Opinion
Civil Action 2:22-350
01-30-2023
DENISE DELTONDO, Plaintiff, v. THE SCHOOL DISTRICT OF PITTSBURGH, et al., Defendants.
REPORT AND RECOMMENDATION
Patricia L. Dodge, United States Magistrate Judge.
I. Recommendation
It is respectfully recommended that Defendants' Motion to Dismiss (ECF No. 26) be granted in part and denied in part.
II. Report
In this civil rights action, Plaintiff Denise Deltondo (“Deltondo”) asserts claims related to her suspension and discharge from employment as a teacher. She names as defendants her former employer, the School District of Pittsburgh (the “District”); the District's Board of Public Education (the “School Board”) and its nine members (Sylvia Wilson, Kevin Carter, Terry Kennedy, Cynthia Falls, William Gallagher, Pamela Harbin, Sala Udin, Veronica Edwards and Devon Taliaferro); Anthony Hamlet, the former Superintendent; Assistant Superintendent Monica Lamar; David May-Stein, the Chief of School Performance; Director of Employee Relations Tiffany Waskowicz; and Anne Reckhouse, Specialist for Workforce Management.
Currently pending is Defendants' motion to dismiss. For the reasons that follow, their motion should be granted in part and denied in part.
Defendants have also filed a motion to strike (ECF No. 24) which is addressed in a separate order.
A. Procedural History
Deltondo commenced this action in February 2022. After Defendants filed a motion to dismiss and a motion to strike, she filed an Amended Complaint (ECF No. 13).
Federal question jurisdiction is based on Deltondo's civil rights claims, which include a claim of retaliation in violation of the First Amendment, a retaliation claim based on political affiliation in violation of the First Amendment, and Fourteenth Amendment claims based on procedural due process and stigma-plus. She also asserts a claim for declaratory relief and seeks a name-clearing hearing.
Defendants filed a motion to dismiss the Amended Complaint (ECF No. 26) on June 10, 2022, which has been fully briefed (ECF Nos. 27, 29, 31).
B. Factual Allegations in Amended Complaint
Deltondo worked for the District for 27 years, first as a math specialist and later as a vice principal. For personal reasons, she became a kindergarten teacher three years ago. She alleges that she had a spotless record. (Am. Compl. ¶ 1.)
Deltondo is “right of center and supported Donald Trump for president.” Her personal Facebook account noted this but did not identify her as an employee of the District. (Am. Compl. ¶ 13.) On August 9, 2020, Deltondo shared a Facebook post on her personal account that was originated by someone else and pictured a newspaper clipping. The original post stated as follows:
What is Privilege? ...
Privilege is wearing $200 sneakers when you've never had a job.
Privilege is wearing $300 Beats headphones while living on public assistance.
Privilege is having a Smartphone with a Data plan which you receive no bill for.
Privilege is living in public subsidized housing where you don't have a water bill, where rising property taxes and rents and energy costs have absolutely no effect on the amount of food you can put on your table.
Privilege is the ability to go march against, and protest against anything that triggers you, without worrying about calling out of work and the consequences that accompany such behavior.
Privilege is having as many children as you want, regardless of your employment status, and be able to send them off to daycare or school you don't pay for.
Privilege is sending your kids to school early for the before-school programs and breakfast, and then keeping them there for the afterschool program...paid for by the people who DO HAVE TO DEAL WITH RISING TAXES AND COSTS!
...you know, us so-called ‘PRIVILEGED' the ones who pay while you TAKE TAKE TAKE!”(Am. Compl. ¶ 15 & Ex. 1.) Deltondo shared this post on a private device on her personal time. It was not done during the school year. Her sole contribution to the post was to comment “awesome read!” (Id. ¶ 14.)
The next day, then Superintendent Anthony Hamlet responded with posts on Facebook and Twitter, stating as follows:
We have been made aware of a social media post shared by a Pittsburgh Public Schools staff member that does not reflect the attitude or beliefs of our District. As leaders actively working against racist ideas and policies to ensure all students can experience a bias-free education, we take our responsibility as educators of our young people seriously and remain committed to eliminating all forms of bigotry and racism in our public schools. As this personnel matter is currently under investigation, no further comment is available.(Am. Compl. ¶ 27 & Ex. 2.) According to Deltondo, local television stations reported on her post and Superintendent Hamlet's response. (Id. ¶ 28.)
On August 11, 2020, Deltondo received a letter from Director of Employee Relations Waskowicz. The letter copied her union representative as well as Chief of School Performance May-Stein, Assistant Superintendent Lamar, Solicitor Ira Weiss and Human Resources Specialist Reckhouse. The letter stated:
It was reported to Employee relations that you posted a message via social media that does not reflect the attitude or beliefs of the District and contravenes the District's mission to actively work against racist ideas and policies to ensure all students can experience a bias-free education.
This correspondence serves as notification that the District is placing you on a paid administrative leave effectively immediately pending our investigation into this matter.(Am. Compl. ¶¶ 38-39 & Ex. 3.) Deltondo alleges that her suspension was not preceded by the required Loudermill hearing and that she did not receive any notice of the charges against her at this time. (Id. ¶¶ 56-58.) Rather, on September 10, 2020, she was informed that a due process hearing was scheduled for September 17, 2020. (Id. ¶ 55.)
In the Amended Complaint and throughout her briefs, Deltondo refers to the August 11, 2020 suspension as being “with intent to terminate.” (Am. Compl. ¶¶ 10, 47, 48, 50, 55, 121(b, i), 141, 162 (b, i), 166, 177, 213, 228(a).) The letter does not include such a reference.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
Deltondo refers to what occurred on September 17, 2020 both as a “sham due process hearing” and as a “meeting.”
At the “sham due process hearing,” the District's representative, defendant Waskowicz, did not attempt to delineate charges against Deltondo or support such charges. Rather, Deltondo claims, she “only repeatedly and viciously accused Plaintiff of being racist and asked Plaintiff to explain her ideological motivations for the post.” (Am. Compl. ¶ 59.) According to Deltondo, she responded that:
when she made the post she had actually had her daughter in mind-as well as the obvious commentary on the welfare state-and that the accusations of racism were preposterous based on her record and how she lived her life(Id. ¶ 60.) Ms. Waskowicz was “obviously angry” that Deltondo “refused to give in to her bullying, aggressive, and hectoring tone.” (Id.)
After this hearing, Deltondo heard nothing from the District for three months. (Am. Compl. ¶ 63.) On December 22, 2020, she received a letter which included a “Statement of Charges.” (Id. ¶ 68.) The letter, which was signed by Sylvia Wilson as president of the School Board, informed her that, pursuant to a resolution authorized by the Board at a public meeting on December 16, 2020, she was suspended from her duties without pay effective December 17, 2020. (Id. ¶ 69 & Ex. 4.) Deltondo asserts that this letter accused her of being a “racist” and then listed a series of charges taken from the Public School Code, many of which had no applicability to her situation. None of these charges had previously been raised at any point, including at the September 17, 2020 hearing. (Id. ¶¶ 72-73.)
The letter does not refer to Deltondo as a “racist” but repeatedly states that she reposted and retransmitted a “racist post.”
The School Board's letter further stated that, “during your September 17, 2020 due process meeting, you exhibited a lack of contrition, a lack of awareness, and a lack of candor about the foreseeable negative impact sharing this racist meme would have on your students, colleagues, and this School District, which not only raises further doubts about your professional judgment, but also your integrity.” The letter also stated that Deltondo's post “has materially impacted [the District's] ability to effectively carry out is responsibilities as a public school district.” (Id. Ex. 4 at 1.) Deltondo alleges that to the extent the letter alludes to “disruption,” it was the first time such an issue was raised and no disruption had occurred. Rather, this was a “pure pretext to cover up the political motivation for Plaintiff's termination.” (Am. Compl. ¶¶ 84-85.)
Deltondo was advised in the December 22, 2020 letter that a hearing was scheduled for January 7, 2021 to determine whether she should be dismissed from her employment and that she had a right to demand a hearing or to “challenge your termination through the grievance procedure provided in the Collective Bargaining Agreement.” (Am. Compl. Ex. 4 at 1, 2.)
This hearing apparently did not occur on this date and was rescheduled for March 18, 2021, although when or why it was rescheduled is not in the record.
On January 14, 2021, Deltondo, through counsel, sent a letter to the School Board and its members objecting to the Statement of Charges. The letter demanded her immediate reinstatement with a clean record, a name-clearing hearing, $1 million in damages, a full public apology and “annual civics lessons for all Pittsburgh public school staff, board, and students to ensure that his never happens again.” (Am. Compl. ¶ 88 & Ex. 5.)
The School Board did not respond to her letter. (Id. ¶ 89.) Instead, Deltondo claims, Defendants “demanded that she appear for a Board Hearing despite the fact that holding any Board Hearing was improper and legally baseless, and despite the fact that no valid prerequisite Loudermill notice was given nor [had a] Loudermill hearing . . . taken place.” (Id. ¶ 90.)
The hearing was scheduled for March 18, 2021. On March 16, 2021, Deltondo's counsel directed a letter to the School Board stating that Defendants' actions were illegal and that Deltondo would not participate in a “sham hearing.” (Am. Compl. ¶ 91.) Counsel's letter further notified Defendants that, effective immediately, Deltondo was “no longer an employee, having been forced and coerced to leave.” (Id. ¶ 92.) It went on to claim that given the nature of the accusations against her and the subversion of her due process rights, there was “no possible way” for her to return to her employment and that her departure was “forced upon her” due to the District's conduct and the “poisonous and caustic environment” created by this conduct. (Id. Ex. 6 at 1.)
Deltondo asserts that she was constructively discharged because she was subjected to a hostile work environment, threatened with disciplinary action that the District knew it could not substantiate and “the process was an illegitimate sham in all respects.” (Am. Compl. ¶¶ 93-100.)
C. Standard of Review
Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the claim is facially plausible,” thus enabling “the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
As noted by the Court of Appeals for the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim, disregarding any allegations that are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to evaluate whether the elements of the claim are sufficiently alleged.
Deltondo's civil rights claims are asserted under 42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). “The first step in any such claim is to identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). See also Baker, 443 U.S. at 140; Graham v. Connor, 490 U.S. 386, 394 (1989).
The Amended Complaint alleges violations of the First Amendment, which, among other things, prohibits retaliation for exercising free speech rights and for political affiliation; and the Fourteenth Amendment, which prohibits a state actor from depriving “any person of life, liberty, or property, without due process of law.” Deltondo also seeks declaratory relief and a name clearing hearing.
D. Discussion
1. First Amendment Claims
The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const. Amend. 1. “First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 n.43 (1982). Deltondo raises claims of retaliation based on free speech and political affiliation. Defendants contend that these claims fail to state a claim upon which relief may be granted.
a. Free Speech Retaliation Claim
The Supreme Court has held that “a State may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech.” Rankin v. McPherson, 483 U.S. 378, 383 (1987). Nevertheless, “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering v. Board of Ed. of Twp. High Sch. Dist. 205, Will County, Ill., 391 U.S. 563, 568 (1968).
In Pickering and subsequent cases, the Supreme Court applied a three-part test to determine if a public employee's speech is protected. As discussed by the Third Circuit: “first, the employee must speak as a citizen, not as an employee second, the speech must involve a matter of public concern ..; and third, the government must lack an ‘adequate justification' for treating the employee differently than the general public based on its needs as an employer under the Pickering balancing test.” Dougherty v. School Dist. of Phila., 772 F.3d 979, 987 (3d Cir. 2014). As noted in Dougherty:
“Under Pickering, we must ‘balance ... the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' 391 U.S. at 568, 88 S.Ct. 1731. The more tightly the First Amendment embraces the employee's speech, the more vigorous a showing of disruption must be made by the employer.Id. at 991. See also Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006).
In this case, Defendants assert that the second and third elements of the test have not been adequately pleaded in the Amended Complaint.
i. Matter of Public Concern
“Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48 (1983). “The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U.S. 378, 387 (1987). See also McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347 (1995) (“the advocacy of a politically controversial viewpoint ... is the essence of First Amendment expression.”); Snyder v. Phelps, 562 U.S. 443, 461 (2011) (the First Amendment serves to “protect even hurtful speech on public issues to ensure that we do not stifle public debate.”); Matal v. Tam, 137 S.Ct. 1744, 1751 (2017) (“Speech may not be banned on the ground that it expresses ideas that offend.”) The question of whether or not speech is protected by the First Amendment constitutes a question of law. See Hill, 455 F.3d at 241.
Deltondo cites a recent Supreme Court case in which the Court mentioned that the plaintiff, a high school student, “uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.” Mahanoy Area Sch. Dist. v. B. L. by & through Levy, 141 S.Ct. 2038, 2047 (2021). As Defendants note, however, this decision focused on a school's ability to regulate student speech, which is governed by a different standard than that utilized in the case of a government employer punishing an employee's speech. Therefore, Mahanoy is not relevant to the analysis of this claim. The same is true with respect to the holding in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
Defendants rely on Fenico v. City of Philadelphia, 2022 WL 226069 (E.D. Pa. Jan. 26, 2022) in support of their motion to dismiss. In Fenico, several police officers brought suit after they were disciplined for posting highly offensive comments on their social media accounts. Although the court did not determine whether the plaintiffs had satisfied their burden to plead matters of public concern, it noted in dicta that it did not appear that these comments concerned public matters.
The comments included an image of a car decal that showed a male figure behind bars, while a mother stood next to five infant babies and a dog; a transphobic meme about a police officer jokingly identifying as a female to search a female suspect; a meme depicting a Black passenger on a bus wearing what appears to be a diaper, with the caption “Thuggies;”encouraging running over protestors by purchasing a “protestor plow;” and a picture of a presumably Muslim man with two young girls, clearly under the age of 12, wearing a burqa, with the caption, “Those are not his daughter-those are his wives-welcome to Islam.” As the court noted, “[t]hus, this Court does not find that the above referenced posts concerned public matters. That said, this Court need not determine or resolve whether Plaintiffs satisfy the public concern test threshold, as this case turns primarily on the City's ability to prove an adequate justification.” Id. at *11 n.20 (internal citations omitted).
It is difficult to equate the patently offensive conduct in Fenico to Deltondo's conduct. Deltondo reposted on Facebook comments made by a third party to which she added “awesome read.” Certainly, the comments, and Deltondo's endorsement of them, can readily be interpreted as controversial and hurtful. At the same time, the post did not contain an explicit reference to a racial group or reference any students in the District. Arguably, at least at this stage, it can be interpreted as addressing an issue of public concern, namely, whether individuals who receive public assistance and related benefits are “privileged.” Further, it is irrelevant whether any individual, or the District as a whole, disagrees with the position taken in the post.
It is anticipated that Deltondo's views on who she believes to be the “privileged” subjects of the post will be explored in discovery.
As noted above, to determine if an employee's speech touches upon an issue of public concern, a court must examine the whole record. While Defendants contend that the original post was directly aimed at low-income families and impliedly aimed at African Americans, which is a significant percentage of the student population in the District, at this stage of the proceedings, the record consists solely of the Amended Complaint, in which Deltondo alleges that she was expressing herself on an important issue of public debate and Defendants retaliated against her because they disapproved of her point of view. Thus, as pleaded, the Court concludes that Deltondo's speech touches on an issue of public concern.
As requested by Defendants, the Court take judicial notice of the facts the District is composed of 64.7% low-income families and 67% racially diverse students.
ii. Pickering Balancing Test
Defendants argue that, even if Deltondo's speech can be considered to relate to a matter of public concern, her interest in free speech is outweighed by the District's interests in promoting the efficiency of its public services and avoiding disruption in the school. Deltondo counters that she was not notified about any hypothetical “disruption” until the Statement of Charges was issued four months later and even then, without any substantiation. Thus, she argues, whether there was any disruption caused by her re-post cannot be determined at this stage because all facts must be construed in her favor.
In Munroe v. Central Bucks School District, 805 F.3d 454 (3d Cir. 2015), the Court of Appeals affirmed the district court's grant of summary judgment against a teacher who was terminated based on a blog in which she criticized students, holding that it likely did not raise issues of public concern but even if it did, the school district's interest in promoting efficiency and avoiding workplace disruption outweighed the teacher's and public's interest in the speech. Specifically, the court noted that witnesses testified that, after a teacher published a series of inflammatory blog posts, some of which essentially identified individual students, the school was “like a ticking time bomb” and “so incendiary” that the administration “thought [they were] going to have a riot or sit-in or worse.” Id. at 462. In the Fenico case, the court found that the Pickering test weighed in favor of the city for multiple reasons, including its conclusion that “racially charged comments receive less First Amendment protection,” police officers are “held to a higher standard than general members of the public,” “government entities may regard some expressive speech or activities as ‘disruptive' that ‘instantiate[s] or perpetuate[s] a widespread public perception of police officers ... as racist,'” because of the city's “countervailing interest in promoting efficiency, mitigating the public's perception of excessive police force, preserving citizens' due process rights and rights to assemble, and discouraging ethnic and religious animus outweighs the Plaintiffs' right to free speech.” Fenico, 2022 WL 226069, at *13-14 .
The posts referred to students using terms such as “dunderhead,” “rat-like,” “sneaking, complaining, jerkoff,” “frightfully dim,” “dresses like a street walker, “liar and cheater,” and “utterly loathsome in all imaginable ways.” Id. at 459-60.
While Defendants may ultimately produce evidence to support that disruption occurred or would have occurred without action by the District, it cannot be said at this juncture that the post created or perpetuated a widespread public perception of its teachers as racist, and therefore, was disruptive. As Deltondo notes, the posting took place over the summer, when school was not in session, and special factors unique to the police, as discussed in Fenico, do not apply here.
Accepting as true the facts in the Amended Complaint, Deltondo expressed herself on an issue of public concern and there was no evidence of “disruption.” Therefore, to the extent the balancing test can be performed, it weighs in favor of Deltondo. As a result, the motion to dismiss should be denied with respect to Count I.
b. Political Affiliation Claim
In Count II, Deltondo alleges that her “private Facebook contained and expressed statements of political affiliation and support for the 2020 Presidential Campaign of President Donald J. Trump.” (Am. Compl. ¶ 216.) She claims that Defendants took adverse action against her both because of this affiliation and because of the “perceived political affiliations that her Facebook post conveyed.” As “Defendants' personnel and culture are overwhelmingly liberal and Democratic,” (Am. Compl. ¶ 218), they allegedly harbored “extreme animus for [her] based on her perceived political affiliations.” (Id. ¶ 220.)
Defendants contend that “the clearly racist undertones in the Offensive Post, expressly or implicitly, are not affiliated with any political party as the plain language of the Offensive Post makes clear - nor would any political party embrace the morally repugnant views expressed therein.” (ECF No. 27 at 22.) They further argue that the Amended Complaint contains insufficient facts about Deltondo's political affiliation and fails to allege that any other school employees were disciplined because of their affiliation with conservative or Republican ideologies.
The Third Circuit has established a three-part test to analyze whether a public employee has a viable political discrimination case. See Goodman v. Pennsylvania Tpk. Comm'n, 293 F.3d 655, 663-64 (3d Cir. 2002). First, a plaintiff must establish that he or she worked “for a public agency that does not require political affiliation.” Id. at 663. Next, a plaintiff must prove that he or she “maintained an affiliation with a political party.” Id. at 663-64. Finally, the plaintiff must show that his or her “political affiliation was a substantial or motivating factor in the adverse employment decision.” Id. at 664 (citation omitted).
Here, the parties agree that working for the District does not require political affiliation. However, regarding Deltondo's affiliation with a political party, while she alleges that she supported the presidential campaign of Donald Trump, the lengthy Amended Complaint fails to allege any facts that state or even suggest that Defendants had knowledge of any such affiliation. Indeed, Deltondo specifically pleads that her support for the presidential campaign of Donald Trump was stated in her private Facebook account. She fails to allege that any of the Defendants had access to her private account, saw the statements about President Trump in her account or otherwise knew about these statements or who she supports. In the absence of any such facts, Deltondo's claim that all of the Defendants are “overwhelmingly liberal and Democratic,” even if taken as true, fail to support her implication that they knew of her support for President Trump or were aware of her political affiliation. Deltondo does not assert that Defendants' knowledge of her re-post about privilege placed Defendants on notice that she supported President Trump.
In fact, Deltondo expressly alleges at numerous places throughout the Amended Complaint that Defendants took the complained-of actions as a result of her endorsement of the post about privilege. See, e.g., Am. Compl. ¶¶ 3, 9, 10, 22, 26, 27, 28, 29, 30, 38, 59, 65, 128(a), 148, 165 (“Plaintiff was expressly told by Defendants that the adverse actions by Defendants against her were because of the content of her political Facebook post...”) and 169(a).
Therefore, because the Amended Complaint fails to state a claim that Deltondo's affiliation with and support of President Trump was a substantial or motivating factor in the adverse employment actions against her, Count II should be dismissed with prejudice.
2. Fourteenth Amendment Claims
In Count III, Deltondo alleges a procedural due process claim and a stigma-plus claim under the Fourteenth Amendment. Defendants move to dismiss this count based on their contention that she cannot state a Fourteenth Amendment claim under either of these theories.
a. Procedural Due Process
The Fourteenth Amendment provides that states shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law..” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
Deltondo indicates that she was a tenured teacher under the Pennsylvania Public School Code and the Collective Bargaining Agreement (“CBA”) between the District and the teachers' union. Disciplinary issues related to professional employees of a school district are governed by the Pennsylvania School Code and the CBA. See 24 P.S. §§ 11-1122 (termination), 11-1124 (suspension); CBA Art. 28 (“Teachers may be subject to disciplinary action only for just cause.”). Thus, under Pennsylvania law, she had some property interest in her employment as a schoolteacher.
Defendants contend that she cannot rely on Article 28 of the CBA because she did not attach it to her Complaint or allege that she availed herself of the CBA's grievance procedure. (ECF No. 31 at 3 n.5.) They cite no authority in support of this argument and the case on which they rely concerns the issue of raising a new theory in an opposition brief. This is inapposite, as Deltondo cites Article 28 in the Amended Complaint. (Am. Compl. ¶¶ 47, 234.)
As explained below, to say that she had a property interest in her employment such that she could not be terminated or suspended without pay unless she was provided with certain procedural protections does not mean that she had the same level of interest in not being suspended temporarily with pay.
“Once it is determined that due process applies, the question remains what process is due.” Goss v. Lopez, 419 U.S. 565, 577 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The determination of what process is “due” is “not to be found in statutes ... [but] is a question of federal constitutional law.” McDaniels v. Flick, 59 F.3d 446, 458 (3d Cir. 1995) (quoting Loudermill, 470 U.S. at 541). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted). “[T]he timing and content of a notice ... will depend on appropriate accommodation of the competing interests involved.” Gniotek v. City of Phila., 808 F.2d 241, 244 (3d Cir. 1986) (quoting Goss, 419 U.S. 579).
In Loudermill, the Supreme Court noted that an individual must be given the opportunity for a hearing before he or she is deprived a significant property interest, including prior to the discharge of an employee who has a protected property interest in his employment. 470 U.S. at 542. “The tenured 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.
The Supreme Court has also emphasized, however, that due process is “flexible and calls for such procedural protections as the particular situation demands.” Morrissey, 408 U.S. at 481. The pre-termination hearing serves only as an initial check against mistaken decisions. Thus, in Gilbert v. Homar, 520 U.S. 924, 929 (1997), the Court held that a state university employee who was suspended without pay following his arrest on drug charges was not entitled to notice and a hearing prior to his suspension.
Defendants contend, and the Court agrees, that Deltondo's suspension with pay on August 11, 2020 did not require prior notice and a Loudermill hearing. Numerous courts have so held, describing the property interest in not being suspended with pay as “minimal.” See Jerrytone v. Musto, 167 Fed.Appx. 295, 301 (3d Cir. 2006); Edwards v. California Univ. of Pa., 156 F.3d 488, 492 (3d Cir. 1998); Suniaga v. Downingtown Area Sch. Dist., 504 F.Supp.3d 430, 448 (E.D. Pa. 2020); Damiano v. Scranton Sch. Dist., 135 F.Supp.3d 255, 271 (M.D. Pa. 2015); Cipriani v. Lycoming County Hous. Auth., 177 F.Supp.2d 303, 319 (M.D. Pa. 2001). See also Cormier v. Crestwood School District, 2020 WL 6263027 (M.D. Pa. Oct. 23, 2020) (in granting motion to dismiss, the court held that: (1) suspension with pay did not entitle plaintiff to due process protections; (2) the school district actually provided plaintiff with a pre-deprivation hearing and an explanation of its evidence against her several days later; and (3) plaintiff had ample opportunity to respond prior to being terminated).
Moreover, such protections are not required under the Public School Code. See Kohn v. School Dist. of City of Harrisburg, 817 F.Supp.2d 487, 506 (M.D. Pa. 2011) (“Section 11-1124 ... contains no language directly protecting an employee from suspension.”) In addition, Deltondo has not identified any provision of the CBA stating that a suspension with pay constitutes a “disciplinary action” under the CBA.
In any event, Deltondo nonetheless was given notice that she would receive a hearing, which took place on September 17, 2020 while she was on paid suspension. Deltondo argues that this hearing was a “sham” that relieved her of the obligation to participate in further proceedings. However, the Court of Appeals has rejected this argument. See Skrutski v. Marut, 288 Fed.Appx. 803, 809 (3d Cir. 2008) (“A public employer may discharge its due process obligations by providing for facially adequate post-deprivation grievance procedures, even if the initial determination resulting in the deprivation was biased.”); McDaniels, 59 F.3d at 460 (“a discharged employee cannot claim in federal court that he has been denied due process because his pretermination hearing was held by a biased individual where he has not taken advantage of his right to a post-deprivation hearing before an impartial tribunal that can rectify any possible wrong committed by the initial decisionmaker.”); Belas v. Juniata County Sch. Dist., 2005 WL 2100666, at *7 (M.D. Pa. Aug. 26, 2005) (“Plaintiff is not entitled to an impartial decisionmaker during the pre-deprivation stage. Plaintiff was provided an opportunity to redress any improper bias on the part of [the superintendent] during her hearing before the publicly elected members of the School Board, as well as on de novo review. . .”) (citations omitted), aff'd, 202 Fed.Appx. 585 (3d Cir. 2006).
Deltondo's citation of two cases that held that even a suspension with pay required prior notice and an opportunity to be heard is misplaced. See Smith v. Borough of Dunmore, 633 F.3d 176 (3d Cir. 2011) (firefighter given an eight-day paid suspension was entitled to notice and a hearing); Dee v. Borough of Dunmore, 549 F.3d 225 (3d Cir. 2008) (same). As Defendants point out, these cases involved firefighters who were suspended based upon the borough's erroneous belief that they had failed to complete requisite fire academy training and were based on 53 P.S. § 46190, which provides that firefighters may not be suspended without cause. See also Schmidt v. Creedon, 639 F.3d 587, 589 (3d Cir. 2011) (police officer who was a classified employee under Pennsylvania's Civil Service Act could not be terminated or suspended without cause under then-current state law). Deltondo cites no comparable provision of Pennsylvania law or the CBA.
Deltondo also argues that, prior to being suspended without pay on December 22, 2020, she was entitled to pre-deprivation notice and an opportunity to be heard. See Schmidt, 639 F.3d at 597 (“absent extraordinary circumstances, due process requires notice and a hearing prior to suspension without pay, even where union grievance procedures, after the fact, fully compensate erroneously suspended employees.”). See also Gniotek v. City of Philadelphia, 808 F.2d 241 (3d Cir. 1986); Michael v. Quaker Valley Sch. Dist., 2017 WL 639374, at *10 (W.D. Pa. Feb. 16, 2017). The pre-deprivation hearing need not be elaborate, but it is necessary, even if extensive post-deprivation remedies are afforded. Loudermill, 470 U.S. at 545.
Deltondo repeatedly cites Gniotek for the proposition that a suspension “with intent to dismiss” counts as a de facto dismissal. However, in Gniotek, police officers received a written “notice of suspension with intent to dismiss,” which did not occur in this case (and, as Defendants note, the court ultimately held that the notice and opportunity to respond were sufficient under Loudermill). Neither Gniotek nor any other Third Circuit case supports the argument that because a plaintiff “thinks” the suspension will lead to her dismissal, it is transformed into a de facto dismissal.
However, prior to being suspended without pay, Deltondo received a notice and a hearing was held on September 17, 2020. While she contends that she was not given a list of charges until December 22, 2020, “[l]ack of advance notice, however, does not constitute a per se violation of due process.” Gniotek, 808 F.2d at 244. See Copeland v. Philadelphia Police Dep't, 840 F.2d 1139, 1142-46 (3d Cir. 1988) (due process was met when a police officer was told that he had tested positive for illegal drug use, allowed to respond and was told he would be suspended with intent to dismiss, all in the course of a single interview); Luciani v. City of Philadelphia, 643 Fed.Appx. 109, 113 (3d Cir. 2016) (distinguishing Schmidt on the ground that the plaintiff received no pre-deprivation proceeding.)
Notably, despite Deltondo's contention that Waskowicz “did not even attempt to delineate charges or support such charges,” her description of the “sham due process hearing” demonstrates that she was made aware that the District concluded that her post “contravenes the District's mission to actively work against racist ideas and policies to ensure all students can experience a bias-free education” and that she was given the opportunity to explain her position, which she did.
Deltondo quotes a Third Circuit decision in which the Court stated that, “if the Constitution requires pre-termination procedures, the most thorough and fair post-termination hearing cannot undo the failure to provide such procedures.” Alvin v. Suzuki, 227 F.3d 107, 120 (3d Cir. 2000). In that case, however, the Court of Appeals addressed whether the plaintiff was entitled to any pre-deprivation process. Ultimately, the court held that none was required because “there was simply no factual dispute that a pre-deprivation notice or hearing could have addressed.” Id. at 121. In this case, by contrast, various forms of pre-termination process were actually provided.
Deltondo argues that the delay of four months between the time she was suspended with pay and the time she received the Statement of Charges itself constituted a due process violation. However, the case she cites actually held that a sixteen-month, twenty-day period between a hearing before the Secretary of Education and the date the Secretary's decision was issued did not constitute an inordinate and unconscionable delay, especially without evidence that the plaintiff suffered prejudice as a result. Kinniry v. Abington Sch. Dist., 673 A.2d 429, 433 (Pa. Commw. 1996).
Finally, Deltondo claims that she was constructively discharged without cause, which would violate both Pennsylvania law and her due process rights, as she had a property interest in her position. See Wagner v. Tuscarora Sch. Dist., 2006 WL 167731, at *6 (M.D. Pa. Jan. 20, 2006), aff'd, 225 Fed.Appx. 68 (3d Cir. 2007). Notably, however, Deltondo resigned on March 16, 2021. This presents an insurmountable barrier to her ability to maintain a due process claim. “Employee resignations and retirements are presumed to be voluntary ... until the employee presents evidence to establish that the resignation or retirement was involuntarily procured.” Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir.1999) (citations omitted). Furthermore, “[i]f an employee [resigns] of his own free will, even though prompted to do so by some action of his employer, he is deemed to have relinquished his property interest in his continued employment for the government, and cannot contend that he was deprived of his due process rights.” Id. There are only two circumstances in which an employee's resignation will be deemed involuntary for due process purposes: “(1) when the employer forces the resignation or retirement by coercion or duress, or (2) when the employer obtained the resignation or retirement by deceiving or misrepresenting a material fact to the employee.” Id. at 228 (citations omitted).
Deltondo does not contend that she was deceived or that material facts were misrepresented to her.
The Court of Appeals has identified a non-exhaustive list of factors to determine if an employee was subjected to coercion or duress:
(1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice [s]he was given; (3) whether the employee was given a reasonable time in which to choose; (4) whether the employee was permitted to select the effective date of the resignation; and (5) whether the employee had the advice of counsel.Judge v. Shikellamy Sch. Dist., 905 F.3d 122, 125 (3d Cir. 2018) (citation omitted). The issue is evaluated under an objective standard: “the ultimate issue is not what [the employee] herself felt or believed, but whether a reasonable person under the circumstances would have felt compelled to resign.” Id. (citation omitted).
However, these factors apply when an employer “requests resignation,” not when the employer may be preparing to terminate the employee but the employee preempts the process by resigning. See Rosefeld v. University of Pittsburgh, 2020 WL 4584356, at *6 (W.D. Pa. Aug. 10, 2020) (when university told police officer it intended to fire him and he resigned instead, he could not maintain a due process claim because he “remain[ed] free to assert his procedural process rights and ‘stand pat and fight.'”); Psota v. New Hanover Township, 2021 WL 6136930, at *14 (E.D. Pa. Dec. 29, 2021) (“Plaintiff ultimately waived his chance to present exculpatory evidence in the second forum by choice by his resignation.”) See also Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995); Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 167, 174 (4th Cir. 1988). Deltondo was not asked to resign; rather, the District scheduled a hearing which might have resulted in her termination, but she removed herself from the proceedings by resigning.
Deltondo cites the Judge case for its observation that, when the reason for the threatened removal cannot be substantiated, the choice between resignation and the initiation of the termination proceedings is “purely coercive.” 95 F.3d at 126. But the plaintiff in that case was given the choice to resign; Deltondo was not.
Deltondo cites cases decided under Title VII of the Civil Rights Act of 1964 and Pennsylvania state unemployment compensation law holding that an employer may create a hostile work environment so “unpleasant” that a reasonable person would be compelled to resign, thereby establishing a constructive discharge. Schafer v. Bd. of Pub. Educ. of the Sch. Dist. of Pittsburgh, Pa., 903 F.2d 243, 248-49 (3d Cir. 1990); Goss v. Exxon Off. Sys. Co., 747 F.2d 885, 886 (3d Cir. 1984); Arufo v. Com., Unemployment Comp. Bd. of Rev., 391 A.2d 43 (Pa. Commw. 1978). But the Supreme Court has held that “A hostile-environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.” Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004). Moreover, as explained above, there are only two circumstances that support a constructive discharge claim for purposes of procedural due process, which differs from the situation under Title VII. Compare Judge, 905 F.3d at 125 (coercion and misrepresentation) with Colwell v. Rite Aid Corp., 602 F.3d 495, 503 (3d Cir. 2010) (considering whether the employer (1) “threatened the employee with discharge” or “urged or suggested that she resign or retire,” (2) “demoted her,” (3) “reduced her pay or benefits,” (4) “involuntarily transferred her to a less desirable position,” (5) altered her “job responsibilities,” or (6) gave “unsatisfactory job evaluations.”).
Deltondo alleges that she was subjected to “intolerable working conditions” (Am. Compl. ¶¶ 99, 198), but does not explain how this could have occurred while she was on suspension.
Thus, Deltondo cannot state a claim arising out of her “termination” for two reasons. First, she was not terminated, but chose to voluntarily resign. Even accepting her belief that she “knew” that she was about to be fired, she had the choice to “stand pat and fight.” Second, she was given prior notice and a statement of charges and there is no basis to conclude that she would have not been able to present her side of the story (again) at the hearing on March 18, 2021, but she chose to resign prior to that hearing.
Thus, the facts in the Amended Complaint fail to support a due process claim and this claim should be dismissed with prejudice.
b. Stigma-Plus Claim
Defendants contend that Deltondo has failed to adequately allege the “plus” element of her Fourteenth Amendment “stigma-plus” claim.
Federal courts have long held that “reputation alone is not an interest protected by the Due Process Clause.” Clark v. Township of Falls, 890 F.2d 611, 619 (3d Cir. 1993) (citing Paul v. Davis, 424 U.S. 693, 701-02 (1976)). “Rather, to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest.” Hill, 455 F.3d at 236. In Hill, the Court of Appeals for the Third Circuit explained that:
In the public employment context, the “stigma plus” test has been applied to mean that when an employer “creates and disseminates a false and defamatory impression about the employee in connection with his termination,” it deprives the employee of a protected liberty interest. Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). The creation and dissemination of a false and defamatory impression is the “stigma,” and the termination is the “plus.” When such a deprivation occurs, the employee is entitled to a name clearing hearing.Id. (footnote omitted).
Deltondo contends that Defendants made publicly false statements about her by calling her a “racist,” thus establishing the stigma. She further claims that these actions deprived her of a liberty interest in earning a living because she was constructively discharged from her position as a teacher, thereby establishing the “plus.”
As noted above, although Deltondo asserts that she was called a “racist,” the documents attached to the Amended Complaint do not say this, but rather refer to her posting as “racist.” Nevertheless, she also alleges that Waskowicz called her a “racist” at the September 17, 2020 proceeding, an allegation that must be accepted as true at this stage of the proceedings. Based on this allegation, she satisfies the “stigma” element of a stigma-plus claim.
The Court of Appeals has found a sufficient “plus” in various circumstances, including a claim related to a right created by statutory law; deprivation of the right to pursue an occupation; injury to reputation while exercising free speech; and constructive discharge and the resulting damage to the ability to earn a living. Good v. City of Sunbury, 352 Fed.Appx. 688, 691-92 (3d Cir. 2009). As the Good court went on to note, however:
In contrast, we have found the plaintiff's would-be “plus” too ethereal-and therefore insufficient to support a reputation-based due process claim-when the claimed harm was the “possible loss of future employment opportunities,” Clark, 890 F.2d at 620; the “temporary removal from [customary] duties,” Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 492 (3d Cir. 1998); the “den[ial of] a promotion and transfer[ ] ... from the position of manager ... to a [lower] supervisory position,” Robb v. City of Philadelphia, 733 F.2d 286, 293 (3d Cir. 1984); and even outright “financial harm,” Sturm v. Clark, 835 F.2d 1009, 1013 (3d Cir. 1987).Id. at 692.
Deltondo cites Kartseva v. Department of State, 37 F.3d 1524, 1527 (D.C. Cir. 1994). In that case, the court held that the employer's disqualification of the plaintiff actively precluded her from meeting the eligibility requirements for future government work as a Russian translator, an objective factor. Even assuming the Third Circuit would agree with this conclusion, it is distinguishable from the facts alleged in this case, in which Deltondo merely claims that the District's actions have “ruined her career.” She does not allege that she applied for and has been unsuccessful in finding other positions since she resigned.
Deltondo's allegation that she faced the possible loss of future employment opportunties is comparable to those situations in which the Third Circuit found similar facts to be insufficent to meet the plus element. In addition, as explained above, although Deltondo contends that she was constructively discharged, she fails to plead facts that would substantiate a constructive discharge claim, namely, that she was subjected to coercion or duress. Therefore, she has failed to state a claim for stigma-plus.
For these reasons, she has failed to state a Fourteenth Amendment claim for procedural due process or stigma-plus. Therefore, the motion to dismiss should be granted with prejudice with respect to Count III.
3. Name-Clearing Hearing
In Count IV, Deltondo asserts a claim for declaratory relief in which she requests a name-clearing hearing. Because she has failed to state a procedural due process claim or a stigma-plus claim upon which relief could be granted, she is not entitled to a name-clearing hearing. In addition, because she resigned rather than attend a due process hearing, she cannot demand another name-clearing hearing. See Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (“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.”) Thus, with respect to Count IV, the motion to dismiss should be granted.
4. Claims Against the School Board Members
Deltondo is suing all the individual defendants in both their official and individual capacities. Defendants argue that the official capacity claims against the school board members must be dismissed as redundant of the claims against the District and the School Board. Further, they contend that they cannot be sued in their individual capacity because they cannot act alone, but only as a group.
The claims against the individual School Board members in their official capacities are redundant of the claims against the Board and the District and therefore should be dismissed. See Kentucky v. Graham, 473 U.S. 159, 165-166 (1985) (Section 1983 suits against individuals in their official capacity “represent only another way of pleading an action against an entity of which an officer is an agent.”); Hill, 455 F.3d at 233 n.9. Moreover, Deltondo indicates that the individual defendants are being sued in their official capacity “for the equitable relief requested in Count IV for a name-clearing hearing.” (Am. Compl. ¶ 121.) As previously discussed, Deltondo cannot pursue this relief.
With respect to claims against the School Board members in their individual capacities, the Supreme Court has held that, “to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.” Melo v. Hafter, 502 U.S. 21, 25 (1991) (citation omitted). However, individual School Board members cannot terminate a teacher's employment and can only do so by voting as a group. See 24 P.S. § 5-508 (“The affirmative vote of a majority of all the members of the board of school directors in every school district, duly recorded, showing how each member voted, shall be required in order to . [d]ismiss a teacher after a hearing.”) A single member of a governing body cannot be held liable for decisions that are made by the body as a whole. See Kuzel v. Krause, 658 A.2d 856, 861 (Pa. Commw. 1995); Johnston v. North Braddock Borough, 2020 WL 6730889, at *9 (W.D. Pa. Sept. 4, 2020), report and recommendation adopted as modified, 2020 WL 5810008 (W.D. Pa. Sept. 30, 2020).
As a result, all of the School Board members should be dismissed as defendants.
5. Other Individual Defendants
The Court of Appeals has held that “to be liable under § 1983, each individual defendant “must have personal involvement in the alleged wrongdoing.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207. These allegations must be made with appropriate particularity. Id. Further, “a civil rights complaint is adequate where it states the conduct, time, place, and persons responsible.” Evancho, 423 F.3d at 353. Moreover, in a civil rights case, “liability cannot be predicated solely on the operation of respondeat superior.” Rode, 845 F.2d at 1207.
Although Deltondo has named May-Stein, Lamar and Reckhouse as defendants, the Amended Complaint fails to state a claim against them. Deltondo identifies them as recipients of the August 11, 2020 letter that suspended her with pay (Am Compl. ¶ 39). Notably, she does not assert that they directed the letter to be sent or were otherwise involved in its preparation. While Deltondo goes on to baldly allege that these defendants “directly supervised, ratified, and acquiesced in [her] discipline, termination and demotion” (Am. Compl. ¶¶ 109-11), she fails to allege a single fact that might support these conclusory statements. Thus, because she has failed to plead any personal involvement by May-Stein, Lamar and Reckhouse with appropriate particularity, Deltondo has failed to state a claim against them.
As it relates to Waskowicz, Deltondo alleges that she wrote the August 11 letter, was involved in the September 17, 2020 hearing and called her a “racist” in connection with her suspension. Hamlet is also alleged to have responded to Deltondo's post with his own post on social media and “was involved with and supervised the writing” of the letter suspending her.These allegations are sufficient at this stage to assert the personal involvement of Waskowicz and Hamlet with respect to Deltondo's First Amendment claim.
Defendants point out that Hamlet's social media post did not identify Deltondo by name (ECF No. 27 at 8), but she has alleged that, following this post, “local television stations began to report on Ms. Deltondo's post and Defendants' actions.” (Am. Compl. ¶ 28.) This allegation must be accepted as true at this stage of the proceedings.
6. Qualified Immunity
The individual defendants alternatively assert that they are entitled to qualified immunity. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is an objective decision to be decided by the court as a matter of law. Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004). The burden of pleading a qualified immunity defense rests with the defendant, not the plaintiff. Thomas v. Independence Township, 463 F.3d 285, 293 (3d Cir. 2006).
“A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘the contours of a right are sufficiently clear' that every ‘reasonable official would have understood that what he is doing violates that right.'” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The ultimate question is whether the state of the law when the offense occurred gave a defendant “fair warning” that his or her acts were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
In conducting this analysis, the Court should look first to applicable Supreme Court precedent. “Even if none exists, it may be possible that a ‘robust consensus of cases of persuasive authority' in the Court[s] of Appeals could clearly establish a right for purposes of qualified immunity.” Mammaro v. New Jersey Div. Child Protection & Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015)).
Defining the right at issue is critical to this inquiry. The court must frame the right “in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “The dispositive question is whether the violative nature of particular conduct is clearly established.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation omitted). But this does not mean that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful. The Supreme Court has explained that “[a]lthough earlier cases involving fundamentally similar facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Hope, 536 U.S. at 741. Indeed, the Court has made clear that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id.
Deltondo argues that it was clearly established when these events occurred that she could not be fired or retaliated against for exercising her First Amendment right to free speech. Defendants contend that “school officials are well within their rights to discipline public school employees for speech that disrupts school operations.” (ECF No. 27 at 10.) However, as explained above, there is no basis at this juncture for concluding that Deltondo's speech “disrupted school operations.” Certainly, such a determination cannot be made at this stage of the proceedings. Therefore, it cannot be concluded that Hamlet and Waskowicz are entitled to qualified immunity with respect to the First Amendment claim.
Defendants rely on the Munroe case, in which the court decided - on a motion for summary judgment and a fully developed record - that the plaintiff's speech was not protected under the First Amendment.
7. Punitive Damages
Defendants contend that Deltondo cannot seek punitive damages against any remaining individuals in their individual capacities because there are insufficient facts regarding what they did. See Ruiz v. Philadelphia Hous. Auth., 1998 WL 159038, at *10 (E.D. Pa. Mar. 17, 1998) (to obtain punitive damages, “the defendant's conduct must be, at a minimum, reckless or callous.”) The Court concludes that it is premature to resolve this issue at this stage of the proceedings and therefore, Defendants' motion to dismiss the punitive damages demand should be denied.
They also argue that she cannot seek punitive damages against the municipality. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). However, Deltondo has clarified that she is not seeking punitive damages against the municipal defendants. (ECF No. 29 at 19.)
E. Conclusion
Therefore, it is respectfully recommended that Defendants' motion to dismiss should be granted in part and denied in part, as follows:
1. Counts II, III and IV should be dismissed with prejudice.
2. All claims against the individual School Board members and Defendants May-Stein, Lamar and Reckhouse should be dismissed with prejudice.
3. The motion to dismiss should be denied with respect to Count I.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by February 13, 2023 Any party opposing the objections shall file a response by February 27, 2023. Failure to file timely objections will waive the right of appeal.