PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 17-2189

____________

HOLLY JUDGE,

 Appellant

v.

SHIKELLAMY SCHOOL DISTRICT; PATRICK M. 

KELLEY, Individually and in his capacity as District 

Superintendent of the Shikellamy School District; DR. 

JAMES P. HARTMAN, Individually and in his capacity as 

President of the Shikellamy Board of Education; WENDY 

WIEST, Individually and in her capacity as Vice President of 

the Shikellamy Board of Education; LORI GARMAN, 

Individually and in her capacity as Secretary of the 

Shikellamy Board of Education; KELLIE CIANFLONE, 

Individually and in her capacity as a member of the 

Shikellamy Board of Education; JAMES GARMAN, 

Individually and in his capacity as a member of the 

Shikellamy Board of Education; C. SCOTT KARPINSKI, 

Individually and in his capacity as a member of the 

Shikellamy Board of Education; THOMAS MICHAEL, 

Individually and in his capacity as a member of the 

Shikellamy Board of Education; MICHAEL STEPP, 

Individually and in his capacity as a member of the 
2

Shikellamy Board of Education; DR. JEFFREY WALTER, 

Individually and in his capacity as a member of the 

Shikellamy Board of Education

____________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 4-15-cv-00551)

District Judge: Honorable Matthew W. Brann

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Submitted Under Third Circuit L.A.R. 34.1(a)

September 7, 2018

Before: HARDIMAN, KRAUSE, and BIBAS, 

Circuit Judges.

(Filed: September 24, 2018)

Donald H. Brobst

Thomas J. Campenni

Rosenn Jenkins & Greenwald, LLP

15 South Franklin Street

Wilkes-Barre, PA 18711

Counsel for Appellant

Kimberly A. Boyer-Cohen

Marshall Dennehey Warner Coleman & Goggin

2000 Market Street, Suite 2300

Philadelphia, PA 19103

Counsel for Appellees
3

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OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Holly Judge resigned her position at the Shikellamy 

School District after she was arrested on suspicion of drunk 

driving. Judge sued Shikellamy and a number of its officers 

(the Individual Defendants), claiming she was constructively 

discharged in violation of her constitutional and contractual 

rights. Because there is no genuine dispute that Judge resigned 

voluntarily, we will affirm.

I1

Judge had been principal of Oaklyn Elementary School 

for about three years when, on the evening of May 30, 2014, 

she was stopped by a Pennsylvania State Trooper for failing to 

signal as she pulled into traffic. After acknowledging she had 

been drinking, Judge became upset and asked the trooper to let 

her go because she was concerned about her job. The trooper 

declined and took Judge to the State Police barracks, where she 

was given a blood alcohol test. The test showed that Judge’s 

blood alcohol content was .332, more than four times the legal 

 1 The District Court had jurisdiction under 28 U.S.C. 

§§ 1331 and 1367. We have jurisdiction under 28 U.S.C. 

§ 1291. We review the District Court’s summary judgment de 

novo. Bradley v. W. Chester Univ. of Pa. State Sys. of Higher 

Ed., 880 F.3d 643, 650 (3d Cir. 2018).
4

limit. Judge was released from the barracks that night without 

being informed of the test results. 

A few weeks later, Judge had three encounters with 

Shikellamy Superintendent Patrick Kelley. Having been 

advised by two school board members that Judge had been the 

subject of a traffic stop, Kelley walked into Judge’s office, shut 

the door, and began asking her questions about the incident.

Later that day, around 3:00 p.m., Kelley summoned Judge to 

his own office. As soon as Judge arrived, Kelley gave her a 

letter to read. The letter stated three things: first, Kelley knew

that Judge had been stopped on suspicion of drunk driving;

second, Judge had not disclosed the events of May 30 until 

confronted 20 days later; and third, Judge had a choice to make.

In Kelley’s words, the “underlying facts” required him to ask 

for Judge’s “immediate resignation.” App. 120. The letter 

continued:

If you do choose to resign then I 

will offer a neutral reference in the 

future upon inquiry. . . . [I]n the 

alternative, if you decide not to 

resign and DUI charges are filed 

against you then I will be forced to 

issue a written statement of 

charges for dismissal. These 

charges will be based upon the 

following elements:
5

• Immorality - conduct which 

offends the morals of the 

Commonwealth and is a 

bad example to the youth 

whose ideals a professional 

educator . . . has a duty to 

foster and elevate. . . .

This letter is delivered on . . . June 

19, 2014, and I await your answer 

on, or before, 12:30 [p.m.] on June 

20, 2014.

App. 120–21.2 After reading the letter, Judge asked Kelley if 

there was “anything [she] could do,” App. 201, but Kelley said

there was not. By the time Judge left Kelley’s office, it was 

about 4:00 p.m. Judge went home and spoke with her mother

about the situation but did not contact a lawyer, even though

she had retained counsel after her arrest in anticipation of 

possible criminal charges. Ultimately, Judge decided to resign 

her position.

The next day, Judge met with Kelley for a third time and 

presented him with a letter of resignation. Before handing 

Kelley the letter, Judge told him she “was not even charged 

with DUI yet.” App. 202. Kelley then handed Judge some court 

documents indicating that, in fact, she had been charged. That 

was the first time Judge learned she had been charged with DUI 

under 75 Pa. Cons. Stat. § 3802(a)(1) (general impairment) and 

 2 The letter also alleged two other grounds for 

termination—“moral turpitude” and “intemperance”—which 

the parties have not discussed on appeal.
6

§ 3802(c) (highest rate of alcohol), as well as a number of 

related moving violations.

Almost a year later, Judge sued Shikellamy and the 

Individual Defendants in the United States District Court for 

the Middle District of Pennsylvania. She asserted four 

claims—deprivation of procedural due process, deprivation of 

substantive due process, violation of equal protection, and 

breach of contract—all arising out of the common allegation 

that Shikellamy had constructively discharged her. The 

Defendants filed a motion to dismiss, which the District Court 

granted in part and denied in part. The District Court held that 

the Individual Defendants were entitled to qualified immunity 

and dismissed them from the case. As to Shikellamy, the Court 

dismissed Judge’s substantive due process, equal protection, 

and contract claims in full. And it dismissed her procedural due 

process claim to the extent it alleged a deprivation of Judge’s 

liberty interest in her reputation. The District Court granted

Judge leave to amend so she could supplement her contract and 

procedural due process claims against Shikellamy. After Judge

filed an amended complaint, Shikellamy answered, the parties 

conducted discovery on those two theories, and the District 

Court granted summary judgment in favor of Shikellamy. 

Judge filed a timely notice of appeal from both the Court’s 

dismissal of the Individual Defendants and its summary 

judgment for Shikellamy.

II

The District Court recognized that neither Judge’s 

procedural due process nor her breach of contract claim could 

go to a jury unless there was a genuine dispute as to whether 

she had been constructively discharged or had voluntarily 

resigned. See Fed. R. Civ. P. 56(a); see Leheny v. City of 
7

Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999). The Court held 

that Judge had failed to demonstrate such a dispute and granted 

summary judgment for Shikellamy on both claims. We agree.

Our case law establishes a presumption that when 

employees resign, they do so freely, so the onus is on Judge to 

produce “evidence to establish that the resignation . . . was 

involuntarily procured.” Leheny, 183 F.3d at 227. In cases like 

this appeal, where Judge does not claim she was misled into 

resigning, we ask whether Shikellamy “force[d] the 

resignation . . . by coercion or duress.” Id. at 228. We apply an 

objective standard—the ultimate issue is not what Judge 

herself felt or believed, but whether a reasonable person under 

the circumstances “would have felt compelled to resign.” 

Colwell v. Rite Aid Corp., 602 F.3d 495, 502 (3d Cir. 2010)

(quoting Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 167 

(3d Cir. 2001)).

3

Before today, we have not explained how claims of 

constructive discharge should be evaluated. Consequently, the 

parties have focused their attention on a non-exhaustive list of

factors identified by the United States Court of Appeals for the 

 3 Unlike her due process claim, Judge’s contract claim 

is governed by Pennsylvania rather than federal law. But the 

difference here is immaterial because Pennsylvania appears to 

apply essentially the same standard to distinguish between 

voluntary resignations and constructive discharges. See Helpin 

v. Trs. of Univ. of Pa., 969 A.2d 601, 614 & n.8 (Pa. Super. Ct. 

2009) (framing the inquiry in terms of “whether a reasonable 

person in the employee’s position would have felt compelled 

to resign.”).
8

Eleventh Circuit, which we think provides a useful framework 

for decision. As that court has explained:

Other circuits addressing this issue 

have indicated that certain factors 

may be helpful in determining 

whether the resignation was 

obtained by coercion or duress: 

(1) whether the employee was 

given some alternative to 

resignation; (2) whether the 

employee understood the nature of 

the choice [s]he was given; 

(3) whether the employee was 

given a reasonable time in which to 

choose; (4) whether the employee 

was permitted to select the 

effective date of the resignation; 

and (5) whether the employee had 

the advice of counsel.

Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 

1995) (citing Angarita v. St. Louis Cty., 981 F.2d 1537, 1544 

(8th Cir. 1992); Stone v. Univ. of Md. Med. Sys. Corp., 855 

F.2d 167, 174, 177 (4th Cir. 1988); Schultz v. U.S. Navy, 810 

F.2d 1133, 1136 (Fed. Cir. 1987); Scharf v. Dep’t of the Air 

Force, 710 F.2d 1572, 1574 (Fed. Cir. 1983)); see also Leheny, 

183 F.3d at 227–28 (favorably citing Hargray). The District 

Court concluded that the balance of those factors was not 

enough for a reasonable jury to find that Judge had overcome 

the presumption that her resignation was voluntary. We 

substantially agree with the District Court’s careful analysis.
9

Initially, we note that Judge was presented with a 

reasonable alternative to immediate resignation, having 

Shikellamy issue a “written statement of charges for dismissal,” 

after which the terms of her employment contract entitled her

to a hearing before she could actually be terminated. See App. 

120, 150. Judge’s argument in response—that this was an

illusory alternative because Shikellamy lacked good cause to 

seek her termination—fails. Pennsylvania law permits the 

termination of tenured school employees for “immorality,” 24 

Pa. Stat. Ann. § 11-1122, and the Commonwealth Court has 

previously held that “certain circumstances . . . involving 

drinking and driving may constitute conduct that is immoral” 

under that provision, Zelno v. Lincoln Intermediate Unit No. 

12 Bd. of Dirs., 786 A.2d 1022, 1026 n.7 (Pa. Commw. Ct. 

2001). As the District Court observed, given that Judge was 

charged with the category of DUI applicable to the highest 

BAC levels, Shikellamy could reasonably have believed that 

“there existed ‘certain circumstances’ making [her] DUI arrest 

immoral” and a valid basis for termination. Judge v. Shikellamy 

Sch. Dist., 2017 WL 1550042, at *14–15 (M.D. Pa. May 1, 

2017). This was not a situation where, because “the reason for 

the threatened removal could not be substantiated,” the choice 

between resignation and the initiation of termination 

proceedings was “purely coercive.” Schultz, 810 F.2d at 1136.

Second, any reasonable school principal in Judge’s 

position would have understood the nature of her choice 

between resignation and charges followed by a pre-termination 

hearing. Judge’s own employment contract, which she had to 

sign each year she worked for the District, said Judge could be 

terminated only after written notice and a hearing. Even 

assuming Judge believed in good faith that her options were 

between resignation and immediate termination, her subjective 
10

state of mind is immaterial to the objective legal standard that 

applies in this case.

Third, although Judge had less than 24 hours to make a 

decision after Kelley’s ultimatum, all of these events took 

place almost three weeks after Judge was actually arrested. The 

circumstances of that arrest put Judge on notice (as they would 

have any reasonable person) that she was at serious risk of 

being charged with a high-level DUI. And given the

disapprobation society attaches to driving under the influence 

of alcohol, Judge’s arrest at least raised the possibility that she 

might be terminated for “immorality” as a result. As the 

District Court put it, the clear “possible effect of a DUI on the 

night of her arrest” gave Judge “more than two weeks to 

foresee the ‘gathering storm.’” Judge, 2017 WL 1550042, at 

*16–17.

The final two factors—the ability to set her own 

resignation date and the advice of counsel—favor Judge to 

some extent. But in light of the other factors we have discussed, 

and considering the fact that Judge made no attempt to seek 

advice from anyone but her mother over two weeks, we agree 

with the District Court that the final two factors don’t suffice 

to carry Judge’s burden. Judge’s decision was presumptively 

voluntary, and no reasonable jury could find otherwise on this 

record. That conclusion dooms her contract and procedural due 

process theories.

III

Judge’s remaining claims fare no better. She has 

abandoned her equal protection and substantive due process 

arguments on appeal by allotting them only one sentence 

apiece in her opening brief. See Judge Br. 32–33; New Jersey 
11

v. Merrill Lynch & Co., Inc., 640 F.3d 545, 547 n.3 (3d Cir. 

2011). Moreover, with those claims having been abandoned 

and summary judgment having been properly granted on the 

others, we have no basis to conclude that Judge can establish a 

substantive constitutional violation. We therefore have no 

reason to disturb the District Court’s decision to dismiss the 

Individual Defendants based on qualified immunity. See De 

Ritis v. McGarrigle, 861 F.3d 444, 452 & n.3 (3d Cir. 2017).

* * *

For the reasons stated, we will affirm the District 

Court’s summary judgment in favor of the Shikellamy School 

District and its order dismissing the Individual Defendants.