The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMIE L. PESOTSKI, : No. 3:23cv479
Plaintiff :
: (Judge Munley)
V. :
WILKES-BARRE AREA SCHOOL :
DISTRICT and the WILKES-BARRE _ :
AREA SCHOOL DISTRICT :
BOARD OF SCHOOL DIRECTORS, ~ :
Defendants :
MEMORANDUM
Plaintiff Jamie L. Pesotski filed the instant lawsuit against her former
employer, the Wilkes-Barre Area School District and the Wilkes-Barre Area
Schoo! District Board of School Directors, related to her employment at the
school. Before the court for disposition, is the defendants' motion to dismiss
plaintiff's complaint. Having been fully briefed, the motion is ripe for disposition.
Background
At the time of the filing of the complaint, defendants had employed plaintiff
for eight years as a paraprofessional at the Wilkes-Barre Area School District
High School. (Doc. 1, Compl. J] 3). Evidently, sometime in 2021 criminal
charges of some sort were brought against the plaintiff.’ (See id. JJ] 15, 30).
Defendants then directed plaintiff to attend a meeting on September 20, 2021,
with the school's superintendent and/or human resources personnel. ({d. □□ 8).
Plaintiff attended the meeting, at the conclusion of which school officials told her
that she was suspended without pay. The suspension would end if, and when,
plaintiff was found not guilty of the criminal charges. (Id. ] 15). The instant civil
rights lawsuit followed.
Plaintiff instituted the lawsuit by filing a complaint on March 30, 2023
against the Wilkes-Barre Area School District and its Board of School Directors.
The complaint contains the following four causes of action:
Count | — Violation of plaintiff's Due Process rights of the United
States Constitution, brought pursuant to 42 U.S.C. § 1983:
Count II — Violation of plaintiff's Due Process rights of the United
States Constitution, brought pursuant to 42 U.S.C. § 1983;
Count Ill -— Breach of Contract under Pennsylvania state law; and
Count IV — Wrongful Suspension in Violation of Pennsylvania Public
Policy.
' Plaintiffs complaint does not state the nature of the criminal charges.
In response to the complaint, the defendants filed a motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(6). The parties have briefed
their respective positions, bringing the case to its present posture.
Jurisdiction
Because plaintiff sues pursuant to 42 U.S.C. § 1983, the court has federal
question jurisdiction. See 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.”). The court has supplemental jurisdiction over the
plaintiff's state law claims pursuant to 28 U.S.C. § 1367.
Standard of Review
Defendants filed their motion to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). The court tests the sufficiency of the
complaint’s allegations when considering a Rule 12(b)(6) motion. All well-
pleaded allegations of the complaint must be viewed as true and in the light mos
favorable to the non-movant to determine whether, “under any reasonable
reading of the pleadings, the plaintiff may be entitled to relief.”” Colburn v. Upper
Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by
Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must
describe “‘enough facts to raise a reasonable expectation that discovery will
reveal evidence of’ [each] necessary element’ of the claims alleged in the
complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Moreover, the
plaintiff must allege facts that “justify moving the case beyond the pleadings to
the next stage of litigation.” Id. at 234-35. In evaluating the sufficiency of a
complaint the court may also consider “matters of public record, orders, exhibits
attached to the complaint and items appearing in the record of the case.”
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir.
1994) (citations omitted). The court does not have to accept legal conclusions or
unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of
Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
The federal rules require only that plaintiff provide “a short and plain
statement of the claim showing that the pleader is entitled to relief,” a standard
which “does not require detailed factual allegations,” but a plaintiff must make “a
showing, rather than a blanket assertion, of entitlement to relief that rises above
the speculative level.” McTernan v. N.Y.C., 564 F.3d 636, 646 (3d Cir. 2009)
(citations and internal quotations and quotation marks omitted). The “complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) □□□□□□□□
Twombly, 550 U.S. at 570). Such “facial plausibility” exists “when the plaintiff
pleads factual content 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 556). “[T]he factual detail in a complaint [cannot be] so undeveloped that it
does not provide a defendant the type of notice of claim which is contemplated
by Rule 8.” Phillips, 515 F.3d at 232 (citation omitted). “Though a complaint
‘does not need detailed factual allegations, . . . a formulaic recitation of the
elements of a cause of action will not do.” DelRio-Mocci v. Connolly Props., Inc.
672 F.3d 241, 245 (3d Cir. 2012) (quoting Twombly, 550 U.S. at 555).
Discussion
Before analyzing the defendants’ motion to dismiss, the court will address
an issue raised in the plaintiff's brief. Defendants have included four exhibits with
their motion to dismiss. Plaintiff argues that because defendants have included
exhibits, they are seeking summary judgment rather than dismissal under Rule
12(b)(6). No discovery has occurred yet, and a summary judgment motion would
be premature according to the plaintiff. Thus, plaintiff argues that it is
inappropriate for the court to address the defendants’ motion at this time. The
court disagrees.
The law provides that "a court may consider an undisputedly authentic
document that a defendant attaches as an exhibit to a motion to dismiss if the
plaintiff's claims are based on the document." Pension Ben. Guar. Corp. v. Whit
Consol. Industr., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The documents that
the defendants present do not fall into the category of documents that the court
may properly review on a motion to dismiss. The defendants' documents
include: 1) plaintiffs criminal docket report, (Doc. 10); 2) an "Arrest/Conviction
Report and Certification Form" which is not filled out, (Doc. 10-1); 3) an e-mail
apparently from the school district's payroll department indicating the amount of
retroactive pay plaintiff received when her suspension ended (Doc. 10-2); and 4)
a union grievance form evidently filed on plaintiffs behalf. Plaintiff's claims are
not based upon these documents, therefore, it would be improper for the court to
rely upon them in ruling on the motion to dismiss. The court will thus address the
motion to dismiss without reference to the defendants’ exhibits. Defendants
move to dismiss all four of the plaintiff's claims. The court will address them in
turn.
1. Counts | and Il
Defendants discuss Counts | and II together as they are nearly identical.
Counts | and II both seek relief pursuant to 42 U.S.C. § 1983 ("Section 1983").
(Doc. 1, Compl. Jf] 32-38). Section 1983 does not, by its own terms, create
substantive rights. Rather, it provides remedies for deprivations of rights
established elsewhere in the Constitution or federal law. Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir.1996). 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. Second, the conduct must deprive
the complainant of rights secured under the Constitution or federal law. Sameric
Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir. 1998).
Here, the parties do not dispute that the defendants were persons acting
under color of state law. Thus, the issue is whether the defendants’ conduct
deprived plaintiff of rights secured under the Constitution or federal law.
Plaintiffs complaint avers a deprivation of procedural due process rights.
(Doc. 1, Jf] 35, 38). The due process rights of a public employee are set forth in
Loudermill v. Cleveland Bd. of Educ., 470 U.S. 532 (1985). Loudermill explained
that civil servants have a property interest in their continued employment, thus
they can only be terminated for cause and are entitled to administrative review of
the dismissal. Additionally, they are entitled to a pretermination hearing and an
opportunity to present evidence challenging the discharge. Id. at 563. Sucha
pretermination hearing has become known as a "Loudermill Hearing."
Notice of a Loudermill Hearing must be provided to anernployee. In
Jennings-Fowler v. City of Scranton, 680 F. App'x. 112, 116 (3d Cir. 2017), the
Third Circuit addressed the extent of the notice required. The Court held that
“[plaintiff] was entitled to ‘oral or written notice of the charges against h[er], an
explanation of the employer's evidence, and an opportunity to present h[er] side
of the story’ in connection with the termination meeting.” Id. Significantly, the
Court stated that “[flailure to describe the nature of evidence supporting
termination violates due process.” Id. (citation omitted). As such, a plaintiff must
be informed of the specific evidence that existed to support each of the charges
and must be given a sufficient explanation of the evidence against her regarding
each of the charges. Charges that do not contain the requisite description and
that simply use boilerplate language are not sufficient. Id.
Defendants position is that plaintiff has received all the process which is
due because she received a Loudermill Hearing. Accordingly, Count | and II
should be dismissed. Plaintiff, on the other hand, argues that dismissal of these
counts is inappropriate. After a careful review, the court agrees with the plaintiff.
Defendants, citing to paragraph 17 of plaintiffs complaint, argue that
plaintiff admits that she participated in a Loudermill Hearing on September 2,
2021. Paragraph 17, however, avers that: "At the alleged 'Loudermill Hearing’
on September 2, 2021, representatives of the School District informed the
Plaintiff that there was evidence to support the Plaintiff's termination, and that,
as a result, Ms. Pesotski was suspended without pay effective immediately,
without providing specific information as to the evidence against Ms. Pesotski,
specific witnesses or specific reasons for her suspension without pay.” While
plaintiff admits that she attended a hearing, contrary to the defendants’ argument
she does not "admit" that it was a proper Loudermill Hearing. Defendant's
argument on this point is therefore unconvincing.
Next defendant argues that plaintiff received all the process that was due a
the hearing. As set forth in plaintiff's complaint, however, she avers that the
hearing suffered from deficiencies calling into question the protection of her due
process rights. These are factual issues, which cannot properly be determined a
the motion to dismiss stage. Accordingly, defendants’ argument is not cogent.
Defendants also point out that plaintiff repeatedly claims that she did not
receive notice of the Loudermill Hearing. Per the defendants, she cannot dispute
that she received notice because she attached to her complaint a copy of the
notice that was sent to her. This letter states that a Loudermill Hearing will be
held regarding plaintiff's arrest on the charge of terroristic threats. (Doc. 1-2).
Defendants’ argument is unconvincing.
An employee must receive notice of a Loudermill hearing. The law provides
that “pretermination notice of the charges and evidence against an employee
need not be in great detail as long as it allows the employee ‘the opportunity to
determine what facts, if any, within [her] Knowledge might be presented in
mitigation of or in denial of the charges.’ ” McDaniels v. Flick, 59 F.3d 446, 457
(3d Cir. 1995) (citation omitted). “The pretermination hearing merely serves as
‘an initial check against mistaken decisions—essentially, a determination of
whether there are reasonable grounds to believe that the charges against the
employee are true and support the proposed action.’ ” Id. at 459 (quoting
Loudermill, 470 U.S. at 545-46).
Attached to plaintiff's complaint is an exhibit, a letter from the school
district's human resources department regarding "Notice of Loudermill Hearing."
(Doc. 1-2). Plaintiffs complaint, however, alleges that she did not receive this
correspondence until after the hearing took place. (Doc. 1, 20). At this stage
of the proceedings, the court must view plaintiff's allegations as true.
Accordingly, the court cannot conclude at this time that plaintiff received
appropriate notice of the hearing.”
Finally, defendants argue that the school board cannot be held responsible
for a constitutional violation unless that violation occurred as a result of the
policy, custom, or practice established by the board." C.H. ex rel. Z.H. v. Olivia,
226 F.3d 198, 202 (3d Cir. 2000). Defendants argue that the policy that the
School Directors followed complied with Loudermill therefore, it cannot be held
? According to the compliant, prior to the hearing, plaintiff received an e-mail message from he
Union Representative. (Doc. 1, ] 8). This e-mail informed plaintiff that she was required to
attend a meeting with Defendant Wilkes-Barre Area School District superintendent and/or
Wilkes-Barre Area School District Office of Human Resources. (lId.) Plaintiff "requested to
know the purpose of the meeting and whether she should have legal counsel present, her
request was refused.” (Id.)
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responsible for any constitutional violation. As addressed above, however,
questions of fact exist regarding whether plaintiff received a proper Loudermill
Hearing and notice of that hearing. Accordingly, the court rejects defendants’
argument.
ll. Count IV — Wrongful Suspension in Violation of Public Policy
Count IV of plaintiff's complaint avers a Pennsylvania state law cause of
action for wrongful suspension without pay in violation of public policy. The law
provides that Pennsylvania is typically an "at-will" employment state. McLaughlir
v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa. 2000). An exception
to this general rule is when an employee's termination violates a "clear mandate
of public policy.” Weaver v. Harpster, 975 A.2d 555, 563 (Pa. 2009).
Defendants argue that plaintiff was charged with terroristic threats. If she
had been convicted of that charge, she would have been subject to termination
from her position under 24 PA. STAT. § 1-111(f.1(2)). Although, defendants may
ultimately be correct on this issue, it would be premature for the court to address
it without further development of the record. Plaintiff's complaint does not allege
what the criminal charges against her were. Thus, the court cannot perform an
analysis here.
ill. Count Ill
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Count III of plaintiff's complaint alleges a state law cause of action for
breach of contract. (Doc. 1 J] 39-47). Defendants argue that this cause of
action should be dismissed because the federal law causes of action should be
dismissed, and without the federal causes of action this court does not have
supplemental jurisdiction over plaintiff's state law claim. As set forth above,
however, the court will not dismiss the federal causes of action. Accordingly, the
court will still have jurisdiction over the state law claims. See 28 U.S.C. § 1367.
Conclusion
For the reasons set forth above, the defendants’ motion to dismiss the
plaintiffs complaint will be denied. Although plaintiff does admit to attending a
hearing, many questions of fact remain. For example, questions exist as to the
notice plaintiff received, when it was received, and the substance of the notice.
Additionally, questions involving the hearing itself exist. Accordingly, it is
inappropriate to dismiss these claims at this time. These issues might better be
addressed at the summary judgment stage or at trial when the factual record has
been developed. An appropriate order follows”
\,
Date: /.S QS / =
| JUDGE JULIA-K. MUNLEY
United States Distri urt
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