United States District Court, E.D. Pennsylvania
AUSTIN MCHUGH, UNITED STATES DISTRICT JUDGE
case involves a suburban township police officer who returned
from maternity leave only to discover that she no longer had
a job. Two years after becoming a Bethel Township police
officer, Heather Toth became pregnant. After initially being
denied her request for light duty, she took leave from work.
Toth alleges that she did so based entirely on the assurance
of her boss, Chief Tom Worrilow, that she would be allowed to
come back once she gave birth and was ready. But in fact,
when Toth asked to come back, her job was gone. Toth has sued
Bethel, as well as Worrilow and several other Bethel
officials in their individual capacities, stylizing her core
claim as one of procedural due process: Toth asserts she had
a protected interest in her job and was deprived of that
interest without constitutionally required procedures. She
also brings a breach of contract claim against Bethel.
Defendants collectively now move to dismiss all claims except
the due process claim against Bethel. For the following
reasons, I will grant Defendants' motion, except as to
the due process claim against Worrilow.
had been a full-time Bethel police officer for two years when
she became pregnant. Soon after, in October 2014, she told
her boss, Worrilow, and submitted to Bethel's township
supervisors a request for light duty accompanied by a
doctor's note. Her request was denied; instead, Toth was
told (whether by a supervisor or Worrilow is unclear) that
she should take leave because, as a pregnant woman, she was a
“liability.” Taking leave would have the effect
of making Toth eligible for unemployment benefits. Much more
important as to Toth's decision whether to take leave,
however, was that Worrilow promised her that if she did, once
she was ready to return her job would still be waiting for
her. Toth asked whether the board of supervisors, which
oversees the police department and is ultimately charged with
making police personnel decisions, would put that promise in
writing. While Worrilow said no, he purportedly assured her
that “they would not do anything illegal.”
Relying on his initial promise, Toth worked her last day that
November, and shortly after filed for unemployment and
started receiving benefits.
January, Bethel's board of supervisors meets to, among
other things, appoint its police officers to one-year
terms. Just prior to the 2015 meeting, Worrilow
informed Toth (who was still on leave) that while the
supervisors would not reappoint her this time around, it was
merely a formality, and his promise-that she would still have
her job once she was done with maternity leave-still stood.
When Toth offered to turn in her badge for the time being,
Worrilow said that was unnecessary. And so, as expected, when
the board-Chairman Michael Davey, Vice Chairman Ed Miles, and
Supervisors Jean Stoyer, John Camero, and Todd Apple- voted
to appoint the upcoming year's police officers, Toth was
not among those chosen. She was not given any statement of
May, Toth gave birth. In July, she spoke by phone with
Detective Sergeant Ben Ash, who asked Toth if she would be
able to return to work and parent at the same time. Toth
replied that she intended to fully resume her job duties; she
also told Ash that his question was
“inappropriate.” A few weeks later, Toth
contacted Worrilow and said she was ready to return to work.
Worrilow is alleged to have told her that, given changes to
the police department's job-application process, Toth
would need to undergo a psychiatric evaluation and a
reference check. Toth did both. A few weeks later, however,
after (for reasons seemingly not relevant here) Worrilow
resigned as chief and Ash took his place as acting chief, Ash
informed Toth that she would not be allowed to return. He did
not give a reason.
then reached out to Vice Chairman Miles about not being
rehired, but to her surprise, Miles told her that he thought
she had already quit. Toth explained to Miles her leave
arrangement with Worrilow, pointing out that she still had
her badge. In response, Miles only suggested she talk to the
township lawyer. A week later, Toth cleaned out her locker at
work and returned her township belongings, including her
badge. She also asked for her employment file-but alleges
that when she received it, her initial doctor's note and
light-duty request, as well as the results of her psychiatric
evaluation and reference checks, were missing. Indeed, her
file contained no information about her pregnancy or her
recent job application at all.
October, Toth, now jobless, was told by Ash that he would
resubmit her job application. A month later, however, Toth
again was informed that she would not get her job back. And
then, in December, came the death knell: Ash resubmitted
Toth's application one last time, and one last time, she
was told, it was denied. Toth began looking for a new job
soon after, applying for several months before finally taking
a lower-paying, non-law-enforcement position.
has sued Bethel, as well as Worrilow and each of the other
above-named individuals (the Officials), under 42 U.S.C.
§ 1983 for violating her procedural due process rights
by removing her from her job without any sort of notice or a
hearing. She also brings a claim against Bethel for breach of
contract. Defendants now move to dismiss the claims against
the Officials on the basis of qualified immunity, and the
contract claim for failure to state a claim.
Standard of Review
motion to dismiss for failure to state a claim, my task is to
determine whether, taking the plaintiff's factual
allegations as true and disregarding her legal conclusions,
she has stated a “plausible” claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Additionally, where a defendant-official moves to dismiss on
the basis of qualified immunity, I must determine whether the
plaintiff has “plead[ed] facts showing (1) that the
official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established' at the
time of the challenged conduct.” Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011). In doing this, I must
draw all factual inferences in favor of the plaintiff.
George v. Rehiel, 738 F.3d 562, 571 (3d Cir. 2013).
And because qualified immunity is an affirmative defense, the
ultimate burden of proving it remains on the party claiming
it. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir.
conclude that all of Toth's procedural due process claims
will be dismissed except for the claim against Worrilow. I
will also dismiss her breach of contract claim.
Procedural Due Process Claims Against the Officials
Officials claim they are shielded from Toth's
procedural due process claims by qualified immunity.
“Qualified immunity attaches when an official's
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” White v. Pauly, 137 S.Ct. 548, 551
(2017) (per curiam) (citation omitted).
of qualified immunity thus raises two principal questions:
first, whether the plaintiff has sufficiently alleged the
violation of a constitutional right; and second, whether that
right was clearly established at the time of the
defendant's alleged misconduct. Saucier v. Katz,
533 U.S. 194, 201 (2001). While these questions can be taken
up in any order, Pearson v. Callahan, 555 U.S. 223,
236 (2009), it may often be “difficult to decide
whether a right is clearly established without deciding
precisely what the existing constitutional right happens to
be, ” id. (citation omitted). Because that is
true in this case, I first address whether Toth has plausibly
established a violation of her procedural due process rights,
and then take up whether those rights were clearly
established. Finally, because under § 1983 an individual
is only liable for damages based on his or her own personal
conduct, I address whether any of the specific conduct by the
Officials here violated Toth's rights.
Has Toth Sufficiently Alleged a Violation of Her
Procedural Due Process Rights?
Fourteenth Amendment provides that no state shall
“deprive any person of . . . property without due
process of law.” “This principle requires
‘some kind of hearing' prior to the discharge of an
employee who has a constitutionally protected property
interest in h[er] employment.” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting
Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 569-70 (1972)). While this pre-termination hearing need
not be a full-dress evidentiary proceeding, it must include
oral or written notice of the reasons for the employee's
discharge, an explanation of the employer's evidence, and
an opportunity for the employee to tell her side of the
story. Id. at 545-46.
procedural due process claim by a public employee requires
proof of two elements: first, the employee must show a
constitutionally protected property interest in her
employment; and second, she must show that the procedures she
was accorded by the government before it deprived her of that
interest were constitutionally insufficient. In this case,
since Toth alleges she was never given any notice or hearing
whatsoever, she has clearly met her latter burden. As to the