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Kegerise v. Susquehanna Township School District

United States District Court, M.D. Pennsylvania

June 21, 2018



          Yvette Kane, District Judge

         Before the Court is Defendants Susquehanna Township School District (the “District”), Carol L. Karl (“Karl”), Jesse Rawls, Sr. (“Rawls”), and Mark Y. Sussman (“Sussman”)'s second motion for summary judgment.[1] (Doc. No. 152.) For the reasons that follow, the Court will grant in part and deny in part the motion.

         I. BACKGROUND

         A. Procedural Background

         Plaintiff Susan M. Kegerise (“Plaintiff”) initiated the above-captioned action on April 17, 2014, in connection with her previous employment as the superintendent of Susquehanna Township School District. (Doc. No. 1.) Plaintiff subsequently filed an amended complaint (Doc. No. 4), which Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on July 15, 2014 (Doc. No. 12). In a Memorandum and Order dated January 7, 2015, the Court granted in part and denied in part the motion to dismiss (Doc. Nos. 34, 35), dismissing Plaintiff's claims for constructive termination, defamation, and intentional infliction of emotional distress without leave to amend, and dismissing Plaintiff's FMLA retaliation claim with leave to amend (Doc. No. 35). Plaintiff then filed a second amended complaint on January 28, 2015. (Doc. No. 36.) By way of a joint stipulation filed on February 12, 2015 (Doc. No. 38), Plaintiff filed a third amended complaint on February 27, 2015 (Doc. No. 39), which sets forth nine (9) counts.[2]

         Defendants filed a motion to dismiss certain counts in the third amended complaint on March 19, 2015 (Doc. No. 40), which the Court granted in part and denied in part (Doc. Nos. 43, 44). Accordingly, the following eight (8) claims remain before the Court: a due process claim against Defendants under 42 U.S.C. § 1983 (Count II); a claim for breach of contract against the District (Count III); a claim for tortious interference with a contract against Karl, Rawls, and Sussman (Count IV); a claim for wrongful use of civil proceedings in violation of 42 Pa. C.S.A. § 8351, et seq. against Rawls and Sussman (Count VII); an FMLA retaliation claim against Defendants (Count VIII); a First Amendment retaliation claim against Defendants (Count IX); a retaliation claim under the Pennsylvania Constitution against Defendants (Count X); and a sex discrimination claim under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. against Defendants (Count XII). Defendants move for summary judgment on each of the aforementioned counts.[3] (Doc. No. 152.) The Court heard oral argument on the motion on June 8, 2018, and having been fully briefed (Doc. Nos. 163, 167, 168), the motion is ripe for disposition.

         B. Factual Background [4]

         1. Plaintiff's Employment with the District and Federal Lawsuit

         Plaintiff's employment as the superintendent of the District began in January of 2010. (Doc. No. 153 ¶ 1.) Plaintiff, whose employment was governed by an employment agreement/contract with the District, signed a second employment agreement (the “employment agreement”) with respect to her role as superintendent on May 7, 2013.[5] (Id. ¶ 2.) On April 17, 2014, Plaintiff filed the original complaint in this action against Defendants (Doc. No. 1). (Id. ¶ 16.) The complaint included, inter alia, a claim for “constructive termination.” (Doc. No. 1.) Four days later, during a public meeting on April 21, 2014, the District's school board (the “Board”) “took a vote . . . which [the Board] represented as a vote to accept [Plaintiff's] resignation.” (Doc. No. 153 ¶ 21.) Defendants Karl, Rawls, and Sussman were members of the Board at this time.[6]

         The District “memorialized the Board's April 21, 2014 vote by letter dated April 22, 2014” that was signed by John Dietrich (“Dietrich”), who was then serving as the president of the Board. (Id. ¶ 22.) During this process, the Board did not provide Plaintiff “with notice stating that she had been ‘terminated.'”[7] (Id. ¶ 23.) Rather, the letter stated that the Board “voted to accept [Plaintiff's] resignation.” (Id. ¶ 24.) Before voting to accept what it deemed Plaintiff's resignation, Dietrich “read a prepared statement on behalf of the Board” that reads as follows:

The Board hereby emphatically disputes any and all claims raised by [Plaintiff] at United States Middle District Court at docket 1:14-cv-00747-WWC, which includes “constructive discharge, ” however, it recommends that the Board accept the resignation of [Plaintiff] that is implicit with the term “constructive discharge.” Do I have a motion to approve her resignation, effective 4/17/2014 as stated?

(Doc. No. 157 ¶ 168.)

         2. Plaintiff's Sick Leave

         Prior to the aforementioned events, while Plaintiff was superintendent, she notified the District's business manager “that she was under a doctor's care and that she would be off of work” around March of 2014.[8] (Doc. No. 153 ¶ 3.) At the time Plaintiff “went out on sick leave, she had approximately 249 days of sick leave available to her.” (Id. ¶ 13.) As superintendent, Plaintiff “did not personally develop and disseminate FMLA administrative regulations, but instead delegated that responsibility to [the District's] business manager” who, at that time, was Mike Frentz (“Frentz”). (Id. ¶¶ 10-11.) Plaintiff was advised by Frentz that pursuant to the District's own procedure, employees were required “to exhaust their sick leave prior to requesting FMLA leave.” (Id. ¶ 12.) Plaintiff maintains that she took sick leave due to symptoms, “which included nose bleeds and cardiac issues” resulting from “job-related stress.”[9] (Id. ¶ 179.)

         3. Interactions Between Plaintiff, the School Board, and Other Individuals Affiliated with the District During Plaintiff's Time as Superintendent

          i. Undisputed Facts

         As testified to by Kathy DelGrande (“DelGrande”), a Board member and school parent, Plaintiff was “subjected to inappropriate treatment by Board members” while serving as superintendent. (Doc. No. 157 ¶ 85.) Such treatment involved discussions by Board members on Facebook that, according to Plaintiff, included discussions of Plaintiff and her performance as superintendent in unfavorable terms. (Id. ¶ 100.) DelGrande testified that there were often “staged” situations at public Board meetings (id. ¶ 102), which Plaintiff claims were orchestrated so as to cause disruption and embarrass her. Moreover, Karl testified that “the leaders of the [F]acebook group” had discussed the idea of circulating a petition calling for Plaintiff's resignation. (Id. ¶ 105.) In a similar vein, DelGrande testified that “Rawls, Dietrich, and Sussman often walked into public meetings and knowingly told falsehoods to embarrass Plaintiff, ” such as statements indicating that teachers were leaving the District “because of the District [a]dministration.” (Id. ¶ 118.) Additionally, Dr. Peter Sakol (“Sakol”), another Board member, testified that Plaintiff was “screamed at” by Board members. (Id. ¶ 122.)

         ii. Disputed Facts[10]

         Plaintiff also maintains that while she was superintendent, members of the Board attempted to embarrass her publicly on multiple occasions, and “publicly criticized Plaintiff for her [c]ontract, ” while refraining from doing so as to male superintendents who succeeded Plaintiff in her employment with the District. (Id. ¶¶ 86-88.) According to Plaintiff, such attempts to embarrass her included Rawls and Sussman's public announcement that they intended to file a complaint against the District and Plaintiff in federal court on October 31, 2013 (the “Rawls and Sussman lawsuit”), as well as Rawls and Sussman's “provid[ing] a copy of said [c]omplaint to the newspaper in which they criticized Plaintiff's contract.” (Id. ¶¶ 89-90.) Plaintiff further claims that along with Karl and Sussman, Board members Dietrich and Clifton Edwards (“Edwards”), were “part of a small anti-Plaintiff Facebook group, ” through which negative information about Plaintiff was published (id. ¶ 100), and that while Plaintiff was superintendent, Board members “met with the leader of the Facebook group, Bonnie Finnerty, and arranged for people to show up at Board meetings to harass and embarrass [Plaintiff].” (Id. ¶ 103.)

         Further, Plaintiff states that she was told by the Board “not to speak at Board meetings, ” and that when she did speak, she was “cut off” from doing so, while male superintendents did not receive such treatment when they spoke at Board meetings. (Id. ¶¶ 112-13.) Also in the context of Board meetings, Plaintiff avers that the Board permitted “nonresidents to criticize Plaintiff . . . but did not allow it in the case of male superintendents, ” and also allowed “commentators critical of Plaintiff to go beyond the [three]-minute time limit, ” in addition to “refus[ing] to shut down inappropriate behaviors directed at Plaintiff.” (Id. ¶¶ 114-16.) According to Plaintiff, the “Board regularly interfered with [her] ability to carry out her professional responsibilities” as superintendent. (Id. ¶ 121.)

         4. Plaintiff's Performance as Superintendent

         Plaintiff's tenure as superintendent was reportedly marked by various developments within the District. Specifically, while Plaintiff was the superintendent, the arrest record was reportedly lower than that during the tenure of a previous superintendent, David Volkman (“Superintendent Volkman” or “Volkman”) (Doc. No. 122-6 at 42), and “township arrests” and “disruptions” allegedly decreased by eighty percent (Doc. No. 122-3 at 38). DelGrande testified that, consequently, “[t]hings were much calmer in the school.” (Doc. No. 122-6 at 42:25.) According to DelGrande, during her daughter's senior year, “there was not one phone call that the school was in lockdown” (id. at 43-44), and there were no reports of scheduling issues (id. at 43). DelGrande testified further that during this time, there were no incidents of misuse of District funds (id. at 46), and unnecessary positions were eliminated within the District (Doc. No. 157 ¶ 74).[11]

         5. Previous Superintendents

         Before Plaintiff became superintendent, Superintendent Volkman, a male, was employed as the District superintendent. (Doc. No. 157 ¶ 44.) During his tenure as superintendent, DelGrande's daughter was a tenth-grade student. During this period, it was reported that there were multiple instances during which the school was on lockdown. (Doc. No. 122-6 at 11.) In addition, fights between students allegedly occurred. (Id. at 11-13.) DelGrande and other parents reportedly met with Superintendent Volkman to discuss these occurrences at the high school (id. at 15), and Board members were also involved in these meetings (id. at 10-11).

         Issues concerning student discipline were also reported during Superintendent Volkman's tenure with the District (id. at 12), and the parents' meetings continued as a result of dissatisfaction with his handling of these disciplinary issues (id.). Initially, according to DelGrande's testimony, parents of students thought that Superintendent Volkman considered the issues “overblown” (id. at 15), but when parents began meeting with him and providing him with information about certain incidents, the police were contacted and police officers were even assigned to the school lunchroom (id. at 15-16). Further, as expressed by DelGrande, Superintendent Volkman was not disciplined as a result of these occurrences at the school. (Id. at 16.)

         In addition, while superintendent, Volkman hired a business manager named Matthew Malinowski (“Malinowski”), who, as allegedly revealed through an audit, purchased personal items with District funds. (Id. at 21-22.) In an April 13, 2010 letter from Plaintiff to Malinowski, Plaintiff listed items that should not have been charged to the District. (Doc. No. 121-1 at 85.)[12] Additionally, it was reported that during his tenure, former employees-some of whom were then deceased-were not removed from health-care enrollment lists, which presumably resulted in the loss of “an exorbitant amount” of funds. (Doc. No. 122-6 at 22-24.)

         In addition, DelGrande stated that while Mr. Volkman was the superintendent, the school administration did not apply for reimbursement for capital improvements under Pennsylvania's PlanCon program, which resulted in the loss of approximately seven million dollars. (Id. at 24-25, 28-29.)[13] Further, DelGrande stated that the Board neither took corrective action against Superintendent Volkman on any of these issues (id. at 24-25, 28-29), nor disciplined Malinowski for failing to remove former employees from the health-care list (id. at 24).

         DelGrande also testified that under Superintendent Volkman's leadership, there were issues as to the adequacy of instruction of certain classes within the District. (Doc. No. 157 ¶ 54.) Further, DelGrande stated that some classes consisted of thirty-two to thirty-three students, while other classes had five or six students, and “[t]here were major scheduling issues at the high school.” (Doc. No. 122-6 at 32-34.) She stated there were “major issues as far as [advanced placement] classes, ” including what the District offered in comparison to what other schools offered (id. at 38), and that while the Board was aware of the problems concerning class sizes, it reportedly did not discipline Superintendent Volkman as a result of such problems (id. at 34-35).

         While Volkman was superintendent, the District was sued and eventually settled a lawsuit alleging sexual abuse of a female student by a driver's education teacher. (Id. at 39-40.) According to DelGrande, the Board attempted to portray the incident as not having occurred (id. at 39), and in her opinion, Superintendent Volkman “tried to cover it up” (id. at 40). Additionally, during his tenure, non-residents were reportedly permitted to register as students and attend school within the District. (Doc. No. 157 ¶ 62.) DelGrande testified that the Board did not discipline Superintendent Volkman for permitting this practice, although it was aware that he was doing so. (Doc. No. 122-6 at 39.) Further, he allegedly did not experience the same criticisms and behavior from Board members that Plaintiff claims she experienced. (Doc. No. 122-9 at 24.)

         6. Subsequent Superintendents

         Following the end of Plaintiff's tenure as superintendent on April 21, 2014, all of the interim superintendents -Jeffrey Miller (“Miller”), Richard Daubert (“Daubert”), and Todd Kline (“Kline”) - were male. (Doc. No. 157 ¶ 45.) Under the leadership of these superintendents, according to certain deposition testimony, the following events occurred. DelGrande testified that under Miller and Daubert, there was an increase in the number of incidents reported to the police at the high school, relative to those reported during Plaintiff's tenure. (Doc. No. 122-7 at 4.) Sakol testified that he did not think that student discipline improved under the superintendents after Plaintiff (Doc. No. 122-9 at 25), and district finances reportedly worsened (Doc. No. 122-7 at 4).[14] In response to a question about educational quality, DelGrande said, “[w]ell, the students weren't getting what they had received before.” (Id. at 6.) Further, according to DelGrande, scheduling issues and other administrative concerns reappeared. (Doc. No. 157 ¶¶ 81, 82.) In addition, Miller allegedly signed a $40, 000 contract without the requisite approval from the Board, but was not disciplined by the Board for doing so. (Id. ¶ 83.) Further, Miller and Daubert reportedly were not subjected to the same criticism and conduct regarding disciplinary issues that Plaintiff reports to have experienced. (Doc. No. 122-9 at 26-27.)


         Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis for allowing a reasonable factfinder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52. In making this determination, a court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

         The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas. Co., 364 F.3d 135, 145-46 (3d Cir. 2007). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial, ” summary judgment is warranted. Celotex, 477 US. at 322. With respect to the sufficiency of the evidence that the non-moving party must provide, a court should grant a motion for summary judgment when the non-movant's evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Mem'l Hosp., 192 F.3d 378, 387 (3d Cir. 1999).


         A. Qualified Immunity

         Defendants assert that they are entitled to qualified immunity as to Counts II (due process violation), VIII (FMLA retaliation), IX (First Amendment retaliation), X (retaliation under the Pennsylvania constitution), and XII (sex discrimination under Title VII) of the third amended complaint. (Doc. No. 163 at 30-31.) As a threshold matter, the Court first addresses the applicability of qualified immunity infra.

         1. Legal Standard

         The doctrine of qualified immunity provides “that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (articulating concept of qualified immunity). In addition, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

         2. Applicability of Qualified Immunity to Individual Defendants

         Defendants argue that in this case, they decided “simply to accept the verified allegations in [Plaintiff's] original [c]omplaint as the resignation of her position, ” and that, “[w]hether this was a correct position, a mistake of law, a mistake of fact, or both, immunity should still attach to each of the members of the Board, including the individual Defendants.” (Doc. No. 163 at 33.) According to Defendants, “the Board reasonably believed, and still believes that its conduct complied with the law, ” and “it cannot be said that [Plaintiff's] due process and the constitutional rights alleged in her [t]hird [a]mended [c]omplaint were ‘clearly established.'” (Id. at 34.) Conversely, Plaintiff asserts that qualified immunity is inapplicable because it “is only a defense to actions seeking to hold defendants personally liable for their actions taken under the color of law” that “does not apply to official capacity actions, which require a showing that the individual acted in accordance with a policy or custom of the governmental entity, and the policy was the ‘driving force' behind the alleged constitutional or statutory violation.” (Doc. No. 167 at 32.)

         The Court concludes that under the standard articulated above, qualified immunity does not apply to Karl, Rawls, and Sussman. As an initial matter, the Court notes that the caption of the third amended complaint indicates that Plaintiff is suing the aforementioned Defendants in both their individual and official capacities (Doc. No. 39), and, therefore, qualified immunity would apply to them to the extent that they are sued in their individual capacities. However, Plaintiff appears to disclaim any intent that she is suing Karl, Rawls, and Sussman in their individual capacities, but rather, asserts that she has set forth claims against them only in their official capacities. In light of the fact that Plaintiff has asserted claims against these Defendants in their official capacities, the Court finds that qualified immunity is inapposite, for official capacity suits are “only another way of pleading an action against an entity of which an officer is an agent.” See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). Additionally, in the context of an official capacity suit, the real party in interest is the entity of which the officer being sued is an agent. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Thus, by suing the aforementioned individual Board members in their official capacities, Plaintiff is, in actuality, suing the District, rendering qualified immunity inapplicable. See Barna v. Bd. of Sch. Dirs., 877 F.3d 136, 145 (3d Cir. 2017) (reasoning that school board was not entitled to qualified immunity). Accordingly, the Court concludes that qualified immunity is inapplicable to the claims against Karl, Rawls, and Sussman.

         B. Due Process (Count II)

         In Count II of the third amended complaint, Plaintiff alleges a violation of due process under 42 U.S.C. § 1983 on the basis that “[p]ursuant to the [Pennsylvania] School Code, the only mechanism for the removal of an administrator is a due process hearing with prior notice.” (Doc. No. 39 ¶ 126) (citing 24 Pa. Stat. Ann. § 10-1080 (West 2012)). According to Plaintiff, Defendants deprived her of her constitutionally-protected interest in her employment contract without due process by “terminating [her] without written notice of alleged misconduct and failing to provide a fair and impartial adjudication hearing.” (Id. ¶ 28.)

         1. Legal Standard

         “The essential elements of due process are notice and an opportunity to be heard in a meaningful manner and at a meaningful time under the circumstances.” Mosley v. City of Pittsburgh Pub. Sch. Dist., 702 F.Supp.2d 561, 574 (W.D. Pa. 2010) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)). Further, “[t]here are only two circumstances in which an employee's resignation will be deemed involuntary for due process purposes: (1) when the employer forces the resignation or retirement by coercion or duress, or (2) when the employer obtained the resignation or retirement by deceiving or misrepresenting a material fact to the employee.” Rife v. Borough of Dauphin, 647 F.Supp.2d 431, 450-51 (M.D. Pa. 2009) (internal quotation marks omitted) (quoting Leheny v. City of Pittsburgh, 183 F.3d 22, 228 (3d Cir. 1999)).

         2. Plaintiff's Due Process Claim

         Defendants argue that as to this count, Plaintiff cannot establish a claim of a due process violation because she resigned from her position as superintendent, asserting that when an employee leaves her employment based on her own free will, that employee “is deemed to have relinquished [her] property interest in [her] continued employment for the government, and cannot contend that [she] was deprived [her] due process rights.” (Doc. No. 163 at 4) (alterations in original). Stating that Plaintiff “implicitly tendered her resignation when she filed her original [c]omplaint and alleged that she was constructively discharged” and positing that an employee's resignation is a prerequisite to a claim for constructive discharge, Defendants argue primarily that Plaintiff could not have been constructively discharged - or, in other words, have involuntarily left her position - because her original complaint, wherein she alleged constructive discharge, contemplated her resignation. (Id. at 4-8.)

         On January 7, 2015, in ruling on Defendants' motion to dismiss the first complaint pursuant to Rule 12(b)(6), Judge Caldwell explicitly rejected the concept that Plaintiff's filing of a complaint that includes an allegation of constructive discharge - of which actual resignation is an element - could constitute a resignation and thus preclude any due process claim. (Doc. No. 43 at 24.) In opposing Defendants' summary judgment motion, Plaintiff, therefore, maintains that “this Court already considered and rejected Defendants' argument that Plaintiff resigned by filing a claim for constructive discharge, ” and “[a]s their argument was a legal rather than a factual one, Defendants should not be allowed to re-litigate it except on appeal.” (Doc. No. 167 at 4.) Additionally, Plaintiff maintains that in her original complaint, she did not allege that she resigned, nor did she “submit a formal resignation in verbal or written form, ” and she also “continued to ...

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