# Minnich v. Northeastern School District

> District Court, M.D. Pennsylvania · January 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10409719

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409719

## How later opinions describe it (automated extraction)

- noting that by “[w]orking in an office secured by a locked door at a desk containing psychological profiles and other confidential student records, [school guidance counselor] had a reasonable expectation that papers in his desk would remain safe from prying eyes.”
- holding that employee had a reasonable expectation of privacy in his desk and file cabinets when he did not share the space with any other employees

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KATHY MINNICH, : Civil No. 1:20-CV-00378
:
Plaintiff, :
:
v. :
:
NORTHEASTERN SCHOOL :
DISTRICT, STACEY SIDLE, :
Individual, BRIAN GELLER, :
Individual, :
:
Defendants. : Judge Sylvia H. Rambo

M E M O R A N D U M
Before the court is a motion to dismiss filed by the defendants in this matter,
Northeastern School District, Stacey Sidle, and Brian Geller (collectively
“Defendants”). (Doc. 10.) For the reasons set forth below, the motion will be granted
in part and denied in part.
BACKGROUND
The following facts are gleaned from the Plaintiff's Amended Complaint and
are taken as true for the purpose of resolving Defendants' motion to dismiss. Plaintiff
commenced her employment with the Northeastern School District (the “NESD”),
located in York County, Pennsylvania, on or about August 1999. (Doc. 9, at ¶¶ 3,
8). Plaintiff served as a School Social Worker from approximately August 1999 to
January 2020, and currently holds the position of Long-Term Substitute School
Psychologist. (Id., at ¶¶8-9). Stacey Sidle (“Dr. Sidle”), who became the
Superintendent of the School District in December 2016, serves as Plaintiff’s

supervisor and Brian Geller (“Mr. Gellar”) holds the position of Director of
Operations of the School District. (Id., at ¶¶ 5-6).
On February 23, 2016, Plaintiff requested workplace accommodations under

the Family Medical Leave Act (FMLA) in order to attend therapy sessions. (Id., at ¶
10). Plaintiff alleges that a traumatic personal incident involving her estranged
spouse (the “Incident”), who served as the NESD District Superintendent at the time,
caused her to seek treatment for anxiety and panic attacks. (Id., at ¶¶ 10, 12). Plaintiff

subsequently requested FMLA leave to take her children to therapy appointments in
connection with their Post-Traumatic Stress Disorder that also stemmed from the
Incident. (Id., at ¶ 13). The NESD School Board denied both FMLA leave requests

on March 7, 2016. (Id., at ¶¶10, 13).
On April 4, 2016 and April 5, 2016, Plaintiff participated in an investigative
hearing held by the Pennsylvania Department of Education (“PDE”). (Id., at ¶ 15).
The PDE investigation concerned the Plaintiff’s estranged husband and the Incident.

(Id., at ¶¶ 15-16). On April 8, 2016, Plaintiff received a Formal Letter of Reprimand
(the “Letter”) that allegedly contained inaccurate information. (Id., at ¶ 16). Plaintiff
alleges that the Letter, which was her first disciplinary action in her seventeen years
of working for the NESD, was in retaliation for her involvement in the PDE hearing
and her FMLA leave requests. (Id.)

Plaintiff subsequently requested that the Letter be removed from her
personnel file in lieu of a grievance. (Id., at ¶ 18). A meeting then took place between
Plaintiff, Dr. Sidle, and the Pennsylvania State Education Association’s Uniserve

Representative, Matthew Fargen (“Mr. Fargen”), during which time Dr. Sidle
allegedly admitted to receiving “pressure from above” to hold Plaintiff accountable
for her actions at the PDE hearing. (Id., at ¶ 19). On June 22, 2016, Plaintiff was
informed that her office was being relocated in order to accommodate a floater nurse.

(Id., at ¶ 20). Plaintiff claims that the floater nurse never used the office, however,
and that her estranged husband had previously threatened to move the Plaintiff’s
office in an effort to undermine her professional status. (Id.)

Further, in August of 2016, Plaintiff alleges that a school secretary caught Dr.
Sidle and others in her office searching through her personal belongings and files.
(Id., at ¶ 21). Plaintiff filed a dual charge with the Equal Opportunity Employment
Commission (“EEOC”) and the Pennsylvania Human Relations Commission

(“PHRC”) on December 23, 2016. (Id., at ¶ 27). During the investigation into the
charge, Plaintiff provided a written statement to the EEOC in which she indicated
that her estranged husband, while still serving as the NESD Superintendent,

ultimately prompted Dr. Sidle’s purported retaliation. (Id., at ¶ 30). The EEOC
issued a right to sue letter dated April 18, 2017, to which Plaintiff took no action,
and the PHRC eventually issued a right to sue letter dated July 9, 2019. (Id., at ¶¶

36, 38).
Plaintiff also met with Dr. Sidle on March 7, 2018 regarding the hostile work
environment that she allegedly endured. (Id., at ¶ 23). During this meeting, Plaintiff

also raised issues pertaining to her health and family. (Id.) The NESD then held a
meeting on October 10, 2018 where Plaintiff again raised her continuing concerns
of bullying and harassment. (Id., at ¶ 24). After this meeting, the NESD hired an
attorney to investigate the issues raised by Plaintiff. (Id., at ¶ 25).

On or about November 7, 2018, Plaintiff discovered that Mr. Gellar had
shared her private cell phone records, office phone records, and personal calendars
with third parties without her consent on or about April 4, 2016. (Id., at ¶¶ 26, 68).

Although the information had been requested under the Pennsylvania Right to Know
Law, Plaintiff claims that Mr. Gellar admitted to wrongdoing regarding the release
of her private information on or about December 7, 2019. (Id., at ¶ 26).
Additionally, in June 2019, Plaintiff applied for a position as permanent

School Psychologist with the NESD. (Id., at ¶¶ 9, 37). According to Plaintiff, the
position was considered a promotion. (Id., at ¶ 37). However, despite her twenty-
year tenure with the NESD, Plaintiff neither received an interview for the position

nor any form of communication that the job had been filled. (Id., at ¶¶ 39-40). The
Plaintiff's Union subsequently filed a successful grievance against the NESD on
June 16, 2019. U/d., at 9] 9, 40). As a result of the grievance, Plaintiff was awarded
her present position of Long-Term Substitute School Psychologist. (/d., at 9).
II. PROCEDURAL HISTORY
Plaintiff initiated the instant action on March 4, 2020 by way of filing the
original complaint against Defendants. (Doc. 1). Defendants filed a motion to
dismiss on May 8, 2020 and a supporting brief on May 22, 2020. (Docs. 5 and 8).
Plaintiff then filed an Amended Complaint against Defendants on May 31, 2020,
which stands as the operative pleading in this matter. (Doc. 9).
The Amended Complaint alleges violations of Plaintiff's Fourteenth
Amendment Due Process Rights and Fourth Amendment Right to be free from
unreasonable searches (Counts | and 2). Ud., at J 71-94). The Amended Complaint
also asserts hostile work environment and retaliation claims under Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Counts 3 and 4), and the
Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. §§ 951, et seg. (Counts 5 and
6). Ud., at □□□ 95-127). Defendants filed a motion to dismiss the Amended Complaint
on June 15, 2020, followed by a supporting brief on June 26, 2020. (Docs. 10, 13).
Plaintiff then filed a brief in opposition on June 29, 2020. (Doc. 14). Defendants
filed a reply brief on July 13, 2020, (Doc. 15), bringing this case to its present
procedural posture.

Il. LEGAL STANDARDS
1. Motion to Dismiss, Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege
“factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). In reviewing a
12(b)(6) motion, the court must “accept as true all well-pled factual allegations in
the complaint and all reasonable inferences that can be drawn from them.” Taksir v.
Vanguard Grp., 903 F.3d 95, 96-97 (3d Cir. 2018) (citation omitted). The facts
alleged must be “construed in the light most favorable to the plaintiff.” In re Ins.
Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) (internal quotations,
brackets, and ellipses omitted). But “[t]he court is not required to draw unreasonable
inferences” from the facts.5B Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure § 1357 (3d ed. 2004).
The Third Circuit has detailed a three-step process to determine whether a
complaint meets the pleading standard. Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012).
First, the court outlines the elements a plaintiff must plead to state a claim for
relief. Id. at 365. Second, the court must “peel away those allegations that are no

more than conclusions and thus not entitled to the assumption of truth.” /d. Third,
the court “look[s] for well-pled factual allegations, assume[s] their veracity, and then

‘determine[s] whether they plausibly give rise to an entitlement to
relief.’” Id. (quoting Iqbal, 556 U.S. at 679). The last step is “a context-specific task

that requires the reviewing court to draw on its judicial experience and common
sense.” Id.
2. Civil Rights Statute, 42 U.S.C. § 1983

Section 1983 is the vehicle by which private citizens may seek redress for
violations of federal constitutional rights committed by state officials. See 42 U.S.C.
§ 1983. The statute states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
Id.

“Section 1983 is not a source of substantive rights,” but is merely a means
through which “to vindicate violations of federal law committed by state actors.”
See Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting
Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)). To state a cause of action
under Section 1983, a plaintiff must allege that: (1) the conduct complained of was
committed by persons acting under color of state law; and (2) the conduct violated a
right, privilege, or immunity secured by the Constitution or laws of the United
States. See Harvey v. Plains Twp. Police Dep't, 421 F.3d 185, 189 (3d Cir. 2005)
(quoting West v. Atkins, 487 U.S. 42, 48 (1988)).
IV. DISCUSSION
1. Claims Brought Under 42 U.S.C. § 1983
a. Fourteenth Amendment Due Process Claim (Count 1)
In Count 1 of the Amended Complaint, Plaintiff brings a due process claim
against the NESD and Dr. Sidle. As noted by Defendants, Plaintiff appears to base
this claim on the following three grounds: (1) failing to notify Plaintiff about the

requests for, and the disclosure of, her personal information under the Pennsylvania
Right to Know Law (“RTKL”), 65 Pa. Const. Stat. §§ 67.101 et seq.,; (2) depriving
Plaintiff of her liberty interest in her reputation, which allegedly limited her ability
to be interviewed for jobs with upward mobility; and (3) violating Plaintiffs
substantive due process rights. Defendants argue that each of these arguments fail to
state a viable Fourteenth Amendment claim against the NESD and Dr. Sidle. For the

reasons that follow, the Court agrees with Defendants.
i. Pennsylvania’s Right to Know Law
In the Amended Complaint, Plaintiff alleges that the NESD and Dr. Sidle
failed to notify her about “critical requests for information” that were made under
the Pennsylvania RTKL. (Doc. 9, at § 75). According to Plaintiff, the requested
records—which included her private cellphone records, office phone records, and

personal calendars—were exempt from access by a requester under Section 708(b)
of the RTKL. (Id., at ¶¶ 26, 68, 75). By failing to notify Plaintiff about these requests,

or otherwise inform her that the exempted records had been provided to the
requestor, Plaintiff claims that the NESD and Dr. Sidle risked her personal security
and placed her and her family under the threat of physical harm. (Id., at ¶¶ 75-76).

Plaintiff additionally claims that Defendants “knowingly and deliberately violated
the [RTKL] in order to cause harm to the Plaintiff and in violation of her right to due
process.” (Id., at ¶ 67).
Although the United States Constitution does not explicitly reference a “right

to privacy,” the United States Supreme Court has recognized that two distinct
privacy interests exist under the Fourteenth Amendment: (1) “the individual interest
in avoiding the disclosure of personal matters”; and (2) “the interest in independence

in making certain kinds of important decisions.” Doe v. Luzerne Cty., 660 F.3d 169,
175 (3d Cir. 2011) (citing C.N. v. Ridgewood Bd. Of Educ., 430 F.3d 159, 178 (3d
Cir. 2005); Malleus v. George, 641 F.3d 560, 564 (3d Cir. 2011), as amended (June
6, 2011)). The first privacy right, which Plaintiff appears to invoke here, generally

extends to “highly personal matters” that represent “the most intimate aspects of
human affairs” as well as information that involves “deeply rooted notions of
fundamental personal interests derived from the Constitution.” Nunez v. Pachman,

578 F.3d 228, 232 (3d Cir. 2009) (internal citations and quotations omitted). For
example, the Third Circuit has found that the following types of information are
entitled to constitutional privacy protection: “a private employee's medical

information that was sought by the government; medical, financial and behavioral
information relevant to a police investigator; a public employee's prescription
record; a minor student's pregnancy status; sexual orientation; and an inmate's HIV-

positive status. Luzerne Cty., 660 F.3d at 176 (citing Malleus v. George, 641 F.3d
560, 564 (3d Cir. 2011) as amended (June 6, 2011) (collecting cases)).
Even when taken as true, the crux of the Plaintiff’s argument is that the NESD
and Dr. Sidle violated the Pennsylvania RTKL by releasing exempted, “personal

identifiable information” without providing notice to her. However, as articulated
by the Third Circuit, “Section 1983 does not provide a cause of action for violations
of state statutes.” Benn v. Universal Health Sys., Inc., 371 F.3d 165, 174 (3d Cir.

2004) (citing Brown v. Grabowski, 922 F.2d 1097, 1113 (3d Cir. 1990); Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978)); see also Breslin v. Portillo, No. CV
12-0360, 2018 WL 4002858, at *4 (M.D. Pa. Aug. 22, 2018) (dismissing claim
brought under Section 1983 “[b]ecause alleged violations of Pennsylvania’s Right-

To-Know law do not give rise to a constitutional claim. . . .”). Further, insofar as
Plaintiff claims that the purported state law violations triggered her substantive due
process right to privacy,1 she fails to allege in a non-conclusory fashion how the
information at issue was either of constitutional dimension2 or threatened one of her

fundamental rights3 upon being disclosed pursuant to the RTKL. Accordingly, as the
Amended Complaint currently stands, the Court cannot reasonably infer that the
alleged dissemination of Plaintiff’s phone records and personal calendars violated

the due process clause of the Fourteenth Amendment.
ii. Liberty Interest in Reputation
Count 1 of the Amended Complaint further alleges that the NESD and Dr.
Sidle undermined the Plaintiff’s professional reputation within the school district

and community by permitting a continuous effort to harass and bully her. (Doc. 9, at

1 The Plaintiff’s brief in opposition also claims that the Defendants’ failure to notify her about the
RTKL requests violated her right to privacy, “and one in which she was not afforded the right to
confront.” (Doc.14, at 15). Generally, “procedural due process requires notice and an opportunity
to be heard before any governmental deprivation of a property interest.” Eash v. Riggins
Trucking Inc., 757 F.2d 557, 570 (3d Cir. 1985) (citing Boddie v. Connecticut, 401 U.S. 371,
379 (1971)). Such protected property interests are not created by the United States Constitution,
however, but rather “are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law. . . .” Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564, 577 (1972). Here, it is apparent that the Plaintiff’s argument
conflates the privacy right in avoiding the disclosure of personal matters (which implicates
substantive due process concerns) with whether Pennsylvania law creates a protected property
interest in the confidentiality of the information at issue. Therefore, insofar as Plaintiff attempts
to cast her privacy claim as a deprivation of procedural due process, the Court finds her position
to be without merit.
2 The Court notes that the alleged nature of the cell phone records at issue is also not entirely clear.
3 According to the Third Circuit, “[w]hether a property interest is protected for purposes
of substantive due process is a question that is not answered by reference to state law [but rather]
. . . must be [considered a] ‘fundamental’ [right] under the United States Constitution.” Hill v.
Borough of Kutztown, 455 F.3d 225, 235 n.12 (3d Cir. 2006) (emphasis in original) (citing
Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 139-40 (3d Cir. 2000)).
¶ 77). Plaintiff contends that Defendants achieved this end by failing to protect her
interests, failing to notify her about the RTKL requests, and subjecting her to

unlawful discipline. (Id., at ¶¶ 78-80). Plaintiff further asserts that this conduct
resulted in her being denied the opportunity to interview for positions with upward
mobility. (Id., at ¶ 9; Doc. 14, at 15-16). Defendants argue that the Amended

Complaint fails to adequately allege that Defendants deprived her of a liberty interest
in her reputation without due process, or otherwise infringed on her right to pursue
a career as a school psychologist. (Doc. 13, at 4-5).
As noted by the Third Circuit, “reputation alone is not an interest protected

by the Due Process Clause.” Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1993)
(citing Paul v. Davis, 424 U.S. 693, 701–12 (1976)) (emphasis added). Instead, “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 v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006)
(emphasis in original) (citing Davis, 424 U.S. at 701). This is known as the “stigma-
plus” test, where, in the public employment context, an employer deprives an

employee of a protected liberty interest by “creat[ing] and disseminat[ing] a false
and defamatory impression about the employee in connection with his termination.”
Id. Specifically, “[t]he creation and dissemination of a false and defamatory
impression is the ‘stigma,’ and the termination [or constructive discharge] is the
‘plus.’” Id. at 236-38.

At issue is thus whether the Amended Complaint has sufficiently alleged a
stigma to the Plaintiff’s reputation in addition to the required “plus.” “To satisfy the
‘stigma’ prong of the test, the employee must show: (1) publication of (2) a

substantially and materially false statement that (3) infringed upon the ‘reputation,
honor, or integrity’ of the employee.” Brown v. Montgomery Cty., 470 F. App’x 87,
91 (3d Cir. 2012) (quoting Ersek v. Springfield, 102 F.3d 79, 83-84 (3d Cir. 1996)).
Additionally, the “plus” prong is generally met by being terminated from

employment, constructively discharged, or deprived of a constitutionally protected
property interest. See Graham v. City of Philadelphia, 402 F.3d 139, 142 n.2 (3d Cir.
2005); Dee v. Borough of Dunmore, 549 F.3d 225, 234 (3d Cir. 2008).

“Although deprivation of the ‘liberty to pursue a calling or occupation’ or to ‘earn a
living’ have been deemed sufficient to satisfy the plus prong, a generalized ‘possible
loss of future employment opportunities’ and ‘financial harm’ are insufficient to
support a reputation-based due process claim.” Kahan v. Slippery Rock Univ. of

Pennsylvania, 50 F. Supp. 3d 667, 711 (W.D. Pa. 2014), aff'd, 664 F. App'x 170 (3d
Cir. 2016) (citations omitted).
Here, the Amended Complaint alleges that Plaintiff received a Formal Letter

of Reprimand (the “Letter”) in an effort to retaliate against her for cooperating with
the PDE and its investigation into her estranged husband. (Doc. 9, at ¶¶ 15-16). The
Letter allegedly listed specific days where Plaintiff had either not badged in correctly

or inaccurately been marked for attendance, which differed from other employees
who had not been subjected to the same scrutiny. (Id., at ¶ 17). Notably, “Third
Circuit precedent establishes that the presence of stigmatizing information in

a personnel file, alone, is not sufficient publication to establish a deprivation of
liberty interest in reputation under the Fourteenth Amendment.” Kocher v. Larksville
Borough, 926 F. Supp. 2d 579, 603–04 (M.D. Pa. 2013), aff'd, 548 F. App'x 813 (3d
Cir. 2013) (citing Copeland v. Phila. Police Dep't, 840 F.2d 1139 (3d Cir. 1988)

(abrogated on other grounds by Foster v. Chesapeake Ins. Co., 933 F.2d 1207 (3d
Cir. 1991)). But see Perri v. Aytch, 724 F.2d 362, 367 (3d Cir. 1983) (“Perri alleges
that the false accusation made in connection with her termination impugns her good

character and reputation, is part of her personnel file, and can reasonably be
expected to be communicated to prospective employers and prevent her from
obtaining alternative employment. If true, these conditions would require the
employer to provide procedural safeguards.”). Accordingly, even when taken as true,

the Court cannot reasonably infer that the mere issuance of the Letter containing
inaccurate information satisfies the stigma prong.
Assuming arguendo that the stigma prong was met, however, the Court is also

not convinced that Plaintiff has adequately pleaded the requisite “plus” prong.
Significantly, Plaintiff does not allege that she was fired from her position or
constructively discharged—indeed, she currently holds the position of Long-Term

Substitute Psychologist. Rather, Plaintiff asserts that she “was not properly provided
with an opportunity to interview for position(s) which she was qualified for and for
which an interview was appropriate[.]” (Doc. 9, at 18, ¶ 79). Citing to McKnight v.

Southeastern Penn. Trans. Auth., 583 F.2d 1229 (3d Cir. 1978) in support, Plaintiff
further argues that failing to be interviewed for positions with upward mobility
implicates a protected property right. (Doc. 14, at 16).
In McKnight, the defendant employer discharged plaintiff for allegedly being

intoxicated while at work. 583 F.2d at 1231. Plaintiff claimed that these accusations,
which defendants communicated to others as the basis of plaintiff’s dismissal, were
sufficiently stigmatizing to result in the loss of his reputation and later employment

opportunities. Id. at 1235. Given these claims, the McKnight court held that plaintiff
had “set forth adequate allegations of harm to his reputation constituting a
deprivation of ‘liberty.’” Id. at 1238. The court remanded the issue, however, of
whether plaintiff had sufficiently alleged a deprivation of a protected property

interest. Id. at 1242.
Therefore, contrary to the Plaintiff’s contention, McKnight does not stand for
the proposition that a protected property interest exists in jobs with upward career

advancement. Indeed, “[i]t is the liberty to pursue a particular calling or occupation
and not the right to a specific job that is protected by the Fourteenth Amendment.”
Piecknick v. Com. of Pa., 36 F.3d 1250, 1262 (3d Cir. 1994). “As far as the liberty

interest in the right to practice one's chosen profession is concerned, ‘[o]ne simply
cannot have been denied his liberty to pursue a particular occupation when he
admittedly continues to hold a job . . . in that very occupation.’” DOE v. Rogers, 139

F. Supp. 3d 120, 164 (D.D.C. 2015) (quoting Abcarian v. McDonald, 617 F.3d 931,
942 (7th Cir. 2010)); see also Gittens-Bridges v. City of New York, No. 19 CIV. 272
(ER), 2020 WL 3100213, at *17 (S.D.N.Y. June 11, 2020) (holding that the
plaintiff’s “loss of promotional opportunities while still employed by DOC cannot

satisfy the ‘plus’ requirement.”) (citing Schlesinger v. New York City Transit Auth.,
No. 00-CV-4759 (SAS), 2001 WL 62868, at *7 (S.D.N.Y. Jan. 24, 2001)); Cannon
v. City of W. Palm Beach, 250 F.3d 1299, 1303 (11th Cir. 2001) (holding that the

denial of plaintiff’s promotion, which stemmed from the placement of a stigmatizing
memorandum in his personnel file, failed to satisfy the “plus” prong). Even though
Plaintiff alleges that Defendants’ disciplinary actions resulted in her being denied an
interview for a permanent school psychologist position, the Court cannot reasonably

deduce that this foreclosed Plaintiff’s future employment opportunities as
contemplated under the Fourteenth Amendment.
Thus, as Plaintiff’s allegations fail to meet both prongs of the stigma plus test,
the Amended Complaint fails to state a claim for deprivation of a liberty interest in

the Plaintiff’s reputation.
iii. Substantive Due Process
Finally, Defendants move to dismiss Count 1 of the Amended Complaint to

the extent that it raises a substantive due process claim. “To establish a substantive
due process claim, a plaintiff must prove the particular interest at issue is protected
by the substantive due process clause and the government’s deprivation of that
protected interest shocks the conscience.” Tucker Indus. Liquid Coatings, Inc. v.

Borough of E. Berlin, 656 F. App'x 1, 6 (3d Cir. 2016) (citing Chainey v. Street, 523
F.3d 200, 219 (3d Cir. 2008)). The Third Circuit Court of Appeals has clarified that
“substantive due process rights are those rights which are ‘fundamental’ under the

Constitution.” Nicholas v. Pennsylvania State University, 227 F.3d 133, 139–41 (3d
Cir. 2000).
In her brief in opposition, Plaintiff cites to the Incident involving her estranged
husband (and former NESD Superintendent) that resulted in his criminal

prosecution. (Doc. 14, at 16-17). Plaintiff then asserts that her estranged husband’s
“subsequent attempts to invade her private life, stalk and harass [her], [and] pressure
people to hold her accountable,” all while she suffered from post-traumatic stress

disorder and anxiety, contributed to the creation of the hostile work environment that
she experienced. (U/d.) As mentioned supra, however, Plaintiff has failed to
sufficiently allege the deprivation of a fundamental right to which substantive due

process protections would apply. Accordingly, even when the Plaintiff's allegations
are taken as true, the Amended Complaint fails to state a Fourteenth Amendment
substantive due process claim against Dr. Sidle and the NESD.
As such, the Defendants’ motion to dismiss Count 1 of the Amended
Complaint will be granted pursuant to FED. R. Clv. P. 12(b)(6).
b. Fourth Amendment Claim (Count 2)
In Count 2 of the Amended Complaint, Plaintiff alleges that Defendants
violated her Fourth Amendment right to be free from unreasonable searches when
they searched her personal belongings and files in her office without her consent.
(Doc. 9, at Ff 21, 87). Plaintiff also alleges that Defendants ran afoul of the Fourth
Amendment when they permitted the release of her private information without
justification. (/d., at § 87). Defendants argue that Plaintiff's claim fails as a matter
of law, as she does not have any expectation of privacy in her school office and files.
(Doc. 13, at 27). Insofar as Plaintiff complains about the release of her personal
information, Defendants assert that Fourth Amendment liability does not attach
because they lawfully provided the records at issue in response to RTKL requests.
(Id.)

18

The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. U.S. CONST. amend. IV. The United States

Supreme Court has also held that the Fourth Amendment extends to searches and
seizures by “government employers or supervisors of the private property of their
employees” and “the conduct of school officials.” O’Connor v. Ortega, 480 U.S.

709, 714-15 (1987). To invoke the protections of the Fourth Amendment, an
employee must show that the official’s aggrieved of conduct infringed “an
expectation of privacy that society is prepared to consider reasonable.’” See Id. at
715 (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Next, when a

reasonable expectation of privacy exists in the place searched, an employee must
demonstrate that “both the inception and scope” of the search was unreasonable. See
Id. at 725-26; see also Gwynn v. City of Philadelphia, 719 F.3d 295, 303 (3d Cir.

2013) (noting that a public employer’s “non-criminal investigative search will be
reasonable if, at its inception, there are reasonable grounds for suspecting that the
search will turn up evidence that the employee is guilty of work-related misconduct
and the measures adopted are reasonably related to the objectives of the search and

not excessively intrusive in light of the nature of the misconduct.”) (internal
quotations and citations omitted).
As relevant here, “employees may be entitled to a reasonable expectation of

privacy in the contents of documents stored in the workplace, both in the private and
public sectors.” Walker v. Coffey, 905 F.3d 138, 148 (3d Cir. 2018). “The operational
realities of the workplace, however, may make some employees' expectations of

privacy unreasonable when an intrusion is by a supervisor rather than a law
enforcement official.” O’Connor, 480 U.S. at 717 (emphasis in original); see also
Walker, 905 F.3d at 148 (“[A]lthough employees may have certain privacy interests

in their work-related documents and communications vis-à-vis outsiders, their
privacy interests vis-à-vis their employer are far more circumscribed.”). Indeed, the
reasonableness of an expectation of privacy “must be assessed in the context of the
employment relation.” Id.

Plaintiff alleges that a school secretary caught Dr. Sidle and others in her
“personal office searching through Plaintiff’s personal belongings and personal
files.” (Doc. 9, at ¶ 21). Plaintiff has failed to sufficiently allege, however, that she

had a reasonable expectation of privacy in her office and its contents based on the
“operational realities of the workplace.” Cf. O’Connor, 480 U.S. at 717 (holding that
employee had a reasonable expectation of privacy in his desk and file cabinets when
he did not share the space with any other employees); Gillard v. Schmidt, 579 F.2d

825, 828 (3d Cir. 1978) (noting that by “[w]orking in an office secured by a locked
door at a desk containing psychological profiles and other confidential student
records, [school guidance counselor] had a reasonable expectation that papers in his

desk would remain safe from prying eyes.”); United States v. Ziegler, 474 F.3d 1184,
1189 (9th Cir. 2007) (finding that employee had reasonable expectation of privacy
in his office, which he kept locked and did not share with other co-workers, and the

work computer stored therein). Further, beyond asserting that the items searched
were “personal” in nature, Plaintiff does not claim that she exhibited any efforts to
maintain the privacy of her files or personal calendars at issue. Moreover, to the

extent that Plaintiff alleges Defendant Gellar turned over her “private cell phone
records” without her consent or justification, the Court finds these allegations to
ultimately be conclusory for the purposes of stating a claim under the Fourth
Amendment.4

For these reasons, the Court will grant the Defendants’ motion to dismiss
Count 2 of the Amended Complaint pursuant to FED. R. CIV. P. 12(b)(6).
Qualified Immunity

Defendants alternatively argue that, to the extent Dr. Sidle and Mr. Gellar are
being sued in their individual capacities, they are entitled to qualified immunity in
Counts 1 and 2 of the Amended Complaint. (Doc. 13, at 28-32). “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.

4 At this juncture, the Court declines to address whether Defendants had reasonable grounds for
the search of the Plaintiff’s office, calendar and cell phone records at its inception so as to fall
within the workplace search exception to the warrant requirement.
Callahan, 555 U.S. 223, 231 (2009). The Third Circuit Court of Appeals has also
noted that “the importance of resolving qualified immunity questions early ‘is in
tension with the reality that factual disputes often need to be resolved before
determining whether the defendant’s conduct violated a clearly established
constitutional right.” Phillips v. County of Allegheny, 515 F.3d 224, 242 n.7 (3d Cir.
2008) (citing Curley v. Klem, 298 F.3d 271, 277-78 (3d Cir. 2002)). As the Court
has dismissed Counts 1 and 2 of the Amended Complaint for failure to state a claim,
however, the Court declines to address whether Dr. Sidle and Mr. Gellar would also
be afforded qualified immunity had these claims been adequately alleged. Therefore,
the Court will deny the Defendants’ motion to dismiss on the grounds of qualified
immunity without prejudice to Defendants re-asserting this argument at a later stage.
d. Municipal Liability
Defendants additionally argue that the Amended Complaint fails to establish

a viable Monell claim against the NESD under Section 1983. (Doc. 13, at 46).
“Municipal employers, such as school districts . . . cannot be held vicariously liable
for the constitutional violations committed by their employees.” Moeck v. Pleasant
Valley Sch. Dist., 983 F. Supp. 2d 516, 524 (M.D. Pa. 2013) (citing Monell v. NYC
Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)); see also Karchnak vy. Swatara Twp.,
540 F. Supp. 2d 540, 545 (M.D. Pa. 2008) (‘Respondeat superior is not a viable
theory of municipal liability under § 1983... .”). Rather, “[mJunicipal liability only

22

attaches when a plaintiff demonstrates that an official policy or custom5 caused the
asserted constitutional deprivation.” Moeck v. Pleasant Valley School Dist., 983

F.Supp.2d 516, 524 (M.D. Pa. 2013) (citing Watson v. Abington Twp., 478 F.3d 144,
155 (3d Cir. 2007)). Specifically, “[l]iability is imposed ‘when the policy or custom
itself violates the Constitution or when the policy or custom, while not

unconstitutional itself, is the ‘moving force’ behind the constitutional tort of one of
its employees.’” Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014)
(quoting Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991)); see
also Beck v. City of Pittsburgh, 89 F.3d 966, 972 (3d Cir.

1996) (Municipal liability applies “to only those constitutional torts actually caused
by the municipality.”); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir.
2005) (noting that “a plaintiff must allege that a municipal custom or policy was the

proximate cause of the constitutional injury sustained.”).
A municipal entity may also be held liable under Section 1983 based on a
failure to train theory of liability. “Where . . . the policy in question concerns a failure
to train or supervise municipal employees, liability under section 1983 requires a

showing that the failure amounts to ‘deliberate indifference’ to the rights of persons

5 The Third Circuit has explained that a policy is made “when a decisionmaker possess[ing] final
authority to establish municipal policy with respect to the action issues a final proclamation,
policy, or edict.” Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996). A custom, however, “is
an act ‘that has not been formally approved by an appropriate decisionmaker,’ but that is ‘so
widespread as to have the force of law.’” Natale v. Camden County Correctional Facility, 318
F.3d 575, 584 (3d Cir. 2003) (quoting Bryan County, 520 U.S. at 404).
with whom those employees will come into contact.” Carter v. City of Phila., 181
F.3d 339, 357 (3d Cir. 1999) (quoting City of Canton v. Harris, 489 U.S. 378, 388

(1989)). “‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action.’”
Thomas v. Cumberland Cty., 749 F.3d 217, 223 (3d Cir. 2014) (quoting Bd. of Cty.

Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 410 (1997)). Generally, “a
pattern of constitutional violations by untrained employees” is required to establish
“deliberate indifference for the purposes of failure to train,” as this “puts municipal
decisionmakers on notice that a new program is necessary.” Id. (quoting Connick v.

Thompson, 563 U.S. 51, 62 (2011); Bryan Cty., 520 U.S. at 407-08). Single incident
liability may arise, however, if “the need for training ‘can be said to be ‘so obvious,’
that failure to do so could properly be characterized as ‘deliberate indifference’ to

constitutional rights.’” Id. (quoting City of Canton, 489 U.S. at 390 n.10).
In the Amended Complaint, Plaintiff appears to invoke both a policy and
custom theory and a failure to train theory of municipal liability against the NESD.
Defendants argue that Plaintiff has failed to identify “with anything more than bare

allegations and legal conclusions the existence of policy, custom, or practice of the
District that violated her Constitutional rights.” (Doc. 13, at 47). They further assert
that Plaintiff has not sufficiently alleged the existence of a causal link between the
purported policies, or failure to train, and the injury that she suffered. (Id., at 49, 51-
52). After careful review, the Court agrees with Defendants.

In the Amended complaint, Plaintiff alleges that the NESD: (1) failed to adopt
policies or customs that protected an employee’s right to privacy and right to be free
from harassment and retaliation, thereby acquiescing in the invasion of her privacy,

use of “illegitimate right to know requests,” unlawful bullying, harassment, and
retaliation; (2) failed to train its employees regarding employee privacy rights,
requests under Pennsylvania’s RTKL, and the right to be free from workplace
harassment and retaliation; (3) failed to properly train its employees with respect to

following its anti-harassment policies, which allegedly permitted the individual
Defendants to “discipline, punish, abuse and harass” Plaintiff when she made
complaints about the invasions of her privacy, harassment, failure to promote, failure

to provide medical leave, and hostile work environment; and (4) tolerated its
employees’ failure to adhere its anti-harassment policies, which thereby led to
Plaintiff’s harassment and hostile working conditions. (Doc. 9, at ¶¶ 42-43, 55-57,
64-65, 87). Nonetheless, these allegations do not allow the Court to reasonably infer

that these policies of action and inaction were the “driving force” behind Plaintiff’s
purported Constitutional injuries,6 as opposed to isolated incidents of misconduct

6 A municipality cannot be held liable where the plaintiff has experienced no violation of her
constitutional rights. See Hammon v. Kennett Twp., 746 F. App'x 146, 150 (3d Cir. 2018) (citing
Brown v. Commonwealth of Pa. Dep't of Health Emergency Med. Servs. Training Inst., 318 F.3d
committed by NESD employees. See Monell, 436 U.S. at 694. Further, when
construed in the light most favorable to Plaintiff, the Amended Complaint is devoid

of any allegations that the NESD’s purported failures in training amounted to
deliberate indifference to Plaintiff’s constitutional rights. Therefore, insofar as
Plaintiff asserts a Monell claim against the NESD under Section 1983, the Court will

grant the Defendants’ motion to dismiss.
2. Claims Brought Under Section 504 of the Rehabilitation Act (Counts
3 and 4)
a. Administrative Exhaustion
In Counts 3 and 4 of the Amended Complaint, Plaintiff asserts claims against
the NESD for hostile work environment and retaliation on the basis of her disabilities
(anxiety and depression) in violation of Section 504 of the RHA. Defendants argue

that Plaintiff’s Section 504 claims should be dismissed for failing to exhaust her
administrative remedies prior to filing this suit. (Doc. 13, at 32-37). Defendants
further claim that by bringing her claims under Section 504 instead of under the

American with Disabilities Act (“ADA”), Plaintiff is “clearly attempting to subvert
the administrative process required by the ADA.” (Id., at 32). In response, Plaintiff
contends that the Rehabilitation Act does not impose an exhaustion requirement for
claims brought under Section 504. (Doc. 14, at 20).

473, 482 (3d Cir. 2003)). As discussed supra, Plaintiff’s constitutional claims are subject to
dismissal under Fed. R. Civ. P. 12(b)(6). Therefore, the Plaintiff’s purported Monell claims also
fail for this reason.
Section 504 of the Rehabilitation Act prohibits federal agencies and private
entities that receive federal funding from discriminating against individuals on the

basis of their disability. Freed v. Consolidated Rail Corporation, 201 F.3d 188, 191
(3d Cir. 2000). The statute provides, in relevant part:
No otherwise qualified individual with a disability . . . shall, solely by
reason of his or her disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance . . . .

29 U.S.C. § 794(a).

Alleged violations of Section 504 are interpreted using the same standards
applied to claims brought under the ADA, 42 U.S.C. §§ 12201-12204 and 12210,
with Section 504 claims requiring the additional component of federal financial
assistance. See 29 U.S.C. § 794(d); McDonald v. Pennsylvania, 62 F.3d 92, 95 (3d
Cir. 1995) (“Whether suit is filed under the Rehabilitation Act or under the
Disabilities Act, the substantive standards for determining liability are the same.”)
(citation omitted).
Although the same standards generally govern claims under Section 504 and
the ADA, different administrative exhaustion requirements apply. Kortyna v.
Lafayette Coll., 47 F. Supp. 3d 225, 238–39 (E.D. Pa. 2014). As relevant here, the

Third Circuit has held that nonfederal employee-plaintiffs suing a private recipient
of federal funds solely under Section 504 “may proceed directly to court without
pursuing administrative remedies.” Freed v. Consolidated Rail Corp., 201 F.3d 188,
192-94 (3d Cir. 2000). Federal employee-plaintiffs, however, must exhaust
“administrative remedies before filing suit against a federal employer under Section

504.” Id. at 192; see also Hoffman v. City of Bethlehem, No. 16-CV-01581, 2016
WL 4318975, at *5 (E.D. Pa. Aug. 12, 2016) (Holding that “[p]laintiff was not
required to exhaust administrative remedies before bringing suit because plaintiff is

not a federal employee suing a federal employer under section 504 of the
Rehabilitation Act.”); McKernan v. Consol. Rail Corp., No. 98-1758, 1999 WL
33117179, at *2 (W.D. Pa. June 29, 1999) (“A nonfederal employee may bring
suit only under section 504, and thus, does not use section 504 as a means of

circumventing any otherwise imposed exhaustion requirement.”).
Here, Plaintiff alleges that the NESD is a recipient of federal assistance as
opposed to a federal employer. (Doc. 9, at ¶ 4). As Plaintiff is also a non-federal

employee of the NESD, the Court disagrees with the Defendants’ contention that her
Section 504 claims required administrative exhaustion. See Freed, 201 F.3d at 192-
94; Hoffman, 2016 WL 4318975, at *5. Therefore, insofar as Defendants move to
dismiss Counts 3 and 4 of the Amended Complaint based on the Plaintiff’s failure

to exhaust her administrative remedies, Defendants’ motion will be denied.
b. Statute of Limitations
In moving to dismiss Counts 3 and 4, Defendants also note that several of

Plaintiff’s allegations stem from the alleged denial of her requests for FMLA leave
in 2016. (Doc. 13, at 37). Accordingly, Defendants assert that Plaintiff has artfully
pleaded her claims under Section 504 in order to circumvent the two-year statute of

limitations period for FMLA claims. (Id.) Plaintiff responds that she has averred
sufficient facts to support her claims that are not time-barred. 7 (Doc. 14, at 20).
“Since Congress has incorporated Title VI's remedial scheme into the

Rehabilitation Act, plaintiffs alleging violations of Section 504 have a
private right of action under federal law.” Fowler v. UPMC Shadyside, 578 F.3d
203, 207 n.2 (3d Cir. 2009) (citing Three Rivers Center for Independent Living, Inc.
v. Housing Authority of Pittsburgh, 382 F.3d 412, 425–426 (3d Cir. 2004)).

Additionally, Courts in this circuit have long recognized that Section 504 plaintiffs
may proceed under both hostile work environment and retaliation theories of
liability. See Boandl v. Geithner, 752 F. Supp. 2d 540, 571 (E.D. Pa. 2010) (citing

Miller v. Cohen, 52 F. Supp. 2d 389, 400 (M.D. Pa. 1998), aff'd, 185 F.3d 862 (3d
Cir. 1999)) (hostile work environment under Section 504); Lauren W. ex rel. Jean

7 Notably, Plaintiff does not appear to invoke the continuing violation doctrine. The continuing
violation doctrine is an “equitable exception to the timely filing requirement.” Cowell v. Palmer
Tp., 263 F.3d 286, 292 (3d Cir. 2001). Specifically, “when a defendant's conduct is part of a
continuing practice, an action is timely so long as the last act evidencing the continuing practice
falls within the limitations period; in such an instance, the court will grant relief for the earlier
related acts that would otherwise be time barred.” Id. (quoting Brenner v. Local 514, United Bhd.
of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991)). As Plaintiff does not
address this doctrine, however, or otherwise demonstrate why it should extend to her Section
504 claims, the Court declines to consider its applicability here. See Herring v. Chichester Sch.
Dist., No. CIV.A. 06-5525, 2008 WL 436910, at *5 (E.D. Pa. Feb. 14, 2008) (“In the absence of
[plaintiff’s] argument on [the continuing violations doctrine], the court will not engage in that
analysis.”).
W. v. DeFlaminis, 480 F.3d 259, 267 n.5 (3d Cir. 2007) (citing 34 C.F.R. § 100.7(e))
(retaliation under Section 504). The statute of limitations for claims asserted under

Section 504 is two years. See DiFrancesco v. Aramark Corp., 169 F. App'x 127, 129
(3d Cir. 2006); Kedra v. Nazareth Hosp., 868 F. Supp. 733, 738 (E.D. Pa. 1994).
Therefore, insofar as Defendants argue that Plaintiff attempts to improperly cast a

cause of action under the FMLA as one arising under Section 504 to avoid the two-
year statutory period, the Court is not persuaded by this contention.
i. Retaliation Claim
To the extent that Plaintiff’s retaliation claim involves individual causes of

action that accrued before the two-year statute of limitations for Section 504 claims,
however, these claims are time barred.8 A claim accrues, and thus triggers the two-
year statute of limitations, “in a federal cause of action as soon as a potential claimant

either is aware, or should be aware, of the existence of and source of an injury.”
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994).
Further, to satisfy the elements of a retaliation claim under Section 504, a plaintiff
must show “(1) that [she] engaged in a protected activity, (2) that defendants'

8 The “Third Circuit Rule” allows a statute of limitations defense to be raised in a Rule 12(b)(6)
motion “only if ‘the time alleged in the statement of a claim shows that the cause of action has
not been brought within the statute of limitations.’” Robinson v. Johnson, 313 F.3d 128, 135 (3d
Cir. 2002) (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975).
“‘If the bar is not apparent on the face of the complaint, then it may not afford the basis for a
dismissal of the complaint under Rule 12(b)(6).’” Id. (quoting Bethel v. Jendoco Constr.
Corp., 570 F.2d 1168, 1174 (3d Cir. 1978)).
retaliatory action was sufficient to deter a person of ordinary firmness from
exercising his or her rights, and (3) that there was a causal connection between the

protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citations omitted). The third
causation element can be established by alleging facts that show: “(1) an unusually

suggestive temporal proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a
causal link.” Id.
Here, with respect to the first element, Plaintiff avers that notifying the NESD

of her disabilities, requesting workplace accommodations based on her anxiety and
depression, and repeatedly opposing its “practice of harassment and bullying”
constituted “protected activity.” (Doc. 9, at ¶¶ 107-08). Regarding the second

element, Plaintiff alleges that the NESD retaliated against her on account of her
protected activity by imposing disciplinary measures, relocating her office, failing
to promote her, failing to interview her, and intimidating her for raising concerns of
wrongdoing. (Id., at ¶¶ 20, 111). As to the third element, Plaintiff claims that she

received the disciplinary Letter in alleged retaliation for, and in temporal proximity
to, her FMLA requests. (Id., at ¶ 16).
The Amended Complaint establishes that Plaintiff requested FMLA leave on

both February 23, 2016 and March 7, 2016 and received the disciplinary Letter on
April 8, 2016. (Id., at ¶¶ 10, 13-14, 16). The Amended Complaint further claims that
the NESD relocated Plaintiff’s office on June 22, 2016. (Id. at ¶ 20). Even when read

in the light most favorable to Plaintiff, these factual allegations suggest that Plaintiff
became aware of any alleged injuries arising from the purported retaliatory Letter
and office relocation as early as 2016. See Oshiver v. Levin, Fishbein, Sedran &

Berman, 38 F.3d 1380, 1386 (3d Cir. 1994). As Plaintiff filed the original complaint
against Defendants on March 4, 2020, any individual causes of action that stem from
such 2016 actions fall outside the two-year statute of limitations for Section 504
claims.

Moreover, insofar as the Amended Complaint asserts that Defendants
committed subsequent acts of retaliation within the two-year statutory period,
Plaintiff fails to present any well-pleaded factual allegations to that effect.

Specifically, Plaintiff does not plausibly allege the existence of either an “unusually
suggestive temporal proximity” between her protected activity and the retaliatory
conduct alleged or a pattern of antagonism that would otherwise support a causal
link. See DeFlaminis, 480 F.3d at 267. For these reasons, the Plaintiff’s Section 504

retaliation claim raised at Count 2 will be dismissed under FED R. CIV. P. 12(b)(6).
c. Hostile Work Environment
Notwithstanding any statute of limitations concerns raised by Defendants, the

Court finds that Plaintiff’s Section 504 hostile work environment claim is also
subject to dismissal. To state a claim for hostile work environment under Section
504, a plaintiff must allege the following five elements: “(1) the plaintiff suffered

intentional discrimination because of [her] disability, gender, or age; (2) the
discrimination was pervasive and regular; (3) the discrimination detrimentally
affected plaintiff; (4) the discrimination would have detrimentally affected a

reasonable person of the same protected class in that position; and (5) the existence
of respondeat superior liability.” Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.
2001). Here, when taken as true and read in the light most favorable to Plaintiff, the
Amended Complaint fails to make sufficient allegations of pervasive and regular

discrimination motivated by a discriminatory animus towards the Plaintiff’s
disabilities. For example, although Plaintiff alleges that agents of the Defendants
“intentionally, negatively, and callously communicate[d] within the school about the

Plaintiff’s health issues” and “the fact that she became upset about the harsh
treatment and bullying,” she does not plead with particularity when, or how
frequently, these statements were made. (Doc. 9, at ¶¶ 101-02). Therefore, the Court
will dismiss Count 3 of the Amended Complaint under FED. R. CIV. P. 12(b)(6) for

failure to state a Section 504 hostile work environment claim.
3. State Law Claims Brought Under the Pennsylvania Human Relations
Act (Counts 5 and 6)

Finally, in Counts 5 and 6 of the Amended Complaint, Plaintiff brings state
law claims against Defendants for alleged violations of the Pennsylvania Human
Relations Act (“PHRA”). Title 28 of the United States Code, Section 1367 governs
jurisdiction over supplemental state law claims brought in federal court.

Specifically, Section 1367(a) states that “the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under

Article III of the United States Constitution.” 28 U.S.C. § 1367(a). This exercise of
supplemental jurisdiction may be declined, however, if the court “has dismissed all
claims over which it has original jurisdiction.” Id. at § 1367(c)(3). The Third Circuit
has further recognized that “where the claim over which the district court has

original jurisdiction is dismissed before trial, the district court must decline to decide
the pendent state claims unless considerations of judicial economy, convenience,
and fairness to the parties provide an affirmative justification for doing so.” Hedges

v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (citing Borough of West Miflin v.
Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)).
As discussed supra, Plaintiff has failed to plead plausible causes of action for
violations of the Fourteenth Amendment, Fourth Amendment, and RHA brought

under Section 1983, over which this Court would have original jurisdiction. Finding
that no affirmative justification to exercise supplemental jurisdiction exists at this
time, the Court therefore declines to consider Defendant’s arguments under Rule
12(b)(6) and will dismiss the Plaintiff’s state law claims under the PHRA without
prejudice.9

4. Leave to Amend

The Third Circuit has instructed that, when a complaint is vulnerable
to dismissal under Rule 12(b)(6), a court “must permit a curative amendment unless
such an amendment would be inequitable or futile.” Phillips v. Cty. Of Allegheny,
515 F.3d 224, 245 (3d Cir. 2008). This directive applies to both pro se plaintiffs and
those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave

to amend.’” In re Avandia Mktg., Sales Practices & Products Liab. Litig., 564 F.
App'x 672 (3d Cir. 2014) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)).
At this time, having carefully considered the claims set forth in the Amended
Complaint, the Court cannot conclude that it would be inequitable or futile for

Plaintiff to file a second amended complaint against Defendants. Accordingly, the
Court will grant Plaintiff leave to file a second amended complaint, in accordance
with the directives for such set forth in the accompanying Order, within thirty (30)

days.

9 The Court similarly declines to consider the Defendants’ argument regarding the applicability of
high public official immunity, and whether the claims against Dr. Sidle and Mr. Gellar are
redundant of the claims asserted against the NESD, with respect to Counts 5 and 6 of the
Amended Complaint. (Doc. 13, at 42-46).
V. CONCLUSION
For the reasons set forth above, the Defendant’s motion to dismiss will be
granted in part and denied in part. (Doc. 10). Specifically, the Defendant’s motion to
dismiss Counts 1, 2, 3, and 4 of the Amended Complaint will be granted for failure to
state a claim upon which relief may be granted under FED. R. Civ. P. 12(b)(6). The
Defendants’ motion will be denied, however, insofar as it seeks to dismiss Counts 1
and 2 on the basis of qualified immunity and Counts 3 and 4 on the basis of
exhaustion. Additionally, the Court will decline to exercise supplemental jurisdiction
over Counts 5 and 6 of the Amended Complaint but permit Plaintiff to file a second
amended complaint within thirty (30) days of the date of the Order filed concurrently
with this Memorandum. An appropriate order shall follow.

/s/ Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge

Dated: January 26, 2021

36

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409719. Public record. Not legal advice.