Holly Judge v. Shikellamy School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-2189

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HOLLY JUDGE,

Appellant

v.

SHIKELLAMY SCHOOL DISTRICT; PATRICK M.

KELLEY, Individually and in his capacity as District

Superintendent of the Shikellamy School District; DR.

JAMES P. HARTMAN, Individually and in his capacity as

President of the Shikellamy Board of Education; WENDY

WIEST, Individually and in her capacity as Vice President of

the Shikellamy Board of Education; LORI GARMAN,

Individually and in her capacity as Secretary of the

Shikellamy Board of Education; KELLIE CIANFLONE,

Individually and in her capacity as a member of the

Shikellamy Board of Education; JAMES GARMAN,

Individually and in his capacity as a member of the

Shikellamy Board of Education; C. SCOTT KARPINSKI,

Individually and in his capacity as a member of the

Shikellamy Board of Education; THOMAS MICHAEL,

Individually and in his capacity as a member of the

Shikellamy Board of Education; MICHAEL STEPP,

Individually and in his capacity as a member of the

Shikellamy Board of Education; DR. JEFFREY WALTER,

Individually and in his capacity as a member of the

Shikellamy Board of Education

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 4-15-cv-00551)

District Judge: Honorable Matthew W. Brann

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Submitted Under Third Circuit L.A.R. 34.1(a)

September 7, 2018

Before: HARDIMAN, KRAUSE, and BIBAS,

Circuit Judges.

(Filed: September 24, 2018)

Donald H. Brobst

Thomas J. Campenni

Rosenn Jenkins & Greenwald, LLP

15 South Franklin Street

Wilkes-Barre, PA 18711

Counsel for Appellant

Kimberly A. Boyer-Cohen

Marshall Dennehey Warner Coleman & Goggin

2000 Market Street, Suite 2300

Philadelphia, PA 19103

Counsel for Appellees

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OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

Holly Judge resigned her position at the Shikellamy

School District after she was arrested on suspicion of drunk

driving. Judge sued Shikellamy and a number of its officers

(the Individual Defendants), claiming she was constructively

discharged in violation of her constitutional and contractual

rights. Because there is no genuine dispute that Judge resigned

voluntarily, we will affirm.

I1

Judge had been principal of Oaklyn Elementary School

for about three years when, on the evening of May 30, 2014,

she was stopped by a Pennsylvania State Trooper for failing to

signal as she pulled into traffic. After acknowledging she had

been drinking, Judge became upset and asked the trooper to let

her go because she was concerned about her job. The trooper

declined and took Judge to the State Police barracks, where she

was given a blood alcohol test. The test showed that Judge’s

blood alcohol content was .332, more than four times the legal

1

The District Court had jurisdiction under 28 U.S.C.

§§ 1331 and 1367. We have jurisdiction under 28 U.S.C.

§ 1291. We review the District Court’s summary judgment de

novo. Bradley v. W. Chester Univ. of Pa. State Sys. of Higher

Ed., 880 F.3d 643, 650 (3d Cir. 2018).

3

limit. Judge was released from the barracks that night without

being informed of the test results.

A few weeks later, Judge had three encounters with

Shikellamy Superintendent Patrick Kelley. Having been

advised by two school board members that Judge had been the

subject of a traffic stop, Kelley walked into Judge’s office, shut

the door, and began asking her questions about the incident.

Later that day, around 3:00 p.m., Kelley summoned Judge to

his own office. As soon as Judge arrived, Kelley gave her a

letter to read. The letter stated three things: first, Kelley knew

that Judge had been stopped on suspicion of drunk driving;

second, Judge had not disclosed the events of May 30 until

confronted 20 days later; and third, Judge had a choice to make.

In Kelley’s words, the “underlying facts” required him to ask

for Judge’s “immediate resignation.” App. 120. The letter

continued:

If you do choose to resign then I

will offer a neutral reference in the

future upon inquiry. . . . [I]n the

alternative, if you decide not to

resign and DUI charges are filed

against you then I will be forced to

issue a written statement of

charges for dismissal. These

charges will be based upon the

following elements:

4

• Immorality - conduct which

offends the morals of the

Commonwealth and is a

bad example to the youth

whose ideals a professional

educator . . . has a duty to

foster and elevate. . . .

This letter is delivered on . . . June

19, 2014, and I await your answer

on, or before, 12:30 [p.m.] on June

20, 2014.

App. 120–21. 2 After reading the letter, Judge asked Kelley if

there was “anything [she] could do,” App. 201, but Kelley said

there was not. By the time Judge left Kelley’s office, it was

about 4:00 p.m. Judge went home and spoke with her mother

about the situation but did not contact a lawyer, even though

she had retained counsel after her arrest in anticipation of

possible criminal charges. Ultimately, Judge decided to resign

her position.

The next day, Judge met with Kelley for a third time and

presented him with a letter of resignation. Before handing

Kelley the letter, Judge told him she “was not even charged

with DUI yet.” App. 202. Kelley then handed Judge some court

documents indicating that, in fact, she had been charged. That

was the first time Judge learned she had been charged with DUI

under 75 Pa. Cons. Stat. § 3802(a)(1) (general impairment) and

2

The letter also alleged two other grounds for

termination—“moral turpitude” and “intemperance”—which

the parties have not discussed on appeal.

5

§ 3802(c) (highest rate of alcohol), as well as a number of

related moving violations.

Almost a year later, Judge sued Shikellamy and the

Individual Defendants in the United States District Court for

the Middle District of Pennsylvania. She asserted four

claims—deprivation of procedural due process, deprivation of

substantive due process, violation of equal protection, and

breach of contract—all arising out of the common allegation

that Shikellamy had constructively discharged her. The

Defendants filed a motion to dismiss, which the District Court

granted in part and denied in part. The District Court held that

the Individual Defendants were entitled to qualified immunity

and dismissed them from the case. As to Shikellamy, the Court

dismissed Judge’s substantive due process, equal protection,

and contract claims in full. And it dismissed her procedural due

process claim to the extent it alleged a deprivation of Judge’s

liberty interest in her reputation. The District Court granted

Judge leave to amend so she could supplement her contract and

procedural due process claims against Shikellamy. After Judge

filed an amended complaint, Shikellamy answered, the parties

conducted discovery on those two theories, and the District

Court granted summary judgment in favor of Shikellamy.

Judge filed a timely notice of appeal from both the Court’s

dismissal of the Individual Defendants and its summary

judgment for Shikellamy.

II

The District Court recognized that neither Judge’s

procedural due process nor her breach of contract claim could

go to a jury unless there was a genuine dispute as to whether

she had been constructively discharged or had voluntarily

resigned. See Fed. R. Civ. P. 56(a); see Leheny v. City of

6

Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999). The Court held

that Judge had failed to demonstrate such a dispute and granted

summary judgment for Shikellamy on both claims. We agree.

Our case law establishes a presumption that when

employees resign, they do so freely, so the onus is on Judge to

produce “evidence to establish that the resignation . . . was

involuntarily procured.” Leheny, 183 F.3d at 227. In cases like

this appeal, where Judge does not claim she was misled into

resigning, we ask whether Shikellamy “force[d] the

resignation . . . by coercion or duress.” Id. at 228. We apply an

objective standard—the ultimate issue is not what Judge

herself felt or believed, but whether a reasonable person under

the circumstances “would have felt compelled to resign.”

Colwell v. Rite Aid Corp., 602 F.3d 495, 502 (3d Cir. 2010)

(quoting Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 167

(3d Cir. 2001)). 3

Before today, we have not explained how claims of

constructive discharge should be evaluated. Consequently, the

parties have focused their attention on a non-exhaustive list of

factors identified by the United States Court of Appeals for the

3

Unlike her due process claim, Judge’s contract claim

is governed by Pennsylvania rather than federal law. But the

difference here is immaterial because Pennsylvania appears to

apply essentially the same standard to distinguish between

voluntary resignations and constructive discharges. See Helpin

v. Trs. of Univ. of Pa., 969 A.2d 601, 614 & n.8 (Pa. Super. Ct.

2009) (framing the inquiry in terms of “whether a reasonable

person in the employee’s position would have felt compelled

to resign.”).

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Eleventh Circuit, which we think provides a useful framework

for decision. As that court has explained:

Other circuits addressing this issue

have indicated that certain factors

may be helpful in determining

whether the resignation was

obtained by coercion or duress:

(1) whether the employee was

given some alternative to

resignation; (2) whether the

employee understood the nature of

the choice [s]he was given;

(3) whether the employee was

given a reasonable time in which to

choose; (4) whether the employee

was permitted to select the

effective date of the resignation;

and (5) whether the employee had

the advice of counsel.

Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir.

1995) (citing Angarita v. St. Louis Cty., 981 F.2d 1537, 1544

(8th Cir. 1992); Stone v. Univ. of Md. Med. Sys. Corp., 855

F.2d 167, 174, 177 (4th Cir. 1988); Schultz v. U.S. Navy, 810

F.2d 1133, 1136 (Fed. Cir. 1987); Scharf v. Dep’t of the Air

Force, 710 F.2d 1572, 1574 (Fed. Cir. 1983)); see also Leheny,

183 F.3d at 227–28 (favorably citing Hargray). The District

Court concluded that the balance of those factors was not

enough for a reasonable jury to find that Judge had overcome

the presumption that her resignation was voluntary. We

substantially agree with the District Court’s careful analysis.

8

Initially, we note that Judge was presented with a

reasonable alternative to immediate resignation, having

Shikellamy issue a “written statement of charges for dismissal,”

after which the terms of her employment contract entitled her

to a hearing before she could actually be terminated. See App.

120, 150. Judge’s argument in response—that this was an

illusory alternative because Shikellamy lacked good cause to

seek her termination—fails. Pennsylvania law permits the

termination of tenured school employees for “immorality,” 24

Pa. Stat. Ann. § 11-1122, and the Commonwealth Court has

previously held that “certain circumstances . . . involving

drinking and driving may constitute conduct that is immoral”

under that provision, Zelno v. Lincoln Intermediate Unit No.

12 Bd. of Dirs., 786 A.2d 1022, 1026 n.7 (Pa. Commw. Ct.

2001). As the District Court observed, given that Judge was

charged with the category of DUI applicable to the highest

BAC levels, Shikellamy could reasonably have believed that

“there existed ‘certain circumstances’ making [her] DUI arrest

immoral” and a valid basis for termination. Judge v. Shikellamy

Sch. Dist., 2017 WL 1550042, at *14–15 (M.D. Pa. May 1,

2017). This was not a situation where, because “the reason for

the threatened removal could not be substantiated,” the choice

between resignation and the initiation of termination

proceedings was “purely coercive.” Schultz, 810 F.2d at 1136.

Second, any reasonable school principal in Judge’s

position would have understood the nature of her choice

between resignation and charges followed by a pre-termination

hearing. Judge’s own employment contract, which she had to

sign each year she worked for the District, said Judge could be

terminated only after written notice and a hearing. Even

assuming Judge believed in good faith that her options were

between resignation and immediate termination, her subjective

9

state of mind is immaterial to the objective legal standard that

applies in this case.

Third, although Judge had less than 24 hours to make a

decision after Kelley’s ultimatum, all of these events took

place almost three weeks after Judge was actually arrested. The

circumstances of that arrest put Judge on notice (as they would

have any reasonable person) that she was at serious risk of

being charged with a high-level DUI. And given the

disapprobation society attaches to driving under the influence

of alcohol, Judge’s arrest at least raised the possibility that she

might be terminated for “immorality” as a result. As the

District Court put it, the clear “possible effect of a DUI on the

night of her arrest” gave Judge “more than two weeks to

foresee the ‘gathering storm.’” Judge, 2017 WL 1550042, at

*16–17.

The final two factors—the ability to set her own

resignation date and the advice of counsel—favor Judge to

some extent. But in light of the other factors we have discussed,

and considering the fact that Judge made no attempt to seek

advice from anyone but her mother over two weeks, we agree

with the District Court that the final two factors don’t suffice

to carry Judge’s burden. Judge’s decision was presumptively

voluntary, and no reasonable jury could find otherwise on this

record. That conclusion dooms her contract and procedural due

process theories.

III

Judge’s remaining claims fare no better. She has

abandoned her equal protection and substantive due process

arguments on appeal by allotting them only one sentence

apiece in her opening brief. See Judge Br. 32–33; New Jersey

10

v. Merrill Lynch & Co., Inc., 640 F.3d 545, 547 n.3 (3d Cir.

2011). Moreover, with those claims having been abandoned

and summary judgment having been properly granted on the

others, we have no basis to conclude that Judge can establish a

substantive constitutional violation. We therefore have no

reason to disturb the District Court’s decision to dismiss the

Individual Defendants based on qualified immunity. See De

Ritis v. McGarrigle, 861 F.3d 444, 452 & n.3 (3d Cir. 2017).

* * *

For the reasons stated, we will affirm the District

Court’s summary judgment in favor of the Shikellamy School

District and its order dismissing the Individual Defendants.

11