The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRITTNEY LEE, : No. 3:23cv648
Plaintiff :
: (Judge Munley)
V. :
SCRANTON SCHOOL DISTRICT and :
SHANNON RUCKER, :
Defendants :
□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ WC MOANDUAA
Before the court is a motion to dismiss filed by Defendants Scranton Schoo
District and Shannon Rucker pursuant to Federal Rule of Civil Procedure
12(b)(6). Having been fully briefed, this matter is ripe for disposition.
Background
Plaintiff Brittney Lee is employed as an autistic support paraprofessional at
Issac Tripp Elementary School (“Issac Tripp”) in the Scranton School District."
(Doc. 10, Am. Compl. 7-8, 11). Plaintiff is also an actively involved parent of 2
student at the school and a former member of the school’s parent-teacher
association (“PTA”). (Id. J 12-13, 15-16).
1 These background facts are derived from plaintiff's complaint. At this stage of the
proceedings, we must accept all factual allegations in the complaint as true. Phillips v. Cnty. o
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The court makes no determination, however, as
to the ultimate veracity of these assertions.
Defendant Shannon Rucker was the principal at Issac Tripp during the
2022-2023 school year. (Id. {ff] 6, 18). Rucker cancelled Issac Tripp’s Halloweer
parade and Christmas party that year. (Id. {J 18, 21). Per plaintiff, the other
elementary schools in the Scranton School District continued celebrating “the old
traditions.” (Id. J] 21).
In November 2022, Rucker emailed faculty and staff about her new holiday
celebration policy. (Id., Exh. B, Rucker Email, 11/13/2022). She explained:
The Holiday Season at Isaac Tripp should and will look
different this year. Our decorations will be different, and we
will focus on a Winter Wonderland "in Paradise” theme
(lights, snowmen, snowflakes, and lighted palm trees) that
isn't focused on one custom or tradition. Contrary to
popular belief, I'm not against Halloween, Halloween
costumes, Christmas, Christmas trees/Santa, or any
specific targeted demographic holiday. | fully support these
activities in after-school settings where families have a
choice to attend and participate. School is not a choice; it
is mandatory. Therefore, we shouldn't exclude, force
unwanted participation or make anyone uncomfortable at
school. We also shouldn't be causing segregation among
friends when a student's family believes in something and
can experience it, and another student's family does not
and can not participate. What if you were the child who had
to sit out while your friends participated? What if your child
had different customs and beliefs exposed to them that you
weren't comfortable with or forced on them? Please put
yourself in the position of these young children or as a
parent. These are some of the many things | constantly
think about.
The world and our district are changing, and we need to
adapt. | understand change is unpopular and difficult, but
being inclusive is necessary and a must to maintain a
positive school culture and climate.
(Id.)
Plaintiff alleges that “in her individual capacity as a parent and PTA
member|,]” she complained to Defendant Rucker about the changes either before
or after this email. (Id. Jf] 18, 63). Ultimately, Issac Tripp’s entire PTA board
resigned a few months later and Rucker made comments to The Scranton
Times-Tribune that issues with the PTA began when she announced plans for
more inclusive school events.” (Id. J] 16-17).
In November 2022, plaintiff also placed an evergreen tree in her classroom
for decoration. (id. 22). As alleged, on December 1, 2022, Defendant Rucker
sent two union representatives to tell plaintiff to take the tree down for violating
her directive regarding holiday celebrations.* (Id. J 23). Plaintiff's union presiden
told plaintiff that she was not violating any school district policy and plaintiff kept
the tree displayed. (Id. J 24).
The school then presumably enjoyed its winter break. After the break,
however, plaintiff was the subject of a report that she made “inappropriate
? Plaintiff attached the related article to her amended complaint. Sarah Hofius Hall, /ssac □□□□□
reorganizing PTA after entire board resigns, THE SCRANTON TIMES-TRIBUNE, Feb. 26, 2023, at
A3. (Doc. 10, Exh. A). In the article, the reporter attributes a position to Rucker without □□□□□□□
her directly. (Id.)
3 Plaintiffs employment is subject to a Paraprofessional Collective Bargaining Agreement with
the Scranton School District. (See Doc. 10, Am. Compl. Exh. D.).
physical contact with a student.” (Id. J 26). On January 30, 2023, Defendant
Scranton School District's human resources (“HR”) director informed plaintiff that
the incident would be relayed to ChildLine.* (Id. J 27). The school district
suspended plaintiff. (Id. ] 27). Lackawanna County’s Office of Youth and Family
Services (“OYFS”) advised plaintiff it was conducting a child abuse investigation.
(Id. J] 28). The school district also began its own investigation. (Id. J] 29).
At a later meeting with plaintiff, plaintiff's union representative, and
Defendant Rucker present, the HR director stated that plaintiff aggressively
grabbed the student and moved him to a cafeteria table. (Id. {] 33). Plaintiff
alleges that she merely stopped a student with autism from fleeing the cafeteria,
applying lessons from trainings provided by the school district. (Id. {] 35).
Plaintiff asserts that the incident was captured on video and proves that she did
nothing wrong. (Id. ¥ 36).
OYFS completed their investigation on February 24, 2023, and determined
that the child abuse allegations were unfounded. (Id. § 37). At no time, according
to plaintiff, has the Scranton School District informed her of the results of their
internal investigation. (Id. J] 30).
4ChildLine is a unit of the Pennsylvania Department of Human Services, which operates a toll-
free system of receiving reports of child abuse as established through Pennsylvania’s Child
Protective Services Law (“CPSL’). See 23 PA. CONS. STAT. § 6332, 55 PA. CODE § 3490.4.
Plaintiff returned to work on February 21, 2023. (Id. 40). Rucker,
however, imposed a “Safety Plan” on plaintiff. (Id. 40 & Exh. C). The district
superintendent and other administrators were copied on the plan. (Id. □ 41). Per
the Safety Plan, plaintiff could not be left alone while working at Issac Tripp and
had to be escorted to and from the classroom. (Id. 44). She was prohibited
from the school cafeteria and could not earn extra pay supervising morning
arrival or lunchtime. (Id. 47). Plaintiff's minor child, a student at the school, hac
to watch her mother be escorted around the building each day and the two were
not permitted to enter and exit the building alone. (Id. 48). Furthermore,
plaintiff was escorted to and from the bathroom. (Id. {] 49).
The Safety Plan was ultimately lifted on April 16, 2023, around the time tha
plaintiff filed this action. (Id. J] 46, 57). Per plaintiff, another Scranton School
District employee was accused of causing bodily injury to a student but was
permitted to go back to work without a Safety Plan after OYFS closed its
investigation. (Id. J 55).
Based upon the above allegations, plaintiff filed this Section 1983 action fo
First Amendment retaliation. Count! of the amended complaint alleges that
Rucker qualifies as an official policymaker to establish liability against the
Scranton School District pursuant to Monell v. New York City Dept. of Social
Servs., 436 U.S. 658 (1978). (Id. 7] 61-72). Count Il of the complaint asserts a
Section 1983 claim against Rucker in her individual capacity. (Id. J] 73-75).
Defendants responded to the amended complaint with the instant motion tc
dismiss. (Doc. 11). This matter is now ripe for a decision.
Jurisdiction
Based on plaintiffs Section 1983 claims, this court has jurisdiction pursuan
to 28 U.S.C. § 1331. (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”).
Additionally, the court has jurisdiction under 28 U.S.C. § 1343(a)(3), which
confers jurisdiction of any action commenced to redress the deprivation of any
right, privilege, or immunity secured by federal law providing for the equal rights
of citizens.
Legal Standard
Defendant filed the instant motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be
granted. The court tests the sufficiency of the complaint’s allegations when
considering a Rule 12(b)(6) motion.
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.
Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 55C
U.S. 544, 570 (2007)). A claim has facial plausibility when factual content is pled
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id. (citing Twombly, 550 U.S. at 570). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
On a motion to dismiss for failure to state a claim, district courts accept all
factual allegations as true, construe the complaint in the light most favorable to
the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief. See Phillips, 515 F.3d at 233
(citations omitted).
Analysis
Plaintiff filed this action against Defendants Rucker and Scranton School
District pursuant to Section 1983. Section 1983 creates a private cause of actior
to redress constitutional wrongs committed by state officials. The statute is not 4
source of substantive rights; it serves as a mechanism for vindicating rights
otherwise protected by federal law. See Gonzaga Univ. v. Doe, 536 U.S. 273,
284-85 (2002). To establish a claim under Section 1983, two criteria must be
met. First, the conduct complained of must have been committed by a person
acting under color of state law. Sameric Corp. of Del., Inc. v. City of Phila., 142
F.3d 582, 590 (3d Cir. 1998). Second, the conduct must deprive the plaintiff of
rights secured under the Constitution or federal law. Id.
In the motion to dismiss, defendants argue that plaintiff has failed to
plausibly state the elements of a Section 1983 claim for First Amendment
retaliation. Additionally, defendants also argue that plaintiff's municipal liability
claim fails because Rucker was not a final policymaker with the requisite
authority to impose liability on the Scranton School District. The court address
these arguments seriatim.
1. Plaintiff's First Amendment Retaliation Claim
Plaintiff is an employee of a public school. First Amendment protection of
public employee’s speech “depends on a careful balance ‘between 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.’ ” Lane v. Franks, 573 U.S. 228, 231
(2014) (quoting Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty..,
Illinois, 391 U.S. 563, 568 (1968)). “[C]itizens do not surrender their First
Amendment rights by accepting public employment.” Id.
In order to state a retaliation claim, a public employee must first
demonstrate that her speech is protected by the First Amendment. Flora v. Cnty
of Luzerne, 776 F.3d 169, 174 (3d Cir. 2015). A public employee's statement is
protected by the First Amendment when:
(1) in making it, the employee spoke as a citizen, (2) the
statement involved a matter of public concern, and (3) the
government employer did not have ‘an adequate
justification for treating the employee differently from any
other member of the general public’ as a result of the
statement he made.
Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (quoting
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); see also De Ritis v. McGarrigle,
861 F.3d 444, 452 (3d Cir. 2017)(citing Munroe v. Central Bucks Sch. Dist., 805
F.3d 454, 466 (3d Cir. 2015)).
As the Supreme Court has concluded, “when public employees make
statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S.
410, 421 (2006). “[S]peech may be protected ‘even if it concerns information
related to or learned through public employment{[.]’” De Ritis, 861 F.3d at 454
(quoting Lane, supra). But “an employee does not speak as a citizen if the mode
and manner of his speech were possible only as an ordinary corollary to his
position as a government employee.” Id. Accordingly, defendants first argue that
plaintiff's speech is not protected because she spoke out about the school
holiday party cancellations as a school employee and not as a citizen.
Regarding this first sub-element to a First Amendment retaliation claim,
defendants emphasize that plaintiff has not specifically pled the context of her
statements to Rucker. As a result, defendants ask the court to essentially
presume that plaintiff spoke as an employee. (See Doc. 12, Df. Br. in Supp. at p.
10-12). On a motion to dismiss, however, the allegations of plaintiff's amended
complaint must be construed in a light most favorable to plaintiff. She has
averred that she made the statements to Rucker as a parent of a student at Issac
Tripp and a member of the school PTA. Moreover, plaintiff has made allegations
that the parent community and schoo! PTA were upset over Rucker’s approach
to holiday celebrations to the extent that the entire PTA board ultimately
resigned. These allegations make it plausible that plaintiff made her statements
to Rucker as a parent and PTA member.
Paraprofessionals are not teachers; they work “under the direction of a
certificated staff member to support and assist in providing instructional program:
and services to children with disabilities[.]” 22 PA. CODE. § 14.105. Plaintiff
alleges in her amended complaint that she was employed to work “one on one
and in small groups with children who have autism,” keep them safe, feed them,
and address any incontinence. (Doc. 10 J 9). At this stage, it would be error to
resolve any factual disputes about the context of plaintiff's speech and determine
whether the speech was part of plaintiff's official job duties as a paraprofessional
10
See Flora, 776 F.3d at 176. Discovery will reveal the actual context of plaintiff's
statements to Rucker and defendant’s arguments are more appropriate to
consider at the summary judgment phase.
Defendants also argue that the lack of context means that plaintiff failed to
demonstrate that her statement involved a matter of public concern, that is the
second sub-element required to establish a First Amendment retaliation claim.
Plaintiff counters that Rucker’s changes to Issac Tripp’s holiday celebrations and
the PTA reaction to these changes were newsworthy enough to be reported on
by The Scranton Times-Tribune. (Doc. 13, Pl. Br. in Opp. at 9-10). Moreover,
this entire saga apparently resulted in the Scranton School Board weighing an
official policy regarding the celebration of holidays in its schools. (Doc. 10, Am.
Coml. at J] 59).
“Speech involves matters of public concern when it can be fairly considerec
as relating to any matter of political, social, or other concern to the community, o1
when it is a subject of legitimate news interest; that is, a subject of general
interest and of value and concern to the public.” Lane, 573 U.S. at 241 (citing
onyder v. Phelps, 562 U.S. 443, 453 (2011)(internal quotation marks and further
citations omitted). Moreover, “[dJjeciding whether speech is of public or private
concern requires [the court] to examine the content, form, and context of that
speech, as revealed by the whole record.” Snyder, 562 U.S. at 453 (internal
11
quotation marks and citations omitted). The whole record is not before the court
On the facts pled, plaintiff has plausibly stated that her speech concerned
matters of social and community interest. Defendants’ arguments are thus
rejected as to the first element of plaintiff's claim, that her speech was protected.
The court turns next to the second element required by a First Amendment
retaliation claim. In addition to demonstrating protected speech, a public
employee must also show that “the speech was a substantial and motivating
factor in what is alleged to be the employer's retaliatory action.” Flora, 776 F.3d
at 174 (citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)).
Plaintiff concedes that an allegation of physical abuse was made against
her that the defendants had a duty to investigate. (Doc. 13, Pl. Br. in Opp. at 10).
Per plaintiff's allegations, however, the Safety Plan imposed by Rucker on
plaintiff upon her return to work was so “demeaning, restrictive, oppressive, and
invasive[,]’ that it was retaliation for plaintiffs comments about changing holiday
celebrations at Issac Tripp. (Doc. 10, Am. Compl. at 49, 64-67). Moreover,
plaintiff complains that the Safety Plan was imposed on her indefinitely and she
was under its restrictions for almost two additional months after she was cleared
of child abuse by Lackawanna County OYFS. (See id. at Jf] 37, 57). Plaintiff
also alleges that another school district employee accused of causing bodily
12
injury to a student went back to work without a Safety Plan upon the closure of
an OYFS investigation. (Id. ] 54).
Nonetheless, defendants argue that there is no causal connection between
plaintiff's speech and the allegedly retaliatory restrictions in the safety plan.
Plaintiff, however, has pled sufficient facts to survive the motion to dismiss.
Plaintiff alleges that she received overly harsh discipline when accused of
physical abuse and that the discipline continued after the report of abuse was
determined to be unfounded under Pennsylvania law. Since these measures
were imposed on plaintiff only a few weeks after the holiday season and despite
video evidence allegedly vindicating plaintiff's position, a reasonable inference
may be drawn from the amended complaint that plaintiff's comments to Rucker
about changing holiday celebrations at Issac Tripp were a substantial and
motivating factor in Rucker’s imposition of the specifically restrictive Safety Plan
conditions.
Plaintiff has also attached an email from Rucker indicating that fully
inclusive holiday celebrations were “some of the many things [Rucker] constantly
[thought] about.” (Doc. 10, Am. Compl. 21, Exh. B). That email also permits an
inference that an ongoing negative community reaction to Rucker’s holiday policy
was also weighing on her mind, not just the reaction from teachers and staff, but
from parents and the PTA. (Id. (“Contrary to popular belief, I'm not against
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Halloween, Halloween costumes, Christmas, Christmas trees/Santa, or any
specific targeted demographic holiday.”). In light of these allegations, plaintiff
has demonstrated a plausible First Amendment retaliation claim and defendants’
motion to dismiss will thus be denied.
2. Whether Rucker’s Alleged Conduct Can Establish a Section 1983
Claim Against the School District
Plaintiff's First Amendment retaliation claim in Count | is asserted against
the Scranton School District, a municipal subunit in the Commonwealth of
Pennsylvania. See 53 PA. STAT. § 7101 (defining “municipality” to include school
districts). Defendants argue that plaintiff cannot proceed with a municipal liability
claim against the Scranton School District based on the actions of Defendant
Rucker as Issac Tripp’s school principal.
As noted above, plaintiff's claims against the school district proceed
pursuant to Monell and subsequent case law clarifying the boundaries of
municipal liability. See 436 U.S. at 690. Local governments may not be sued
under Section 1983 for injuries solely inflicted by its employees; rather, the
injuries must be inflicted by execution of a government’s policy or custom by
lawmakers or by “those whose edicts or acts may fairly be said to represent
Official policy.” Id. at 694. “[A] municipality cannot be held liable under § 1983 on
a respondeat superior theory.” Id. at 691.
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“Official municipal policy includes the decisions of a government's
lawmakers, the acts of its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.” Connick v. Thompson, 563
U.S. 51, 61 (2011)(citations omitted). A policy need not be passed by a
legislative body, or even be in writing, to constitute an official policy; a pertinent
decision by an official with decision-making authority on the subject constitutes
an official policy. Porter v. City of Philadelphia, 975 F.3d 374, 383 (3d Cir.
2020)(citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986)) .
Moreover, “municipal liability may be imposed for a single decision by municipal
policymakers under appropriate circumstances[,]” but liability only attaches
“where the decisionmaker possesses final authority to establish municipal policy
with respect to the action ordered.” Pembaur, 475 U.S. at 480-81 (footnote
omitted). An official has final policymaking authority if “as a matter of state law,
the official is responsible for making policy in the particular area of municipal
business in question” and if “the official's authority to make policy in that area is
final and unreviewable.” Hill v. Borough of Kutztown, 455 F.3d 225, 245 (3d Cir.
2006) (internal citations omitted) (emphasis removed). “Proving that a municipal
Official is a final policymaking authority is a fundamental element” of a Section
1983 action. LaVerdure v. Cnty. of Montgomery, 324 F.3d 123, 126 (3d Cir.
2003).
15
Defendants argue that Rucker is not a final policymaker as Issac Tripp’s
school principal. (Doc. 12, Df. Br. in Supp. at p. 19). Plaintiff counters that
Scranton School District's superintendent made public statements about building
principals being afforded discretion as to how to celebrate holidays.° (Doc. 13, Pl
Br. in Opp. at p. 12). Additionally, the court notes that Rucker had the apparent
authority to impose the Safety Plan on plaintiff when she returned to work as a
paraprofessional.
The court must make authority determinations as a matter of state law.
The parties, however, have not cited any provisions of Pennsylvania’s Public
School Code of 1949, 24 Pa. Stat. § 1-101, et seq. nor any state education
regulations, 22 PA. CODE § 1.1, et seg. The parties also have not provided
Scranton School District policies relative to employee conduct, disciplinary
proceedings, or safety plans. Rather, plaintiff alleges that her Employee
Handbook “does not contain any specific policies that [Scranton School District]
follows with regard to investigating allegations of wrongdoing made against its
employees.” (Doc. 10, Am. Compl. ¥] 31).
Plaintiff attached a front-page article from The Scranton Times-Tribune to her amended
complaint, Sarah Hofius Hall, Directors consider policy for holiday activities, THE SCRANTON
TIMES-TRIBUNE, June 21, 2023 at A1, A9. (Doc. 10, 9 59, Exh. E). In the article, the reporter
attributes a position to Scranton School District Superintendent Melissa McTiernan without
quoting her directly. (Id.)
16
“Under Pennsylvania law, a school board may be the final policymaker with
respect to some actions, while the school superintendent may be the final
policymaker with regard to other actions.” See G.S. v. Penn-Trafford Sch. Dist.,
20-3281, 2023 WL 4486667, at *3 & n. 29 (3d Cir. July 12, 2023)(non-
precedential)(citing McGreevy v. Stroup, 413 F.3d 359, 368-69 (3d Cir. 2005));
see also E.N. v. Susquehanna Twp. Sch. Dist., No. 1:09-CV-1727, 2011 WL
3608544, at *8 (M.D. Pa. July 5, 2011), report and recommendation adopted, No
1:09-CV-1727, 2011 WL 3608490 (M.D. Pa. Aug. 16, 2011)(“The final policy
maker for a school district in Pennsylvania is typically the school board or the
superintendent.”). On the other hand, “[a]Jn employee who lacks policymaking
authority can still bind the municipality if a municipal policymaker delegated
power to the employee or ratified [her] decision.” Kelly v. Borough of Carlisle, 622
F.3d 248, 264 (3d Cir. 2010)(citing LaVerdure, 324 F.3d at 125); see also City of
St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion).
At this juncture, it is plausible that the Scranton School District board and/o
superintendent delegated decision-making in these areas to building principals
such as Defendant Rucker. Furthermore, if the superintendent was the final
policymaker regarding paraprofessional discipline, plaintiff has alleged facts that
the superintendent was at least aware of Rucker’s decisions regarding plaintiff.
Consequently, the best course of action is to allow plaintiff's municipal liability
17
claim to proceed with discovery and defendants’ Monell arguments can be
revisited on a motion for summary judgment. The motion to dismiss will thus be
denied.
Conclusion
For the reasons set forth above, defendants’ motion to dismiss plaintiff's
amended complaint (Doc. 11) will be denied. An appropriate order follows.
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Date:
; JUDGE JULIA K. NLEY
| United States Djstrict Court □
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