VANDERVOORT v. PENNSYLVANIA SCHOOL BOARD ASSOCIATION

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

NANCY LOUISE VANDERVOORT,

individually as an employee,

Plaintiff, Civil Action No. 2:21-cv-1264

v. Hon. William S. Stickman IV

PENNSYLVANIA SCHOOL BOARD

ASSOCIATION, et al,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Pro se Plaintiff Nancy Louise Vandervoort (“Vandervoort”), a para-educator in the North

Allegheny School District (“School District”), brought this action seeking equitable,

compensatory, and punitive damages for alleged violations of her rights under 42 U.S.C. § 1983,

the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1967 (“Title

VI”), the Pennsylvania Human Relations Act (““PHRA”), and the Pennsylvania Constitution.

Her allegations arise from the School District’s universal masking mandate in response to the

COVID-19 pandemic and how it affected her ability to perform her job. (ECF No. 17).

Defendants North Allegheny School District Board of Education (“School Board”), North

Allegheny School District (“School District”), Melissa Friez (the Superintendent of the School

District) “Dr. Friez’”), and the School Board members - Andrew Chomos, Marcie Crow, Libby

Blackburn, Kevin Mahler, Richard McClure, Allyson Miton, Scott E. Russell, Elizabeth M.J.

Warnen, and Shannon Yeakel - (collectively, “School Defendants”) filed a Motion to Dismiss

pursuant to Fed R. Civ. P. 12(b)(6) for Failure to State a claim, along with a supporting brief.

(ECF Nos. 18 and 19). Briefing has concluded and the motion is ripe for adjudication. For the

following reasons, School Defendants’ motion will be granted.

I. STANDARD OF REVIEW

A. Pro Se Litigants

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In

practice, this liberal pleading standard works as “an embellishment of the notice-pleading

standard set forth in the Federal Rules of Civil Procedure.” Castro v. United States, 540 U.S.

375, 386 (2003) (Scalia, J., concurring). If a court can reasonably read the pleadings to state a

valid claim on which a plaintiff could prevail, it should do so despite the plaintiff's failure to cite

proper legal authority, confusion of legal theories, poor syntax and sentence construction, or

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364, 364 (1982);

United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969). But even under

this less stringent standard, a pro se complaint is still subject to dismissal. Haines v. Kerner, 404

U.S. 519, 520-21 (1972).

B. Rule 12(b)(6) Motions

A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of the complaint.

Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A plaintiff must allege sufficient facts that,

if accepted as true, state a claim for relief plausible on its face. See Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007); see also Ashcroft vy. Iqbal, 556 U.S. 662, 678 (2009). A court must

accept all well-pleaded factual allegations as true and view them in the light most favorable to a

plaintiff. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009); see also DiCarlo v.

St. Mary Hosp., 530 F.3d 255, 262-63 (3d Cir. 2008). Although a court must accept the

allegations in a complaint as true, it is “not compelled to accept unsupported conclusions and

unwarranted inferences, or a legal conclusion couched as a factual allegation.” Baraka vy.

McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).

The “plausibility” standard required for a complaint to survive a motion to dismiss is not

akin to a “probability” requirement but asks for more than sheer “possibility.” Jgbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must

be enough to raise a right to relief above the speculative level, on the assumption that all the

allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555. Facial plausibility is

present when a plaintiff pleads factual content that allows the court to draw the reasonable

inference that a defendant is liable for the misconduct alleged. Igbal, 556 U.S. at 678. Even if

the complaint’s well-pleaded facts lead to a plausible inference, that inference alone will not

entitle a plaintiff to relief. Jd at 682. The complaint must support the inference with facts to

plausibly justify that inferential leap. Id.

I. FACTUAL ALLEGATIONS

Vandervoort is employed as a Special Assistant I-C in Hosack Elementary School within

the School District. She is also a resident and taxpayer of the School District. (ECF No. 17, {J

1-2). According to Vandervoort, she initially “complied with the request of wearing a non-

prescribed EUA medical device due to the fear mongering of the Anthony Fauci, media, and

news outlets.” (Ud. 7 50).

A. Masking Mandates in the School District

On June 17, 2021, the school superintendent, Dr. Friez, sent a district-wide email to

parents concerning the District’s Health and Safety and Education Plans for the 2021-2022

School Year (Health and Safety Plan) stating that “NASD will not require face coverings on

school campuses.” (ECF 17-1). Ata June 23, 2021 meeting, the School Board voted to approve

the June 16, 2021 Health and Safety Plan that included a no masking policy.!

On August 13, 2021, Dr. Friez made an update to the Health and Safety Plan and sent an

email to School District parents that said, “In order to honor the commitment to five days of in-

person instruction and the need for our students to return to school to a safe environment with as

few interruptions as possible, NASD will require face coverings indoors for students, staff,

and visitors for grades K-12 beginning Monday, August 16.” (ECF No. 1, at P 79) (ECF No.

17-2) (emphasis in original). At the August 18, 2021 meeting of the School Board, it voted to

change the August 13, 2021 update to the Health and Safety Plan, and eliminate the universal

masking mandate.

A lawsuit was filed in this Court on August 22, 2021, seeking a Temporary Restraining

Order to reinstate the Health and Safety Plan’s August 13, 2021 update that required universal

masking in the School District. (Civil Action No. 2:21-cv-01112, ECF Nos. 1 and 2). On

August 23, 2021, Judge Horan issued a Temporary Restraining Order that returned the School

"District to a state of universal masking. (Civil Action No. 2:21-cv-01112, ECF No. 9, at p. 3).

Subsequently, on August 31, 2021, the Acting Secretary of the Pennsylvania Department

of Health (“PADOH”) entered an Order with an effective date of September 7, 2021, requiring

the wearing of face coverings for all K-12 public school districts in the Commonwealth. At a

' The Court’s facts are informed by the cases at Civil Action No. 2:21-cv-01112 and Civil Action

No. 2:22-cv-00055 before United States District Judge Marilyn J. Horan, which stem from the

School Board’s decisions on masking policies within the School District. The Court may take

judicial notice of information that is not subject to reasonable dispute because it is either

“generally known within the trial court’s territorial jurisdiction” or it “can be accurately and

readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R.

Evid. 201(b)(1)-(2). It may consider the public docket sheets for the cases pending before Judge

Horan. See Zedonis v. Lynch, 233 F. Supp. 3d 417, 422 (M.D. Pa. 2017) (“[D]ocket sheets are

public records[ ] of which this court may take judicial notice in deciding a motion to dismiss.”).

September 22, 2021 meeting, the School District rescinded its action of August 18, 2021, and

adopted a policy requiring masks to be worn indoors even after the PADOH Order was lifted for

students, staff, and visitors while Allegheny County was in a substantial or high category for

community transmission/spread. (See Civil Action No. 2:22-cv-00055, ECF No. 15, at pp. 4-5).

On December 8, 2021, the Pennsylvania Supreme Court held that the PADOH lacked the

authority to enter its August 31, 2021 Order (with an effective date of September 7, 2021),

requiring the wearing of “face coverings” while indoors, “regardless of vaccination status,” for

all K-12 public school districts in the Commonwealth of Pennsylvania. See Corman v. Acting

Sec’y of Pa. Dep’t of Health, 266 A.3d 452 (Pa. 2021). That same day, the School Board voted

to reverse the School District’s Health and Safety Plan, and masking was set to become optional

on January 18, 2022. (Civil Action No. 2:22-cv-00055, ECF No. 16, pp. 4-5).

Another lawsuit was filed in this Court at Civil Action No. 2:22-cv-00055, and Judge

Horan issued a Temporary Restraining Order on January 17, 2022, that returned the School

District to a state of universal masking. (Civil Action No. 2:22-cv-00055, ECF No. 16). An

interlocutory appeal was filed in the Third Circuit Court of Appeals shortly thereafter, and it was

consolidated with an appeal that dealt with the masking policies of another school district in

Allegheny County. (United States Court of Appeals for the Third Circuit Docket Nos. 22-1141,

22-1160 and 22-1299).

On February 25, 2022, the Centers for Disease Control and Prevention (CDC) issued

revised masking guidance, and Allegheny County was placed in the "low" risk category. In that

category, the CDC recommends masking "based on your personal preference, informed by your

personal level of risk." Centers for Disease Control and Prevention, Use and Care of Masks,

https://www.cdc. gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings. html (last

visited 03/30/22). On March 1, 2022, the Third Circuit dismissed the appeals at Case Nos. 22-

1141, 22-1160 and 22-1299 as moot with instructions that the district courts dismiss without

prejudice the complaints as moot. On March 2, 2022, the case dealing with the universal

masking mandate in the School District before Judge Horan (Case Nos. 2:22-cv-00055) was

dismissed as moot. The North Allegheny School District is currently in a state of optional

masking. (ECF No. 27, p. 2).

B. Vandervoort’s Employment Status

For the 2020-21 school year, Vandervoort worked from home in the Cyber Academy.

However, for the 2021-22 school year, she was told that “Cyber was work from inside a

building.” Vandervoort attended a staff meeting on August 17, 2021. After the meeting, she was

approached by the principal and a para-professional union representative and informed that she

“must either put on a mask/face shield or go home.” Vandervoort declined the mask that was

offered to her. (ECF No. 17, §9 54, 56, 58-60). Vandervoort explained that she, “was

uncomfortable wearing a mask because it cause[d] her to suffer distress, to hyperventilate,

headaches, dizziness, anxiety and vertigo becoming unstable to the point it cause[d] [her] to fall

in the halls or stairwells while walking/guiding a student thru their day at school [. . .].”. dd. J

62). Eventually, Vandervoort left the school building. Later that day, the Assistant

Superintendent of Elementary Education spoke with Vandervoort on the telephone and explained

that she “could not refuse a direct order from a supervisor” unless it could cause her harm or put

her in danger. (/d. 64). This prompted Vandervoort to send a letter to Dr. Friez and the School

Board that masks were ineffective, harmful and “only authorized for use by an EUA (emergency

use authorization).” (Ud. § 65) (ECF No. 17-3).

Vandervoort did not report to work for twenty-three days after the staff meeting because

she refused to wear a mask inside the school building. Her absence was classified as an “unpaid

unexcused absence.” When Vandervoort sought to have this absence recategorized as her

accrued twenty-six sick days, the School District informed her that she could not do so unless

she requested and was approved for FMLA. According to Vandervoort, Defendants forced her

to apply for FMLA. On September 14, 2021, the “Benefits Director,” contacted Vandervoort “to

ask for additional questions regarding the PCP to determine the FMLA,” and for further

information as to “what specific job duties” she “could not perform due to her diagnosis.” (Ud. §

65-80) (ECF No. 17-8). On the FLMA paperwork she submitted to the School District,

Vandervoort’s doctor wrote, “she can certainly work from home if that is an option. She has

substantial anxiety related to mask-wearing and COVID.” (ECF No. 17-7, p. 5). Vandervoort

was placed on an approved FMLA leave of absence from August 23, 2021 through December 8,

2021. (ECF No. 27, p. 4).

To the best of the Court’s understanding, Vandervoort remains on an unpaid unexcused

absence. She alleges that she has received no response from the School District as to how long

she will remain in this “forced” state of unpaid leave. (ECF No. 17, § 65-80). Vandervoort

refuses to wear a mask and contends it is “unsupported by science,” and “results in the possible

resulting measurable drop in oxygen saturation of the blood on one hand and the increase in

carbon dioxide on the other, which contributes to an increased noradrenergic stress response,

with heart rate increase and respiratory rate increase and, in some cases, a significant blood

pressure increase.” (ld. § 99). In its Status Report, the School District has clarified that

Vandervoort,

has not worked since the Commonwealth mandate became effective. Plaintiff

submitted paperwork to be approved for a leave of absence from August 23, 2021,

7 .

through December 8, 2021. Prior to the expiration of the leave of absence on

December 8, 2021, Plaintiff was contacted and requested to provide the District

either a release or return to work from her healthcare provider, or documentation

from her healthcare provider to support an extension of her leave of absence

[from] North Allegheny School District. As of this Status Report, Plaintiff has

not requested additional leave

(ECF No. 27, p. 4). Thus, since December 9, 2021, Vandervoort has accumulated unapproved

unpaid absences. The School Board has initiated dismissal proceedings against her. (ECF No.

27, p. 5).

Tif. ANALYSIS

After carefully reviewing the allegations pleaded by Vandervoort and the parties’

respective arguments, the Court holds that dismissal of her Amended Complaint is appropriate.

A. All claims against School Board members Andrew Chomos, Marcie

Crow, Libby Blackburn, Kevin Mahler, Richard McClure, Allyson

Miton, Scott E. Russell, Elizabeth M.J. Warnen, and Shannon Yeakel in

their individual capacity are dismissed.

Vandervoort has sued the School Board members in their individual capacities. “[L]ocal

legislators, like federal and state legislators, are absolutely immune from liability for their

"legislative activities.” In re Montgomery County, 215 F.3d 367, 376 (3d Cir. 2000) (citing

Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998); Aitchison v. Raffiani, 708 F.2d 96 (3d Cir.

1983)). “To be legislative, however, the act in question must be both substantively and

procedurally legislative in nature.” Jd. (citing Carver v. Foerster, 102 F.3d 96, 100 (3d Cir.

1996)). “An act is substantively legislative if it involves ‘policy-making of a general purpose’ or

‘line-drawing.’ It is procedurally legislative if it is undertaken ‘by means of established

legislative procedures.’” /d. (citing Carver, 102 F.3d, at 100). Other district courts in the Third

Circuit have held that this legislative immunity extends to school boards, and the Court concurs.

See, e.g., BP. by and through L.P. v. North Allegheny School District, __ F.Supp. 3d__, 2022

WL 114075, *9 (W.D. Pa. 2022), Pribula v. Wyoming Area Sch. Dist., 599 F. Supp. 2d 564, 579-

80 (M.D. Pa. 2009); Schlegel v. Koteski, Case No. 2:05-cv-1429, 2007 WL 2823476, at *3 (W.D.

Pa. Sept. 26, 2007).

Here, when the School Board members voted to impose a universal masking mandate

(and then voted to rescind the mandate), they were acting as local legislators to the School

District. The masking mandate was general policy, applicable to the entire School District.

Vandervoort cannot prove that the School Board members, in their individual capacity, violated

a clearly established statutory or constitutional right. Her claims against the individual School

Board members are dismissed on grounds of legislative immunity. The Court would further note

that Vandervoort’s claims against the individual School Board members in their official capacity

are redundant as she has sued the School Board.” See Hafer v. Melo, 502 U.S. 21, 25-26 (1991).

For these reasons, all claims against School Board members Andrew Chomos, Marcie

Crow, Libby Blackburn, Kevin Mahler, Richard McClure, Allyson Miton, Scott E. Russell,

Elizabeth M.J. Warnen, and Shannon Yeakel in their individual capacity will be dismissed with

prejudice. Because the Court holds that any amendment would be futile? Vandervoort will not

be granted leave to amend with regard to her claims against the individual School Board

members.

2 Also, Vandervoort has failed to allege any specific personal involvement as to the individual

School Board members in the alleged wrongdoing as to her —i.e., the staff meeting, the proposed

FLMA leave, or her absence from work that form the basis of Counts IV, V, VI, and VII.

3 “An amendment is futile if it merely restates the same facts as the original complaint in

different terms, reasserts a claim on which the court previously ruled, fails to state a legal theory,

or could not withstand a motion to dismiss.” 3 James Wm. Moore et al., Moore’s Federal

Practice § 15.15 Gd ed. 2021).

B. Counts I, II, and VIII against the School Board, the School District and

Dr. Friez will be dismissed.

Counts I, II and VIII are brought pursuant to 42 U.S.C. § 1983, which functions as a

“vehicle for imposing liability against anyone who, under color of state law, deprives a person of

‘rights, privileges, or immunities secured by the Constitution and laws.’” Grammer v. John J.

Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520, 525 (3d Cir. 2009) (quoting 42 U.S.C. § 1983). §

1983 does not create substantive rights by its own terms, but it instead provides remedies for

violations of rights that are established elsewhere in the Constitution or in federal law. See

Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish a claim under § 1983, two

criteria must be met: 1) the conduct complained of must have been committed by a person acting

under color of state law; and 2) the conduct must deprive the plaintiff of rights secured under the

Constitution or federal law.* See West v. Atkins, 487 U.S. 42, 48 (1988); Sameric Corp. of Del.,

Inc. v. City of Phila., 142 F.3d 582, 590 Gd Cir. 1998). Vandervoort wants the School District’s

universal masking mandate voided and the School District permanently enjoined from

implementing or enforcing a masking mandate. .

‘ The liability of a municipality—in this case, the School Board and School District—under 42

U.S.C. § 1983 is governed by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Under

Monell, a municipality cannot be subjected to liability solely because its agents or employees

caused injury to another person. /d. Rather, a municipal entity may be liable under § 1983 only

“when execution of a government's policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy” deprives a citizen of

constitutional rights. Jd. at 694. An official policy may be established under three

circumstances: (1) the municipal entity adopted and promulgated a policy, the implementation of

which caused the constitutional deprivation; (2) the policymaker failed to act affirmatively even

though the need to take some action is obvious and the inadequacy of the existing practice is

likely to result in the violation of constitutional rights; or (3) absent a formal policy, an official

with policymaking authority violated federal law, causing the constitutional deprivation. Natale

v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 Gd Cir. 2003). As to Dr. Friez, whether a

particular official has final policymaking authority for the purposes of § 1983 liability is a

question of state law. Kelly v. Borough of Carlisle, 622 F.3d 248, 264 (3d Cir. 2010).

10

In Count I, which is entitled, “Violation of Procedural Due Process (5 and 14%

Amendment),” Vandervoort contends she “has constitutionally protected interests in the benefits

that come from being forced to comply and subjected to the Board’s mask mandate, causing her

the inability to perform without being subjected to health risks that are not offset by any

scientifically provable benefits.” (ECF No. 17, § 106). Liberally construing her claim,

Vandervoort is alleging a violation of due process based on a property interest in continued

public employment. In Count II, which is entitled, “Violation of Substance Due Process

(Fourteenth Amendment),” Vandervoort fails to identify what substantive due process violation

occurred. She claims that she was harmed by “unlawful acts,” “by suffering an overall possible

simultaneous drop in oxygen saturation of the blood and increase in carbon dioxide, which

contributes to an increased noradrenergic stress response [. . .] and, in some cases, a significant

blood pressure.” (ECF No. 17, § 112). In Count VIII, entitled “Violation of the Fourteenth

Amendment State Created Danger,” Vandervoort alleges that “the District knew or should have

known of Plaintiffs vulnerability after being informed, given her age, and having been

previously forewarned of the debilitating symptoms she suffers from being forced to masked [..

|.” (ECF No. 17, § 174). She contends the School Defendants were “forewarned and should

have anticipated Plaintiff would have been traumatized by Defendants’ action,” and that their

“behavior for handling Covid-19” exacerbated her “debilitating symptoms.” (Wd. § 175).

Vandervoort is alleging a § 1983 substantive due process claim under the “state created danger

theory.” She alleges that she will be harmed by the universal masking mandate, and that it will

exacerbate her “debilitating symptoms.” (/d., §§ 107, 112, 175). Ultimately, she requests that

the School District’s masking mandate be vacated, and the School District be enjoined from

enforcing its masking policy. (d., at p. 40).

11

For the following reasons, Counts I, II and VIII against the School Board, the School

District, and Dr. Friez will be dismissed with prejudice.

1. Mootness

The Court holds that all claims related to the School District’s universal masking

mandate — Counts I, II and VIII against the School Board, the School District and Dr. Friez - are

moot, and they will be dismissed for the Court’s lack of jurisdiction. All of Vandervoort’s

claims relating to the universal masking mandate of the School District became moot for reasons

outside of the parties’ control. In accordance with the CDC’s revised masking guidance, the

Third Circuit’s Order on March 1, 2022 at Case Nos. 22-1160 and 22-1299, and Judge Horan’s

Order on March 2, 2022 at Case No. 2:22-cv-00055, the School District has returned to its

previous policy of optional masking. (ECF No. 27, p. 2). Vandervoort admits that “the masking

policy is over.” (ECF No. 28). Because the universal masking mandate has expired in the

School District, there is no relief the Court can grant Vandervoort. Blanciak v. Allegheny

Ludlum Corp., 77 F.3d 690, 698 (3d Cir. 1996).

In the Third Circuit’s March 1, 2022 Order at Case Nos. 22-1160 and 22-1299, it held

that “for essentially the same reasons we explained in County of Butler v. Governor of

Pennsylvania, 8 F.4th 226 (3d Cir. 2021), the exception [for questions “capable of repetition yet

evading review] does not apply.” In other words, the Third Circuit refused to address the

underlying constitutional claims brought by litigants challenging masking mandates in school

districts. Here, the Court is extremely reluctant to do so. However, because of Vandervoort’s

> Article III of the Constitution limits federal judicial power to actual cases or controversies. “If

at any point a claim ceases to present a live case or controversy, the claim is moot and the federal

court lacks jurisdiction to hear it.” Nextel West Corp. v. Unity Twp., 282 F.3d 257, 261 (3d Cir.

2002). “The central question of all mootness problems is whether changes in circumstances that

prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.”

In re Surrick, 338 F.3d 224, 230 (3d Cir. 2003).

12

pro se status and the confusing nature of her § 1983 claims, it offers her the following

explanation as to why Counts I, II and VIII would not survive School Defendants’ motion to

dismiss.

2. Count I

In Count I, Vandervoort alleges a violation of due process based on a property interest in

continued public employment. In order to state a claim under § 1983 for deprivation of

procedural due process rights, “a plaintiff must allege that (1) he was deprived of an individual

interest that is encompassed within the Fourteenth Amendment's protection of ‘life, liberty, or

property,’ and (2) the procedures available to him did not provide ‘due process of law.’” Hill v.

Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107,

116 (3d Cir. 2000)). As the United States Supreme Court has explained, “[p]rocess is not an end

in itself. Its constitutional purpose is to protect a substantive interest to which the individual has

a legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983). Thus, the

Court cannot skip its analysis of an allegedly protected interest and simply conclude that a party

has a right to due process. See Dunkel v. Mt Carbon/North Manheim Fire Co., 970 F, Supp. 2d

374, 381 (M.D. Pa. 2013). “Rather, the court must first determine ‘whether the asserted

individual interests are encompassed within the fourteenth amendment's protection of life,

liberty, or property.’” Jd. (quoting Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of

Educ., 587 F.3d 176, 194 (3d Cir. 2009) (additional citation omitted)). Here, Vandervoort has

not pled a plausible procedural due process claim with respect to deprivation of property.

Before a government employee, like Vandervoort, can succeed on a procedural due

process claim, the employee must establish a constitutionally protected property right. Mancini

y. Northampton Cty., 836 F.3d 308, 315 (3d Cir. 2016). School Defendants concede that

13

Vandervoort has pled an enforceable property right to employment. (ECF No. 19, p. 14).

Therefore, the next question is whether the available procedures provided due process of law.

Procedural due process is a flexible inquiry, based on the circumstances. When an employer

does less than discharge the employee, it can provide less process and still comply with the

Constitution. See Gilberg v. Homar, 520 U.S. 924, 932 (1997). To determine what process is

constitutionally due, courts must balance three factors: the private interest affected by the official

action; the risk of an erroneous deprivation of such an interest through the procedures used; and

the government’s interest. /d. at 931-32 (quotation omitted).

Here, the facts pled allow the Court conclude that what occurred—which was not the

termination of Vandervoort’s employment—was that the School District prohibited her from

school property because she refused to comply with the mask mandate and permitted her to take

FMLA leave. The Court finds that the School District provided Vandervoort with sufficient due

process. The School District had multiple conversations with Vandervoort about its masking

mandate, gave her the opportunity to take FLMA, and she was placed on FMLA leave from

August 23, 2021 through December 8, 2021. Consequently, the pre-deprivation procedures were

sufficiently robust. The Court would be remiss not to observe that the School District has an

interest in disciplining its employees who refuse to abide by school policies relatively promptly,

without full-blown hearings that will be expensive, time-consuming, and diminish the value of

the punishments by making them temporally remote from the conduct in question. Thus, under

the circumstances, the Court finds that the School District’s process was sufficient. Vandervoort

has failed to advance a legally viable procedural due process claim.

14

3. Count IT

In Count II, Vandervoort fails to specifically state what substantive due process violation

occurred. Substantive due process protects only certain “fundamental” liberty interests.

Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Public employment is not a fundamental

interest entitled to substantive due process protection. See Nicholas v. Pennsylvania State Univ.,

227 F.3d 133, 142-43 (3d Cir. 2000). Thus, Vandervoort’s public employment with the School

District is not a fundamental interest under the U.S. Constitution, and she cannot state a

substantive due process claim on this basis.

However, the 14th Amendment, under which Vandervoort seemingly bases her claim,

prohibits a state from “depriv[ing] any person of life, liberty, or property without due process of

law.” U.S. Const. amend. XIV, § 1. “To prevail on a substantive due process claim, a plaintiff

must prove that she has a ‘fundamental’ liberty interest implicating Fourteenth Amendment

protection and that a defendant’s conduct [concerning] said interest was “so egregious, so

outrageous, that it may fairly be said to shock the contemporary conscience.’” Kobrick v.

Stevens, Case No. 3:13-cv-2865, 2017 WL 3839946, *6 (M.D. Pa. 2017) (citing Cy. of

Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). The Supreme Court has held that “the

‘liberty’ specially protected by the Due Process Clause includes the right ] ... to bodily integrity,

Rochin v. California, 342 U.S. 165 [ ] (1952),” Washington, 521 U.S. at 720, but the closest the

Supreme Court has come to holding that there is a right for a person to make his own medical

decisions is its decision that “a competent person has a constitutionally protected liberty interest

in refusing unwanted medical treatment.” Cruzan by Cruzan v. Dir., Mo. Dep’t of Health, 497

U.S. 261, 278 (1990) (emphasis added); See also Washington, 521 U.S. at 720 (“the Due Process

Clause protects the traditional right to refuse unwanted lifesaving medical treatment’).

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Vandervoort alleges that the School District’s masking policy forced unwanted bodily

intrusion and unwanted medical treatment upon her. The Court disagrees. She has not plausibly

set forth a claim remotely similar to those addressed in the precedent cited above—which

addresses the refusal of medical treatment. Nor has she convincingly tied her claims into the

considerations addressed in the broader body of federal case law dealing with substantive due

process. Vandervoort has failed to state a claim for deprivation of substantive due process.

4. Count VHUI

In Count VIII, Vandervoort alleges a § 1983 substantive due process claim under the

“state created danger theory.” As already noted, the Due Process Clause “‘is a limitation on the

state’s power to act, but it does not ‘impose an affirmative obligation on the State to ensure that

those life, liberty, and property interests do not come to harm through other means.’” Luu v.

Esterly, 367 F. Supp. 3d 335, 342 (E.D. Pa. 2019) (quoting DeShaney v. Winnebago Cnty. Dep't

of Soc. Servs., 489 U.S. 189, 195 (1989)). The Third Circuit’s four-part test outlines the

requirements of a state-created danger claim: “(1) the harm ultimately caused to the plaintiff was

foreseeable and fairly direct; (2) the state-actor acted with willful disregard for the plaintiffs

safety; (3) there was some relationship between the state and the plaintiff; and (4) the state-actor

used his authority to create an opportunity for danger that otherwise would not have existed.”

Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008).

Under the first prong of the Third Circuit’s state created danger test, Vandervoort had to

plead facts in her Amended Complaint to show that the harm ultimately caused to her was

foreseeable and fairly direct. To adequately plead foreseeability under this standard,

Vandervoort had to “allege an awareness on the part of the state actors that rises to the level of

actual knowledge or awareness of risk that is sufficiently concrete to put the actors on notice of

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the harm.” Jd. at 237. Additionally, the risk of irreparable harm alleged must not be speculative.

Adams v. Freedom Forge Corp., 204 F.3d 475, 488 (3d Cir. 2000).

The ability to analyze this element is hindered by the confusing nature of the allegations

in the Amended Complaint regarding the harm suffered. Vandervoort states that she “was

harmed, and continues to be irreparably harmed by these unlawful acts, including by suffering an

overall possible simultaneous drop in oxygen saturation of the blood and increase in carbon

dioxide, which contributes to an increased noradrenergic stress response, with heart rate increase

and respiratory rate increase and, in some case, a significant blood pressure increase.” (ECF No.

17, pp. 31-32). The harm foreseeable by Vandervoort, as being a direct consequence of the

School Defendants’ universal masking mandate (which is no longer in place), is not expressly or

sufficiently pled. Additionally, the Amended Complaint contains no allegations of any harm that

actually occurred. Vandervoort’s allegations do not satisfy the first element of the state-created

danger test to support a claim for a substantive due process violation.

Under the second element of the state created danger test, Vandervoort must demonstrate

that the state actor, the School Defendants, acted with a degree of culpability that shocks the

conscience and sufficiently allege that they acted in willful disregard for or with deliberate

indifference to her safety. Morrow vy. Balaski, 719 F.3d 160, 176 (3d Cir. 2013). Deliberate

indifference is “a stringent standard of fault, requiring proof that a municipal actor disregarded a

known or obvious consequence of his action.” Bd. of Cty. Cmm’rs v. Brown, 520 U.S. 397, 410,

(1997) (citation omitted).

Vandervoort cannot demonstrate that the School Defendants acted with willful disregard

for her safety when it imposed a universal mask mandate (and then later rescinded the mask

mandate). Masking in schools is now a moot point. Even beforehand, however, the Court

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cannot accept that the School Defendants’ enforcement of universal masking as mandated by the

PADOH demonstrates a willful disregard for Vandervoort’s safety, particularly where the School

District permitted her leave under the FMLA.

As Vandervoort’s Amended Complaint does not sufficiently satisfy either the first or the

second prong of the state-created danger test, there is no need to discuss the other prongs. She

has not set forth a viable substantive due process claim under the “state created danger theory.”

5. Leave to Amend Will be Denied

Any amendment of Counts I, II and VIII against the School Board, the School District

and Dr. Friez would be futile in the eyes of the Court due to mootness and because Vandervoort

cannot state a viable claim for relief. See In re Burlington Coat Factory Sec. Litig., 114 F.3d

1410, 1434 (3d Cir.1997) (a court may decide to deny leave to amend for reasons such as undue

delay, bad faith, dilatory motive, prejudice, and futility).

C. Counts IV, V, VI, and VII against the School Board, the School District

and Dr. Friez will be dismissed.

In Counts IV, V, VI, and VII, Vandervoort alleges that the School District’s. mask

mandate and School Defendants’ enforcement of it interfered with her employment rights. She

brings her claims under the ADA, Title VII, and the PHRA. Based on the Court’s review of

Vandervoort’s Status Report, it seems these are now the claims she is pursuing. (ECF No. 28).

For example, she states, “Defendants are threatening Plaintiff livelihood and are planning on

dismissing Plaintiff's employment by reason of which all has stemmed from her physical

condition after many request for a reasonable accommodation.” (ECF No. 28, p. 1). She

clarifies, “Plaintiff seeks a judicial declaration that proceedings with the imposition of the

threatened employment sanction is a violation of the ADA and seek and order restraining and

enjoying [sic] Defendants from violation of the ADA by employment sanction on the basis

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perceived physical disability.” (/d., at p. 2). Vandervoort acknowledges that the masking policy

is “over,” but she contends that while it was in place, the School District “repeatedly, ignored

and denied Plaintiff a reasonable accommodation, forced Plaintiff to use on [sic] FMLA, have

tried to coerced, threatened and now retaliating as a means to conceal their action and protect

themselves from being held accountable and liable.” (/d., at p. 4).

Both Title VII and the PHRA require the exhaustion of administrative remedies prior to

the filing of a lawsuit.° See 42 U.S.C. § 2000e-5(b), (f)(1); 43 P.S. §§ 959, 962; see also Burgh,

251 at 469; Bailey v. Storlazzi, 729 A.2d 1206, 1214 (Pa. Super. 1999). To do so, a complainant

must file a charge of discrimination with the Equal Employment Opportunity Commission

(“EEOC”) and the Pennsylvania Human Relations Commission (““PHRC”). See Burgh, 251 F.3d

at 469, 471. That charge must be filed with the PHRC within 180 days of the last discriminatory

act, see 43 P.S. § 959(h), and with the EEOC within 300 days of the last discriminatory act (so

long as the charge was properly cross-filed with the state agency), see 42 U.S.C. § 2000e-5(e)(1).

A particular claim is deemed exhausted if it is “fairly within the scope of [1] the prior EEOC

complaint, or [2] the investigation arising therefrom.” Simko vy. U.S. Steel Corp., 992 F.3d 198,

207 (3d Cir. 2021) (quoting Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984)).’ This is a

© The Court considers Vandervoort’s Title VII and PHRA claims together. See Scheidemantle v.

Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 539 n.5 (3d Cir. 2006) (“We

construe Title VII and the PHRA consistently.”); Burgh v. Borough Council of Montrose, 251

F.3d 465, 469 (3d Cir. 2001) (“The analysis of [Title VII and PHRA] claims is identical.”);

Bailey v. Storlazzi, 729 A.2d 1206, 1211 n.6 (Pa. Super. 1999) (“The PHRA is generally applied

in accordance with Title VII.”).

7 Though Simko involved a claim under the Americans with Disabilities Act (“ADA”), that

statute expressly incorporates the administrative procedures of Title VI, including Title VII's

exhaustion requirement. See 42 U.S.C. §§ 12117(a), 2000e-5; see also Churchill v. Star Enters.,

183 F.3d 184, 190 (3d Cir. 1999).

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“highly fact specific” inquiry, and courts must “careful[ly] examin[e] . . . the nature of the

relevant claims.” Id.

Likewise, plaintiffs must exhaust their administrative remedies before filmg an ADA

claim in federal court. See Churchill, 183 F.3d at 190 (noting that claims asserted under the

ADA must be filed in adherence with the administrative procedures set forth in Title VID; 42

U.S.C. §§ 12117(a), 2000e-5.5. In Pennsylvania, an aggrieved party must initiate this pre-suit

procedure by filing a charge with the EEOC within 300 days of the challenged employment

action. Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (d Cir. 2000); 42 U.S.C. § 2000e-

5(e)(1). Thus, the exhaustion requirements under the ADA mirror those under Title VII.

Churchill, 183 F.3d at 190.

Vandervoort failed to plead in her Amended Complaint that she satisfied the pre-suit

requirements of Title VII, the PHRA and the ADA. Furthermore, Vandervoort does not dispute

School Defendants’ argument that she failed to exhaust administrative remedies. (ECF Nos. 21

and 28). It was only recently, on March 10, 2022, that Vandervoort filed a complaint with the

PHRC and EEOC, and the School District’s Response is not due until April 8, 2022. (ECF No.

27, p. 5). Because Vandervoort failed to exhaust her administrative remedies for her

employment discrimination claims, Counts IV, V, VL and VII against the School Board, the

School District and Dr. Friez will be dismissed without prejudice to pursue relief later in federal

court after her administrative remedies are exhausted.

D. Count III will be dismissed.

Because the Court is dismissing all of Vandervoort’s federal claims, there is no longer a

basis for the exercise of federal question jurisdiction. When a district court has supplemental

jurisdiction over state law claims under 28 U.S.C. § 1367(a), it has the discretion to exercise or

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decline to exercise this jurisdiction. De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cur.

2003). The statute provides that a district court “may decline to exercise supplemental

jurisdiction” if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §

1367(c)(3). “[W]here 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.” Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788

(3d Cir. 1995).

Since the Court has dismissed all of the federal law claims against School Defendants and

the remaining claims contained in Count III involve state law, judicial economy, convenience,

and fairness to the parties weigh against the Court retaining supplemental jurisdiction. There are

no “extraordinary circumstances” which warrant the exercise of jurisdiction over the state

claims. The Court declines to exercise supplemental jurisdiction. Vandervoort’s pendent state

law claim will be dismissed without prejudice to raise in state court.

IV. CONCLUSION

For the aforementioned reasons, Schoo] Defendants’ motion will be granted, all claims

against School Defendants will be dismissed, and this case will be closed. All of Vandervoort’s

claims against the individual School Board members will be dismissed with prejudice. Counts I,

Il, and VIII against the School Board, the School District and Dr. Friez will be dismissed with

prejudice. Counts IV, V, VI, and VII against the School Board, the School District and Dr. Friez,

will be dismissed without prejudice for Vandervoort to pursue relief after her administrative

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remedies are exhausted. Count HI, Vandervoort’s pendent state law claim, will be dismissed

without prejudice for her to raise in state court. Orders of Court will follow.

BY THE COURT:

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BVA SATE

WILLIAM S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

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