United States District Court, E.D. Pennsylvania
[Copyrighted Material Omitted]
LINDA BERKERY, (CLASS OF ONE), Plaintiff, Pro se, FORT WASHINGTON, PA.
For WISSAHICKON SCHOOL BOARD, AS IT IS PRESENTLY CONSTITUTED AND AS IT WAS CONSTITUTED ON 10/17/13 (WSB):, YOUNG K. PARK, RICHARD BRUCE GALTMAN, JANICE SINGER, RICHARD BRUCE GALTMAN, CHARLES MCINTYRE, RICHARD BRUCE GALTMAN, MARJORIE A. BROWN, RICHARD BRUCE GALTMAN, BARBARA P. MOYER, RICHARD BRUCE GALTMAN, SETH E. GRANT, RICHARD BRUCE GALTMAN, BURUNDA PRINCE-JONES, RICHARD BRUCE GALTMAN, RICHARD P. STANTON, RICHARD BRUCE GALTMAN, BARBARA ULLERY, RICHARD BRUCE GALTMAN, JUDITH M. CLARK, RICHARD BRUCE GALTMAN, DR. CHRISTOPHER MARCHESE, RICHARD BRUCE GALTMAN, WADE COLEMAN, RICHARD BRUCE GALTMAN, CATHERINE ROSSI, RICHARD BRUCE GALTMAN, WISSAHICKON SCHOOL DISTRICT (WSD), RICHARD BRUCE GALTMAN, WADE T. COLEMAN, INDIVIDUALLY AND AS TRANSPORTATION LIAISON, WSD, RICHARD BRUCE GALTMAN, CATHERINE ROSSI, INDIVIDUALLY & AS DIRECTOR OF PERSONNEL, WSD, RICHARD BRUCE GALTMAN, MARIE E. CARSILLO, INDIVIDUALLY & AS DIRECTOR OF TRANSPORTATION, WSD, RICHARD BRUCE GALTMAN, Defendants: MICHAEL I. LEVIN, LEVIN LEGAL GROUP PC, HUNTINGDON VALLEY, PA; RICHARD BRUCE GALTMAN, LEVIN LEGAL GROUP, HUNTINGDON VALLEY, PA.
NITZA I. QUIÑ ONES ALEJANDRO, J.
Before this Court are a motion to dismiss filed by Defendants pursuant to
Federal Rule of Civil Procedure (Rule) 12(b)(6), which seeks the dismissal of civil rights claims asserted against them under 42 U.S.C. § 1983 (" § 1983" ), [ECF 14], and the response in opposition filed by Linda Berkery (" Plaintiff" ). [ECF 16]. The issues in the motion to dismiss have been fully briefed and, for the reasons stated herein, said motion is granted.
On September 15, 2014, Plaintiff, proceeding pro se, filed a nine-count complaint against Defendants seeking monetary damages for their alleged violation of her civil rights under § 1983 and other state law claims. [ECF 1]. In the complaint, Plaintiff avers that when Defendants suspended her without pay for three days from her position as a van driver for the Wissahickon School District (" WSD" ), they violated her due process and equal protection rights under the Fourteenth Amendment and retaliated against her for exercising her First Amendment right.
On November 6, 2014, Defendants filed the instant motion which Plaintiff opposes. When ruling on a motion to dismiss, this Court must accept, as true, all relevant factual allegations in the complaint. Here, Plaintiff's allegations can be summarized as follows:
Plaintiff began working for the WSD, on November 6, 2006, originally as an aide. (Comp. ¶ ¶ 14-15). She became a school van driver in November 2009, assigned to transport special needs students from the Gwynedd area to the Overbrook School for the Blind (" OSB" ) in Philadelphia. ( Id. ). Her designated work hours for the OSB run were from 6:15 a.m. until 9:15 a.m., and from 1:15 p.m. until 4:30 p.m. ( Id. at ¶ 15).
Plaintiff suffered a hand injury and took medical leave in January 2013. She returned to her position as a van driver at the start of the next school year in the fall of 2013. ( Id. at ¶ ¶ 16-17). Her bus route was covered by a temporary worker. On September 9, 2013, Plaintiff was advised to see her supervisor, Defendant Carsillo, the next morning. ( Id. at ¶ 18). At said meeting, Defendant Carsillo informed Plaintiff that while she had been on medical leave, her OSB run had been completed in less time than she had the previous year, ( id. at ¶ 18); that Defendant Rossi expected Plaintiff's OSB run to take less than six hours; and, if it did not, Defendant Rossi would ride with her on the run. ( Id. at ¶ 18). Plaintiff responded that Defendant Rossi could accompany her on the run because it would show that the run took six hours. ( Id. at ¶ 18). A few days later, Plaintiff asked Defendant Carsillo to have Defendant Rossi ride with her during her OSB run because Plaintiff felt she was being falsely accused of inflating the time worked and was being pressured to speed during her route. ( Id. at ¶ 19). Plaintiff made the same request a third time to no avail. ( Id. at ¶ 20).
On October 7, 2013, Defendant Carsillo taped a note to the front of Plaintiff's mailbox which read: " Linda -- Your A.M.
punch time except for Mondays is 6:45 not 6:15. Thank you, Marie 10/7." ( Id. at ¶ 21). The next day, Plaintiff followed the taped instructions, punched in at 6:45 a.m., ( Id. at ¶ 22), and arrived late to pick up and drop off her students. ( Id. at ¶ 23).
Later that same day, Defendant Carsillo left another taped note asking Plaintiff to see her before leaving. ( Id. at ¶ 25). Plaintiff met with Defendant Carsillo, and with a union representative Defendant Carsillo had arranged to be present. ( Id. at ¶ 26). At the meeting, Defendant Carsillo was upset because parents of the student who Plaintiff transported that morning had called when the van did not arrive on time. ( Id. at ¶ 27). Defendant Carsillo reiterated that the run could be completed faster as shown by the substitute driver used when she was on medical leave. ( Id. ). Plaintiff again requested that someone ride with her to verify the amount of time needed to complete the route. ( Id. ).
Over the next several days, Plaintiff clocked in at 6:45 a.m., as instructed, which caused her to be late in dropping off her student at OSB. ( Id. at ¶ ¶ 30-35).
Upon returning from her morning OSB run on October 16, 2013, Plaintiff encountered a union representative who informed Plaintiff that Defendant Carsillo wanted to see Plaintiff in Carsillo's office. ( Id. at ¶ 44). Plaintiff and the union representative went into Carsillo's office, and Carsillo advised Plaintiff that " there's a meeting tomorrow at Central at 12:45 and you have to be there. It's to discuss the issue." ( Id. at ¶ 45). Plaintiff called her Union President, Tom Finnegan, that evening and arranged to meet him the next day prior to the meeting with Defendant Carsillo. ( Id. at ¶ ¶ 46-47).
The next day, Plaintiff met with Union President, Tom Finnegan, and another union representative prior to the meeting. ( Id. at ¶ 48). Plaintiff went to the meeting with her union representatives. ( Id. ). At the start of the meeting, Plaintiff was asked to write down on a pad anything unusual that had happened on her OSB run that week. ( Id. ). Plaintiff complied and gave the pad to Defendant Coleman. ( Id. ).
Plaintiff was asked to describe any interaction she had with her student's family and the OSB aide during the morning pickup. ( Id. at ¶ 51). Defendant Coleman also asked " a couple hypothetical questions," including: " Do you think it would be right for you to discuss with the OSB school aide whether a late arrival by the student would interfere with student's schooling?" and " Do you think it would be wrong of you to refuse to accept a paper with directions to the OSB from your supervisor, saying 'I've been doing this run for years and I'll do it my way.'" ( Id. ). Plaintiff denied the implications. ( Id. at ¶ ¶ 51-52). During the meeting, Defendant Rossi informed Plaintiff that she and Defendant Carsillo had followed Plaintiff during one of her routes, and observed Plaintiff straying from the route, following a SEPTA bus instead of passing it, and speeding through two school zones. ( Id. at ¶ ¶ 53-54).
Plaintiff left the meeting and her union representatives remained to continue discussing the matter with Defendants. ( Id. at ¶ ¶ 56-58). At the conclusion of the meeting, Union Representative Martin told Plaintiff that Defendants had wanted to terminate her employment but that they finally settled on a three-day suspension without pay. ( Id. at ¶ 58).