IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daniel Borden, : Appellant : : v. : : No. 77 C.D. 2014 Bangor Area School District : Argued: September 8, 2014 BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: September 25, 2014 Daniel Borden (Borden) appeals from an order of the Court of Common Pleas of Northampton County (trial court) granting summary judgment in favor of Bangor Area School District (District) and dismissing his claim that the District deprived him of his property interest in his employment without due process of the law in violation of 42 U.S.C. 1983. For the reasons that follow, we affirm. While Borden was employed as the District s Special-Education Coordinator in May 2009, a sexual-harassment complaint was filed against him by Dr. Richard Shillabeer, one of the District s school psychologists. On May 4,
2009, Borden attended a disciplinary meeting 1 at which Assistant Superintendent Patricia Mulroy informed Borden that Dana Mariano and Victoria Kropf, both District employees, submitted statements in support of Dr. Shillabeer s complaint, stating that Borden called Dr. Shillabeer queer on several occasions. 2 (Reproduced Record [R.R.] at 17a.) The following day, Borden retained counsel, and the District suspended Borden with pay, pending further investigation, because he allegedly made derogatory remarks regarding other employees and committed other misconduct all of which is inappropriate for an Administrator in the [District]. (Id. at 127a.) On June 2, 2009, Borden s with-pay suspension was converted to a without-pay suspension. In advance of an August 20, 2009 hearing scheduled to determine whether Borden should be terminated, the District informed him in writing that because of his conduct, the following charges were going to be made against him: immorality, persistent negligence in the performance of duties, willful neglect of 1 Pursuant to Section 514 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. 1-101 27-2702, 24 P.S. 5-514. The board of school directors in any school district, except as herein otherwise provided, shall after due notice, giving the reasons therefor, and after hearing if demanded, have the right at any time to remove any of its officers, employes, or appointees for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct. 2 Borden was also reprimanded for pranks he performed, such as taking Dr. Shillabeer s personal property from his office and hiding it, using tobacco on-premises, bullying other employees, and for a general lack of professionalism and maturity. 2
duties, and persistent and willful violation and failure to comply with Pennsylvania School Laws and Board directives as contemplated by the School Code of 1949, as amended. (Id. at 4a.) In a subsequent letter, the District also advised Borden of the witnesses it intended to call at the hearing. 3 Upon consulting his counsel, Borden tendered his resignation via letter dated August 18, 2009, and did not attend the hearing held two days later. 4 Borden then filed the action which is the subject of this appeal, alleging that the District deprived him of his property interest in his employment without due process of the law in violation of 42 U.S.C. 1983 5 by constructively 3 The witness list included Dr. Shillabeer, Dr. Mulroy, Ms. Mariano, Ms. Kropf and Jodi Daniels, a District police officer. 4 The letter states simply, Please accept this as my letter of resignation from the position of Special Education Coordinator and is signed by Borden. (Id. at 139a.) 5 Section 1983 provides, in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. 1983. There are two essential elements of a Section 1983 action: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived a person of rights, privileges or immunities secured by the Constitution or the laws of the United States. Palmer v. Bartosh, 959 A.2d 508, 514 (Pa. Cmwlth. 2008). Due process is required where an individual is deprived of a property right, such as his right to continued public employment, and mandates that [n]otice and opportunity to be heard must be granted at a (Footnote continued on next page ) 3
discharging him and failing to provide a hearing. 6 He asserted that at the disciplinary meeting on May 4, 2009, Dr. Mulroy threatened him that his career in education was over, and that as a result, he would no longer be able to afford his child s tuition and would lose his house. (R.R. at 17a 18a.) According to the complaint, Dr. Mulroy suggested that if Borden resigned, she would not reveal to prospective employers that he was accused of sexual harassment which effectively made Borden forgo his due process rights and forced him to resign. The District filed an answer and discovery commenced. During Borden s deposition, he testified that he involuntarily resigned due to Dr. Mulroy s threats regarding his ability to provide for his family because he was under the impression that [he] really had no other option. (Id. at 109a.) He explained, the thought process behind resigning was, at that point, I had made up my mind that my only recourse was to sue because [Dr. Mulroy] had [she] had approached [various] teachers and had asked them to write statements about Borden s misdeeds. (Id. at 109a 110a.) He testified that at the initial meeting, he was made aware of the charges against him and the supporting statements submitted by other employees. He did not contradict the accusations but asserted (continued ) meaningful time and in a meaningful manner. Andresky v. West Allegheny School District, 437 A.2d 1075, 1077 78 (Pa. Cmwlth. 1981) (internal citation omitted). 6 Borden also purported to set forth gender-discrimination and retaliation claims under the Pennsylvania Human Relations Act (PHRA), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. 951 963 and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e 2000e-17. Those claims were dismissed at the preliminary objection and summary judgment stages, respectively, and Borden has not appealed those determinations. 4
that he was being unfairly targeted by other employees who were cancers. (Id. at 102a.) He threatened to sue those involved to make [the allegations] go away and cited copious notes he took as well as a text message he received from another District employee to support his allegation that he was being targeted. (Id.) He stated that he did not attend the August hearing because he believed the school board was biased. Borden conceded that he received a list of the charges against him and that in June 2009, he accepted and began new employment with Behavioral Health Associates at an increased rate of pay. After discovery closed, the District filed a motion for summary judgment, contending that there could be no finding that Borden s procedural due process rights were violated. In opposition to the motion, Borden relied exclusively upon his deposition testimony. Based upon the lack of evidence adduced by Borden, the trial court granted summary judgment, noting that an employee who retires of his own free will is deemed to have relinquished his property interest in his continued employment and cannot contend that he was deprived of his due process rights. Although the trial court acknowledged an exception to this rule for employers that force resignation by coercion or duress rather than by merely prompting it, the trial court found the exception inapplicable because Borden presented no evidence that he was coerced into resigning other than his allegation that he was encouraged to do so. (Supplemental Reproduced Record at 11b.) This appeal followed. 5
On appeal, 7 Borden first contends that he was denied his due process rights when he was not afforded a proper pre-termination hearing prior to his without-pay suspension. When a public employee has a valid property interest in his continued employment, he is entitled to an opportunity to be heard before an adverse employment action occurs. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493 (1985). In discussing procedural due process requirements, the United States Supreme Court explained that a pretermination hearing need not be elaborate and generally may be something less than a full evidentiary hearing. Id. at 545, 105 S.Ct. at 1495. [T]he pretermination hearing need not definitively resolve the propriety of the discharge but should be an initial check against mistaken decisions essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. Id. at 545 46, 105 S.Ct. at 1495. As such, the Court concluded that due process requires oral or written notice of the charges against an employee, an explanation of the employer s evidence, and an opportunity for the employee to present his side of the story. Id. at 546, 105 S.Ct. at 1495. To require more than this prior to 7 Our scope of review over a trial court s grant of summary judgment is limited to determining whether the trial court made an error of law or abused its discretion. Salerno v. LaBarr, 632 A.2d 1002, 1003 (Pa. Cmwlth. 1993), appeal denied, 644 A.2d 740 (Pa. 1994). Summary judgment is proper where there exists no genuine issue of material fact and the moving party has clearly established entitlement to judgment as a matter of law. Herman v. Greene County Fair Board, 535 A.2d 1251, 1253 54 (Pa. Cmwlth. 1988). In construing a motion for summary judgment, the record must be reviewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Washington v. Baxter, 719 A.2d 733, 737 (Pa. 1998). 6
termination would intrude to an unwarranted extent on the government s interest in quickly removing an unsatisfactory employee. Id. At the May 4, 2009 pre-termination hearing, Borden admits he was informed orally of the charges and evidence against him, including the written statements of his alleged improper conduct provided by other District employees. Borden was also provided an opportunity to present his side of the story, during which he did not necessarily refute the charges but instead argued that he was being unfairly targeted by the administration and by other District employees who had ill-will toward him. His own response at the meeting did not indicate that the allegations against him were inaccurate and, therefore, the District was left with the initial indication that it had reasonable grounds to suspend him without pay. 8 The hearing that Borden received satisfied due process. 8 Borden also claims that he was denied due process during this meeting because the Act 93 representative appointed to assist him pursuant to the District s Act 93 Administrators Agreement was incompetent. See Section 1164 of the Code, added by Act of June 29, 1984, P.L. 438, No. 93, 4, 24 P.S. 11-1164 (providing for a written administrator compensation plan for school administrators, including first-level supervisors not included in a bargaining unit of public employees and setting forth the means for meeting and discussing those plans in good faith). However, Borden has failed to cite any language in the Administrators Agreement which would entitle him to representation at a Loudermill hearing, and there exists no constitutional right to such representation, only an opportunity to present reasons, either in person or in writing, why proposed action should not be taken. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 545, 105 S. Ct. 1487, 1495 (1985) (rejecting the notion that full evidentiary hearings are required pre-deprivation); Gotthelf v. Toyota Motor Sales, U.S.A., Inc., 525 F. App x 94, 100 n.11 (3d Cir. 2013) ( Supreme Court precedent firmly establishes there is no Due Process right to counsel unless the individual may be incarcerated as a result of the litigation. ); Kiniropoulos v. Northampton County Child Welfare Service, No. 11 6593, slip op. at 7 (E.D. Pa. Apr. 29, 2014) (holding that the plaintiff was not entitled to counsel at his pre-suspension employment meeting). Moreover, Borden was offered an additional hearing before the school board in August 2009, but he resigned two days before the hearing pursuant to the advice of his attorney. 7
Borden also contends that this resignation was involuntarily procured through coercion and duress and, therefore, deprived him of his property interest in his continued employment without due process. It is well-settled law that [i]f an employee retires of his own free will, even though prompted to do so by some action of his employer, he is deemed to have relinquished his property interest in his continued employment for the government, and cannot contend that he was deprived of his due process rights. Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999). An employee resignation is presumed voluntary until an employee presents evidence to establish that: (1) the employer forced the resignation by coercion or duress; or (2) the employer obtained the resignation by deceiving or misrepresenting a material fact to the employee. Id. at 228. In determining whether a resignation was involuntary due to coercion or duress, the United States District Court for the Eastern District of Pennsylvania articulated the following factors, which we find informative: (1) whether the employee was presented with an alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee had a reasonable time to choose; (4) whether the employee was permitted to select the effective date of resignation; and (5) whether the employee had the advice of counsel. O Connell v. County of Northampton, 79 F. Supp. 2d 529, 533 (E.D. Pa. 1999). Borden s own deposition testimony establishes that none of these factors weighs in his favor. First, Borden was provided an alternative to 8
resignation. He could have continued his unpaid suspension and attended the August 2009 hearing before the District s school board to challenge the propriety of its investigation and evidence against him. In the event the District rendered an unfavorable determination, Borden was entitled to appeal it. 9 Second, Borden was represented by counsel from May 5, 2009, the day after the pre-termination meeting, through August 18, 2009, the date on which he resigned. During this period of more than three months, Borden had the opportunity to consult with his attorney to ensure that he understood the nature of his options and could make a well-informed decision. Finally, Borden was permitted to and did, in fact, select the effective date of his resignation as the date on which he submitted his letter. Indeed, Borden had already secured other full-time employment as of June 2009. 10 Because Borden failed to adduce sufficient evidence upon which a reasonable jury could find that his resignation was involuntary and that he was 9 Section 1131 of the Code states, In case the professional employe concerned considers himself or herself aggrieved by the action of the board of school directors, an appeal by petition, setting forth the grounds for such appeal, may be taken to the [Secretary of Education.] Such appeal shall be filed within thirty (30) days after receipt by registered mail of the written notice of the decision of the board. 24 P.S. 11-1131. Because Borden had a right to a de novo appeal from the school board to the Secretary of Education, we find his rationale for not attending the August 2009 hearing unpersuasive. 10 Because Borden testified that he began new employment in June 2009 at an increased rate of pay, we find his argument that his resignation in August 2009 was due to financial duress disingenuous. Regardless, even if Borden s resignation was procured through coercion or duress, we have already determined that he received the due process hearing owed to him on May 4, 2009. 9
deprived of any due process interest, the trial court did not err in granting summary judgment. Accordingly, we affirm the trial court s order granting summary judgment in favor of the District and against Borden. DAN PELLEGRINI, President Judge 10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daniel Borden, : Appellant : : v. : : Bangor Area School District : No. 77 C.D. 2014 O R D E R AND NOW, this 25 th day of September, 2014, the order of the Court of Common Pleas of Northampton County dated December 6, 2013, at No. C-48- CV-2010-6416, is affirmed. DAN PELLEGRINI, President Judge