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Bosco v. Pittsburgh Board of Public Education

United States District Court, W.D. Pennsylvania

September 14, 2017

MICHAEL C. BOSCO, JR., Plaintiff,

         Electronic Filing


          David Stewart Cercone, United States District Judge.

         Michael C. Bosco, Jr., ("plaintiff") commenced this civil rights action against the Pittsburgh Board of Public Education (defendant or “the Board”) and John and/or Jane Doe, seeking redress for the alleged publication of false information regarding plaintiff's prior work history at a Pittsburgh public school. This publication assertedly has infringed on plaintiff's protected liberty interest in pursuing an occupation, resulting in an alleged violation of substantive due process under the Fourteenth Amendment. Presently before the court is the Board's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion will be denied.

         It is well-settled that in reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "[t]he applicable standard of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Under the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007), dismissal of a complaint pursuant to Rule 12(b)(6) is proper only where the averments of the complaint plausibly fail to raise directly or inferentially the material elements necessary to obtain relief under a viable legal theory of recovery. Id. at 544. In other words, the allegations of the complaint must be grounded in enough of a factual basis to move the claim from the realm of mere possibility to one that shows entitlement by presenting "a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

         "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In contrast, pleading facts that only offer "'labels or conclusions' or 'a formulaic recitation of the elements of a cause of action will not do, '" nor will advancing only factual allegations that are "'merely consistent with' a defendant's liability." Id. Similarly, tendering only "naked assertions" that are devoid of "further factual enhancement" falls short of presenting sufficient factual content to permit an inference that what has been presented is more than a mere possibility of misconduct. Id. at 1949-50; see also Twombly, 550 U.S. at 563 n. 8 (A complaint states a claim where its factual averments sufficiently raise a "'reasonably founded hope that the [discovery] process will reveal relevant evidence' to support the claim.") (quoting Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347 (2005) & Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741 (1975)); accord Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997) (a court need not credit "bald assertions" or "legal conclusions" in assessing a motion to dismiss) (citing with approval Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1997) ("courts, when examining 12(b)(6) motions, have rejected 'legal conclusions, ' 'unsupported conclusions, ' 'unwarranted inferences, ' 'unwarranted deductions, ' 'footless conclusions of law, ' or 'sweeping legal conclusions cast in the form of factual allegations.'").

         This is not to be understood as imposing a probability standard at the pleading stage. Iqbal, 556 U.S. at 678 ("'The plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.'"); Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (same). Instead, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest the required element ... [and provides] enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Phillips, 515 F.3d at 235; see also Wilkerson v. New Media Technology Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) ("'The complaint must state 'enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'") (quoting Phillips, 515 F.3d at 235) (citations omitted). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563.

         The record read in the light most favorable to plaintiff establishes the background set forth below. Up until April of 2012, plaintiff was a long-time employee of the Pittsburgh Public School District ("the district"). Hired in 1984, plaintiff worked within the district for almost 30 years. During the 2011-2012 school year, plaintiff was employed as a physical education teacher at Martin Luther King Elementary School. On or about November 15, 2011, and January 25, 2012, plaintiff was involved in two altercations with students and subsequently was suspended. The details of the incidents are not disclosed. No child abuse investigation occurred under Pennsylvania's Child Protective Services Law, 23 Pa.C.S. § 6301 ("the CPSL").

         Plaintiff and the Board entered into a mutual settlement and release agreement in April of 2012. Plaintiff agreed to resign voluntarily and not pursue any civil actions against the Board for claims that accrued before signing the agreement. In return, plaintiff received a severance package.

         Plaintiff began apply for new employment positions in 2015, applying to Bentworth School District in June of 2015, Ambridge School District in August of 2015, and Montour School District in February of 2016. Each of these school districts was then required to obtain a Commonwealth of Pennsylvania Sexual Misconduct/Abuse Disclosure Release form under Act 168 of the Public School Code ("Act 168 form") from plaintiff's former employer. The Act 168 form required the district to answer several inquiries about any prior history of child abuse or sexual misconduct by plaintiff.

         In completing the Act 168 forms the district consistently answered "yes" to the question "has the applicant been the subject of an abuse or sexual misconduct investigation by any employer, state licensing agency, law enforcement agency, or child protective services agency…?" Plaintiff asserts that this answer is "materially and patently false" because he has never been the subject of an investigation for child abuse as defined under the CPSL. And this "false" answer purportedly has deprived him of acquiring any position with a school district that involves direct contract with children, thereby depriving him of his "right" to pursue an occupation in education.

         The Board attacks plaintiff's amended complaint on a number of fronts. First, it asserts that as a matter of law plaintiff's allegations regarding the disclosures to three prospective employers cannot supply the foundation to establish that the information was publically disseminated. Second, the circumstances giving rise to plaintiff's separation from employment preclude him from establishing a misrepresentation. Third, plaintiff's alleged loss of prospective employment opportunities cannot supply a protectable property or liberty interest under the Fourteenth Amendment. Finally, the Board asserts that plaintiff has not been foreclosed from an entire occupation because Act 168 forms are not required at all schools within the Commonwealth.

         Plaintiff contends that disseminating information to prospective employers satisfies the limited dissemination needed to allege public disclosure, and the information disseminated was false because he was not investigated for "child abuse" within the meaning of the CPSL. In addition, the district's conduct has foreclosed plaintiff from an entire occupation because the Act 168 form is required at both public and private schools in Pennsylvania. Thus, plaintiff contends that the amended complaint makes the requisite showing for a violation of his right to substantive due process under the Fourteenth Amendment.

         In general, § 1983 does not itself create substantive rights, but instead provides a vehicle for vindicating a violation of a federal right.[1] Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). A cause of action under § 1983 has two elements: a plaintiff must prove (1) a violation of a right, privilege or immunity secured by the constitution and laws of the United States (2) that was committed by a person acting under color of state law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cr. 1996); Kelly v. Borough of Sayerville, 107 F.3d 1073, 1077 (3d Cir. 1997); Berg v. City. Of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000) ("The Plaintiff must demonstrate that a person acting under color of law deprived him of a federal right.") (citing Groman, 4 F.3d at 633).

         Claims premised on misrepresentation alleged to be in violation of substantive due process are analyzed under the "stigma-plus" doctrine. Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) (citing Paul v. Davis, 424 U.S. 693 (1976)). In order to meet the stigma requirement, it must be shown that there was a harm to one's reputation consisting of the publication of a substantially and materially false statement that infringed upon the "reputation, honor, or integrity of the [individual]." Brown v. Montgomery County, 470 Fed.Appx. 87, 91 (3d Cir. 2012). To satisfy the "plus" requirement, the claimant must show the defendant caused a deprivation of some additional constitutionally protected ...

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