1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HOLLY JUDGE, : Civil Action No. 4:15-CV-0551

:

Plaintiff, :

: (Judge Brann)

v. :

:

SHIKELLAMY SCHOOL :

DISTRICT, :

PATRICK M. KELLEY, :

DR. JAMES P. HARTMAN, :

WENDY WIEST, :

LORI GARMAN, :

KELLIE CIANFLONE, :

JAMES GARMAN, :

C. SCOTT KARPINSKI, :

THOMAS MICHAELS, :

MICHAEL STEPP, and :

DR. JEFFREY WALTER, :

:

Defendants. :

MEMORANDUM

September 28, 2015

Pending before this Court is a Motion to Dismiss Plaintiff’s Complaint filed 

by all Defendants. The motion seeks to dismiss all claims asserted in the

Complaint, including Plaintiff’s claims for procedural due process, substantive due 

process, equal protection, and breach of contract, as well as her request for punitive 

damages. The matter has been fully briefed and is now ripe for disposition. In 

accordance with the following reasoning, Defendants’ Motion to Dismiss is 

granted in part and denied in part. 

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I. BACKGROUND

This action arises out of the termination1of Plaintiff, Holly Judge, from her 

position as principal of the Shikellamy Elementary School. Plaintiff’s Complaint ¶ 

19, March 19, 2015, ECF No. 1 (hereinafter “Pl.’s Complaint). She was employed 

by the Shikellamy School District in that position from October 2011 until June 20, 

2014. Id. At all material times, she performed her work as principal of the 

elementary school in a good, professional, and competent manner. Id. ¶ 23. 

On June 19, 2014, Plaintiff was summoned to a meeting with Defendant 

Kelley, District Superintendent, but was given no advance notice as to the purpose 

of the meeting. Id. ¶ 25. Following the meeting2, she was given a letter signed by 

Defendant Kelley which explained the purpose of the meeting and detailed some 

particulars of the discussion between him and Plaintiff at that meeting. Id. He first 

explained that he had learned from outside sources that Plaintiff had been involved 

in a traffic stop under suspicion of driving under the influence. Pl.’s Complaint, 

Exhibit A. He further elucidated that at the meeting Plaintiff originally represented 

that she had not received a field sobriety test, although she later admitted that a 

blood alcohol test was conducted at the State Police barracks. Id. The letter went 

 

1 Although Plaintiff actually resigned from her position, she alleges that she was forced to do so under protest and 

was therefore constructively discharged. Pl.’s Complaint ¶ 27-28. Accordingly, she uses the term termination, 

rather than resignation, as Defendants call it, throughout her complaint. In this section of the Memorandum opinion, 

the Court will utilize the word that Plaintiff employs in her complaint.

2

Plaintiff’s complaint alleges that she was given this letter upon arrival at the meeting. Pl.’s Complaint ¶ 26. 

However, Defendant Kelley explicitly states in his letter, attached to her complaint as Exhibit A, that he was 

“writing this letter to [Plaintiff] following [their] meeting on this date in [her] office.” Pl.’s Complaint Exhibit A.

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on to inform Plaintiff that she had failed to disclose these events to Defendant 

Kelley for twenty days and that, when confronted at their meeting, Plaintiff had 

attempted to explain that no charges had been filed, “as if it was nothing more than 

a routine traffic stop.” Id. Finally, the letter requested Plaintiff’s immediate 

resignation and offered a neutral reference in the future if she should choose to 

resign before 12:30 p.m. the next day. Id. In the alternative, Defendant Kelley 

stated that if Plaintiff should choose not to resign and DUI charges were filed 

against her, then he would be forced to issue a written statement of charges for 

dismissal which would be based upon immorality, intemperance, and moral 

turpitude. Id. He further explained that these charges for dismissal could have an 

impact upon Plaintiff’s status with the Department of Education. Id. Plaintiff 

alleges that the next day she was forced to resign “under protest,” and this 

constituted a constructive discharge. Id. ¶ 27-28, 35.

Several months later, in October 2014, Defendant Kelley was arrested in 

New York for aggravated DUI and for leaving the scene of a property damage 

accident. Id. ¶ 36. The Shikellamy school board members only imposed a twenty 

day unpaid suspension on Defendant Kelley for this conduct, despite having 

terminated Plaintiff for her similar conduct. Id. ¶ 37-38.

As a result of the letter and her subsequent termination, Plaintiff alleges that 

she has suffered damages to her reputation, and that her ability to continue to be 

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employed as an elementary school principal has been impaired. Id. ¶ 39. She has, 

moreover, suffered damages in the form of loss of income, employment benefits, 

and the inability to obtain another position with another school district. Id. ¶ 40. 

Because she alleges that the actions of the Defendants were “outrageous, extremely 

offensive and intentional and discriminatory,” and that they “were performed with 

malicious, reckless indifference, and/or wanton disregard of Plaintiff’s civil 

rights,” she seeks an award of punitive damages. Id. ¶ 41-42, 46, 49, 55, 66.

II. LEGAL STANDARD

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), a court must view all allegations stated in the complaint as true 

and construe all inferences in the light most favorable to plaintiff. See Hishon v. 

King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 

(3d Cir. 1993). However, “the tenet that a court must accept as true all of the 

[factual] allegations contained in the complaint is inapplicable to legal 

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations 

omitted). In ruling on such a motion, the court primarily considers the allegations 

of the pleading, but is not required to consider legal conclusions alleged in the 

complaint. See Kost, 1 F.3d at 183. “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 

556 U.S. at 678. At the motion to dismiss stage, the court considers whether 

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plaintiff is entitled to offer evidence to support the allegations in the complaint. 

Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). 

A complaint should only be dismissed if, accepting as true all of the 

allegations in the amended complaint, plaintiff has not pled enough facts to state a 

claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 561 (2007). “Determining whether a complaint states a plausible claim 

for relief will . . . be a context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-664. 

“In considering a Rule 12(b)(6) motion, we must be mindful that federal 

courts require notice pleading, as opposed to the heightened standard of fact 

pleading.” Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa. 

May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 "requires only a 

‘short and plain statement of the claim showing that the pleader is entitled to relief,' 

in order to 'give the defendant fair notice of what the...claim is and the grounds on 

which it rests,'" Twombly, 550 U.S. at 554 (quoting Conley v. Gibson, 355 U.S. 41, 

47 (1957)). However, even under this lower notice pleading standard, a plaintiff 

must do more than recite the elements of a cause of action, and then make a 

blanket assertion of an entitlement to relief. See Hellmann, 2008 WL 1969311 at 

*3. Instead, a plaintiff must make a factual showing of his entitlement to relief by 

alleging sufficient facts that, when taken as true, suggest the required elements of a 

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particular legal theory. See Twombly, 550 U.S. at 561. “[W]here the well-pleaded 

facts do not permit the court to infer more than the mere possibility of misconduct, 

the complaint has alleged - - but it has not “shown” - - “that the pleader is entitled 

to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)). 

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation 

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490 

U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where 

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the 

non-moving party can prove no set of facts in support of its allegations, then a 

claim must be dismissed “without regard to whether it is based on an outlandish 

legal theory or on a close but ultimately unavailing one.” Id. at 327.

III. DISCUSSION

A. Count I Procedural Due Process

Defendants initially argue that Plaintiff has not pled a procedural due 

process claim for several reasons. First, they contend that she did not request a 

hearing, as required under Pennsylvania law governing the dismissal of school 

district employees, and therefore she cannot allege that her failure to receive one

was in violation of her procedural due process rights. Moreover, they argue, 

contrary to her assertions of constructive discharge, she actually resigned from her 

position and, accordingly, Defendants did not deprive her of her rights. Finally, 

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Defendants argue that Plaintiff’s conduct was tantamount to “immoral behavior” 

under Pennsylvania law and thus there was cause to dismiss her.

3

Plaintiff responds that she did have a constitutionally protected property 

interest in continued public employment pursuant to 24 P.S. § 11-1122, and that 

one DUI does not constitute an act of immorality sufficient to trigger the 

provisions of that law. Furthermore, she asserts that she had a protected liberty 

interest in her reputation which was violated when Defendants terminated her 

employment for allegedly engaging in conduct of intemperance, immorality and 

moral turpitude. Finally, she avers that she was denied her pre- and posttermination due process rights to sufficient notice and a hearing.4

To begin with, §1983 is not a source of substantive rights; rather, it merely 

provides a remedy for violations of constitutional rights. See City of Oklahoma 

City v. Tuttle, 471 U.S. 808, 815 (1985). To establish a claim under 42 U.S.C. § 

1983, Plaintiffs must initially demonstrate that: (1) the conduct complained of was 

committed by a person acting under color of state law; and (2) the conduct 

deprived the complainant of rights secured under the Constitution or federal law. 

See Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d 

Cir. 1998). As a preliminary matter, Plaintiff has alleged that the Defendants were 

 

3 As will be discussed within the opinion, the Court is unclear as to how this argument negates Plaintiff’s procedural 

due process claim.

4 Though she alleges that she was not afforded post-termination rights in violation of procedural due process, 

nowhere in her brief or her complaint does Plaintiff explain in what way she was denied any post-termination due 

process rights.

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acting under color of state law when they committed the actions which allegedly 

violated her constitutional rights.

The Fourteenth Amendment provides that no “State [shall] deprive any 

person of life, liberty, or property, without due process of law.” U.S. Const. amend. 

XIV, § 1. “To prevail on a procedural due process claim, a litigant must show (1) 

that the state deprived him of a protected interest in life, liberty, or property and (2) 

that the deprivation occurred without due process of law.” Burns v. PA Dep’t. of 

Correction, 544 F.3d 279, 285 (3d Cir. 2008) (citing Ky. Dep’t of Corr. V . 

Thompson, 490 U.S. 454, 460 (1989)). In this case, Plaintiff alleges violations of 

both her property rights in continued public employment and her liberty rights in 

her reputation. The Court will address each in turn.

1. Property Interest in Continued Employment

“Property interests, of course, are not created by the Constitution. Rather 

they are created and their dimensions are defined by existing rules or 

understandings that stem from an independent source such as state law-rules or 

understandings that secure certain benefits and that support claims of entitlement to 

those benefits.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). 

This means that courts are directed to look to state law in determining whether a 

property interest exists in any given scenario. Consequently, this Court must 

determine whether Plaintiff had, pursuant to Pennsylvania law, a property interest 

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in continued employment as Elementary School Principal of Shikellamy School 

District.

Plaintiff alleges that she had a statutorily defined property interest in her 

continued employment as a professional employee under 24 P.S. § 11-1122. That 

section of the Public School Code of 1949 (hereinafter, the “School Code”) 

provides, in pertinent part, “The only valid causes for termination of a contract 

heretofore or hereafter entered into with a professional employee (sic) shall be 

[certain enumerated causes].” 24 P.S. §11-1122(a). Plaintiff qualifies as a 

professional employee pursuant to 24 P.S. § 11-1101(1) (“The term ‘professional 

employe (sic)’ shall include those who are certificated as . . . principals. . .”). 

Plaintiff’s argument regarding the applicability of § 11-1122 appears to rely solely 

on her status as a professional employee; however, Plaintiff fails to recognize that 

pursuant its explicit wording, this section of the School Code applies only to 

professional employees who are under contract with the School District.5 Nowhere 

in her complaint has Plaintiff pled that she was under contract with the School 

District.6 Accordingly, to the extent Plaintiff predicates her claim for deprivation 

 

5 Moreover, pursuant to 24 P.S. § 11-1121(a), all contracts with professional employees must be “in writing, in 

duplicate, and shall be executed on behalf of the board of school directors by the president and secretary and signed 

by the professional employee.”

6 Notably, it is possible that, despite Plaintiff’s position as a professional employee, she was not under contract. 

Specifically, 24 P.S. § 11-1121(b)(2) states, “Each board of school directors in all school districts shall hereafter 

enter into contracts, in writing, with each professional employe (sic) initially employed by a school district, on or 

after June 30, 1996, who has satisfactorily completed three (3) years of service in any school district of this 

Commonwealth.” According to her complaint, Plaintiff was employed as principal from October 2011 to June 2014, 

just under the three years after which an employment contract is statutorily mandated.

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of a property interest on the application of §11-1122, her claim is dismissed, 

without prejudice with leave to amend to allege the existence of an employment 

contract.

Nevertheless, it is clear that Plaintiff had a property interest in continued 

public employment, even without the existence of a contract. Under 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 (sic), or appointees for incompetency, intemperance, neglect of duty, 

violation of any of the school laws of this Commonwealth, or other improper 

conduct.” This section appears to create a catchall provision which affords 

protections, albeit weaker ones, to public school employees not otherwise covered 

by statute. See DeSimone v. Coatesville Area School Dist. 248 F.Supp.2d 387, 392 

(E.D.Pa. 2003). Similar to § 11-1122, this provision provides Plaintiff with a 

property interest in her continued employment which requires that she be 

terminated only for the specific enumerated causes. Consequently, this Court 

determines that Plaintiff has adequately pled the existence of a property interest in 

her continued employment as Elementary School Principal.

Next, the Court must assess whether Plaintiff was deprived of that property 

interest. Defendants characterize Plaintiff’s exit from her position as a voluntary 

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resignation; Plaintiff, on the other hand, portrays her departure as one in which she 

was forced to resign and did so under protest, in a manner effectively amounting to 

a constructive discharge. 

Employee resignations and retirements are presumed to be voluntary. This 

presumption remains intact until the employee presents evidence to establish 

that the resignation or retirement was involuntarily procured. If 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. 1990). The United States 

Court of Appeals for the Third Circuit has further articulated that there are two 

circumstances in which an employee’s resignation will be considered involuntary, 

that is: “(1) when the employer forces the resignation or retirement by coercion or 

duress, or (2) when the employer obtains the resignation or retirement by deceiving 

or misrepresenting a material fact to the employee.” Id. at 228. Since Plaintiff has 

alleged nothing to the effect that Defendants deceived her or misrepresented a 

material fact to procure her resignation, this Court interprets her complaint to 

allege that she was forced to resign under coercion or duress and will analyze it 

accordingly.

In determining whether a resignation was procured involuntarily due to 

coercion or duress, courts have considered several factors, including: (1) whether 

the employee was presented with an alternative to resignation; (2) whether the 

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employee understood the nature of the choices she 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. See O’Connell v. County of Northampton, 79 F.Supp.2d 

529, 533 (E.D.Pa. 1999) (citing Hargray v. City of Hallandale, 57 F.3d 1560, 1568 

(11th Cir. 1995)). In this case, Plaintiff has alleged that she was given 

approximately one day to choose whether she would resign or face termination 

proceedings. It is not clear to the Court whether Plaintiff had the advice of counsel 

in electing the former, nor whether she was permitted to select the effective date of 

her resignation. However, at this stage of the proceedings, this is sufficient to 

allege that she was constructively discharged and therefore deprived of her 

constitutionally protected property interest in continued public employment.7

Finally, Plaintiff must also allege that her deprivation occurred without due 

process of law. Pursuant to Cleveland Bd. of Educ. v. Loudermill, an essential 

principle of due process is that a deprivation of life, liberty or property be preceded 

by notice and an opportunity for a hearing. 470 U.S. 532, 542 (1985). This means 

that an employee who possesses a constitutionally protected property interest in 

employment must be given at least some way to respond to the charges against her 

 

7 Both parties articulate arguments regarding whether Plaintiff was properly terminated for the enumerated causes. 

However, this is not relevant to Plaintiff’s procedural due process claim because the issue is not whether Defendants 

followed the dictates of either § 11-1122 or § 5-514; rather, the issue is whether Defendants afforded her with due 

process of law in doing so.

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prior to discharge. Id. Plaintiff alleges that she was not given any type of hearing 

but was, rather, summarily forced to resign.8 To the extent Plaintiff was deprived 

of her property interest in continued public employment through this constructive 

discharge, as alleged, she has properly asserted that she did not receive a pretermination hearing in contravention of her due process rights. Accordingly, 

insofar as Plaintiff predicates her claim for deprivation of a property interest on the 

application of § 5-514, Defendants’ motion to dismiss is denied. 

2. Liberty Interest in Reputation

Plaintiff also asserts a liberty interest in her reputation, of which she was 

deprived when Defendants terminated her employment because they claimed she 

had engaged in conduct of intemperance, immorality, and moral turpitude. 

Defendants do not respond to this argument. Effectively, Plaintiff is asserting a 

violation of her procedural due process rights based on a “stigma-plus” theory.

The United States Supreme Court has held that an individual has a protected 

interest in his or her reputation. See Wisconsin v. Constantineau, 400 U.S. 433, 

437 (1971) (“Where a person’s good name, reputation, honor, or integrity is at 

stake because of what the government is doing to him, notice and an opportunity to 

 

8 Although Defendant argues that Plaintiff was entitled to a hearing if she requested one, which she did not do, the 

application of that provision of § 5-514 becomes muddled given Plaintiff’s assertion that she was given only one day 

in which to resign and was therefore effectively discharged. That is, it is unclear to this Court when, given the 

alleged constructive discharge, Plaintiff would have had the opportunity to request a hearing. Nevertheless, 

Loudermill requires that an employee with a property interest in her employment be given the opportunity for a 

hearing. Accordingly, in the instant case, insofar as Plaintiff was constructively discharged pursuant to the terms 

alleged, it is clear that she had no legitimate opportunity to request such a hearing. 

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be heard are essential.”). However, the Supreme Court has since clarified that 

reputation alone does not create a protected liberty interest; “[r]ather, to make out a 

due process claim for deprivation of a liberty interest in reputation, a plaintiff must 

show a stigma to his reputation plus deprivation of some additional right or 

interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) (citing 

Paul v. Davis, 424 U.S. 693, 701 (1976)). This is known as the stigma-plus test. 

In the public employment context, the Third Circuit has held that the stigma-plus 

test applies when an employer “creates and disseminates a false and defamatory 

impression about the employee in connection with his termination.” Id. (quoting 

Codd v. Velger, 429 U.S. 624, 628 (1977)). The purportedly stigmatizing

statement must be made publicly. See id.

In this case, Plaintiff alleges that she was discharged for failing to notify the 

school district about the possibility that she would be charged with a DUI. She 

attaches to her complaint the above-referenced letter from Defendant Kelley in 

which he characterizes her actions as ones involving immorality, intemperance, 

and moral turpitude. It is these characterizations to which she appears to take 

issue. However, Plaintiff has not alleged that these statements, which were sent to 

her in private letter from Defendant Kelley, were made public as required to state a 

deprivation of a liberty interest. See Chabal v. Reagan, 841 F.2d 1216, 1223 (3d 

Cir. 1988) (“[A] plaintiff must plead that the allegedly stigmatizing information 

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was ‘published’ or otherwise disseminated by his government employer to the 

public.”).9 Accordingly, Plaintiff’s claim for procedural due process violations 

based on the deprivation of her liberty interest in her reputation must be dismissed

without prejudice, with leave to amend to allege specifically how the information 

was published by the Defendants.

B. Count II Substantive Due Process

Defendant next argues that Plaintiff’s claim for violation of her substantive 

due process rights must be dismissed for two reasons. First, they contend that the 

right to hold public employment is not a fundamental right and therefore not 

protected by substantive due process. Additionally, they argue that the conduct 

alleged could not possibly shock the conscience. Plaintiff responds only to the 

latter contention, arguing that a reasonable fact-finder could conclude that 

Defendants’ conduct, as alleged, shocks the conscience and that she should be 

entitled to discover additional facts in support of her claim.

To prevail on a substantive due process claim challenging a state actor’s 

conduct, “a plaintiff must establish as a threshold matter that he has a protected 

property interest to which the Fourteenth Amendment’s due process protection 

applies.” Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 139-40 (3d Cir. 

2000). This Court has already found that Plaintiff has sufficiently alleged an 

 

9 Notably, the letter from Defendant Kelley states that if Plaintiff resigned immediately, which she did, he would 

offer a neutral reference in the future.

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established property interest in her employment pursuant to state law. However, 

“not all property interests worthy of procedural due process protection are 

protected by the concept of substantive due process.” Reich v. Beharry, 883 F.2d 

239, 243 (3d Cir. 1989). Whether a property interest is protected for purposes of 

substantive due process is a question that is not answered by state law. See Hill, 

455 F.3d at 234 n.12. Rather, a property interest is protected for the purposes of 

substantive due process only if it is considered “fundamental” under the United 

States Constitution. Nicholas, 227 F.3d at 140. “If the interest is not 

‘fundamental,’ however, the government action is entirely outside the ambit of 

substantive process and will be upheld so long as the state satisfies the 

requirements of procedural due process.” Id. at 142. 

With regard to the case at bar, the Third Circuit has explicitly determined 

that public employment is not a fundamental right entitled to substantive due 

process protection. Id. at 143. Specifically, the court has held that “public 

employment is a wholly state-created contract right; it bears little resemblance to 

other rights and property interests that have been deemed fundamental under the 

Constitution.” Id. As such, although Plaintiff can state a claim for procedural due 

process violations based on her termination from public employment, her 

substantive due process claim on that same ground must fail. 

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Moreover, to the extent Plaintiff's substantive due process claim rests on 

reputational injury that decreased her ability to earn a living, it also fails.10 See 

Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 399-404 (3d Cir. 

2000) (defamatory statements that curtail a plaintiff's business opportunities do not 

suffice to support a substantive due process claim). Consequently, Defendants’ 

motion to dismiss Count II of Plaintiff’s complaint is granted and Plaintiff’s

substantive due process claim is dismissed with prejudice.

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C. Count III Equal Protection

Defendants next argue that Plaintiff’s equal protection claim must be 

dismissed because she has failed to demonstrate facts sufficient to establish that 

she was treated differently from “similarly situated individuals.” Rather, they 

argue, despite Plaintiffs’ attempt to classify Defendant Kelley as such, he is not a 

similarly situated individual because he holds a completely different position. 

Plaintiff counters that the parties need not be identical, but rather must only be 

alike in all relevant respects. Moreover, she argues, determining whether an 

individual is “similarly situated” to another is a highly factual inquiry which is 

inappropriate at the motion to dismiss stage.

 

10 Though Plaintiff has not necessarily made this argument in her brief in opposition, the Court finds it appropriate 

to address the issue given Plaintiff’s reliance on it with regard to her procedural due process claim.

11 Because the Court grants Defendants’ motion on the grounds that Plaintiff’s property interest in her employment 

is not tantamount to a fundamental right under the Constitution, the Court need not address the parties’ arguments 

regarding whether the conduct alleged can be said to shock the conscience.

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The Fourteenth Amendment “requires that all persons . . . shall be treated 

alike, under like circumstances and conditions, both in the privileges conferred and 

in the liabilities imposed.” Hayes v. Missouri, 120 U.S. 68, 71-72 (1887). Two 

theories exist upon which a plaintiff may assert an equal protection claim. “The 

traditional theory protects a plaintiff from discriminatory treatment based on 

membership in a protected class.” D’Altilio v. Dover Twp., Civil Action No. 1:06-

CV-1931, 2007 WL 2845073, at *8 (M.D.Pa. Sept. 26, 2007) (Conner, J.). To 

assert a claim under this theory, a plaintiff must allege the following elements: (1) 

that she is a member of a protected class; (2) that she was treated differently from 

similarly situated individuals; and (3) that this disparate treatment was based on 

her membership in the protected class. See Barnett v. School Dist. of Lancaster, 

Civil Action No. 14-2414, 2015 WL 1312730, at * 3 (E.D.Pa. Mar. 24, 2015) 

(citing Kasper v. County of Bucks, 514 Fed.Appx. 210, 214 (3d Cir. 2013)). 

Plaintiff has alleged no facts from which this Court can infer that she was a 

member of a protected class and that the disparate treatment she suffered was 

based upon her membership in that protected class. Moreover, she has failed to 

argue such a claim in her brief. 

Accordingly, as a result of her failure to allege a traditional equal protection 

claim, Plaintiff appears to assert an equal protection claim based upon a class-ofone theory. Under this theory, a plaintiff may assert an equal protection claim 

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even absent protected class status by alleging irrational and intentional differential 

treatment in comparison to similarly situated individuals. See Village of 

Willowbrook v. Olech, 528 U.S. 562, 564 (2000). However, the Supreme Court has 

qualified that this “class-of-one theory of equal protection has no application in the 

public employment context.” Enquist v. Oregon Dept. of Agr., 553 U.S. 591, 602 

(2008); see also Kasper, 514 Fed.Appx. at 214; Scavone v. Pennsylvania State 

Police, 501 Fed.Appx. 179, 181 (3d Cir. 2012); Conrad v. Pennsylvania State 

Police, 360 Fed.Appx. 337, 339 (3d Cir. 2010). Consequently, Defendants’ 

motion to dismiss Count III of Plaintiff’s complaint is granted and Plaintiff’s equal 

protection claim is also dismissed with prejudice.

D. Count IV Breach of Contract 

Defendant also argues that Plaintiff’s claim for breach of contract must be 

dismissed because Plaintiff has failed to identify the nature and extent of her 

alleged contractual relationship with Defendants, its essential terms, and what 

specific terms Defendants may have breached. In her response, Plaintiff appears to 

rest her breach of contract claim on one of two possibilities: (1) an implied contract 

between her and the Defendants and/or (2) a statutorily obligated contractual 

relationship stemming from § 11-1122 of the Public School Code.

To plead a cause of action for breach of contract, a plaintiff must establish: 

(1) the existence of a contract, including its essential terms; (2) a breach of a duty 

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imposed by that contract; and (3) resultant damages. See CoreStates Bank, N.A. v. 

Cutillo, 723 A.2d 1053, 1058 (Pa.Super. 1999). “While not every term of a 

contract must be stated in complete detail, every element must be specifically 

pleaded.” Id. (citing Snaith v. Snaith, 422 A.2d 1379, 1382 (Pa.Super. 1980)).

As explained previously, Plaintiff has failed to allege the existence of an 

employment contract separate and apart from the application of Pennsylvania 

statutory law; she has also failed to specifically plead its essential terms. The 

existence of a contract is the preeminent element of a breach of contract claim, 

without which Plaintiff’s claim must fail. Importantly, the existence of a 

Pennsylvania statute which provides for termination of public school employees 

only for specific causes does not create a contract between Plaintiff and her 

employer, the School District. If Plaintiff believes that Defendants have acted in 

contravention of that mandate, her remedy is statutory; she cannot claim a 

contractual remedy where there has been no actual contract.

Furthermore, to the extent Plaintiff attempts to aver in her brief that there 

was an implied contract of employment between her and the School District, this

argument also fails. “The general rule in Pennsylvania is that employment is atwill unless there is a statutory or contractual provision to the contrary.” Wallet v. 

Pennsylvania Turnkpike Comm’n, 528 Fed.Appx. 175, 180 (3d Cir. 2013). “The 

at-will employment doctrine provides that absent a statutory or contractual 

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provision to the contrary, the employer and employee each have the power to 

terminate the employment relationship for any or no reason.” Weaver v. Harpster, 

975 A.2d 555, 557 n.3 (Pa. 2009). In the absence of an express contract, “[a]n 

‘implied-in-fact’ contract can also suffice, if additional consideration passes from 

the employee to the employer ‘from which the court can infer the parties intended 

to overcome the at-will presumption.’” Preobrazhenskaya v. Mercy Hall Infirmary, 

71 Fed.Appx. 936, 940 (3d Cir. 2003) (quoting Raines v. Haverford College, 849 

F.Supp. 1009, 1012 (E.D.Pa. 1994)).

Courts have found additional consideration sufficient to overcome the at-will 

presumption when the employee “affords his employer a substantial benefit other 

than the services which the employee is hired to perform, or when the employee 

undergoes a substantial hardship other than the services which he is hired to 

perform.” Jones v. Flaster/Greenberg P.C., Civil Action No. 13-2771, 2013 WL 

6846916, at * 3 (E.D.Pa. Dec. 30, 2013). In the alternative, courts have also held 

that “[i]n the employment context, the communication to employees of certain 

rights, policies and procedures may constitute an offer of an employment contract 

with those terms. The employee signifies acceptance of the terms and conditions 

by continuing to perform the duties of his or her job; no additional or special 

consideration is required.” Darlington v. General Electric, 504 A.2d 306, 320 

(Pa.Super. 1986).

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Although generally the issue of whether parties intended to create an implied 

contract would be an issue for the finder of fact, see DiBonaventura v. 

Consolidated Rail Corp., 539 A.2d 865, 868 (Pa.Super. 1988), Plaintiff must still 

set forth sufficient facts to allege the existence of an implied contract. See

Hellman, 2008 WL 1969311, at *3 (“[E]ven under this lower notice pleading 

standard, a plaintiff must do more than recite the elements of a cause of action, and 

then make a blanket assertion of an entitlement to relief under it. Instead, a 

plaintiff must make a factual showing of his entitlement to relief by alleging 

sufficient facts that, when taken as true, suggest the required elements of a 

particular legal theory.”). In this case, Plaintiff has set forth no facts which would 

demonstrate the existence of an implied contract. The Court will not infer a 

contract merely from Plaintiff’s implied assertion that one existed.12 Accordingly, 

Plaintiff’s claim for breach of contract is dismissed without prejudice, with leave to

amend to allege specifically the existence of a written or oral employment contract, 

or specific facts from which this Court could infer the existence of an implied 

contract. 

E. Punitive Damages

Defendant argues that Plaintiff’s claim for punitive damages must be 

dismissed because Plaintiff’s complaint is devoid of any allegations of outrageous 

 

12 Moreover, Plaintiff has not even included this theory it in her complaint. Rather, she relies solely on her brief in 

opposition for this argument.

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conduct by the Defendants to warrant the imposition of punitive damages. Plaintiff 

responds that she has set forth sufficient allegations to entitle her to request 

punitive damages, specifically, that Defendant Kelley and the school board as a 

whole acted with evil motive and intent when terminating her. She argues further 

that they recklessly disregarded the severe consequences of their actions in that 

their decision deprived Plaintiff of her means of livelihood and disparaged her 

reputation.

Punitive damages are available in a proper case asserted pursuant to § 1983. 

See Smith v. Wade, 461 U.S. 30, 30 (1983). A plaintiff in a § 1983 case may 

qualify for a punitive damages award when the defendant’s conduct is, at a 

minimum, reckless or callous. See Savarese v. Agriss, 883 F.2d 1194, 1204 (3d 

Cir. 1989); see also Wade, 461 U.S. at 47-48 (holding that a finding of 

“recklessness, serious indifference to or disregard for the rights of others, or even 

gross negligence” permitted an award of punitive damages). Although punitive 

damages awards may also be available if the defendant’s conduct is intentional or 

motivated by evil motive, it need not meet that higher standard. Specifically, as 

the United States Supreme Court has stated, “[A] jury may be permitted to assess 

punitive damages in an action under § 1983 when the defendant’s conduct is 

shown to be motivated by evil motive or intent, or when it involves reckless or 

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callous indifference to the federally protected rights of others.” Wade, 461 U.S. at 

56. 

However, this standard applies only to defendants sued in their individual 

capacities; neither municipalities nor defendants sued in their official capacities 

can be liable for punitive damages. See City of Newport v. Fact Concerts, Inc., 

453 U.S. 247, 271 (1981) (holding that punitive damages cannot be awarded 

against municipalities); Kentucky v. Graham, 473 U.S. 159, 167 n. 13 (1985)

(holding that suits against individual defendants in their official capacities are 

equivalent to suits against the municipalities that employed them; therefore the 

individual defendants are immune from punitive damages); see also Gregory v. 

Chehi, 843 F.2d 111, 120 (3d Cir. 1988) (“Punitive damages cannot be recovered 

from defendants in their official capacities”). It is undisputed that public school 

districts, such as Shikellamy, are considered municipal entities. See Doe v. 

Allentown Sch. Dist., Civil Action No. 06-cv-1926, 2009 WL 536671, at * 5 (citing 

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)). Accordingly, all requests for 

punitive damages against Defendant Shikellamy School District and the individual 

Defendants, to the extent they are sued in their official capacities, must be 

dismissed. 

However, Plaintiff has also asserted claims against the individual 

Defendants in their individual capacities. Consequently, the Court must determine 

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whether Plaintiff has adequately pled her multiple requests for punitive damages. 

It is well settled in Pennsylvania jurisprudence that “[p]unitive damages will not be 

assessed for a breach of mere contractual duties. Only where the person who 

breaks a contract also breaches some duty imposed by society will compensatory 

or punitive damages be imposed against the wrongdoer in order to punish the 

wrongful act and in order to serve as a deterrent.” Daniel Adams Associates v. 

Rimbach Publishing Inc., 429 A.2d 726, 728 (Pa.Super. 1981). This means that, in 

order to recover punitive damages, a plaintiff must plead some sort of recovery in 

tort which arises out of the same transaction. See Standard Pipeline Coating Co., 

Inc. v. Solomon & Teslovich, Inc., 496 A.2d 840, 844 (Pa.Super. 1985). Because 

there are no allegations in the complaint to establish a breach of any societal duty, 

Defendants’ motion to dismiss the punitive damages request is granted insofar as 

the request is asserted pursuant to Plaintiff’s breach of contract claim.

However, as explained above, punitive damages are available in a proper 

case asserted pursuant to § 1983 when the defendant’s conduct is, at a minimum, 

reckless or callous. See Wade, 461 U.S. at 30. Plaintiff has alleged that the actions 

of the individual Defendants were “outrageous, extremely offensive and intentional 

and discriminatory toward [Plaintiff] and were performed with malicious, reckless 

indifference, and/or wanton disregard of Plaintiff’s civil rights.” Because an 

inquiry into the availability of punitive damages and the intent behind a 

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defendant’s conduct is inherently fact-specific, the Court will not decide at this 

stage whether Plaintiff is entitled to request punitive damages. Therefore, this 

Court will deny, at this time, Defendants’ motion to dismiss any demand of 

punitive damages with respect to her § 1983 claims against the individual 

Defendants.13

F. Defenses of Individual Defendants

1. Redundancy

Defendants next argue that this Court should dismiss all claims against the 

individual defendants asserted in their official capacities because such claims are 

redundant of the claims asserted against the School District. They contend that the 

law is clear that such parties must be dismissed from the action. Plaintiff responds 

that redundancy is not a proper basis for dismissal under Federal Rule of Civil 

Procedure 12(b)(6). Moreover, she contends, dismissal is discretionary and in this 

case naming the individual Defendants in their official capacities would not 

unnecessarily confuse the issues or clutter the case. In their arguments, both 

parties appear to assume that the claims are only asserted against the individual 

Defendants in their official capacities, rather than in their individual capacities.

Section 1983 lawsuits against individuals in their official capacities 

“represent only another way of pleading an action against an entity of which an 

 

13 The Court notes, however, that because this Court simultaneously dismisses the individual Defendants from this 

action on the basis of qualified immunity, Plaintiff’s claims for punitive damages are also effectively dismissed.

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officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). 

Defendants who are public officials can be sued in either their individual or their 

official capacities; the difference between the two is often unclear. As a result, the 

United States Supreme Court has attempted to distinguish them, holding that 

individual capacity suits “seek to impose personal liability upon a government

official for actions he takes under color of state law.” Id. at 165. In such a case, the 

plaintiff need only show that the official, acting under color of state law, caused 

the deprivation of a federal right. Id. at 166. On the other hand, in an official 

capacity suit, the suit is not against the official personally; rather, the real party in 

interest is the entity. See id. Therefore, because a governmental entity is only 

liable under § 1983 when it is a moving force behind the deprivation, “in an 

official-capacity suit the entity’s ‘policy or custom’ must have played a part in the 

violation of federal law.” Id. (quoting Monell v. New York City Dep’t of Social 

Services, 436 U.S. 658, 690 n.55 (1978)).

Because official capacities suits are just another way of suing the entity 

itself, many courts in this and surrounding districts have held that claims asserted 

against individual defendants in their official capacities are redundant if the 

plaintiff has also sued the entity. See, e.g., Marcovich v. Panther Valley School 

Dist., Civil Action No. 3:13-3096, 2014 WL 3735292, at * 4 (M.D.Pa. July 28, 

2014) (Mannion, J.) (citing Burton v. City of Philadelphia, 121 F.Supp.2d 810, 812 

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(E.D.Pa. 2000)) (“To the extent that the claims against Ms. Prorembo in her 

official capacity, they are redundant of the claims against the governmental entity 

and may be dismissed.”); E.B. v. Woodland Hills School Dist., Civil Action No. 

10-0442, 2010 WL 2817201, at * 3 (W.D.Pa. July 16, 2010) (Lancaster, J.)

(“Therefore, the official capacity suits against defendants Calinger, Johnston and 

Kline are unnecessary because they are essentially suits against the School District, 

which is already a named Defendant.”); Gregory v. Chehi, 843 F.2d 111, 120 (3d 

Cir. 1988) (holding that the claims against the defendant officials in their official 

capacities were merely duplications of the claims against the Township itself); 

Snook v. Midd-West School Dist., No. 4:14-CV-948, 2015 WL 1209756, at *4 

(M.D.Pa. Mar. 16, 2015) (Mariani, J.). The Court finds the reasoning of those 

cases to be persuasive and will dismiss all claims asserted against the individual 

Defendants in their official capacities because these claims unnecessarily clutter 

the case. See, e.g., Hordych v. Borough of North East, No. 10-16E, 2010 WL 

1707735, at *6 (W.D.Pa. Apr. 27, 2010) (holding that dismissal on the basis of 

redundancy is discretionary, but nevertheless dismissing the claims because they 

unnecessarily cluttered the case and they were likely to be confusing to a jury).

Before doing so, however, this Court must address Plaintiff’s argument that 

redundancy is not a proper basis for dismissal under Federal Rule of Civil 

Procedure 12(b)(6). Plaintiff cites to only one case from the Eastern District of 

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Pennsylvania in support of her argument, Coffman v. Wilson Police Department. 

In that case, the court held that a Rule 12(b)(6) motion does not address the 

redundancy of claims; it only questions their validity. 739 F.Supp. 257, 261 

(E.D.Pa. 1990). However, the court did not cite to any case law in support of that 

proposition and it is clear from the multitude of cases cited above that a 12(b)(6) 

motion is, in fact, a proper avenue through which to dismiss redundant parties.

Be that as it may, despite Plaintiff’s failure to make the argument in her 

brief, she has in fact sued each individual Defendant in both their individual and 

official capacities. Moreover, in her complaint she avers that at all times relevant, 

“Defendants were acting under color of law and color of their authority as officials 

of Shikellamy School District.” She goes on to detail the specific actions that the 

individuals took which contributed to her constitutional injury. Though the Court 

today undertakes to dismiss all claims against the individual Defendants in their 

official capacities, at this stage of the litigation it cannot similarly dismiss all 

claims against them in their individual capacities on this basis. Accordingly, this 

Court will dismiss all claims asserted against the individual Defendants in their 

official capacities as duplicitous of the claims asserted against the school district. 

2. High Public Official Immunity

Defendants also argue that the claims asserted by Plaintiff against the 

individual Defendants must be dismissed because these individual Defendants 

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enjoy high public official immunity. Plaintiff responds first that the doctrine of 

high public official immunity does not apply to cases under § 1983 or breach of 

contract cases. Moreover, she contends, even if it did it would not apply to the 

instant action where the conduct of Defendants fell outside the scope of their 

official authority. 

Pennsylvania recognizes a doctrine of absolute immunity for high public 

officials. See Lindner v. Mollan, 677 A.2d 1194, 1195 (Pa. 1996). Generally, high 

public official immunity immunizes certain officials “from all civil suits arising out 

of false defamatory statements and even from statements or actions motivated by 

malice, provided the statements are made or the actions are taken in the course of 

the official’s duties or powers and within the scope of his authority.” Id. Though

the doctrine was first articulated in the context of defamation lawsuits, it has since 

expanded to encompass a variety of actions outside the context of defamation, 

including retaliatory discharge, economic interference, loss of consortium, invasion 

of privacy, and intentional infliction of emotional distress, to name a few. See 

Osiris Enterprises v. Borough of Whitehall, 877 A.2d 560, 567 (Pa.Cmwlth. 2005);

see also Zugarek v. Southern Tioga School Dist., 214 F.Supp.2d 468, 479 (M.D.Pa. 

2002) (McClure, J.).

However, all of these enumerated claims for which high public officials are 

entitled to absolute immunity under Pennsylvania law are tort claims. See Kane v. 

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Chester County Dept. of Children, Youth and Families, 10 F.Supp.3d 671, 697 

(E.D.Pa. 2014) (“Under Pennsylvania law, ‘high public officials’ are absolutely 

immune from tort liability stemming from action taken within the scope of their 

authority.” (emphasis added)). This Court is unable to find a single case in which a 

Pennsylvania court has extended the doctrine to include either contract or 

constitutional claims. Importantly, it is clear to this Court that Defendants cannot 

utilize a state immunity such as the one at issue to insulate themselves from the 

application of a federal law under § 1983. The United States Supreme Court has 

explicitly stated that “[a]s to persons that Congress subjected to liability, individual 

states may not exempt such persons from federal liability in state court by relying 

on their own common-law heritage; to hold otherwise would enable states to 

nullify for their own people the legislative decisions that congress has made on 

behalf of all the people.” Howlett v. Rose, 496 U.S. 356, (1990); see also Martinez 

v. State of California, 444 U.S. 277, 284 n.8 (1980) (“Conduct by persons acting 

under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) 

cannot be immunized by state law. A construction of the federal statute which 

permitted a state immunity defense to have controlling effect would transmute a 

basic guarantee into an illusory promise; and the supremacy clause of the 

constitution insures that the proper construction may be enforced.”). For these 

reasons, the Court declines to extend the application of Pennsylvania’s high public 

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official immunity in the instant case to shield Defendants from liability for any 

alleged constitutional or contractual violations. Accordingly, Defendants’ motion 

to dismiss on this basis is denied.

3. Qualified Immunity

Finally, the individual Defendants argue that they are entitled to qualified 

immunity on Plaintiffs’ claims because it would not be unreasonable for the school 

board members or superintendent to believe that it is lawful to ask for the 

resignation of a principal who was faced with possible prosecution for DUI, and 

who failed to disclose the severity of her conduct to the School District because a 

principal is in a position of respect and authority and should be a positive role 

model for students. Thus, they contend, Defendants were not violating a clearly 

established statutory or constitutional right when they asked for Plaintiff’s 

resignation. Plaintiff responds, in pertinent part, that she had a constitutionally 

protected property interest in continued employment and could only be terminated 

for cause, and upon notice and hearing, of which a reasonable person would be 

aware.

14

The purpose of qualified immunity is to protect government officials “from

liability for civil damages insofar as their conduct does not violate clearly 

 

14 Plaintiff has made other arguments pertaining to her other constitutional claims, including her substantive due 

process and equal protection claims. However, because the Court dismisses those claims today for failure to state a 

claim upon which relief can be granted, I will only address Plaintiff’s opposition as it relates to her procedural due 

process claim.

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established statutory or constitutional rights of which a reasonable person would 

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Thus, law 

enforcement officials who ‘reasonably but mistakenly’ conclude that their conduct 

comports with the requirements of the Fourth Amendment are entitled to 

immunity.” Sharrar v. Felsing, 128, F.3d 810, 826 (3d Cir. 1997). Significantly, 

qualified immunity is intended to be an immunity from suit, rather than simply a 

defense to liability, which means that its protection is effectively lost if a defendant 

is required to go to trial. See Saucier v. Katz, 533 U.S. 194, 200-1 (2001).

In determining whether a defendant is entitled to the protections of qualified 

immunity, courts employ a two-part test. First, the court must consider whether 

the facts that the plaintiff has demonstrated make out a violation of a constitutional 

right. See id., 533 U.S. at 201. If the plaintiff has satisfied that inquiry, the court 

must next decide whether the constitutional right at issue was “clearly established” 

at the time of the defendant’s alleged misconduct. See id. The Supreme Court has 

recently stressed that there is no mandatory order in which to consider the two 

prongs of this qualified immunity analysis. See Pearson v. Callahan, 555 U.S. 223, 

236 (2009) (“On reconsidering the procedure required in Saucier, we conclude 

that, while the sequence set forth there is often appropriate, it should no longer be 

regarded as mandatory. The judges of the district courts and the courts of appeals 

should be permitted to exercise their sound discretion in deciding which of the two 

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prongs of the qualified immunity analysis should be addressed first in light of the 

circumstances in the particular case at hand.”).

Defendant argues primarily that the rights at issue were not clearly 

established. In determining whether a constitutional right was clearly established, 

a broad and generalized declaration that a clearly established federal right was 

violated is insufficient. See Anderson v. Creighton, 483 U.S. 632, 640 (1987) 

(holding that the mere assertion that the Fourth Amendment prohibits warrantless 

searches without probable cause and exigent circumstances was not enough to 

demonstrate that the right was clearly established). Rather, in order for a 

constitutional right to be ‘clearly established,’ “[t]he contours of the right must be 

sufficiently clear that a reasonable official would understand what he is doing 

violates that right.” Id. at 640-41. Put another way, for the purposes of the 

qualified immunity analysis, a right is considered clearly established if “it would 

be clear to a reasonable officer that his conduct was unlawful in the situation he 

confronted.” Saucier, 533 U.S. at 202.

It is has often been assumed in the Third Circuit, without much comment,

that if an employee is constructively discharged, he is entitled to certain due 

process protections, including a pre-discharge hearing. See Hill, 455 F.3d at 245-46 

(holding, on a motion to dismiss, that Plaintiff had sufficiently stated a claim for 

violations of his procedural due process rights, thereby implying that a deprivation 

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can be predicated on a constructive discharge); see also Rusnak v. Williams, 44 

Fed.Appx. 555, 559 (3d Cir 2002) (holding, in the inverse, that Plaintiff had not 

sufficiently established his claim for constructive discharge and therefore his 

procedural due process claim must fail). The parties have not cited to any cases 

which expressly state this proposition, and the Court can find none. 

Moreover, the law on what constitutes a constructive discharge is even less 

clearly established, given the increasingly divergent situations in which employees 

have claimed or established constructive discharge. As far as this Court can 

discern, Plaintiff here rests her allegation of constructive discharge on the shortage

of time that she was given to think about and respond to Defendant Kelley’s 

request for resignation. At the same time, though Defendant Kelley provided 

Plaintiff with less than twenty-four (24) hours in which to determine whether she 

wanted to resign to procure a neutral reference, he also provided her with the 

reasonable alternative of foregoing resignation and allowing Defendants to issue a 

written statement of charges for dismissal. Pl.’s Complaint, Ex. A. He also 

informed her that these charges might result in an impact upon Plaintiff’s status 

with the Department of Education. Id.

Plaintiff has cited to no law which would demonstrate that in such a situation 

it was clearly established that Defendants must have provided her with a hearing 

prior to her resignation, and this Court has found none that are factually similar, 

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particularly considering Defendants’ offer of a reasonable alternative to her 

resignation. In fact, the relevant case law would tend to suggest otherwise. See, 

e.g., Caruso v. Superior Court of Delaware, Civ. Action No. 12-277-GMS-CJB, 

2013 WL 1558023, at * 8 (D.Del. Apr. 12, 2013) (“It is important to note that 

when considering these factors [for constructive discharge claims], the mere fact 

that an employee is faced with a choice between resignation, on the one hand, and 

possible termination, on the other hand, is not enough to show that the separation 

was involuntary.”); Leheny, 183 F.3d at 227 (“If 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[.]”); Hargray, 57 F.3d at 1568 (“[R]esignations can be voluntary 

even where the only alternative to resignation is facing possible termination for 

cause or criminal charges[.]”). 

Accordingly, this Court holds that it is not a clearly established deprivation, 

for the purposes of procedural due process, to offer Plaintiff two alternatives –

resignation with a neutral reference or dismissal charges with whatever negative 

consequences that might ensue – even though she was given little time to make her 

decision. A reasonable school board official in that situation would not know, 

especially without any case law on point, that it was unlawful to request Plaintiff’s 

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resignation in the face of such a reasonable alternative.15 The individual 

Defendants’ requests for qualified immunity are therefore granted.

IV. CONCLUSION

In accordance with the foregoing reasoning, Defendants’ Motion to Dismiss 

is granted in part and denied in part. With respect to Plaintiff’s procedural due 

process claim in Count I, to the extent it is predicated on her property interest in 

her job as codified by 24 P.S. § 11-1122 or upon Plaintiff’s liberty interest in her 

reputation, Defendants’ motion to dismiss is granted without prejudice, with leave 

to amend in accordance with this Court’s decision. However, to the extent 

Plaintiff’s procedural due process claim is predicated on her property interest in 

her job as codified by 24 P.S. § 5-514, Defendant’s motion to dismiss is denied. In 

addition, Defendants’ motion to dismiss is granted with prejudice with respect to 

Plaintiff’s substantive due process and equal protection claims in Counts II and III. 

Moreover, Defendants’ motion to dismiss is granted with respect to Plaintiff’s 

breach of contract claim in Count IV without prejudice with leave to amend in 

accordance with the Court’s decision. Finally, Plaintiff’s claims for punitive 

damages are dismissed as against the School District and the individual Defendants 

to the extent they are sued in their official capacities.

 

15 The Court by no means intends to foreclose the possibility that at a later stage of the proceedings the finder of fact 

may determine that the circumstance of Plaintiff’s resignation amounts to a constructive discharge. Rather, the 

Court now holds only that it would not be clear to reasonable school board officials in the situation confronted that 

their conduct was unlawful.

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With regard to the defenses of the individual Defendants, Defendants’ 

request that the claims against the individual Defendants in their official capacities 

be dismissed on the basis of redundancy is granted. Their request for high public 

official immunity is denied. Finally, the individual Defendants are granted 

qualified immunity and accordingly dismissed from the instant action. 

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

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