Cormier v. Crestwood School District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

TRACY CORMIER, :

Plaintiff : CIVIL ACTION NO. 3:19-1671

v. : (JUDGE MANNION)

CRESTWOOD SCHOOL DISTRICT :

and JOSEPH GORHAM,

:

Defendants

MEMORANDUM

Before the court is a motion to dismiss for failure to state a claim filed by

the defendants Crestwood School District Company (the “School District”) and

Joseph Gorham (“Gorham”), (collectively, “Defendants”). (Doc. 8). Also before

the court is the plaintiff Tracy Cormier’s (“Cormier”) motion to strike the

documents attached to Defendants’ motion to dismiss. (Doc. 11).

For the reasons set forth below, the motion to dismiss will be GRANTED,

and the motion to strike will be DENIED.

I. BACKGROUND

This employment discrimination suit arises from an unfortunate series of

events that took place after an incident involving Cormier’s son, Grant, a then-

seventeen-year-old high school student and one of his fellow high school

students. On October 26, 2017, Grant, who working at a Dunkin Donuts, had

an altercation with his female coworker, A.T., during which he said “really,

really nasty stuff” to A.T. (Doc. 10, at 2). When A.T.’s grandmother and

custodial parent, Marybeth Innamorati, picked A.T. up, A.T. was crying and

explained what happened. Innamorati, knowing where Grant lived, drove to

his house; however, they ended up following Grant to his house, since Grant

left at the same time in his own vehicle. Upon arrival, Innamorati got out of her

car and approached Grant, who was sitting in his car in the driveway. The two

spoke and Innamorati left with A.T. The encounter lasted under a minute and

Cormier was not home at the time.

Grant, being upset over the incident and over being followed in his

vehicle, told Cormier about it when she got home. Cormier, with her husband,

reviewed video footage of the encounter on her home security camera. Being

a secretary at the School District, Cormier had access to Skyward, a software

program containing “a variety of student information, grades, and report cards,

health records, immunization forms, and student demographic information.”

(Doc. 10, at 3). At approximately 10:00 p.m., Cormier accessed Skyward from

her home computer and, after scrolling through at least twenty-five pages of

student information pages with last names ending in “T”, she found A.T.’s

page, which contained her address and Innamorati’s name and phone

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number. In total, Cormier spent approximately forty-two minutes on Skyward.

Afterward, Cormier phoned Innamorati and expressed her displeasure with

Innamorati for trespassing on her property and confronting her son.

Innamorati then contacted the School District and reported that Cormier

had improperly obtained her unlisted phone number. The School District

conducted an investigation and found that Cormier had used her work access

to Skyward after hours to obtain Innamorati’s name and contact information.

Cormier claimed she obtained Innamorati’s phone number from a white pages

phone app and did not recall accessing Skyward on the evening of October

26.

After a Loudermill hearing on November 1, 2017, Gorham, the School

District’s Superintendent made the decision to suspend Cormier with pay.1 On

November 6, 2017, Cormier’s husband was hand-delivered a “Statement of

Charges,” that stated the following with respect to the charges against

Cormier:

1. On October 26, 2017, you accessed the [S]kyward

system after hours.

1 Loudermill hearing refers to Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532 (1985), wherein the Supreme Court held that, prior to termination,

an employee must be afforded notice and an opportunity for a hearing

appropriate to the nature of the case.

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2. You accessed private information in the [S]kyward

system that is not available publicly.

3. The Skyway system logged your actions and a record

was created of your activity.

4. You contacted the student’s guardian late in the evening

on October 26, 2017[,] by telephone and proceeded to

yell profanities at the guardian for personal issues

between your son and the student.

(Doc. 10-3, at 2-3).

On November 16, 2017, Cormier’s employment was terminated.

Cormier grieved the termination, which the School District denied. After

grievance arbitration, Cormier was reinstated, her termination was reduced to

a forty-five-day suspension without pay, and she was otherwise made whole.

Cormier filed her two-Count Complaint on September 27, 2019. (Doc.

1). In Counts 1 and 2, she brings First Amendment retaliation claims for

violation of her free speech and free association rights, respectively. Cormier

essentially argues that her termination was in fact the result of her participation

in protected union activity instead of for the School District’s asserted reasons.

In Count 3, she asserts a Section 1983 claim for violation of her due process

right with respect to both her November 1, 2017 suspension and her

November 16, 2017 termination.

On October 21, 2019, Defendants filed the instant motion to dismiss,

seeking to dismiss Count 3 of the complaint, (Doc. 8), as well as a brief in

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support, (Doc. 10). Cormier filed a motion to strike Defendants’ exhibits, (Doc.

10), as well as her own brief in support, (Doc. 12). Cormier also filed a brief in

opposition to the motion to dismiss. (Doc. 13). Defendants then filed a brief in

opposition to the motion to strike, (Doc. 15), and a reply brief to the motion to

dismiss, (Doc. 16). The motions are now ripe for this court’s review.

II. STANDARD

a. Motion to Strike

Rule 12(f) of the Federal Rules of Civil Procedure governs motions to

strike pleadings and provides, in part, “The court may strike from a pleading

an insufficient defense or any redundant, immaterial, impertinent, or

scandalous matter.” Fed.R.Civ.P.12(f). While rulings on motions to strike rest

in the sound discretion of the court, Von Bulow v. Von Bulow, 657 F.Supp.

1134, 1146 (S.D.N.Y. 1987), that discretion is guided by certain basic

principles. Because striking a pleading is viewed as a drastic remedy, such

motions are “generally disfavored.” Kaiser Aluminum & Chemical Sales, Inc.

v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982). In practice,

courts should exercise this discretion and strike pleadings only when those

pleadings are both “redundant, immaterial, impertinent, or scandalous” and

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prejudicial to the opposing party. Ruby v. Davis Foods, Inc., 269 F.3d 818, 820

(7th Cir. 2001).

b. Motion to Dismiss

Defendants’ motion to dismiss is brought pursuant to Federal Rule of

Civil Procedure 12(b)(6), which provides for the dismissal of a complaint, in

whole or in part, if the plaintiff fails to state a claim upon which relief can be

granted. In deciding Defendants’ motion, the court must read the complaint in

the light most favorable to the plaintiff and all well-pleaded, material

allegations in the complaint must be taken as true. Estelle v. Gamble, 429 U.S.

97 (1976). However, the court need not accept inferences drawn by the

plaintiff if they are unsupported by the facts as set forth in the complaint. See

California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143

(3d Cir. 2004). The court also need not accept legal conclusions set forth as

factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007).

In deciding Defendants’ motion, the court should generally consider only

the allegations contained in the complaint, the exhibits attached to the

complaint, matters of public record, and “undisputably authentic” documents

which the plaintiff has identified as the basis of his claim. See Pension Benefit

Guarantee Corp. v. White Consolidated Industries, Inc., 998 F.2d 1192, 1196

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(3d Cir. 1993). Moreover, “documents whose contents are alleged in the

complaint and whose authenticity no party questions, but which are not

physically attached to the pleading, may be considered.” Pryor v. Nat'l

Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the court

may not rely on other parts of the record in determining a motion to dismiss.

See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.

1994). In Pension Benefit Guaranty Corporation v. White Consolidated

Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), the Third Circuit held that

“a court may consider an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based

on the document.” Otherwise, the court held, “a plaintiff with a legally deficient

claim could survive a motion to dismiss simply by failing to attach a dispositive

document on which it relied.” Id.

Generally, the court should grant leave to amend a complaint before

dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002); Shane v. Fauver, 213

F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is justified

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only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v.

Parker, 363 F.3d 229, 236 (3d Cir. 2004).

III. DISCUSSION

a. Motion to Strike

Because the court’s disposition on the motion to strike is dispositive as

to the motion to dismiss, the court will address Cormier’s motion to strike first.

In Count 3, Cormier alleges she was deprived of due process for both her

November 1, 2017 suspension, and her November 16, 2017 termination.

Defendants argue that Cormier was provided due process, citing several

documents they have attached to their motion to dismiss: (1) the March 31,

2019 Arbitration Opinion and Award, (Doc. 10-1); (2) a “Loudermill Outline,”

dated November 1, 2017, (Doc. 10-2); and (3) the “Statement of Charges”

against Cormier, dated November 6, 2017, (Doc. 10-3).

Cormier filed a motion to strike the three aforementioned documents

attached to Defendants’ motion to dismiss. Cormier provides little argument,

however, simply stating that “none of the documents . . . are relied upon in

[Cormier]’s Complaint nor are they matters of public record,” and therefore

“the Court should not consider the[m].” (Doc. 12).

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Defendants argue several points in response. As to the Arbitration

Opinion and Award, they argue that because it is undisputedly authentic, as

well as a public record, it may be considered on a motion to dismiss.

Defendants note that Cormier does not dispute the Opinion and Award’s

authenticity, nor does she cite any legal authority indicating that arbitration

opinion and awards are not public records.

As to the Loudermill Outline, Defendants argue that it, too, is

undisputedly authentic and integral to Cormier’s due process claim regarding

her suspension, since she argues she “was not provided with any of the

alleged evidence against her” at the Loudermill hearing. (Doc. 1, at 9).

Defendants observe that Cormier does not indicate whether her suspension

was with or without pay which is particularly significant since a suspension

with pay does not trigger due process protections. See Edwards v. Cal. Univ.

of Pa., 156 F.3d 488, 492 (3d Cir. 1998); Jerrytone v. Musto, 167 Fed.App’x

295, 301 (3d Cir. 2006).

Finally, as to the Statement of Charges, Defendants again argue that

Cormier does not dispute its authenticity and that it is integral to her claims,

because she, herself, references the contents of the document, albeit

inaccurately, in her Complaint. (Doc. 1, at 6, 9) (stating Cormier’s husband

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was hand-delivered a “notice of termination” that informed her she would be

terminated at the conclusion of a November 16, 2017 School Board meeting).

Defendants additionally note that Cormier indicates she intends to rely on the

Statement of Charges in future pleadings, stating it “cannot be used on a

motion to dismiss, but will prove on summary judgment that [Cormier] was not

given the evidence against her before she was terminated.” (Doc. 13, at 6)

(emphasis added).

The court agrees with Defendants that the attached documents can be

relied upon for purposes of the present motion to dismiss. “In deciding a Rule

12(b)(6) motion, a court must consider only the complaint, exhibits attached to

the complaint, matters of public record, as well as undisputedly authentic

documents if the complainant's claims are based upon these documents.”

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (emphasis added). Such

documents include administrative decisions. El-Hewie v. Bergen Cty., 348

Fed.App’x 790, 794 (3d Cir. 2009). A plaintiff “cannot prevent a court from

looking at the texts of the documents on which [his] claims are based by failing

to attach or explicitly cite them.” In re Burlington Coat Factories Securities

Litigation, 114 F.3d 1410, 1426 (3d Cir. 1997).

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Cormier, in a conclusory fashion and without citation to legal authority,

argues that the attached documents are “[c]learly” not public records. (Doc.

18, at 2). Cormier ignores, however, that the Third Circuit has held that

administrative decisions as well as other undisputedly authentic documents

on which a plaintiff’s claims are based, can be relied upon in considering a

motion to dismiss. See Mayer, 605 F.3d at 230; El-Hewie, 348 Fed.App’x at

794. Although Cormier also argues that the Loudermill Outline is “disputed”

because “it does not contain the evidence against Plaintiff that was presented

at the arbitration hearing,” (Doc. 18, at 2), this argument pertains to whether

Cormier was given due process—not authenticity. Significantly, Cormier does

not argue that any of the attached documents are inauthentic. Furthermore,

two of the Counts in her Complaint focus squarely on the Loudermill hearing

and Cormier has provided no coherent explanation as to why this court should

ignore the only official documentation memorializing it. Accordingly, the court

will DENY the motion to strike the exhibits to Defendants’ brief. (Doc. 11).

b. Motion to Dismiss

In their motion to dismiss, as noted, Defendants seek to have Cormier’s

Count 3 Section 1983 due process claim dismissed with prejudice because

they contend that Cormier was, in fact, afforded constitutionally adequate pre-

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deprivation procedural due process. Defendants argue that Loudermill only

requires that an employee be given notice of the charges, an explanation of

the evidence, and an opportunity to present his side of the story. Here,

Defendants argue that Cormier was provided with this.

Initially, they note that her November 1, 2017 suspension—in light of the

fact that it was paid—cannot qualify as a deprivation of property sufficient to

trigger due process protections. Cipriani v. Lycoming Cty. Hous. Auth., 177

F.Supp.2d 303, 319 (M.D.Pa. 2001). Further, whether or not the court

considers the Loudermill Outline, which memorializes the fact that Cormier’s

suspension was with pay, Defendants contend that Cormier’s claim fails as a

matter of law because she has not alleged that her suspension was without

pay and courts “need not assume that a plaintiff can prove facts that the

plaintiff has not alleged.” (Doc. 16, at 3) (quoting Goenaga v. MacDonald, No.

3:14-cv-2496, 2015 WL 7428618, at *2 (M.D.Pa. Nov. 23, 2015)).

Next, Defendants note that, with respect to her due process claim

regarding her November 16, 2017 termination, Cormier challenges only the

“explanation of the evidence” requirement of Loudermill. Defendants argue

that the explanation of the relevant supporting evidence in the Statement of

Charges put Cormier in a position to make a meaningful response.

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Defendants emphasize that, in the Third Circuit, the due process

required in the context of employment requires only an “explanation of

evidence” that enables the employee to make a meaningful response. (Doc.

16, at 7) (citing Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d 74,

80 (3d Cir. 1989) (holding that public employees are entitled to a meaningful

pre-termination hearing that provides “a sufficient explanation of the

employer’s evidence to permit a meaningful response”)). Thus, given that

Cormier was provided with a constitutionally adequate explanation of the

relevant evidence supporting the charge that she improperly accessed the

Skyward system, Defendants argue that Cormier’s due process claim

regarding her termination must be dismissed with prejudice as amendment

would be futile.

Cormier’s response to the motion to dismiss leaves much to be desired.

Instead of addressing the specifics of Defendants’ arguments, she asserts in

broad, conclusory terms that she was “never provided any evidence that was

against her.” (Doc. 13, at 4). From what the court can discern, however,

without explicitly acknowledging that it occurred, Cormier appears to argue

that the Loudermill hearing was deficient because she was not provided with

an explanation of the evidence against her and she did not have an opportunity

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to rebut it. The Loudermill Outline from the hearing belies Cormier’s assertion,

however. The Outline specifically indicated that she was presented with the

charges against her:

On October 26th, 2017, (it is alleged) that you

accessed the Crestwood student information system

(known as Skyward) after hours and obtained student

and guardian contact information. This information

was then utilized to contact and engage the guardian

of a student that allegedly had contact with your son

outside of school.

This action (if found to be true) may be in violation of

the District’s Computer Usage Policy and Policy #216

as it Relates to Student Records.

(Doc. 10-2, at 2). Additionally, it indicates that Cormier was provided with

opportunities to respond. (Doc. 10-2, at 2-3) (asking Cormier, “What is your

side of the story?”, and “Anything else?”). Cormier did indeed take the

opportunity to respond to the allegations, stating, inter alia, that “[a] person

followed my son home (I have it on video),” that the person “accosted my son,”

that she “used the white pages to find the name and number of the individual

who entered my property” and that she “called the police.” (Doc. 10-2, at 2).

Public employees who can be discharged only for cause have a

constitutionally protected property interest in continued employment and are

entitled to procedural due process before having their employment

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terminated. Gilbert v. Homar, 520 U.S. 924, 928-29 (1997); Perry v. Sinder

mann, 408 U.S. 593, 602-03 (1972)). If an employee is to lose his employment,

that process includes an informal, pre-termination hearing, to be followed by

a more comprehensive post-termination hearing. Loudermill, 470 U.S. 532,

545-46 (1985). The pre-termination hearing serves only as an initial check

against mistaken decisions, and “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.” Gilbert, 520 U.S. at 929. “[T]he

purpose of a pre-termination hearing is to determine ‘whether there are

reasonable grounds to believe that the charges against the employee are true

and support the proposed action.’” Gilbert, 520 U.S. at 933

(quoting Loudermill, 470 U.S. at 545-46). Also, “‘in those situations where the

employer perceives a significant hazard in keeping the employee on the job,

it can avoid the problem by suspending with pay.’” Gilbert, 520 U.S. at 929

(quoting Loudermill, 470 U.S. at 544-45). Significantly, a governmental

employee who is suspended with pay is not entitled to a pre-suspension

hearing providing the employee with notice and an opportunity to be

heard. Gilbert, 520 U.S. at 930–31; see also Edwards, 156 F.3d at 492 (3d

Cir. 1998); Jerrytone, 167 Fed.App’x at 301.

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Here, Defendants have presented evidence that Cormier’s suspension

was with pay. Cormier does not contest that it was with pay. In fact, perhaps

unsurprisingly, Cormier fails to address this point entirely. Therefore, the court

agrees with Defendants that because her suspension was with pay, Count III

as it relates to the November 1, 2017 suspension fails as a matter of law and

will be DISMISSED WITH PREJUDICE.

Nevertheless, despite not being strictly required to afford Cormier a pre-

deprivation hearing, the School District did so via the November 1, 2017

Loudermill hearing. Additionally, the School District again provided Cormier

with an explanation of its evidence against her in the November 6, 2017

Statement of Charges. Although Cormier suggests that she was not given

notice or an opportunity to be heard at the Loudermill hearing, where, as here,

the “facts that are alleged to be true in a complaint are contradicted by facts

that can be judicially noticed, the contradicted facts in the complaint are not to

be deemed as true upon consideration of the motion to dismiss.” Smith v.

Litton Loan Servicing, LP, No. 04–2846, 2005 WL 289927 (E.D.Pa. Feb. 4,

2005) (citing 5A Wright & Miller, Federal Practice and Procedure Civil 2d

§1364). In light of dialog set forth in the Loudermill Outline, which Cormier

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does not contest, Cormier cannot seriously maintain that she was not informed

of the charges against her or provided an opportunity to explain.

Cormier additionally makes the legally unsupported argument that,

because the November 6, 2017 Statement of Charges was hand delivered to

her husband, she necessarily could not have received due process. Cormier

does not elaborate on this point, nor does she provide any legal authority for

it. Notably, Cormier does not argue that she did not actually receive the

Statement of Charges. In any event though, the School District was only

required to provide Cormier with an informal, pre-termination hearing as an

“initial check against mistaken decisions,” which it did with the Loudermill

hearing, at which she was provided “notice of the charges, an explanation of

the employer’s evidence, and an opportunity for [her] to tell [her] side of the

story.” Gilbert, 520 U.S. at 929. Thus, to the extent that Cormier was already

provided pre-deprivation due process at Loudermill hearing, the Statement of

Charges, for purposes of providing pre-deprivation due process, was

extraneous and Cormier’s arguments about how the School District delivered

it to her are irrelevant.

Cormier’s final argument is that, because Defendants presented

evidence at the arbitration hearing that Cormier accessed Skyward for forty-

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two minutes and because she was not provided this information at the

Loudermill hearing, Cormier’s due process rights were violated and the motion

to dismiss should be denied. This argument does not save Count 3 from

dismissal, however.

The School District’s purported failure to provide Cormier with the

specific number of minutes that Cormier was on Skyward cannot be

considered a failure to provide her with notice of the evidence against her

where she was presented with the allegation at the Loudermill hearing that

she “accessed the Crestwood student information system (known as

[S]kyward) after hours and obtained student and guardian contact

information.” (Doc. 10-2, at 2). A Loudermill hearing “need not be elaborate”

and need only provide “[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. “In general, something less than a

full evidentiary hearing is sufficient prior to adverse administrative action.” Id.

(internal quotation marks omitted). Thus, contrary to Cormier’s suggestion,

there is no requirement that employees be given every detail of all the

evidence against them at Loudermill hearings, and the School District’s failure

to notify her of the forty-two minutes it determined she was on Skyward cannot

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be considered a failure to provide Cormier with notice. To hold otherwise

would be to require precisely the type of “full evidentiary hearing” that

Loudermill instructed was unnecessary.

Accordingly, because Defendants have shown that Cormier was

provided the necessary procedural due process prior to her November 1, 2017

suspension and her November 16, 2016 termination, her Count 3 procedural

due process claim fails as a matter of law and is DISMISSED. Further,

because amendment would be futile, Count 3’s dismissal is WITH

PREJUDICE. See Alston, 363 F.3d 229, 236 (3d Cir. 2004) (“Dismissal

without leave to amend is justified only on the grounds of bad faith, undue

delay, prejudice, or futility.”)

IV. CONCLUSION

For the reasons set forth above, Cormier’s motion to strike, (Doc. 11), is

DENIED, the Defendants’ motion to dismiss, (Doc. 8), is GRANTED, and

Count 3 of the Complaint is DISMISSED WITH PREJUDICE.

An appropriate order will follow.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: October 23, 2020

19-1671-01

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