65-H. During a public Regular Meeting held by the new Board immediately following its executive session, said Board moved to “amend the agenda” to add several motions, including Baker's administrative leave with pay (for which no reason is noted in the Minutes), and the appointment of Dr. Milanovich as Interim Superintendent on pre-negotiated terms. ECF No. 65-I (Minutes of “Regular Meeting”).
The Minutes indicate this executive session was conducted after the Reorganization Meeting ended, i.e., after an adjournment, despite Defendants' apparent testimony to the contrary. See Section IV(C), infra.
Bakers' Public School Employee Retirement System (“PSERS”) contributions were also suspended on or about that date.
On December 18, 2015, Baker initiated this action against the School District and Defendants Testa, Hauser, and the five other Board members named directly above, in their individual and official capacities for violation of his due process rights. He also asserted state common law claims against Defendants for breach of contract, violations of the Sunshine Act, tortious interference with contract, and misuse of civil proceedings (Dragonetti Act).
Plaintiff was sent a “Pre-Termination/Suspension Hearing Notice” by District Solicitor Cambest on January 6, 2016 containing 12 allegations against him and informing him of an apparent Loudermill hearing scheduled for January 11, 2016. ECF No. 65-K. In particular, the letter informed Plaintiff that based on information and documentation from a preliminary and ongoing investigation, he “may have engaged in certain conduct” - listed as the series of allegations, with no identification of their underlying evidence - which “violations may constitute a basis for [his] suspension without pay or possible termination from [his] position pursuant to Section 1080 . . . and Section Seven (7) of [his] contract ....” The letter further noted that Plaintiff was being provided - specifically pursuant to Section 7 of his employment contract - “the opportunity to respond, verbally or in writing, to the allegations of misconduct”. The letter concluded by restating its purpose as “notification that a Pre-Termination/Suspension Meeting as required by [Baker's] contract” had been set for January 11th, at which “hearing” Plaintiff had a right to be present and to be represented by counsel.
The Notice's Word tagline is “superintendent-termination-2015\loudermill hearing ltr”.
The Court notes: (a) the Solicitor's interchangeable use of the terms “hearing” and “meeting” throughout; (b) that this letter did not provide Plaintiff pre-hearing access to any documents or other substantiating evidence; and (c) the scheduling of a Loudermill hearing as “pursuant to Section 7”. Cf. Section IV(A) and (B) infra (discussing legal and contractual process required prior to Loudermill hearings or “any formal proceeding”, respectively).
Plaintiff's counsel objected to Solictor Cambest that Defendants' Notice did not comply with the Public School Code, constitutional or contractual due process; and he made a demand for “all documents to which [Baker was] entitled under Section 7 of his contract”, i.e. investigatory or substantiating evidence in support of Defendants' allegations “and other documents which the District may utilize in the meeting/hearing.” ECF No. 65-L. The District replied on January 8th, stating that (a) the January 6th letter “was not the initiation of a formal proceeding against” Baker, (b) the meeting's purpose was to allow Baker “an opportunity to respond to some of the information” obtained through the District's “preliminary, internal investigation”, and (c) “no action [was] being taken against [Baker] at [that] time” but rather, the meeting was “merely an opportunity for [Baker] to provide [. . . relevant] information.” ECF No. 65-M. Accordingly, Plaintiff's counsel responded in writing to the allegations made in Defendants' January 6th Notice and Plaintiff did not attend the assertedly informal and non-disciplinary hearing on January 11th. Plaintiff was notified on or about February 1, 2016, however, that action/discipline had been taken against him in the form of suspension without pay because (a) he failed to attend the January 11thhearing/meeting and (b) of the responses he submitted. ECF No. 65-N.
The District then proceeds to assert a contract interpretation at odds with that of its January 6thcorrespondence, i.e., that compliance with Section 7 was triggered only if/when the District took “a formal action against [Baker] pursuant to Section 1080”; and on this basis the District declined to provide “all of the information pursuant to Paragraph 7” until such time. Id.
On March 14, 2016, Defendants authorized Solicitor Cambest to initiate termination proceedings against Plaintiff. ECF No. 65-O. Plaintiff filed an Amended Complaint on April 4, 2016. Plaintiff then resigned as superintendent of the School District on May 2, 2016, effective June 10, 2016 (see ECF No. 37-2), having found employment as superintendent of the Wilson School District. The Wilson Minutes indicate his three-year agreement began June 13, 2016 at $168, 500 per annum. Baker resigned employment with Wilson in February 2017. ECF No. 99 at ¶¶ 75-78.
The Court notes that Plaintiff's acceptance of other employment was in keeping with his common law duty to mitigate contractual damages.
In November 2016 this case was administratively closed pursuant to the parties' agreement - in response to Court inquiry - that the public hearing required by 24 P.S. §10-1080 be conducted. See ECF No. 36. The Section 1080 hearing occurred during January and February, 2017 and was completed on February 27th. Plaintiff did not attend the hearings or submit proposed findings of fact or conclusions of law, but his counsel submitted a lengthy Letter of Submission. The hearing examiner issued his adjudication, finding substantial grounds for Plaintiff's removal as superintendent, and on May 8, 2017 the School Board issued a “Resolution Removing Curtis Baker as Superintendent” retroactive to his suspension without pay on February 1, 2016. Baker did not appeal or otherwise exercise any further administrative remedies as to the hearing officer's findings or the Board's post-deprivation actions. See generally ECF No. 61 at 9-10.
Section 10-1080 provides in relevant part: “District superintendents and assistant district superintendents may be removed from office and have their contracts terminated, after hearing, by a majority vote of the board of school directors of the district, for neglect of duty, incompetency, intemperance, or immorality, of which hearing notice of at least one week has been sent by mail to the accused, as well as to each member of the board of school directors.” 24 P.S. 10-1080(a).
Cf. ECF No. 70 at 13 n. 7 (detailing docket information regarding the parties' agreement on January 1112, 2017, with formal hearing to be concluded by February 3rd).
This case was reopened on Defendants' motion on January 2, 2018. Following further pleadings and the July 2, 2018 Report and Recommendation (“First R&R”)(ECF No. 61), Judge Bissoon, on de novo review, issued a Memorandum Order (“Memo Order”)(ECF No. 64) granting the Defendants' Motion to Dismiss in part and denying it as to: (1) the pre-deprivation due process claim in Count I; (2) the breach of contract claim in Count II; and (3) the claim for violation of the Sunshine Act, based on the 24-hour notice requirement, in Count III. Baker was also given leave to amend to state a claim for post-deprivation due process on the basis of unjustified delay in the formal hearing.
The Order did not adopt portions of the First R&R, including that which recommended dismissal of Plaintiff's pre-deprivation process claim.
ECF. No. 64 at 14 (finding that Plaintiff stated a claim under 65 Pa. C.S. § 708(b) where “Plaintiff alleges that ‘[t]he newly seated Board would not have twenty-four hours in which to give notice of a meeting at which an executive session was to occur,' and the Court can infer that the executive session that was held on December 7, 2015 by the newly seated Board had not been announced at a prior meeting”).
ECF No. 64 at 10.
The Second Amended Complaint (ECF No. 65), filed on September 7, 2018, includes four counts: Count I - Section 1983 Pre- and Post-Deprivation Due Process; Count II - Breach of Contract; Count III - Sunshine Act Violation; and Count IV -Wrongful Use of Civil Proceedings (Dragonetti Act). In response to Defendants' Motion to Dismiss the Second Amended Complaint (ECF No. 66), the second Report and Recommendation (“Second R&R”)(ECF No. 70) recommended dismissal of the post-deprivation due process claim on grounds that (a) because Baker failed to avail himself of the processes afforded him after his suspension, he could not later base a constitutional claim on post-deprivation process, and (b) despite amendment of the Complaint, Plaintiff still failed to plausibly suggest that the delay in his formal hearing was unjustified or unreasonable . See ECF No. 70 (discussing Section 10-1080). The Second R&R also recommended dismissal of the Dragonetti Act claim on grounds that there was no plausible inference that the subject litigation was withdrawn for reason other than mootness. ECF No. 70 at 21-22. It recommended denial of Defendants' motion in all other respects. By Order dated April 10, 2019 (ECF No. 75), the Court dismissed Plaintiff's post-deprivation due process and Dragonetti Act claims.
Cf. ECF No. 70 at 17-18 (noting that at one point “Baker asked the Court to prohibit the School Board from moving forward with the formal hearing in part due to his resignation rendering the hearing moot”).
Currently pending before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 97) and Defendants' Motion for Summary Judgment. ECF No. 98.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, the pleadings, documents, electronically stored information, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56 (a) & (c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact; that is, the movant must show that the evidence of record is insufficient to carry the non-movant's burden of proof. Id. Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added by Matsushita Court). An issue is genuine only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986). In Anderson, the United States Supreme Court noted the following:
[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.... [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.Id. at 249-50 (internal citations omitted).
When the parties have filed cross-motions for summary judgment, as in this case, the summary judgment standard remains the same. Transguard Ins. Co. of Am., Inc. v. Hinchey, 464 F.Supp.2d 425, 430 (M.D. Pa. 2006). “When confronted with cross-motions for summary judgment, . . . ‘the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard.'” Id. (quoting Marciniak v. Prudential Fin. Ins. Co. of Am., 184 F. App'x. 266, 270 (3d Cir. 2006)). “If review of [the] cross-motions reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts.” Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998)).
IV. ANALYSIS
A. Count I - Constitutional adequacy of the pre-deprivation due process provided prior to suspensions with and without pay
The constitutional requirements regarding Plaintiff's claim for violation of his pre-deprivation due process rights have been set forth in the Court's previous recommendations and rulings. See e.g., ECF No. 70. See also Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Most importantly, in addressing the pre-deprivation process required by the Fourteenth Amendment, the Loudermill Court held that “[t]he opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.” 470 U.S. at 545-46, 105 S.Ct. 1487. “The . . . public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.” Id. at 546, 105 S.Ct. 1487 (emphasis added).
In Eldridge, the Supreme Court delineated three distinct factors that must be considered in determining what process is sufficient in a particular situation:
In the Court's prior ruling on Plaintiff's due process claim, Judge Bissoon noted that Count I raised distinct pre-and post-deprivation due process claims. ECF No. 64 at 3. She determined that the first deprivation of Plaintiff's protected property interest in his public employment occurred when Plaintiff was placed on paid leave on December 7, 2015, prior to his suspension without pay on February 1, 2016. Id. at 4-5. She concluded, upon consideration of the Eldridge factors, that something more than no predeprivation due process was constitutionally required at that time. Id at 6-8. As this finding was “sufficient for Plaintiff's claim at Count I to survive to the extent that claim is based on a lack of pre-deprivation due process related to Plaintiff's property interest in his continued employment”, no further pre-deprivation process analysis was required. Id. at 8.
As noted supra, the post-deprivation claim was later dismissed owing to Plaintiff's failure to avail himself of the processes through which he might have challenged the Section 10-1080 adjudication by, i.e., appeal to the Court of Common Pleas. Cf. ECF No. 70 at 16 (also noting that Plaintiff failed to advance a futility argument in opposition to Defendants' Motion to Dismiss the Second Amended Complaint).
The suspension of his contributions to the Public School Employees' Retirement System at that time, which Defendants avow was unintentional, was not a necessary factor in the Court's finding that, under Pennsylvania law, suspension with or without pay each deprived Baker of a protected property interest. Id. (citing Antonini v. Western Beaver Area School District, 874 A.2d 679 (Pa. Commw. Ct. 2005)). Cf. ECF No. 105 at 6 n. 1.
Judge Bissoon noted Plaintiff's allegations that he received no notice and no opportunity to be heard prior to his December 7th suspension. And she distinguished Defendants' proffered fiscal mismanagement and similar grounds for its prerogative to suspend Baker from the cases in which truly exigent circumstances (allegations of “serious misconduct” such as sexual misconduct) shifted the constitutional due process balance in favor of prompt administrative leave/suspension with pay. Id. at 67 & n.6 (noting that “[t]he letter provided to Plaintiff a month after his suspension alleges misconduct that is comparable to improper handling of funds, not to sexual harassment or similarly serious activity”).
Cf. ECF No. 75 at 4 (noting the two deprivations effected by Plaintiff's suspensions with and without pay); ECF No. 105 at 23 (concluding that “Defendants are entitled to summary judgment at Count I because (1) in temporarily suspending Baker with pay pending preliminary investigation, the District met the due process requirements [of Eldridge]; and (2) the District complied with the requirements of Loudermill . . . prior to suspending Baker without pay on February 1, 2016).
As to Plaintiff's December 2015 suspension with pay, Defendants assert in their Brief in Opposition that the District met the due process requirements enunciated in Eldridge. ECF No. 105 at 5. Defendants have proffered evidence, e.g., testimony and prior meeting minutes, that Plaintiff was aware of the nature of the charges brought against him at the December 7, 2105 Board meeting, was negotiating “his exit from the District” while engaged in a job search, and was apprised of some specific concerns during the executive session. Defendants also attest that they were then possessed of evidence of serious misconduct, and additional process would be at significant fiscal/administrative expense due to continued mismanagement/misconduct.Plaintiff's evidence is that owing to the parties' political and personal history he deduced it likely that he would lose his job, but that his alleged misconduct was not identified prior to or upon his December 2015 suspension, of which he had not been informed in advance. The evidence thus reflects fact and credibility questions relevant to the constitutional adequacy, under an Eldridge analysis, of the pre-deprivation process provided by Defendants (which was required to be something more than none). Cf. ECF No. 64.
ECF No. 99 at ¶¶ 17-38, 41-42; ECF No. 100 at 7.
ECF No. 99 at ¶45; ECF No. 100 at 9-11 (narrating at length the Board's concerns regarding Baker's continued mismanagement, mishandling, and his potential interference with or “sabotage” of, e.g., an investigation). The Court notes the credibility questions implicated throughout.
See, e.g., ECF No. 102 at ¶ 8 (“It was clear to [Baker] that he had no future at the School District . . .”); ECF No. 103 at 8-9 (Plaintiff's assertion that the Board met in executive session and then informed him for the first time “that he was being placed on administrative leave due to alleged yet unspecified misconduct”); ECF No. 101 at 11 (Plaintiff's assertion that in response to his inquiry as to charges against him, Solicitor Cambert replied that there were none as of December 7th but there would be an investigation).
As discussed in prior rulings, an Eldridge analysis weighs (1) the significance of Plaintiff's affected interest(s), (2) the risk of erroneous deprivation through the procedures used, and (3) the fiscal/administrative burden to defendant of providing other procedural safeguards. 424 U.S. at 335.
In addition, under established Pennsylvania law, Plaintiff was also entitled to pre-deprivation process at the investigation and possible suspension without pay stage of the Board's actions against him. As Defendants have summarized: Since the Supreme Court's decision in Loudermill, “public employers in Pennsylvania have generally adopted the practice of suspending with pay prior to notice and an opportunity for a hearing pending an investigation. Then, prior to or upon completion of the investigation, the employer adopts charges if warranted, provides notice of the charges, and provides an opportunity to be heard through a so called Loudermill hearing. After [completion of the] Loudermill hearing, the suspension [may be] converted to a suspension without pay, and in the case of a school superintendent, the superintendent is provided the opportunity for a public hearing before the [school] board.” ECF No. 100 at 6, ECF No. 61 at 21-22 (citing Kinavey v. D'Allesandro, Civ. A. No. 10-364, 2010 U.S. Dist. LEXIS 103281, at *2 (W.D. Pa. Sept. 29, 2010))).
Defendants' Brief in Opposition asserts that “[w]ith respect to [this] second instance” of pre-deprivation due process, “the district complied with the requirements of [Loudermill] prior to suspending Baker without pay on February 1, 2016.” ECF No. 105 at 5-6 (“The process need only include oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to tell his side of the story.”) (citing Antonini v. W. Beaver Area Sch. Dist., 874 A.2d 679 (Pa. Commw. Ct. 2005)). Defendants have, however, failed to establish that Baker was provided (a) the charges against him, (b) an “explanation of the employer's evidence” and (c) an opportunity to formulate and present his defense in response to that evidence in advance of his suspension without pay on January 11, 2016. Moreover, Baker has provided evidence that Defendants superseded their apparent January 6, 2016 notice of a January 11th Loudermill hearing in accordance with Section 7 of his employment contract with a letter advising Plaintiff and his counsel that, to the contrary, said January meeting/hearing was merely intended as an opportunity for Plaintiff to address “some of the information” from Defendants' preliminary investigation, and did not reflect any intent to take disciplinary action against him or trigger the provisions of Section 7. See Section II, supra; ECF No. 103 at 4-5. Defendants, in response, maintain - in a seemingly overly-crabbed reading of their Solicitor's January 8th correspondence -that Baker remained on notice of his “informal” January 11th Loudermill hearing. ECF No. 105 at 8-9.
Defendants omit mention of this letter in their Concise Statement of Material Facts. ECF No. 99.
Defendants provide no reconciliation of their current position that the January 11th Loudermill hearing was an “informal” proceeding distinct from the sole (vs. “any”) “formal proceeding” triggering obligations under Plaintiff's employment contract - i.e., a proceeding under Section 1080 - with their Solicitor's January 6th reference to Notice of the Loudermill hearing as being held “pursuant to” Section 7 of that contract. Cf. ECF No. 101 at 15 (asserting that Defendants engaged in “a bait and switch scam”).
Because Baker has established material fact questions as to (a) Defendants' provision of Eldridge -appropriate process prior to his suspension with pay; and (b) Defendants' (i) provision of constitutionally-sufficient explanation of the evidence against him prior to the January 11th hearing/meeting, and/or (ii) their impeding/preventing his opportunity to defend against that evidence (as required by Loudermill) by misrepresentations made prior to his suspension without pay, it is recommended that summary judgment on Count I, pre-deprivation due process, be denied.
B. Count II - Breach of Contract Claim
The provisions of Sections 7 and 8 of Plaintiff's Employment Agreement parallel and supplement - as one might expect and as the District Solicitor's January 6, 2016 letter appears to indicate - the routine steps for (a) initial investigation and suspension without pay upon a Loudermill hearing and (b) termination upon a Section 1080 hearing where the subject employee is a Pennsylvania School District Superintendent. See Section IV(A), supra.
Thus, Section 7 states Plaintiff's entitlement to an investigation procedure that is in accordance with and supplements the requirements of a Loudermill hearing, and more specifically provides:
7. Investigation by the Board
In the event that the Board of School Directors directs that any investigation of the Superintendent's conduct or performance be undertaken, the Superintendent shall, prior to the commencement of any formal proceedings against him, be: (i) granted access to all non-privileged documents accumulated in the course of such an investigation; and (ii) granted the opportunity to respond, verbally or in writing, to any documents, findings or conclusions derived from such an investigation prior to the investigation being concluded.. .Nothing herein shall obligate the Board to share attorney-client privileged or work product information with the Superintendent following completion of any investigation of this conduct or performance.
And Section 8 states Plaintiff's entitlement to a termination procedure in accordance with the requirements of Section 10-1080:
8. Discharge
Throughout the term of this Contract, the Superintendent shall be subject to discharge for valid and just cause for the reasons specified in Section 1080 of the Public School Code of the Commonwealth of Pennsylvania. The Board shall not arbitrarily or capriciously call for his dismissal and the Superintendent shall in any event have the right to written charges, notice of hearing and fair and impartial hearing, all elements of due process, and the right to appeal to a court of competent jurisdiction. At any such hearing before the Board, the Superintendent shall have the right to be present and to be heard, to be represented by counsel, and to present witnesses and testimony relevant to the issue. A transcript of the record of proceedings before the Board shall be made available without charge to the Superintendent in the event an appeal is taken by the Superintendent, who shall have the right to be represented by counsel at his sole cost and expense. Provided, however, should the Superintendent prevail in any hearing or appeal, the Board shall reimburse him for all legal fees incurred in any action.
Plaintiff's claim for a due process violation based on his Section 1080 termination has been dismissed for failure to appeal; similarly, Plaintiff cannot maintain a breach of contract claim as to his Section 1080 proceedings. Thus, a breach of contract claim remains viable only as to Section 7 of the Agreement.
To the extent that the parties continue to advance and rebut assertions directed to the validity of the Section 1080 adjudications' grounds or procedures, or the termination of Plaintiff's employment with the District by Resolution of May 2017, such assertions are misplaced and disregarded. Plaintiff cannot now maintain a claim for damages by challenge to an adjudication which he failed to appeal. See this Court's previous rulings; cf. ECF No. 105 at 12.
Section 8 specifically addresses “Discharge” and the process to be provided for a Section 1080 hearing. Section 7, which precedes it, addresses “Investigation” and the process to be provided “prior to the commencement of any formal proceedings against” Baker. Its requirements are expressly not confined to the process prior to a Section 1080 public termination hearing, which Defendants clearly knew how to designate if so intended. As noted, supra, a Loudermill hearing routinely precedes a District Superintendent's Section 1080 termination hearing; i.e., it is an antecedent proceeding. Thus, if the January 11, 2016 meeting was a “formal proceeding” under Section 7 in the form of a Loudermill hearing (as represented by Defendants' initial notice of January 6th and again on their suspending Baker without pay, but apparently disavowed by Defendants' January 8th correspondence), a jury might well find that Defendants were required yet failed to provide the process set forth in Paragraph 7.
Compare ECF No. 105 at 10 (erroneously asserting that Section 7 only required the District to provide documentation “prior to the conclusion of the investigation, and prior to the commencement of formal termination proceedings”) (emphasis of additional modifier added); ECF No. 100 at 13-14 (asserting “the District had no duties pursuant to the investigation provision of the contract” prior to Plaintiff's resignation); id. at 14, 15 (reiterating contract requirement of Section 7 as prior to “formal termination proceedings”).
ECF No. 99 at ¶¶ 49-52 (attesting that Baker was provided notice of the Loudermill hearing and chose not to attend).
If, in the alternative, a jury were to conclude that the January 11, 2016 event was not a Loudermill hearing and/or if Defendants were estopped from maintaining that it was, a jury might well conclude that Defendants failed to provide constitutionally-sufficient pre-deprivation due process prior to converting Plaintiff's suspension to one without pay.
As with his pre-deprivation process claim, Plaintiff provides soundly sufficient evidence to raise material fact questions regarding Defendants' compliance with his contract terms. Should Baker establish a pre-deprivation due process and/or contract violation as to his February 2016 suspension without pay, a reasonable jury could find that he is entitled to damages such as loss of salary for the period from that suspension until his unappealed termination in May 2017. Therefore, it is recommended that summary judgment as to Count II, Breach of Contract, be denied.
To the extent that Baker seeks to maintain a breach of contract claim on other grounds, e.g., on the basis of Defendants' public announcement of an investigation, the Court agrees with Defendants that he has failed to proffer evidence sufficient to raise a question of material fact. See ECF No. 105 at 9-10. Cf. ECF No. 101 at 19 & n. 8 (Plaintiff's assertion that the number of persons present during the December 7, 2015 Board meetings makes it “abundantly clear that many others were informed of the Board's ‘investigation' before it had even formally commenced”).
Although the unappealed February 2017 adjudication and subsequent Board resolution effectively terminated Baker's employment as of May 2017, Defendants' affordance of post-deprivation process could neither retroactively satisfy Baker's Fourteenth Amendment right to pre-deprivation process with regard to his prior suspensions nor cure a breach of Section 7 of his contract.
C. Count III - Sunshine Act Violation
Defendants are asserting at this juncture in the litigation that either (a) one continuous meeting was intended, effectively noticed and held despite the preparation of two separate Minutes and an adjournment between meetings of the Boards compromised of prior and then newly-seated members, or (b) the Reorganization Meeting may not have been properly noticed, but the Regular Meeting held thereafter -during which the motion to suspend Baker with pay was “added to the agenda” and approved by the newly-seated Board - was duly noticed in January 2015 as part of the Board's annual schedule of meetings for the year. Defendants' assertions appear to raise material fact questions of credibility and/or plausibility. Compare ECF No. 99 at ¶ 63 (Defendants' testimony that one notice the previous year serves to notice both a December reorganization meeting followed by an action meeting) with ECF No. 103 at 8 (Plaintiff's assertion that “an invalid attempt at official action was made after the ‘reorganization' meeting [noticed and held under Section 402 of the School Code] was over); id. at 10 (noting that “[a]s the advertisement of future meetings [of the newly-seated Board] had already been made, [the Board] could have” taken official action at the next meeting).
See e.g., ECF No. 99 at ¶¶ 39-40 (attesting that “[t]he Newly Elected Board Members were sworn into office at the December 7, 2015 Reorganization Meeting” and “[a]t the Board Meeting, the Board held an executive session ....”); ECF No. 105 at 14 (asserting that Boards “generally conduct the reorganization meeting at their previously scheduled regular board meeting, followed by the business portion ....”).
ECF No. 105 at 13 (“It is undisputed that the Board advertised the December 7, 2015 Regular Board Meeting when it advertised the schedule for the upcoming Regular Board Meetings one year earlier.”); id. at 14 (“If anything, it was the Reorganization Meeting that was not advertised appropriately ....”).
The observation that an executive session cannot be held “in conjunction with” a previously-noticed meeting that has been adjourned is well-taken. Cf. ECF No. 105 at 13. And as Judge Bissoon has observed, the new Board would not have had time to properly notice an executive session or Regular Meeting of said Board not previously effectively noticed. ECF No. 64. Accordingly, it is recommended that summary judgment on this Count be denied.
Compare ECF No. 105 at 15 (asserting the immateriality of “whether the reorganization portion of the meeting was adjourned or recessed prior to the regular business portion of the meeting”). Cf. ECF No. 100 at 17-21 (five pages on Count III, replete with material fact questions).
D. Dismissal of the Individual Defendants
First, as the Court noted in its Memorandum Order, ECF No. 64 at 4 n. 2: “In a suit against a government official in his official capacity, ‘the real party in interest . . . is the governmental entity and not the named official.'” Smith v. Sch. Dist. of Philadelphia, 112 F.Supp.2d 417, 424-25 (E.D. Pa. 2000) (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)). Accordingly, the Court will treat all claims asserted against Defendants Testa, Hauser, Bogatay, Harper, Scappe, Wolowicz, and Zieger in their official capacities as claims asserted against MASD.”
Second, Plaintiff has not evidenced a triable claim against any Individual Defendant in his/her individual capacity. This Court has previously held that the Individual Defendants are immune from suit for their official acts taken as Board members - including actions related to Plaintiff's suspension - by virtue of Pennsylvania law, 42 Pa. C.S. § 8546(3). ECF No. 64 at 15 (noting that Individual Defendants “qualify as ‘high public officials' and have absolute immunity for intentional torts . . . committed in the course of, and within the scope of, their authority”) (citing Zugarek v. S. Tioga Sch. Dist., 214 F.Supp.2d 468, 479-80 (M.D. Pa. 2002); Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 442 Fed.Appx. 681, 689 (3d Cir. 2011)); id. (“To the extent that Plaintiff's claim against the individual Board members is based on their official actions relating to Plaintiff's suspension, Plaintiff's claim is clearly barred by high official immunity.”). It has further held, as to Individual Defendants' actions as private citizens while Plaintiff served as the MASD superintendent, that they are shielded from liability by the Noerr-Pennington doctrine. Id. at 16.
In addition, the Court concurs in substantial part with Defendants' Brief in Support as to this claim. ECF No. 101 at 22.
As Baker has failed to establish any material fact question from which a jury could find liability on the part of an Individual Defendant under any of the remaining claims, it is recommended that those Defendants be dismissed.
E. District's Counterclaim for Breach of Contract
Baker asserts that he is entitled to summary judgment on the District's Counterclaim for breach of contract pursuant to the indemnity provisions of his contract (Section 10 - Professional Liability). Defendants argue that Section 10 is intended only to indemnify Baker from third-party claims for professional negligence, and that the investigation report and Section 1080 adjudication establish or at a minimum create, a question of fact that he was acting in his own self-interest and outside his employment scope/authority. ECF No. 105 at 20-21; id. at 22 (detailing as actions “outside the scope or authority of [Baker's] position”, e.g., formation of a rugby club, decisions/actions/inactions regarding concussion protocol, hiring of counsel, approval of change orders, and modifying building approval processes).
The Court observes that Section 10 provides that the Board will “hold harmless” Baker “from any and all demands, claims, suits actions and legal proceedings brought against [him] in his individual capacity or in his official capacity as agent and employee of the Board” provided only that “the incident arose while [he] was acting within the scope of his employment” and the liability protection is within state law. In addition, Defendants have failed to proffer evidence from which a reasonable factfinder could conclude that the types of conduct on which they predicate the counterclaim are outside the scope or authority of a school superintendent (whether or not negligently implemented). It is therefore recommended that Plaintiff be granted summary judgment as to this counterclaim.
The Court also concurs in significant part with Plaintiff's analysis of this claim, as reflected in his Brief in Support, ECF No. 101 at 24-26.
V. CONCLUSION
For the reasons set forth above, the Court recommends that:
Plaintiff's Motion for Summary Judgment (ECF No. 97) be granted only as to Defendants' Counterclaim for breach of contract, and that Defendants' Motion for Summary Judgment (ECF No. 98) be granted only as to dismissal of the Individual Defendants. The Court recommends that the remainder of both Motions for Summary Judgment be denied in all other respects. Specifically:
As to Count I, the pre-deprivation due process claim, questions of material fact preclude summary judgment regarding Defendants' failure to provide constitutionally-sufficient process prior to depriving Plaintiff of both the ability to perform his functions as a superintendent in December, 2015 and his superintendent's salary in February, 2016.
As to Count II, the breach of contract claim, questions of material fact preclude summary judgment regarding Defendants' failure to provide the pre-proceeding process required under Section 7 of Plaintiff's employment agreement.
As to Count III, the claim for violation of the 24-hour notice provision of Pennsylvania's Sunshine Act, 65 Pa. Cons. Stat. § 708(b), questions of material fact preclude summary judgment regarding notice of the December 7, 2015 executive session/meeting convened by a newly-seated Board which then suspended Plaintiff with pay.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b) (1)(B) and (C), and Rule 72.D.2 of the Local Rules for Magistrate Judges, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file objections thereto. Any party opposing the objections shall have fourteen (14) days from the date of service of the objections to respond thereto. Failure to file timely objections shall constitute a waiver of any appellate rights.
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.424 U.S. at 335 (citing Goldberg v. Kelly, 397 U.S. 254, 263-271 (1970)).
As noted in the Second R&R, in assessing Bakers' claim for unconstitutional pre-deprivation process, the focus is on the information provided to him at the time of the deprivation in question. ECF No. 70 at 12; id. at 12 n. 5 (rejecting post-hoc justification of process deficiencies by later-obtained information of misconduct). Cf. ECF No. 70 at 18 n. 13 (In December 2015, “the Board entered into an agreement with Wilkes & Associates, LLC to perform a forensic analysis of District accounting, financial and other records to determine if there had been any irregularities . . .”); id. (noting that an audit was also conducted by the Pennsylvania Auditor General and finding and recommendations were reported on February 14, 2017). The Court also notes, in response to Defendants' assertions of their fiscal/administrative burdens, that while it may be most expedient for a new Board with a new agenda to replace a superintendent without regard to due process, the superintendent's protected property interest means the Board is not entirely free to do so. Cf. ECF No. 100 at 9.