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Michael v. Quaker Valley School District

United States District Court, W.D. Pennsylvania

February 16, 2017

LINDA R. MICHAEL, Plaintiff,
v.
QUAKER VALLEY SCHOOL DISTRICT et al., Defendants.

          OPINION

          Mark R. Hornak United States District Judge

         This civil right lawsuit stems from the termination of Plaintiff Linda A. Michael ("Michael" or "Plaintiff) from her position as a full-time paraprofessional with Defendant Quaker Valley School District ("Quaker Valley" or "the District"). (ECF No. 1). In addition to suing Quaker Valley, Michael also brought this action against Dr. Barbara Mellett ("Dr. Mellett") in her individual capacity and official capacity as Principal of Osborne Elementary, against Dr. Heidi Ondek in her individual capacity and official capacity as Assistant Superintendent of Quaker Valley, and against her union, the Quaker Valley Education Support Personnel Association, Unit 1 ("the Union").[1]

         Prior to any Defendant filing an answer or other Rule 12 response, on June 14, 2016, Michael filed her First Amended Complaint. (ECF No. 8). Defendants responded by filing motions to dismiss. (ECF Nos. 9 and 11). By Order dated July 12, 2016, Plaintiff was given leave to further amend on or before July 18, 2016. (ECF No. 14). Plaintiff then filed her Second Amended Complaint ("SAC") on July 18, 2016. (ECF No. 16). The Union responded with a motion to dismiss, (ECF No. 20), and the other Defendants (collectively "Quaker Valley Defendants" or "Defendants") jointly filed a motion to strike (ECF No. 17) on July 28, 2016, and a motion to dismiss (ECF No. 22) on August 8, 2016. Plaintiffs responses to the motions to dismiss were held in abeyance by Order dated August 11, 2016 until such time as the Court ruled on the motion to strike. (ECF No. 25). On August 19, 2016, the Court denied the motion to strike as premature, (ECF No. 34), and ordered that Plaintiff respond to the motions to dismiss by September 9, 2016. Plaintiff responded to Quaker Valley Defendants' motion to dismiss on September 9, 2016, (ECF No. 39), and filed a notice of dismissal with prejudice as to the Union on September 16, 2016 (ECF No. 41), which the Court approved. (ECF No. 42). That brings us to the present state of affairs.

         After all of that, the only matter now before the Court is the Quaker Valley Defendants' Motion to Dismiss the SAC, filed pursuant to Federal Rule of Civil Procedure 12(b)(6) alleging a failure to state a claim. (ECF No. 22). For the reasons stated in this Opinion, the Court will grant in part and deny in part that Motion to Dismiss.

         I. LEGAL STANDARD

         When considering a motion to dismiss under Rule 12(b)(6), the Court must accept the factual allegations in the sac as true and view them in the light most favorable to the plaintiff. To survive a Rule 12(b)(6) motion, her SAC must allege "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 663. In short, the motion to dismiss should be granted if she does not allege facts which could, if established at trial, entitle her to relief. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009).

         In general, when considering a motion to dismiss under Rule 12(b)(6), a court may not consider matters outside the complaint. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Consideration of such matters ordinarily will convert such a motion to a motion for summary judgment as provided in Federal Rule of Civil Procedure 12(d) ("If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56."), except that, as instructed by our Court of Appeals, a document integral to or explicitly relied upon in the complaint may be considered without converting a Rule 12(b)(6) motion into a summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426 (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3rd Cir. 1993)). The key, then, when a defendant interposes documents not attached to the complaint is to determine whether the documents actually are "integral to" or "relied upon by plaintiff to make out" her claims or whether the documents really are just part of the defense to the claims presented.

         II. FACTUAL BACKGROUND

         For purposes of the present Motion, as pled by Michael in her SAC, the essential facts are as follows:

         Michael was employed by Quaker Valley as a paraprofessional from August 2010 until her termination effective April 27, 2015. (ECF No. 16, at ¶ 11). During the events involved in this dispute, Dr. Mellett was the Principal of Osborne Elementary, which is an elementary school in the District, (ECF No. 16, at ¶ 6). During that time as well, Dr. Ondek was the Assistant Superintendent of the Quaker Valley School District. (ECF No. 16, at ¶ 7).

         Michael worked at various locations within the District, (ECF. No. 16, at ¶ 11), and from 2012 to 2015 she worked at Osborne Elementary. (ECF No. 16, at ¶ 12). As part of her duties, Michael was assigned to work with a special needs child while in the classroom with a teacher, (ECF No. 16, at ¶ 13), and would provide individual assistance with the child's academic-based questions, assist with the functioning of the classroom, and escort students between appointments within the school and to the school's administrative offices. (ECF No. 16, at ¶ 13).

         In November of 2011, Michael was elected as a Council member in Leetsdale Borough, which is a municipality within the District. (ECF No. 16, at ¶¶ 15, 16). Quaker Valley's School Board held a meeting in the Fall of 2013 at which members of the community questioned Quaker Valley's purchase and potential taking of residential properties for use as a parking lot and/or drop-off zone for Quaker Valley High School. (ECF No. 16, at ¶¶ 16, 17). Michael attended the meeting, she says both in her official capacity as a Leetsdale Borough Council member and as an individual resident of the District. (ECF No. 16, at ¶¶ 18, 23). At a Fall 2013 School Board meeting, Michael says that she raised issues as to the necessity of the expansion, the insufficient investigation undertaken regarding same, and the loss of tax base that would result from a purchase and taking (ECF No. 16, at ¶ 19), and her husband addressed these issues as well, apparently in agreement with Michael. (ECF No. 16, at ¶ 20). The debate on the expansion was reportedly intense. (ECF No. 16, at ¶ 21). Michael did not return to another public School Board meeting afterwards. She says that it was because she expressed positions contrary to that of the School Board; she felt intimidated by certain conduct and statements, which she does not specify, by at least one School Board member; and she feared retribution for then having expressed positions contrary to those of the School Board. (ECF No. 16, at ¶ 22).

         On or about March 27, 2014, an incident occurred with a student while Michael was working at the Osborne Elementary School. (ECF No. 16, at ¶ 24). During state-mandated testing, Michael observed the student, who was not her "primary assigned student, " (ECF No. 16, at ¶ 33), make an obscene sexual gesture when Michael was three feet away from the student, and although there was a teacher present in the classroom, the teacher did not witness the gesture. (ECF No. 16, at ¶¶ 25, 26). Michael was shocked by the elementary school child's gesture and in response told the student to "quit acting like a jerk, " but then immediately apologized to the student and relayed the incident to the teacher. (ECF No. 16, at ¶¶ 27, 28). Michael discussed the incident with Dr. Mellett, who indicated that the student had previous "behavioral incidents" and that she would explain the situation to the student's parents, who were "well known" to the Defendants. (ECF No. 16, at ¶ 30). Michael further alleges that other than this incident, she is not aware of any negative interactions she ever had with students in her charge and that at the time this incident occurred she had never been "written-up" or reported for any misconduct. (ECF No. 16, at ¶¶ 30, 31).

         On or about April 4, 2014, Michael met with Dr. Mellett, Director of Student Services Dr. Hoover, and Union President Cheryl Savage to discuss the March 27, 2014 incident. (ECF No. 16, at ¶ 32). By letter to Michael dated April 8, 2014, Dr. Mellett summarized the meeting to have included concerns about Michael following plans as well as Michael's interaction with her "primary assigned student" and outlined Dr. Mellett's intention to develop an improvement plan for Michael with a specific timeline. (ECF No. 16, at ¶ 33). Both Michael and the Union representative did not recall any discussion regarding the letter's referenced "treating and redirecting" of Michael's "primary assigned student, " and accordingly, Michael responded on April 9, 2014 with a letter to Dr. Mellett stating that the April 4, 2014 meeting had not included any discussion of that topic. (ECF No. 16, at ¶ 34).[2] On April 9, 2014, Michael also mailed to Dr. Mellett a signed request for Michael to review her personnel file as is provided for in the collective bargaining agreement ("CBA") between the District and the Union, and she included with the request hand-written notes suggesting ways to improve communication and teamwork and responding to Dr. Mellett's proposed improvement plan. (ECF No. 16, at ¶¶ 35, 56). Dr. Mellet did not provide Michael with any follow-up on the improvement plan or on Michael's suggestions. (ECF No. 16, at ¶37). Despite Michael's written request, Michael was never provided with her records or access to her personnel file. (ECF No. 16, at ¶¶ 36, 56).

         Then, on or about April 22, 2014, Michael was called to the District's office and was informed that she was suspended with pay pending investigation of an unspecified "new issue." (ECF No. 16, at ¶ 38). Dr. Ondek detailed the suspension in a letter to Michael. (ECF No. 16, at ¶ 38). Then, on or about April 28, 2014, a disciplinary hearing was held with Michael, the Union president, a Union secretary, Michael's Union representative, Quaker Valley's attorney, Dr. Mellet, and Dr. Ondek all present. (ECF No. 16, at ¶ 39). The previously discussed March 27, 2014 incident was not the subject of the April 28, 2014 disciplinary hearing. (ECF No. 16, at ¶ 40). Rather, at the April 28, 2014 disciplinary hearing, Quaker Valley's attorney orally accused Michael of grabbing the wrist of the same student involved in the March 27, 2014 incident when Michael was escorting that student to the counselor's office as directed by a classroom teacher in February, 2014. (ECF No. 16, at ¶ 40). Michael and her Union requested documentation regarding the alleged February 2014 incident, but no documentation was provided to her before, during or after the April 28, 2014 hearing, nor was the basis for the allegations of the February 2014 incident ever disclosed to her. (ECF No. 16, at ¶¶ 42, 57, 58). Michael did indicate at the April 28, 2014 disciplinary hearing that she had escorted the student and two other students to the counselor's office but denied that she touched any of the students. (ECF No. 16, at ¶ 41).

         Michael remained on suspension after the hearing and then received notice by letter on or about November 4, 2014 from Dr. Ondek that her employment status had been changed retroactive to October 8, 2014 to "suspended without pay." (ECF No. 16, at ¶¶ 44, 45, 46). According to Michael, this letter included disparaging remarks about her character and failed to state in writing the reason for the suspension, contrary to the requirements of the CBA. (ECF No. 16, at ¶ 40). The November 4, 2014 letter further indicated that Michael would be provided with a statement of charges and a notice of right to a hearing before the School Board, but Quaker Valley never provided to her any statement of charges or any notice of right to a hearing before the Board. (ECF No. 16, at ¶ 46).

         On November 25, 2014, after Michael had already been suspended without pay for a month and a half, Union Representative Ms. Liz Hendra notified Michael that a grievance had been filed on her behalf. (ECF No. 16, at ¶¶ 39, 47). Michael requested but never received a copy of the filed grievance. (ECF No. 16, at ¶ 48). She likewise never received from Defendants or her Union a listing of any procedures, deadlines, or guidance regarding the grievance process other than the brief summary in the CBA itself. (ECF No. 16, at ¶¶ 48, 60). She was never provided any Grievance Report Form, which requires signatures and guidance through the steps of the grievance process as provided in the CBA. (ECF No. 16, at ¶ 48).

         By letter dated April 20, 2015, Dr. Ondek told the following to Michael: that a final disciplinary action had been determined; that the suspension without pay, which she had already been in place for over six months, would be continued through April 24, 2015; and that effective April 27, 2015, Michael was restored not to full employment but only on a part-time basis, and then not to her position as a paraprofessional but instead to the demoted position of part-time cafeteria cashier, (ECF Nos. 16, at ¶¶ 50-52; 23-3), which reduced her hours and her rate of pay. (ECF No. 16, at ¶ 52). Thus, Michael was suspended with pay for almost six months and suspended without pay for more than six additional months. Effective April 27, 2015, Quaker Valley terminated Michael from her full-time paraprofessional employment, and because she did not accept the demotion, terminated her from all employment with the District effective that same date. (ECF No. 16, at ¶¶ 2, 52).

         Although Michael participated in the April 4, 2014 meeting discussing the March 2014 incident and participated in the April 28, 2014 meeting accusing her of the February 2014 incident, she says that neither the District nor the Union identified to her the formal grievance structure and they did not follow the grievance procedure. (ECF No. 16, at ¶ 60). The Union also did not notify her of deadlines or opportunities to appeal and meet with School District authorities after employment decisions were made by the Quaker Valley Defendants, (ECF No. 16, at ¶ 61), and also "discouraged" her from enforcing her rights under the CBA. (ECF No. 16, at ¶¶ 49, 62).

         The Quaker Valley Defendants cite to three Exhibits, A, B, and C, attached to their Brief in Support of their Motion to Dismiss. (ECF Nos. 23-1, 23-2, 23-3). Their Exhibit A, they assert, "is a notice letter providing Plaintiff with advance notice of the April 22, 2014 disciplinary hearing. This document is not relied upon or referenced by Plaintiff in her Amended Complaint." (ECF No. 23 at 7) (emphasis added). Given Circuit law as to consideration of such papers at this stage of the proceeding, this ends the Court's inquiry as to Exhibit A, and it will not be considered relative to the pending motion to dismiss.[3]

         Exhibits B and C, say the Quaker Valley Defendants, "are documents explicitly referenced, relied upon and/or integral to Plaintiffs claims." (ECF No. 23 at 7) (citing the SAC at ¶¶ 45-46 regarding Exhibit B and ¶¶ 50-51 regarding Exhibit C). According to the standard as set out in Pension Benefit Guar. Corp., the Court needs to consider whether these Exhibits are relied upon for or integral to Michael's claims, and therefore can be considered here.

         As to Exhibit B, which is a November 4, 2014 letter from Dr. Ondek to Michael, the Court concludes that this document is explicitly relied upon by Michael in the SAC regarding: 1) the notice of her suspension without pay; 2) the failure of the letter to provide the reasons for the suspension; and 3) the statement that the District would provide her with a "statement of charges" and "notice of a right to a hearing before the board of school directors." (ECF No. 16 at ¶ 45, 46). Further, Michael does not dispute that Exhibit B is indeed the November 4, 2014 letter she relies on. Exhibit B is relied on in and integral to Michael's claims as alleged and appropriately may be considered without converting the motion from a motion to dismiss to one for summary judgment.

         The Quaker Valley Defendants also rely on Exhibit B to assert that the November 4, 2014 letter communicated that Michael's suspension without pay was based upon her misconduct. (ECF No. 23 at 5).[4] The Court observes that the precise misconduct for which Michael was suspended without pay is not specified in the letter, consistent with what is alleged by Michael, nor is the term "misconduct" even used. (ECF No. 23-2). Indeed, the letter appears to communicate a suspension without pay pending discharge and that Michael would not be able to return to work as a paraprofessional, stating further that: "Your history has demonstrated that you are not suited for that role, by demeanor and disposition." (ECF No. 23-2). The letter indicates vaguely that "the district viewed the last precipitating event with great alarm, " (ECF No. 23-2), not identifying to which event the District referred-the March 2014 event, which would be the last occurring in time, or the February 2014 event, which would be the last event raised to Michael, or possibly some other event. The letter rather than clarifying matters, as Defendants apparently had hoped, appears more to muddy the water as to what the reasons were for Michael's change in employment status and tends to support Michael's allegations of lack of meaningful and adequate notice and confusion created by Defendants. Additionally, the letter does provide, as alleged by Michael, that in "due course" the District would be forthcoming with a statement of charges and notice of right to a hearing before the School Board. (ECF No. 23-2).

         As to Exhibit C, which is the April 20, 2015 letter from Dr. Ondek, Michael relies on it in alleging that Dr. Ondek communicated to her that her suspension without pay continued through April 24, 2015, that she would no longer be employed as a paraprofessional or have full-time employment, (ECF No. 16 at ¶¶ 50-51), but rather "[e]ffective April 27, 2015, Plaintiff [would be] restored from suspension without pay, but demoted and reassigned to the position of part-time cashier in the cafeteria." (ECF. No. 16 at ¶ 51). Exhibit C, as is the case with Exhibit B, is relied on by Michael and integral to her claims, and thus, consideration of it will not convert the motion to dismiss. The Quaker Valley Defendants point to the April 20, 2015 letter advising Michael "of her right to follow the grievance procedure set forth in the collective bargaining agreement if she wished to object to her demotion." (ECF Nos. 23 at 5, 23-3). Specifically, the letter states: "You have the right to continue with the pending grievance with respect to your suspension without pay, and may include this demotion within that grievance, as you and the Association may determine. We will follow up with your union representative to resolve those technical concerns." (ECF No. 23-3). The letter also provides that as a result of Quaker Valley's determination, Michael was rendered partially unemployed. (ECF No. 23-3).

         III. DISCUSSION

         Section 1983 is the statutory means to vindicate the alleged violation of federal rights conferred in federal law, but is not itself a source of substantive constitutional rights. Graham v. Connor, 490 U.S. 386, 393-394 (1989). Michael's SAC identifies two sources of the rights she contends were violated-the guarantee of free speech in the First Amendment to the United States Constitution and the guarantee of due process in the Fourteenth Amendment.

         A. First Amendment Retaliation

         In Count I, Michael sues the Quaker Valley Defendants pursuant to § 1983 for violation of her rights secured by the First Amendment, contending that the alleged February 2014 incident is merely a pretext for retaliation for her having exercised her free speech rights at a Fall 2013 school board meeting in opposing and questioning Quaker Valley's plans regarding purchasing and taking properties. (ECF No. 16, at ¶ 43). Specifically, she contends that the February 2014 incident was a fabrication, (ECF No. 16, at ¶¶ 23, 72), that the February and March 2014 incidents were minor and one was self-reported, (ECF No. 15, at ¶ 23), that there is a relationship between the student who she allegedly grabbed by the wrist and "decision-makers" within the District, (ECF No. 16, at ¶ 73), that the actions of the Quaker Valley Defendants were under color of law, (ECF No. 16, at ¶ 74), and that the actions or omissions by Defendants Mellett and Ondek were at the direction of Quaker Valley decision-makers in retaliation for Michael having exercised her free speech rights. (ECF No. 16, at ¶ 75).

         In order for Michael, as a public employee, to succeed in establishing a First Amendment claim for retaliation in her suspension, termination, and/or demotion, she:

"must show that [her] speech is protected by the First Amendment and that the speech was a substantial or motivating factor in what is alleged to be the employer's retaliatory action." Flora v. Cnty. of Luzerne, 776 F.3d 169, 174 (3d Cir. 2015) (citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)). The causation element may be pled by setting out: "(1)an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link, or ... evidence gleaned from the record as a whole [from which] the trier of the fact should infer causation." Lauren W. ex rel Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (internal quotation marks and citations omitted). Plaintiffs must also plausibly plead that retaliatory acts are not de minimis but are significant enough that they would "deter a person of ordinary firmness from exercising his First Amendment rights." McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006)[.]

Fouse v. Beaver Cty., No. 2:14-CV-00810, 2015 WL 1967242, at *8 (W.D. Pa. May 1, 2015).

         The Quaker Valley Defendants argue that the First Amendment retaliation claim fails because it does not allege a sufficient causal nexus between speech and adverse action and further fails as to Defendants Mellet and Ondek as providing no basis to plausibly conclude that they had knowledge of Michael's protected speech. (ECF No. 23, at 8-9).

         1. Causal Nexus

         Focusing first on the causal nexus issue, the Quaker Valley Defendants assert that other than alleging in conclusory fashion that Michael's First Amendment speech was the cause of the discipline, Michael provides nothing that plausibly could show a link between her speech and her suspension and demotion. (ECF No. 23 at 10). As stated in Fouse, a causal connection can be shown: 1) by an unusually suggestive temporal proximity; 2) a pattern of antagonism coupled with timing; or 3) evidence gleaned from the record as a whole from which a reasonable jury could infer causation.[5] Fouse, 2015 WL 1967242, at *8 (citing Lauren W. ex rel Jean W., 480 F.3d at 267). Michael alleges that she engaged in First Amendment protected speech in the Fall of 2013 and that on or about April 4, 2014 she was called to a meeting to discuss her conduct towards a student.

         Other than to indicate she engaged in protected speech in the Fall of 2013, Michael does not provide a specific date of her speech.[6] Therefore, the speech as alleged and the April 4, 2014 meeting, which signaled the beginning of the end for Michael, occurred at the very least nearly four months apart and maybe as much as seven months apart. The Quaker Valley Defendants offer that the "adverse action" really was not taken until seventeen months afterwards on April 2015, (ECF No. 23 at 9), which was when she was demoted to part-time cashier and terminated for not accepting the demotion. But it is not that simple. The SAC provides that Quaker Valley had communicated to her on April 22, 2014 that she was suspended with pay, and then on or about November 4, 2014, that she was suspended without pay effective retroactively to October 8, 2014. A suspension without pay could deter a person of ordinary firmness from exercising their free speech rights, and a suspension with pay also might suffice.[7] See Barry v. Luzerne County, 447 F.Supp.2d 438, 450 (M.D. Pa. 2006) (a requirement is that the challenged conduct be more than de minimis and "a reasonable jury could conclude that a suspension with pay could deter a reasonable person from exercising his or her First Amendment rights."); Robert Cowan v. Board of Educ. of Borough of Carteret, Civ. Act. No. 06-5459, 2010 WL 624883, at * 9 (D. N.J. Feb. 22, 2010) (suspension with pay accompanied by threat of future discipline such as withholding salary and increases sufficient). Considering the pleading record before the Court, the initial suspension occurred at least four months after the speech and the suspension without pay occurred ten months after.

         As observed by our Court of Appeals in Bailey v. Commerce Nat. Ins, Services, Inc., 267 F.App'x 167, 170 (3d Cir. 2008), an elapsed time period of four months between the protected activity and the challenged retaliatory act is not unusually suggestive of retaliatory motive. 267 F.App'x at 170 (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Indeed, even "a gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation." LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 233 (3d Cir. 2007). Here, the timing is not "unusually suggestive" considering that the suspension without pay occurred ten to twelve months after the asserted protected speech and the demotion occurred some approximately seventeen months after the protected speech. Even focusing on the initial suspension with pay-some four or five months after the speech- the timing alone does not resolve the issue, since,

[i]t is important to emphasize that it is causation, not temporal proximity itself, that is an element of plaintiffs prima facie case, and temporal proximity merely provides [one] evidentiary basis from which an inference can be drawn. The element of causation, which necessarily involves an inquiry into the motives of an employer, is highly context-specific. When there may be valid reasons why the adverse employment action was not taken immediately, the absence of immediacy between the cause and effect does not disprove causation.

Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997) (Title VII retaliation).

         The Quaker Valley Defendants argue that Michael does not allege "any pattern of antagonism which began after her protected speech except to the extent that the disciplinary actions, which did not commence until five months later, can be considered a pattern of antagonism." (ECF No. 23 at 9). The fact of the disciplinary meetings and hearings, though they culminated in retaliatory action, would not tend to show an alleged "pattern of antagonism" to support causation between her speech and her challenged discipline-as such would be a mere bootstrapping as to causation. See Boyd v. Citizens Bank of Pennsylvania, Inc., Civ. Act. No. 2:12-cv-0032, 2014 WL 2154902, at *28 (W.D. Pa. May 22, 2014) ("[T]he occurrence of disciplinary action following protected activity does not establish a pattern of antagonism."). The Court agrees that the SAC does not sufficiently allege facts plausibly to show a pattern of antagonism to support causation.

         Finally, Defendants assert in sum that the SAC "fails to allege any other facts from which the Court could plausibly infer causation." (ECF No. 23 at 10). Where temporal proximity is insufficient, and allegations as to protected activity followed by a period of antagonism likewise fails, causal connection may be shown when the allegations 'looked at as a whole, may suffice to raise the inference." Kachmar, 109 F.3d at 176.

         In Kachmar, for example, the court found the plaintiffs claim, which involved opposition to discrimination, sufficient where she asserted that prior to her termination and following her protected activity, which in that case involved opposition to discrimination, her supervisor had commented in her review that "she was not on the management track" because of her "feminist campaigning, " and also ...


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