# VANDERVOORT v. PENNSYLVANIA SCHOOL BOARD ASSOCIATION

> District Court, W.D. Pennsylvania · March 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10417582

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

20

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

21

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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Dated

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10417582. Public record. Not legal advice.