IN THE UNITED STATES DISTRICT COURT 


FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 


DAPHNE SNOOK 


v. 

MIDD·WEST S

Plaintiff, 

CHOOL DISTRICT, et al. 

4: 14·CV·948 

(JUDGE MARIANI) 

Defendants. 

MEMORANDUM OPINION 

I. INTRODUCTION AND PROCEDURAL HISTORY 

Presently before the Court is Defendants Midd-West School District, Victor Abate, 

Ronald Wilson, Ronald Hoffman, Shawn Sassaman, Corey Smith, Jeremy Tittle, Sherryl 

Wagner, and Nancy Kroh's (hereinafter "School District Defendants") Motion to Dismiss 

Plaintiffs Amended Complaint. (Doc. 13). 

On May 16,2014, Plaintiff, Daphne Snook, filed aComplaint in the above-captioned 

matter (Doc. 1), and subsequently filed an Amended Complaint on May 22,2014 (Doc. 4), 

naming as defendants the Midd-West School District, Victor Abate, Ronald Wilson, Ronald 

Hoffman, Shawn Sassaman, Corey Smith, Jeremy Tittle, Sherryl Wagner, Nancy Kroh, and 

Orris Knepp, III. Plaintiffs Amended Complaint sets forth seven counts: Count I, against all 

Defendants, for First Amendment Retaliation; Counts II and III, against all Defendants, for 

violations of her Procedural Due Process and Substantive Due Process rights under the 

Fourteenth Amendment; Count IV, against the Midd-West School District, for aviolation of 

Case 4:14-cv-00948-RDM Document 26 Filed 03/16/15 Page 1 of 31
the Pennsylvania School Code, 24 P.S. §§ 1-101, et seq.; Count V, against the Midd-West 

School District, for breach of contract; Count VI, against all the individual defendants, for 

defamation; and Count VII, against all the individual defendants, for abuse of process. 

(Doc. 4). 

School District Defendants moved to dismiss the Amended Complaint. (Doc. 13). 

Defendant Orris Knepp, III, separately also moved to dismiss the Amended Complaint (Doc. 

11), which the Court will address in aseparate opinion. The parties have fully briefed the 

motion, and it is now ripe for decision. For the reasons set forth below, the Court will grant 

in part and deny in part the School District Defendants' motion. 

II. FACTUAL ALLEGATIONS 

Plaintiffs Amended Complaint alleges the following facts: 

On August 8,2011, Snook entered into awritten agreement for employment as the 

Assistant Superintendent for Curriculum, Instruction, and Technology for the Midd-West 

School District. (Am. Compl., Doc. 4, 11 14; see a/so Employment Contract, Doc. 4, Ex. 1). 

The contract employed Snook in this capacity for aterm of four years, effective August 8, 

2010, and ending June 30,2014. (Doc. 4,11 15; Ernployment Contract. § 3.00). Pursuant to 

the terms of the agreement: 

The Assistant Superintendent for Curriculum, - Instruction and Technology 

shall, throughout the term of this Agreement, [is] subject to termination of 

. contract for valid cause for reasons specified under Section 1080 of the 

Public School Code, including willful violation of any poliCies of the School 

District or any provision of this Agreement. Before her dismissal, the School 

District will provide the Assistant Superintendent for Curriculum, Instruction 

2 

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and Technology with written charges, adequate notice of a hearing and a fair 

and impartial hearing before the Board of School Directors. If the Assistant 

Superintendent for Curriculum, Instruction and Technology is found innocent 

of charges made, the Board of School Directors shall assume responsibility 

for payment of costs incurred by her in her defense. 

(Employment Contract, § 7.00(a)). 

In December 2013, Plaintiff became the temporary acting Superintendent after the 

prior Superintendent of Schools resigned supposedly because Defendants levied charges 

against him. (Doc. 4, 1f 17). 

Throughout Snook's tenure with the School District, she developed and implemented 

within the District a nationwide program for individualized reading education entitled 

"Readers Workshop." (Id. at 1f 18). Plaintiff asserts that this program was "widely 

successful" in the District but that various factions within the School Board disliked it and 

worked to have it canceled, "despite the effectiveness of the program and the interest of the 

general public." (/d. at 1f 19). While the program was active in the District and being 

debated, Snook issued statements to the press representing that the program was crucial to 

the successful education of the students in the District. (Doc. 4, 1f 20). Snook contends 

these statements were made in her capacity as aprivate citizen and that certain 

Defendants1 became openly antagonistic toward her as a result of her comments. (ld.). 

On April 1,2014, Defendants issued an email to aI/ staff members of the District, 

including Snook, purportedly threatening to terminate anyone who continued to publicly 

1 Snook does not identify which Defendants allegedly became antagonistic. 

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speak in support of the Reading Workshop program. (Id. at 1f 21). Several days later, on 


April 10, 2014, Defendants suspended Plaintiff without pay. Snook alleges Defendants 

failed to provide any explanation of the charges against her or an opportunity to respond. 

(Id. at 1f 22). The following day, Defendants canceled ascheduled teachers planning 

course for the Reading Workshop program. (ld. at 1f 23). Defendants also issued public 

statements stating that Plaintiff had been suspended without pay and accusing her of 

engaging in criminal conduct by breaching the Midd-West School District's email system 

and illegally monitoring emails.(ld.at1f 24). 

In addition, Defendants contacted the Snyder County District Attorney to press 

charges against Snook. (Doc. 4, 1f 25). On May 9,2014, after conducting an investigation, 

the District Attorney issued a press release stating that no criminal charges would be filed 

against Plaintiff due to insufficient evidence that she had engaged in criminal conduct. (ld.). 

Following her suspension, Plaintiff made statements to the press regarding her 

continued support of the Reading Workshop program, asserting her innocence with respect 

to allegations of criminal wrongdoing, and stating that she believed Defendants were 

retaliating against her for publicly advocating in favor of the Reading Workshop program. 

(ld. at 1f1f 26, 27). 

On May 5,2014, Snook met with Defendants for ahearing which Plaintiff contends 

was erroneously labeled as a"Loudermill hearing" for a vote regarding her termination. (ld. 

at 1f 28). At this meeting, Defendants allegedly did not hold a vote and simply informed 

4 

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I 

t 

~ Plaintiff that they intended to vote in approximately two weeks as to whether they would hire 

aspecial prosecutor. (Id.). Subsequently, on May 19, 2014, Defendants did meet and I 

voted to hire Mark Remy as "special counsel" to handle "an unspecified personnel issue." 	 I 

r 

t. 

(Id. at 1f 29). t 

H 

Snook continues to remain suspended without pay and alleges that she has not 	 t 

f received any hearing or written statement of the charges against her. (Id. at 1f 30). 

III. STANDARD OF REVIEW I

Acomplaint must be dismissed under FED. R. CIV. P. 12(b){6), if it does not allege i

i 

"enough facts to state aclaim to relief that is plausible on its face." Bell At!. Corp. v. 

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must 

aver "factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 

1937, 1949, 173 L. Ed. 2d 868 (2009). 

"Though acomplaint 'does not need detailed factual allegations, ... aformulaic 

recitation of the elements of acause of action will not do.'" DelRio-Mocci v. Connolly Prop. 

Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, 

"[ijactual allegations must be enough to raise aright to relief above the speculative leveL" 

Covington v. Int'/ Ass'n ofApproved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) 

(internal citations and quotation marks omitted). Acourt "takers] as true all the factual 

allegations in the Complaint and the reasonable inferences that can be drawn from those 

I 

I 

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facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements." Ethypharm S.A. France v. 

Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation 

marks omitted). 

Twombly and Iqbal require [a district court] to take the following three steps to 

determine the sufficiency of a complaint: First, the court must take note of the 

elements a plaintiff must plead to state a claim. Second, the court should 

identify alleg.ations that, because they are no more than conclusions, are not 

entitled to the assumption of truth. Finally, where there are well-pleaded 

factual allegations, a court should assume their veracity and then determine 

whether they plausibly give rise to an entitlement for relief. 

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209,212 (3d Cir. 2013). 

"[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 show[n] -that the 

pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks 

omitted). This "plausibility" determination will be a"context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense." Id. 

However, even "if acomplaint is subject to Rule 12(b)(6) dismissal, adistrict court 

must permit acurative amendment unless such an amendment would be inequitable or 

futile." Phillips v. Cnty. ofAllegheny, 515 F.3d 224,245 (3d Cir. 2008). 

[E]ven when plaintiff does not seek leave to amend his complaint after adefendant 

moves to dismiss it, unless the district court finds that amendment would be 

inequitable or futile, the court must inform the plaintiff that he or she has leave to 

amend the complaint within aset period of time. 

Id. 

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IV. ANALYSIS 

A. The Individual Defendants in their Official Capacity 

Defendants contend as a threshold matter that the claims against the individual 

defendants in their official capacities must be dismissed in each count wherein the claim 

asserted against them is additionally asserted against the School District.2 (Doc. 15, at 7­

8). Plaintiff fails to address this argument in her brief in opposition. (See generally, Doc. 

17). 

The Supreme Court has emphasized that suits against state actors in their official 

capacity "generally represent only another way of pleading an action against an entity of 

which an officer is an agent." Hafer v. Me/o, 502 U.S. 21,25, 112 S.Ct. 358, 116 L.Ed.2d 

301 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 

114 (1985)). In other words: 

Suits against state officials in their official capacity therefore should be treated 

as suits against the State. Indeed, when officials sued in this capacity in 

federal court die or leave office, their successors automatically assume their 

roles in the litigation.... Personal-capacity suits, on the other hand, seek to 

impose individual liability upon a government officer for actions taken under 

color of state law. Thus, on the merits, to establish personal liability in a § 

1983 action, it is enough to show that the official, acting under color of state 

law, caused the deprivation of afederal right. 

/d. Further, previous decisions 

2 The individual defendants assert this defense with respect to Counts I, II, III, VI, and VII. Counts 

IV and Vare only brought against the Midd-West School District. However, Plaintiff does not bring Counts 

VI or VII against the Midd-West School District; therefore Defendants' argument here that the individuals 

should be dismissed in their official capacity has no application to Counts VI and VII. 

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makeD clear that the distinction between official-capacity suits and personalcapacity suits is more than a mere pleading device. State officers sued for 

damages in their official capacity are not "persons" for purposes of the suit 

because they assume the identity of the government that employs them. By 

contrast, officers sued in their personal capacity come to court as individuals. 

Id. at 27 {citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 

2312, 105 L.Ed.2d 45 (1989)) (internal alterations, citations, and quotation marks omitted). 

As a result, the claims against the individual defendants in their official capacities in 

Counts I, II, and III will be dismissed. 

B. Count I • First Amendment Retaliation 

Count I of Plaintiffs Amended Complaint alleges violations of Snook's First 

Amendment rights by all defendants due to their "retaliat[ion] against Plaintiff for her 

exercise of her free speech rights." (Doc. 4, 1m 31-35). 

To establish aprima facie case under 42 U.S.C. § 1983, a plaintiff must demonstrate 

that: (1) she was deprived of a federal right; and (2) the person who deprived him of that 

right acted under color of state law. Burrella v. City ofPhiladelphia, 501 F.3d 134, 139 (3d 

Cir. 2007). Section 1983 is not an independent source of substantive rights, but merely 

"provides aremedy for deprivations of rights established elsewhere in the Constitution or 

federal laws." Kopec v. Tate, 361 F.3d 772, 775-76 (3d Cir. 2004). In evaluating a§ 

1983 claim, aCourt must first "identify the exact contours of the underlying right said to 

have been violated" and determine "whether the plaintiff has alleged a deprivation of a 

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constitutional right at all." Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (citing Cnty. of 


Sacramento v. Lewis, 523 U.S. 833, 841 n. 5,118 S.Ct. 1708, 140 L. Ed. 1043 (1998)). 

'To state a First Amendment retaliation claim, apublic employee plaintiff must allege 

that [her] activity is protected by the First Amendment, and that the protected activity was a 

substantial factor in the alleged retaliatory action." Gorum v. Sessoms, 561 F.3d 179, 184 

(3d Cir. 2009) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006)). 'The 

first factor is aquestion of law; the second factor is aquestion of fact." Id. (internal citations 

and quotation marks omitted). 

liThe [Supreme] Court has made clear that public employees do not surrender all 

their First Amendment rights by reason of their employment. Rather, the First Amendment 

protects apublic employee's right, in certain circumstances, to speak as acitizen 

addressing matters of public concern." Garcetti v. Cebal/os, 547 U.S. 410, 417,126 S.Ct. 

1951, 164 L. Ed. 2d 689 (2006). If public employees speak in the course of their 

employment, lithe employees are not speaking as citizens for First Amendment purposes, 

and the Constitution does not insulate their communications from employer discipline." Id. 

at 421. However, if an employee speaks as acitizen on amatter of public concern, "[t]he 

question becomes whether the relevant government entity had an adequate justification for 

treating the employee differently from any other member of the general public." Id. at 418. 

'To be protected, the speech must implicate a matter of public concern .... Speech 

implicates a matter of public concern if the content, form, and context establish that the 

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speech involves a matter of political, social, or other concern to the community." Miller v. 


Clinton Cnty., 544 F.3d 542, 548 (3d Cir. 2008) (citing Connick v. Myers, 461 U.S. 138, 146­

148, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). For example, speech may be a matter of 

public concern when the speaker seeks to "bring to light actual or potential wrongdoing or 

breach of public trust" on the part of government officials. Borden v. Sch. Dist. of Twp. of 

East Brunswick, 523 F.3d 153, 170 (3d Cir. 2008) (quoting Connick, 461 U.S. at 148). The 

speech is not protected if it "constitute[s] merely personal grievances." Feldman v. 

Philadelphia Housing Authority, 43, F.3d 823,829 (3d Cir. 1994) (citing Connick,461 U.S. 

at 147). Nonetheless, speech motivated by private concern may also qualify as protected 

speech if it "addresses a matter that concerns the public as well as the speaker." Brennan 

v. Norton, 350 F.3d 399, 412 (3d Cir. 2003). 

Here, Snook, as Assistant Superintendent and subsequently acting Superintendent, 

is a public employee. Her Amended Complaint asserts that her protected speech consisted 

of publicly speaking "about matters of public concern regarding affairs of public interest, 

namely her belief in the negative impact that the District's proposed canceling of the 

Reading Workshop program would have on the students in the District." (Doc. 4, 1f 33). 

Slightly more specifically, Plaintiff argues that "as aprivate citizen", she "issued a number of 

statements to the press indicating her opinion that the program was crucial to the successful 

education of the students in the District." (Id. at 1f 20). Therefore, looking at the Amended 

Complaint in the light most favorable to the plaintiff, the Court must determine whether 

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Plaintiff has pleaded sufficient plausible allegations that her statements constitute protected 


activity, and that these statements were asubstantial factor in the alleged retaliatory action. 

Plaintiff alleges that she was not acting in her official capacity as Superintendent, but 

instead as aprivate citizen. (Doc. 4, 1f 20). However, her Amended Complaint makes clear 

that she was speaking on asingle issue, the Reading Workshop program, a program for 

which she was responsible by virtue of her employment. (Doc. 4, 1f1f18, 20, 26, 27). The 

Supreme Court recently clarified that under Garcettls "pursuant to official duties" test, the 

"critical question ... is whether the speech at issue is itself ordinarily within the scope of an 

employee's duties, not whether it merely concerns those duties." Lane v. Franks, 134 S.Ct. 

2369,2379, 189 LEd.2d 312 (2014); see also Flora v. Cnty. of Luzerne, --- F.3d ---, 2015 

WL 178640, at *5, *7 (3d Cir. 2015) (applying Lane by asking whether the plaintiffs speech 

was "part of his ordinary responsibilities," that is, "part of the work he was paid to perform on 

an ordinary basis"); Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 990 (3d Cir. 

2014) ("If anything, Lane may broaden Garcettls holding by including 'ordinary' as a 

modifier to the scope of an employee's job duties."). In Lane, the Court emphasized that 

"the mere fact that acitizen's speech concerns information acquired by virtue of his public 

employment does not transform that speech into employee-rather than citizen-speech." 

Id. Here, neither the precise contours of Plaintiffs employment responsibilities and duties, 

nor the precise content of Plaintiffs public speech for which she alleges Defendants 

retaliated against her, have been pleaded in the Amended Complaint, thereby precluding a 

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determination by the Court at this juncture whether Snook was speaking as apublic citizen. 


However, Plaintiffs Amended Complaint does plead sufficient allegations to state aclaim on 

the basis that the matter she addressed may be one of public concern wherein its "content, 

form, and context establish that the speech involves a matter of political, social, or other 

concern to the community," and that she may have been acting in the capacity of apublic 

citizen and not in the course of her employment, and may therefore be protected under the 

First Amendment. 

Assuming that Plaintiff did engage in protected speech when she made statements 

in support of the Reading Workshop program, she must also show that Defendants' actions 

were sufficient to deter a person of ordinary firmness from exercising her First Amendment 

rights and that her protected speech "was asubstantial or motivating factor in the relevant 

decision." Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000). Consequently, while the 

Defendants' alleged retaliatory acts must be more than trivial, an employee's First 

Amendment rights are adversely affected when the employer "makes decisions, which 

relate to promotion, transfer, recall and hiring, based on the exercise of an employee's First 

Amendment rights." Brennan, 350 F.3d at 419 (finding that "Brennan's allegation that he 

was taken off the payroll in December 1994 and given 2-day, 21-day and 63-day 

suspensions would obviously support acause of action for illegal retaliation under § 1983"). 

Accepting Plaintiffs factual allegations as true, Plaintiff issued statements to the 

press regarding the Reading Workshop program while the program was active in the District 

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and, after issuing these statements, she was suspended without payor any explanation of 


the charges against her or opportunity to respond. (Doc. 4, 1m 20,22). Plaintiff also alleges 

that Defendants issued public statements stating that Snook had been suspended without 

pay and accusing her of engaging in criminal conduct by breaching the Midd-West School 

District's email system and illegally monitoring emails and that Defendants contacted the 

Snyder County District Attorney to press charges against her. (ld. at 1m 24, 25). While 

unnecessary at this stage in the proceedings, Defendants' brief in opposition fails to offer 

any explanation for Snook's suspension. 

Plaintiff has therefore pleaded sufficient particularized allegations to raise the issue 

of whether her statements were made in the capacity of a private citizen and implicated a 

matter of public concern, thereby subject to the First Amendment protections, and whether 

this protected speech was asubstantial factor in the alleged retaliatory actions. 

Therefore, Plaintiff has alleged facts sufficient to state a First Amendment retaliation 

claim and the Court will deny Defendant's motion to dismiss this Count. 

C. Counts II and III· Procedural and Substantive Due Process 

Counts II and III of Plaintiffs Amended Complaint, brought against all defendants, 

allege violations of Snook's Fourteenth Amendment Due Process rights. Specifically, 

Plaintiff claims Defendants "violated Plaintiffs procedural due process rights in failing to 

afford her adequate procedural protections ... in connection with the suspension without 

pay" (Doc. 4, 40) and "violated Plaintiffs property interests, in her continued employment, 

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and her liberty interests, in her reputation.... " (Id. at 1143). In turn, Defendants argue that 

Plaintiffs due process claims are premature because Plaintiff has failed to exhaust 

administrative remedies that are a prerequisite to filing acomplaint in federal court. (Doc. 

15, at 13-16). 

1. Procedural Due Process 

With respect to Plaintiffs procedural due process claim, Snook alleges that she has 

a protected property interest in continued public employment, as assistant superintendent 

and acting superintendent, under both her employment contract and Pennsylvania School 

Code, 24 P.S. §§1-101, et seq. and that, while the contract and Code mandate that any 

adverse employment action must comport with the dictates of the Due Process clause, to 

date, this has not occurred. In particular, Plaintiff contends that "to date, no written or oral 

statement of charges has been received by Plaintiff, no pre-suspension hearing was held, 

and the only explanation for the suspension constitutes statements from Defendants to the 

press and to law enforcement indicating adesire to charge Plaintiff criminally for accessing 

emailswhileshewasactingsuperintendent. ..." (Doc.4,mT 37-39). In response to this 

claim, Defendants argue both that Plaintiffs due process claims are premature because she 

has failed to exhaust her administrative remedies and alternatively that she admittedly 

received aLoudermill hearing. Neither argument is convincing. 

As a preliminary matter, at this stage in the proceedings, it is sufficient that Plaintiff 

alleges that she has not received an adequate hearing or an oral or written statement of the 

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charges against her. Despite Defendants' contention that a"'Loudermill Hearing' was 


conducted on May 5,2014, giving the Plaintiff an opportunity to hear the nature of the case 

as is required under the Pennsylvania School Code, Section 1080 and the 14th 

Amendment" (Doc. 15, at 14-15), Plaintiffs allegations contradict this statement and the 

Court cannot determine the adequacy of the hearing at this time. 

Plaintiffs Amended Complaint clearly alleges that she was agovernment employee 

subject to awritten employment contract. "The Fourteenth Amendment's procedural 

protection of property is a safeguard of the security of interests that a person has already 

acquired in specific benefits." Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576, 

92 S.Ct. 2701,33 L.Ed.2d 548 (1972). "To have a property interest in abenefit, aperson .. 

. must ... have a legitimate claim of entitlement to it." Id. at 577. This entitlement is 

established by "the 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." Id. The Supreme Court has held that this principle 

of "entitlement" operates to create property interests in public employment, including for 

public school teachers and school staff members subject to written contracts. Id. at 576 

(collecting cases). 

Moreover, once these rules and understanding create a property interest in 

continued public employment, "the Due Process Clause provides that [that interest] cannot 

be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of 

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Educ. v. Loudermill, 470 U.S. 532, 541,105 S.Ct. 1487,84 L.Ed.2d 494 (1985). "While the 


legislature may elect not to confer aproperty interest in public employment, it may not 

constitutionally authorize the deprivation of such an interest, once conferred, without 

appropriate procedural safeguards." Id. (quoting Arnett v. Kennedy, 416 U.S. 134, 167,94 

S.Ct. 1633,40 L.Ed.2d 15 (1974) (Powell, J., concurring in part)) (internal alterations 

omitted). Therefore, apublic employee with a property interest in continued employment "is 

entitled to oral or written notice of the charges against him, an explanation of the employer's 

evidence, and an opportunity to present his side of the story," before he or she may be 

terminated. Id. at 546. 

Here, the record shows that Plaintiff had a written contract by which she was 

employed in the capacity of an Assistant Superintendent "for aterm of four (4) years, 

effective August 8,2010, and ending June 30,2014." (Employment Contract, § 3.00). 

Based on this language, which Snook includes in her Amended Complaint, Plaintiff has 

alleged adequate facts that the School District has created alegitimate claim of entitlement 

to continued employment during the specified term, and therefore vested Snook with a 

property interest in her employment until June 30,2014. As such, she would have been 

entitled to ahearing prior to her removal from employment. While Plaintiffs Amended 

Complaint does state that she "met with Defendants at a conference that Defendants 

labeled a 'Loudermill hearing' for a vote on her termination", she also alleges that, at this 

meeting, "Defendants did not hold any votes but instead informed Plaintiff that they intended 

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to vote approximately two weeks later to determine whether to hire a 'special prosecutor.'" 

(Doc. 4, ~ 28). Plaintiffs Amended Complaint does not specifically state whether or not she 

received any notice or opportunity to be heard during this conference, which would be 

required under both the terms of her contract and Loudermill, but Plaintiff later states that 

she "has not received any hearing or written statement of the charges against her." (Id. at ~ 

30). These factual statements, taken as true as the Court must at this stage of the case, 

sufficiently state aclaim for relief. 

Furthermore, Defendants impermissibly shift the burden on the Plaintiff to request a 

hearing. Plaintiffs contract specifically states that she is subject to termination for valid 

cause for reasons specified under Section 1080 of the Public School Code and that 

"[b]efore her dismissal, the School District will provide the Assistant Superintendent for 

Curriculum, Instruction and Technology with written charges, adequate notice of ahearing 

and - afair and impartial hearing before the Board of School Directors" (Employment 

Contract, § 7.00(a)). Section 1080 of the Public School Code, entitled "Removal", provides 

that: 

District superintendents and assistant district superintendents may be 

removed from office and have their contracts terminated, after hearing ... of 

which hearing notice of at least one week has been sent by mail to the 

accused, as well as to each member of the board of school directors. 

24 Pa. C. S. § 10-1 080(a). Both the statutory and contractual language grant Plaintiff the 

right to ahearing but they do not require Plaintiff to request it. Rather, the language can 

reasonably be read to place the burden on the School Board to provide the hearing, and the 

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School District Defendants do not contend otherwise. Here, the School Board has allegedly 

not offered, scheduled, or attempted to provide in any way, Plaintiff with a hearing sufficient 

to meet the statutory or contractual requirements. 

Defendants' argument that Plaintiff's due process claims are premature and that 

Plaintiff had not yet been terminated, and therefore was not entitled to the constitutional, 

statutory, or contractual right to a hearing, are attempts to circumvent the established 

procedures and process that Plaintiff is owed. "A public employee has a property interest 

in not being suspended without pay with intent to dismiss." Coover v. Saucon Valley Sch. 

Dist., 955 F.Supp. 392,404 (E.D. Pa. 1997) (citing Gniotek v. City of Philadelphia, 808 F.2d 

241 (3d Cir.1986)).3 Therefore, while the Court recognizes that both Plaintiff's contract and 

3 Despite Defendants' arguments, the Supreme Court has found that an individual is entitled to 

notice and opportunity to be heard even when they are merely suspended, and not terminated. 

Nonetheless, in holding that apublic employee is not categorically entitled to a pre-suspension hearing, 

[The Supreme] Court has recognized, on many occasions, that where a State must act 

quickly, or where it would be impractical to provide predeprivation process, postdeprivation 

process satisfies the requirements of the Due Process Clause. Indeed, ... we have 

rejected the proposition that due process always requires the State to provide a hearing 

prior to the initial deprivation of property. And in FDIC v. Mallen, 486 U.S. 230, 108 S.Ct. 

1780, 100 L.Ed.2d 265 (1988), where we unanimously approved the Federal Deposit 

Insurance Corporation's (FDIC's) suspension, without prior hearing, of an indicted private 

bank employee, we said: "An important government interest, accompanied by asUbstantial 

assurance that the deprivation is not baseless or unwarranted, may in limited cases 

demanding prompt action justify postponing the opportunity to be heard until after the initial 

deprivation ." 

Gilbert v. Homar, 520 U.S. 924, 930-930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997). While the Supreme 

Court declined to address whether the employee at issue was provided an adequately prompt postsuspension hearing, the Court makes clear that the basic due process requirements are still necessary. 

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24 P.S. § 10-1080 provide for a hearing prior to Snook's termination from employment, 


Defendants' actions in suspending Plaintiff on April 10, 2014, and allowing her contract to 

end on June 30,2014, allegedly without affording her notice and an opportunity to be heard, 

effectively alleges atermination. Simply because Defendants were able to run-out the clock 

on Plaintiff's contract does not allow them to escape responsibility for allegedly depriving 

Snook of her procedural rights. 

As a result of each of the aforementioned reasons, Defendants' motion to dismiss 

Plaintiff's procedural due process claim is denied. 

2. Substantive Due Process 

With respect to the substantive due process claim, Plaintiff alleges violations of her 

liberty and property interests in that she was "illegally" suspended and Defendants "publicly 

disseminated false and defamatory statements about Plaintiff, her honesty and her 

reputation ... harming Plaintiff, both professionally and personally within the community." 

(Doc. 4, ~ 42). 

To establish a substantive due process claim, a plaintiff must prove the 

particular interest at issue is protected by the substantive due process clause 

and the government's deprivation of that protected interest shocks the 

conscience. . . . Deprivation violates due process only when it shocks the 

conscience, which encompasses only the most egregious official conduct. ... 

While the meaning of the [shocks the conscience] standard varies depending 

upon factual context, merely alleging an improper motive is insufficient, even 

where the motive is unrelated to the merits of the underlying decision. 

Here, it would be premature for us to determine whether it would have been impractical for the 

state to provide a pre-deprivation hearing, and Plaintiff's factual allegations sufficiently allege that any postsuspension hearing she may have received failed to meet the requisite due process standards. 

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Chainey v. Street, 523 F.3d 200, 219-220 (3d. Cir. 2008) (internal citations and quotations 


omitted). 

Because the Due Process Clause does not purport to supplant traditional tort 

law in laying down rules of conduct to regulate liability for injuries that attend 

living together in society, we have previously rejected claims that the Due 

Process Clause should be interpreted to impose federal duties that are 

analogous to those traditionally imposed by state tort law. The reasoning in 

those cases applies with special force to claims asserted against public 

employers because state law, rather than the Federal Constitution, generally 

governs the substance of the employment relationship. 

Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S. Ct. 1061, 117 L. Ed. 2d 261 

(1992) (internal citations and quotation marks omitted). As such, "[a] bad-faith violation of 

state law remains only a violation of state law." United Arlists Theater Circuit, Inc. v. Twp. of 

Warrington, 316 F.3d 392, 402 (3d Cir. 2003). As the Third Circuit clarified, 

an underlying constitutional violation is not required to state a substantive due 

process claim, and some violations of state law may "shock the conscience." 

This, however, does not mean that every violation of state law is 

"constitutionalized" through the application of the substantive due process 

clause, and the District Court was properly concerned with preventing this 

provision from turning into a broad authorization to review state actors' 

compliance with state law. On several occasions, this Court has implied that 

a violation of state law will constitute conscience shocking behavior when it 

contains "allegations of corruption, self-dealing, bias against an ethnic group, 

or additional facts that suggest[ ] conscience-shocking behavior." Chainey v. 

Street, 523 F.3d 200, 220 (3d Cir. 2008); see also Eichenlaub v. Township of 

Indiana, 385 F.3d 274, 286 (3d Cir. 2004). In other words, a state official's 

failure to follow state law does not, by itself, shock the conscience in the 

absence of additional facts. 

Whittaker v. Cnty. of Lawrence, 437 F. App'x 105, 108-09 (3d Cir. 2011). 

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Furthermore, "as ageneral matter, the [Supreme] Court has always been reluctant to 

expand the concept of substantive due process because guideposts for responsible 

decisionmaking in this unchartered area are scarce and open-ended." Collins, 503 U.S. at 

125. Consequently, courts must be careful to observe "the Supreme Court's repeated 

warnings against an overly generous interpretation of the substantive component of the Due 

Process Clause." Fagan v. City of Vineland, 22 F.3d 1296, 1306 n.6 (3d Cir. 1994). 

The Court has already found that Plaintiff has an established property interest in her 

employment. 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). Instead, to state asubstantive due process claim, "a plaintiff 

must have been deprived of a particular quality of property interest." DeBlasio v. Zoning Bd. 

of Adjustment, 53 F.3d 592, 598 (3d Cir.1995), overruled on other grounds by United Artists 

Theatre Circuit, Inc. v. Twp. of Warrington, PA., 316 F.3d 392 (3d Cir. 2003). "[W]hether a 

certain property interest embodies this 'particular quality' is not determined by reference to 

state law, but rather depends on whether that interest is 'fundamental' under the United 

States Constitution." Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 140 (3d Cir. 

2000). "If the interest is not 'fundamental,' however, the governmental 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. 

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In Nicholas, the Court held that a professor's tenured public employment was not a 


fundamental property interest entitled to substantive due process protection.4 The Third 

Circuit reasoned as follows: 

Nicholas's tenured 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. We agree ... that "it 

cannot be reasonably maintained that public employment is a property 

interest that is deeply rooted in the Nation's history and traditions." Nor does 

public employment approach the interests "'implicit in the concept of ordered 

liberty like personal choice in matters of marriage and family.'" [Homar v. 

Gilbert, 63 F.Supp.2d 559, 576 (M.D. Pa. 1999)] (citation omitted); see 

also Collins, 503 U.S. at 128, 112 S.Ct. 1061 ("state law, rather than the 

Federal Constitution, governs the substance of the employment relationship"). 

Accordingly, we view public employment as more closely analogous to those 

4 In so holding, the Third Circuit adopted an approach undertaken by a majority of the Circuits, and 

cited the following cases: 

See Singleton v. Cecil, 176 F.3d 419, 425-26 (8th Cir.1999)(en banc) ("a public 

employee's interest in continued employment with a governmental employer is not so 

'fundamental' as to be protected by substantive due processft); McKinney v. Pate, 20 F.3d 

1550, 1560 (11th Cir.1994) (en banc) ("employment rights are not 'fundamental' rights 

created by the Constitution"); Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1350 (6th 

Cir.1992) ("plaintiffs' state-created right to tenured employment lacks substantive due 

process protection"); Huang v. Board of Governors of Univ. of North Carolina,902 F.2d 

1134, 1142 n. 10 (4th Cir.1990) (professor's interest in position in university department "is 

essentially a state law contract right, not a fundamental interest embodied in the 

Constitution"); see also Local 342, Long Island Public Servo Employees V. Town Bd. of 

Huntington,31 F.3d 1191, 1196 (2d Cir.1994)("We do not think, however, that simple, 

state-law contractual rights, without more, are worthy of substantive due process 

protection."); Kauth V. Hartford Ins. Co. of Illinois, 852 F.2d 951, 958 (7th Cir.1988) ("In 

cases where the plaintiff complains that he has been unreasonably deprived of a statecreated property interest ... the plaintiff has not stated a substantive due process 

claim."); Lum V. Jensen, 876 F.2d 1385, 1389 (9th Cir.1989) (finding "no clearly 

established constitutional right to substantive due process protection of continued public 

employment" in Ninth Circuit as of 1984); but see Newman v. Massachusetts, 884 F.2d 19, 

25 (1st Cir.1989)("school authorities who make an arbitrary and capricious decision 

significantly affecting a tenured teacher's employment status are liable for a substantive 

due process violation"). 

Nicholas, 227 F.3d at 142-143. 

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state-created property interests that this Court has previous deemed 

unworthy of substantive due process. 

Nicholas, 227 F.3d at 143. 

In accord with the Third Circuit's analysis, Plaintiff has failed to establish the 

fundamental constitutional interest necessary to sustain asubstantive due process claim 

based on aviolation of her property interest. 

Plaintiffs claim that Defendants violated her liberty interest in her reputation due to 

Defendants public dissemination of "false and defamatory statements" also fails for reasons 

similar to why she lacks a substantive due process claim for violations to her property 

interest. 

An interest in reputation alone is not protected by the Due Process Clause. Versarge 

v. Twp. of Clinton, New Jersey, 984 F.2d 1359, 1371 (3d Cir.1993) (citing Paul v. Davis, 424 

U.S. 693, 701-712, 96 S.Ct. 1155,47 L.Ed.2d 405 (1976)). 

Rather, 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. ... In the public employment context, the 

"stigma-plus" test has been applied to mean that when an employer creates 

and disseminates a false and defamatory impression about the employee in 

connection with his terrnination, it deprives the employee of a protected liberty 

interest. The creation and dissemination of a false and defamatory 

impression is the "stigma," and the termination is the "plus." When such a 

deprivation occurs, the employee is entitled to aname-clearing hearing. 

Hill, 455 F.3d at 236. 

This entitlement to a name-clearing hearing clearly implicates a procedural due 

process right, but Plaintiff does not bring aclaim of aprocedural due process violation of her 

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liberty interest, only asubstantive due process violation. In light of the fact that an 

individual's fundamental rights have generally been limited to "matters relating to marriage, 

family, procreation, and the right to bodily integrity", Albright v. Oliver, 510 U.S. 266, 272, 

114 S.Ct. 807,127 L.Ed.2d 114 (1994), and the Supreme Court's stated-reluctance to 

expand the concept of substantive due process, even assuming that Snook alleged 

sufficient facts to meet the stigma-plus test,5 she cannot demonstrate that this deprivation 

was so "fundamental" as to implicate asubstantive due process claim.6 

3. Conclusion 

For the aforementioned reasons, Defendants' motion to dismiss Plaintiffs Fourteenth 

Amendment procedural due process claim will be denied. Plaintiffs Fourteenth Amendment 

substantive due process claim will be dismissed with prejudice. 

D. Counts IV and V· Pennsylvania School Code and Breach of Contract 

Counts IV and Vof Plaintiffs Amended Complaint, brought only against the MiddWest School District, allege that Snook has been suspended without payor due process, in 

violation of the Pennsylvania School Code (Doc. 4, Count IV, ~~ 44-47) and that the School 

5 Because Plaintiff has not brought aprocedural due process claim with respect to her liberty 

interests, we decline to engage in an analysis of whether Snook has met the requirements of the stigmaplus test. 

6 Plaintiffs brief in opposition to Defendants' motion fails to address the "shocks-the-conscience" 

standard, thereby leaving the Court to assume that the Defendants' actions which Snook believes 

encompass "the most egregious official conduct" consist of "illegally" suspending her and publicly 

disseminating false and defamatory statements about her. However, because we have found that Plaintiffs 

property or liberty interests do not create asubstantive due process claim, we need not determine whether 

Snook has provided sufficient plausible allegations that the School District Defendants' actions rise to the 

level of conscience-shocking. 

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District's suspension of Plaintiff, "without pay, cause, or ahearing" violated her employment 


agreement and caused her harm "in the form of lost wages and benefits that were due to 

her under the agreement in accord with Pennsylvania law" (Doc. 4, Count V, 1m 48-50). 

School District Defendants move to dismiss these two counts for largely the same 

reasons as they set forth in support of their motion to dismiss Plaintiff's Fourteenth 

Amendment claims: namely, that "the process is still ongoing and therefore no violation or 

breach of contract claim is ripe for litigation" as Plaintiff has allegedly failed to exhaust all 

administrative remedies. (Doc. 15, at 16). While we need not reiterate our analysis of 

Plaintiff's procedural due process claim, we reject Defendants' arguments for the same 

reasons. Defendants' argument that Plaintiff must have exhausted her administrative 

remedies, when Defendants allegedly failed to even begin the administrative process by 

providing her with an adequate hearing, impermissibly places a burden on Plaintiff to 

request a hearing as opposed to one being provided to her. Furthermore, Defendants' 

ability to suspend Plaintiff and allow her contract to end, thereby bypassing the statutory 

and contractual requirements of affording her the requisite due process, render Plaintiff's 

claims of violations of the School Code and her contract ripe for litigation in this Court. 

1. 

Consequently, Defendants' motion to dismiss Counts IV and Vis denied. 

E. Count VI • Defamation 

Count VI of Plaintiff's Amended Complaint alleges that "the individual defendants 

defamed Plaintiff by publishing false statements about her or by directing that false 

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statements be published about her in that Defendants indicated publicly that Plaintiff had 


engaged in criminal activity for which she was being suspended ...." (Doc. 4, 1f 52). 

To establish aclaim of defamation, a plaintiff must show: "(1) The defamatory 

character of the communication [;] (2) Its publication by the defendant [;] (3) Its application 

to the plaintiff [;] (4) The understanding by the recipient of its defamatory meaning [; and] (5) 

The understanding by the recipient of it as intended to be applied to the plaintiff." Graboff v. 

Colleran Firm, 744 F.3d 128, 135 (3d Cir. 2014) (citing Tucker V. Fischbein, 237 F.3d 275, 

281 (3d Cir. 2001)). Furthermore, "when apublic official or public figure sues for 

defamation, the First Amendment demands that the plaintiff prove both that the statement 

was false and that it was made with 'actual malice.'" Tucker, 237 F.3d at 283 (collecting 

cases). 

Plaintiffs claim for defamation fails in several respects. While Snook alleges the 

publication of false statements, she does not provide any indication as to who made the 

statements, where these statements were allegedly published, in what way they were 

published, when they published, or to whom they were published. Plaintiffs mere 

assertions, without any factual allegations in support, do not raise a right to relief above the 

speculative level. Additionally, Plaintiff had pleaded no facts that could lead to a reasonable 

inference of malice. 

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As aresult of Plaintiffs failure to adequately set forth facts necessary to plead a 

cause of action for defamation, the Court will dismiss Plaintiffs claim for defamation, but 

with leave to amend. 

F. Count VII· Abuse of Process 

The final Count in Plaintiffs Amended Complaint alleges that the individual 

defendants "abused legal process against [her] by referring her to the criminal justice 

authorities for the institution of criminal charges against her" for the purpose of discrediting 

Plaintiff and her policies and programs and/or to force Plaintiff to resign her position. (Doc. 

"The tort of 'abuse of process' is defined as the use of legal process against another 

'primarily to accomplish apurpose for which it is not designed.'" Rosen v. Am. Bank of 

Rolla, 627 A.2d 190, 192 (Pa. Super. Ct. 1993) (quoting Restatement (Second) of Torts, § 

682). To succeed on an abuse of process claim, 

the plaintiff must show some definite act or threat not authorized by the 

process, or aimed at an objective not legitimate in the use of the process ... ; 

and there is no liability where the defendant has done nothing more than 

carry out the process to its authorized conclusion, even though with bad 

intentions. 

Lerner v. Lerner, 954 A.2d 1229, 1238 (Pa. Super. Ct. 2008) (quoting Shiner v. Moriarty, 

706 A.2d 1228, 1236 (Pa. Super. Ct. 1998)) (internal alterations omitted). Additionally, a 

plaintiff must show that he or she suffered harm as a result of the abuse of process. Rosen, 

627 A.2d at 192. 

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Plaintiff appears to confuse two separate and distinct actions: abuse of process and 


malicious use of process. 

The crux of an abuse of process claim is the "improper use of process after it 

has been issued, that is, a perversion of it." McGee v. Feege, 517 Pa. 247, 

535 A2d 1020, 1023 (Pa.1987) (citations omitted). Under Pennsylvania law, 

"abuse of process" and "malicious use of process" are similar to, but 

ultimately distinct from one another. See, e.g., id. The critical difference 

between the two claims is that "[mJalicious use of civil process has to do with 

the wrongful initiation of such process, while abuse of civil process is 

concerned with a perversion of a process after it is issued." Id. (citations 

omitted). 

Kauffman v. Barbagello, 2013 WL 6388487, *14 (M.D. Pa. 2013). As such, while the term 

"process", when used in the tort of abuse of process '''has been interpreted broadly, and 

encompasses the entire range of procedures incident to the litigation process," including 

discovery proceedings, the noticing of depositions and the issuing of subpoenas, Rosen, 

627 A2d at 192 (quoting Nienstedt v. Wetzel, 133 Ariz. 348, 352, 651 P.2d 876, 880, 33 

AL.R.4th 635, 641 (1982)), it cannot be extended to include actions by Defendants in 

merely referring a matter to adistrict attorney. Plaintiffs claim is based on the alleged 

wrongful attempted initiation of an action against her, not on the perversion of alegal 

process already underway. As such, Snook cannot sustain aclaim for abuse of process 

and the Court will dismiss this Count with prejudice. 

G. High Public Official Immunity 

The individual defendants also claim that they are entitled to "high public official 

immunity" under Pennsylvania law for all claims against them. (Doc. 15, at 8-9). 

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See Lindner v. Mol/an, 677 A.2d 1194 (Pa. 1996). Pennsylvania courts have recognized 


that school board directors qualify as high public officials for purposes of this common law 

doctrine. See, e.g., Matta v. Burton, 721 A.2d 1164, 1166 (Pa.Cmwlth.1998). 

1. Constitutional Claims 

"[T]he doctrine of high official immunity under Pennsylvania law does not shield [a 

defendant] from suit under § 1983. That doctrine shields high officials from state law claims, 

not constitutional claims." Hill, 455 F.3d at 243-44. Therefore, Defendants' argument 

necessarily fails with respect to Counts I, II, III, all federal civil-rights claims brought 

under 42 U.S.C. § 1983. 

2. Defamation 

Pennsylvania's doctrine of absolute privilege for high public officials, 

is unlimited and exempts a high public official from all civil suits for damages 

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, or as it is sometimes expressed, within his jurisdiction. 

Lindner, 677 A.2d at 1195 (quoting Matson v. Margiotti, 88 A.2d 892, 895 (Pa. 1952)). 

In determining whether a high public official acted within the scope of his or her duties at the 

time of the allegedly defamatory statements, the Pennsylvania Commonwealth Court has 

considered two relevant factors: (1) the formality of the forum in which the alleged 

defamation occurred; and (2) the relationship of the legitimate subject of governmental 

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concern to the person seeking damages. Hall v. Kiger, 795 A.2d 497,501 (Pa. Commw. ct. 


2002). See also, Heller v. Fulare, 454 F.3d 174 (3d Cir. 2006). 

The Superior Court of Pennsylvania's decision in McKibben v. Schmotzer is 

instructive in this case. There, the Court found that a Mayor "was engaged in the course of 

her duties and within the scope of her authority when she suspended Chief McKibben and 

issued a 'News Release' regarding his suspension. She was empowered to suspend Chief 

McKibben, and her comments in the 'News Release', although harsh and, as the jury found, 

untrue, were 'closely related' to her duties of supervising the borough police force." 

McKibben v. Schmotzer, 700 A.2d 484,491 (Pa. Super. Ct. 1997). However, the Court 

reached the opposite conclusion with respect to the plaintiffs claims of slander which arose 

from the Mayor's subsequent statement to the press following a hearing on the criminal 

complaint she had brought against the police chief. Id. at 492. "Just as it was clear that 

Mayor Schmotzer was acting within the scope of her authority when she issued the 'News 

Release' regarding the chiefs suspension, we trnd it is equally clear that Mayor Schmotzer 

was acting well outside the course of her duties and scope of her authority when she 

slandered Chief McKibben outside the courtroom." Id. 

While Defendants claim that Plaintiffs complaint states that they were at all times 

only acting in their official capacities, and they are therefore immunized from suit (Doc. 15, 

at 9-10), this is not necessarily the case. Plaintiffs Amended Complaint alleges that 

Defendants' published, or directed to be published, public statements indicating that she 

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engaged in criminal activity for which she was being suspended. (Doc. 4, ~ 52). As 

previously stated, Snook does not provide any indication as to who made these statements, 

where these statements were allegedly published, in what way they were published, when 

they published, or to whom they were published. Nor is there information before this Court 

as to the scope of the School Board Officials' duties. Therefore, the Court does not have 

sufficient information to determine whether the individual defendants are entitled to high 

public official immunity. Because the Court has granted the plaintiff leave to amend her 

claim for defamation for reasons that relate to the lack of specificity as to the elements of 

the cause of action, the Court will deny Defendants' request for high public official immunity 

without prejudice. 

V. CONCLUSION 

For the foregoing reasons, the court will grant in part and deny in part Defendants' 

Motion to Dismiss Plaintiffs Amended Complaint (Doc. 13). Aseparate Order follows. 

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