STEVEN SHADLE v. PENNSYLVANIA STATE SYSTEM OF HIGHER EDUCATION, et al.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STEVEN SHADLE, No. 4:25-CV-00476

Plaintiff, (Chief Judge Brann)

v.

PENNSYLVANIA STATE SYSTEM

OF HIGHER EDUCATION, et al.,

Defendants.

MEMORANDUM OPINION

NOVEMBER 26, 2025

I. BACKGROUND

On March 14, 2025, Plaintiff, Steven Shadle, filed a seven-count complaint

against Defendants, Pennsylvania State System of Higher Education (“PASSHE”),

Commonwealth University of Pennsylvania (“Commonwealth”) (together

“University Defendants”), Tena Maurer, and Belinda Sauers (together “Individual

Defendants”).1 On May 13, 2025, Defendants filed a motion to dismiss.2 In response,

Shadle filed an amended complaint on July 2, 2025, in which he added factual

allegations and removed two counts, for a revised total of five.3

1 Doc. 1 (Compl.).

2 Doc. 6 (First Mot. to Dismiss).

On July 15, 2025, Defendants moved to dismiss the amended complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.4 The

motion is now ripe for disposition; for the reasons that follow, it is granted in part

and denied in part.

II. DISCUSSION

A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), courts dismiss a complaint,

in whole or in part, if the plaintiff fails to “state a claim upon which relief can be

granted.” Following the landmark decisions of Bell Atlantic Corp. v. Twombly5 and

Ashcroft v. Iqbal,6 “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’”7 The United States Court of Appeals for the Third Circuit has instructed

that “[u]nder the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps”: (1) “take note of the

elements the plaintiff must plead to state a claim”; (2) “identify allegations that,

because they are no more than conclusions, are not entitled to the assumption of

4 Doc. 14 (Second Mot. to Dismiss).

5 550 U.S. 544 (2007).

6 556 U.S. 662 (2009).

7 Id. at 678 (quoting Twombly, 550 U.S. at 570).

truth”; and (3) “assume the[] veracity” of all “well-pleaded factual allegations” and

then “determine whether they plausibly give rise to an entitlement to relief.”8

A plaintiff in an employment discrimination case does not need to establish a

prima facie case in his or her complaint.9 “A prima facie case is ‘an evidentiary

standard, not a pleading requirement.’”10 At the motion to dismiss stage, then, the

plaintiff must simply allege “enough facts to raise a reasonable expectation that

discovery will reveal evidence of the necessary elements” of a prima facie case.11

When deciding a motion to dismiss, a court generally considers only the

allegations in the complaint, exhibits attached thereto, and facts of public record.12

Normally, to consider anything beyond those sources, a motion to dismiss must be

converted to a motion for summary judgment.13 But consideration of materials

outside the complaint is not completely barred on a 12(b)(6) motion. Courts may

consider any documents that are integral or explicitly relied upon in the complaint.14

“However, before materials outside the record may become the basis for a dismissal,

several conditions must be met.”15 “For example, even if a document is ‘integral’ to

8 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations

and citations omitted).

9 Id. at 788.

10 Id. at 789 (quoting Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002)

11 Id. (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (internal

quotations and alterations omitted)).

12 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

13 See Fed. R. Civ. P. 12(d).

14 Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).

15 Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).

the complaint, it must be clear on the record that no dispute exists regarding the

authenticity or accuracy of the document.”16 It must also be clear that there exists no

material disputed issues of fact regarding the relevance of the document.17 In this

matter, the Court finds that these conditions have been met, and will consequently

consider Defendant’s attachments, although they do not impact the outcome of this

decision.

B. Facts Alleged in the Amended Complaint

The facts alleged in the amended complaint, which this Court must accept as

true for the purposes of this motion, are as follows.

Steven Shadle works as a Maintenance Repairman II at the Lock Haven

Campus of Commonwealth University of Pennsylvania, where he has been

employed since 1998.18 Before starting at Lock Haven, Shadle served in the United

States Air Force and was honorably discharged in March 1996.19

16 Id.; see also Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Alternative Energy, Inc.

v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).

17 Faulkner, 463 F.3d at 134.

18 Doc. 12 ¶ 21. Although not directly relevant to the instant case, the Court notes that Lock

Haven University of Pennsylvania was a standalone public university until the PASSHE began

to consolidate Pennsylvania’s public university system in 2022. See History, Commonwealth

University of Pennsylvania, https://www.commonwealthu.edu/about/history (last visited Nov.

18, 2025); Kevin Hensil, Board of Governors approve student-centered university integration

plans, Pa. State Sys. of Higher Educ. (July 14, 2021),

https://www.passhe.edu/news/releases/2021-07-11-Board-of-Governors-Integrations.html.

Lock Haven combined with Bloomsburg and Mansfield Universities to form Commonwealth

University. Id. In the interest of precision and familiarity, the Court refers to the Lock Haven

Campus of Commonwealth University as “Lock Haven.”

19 Doc. 12 ¶¶ 20, 126.

On January 13, 2023, the University Defendants posted a job opening for a

Safety Inspector at Lock Haven.20 The posting listed several “Minimum

Qualifications” for the position, including: “Successful completion of the Safety

Inspector Trainee program; or One-year experience with inspecting or maintaining

fire suppression systems and equipment for compliance with applicable safety

regulations”; “a valid PA Driver License”; and “Knowledge of NFPA 25.”21 Shadle

alleges that the Safety Inspector Trainee program requirement could be completed

after hiring.22 The posting did not list any other “requisite, minimum, or preferred

qualifications,” nor was Shadle made aware of any other qualifications.23 Belinda

Sauers and her successive supervisors, first Deanna Hill and then Tena Maurer,

oversaw hiring for the position.24

Shadle applied for the position on January 19.25 He submitted a formal

application including his resume and a letter of application, in which he claimed

eligibility for “veterans’ preference” under the Pennsylvania Veterans’ Preference

20 Id. ¶ 24.

21 Id. ¶ 30. “NFPA 25” undoubtedly refers to the National Fire Protection Association’s

“Standard for the Inspection, Testing, and Maintenance of Water-Based Fire Protection

Systems.” NFPA 25, Nat’l Fire Protection Assoc., https://www.nfpa.org/codes-and-

standards/nfpa-25-standard-development/25 (last visited Nov. 10, 2025).

22 Id. ¶ 32.

23 Id. ¶¶ 34-36, 58-59.

24 Id. ¶¶ 27-28. When the position was posted, Ms. Hill (who is not a party) was Ms. Sauers’s

supervisor and had hiring authority. Id. ¶ 8. Ms. Hill retired on April 21, 2023, at which point

Ms. Maurer took over. Id. ¶¶ 8-10.

25 Id. ¶ 37.

Act (“VPA”),26 explained that he had not yet completed the Safety Inspector Trainee

program, and mistakenly indicated that he lacked one-year experience with

instructing or maintaining fire suppression system and did not have knowledge of

NFPA 25.27

On February 17, Shadle apparently spoke with Ms. Hill, who informed him

that he met the position’s minimum qualifications.28 Several days later, on February

22, Shadle sent a clarifying email to Ms. Hill addressing his qualifications.29 He

followed up again in more detail on February 28, explaining that he had “24 years

of experience visually inspecting” fire suppression systems and equipment (although

he not previously held a position “of solely inspecting and maintaining”) and that he

had general familiarity with NFPA 25 and “would have no issue” getting NFPA 25

certified after being hired (although he was not already certified).30 Shadle also noted

the he had other relevant maintenance experience and possessed “[e]xtensive

knowledge of locations and functional maintenance of campus fire suppression and

safety systems” given his “24 years” at Lock Haven.31 According to Shadle, “the

combination of [his] application documents and emails . . . evidenced that he met

the requisite requirements for the position.”32

26 See 51 Pa. Cons. Stat. §§ 7101-7111.

27 Doc. 12 ¶¶ 37-41.

28 Id. ¶ 42.

29 Id. ¶¶ 44-45.

30 Id. ¶¶ 46-47.

31 Id. ¶¶ 47-50.

32 Id. ¶ 51.

Also on February 28, Ms. Hill informed Shadle (and presumably the other

applicants) that twelve people had applied for the position and four had been selected

for first round interviews.33 Shadle was one of the interviewees.34 According to

Shadle, “[n]one of the other interviewed applicants were veterans.”35 Shadle infers

that “he possessed more than the minimum qualifications” for the position from the

fact that he was selected for an interview,36 and alleges that “[t]he official Applicant

Log . . . admitted and confirmed that Shadle met the minimum qualifications for the

position.”37 Yet although he had never been informed of any “preferred

qualifications” for the position, the Applicant Log also allegedly stated that Shadle

did not meet “some/all of preferred qualifications.”38

Shadle was dropped from consideration for the position after his interview on

March 8.39 A note on the Applicant Log stated that he “did not emerge among the

most qualified candidates post interview,” and an internal email from a member of

the search committed noted that Shadle did not meet the “[e]xperience

requirement(s)” and “[m]eets minimum quals, but not among the most qualified

candidates.”40 Shadle scored a 27 on his interview, which he notes is below the

33 Id. ¶ 52.

34 Id. ¶ 53.

35 Id. ¶ 57.

36 Id. ¶ 54.

37 Id. ¶ 55.

38 Id. ¶ 60.

39 Id. ¶ 66.

40 Id. ¶ 61.

scores of the two candidates who received second round interviews, but only by two

points.41 Another applicant, Holly Evans, received similar remarks on the applicant

log.42 She scored lower than Shadle at the pre-interview stage, and was not granted

an interview.43

Following Shadle’s failed application, his union representatives inquired

about application of the VPA, and Ms. Hill allegedly “admitted . . . that Defendants

had not been operating under the . . . Act as it existed at that time,” and confirmed

“that Shadle met the minimum requirements for the position.”44 After Ms. Hill

retired, Shadle’s union representatives asked Ms. Maurer about Shadle’s

qualifications, and she explained that she did not believe Shadle met the minimum

requirements.45 Shadle alleges that Ms. Maurer’s response was knowingly untrue.46

After it was clear that Shadle would not be hired for the January posting, his union

filed a Grievance alleging a violation of the VPA.47 The University Defendants

denied the Grievance, contending that Shadle did not meet the minimum

requirements for the position.48

41 Id. ¶ 65.

42 Id. ¶ 67.

43 Id.

44 Id. ¶¶ 68-70.

45 Id. ¶ 74.

46 Id. ¶ 75.

47 Id. ¶ 79.

48 Id. ¶ 80.

On May 24, the University Defendants sent an email to Shadle stating that

“the University has made the decision to move the search in another direction that

more closely fits our needs at this time.”49 None of the applicants for the January

posting was hired.50

On June 12, the University Defendants posted another job opening for a Safety

Inspector at Lock Haven.51 The June posting included the same “Position

Description,” “Specific Duties,” and “Minimum Qualifications” as the January

posting.52 But unlike the January posting, the June posting included new “Preferred

Qualifications,” such as: “Three years’ experience in the fire services”; “Experience

with fire extinguishers, sprinkler systems, and other safety equipment”; “Knowledge

and demonstrated ability to use Microsoft Word, Excel, and PowerPoint”; and

“Completed training relevant to the position,” and permitted applicants to submit

“Optional Documents” such as “Professional Licenses/Certifications.”53 Shadle

contends that “these ‘Preferred Qualifications’ and Optional Document were added

specifically in an attempt to circumvent the VPA and preclude Shadle from being

awarded the position.”54 Furthermore, Shadle alleges that “Defendants knew that

Ms. Evans possessed some of the newly added ‘Preferred Qualifications and

49 Id. ¶ 76.

50 Id. ¶ 78.

51 Id. ¶ 83.

52 Id. ¶¶ 85-86.

53 Id. ¶¶ 87-89.

54 Id. ¶ 90.

‘Optional Documents’” and “added and tailored [those options] specifically to

benefit and enable the hiring of [Ms.] Evans, a female non-veteran.”55

The same day, in an email exchange involving University Defendants’

personnel, Individual Defendants, and Shadle’s union representative, the

participants debated whether the June posting could be made public without union

approval given the changes that had been made.56 The position was ultimately

posted.57

On June 27, Shadle applied for the June posting.58 Ms. Evans also applied.59

Although their answers to the “Supplemental Questions” on their applications were

the same, in “Preferred Qualifications,” Ms. Evans listed “Interior firefighting,

exterior firefighting, hazardous materials operations level,” and she included two

“Licenses/Certifications”: “Hazmat First Responder” and “Bidic Vehicle Rescue

Technician.”60 Shadle listed “Skills and Qualifications” of “Leadership Across

Functional Management Communication” and “Project Management Problem

Solving,” as well as OSHA Licenses/Certifications regarding “Universal

Refrigerant, Hazardous Materials, Lockout/Tagout, and Health Hazard

Awareness.”61 Shadle concedes that he lacked the Preferred Qualification of “three

55 Id. ¶ 92.

56 Id. ¶¶ 94-97.

57 Id. ¶ 97.

58 Id. ¶ 99.

59 Id. ¶ 100.

60 Id. ¶¶ 102-04.

61 Id. ¶ 107.

years’ experience in the fire services,” but earlier states that he had the

qualification.62 Shadle was not interviewed for the position; Ms. Evans was hired.63

Shadle filed another Grievance through his union, which was again denied.64

In the denial, Ms. Maurer stated that “Shadle did not meet one of the ‘minimum

requirements.’”65

Shadle’s amended complaint sets forth five counts.66 Count I is brought

against all defendants and alleges a violation of the Uniformed Services

Employment and Reemployment Rights Act (“USERRA”), which prohibits

discrimination against individuals on the basis of their status as veterans.67 Count II

alleges that the Individual Defendants violated Shadle’s procedural due process

rights under the Fourteenth Amendment to the United States Constitution by

depriving him of the veterans’ preference benefit he was due under state law.68 Count

IV alleges that the Individual Defendants violated Shadle’s equal protection rights

under the Fourteenth Amendment when they hired a woman.69 Count VI is a civil

rights conspiracy charge brought against the Individual Defendants pursuant to 42

62 Compare id. ¶ 109 with id. ¶ 101.

63 Id. ¶¶ 112-13.

64 Id. ¶¶ 114-15.

65 Id. ¶ 115.

66 See generally id. When Shadle amended his complaint, he simply removed several counts

without renumbering them. Accordingly, the counts are nonconsecutive and labeled up to

seven.

67 38 U.S.C. §§ 4301-35.

68 See 42 U.S.C. § 1983 (authorizing suit against states for violations of constitutional rights).

69 Id.

U.S.C. § 1985 based on the alleged constitutional violations in the previous two

counts. Finally, Count VII charges the University Defendants with a violation of the

VPA for failing to give preference to Shadle’s application.70

C. Analysis

The Court proceeds to analyze the claims in the order Shadle presents them.

The upshot is this: (1) his USERRA claim must be dismissed for lack of jurisdiction;

(2) the due process claim, though thin, states a claim under existing law; (3) the equal

protection claim fails; (4) the conspiracy claim fails; and (5) I decline to dismiss the

VPA claim. Accordingly, I grant in part and deny in part the motion to dismiss.

1. USERRA

“Federal courts are not courts of general jurisdiction; they have only the power

that is authorized by Article III of the Constitution and the statutes enacted by

Congress pursuant thereto.”71 When Congress has provided judicial authority to

consider and remedy a particular type of dispute, it has granted “subject-matter

jurisdiction” over that claim.72 “[F]ederal courts ‘have an independent obligation to

determine whether subject-matter jurisdiction exists, even in the absence of a

challenge from any party.’”73 “If the court determines at any time that it lacks

70 See 52 Pa. Cons. Stat. §§ 7101-11.

71 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (citing Marbury v. Madison,

1 Cranch 137, 173-80 (1803)).

72 See Page v. Schweiker, 786 F.2d 150, 153 (3d Cir. 1986).

73 Hartig Drug Co. v. Senju Pharm. Co., 836 F.3d 261, 267 (3d Cir. 2016) (quoting Arbaugh v.

Y & H Corp., 546 U.S. 500, 514 (2006)).

subject-matter jurisdiction, the court must dismiss the action.”74 Accordingly, if

Congress has not statutorily conferred jurisdiction on a federal court, it cannot

adjudicate the claim.75

Shadle brings his USERRA claim on his own behalf against Pennsylvania

state instrumentalities and employees.76 USERRA provides that such claims “may

be brought in a State court of competent jurisdiction in accordance with the laws of

that State.”77 Although written permissively, every federal Court of Appeals to

consider the provision has determined that Congress “inten[ded] to limit USERRA

suits against states to state courts.”78 The Supreme Court has also embraced this

interpretation in dicta.79 District Courts in Pennsylvania have adopted this reasoning

and concluded that “although USERRA provides a federal cause of action, USERRA

also divests federal courts of their jurisdiction in actions brought against states, as

employers.”80 And USERRA did not “enact a cause of action against the employee’s

74 Fed. R. Civ. P. 12(h)(3).

75 Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).

76 See Doc. 12 ¶¶ 2-5; 24 Pa. Stat. § 20-2002-A(a).

77 38 U.S.C. § 4323(b)(2); see 38 U.S.C. § 4303(14) (defining “State” to “includ[e] the agencies

and political subdivisions thereof”).

78 Velasquez v. Frapwell, 165 F.3d 593, 594 (7th Cir. 1999) (per curiam); McIntosh v. Partridge,

540 F.3d 315, 321 (5th Cir. 2008); Townsend v. Univ. of Alaska, 543 F.3d 478, 482-84 (9th

Cir. 2008); Wood v. Fla. Atl. Univ. Bd. of Trustees, 432 F. App’x 812, 815 (11th Cir. 2011).

79 Torres v. Tex. Dep’t of Pub. Safety, 597 U.S. 580, 595 (2022) (“Congress’ clarification that

suits proceed ‘in a State court of competent jurisdiction in accordance with the laws of the

State’ merely addresses the fact that USERRA suits must be brought in state (rather than

federal) court.” (emphasis added)).

80 MacMillan v. Pa. Air Nat’l Guard, No. 18-CV-0576, 2018 WL 2730883, at *1 & n.1 (W.D.

Pa. June 7, 2018) (citing Wood, 432 F. App’x at 815 and McIntosh, 540 F.3d at 321). Notably,

the interpretation is that Congress has affirmatively stripped federal courts of jurisdiction over

USERRA claims, rendering supplemental jurisdiction inappropriate. See 28 U.S.C. § 1367(a)

supervisors in their individual capacity,” further dooming the claim against the

Individual Defendants.81 I agree with this reasoning.

Accordingly, the Court lacks subject-matter jurisdiction over the USERRA

claim and it must be dismissed as to all Defendants.82 Because a dismissal based on

a lack of subject matter jurisdiction is not an adjudication on the merits, the dismissal

must be without prejudice.83

2. Procedural Due Process

In his procedural due process claim, Shadle contends that the individual

defendants deprived him of his property right in the veterans’ preference afforded

by Pennsylvania state law.84 To make out such a claim, Shadle must plausibly allege:

(1) that he was deprived of “a property interest protected by procedural due

process”;85 and (2) “the procedures available to him did not provide ‘due process of

law.’”86

(providing that supplemental jurisdiction is not permitted when “expressly provided otherwise

by Federal statute”).

81 Townsend, 543 F.3d at 484; Mason v. Delaware (J.P. Court), No. 15-CV-1191, 2018 WL

4404067, at *6 (D. Del. Sept. 17, 2018).

82 Fed. R. Civ. P. 12(h)(3).

83 Aldossari ex rel. Aldossari v. Ripp, 49 F.4th 236, 262 (3d Cir. 2022).

84 An aggrieved plaintiff may sue for a violation of his constitutional rights pursuant to 42 U.S.C.

§ 1983. Other than the disputes addressed in the body of this opinion, everyone agrees that the

requirements of a section 1983 claim are met.

85 Gikas v. Wash. Sch. Dist., 328 F.3d 731, 737 (3d Cir. 2003) (citing Robb v. City of Phila., 733

F.2d 286, 292 (3d Cir. 1984)); Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir.

2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)).

86 Hill, 455 F.3d at 234.

“Those property rights which enjoy procedural due process protection are

determined by state law.”87 Binding precedent establishes that the VPA “creates a

legitimate entitlement to the preference [in hiring],” therefore “§ 7104(a) creates a

property interest for the purposes of procedural due process.”88 To be clear, however,

Shadle “does not have a property interest in the . . . position itself, but in the veterans’

preference, which comes into play only if he has the ‘requisite qualifications’ for the

job.”89 If and when Shadle became entitled to the preference—i.e., whether he had

the “requisite qualifications”—is similarly a question of state law.

In Brickhouse v. Spring-Ford Area School District, the Pennsylvania Supreme

Court considered what it means to be “qualified” under the VPA.90 Drawing on prior

precedent, the court reasoned that “a veteran seeking to take advantage of the

preference mandated by the act must be able to demonstrate his ability to perform

the job at the level of skill and with the expertise demanded by the employer.”91 The

requirement that a veteran be able to perform at the employer’s desired level of skill

87 Puchalski v. Sch. Dist. of Springfield, 161 F. Supp. 2d 395, 405 (E.D. Pa. 2001) (citing Bishop

v. Wood, 426 U.S. 341, 344 (1976)); see Hill, 455 F.3d at 234 (“Whether a person has a

legitimate entitlement to—and hence a property interest in—his government job is a question

answered by state law.”).

88 Gikas, 328 F.3d at 738.

89 Id. at 738-39 (citing Carter v. City of Phila., 989 F.2d 117, 122 (3d Cir. 1993)); id. at 738

(“Although it is more difficult to determine whether an applicant veteran qualifies for the

preference under § 7104(a), that veteran, if qualified, is no less entitled to the preference in §

7104(a) than he would be to the preference in § 7104(b).”); see Merrell v. Chartiers Valley

Sch. Dist., 855 A.2d 713, 718 (Pa. 2004) (“The property interest at issue here is not in the

teaching position itself, but in the preference.”).

90 656 A.2d 483 (Pa. 1995).

91 Id. at 486-87 (citing Commonwealth ex rel. Graham v. Schmid, 3 A.2d 701, 704 (1938)).

and expertise means that “merely having the appropriate certification or licensure,

without more, would not serve to qualify an applicant for the job.”92 In Merrell v.

Chartiers Valley School District, the court elaborated on its holding in Brickhouse,

explaining that “considerable deference must be afforded the hiring authority in its

determination of whether and to what extent an applicant possesses the meritorious

qualities required for a position . . . . [P]ublic employers must be free to set hiring

requirements to ensure competency.”93 Applying this standard, the statutory

preference does not require public employers “to hire preference eligible veterans if

they do not believe the candidate is qualified or possesses the requisite experience.”94

Furthermore, the Third Circuit has clearly held that “the property interest in the

preference does not require that an applicant veteran be informed of the meaning of

‘requisite qualifications.’”95 Once a veteran has met the qualifications by “reaching

the final level of consideration,” the preference attaches and he must be selected.96

Shadle did not make it to the final stage of consideration in either of his

applications. Under the preceding statement of law, that fact would be sufficient to

92 Id. at 487.

93 855 A.2d 713, 720 (Pa. 2004) (discussing Brickhouse, 656 A.2d 483).

94 Id. at 720.

95 Gikas, 328 F.3d at 739.

96 Merrell, 855 A.2d at 721-22; see Merrell v. Chartiers Valley Sch. Dist., 51 A.3d 286, 295 (Pa.

Commw. Ct. 2012) (“Merrell II”) (“The School Board would have been required to hire

Merrell, the only veteran among the final three applicants, had he reached the final step in the

hiring process.”).

end Shadle’s case, as Defendants argue.97 But the Pennsylvania courts have carved

out an additional path for an applicant to establish entitlement to the preference.

Despite the strong deference that must be given to the employer, the

Pennsylvania Supreme Court has repeatedly warned of the risk that “a public

employer might be able to formulate qualifications for a job in such a way as to

defeat the veterans’ preference required by the act.”98 If the employer has

“established qualifications meant to circumvent that Act” “in bad faith without

regard to legitimate need, they must fail.”99 That determination must be made “on a

case by case basis.”100 This second route is far broader than the first, and does not

lend itself to resolution on a motion to dismiss.101 From the limited precedent

available, it appears that a Court should only foreclose this route if it is exceedingly

clear that the applicant did not meet the position’s legitimate qualifications.102

Accordingly, although the Court finds Shadle’s position tenuous at best, the

allegations are sufficient to survive a motion to dismiss. Shadle contends that he met

97 See Doc. 15 (Mot. to Dismiss Brief) at 14 (arguing that “Plaintiff did not reach the final

selection process”).

98 Brickhouse, 656 A.2d at 487.

99 First Merrell, 855 A.2d at 721, then Brickhouse, 656 A.2d at 487.

100 Brickhouse, 855 A.2d at 487.

101 See Merrell, 855 A.2d at 721-22 (criticizing the “scant record” and remanding to permit the

veteran to “show that there was a flaw in the process that precluded the ripening of his

interest”).

102 See Brickhouse, 656 A.2d at 487-88 (“In this case, there is no doubt that the school district’s

criteria for employment were rationally related to the job and that Brickhouse’s credentials did

not qualify him for the job. Were these considerations less apparent than they are, we would

remand for an evidentiary hearing to determine whether the employer’s requirements for the

job were reasonable and the whether the applicant was ‘qualified’ with respect to those

requirements.”).

the publicly available minimum qualifications and was repeatedly informed that he

was qualified for the role during his first application. He also made it through several

stages of the first hiring process. Although he did not progress to the final round of

consideration for either posting, it is not outlandish to infer bad faith in the

formulation of qualifications from Shadle’s allegations that the Individual

Defendants: (1) refused to hire any applicants at the end of the first posting; (2)

provided conflicting explanations regarding whether Shadle met the minimum

requirements for the position; (3) at times expressed unfamiliarity or noncompliance

with the VPA; (4) changed the public qualifications for the second posting; and (5)

hired an individual for the second posting whom Shadle had outperformed on the

first posting.

Moreover, these considerations also go to the issue of whether Shadle was

deprived of his entitlement through a valid procedure. Essentially, Shadle contends

that the hiring processes were rigged to prevent him from making it to the final round

of consideration such that the veterans’ preference would be avoided. It is well

established that “where a particular process is inadequate, effectively blocked, or a

sham, that process . . . would not provide the due process required by law.”103

103 Saucon Valley Manor, Inc. v. Miller, 392 F. Supp. 3d 554, 581 (E.D. Pa. 2019) (quoting Yelland

v. Abington Heights Sch. Dist., No. 16-CV-2080, 2017 WL 6206289, at *4 (M.D. Pa. Dec. 8,

2017)); see Bakalis v. Golembesky, 35 F.3d 318, 326 (7th Cir. 1994) (“[A] body that has

prejudged the outcome cannot render a decision that comports with due process.”).

Accordingly, Shadle has adequately pled both elements of a procedural due

process claim, and the motion to dismiss is therefore denied as to this issue.

3. Equal Protection

In his equal protection claim, Shadle contends that he was discriminated

against because he is a man. “[T]o establish a gender discrimination claim under the

Equal Protection Clause, a plaintiff must allege: (1) disparate treatment in relation

to other similarly situated individuals, and (2) that the discriminatory treatment was

based on sex.”104

As to the first prong, although Defendants argue that Shadle “fails to make

any allegations that Holly Evans, as a female, was treated differently than he was,”105

Shadle has clearly alleged that Ms. Evans was hired and he was not. That is disparate

treatment. Whether he has sufficiently alleged that Ms. Evans was similarly situated

is a closer question, but he has met the bar here. “‘Persons are similarly situated

under the Equal Protection Clause when they are alike in all relevant respects,’”

“‘but the law in the third circuit does not require [the plaintiff] to show that the

[comparators] are identical in all relevant respects.’”106 Shadle explains that he and

104 Johnston v. Univ. of Pittsburgh of the Commw. Sys. of Higher Educ., 97 F. Supp. 3d 657, 667

(W.D. Pa. 2015) (citing Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990)); Kahan

v. Slippery Rock Univ. of Pa., 50 F. Supp. 3d 667, 705 (W.D. Pa. 2014); Gilson v. Pa. State

Police, 175 F. Supp. 3d 528, 557 (W.D. Pa. 2016).

105 Doc. 15 at 16.

106 Brooks v. State Coll. Area Sch. Dist., 707 F. Supp. 3d 448, 468 (M.D. Pa. 2023) (quoting

Stradford v. Sec’y of Pa. Dep’t of Corr., 53 F.4th 67, 74 (3d Cir. 2022) and Southersby Dev.

Corp. v. Borough of Jefferson Hills, 852 F. Supp. 2d 616, 628 (W.D. Pa. 2012)).

Ms. Evans both had similar qualifications for the position, and that the distinctions

in their “Preferred Qualifications” were not pertinent to the job duties.107 He also

alleges that, in the first hiring round, Ms. Evans scored lower than he did in pre-

interview reviews, further supporting an inference that they were similarly qualified,

or even that Shadle was more qualified.108

On the second prong, Shadle “must show an intentional or purposeful

discrimination.”109 “[W]ithout more, the mere existence of disparate impact does not

prove purposeful discrimination.”110 “Evidence of procedural irregularities . . . may

raise an inference of discriminatory intent. However, there must be some evidence

that the irregularities were related to the plaintiff[’]s protected class.”111 Here, the

totality of Shadle’s allegations of sex discrimination, as set forth in his brief in

opposition, consist of the fact that Evans was a female combined with the procedural

irregularities of the second posting including “‘Preferred Qualifications’ and the

ability to provide ‘Optional Documents’ tailored specifically to benefit and enable

the hiring of Evans” and “not affording Shadle an interview following the June 2023

107 Doc. 12 ¶¶ 100-07.

108 Id. ¶ 67.

109 Williams v. Macut, No. 15-CV-1645, 2016 WL 4988401, at *5 (M.D. Pa. Sept. 19, 2016)

(citing Snowden v. Hughes, 321 U.S. 1, 8 (1944)).

110 Doe v. Williamsport Area Sch. Dist., 699 F. Supp. 3d 306, 323-24 (M.D. Pa. 2023) (citing

Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977)).

111 King v. Mansfield Univ. of Pa., No. 15-CV-0159, 2019 WL 1003612, at *6 (M.D. Pa. Feb. 28,

2019) (quoting Blunt v. Lower Merion Sch. Dist., 826 F. Supp. 749, 760 (E.D. Pa. 2011)); see

Raven v. City of Phila., No. 15-CV-4146, 2017 WL 930316, at *3 (E.D. Pa. Mar. 8, 2017)

(quoting Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 273 (3d Cir. 2014)); see also

Arlington Heights, 429 U.S. at 261-62.

job posting while giving Evans an interview.”112 There is nothing in the complaint

to directly or obliquely suggest that the Individual Defendants harbored any animus

against men as a class. These allegations are simply too thin to create a reasonable

expectation that discovery will provide evidence that the irregularities were an

intentional effort to discriminate against Shadle because he is a man.

Shadle could, of course, allege some additional information which would

increase the likelihood that Defendants acted with sex-based discriminatory intent.

Or, if discovery does produce evidence of sex-based animus, he could seek to

reassert this claim.113 But, as it stands, his allegations fall short of stating a sex-based

equal protection claim, and that count is dismissed without prejudice.

4. Civil Rights Conspiracy

Title 42 U.S.C. § 1985 prohibits conspiracies to interfere with civil rights. To

state a claim under that statute, the plaintiff must allege four elements: “(1) a

conspiracy motivated by invidious discriminatory animus; (2) for the purpose of

depriving, either directly or indirectly, any person or class of persons of equal

protection of the laws, or of equal privileges and immunities under the laws; (3) an

112 Doc. 17 (Opp’n to Mot. to Dismiss) at 20. Shadle lists a few other bits of evidence, but they

just restate the disparate treatment and so add nothing. See id. (listing “hiring Evans over

Shadle despite the fact that both did not meet the ‘Preferred Qualification’ of ‘Completed

training relevant to the position,’” and “awarding Evans the position”).

113 Given that Shadle will have the opportunity to conduct discovery regarding the irregularities

in the hiring process, it should very quickly become apparent whether he might be able to

reassert his equal protection claim.

act in furtherance of the conspiracy; and (4) as a result, a person either is injured in

his person or deprived of any right or privilege of a citizen of the United States.”114

Shadle’s claim fails both aspects of the first element. Start with conspiracy. A

defendant must allege an agreement or a “meeting of the minds”115 between the

supposed conspirators through “facts from which a conspiratorial agreement can be

inferred.”116 Such circumstantial allegations can include: “that the alleged

conspirators did or said something to create an understanding, the approximate time

when the agreement was made, the specific parties to the agreement, the period of

the conspiracy, or the object of the conspiracy.”117 Other than general allegations

that Maurer and Sauers worked together, there is no suggestion that they

communicated about Shadle’s application, much less that they reached an agreement

about how to handle it. Indeed, the only allegations about communications between

the two show that they disagreed about the second posting.118 The bare fact that

Maurer and Sauers both worked on the postings does not establish any agreement

between them on the relevant issues.

114 Silvestre v. Bell Atl. Corp., 973 F. Supp. 475, 484 (D.N.J. 1997) (citing Bray v. Alexandria

Women’s Health Clinic, 506 U.S. 263, 268 (1993)).

115 Startzell v. City of Phila., 533 F.3d 183, 205 (3d Cir. 2008) (quoting Adickes v. S.H. Kress &

Co., 398 U.S. 144, 158 (1970)).

116 Frempong v. Sheriff of Phila., No. 24-CV-1064, 2024 WL 3625174, at *6 (E.D. Pa. Aug. 1,

2024) (quoting Great W. Mining & Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir.

2010)).

117 Id. (quoting Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 295 (3d Cir. 2018)).

118 See Doc. 12 ¶¶ 95-97 (describing an email chain in which Sauers and Maurer took inconsistent

positions about the second posting).

Turn next to “motivated by invidious discriminatory animus.” This requires a

non-conclusory allegation that “some . . . class-based, invidiously discriminatory

animus [lay] behind the conspirators’ action.”119 As noted in the prior section,

Shadle’s allegations do not clear the bar to create a reasonable expectation that he

will discover evidence that Defendants discriminated against him because he is a

man.120

Accordingly, Shadle has not stated a claim of conspiracy, and this count is

dismissed without prejudice.

5. Veterans’ Preference Act

Based on my earlier discussion, it would appear that Shadle’s allegations state

a claim for a violation of the VPA under Pennsylvania law.121 But the VPA claim is

brought solely against the University Defendants, who argue that they are entitled to

statutory and constitutional sovereign immunity.122

The briefing from each party on the sovereign immunity issue is quite thin.123

Moreover, the Court is also concerned that the VPA does not provide for a private

cause of action.124 On the Court’s review, VPA cases in Pennsylvania state court

119 Henry v. Essex Cnty., 113 F.4th 355, 363 (3d Cir. 2024) (quoting Bray, 506 U.S. at 268-69).

120 See Section II.C.3, supra.

121 See Section II.C.2, supra; Basile v. Elizabethtown Area Sch. Dist., 61 F. Supp. 2d 392, 403

(E.D. Pa. 1999) (finding that analysis of VPA claim was duplicative of due process claim based

on deprivation of entitlement to veterans’ preference under VPA).

122 Doc. 12 at 34-37; Doc. 15 at 9-10.

123 Doc. 15 at 9-11; Doc. 17 at 11-12.

124 51 Pa. Cons. Stat. §§ 7101-11 (making no provision for a private cause of action).

almost invariably arise from administrative appeals of the decision of the relevant

state authority,125 and the few federal cases do not analyze the cause of action

issue.126 The Court is reluctant to wade into this confused area of law without

significantly greater development by the parties.127 Given that the due process claim,

which is duplicative of the VPA claim, will continue, the Court sees little reason to

unwind this tangled knot now.128 Moreover, Shadle seeks declaratory judgment on

125 See, e.g., Donahue v. Pa. Dep’t of Hum. Servs., 343 A.3d 767 (Pa. Commw. Ct. 2025) (Table)

(appeal from Civil Service Commission Order); Dep’t of Corr. v. Lynn, 306 A.3d 338 (Pa.

2023) (appeal from Civil Service Commission Order); Blake v. State Civ. Serv. Comm’n, 166

A.3d 292 (Pa. 2017) (appeal from Civil Service Commission Order); Soberick v. Salisbury

Twp. Civ. Serv. Comm’n, 874 A.2d 155 (Pa. Commw. Ct. 2005) (appeal from Civil Service

Commission Order); Pa. Game Comm’n v. State Civ. Serv. Comm’n, 789 A.2d 839 (Pa.

Commw. Ct. 2002) (appeal from Civil Service Commission Order); Housing Auth. of Cnty. of

Chester v. Pa. State Civ. Serv. Comm’n, 730 A.2d 935 (Pa. 1999) (appeal from Civil Service

Commission Order); Brickhouse, 656 A.2d 483 (appeal nunc pro tunc of school board’s

decision); Herskovitz v. State Civ. Serv. Comm’n, 534 A.2d 160 (Pa. Commw. Ct. 1987)

(appeal from Civil Service Commission Order); Rasmussen v. Borough of Aspinwall, 519 A.2d

1074 (Pa. Commw. Ct. 1987) (appeal from decision of borough council); Ne. Educ.

Intermediate Unit. No. 19 v. Stephens, 510 A.2d 1267 (Pa. Commw. Ct. 1986) (appeal from

decision of Board of Directors). But see Zablow v. Bd. of Educ. Of Sch. Dist. of Pittsburgh,

729 A.2d 124 (Pa. Commw. Ct. 1999) (remanding case apparently brought directly pursuant

to section 7104(a)).

126 Basile, 61 F. Supp. 2d at 406; Lucas v. Cnty. of Allegheny, No. 05-CV-0760, 2007 WL 2752143

(W.D. Pa. Sept. 19, 2007); Tranter v. Crescent Twp., No. 06-CV-0355, 2006 WL 1851299

(W.D. Pa. July 3, 2006); O’Conner v. Kelly, 2004 WL 1012853 (E.D. Pa. May 5, 2004);

Drelick v. City of Phila., No. 94-CV-1460, 1995 WL 447645 (E.D. Pa. July 28, 1995); cf.

Oberle v. City of Duquesne, No. 07-CV-1729, 2008 WL 1774119 (W.D. Pa. Apr. 17, 2008)

(plaintiff raised section 1983 claim for violation of VPA but did not assert claim directly under

VPA).

127 See Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 141-42 (3d Cir. 2017) (declining to decide

implied cause of action and exhaustion of administrative remedies questions without briefing

from the parties).

128 The Court is cognizant of the fact that the due process and VPA claims are brought against

different defendants, but all are represented by the same counsel and the scope of discovery

will not vary between the claims.

this count,129 and “sovereign immunity does not bar either mandamus or declaratory

judgment actions.”130

Accordingly, the motion to dismiss this count is denied.

III. CONCLUSION

Defendants’ motion to dismiss pursuant to Rule 12(b)(6) is granted in part and

denied in part. Plaintiff is granted leave to amend. “The Federal Rules of Civil

Procedure do not address the situation in which a deficiency in a complaint could be

cured by amendment but leave to amend is not sought.”131 But the law in the Third

Circuit is clear that leave to amend should be “freely given” regardless of whether

leave is specifically requested.132

As such, Plaintiff will be given fourteen days from today’s date to file a

second amended complaint. If no second amended complaint is filed, Defendants

shall answer the remaining counts of the first amended complaint within twenty-

eight days from today’s date.

129 Doc. 12 at 37.

130 Log Cabin Property, LP v. Pa. Liquor Control Bd., 276 A.3d 862, 871 (Pa. Commw. Ct. 2022);

Pa. Fed’n of Dog Clubs v. Commonwealth, 105 A.3d 51, 59 (Pa. Commw. Ct. 2014) (reasoning

that a complaint asserting claims for declaratory relief, in addition to injunctive relief and

damages, cannot be dismissed based on sovereign immunity).

131 Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000).

132 Id. (quoting Fed. R. Civ. P. 15(a)).

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge