SUE L. ROBINSON, District Judge.
On August 15, 2014, Isabel Cristina Companiony ("plaintiff') filed an action pursuant to 42 U.S.C. § 1983 against Mark Murphy,
Plaintiff worked jointly
After plaintiff's barring from BWCI, the parties engaged in discussions regarding the transfer of plaintiff to another correctional institution but only if she were placed on a "performance improvement plan." (D.I. 1 at ¶ 35) Plaintiff objected to being placed on such a plan. Id. On July 12, 2012, however, the DOE gave a letter of reprimand and an improvement plan to plaintiff. (D.I. 1 at ¶ 36) Plaintiff filed an appeal on the letter of reprimand and was granted an appeal date. (D.I. 1 at ¶¶ 36, 37) Prior to the letter of reprimand appeal date, on August 17, 2012, plaintiff received a "notice of intent to terminate employment letter." (D.I. 1 at ¶ 41) The letter explained that there was "just cause" for plaintiff's termination in the form of the DOC's decision to bar plaintiff from working at any DOC facility. Id. The letter also identified the date of plaintiff's "pre-termination hearing" as August 27, 2012. Id.
On August 24, 2012, plaintiff attended the letter of reprimand meeting and presented evidence on her behalf. (D.I. 1 at ¶ 43) On August 27, 2012, plaintiff and her counsel attended the "pre-termination hearing" where she once again presented evidence on her behalf. (D.I. 1 at ¶¶ 41, 44) On September 4, 2012, plaintiff received a letter upholding the letter of reprimand against her and a termination of employment letter. (D.I. 1 at ¶ 45) The termination of employment letter stated that her permanent barring from any DOC facility effectively made it impossible for her to fulfill her responsibilities as a teacher/supervisor. Id. The letter also outlined the process for a post-termination hearing pursuant to 14 Del. C. § 121(a)(5). Id. Plaintiff requested and attended, with her counsel, a post-termination hearing on October 2, 2012, but withdrew her request for a further hearing "because DOC was not made a party to the hearing process." (D.I. 1 at ¶ 49)
A motion filed under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint's factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must contain "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 upon which it rests." Twombly, 550 U.S. at 545 (internal quotation marks omitted) (interpreting Fed. R. Civ. P. 8(a)). Consistent with the Supreme Court's rulings in Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Third Circuit requires a two-part analysis when reviewing a Rule 12(b)(6) motion. Edwards v. A.H. Cornell & Son, Inc., 610 F.3d 217, 219 (3d Cir. 2010); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, a court should separate the factual and legal elements of a claim, accepting the facts and disregarding the legal conclusions. Fowler, 578 F.3d. at 210-11. Second, a court should determine whether the remaining well-pled facts sufficiently show that the plaintiff "has a `plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679). As part of the analysis, a court must accept all well-pleaded factual allegations in the complaint as true, and view them in the light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). In this regard, a court may consider the pleadings, public record, orders, exhibits attached to the complaint, and documents incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 n.2 (3d Cir. 1994).
The court's determination is not whether the non-moving party "will ultimately prevail" but whether that party is "entitled to offer evidence to support the claims." United States ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d 295, 302 (3d Cir. 2011). This "does not impose a probability requirement at the pleading stage," but instead "simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of [the necessary element]." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). The court's analysis is a context-specific task requiring the court "to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 663-64.
Plaintiff's § 1983 claims against defendants appear to be substantively grounded in the Fourteenth Amendment. Section 1983 provides, in relevant part:
42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
The Third Circuit has explained that,
Alvin v. Suzuki, 227 F.3d 107, 116 (3d. Cir. 2000) (citations omitted). The failure to pursue state remedies, however, is excused in instances where there is evidence that the procedures are a sham or when access to procedure is absolutely blocked. Id. at 118 (citations omitted).
Section 121(a)(5) of Title 14 of the Delaware Code provides an appeal process in which plaintiff could request a formal hearing before a neutral officer, the Director of the Office of Management and Budget, and have her attorney present. 14 Del. C. § 121(a)(5). Plaintiff concedes that she chose not to utilize the post-termination proceeding provided under § 121(a)(5), because her request to have DOC participate in the hearing was rejected. (D.I. 1 at ¶ 49) This rejection, in and of itself, is not enough to suggest that the post-termination process was inadequate or a procedural "sham." See McKeesport Hosp. v. Accreditation Council, 24 F.3d 519, 533 (3d Cir. 1994) ("The Constitution requires a proceeding appropriate under the circumstances; it does not require confrontation and cross-examination in every proceeding."). Having failed to avail herself of the hearing process pursuant to § 121(a)(5), plaintiff has not demonstrated a violation of due process with regard to post-termination.
A plaintiff asserting a procedural due process claim under 42 U.S.C. § 1983 must "allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of `life, liberty, or property,' and (2) the procedures available to him did not provide `due process of law.'" Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (quoting Alvin, 227 F.3d at 116).
To have a protectable property interest in a job, a person must have a "legitimate claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Legitimate claims of entitlement to "property" are not created by the Constitution; rather, they are created by state laws that "secure certain benefits and that support claims of entitlement to those benefits." Id. "In the governmental context, while at-will employment is not generally considered a property interest, employment contracts that contain a `just cause' provision create a property interest in continued employment." Wilson v. MVM, Inc., 475 F.3d 166, 177 (3d Cir. 2007) (citations omitted). "This Court has consistently held that public employees have a property interest if the employer has set out guidelines as to grounds for discharge." Dixon v. Mayor & Council of City of Wilmington, 514 F.Supp. 250, 253 (D. Del. 1981) (citations omitted); see also Caruso v. Superior Court of Delaware, Civ. No. 12-277-GMS, 2013 WL 1558023, at *7 (D. Del. Apr. 12, 2013), report and recommendation adopted, Civ. No. 12-277-GMS, 2013 WL 3177751 (D. Del. June 19, 2013).
Plaintiff alleges that she has a protected property interest in her continued employment at BWCI because her employment was subject to the termination provisions contained in her 2006 employment contract. (D.I. 11 at 15-16) Defendants contend that even if plaintiff's allegation is true, she nonetheless lacks a property interest in a DOC security clearance or a job that requires a DOC security clearance. (D.I. 12 at 6) The court will assume for purposes of this motion that plaintiff had a property interest in her job. security clearance or a job that requires a DOC security clearance. (D.I. 12 at 6) The court will assume for purposes of this motion that plaintiff had a property interest in her job.
In Department of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court stated that "it should be obvious that no one has a `right' to a security clearance." Id. at 528. "[E]very court of appeals [that] has addressed the issue has ruled that a person has no constitutionally protected liberty or property interest in a security clearance or a job requiring a security clearance." Stehney v. Perry, 101 F.3d 925, 936 (3d Cir. 1996) (citations omitted). The court recognizes that the cited cases involve federal security clearances; however, like those clearances, the grant of a DOC security clearance in the case at bar requires a discretionary act on the part of the granting official or department. Plaintiff has not demonstrated a protected property interest in her position at BWCI because it is contingent upon a DOC security clearance. Without such a protected property interest, plaintiff has no claim for a violation of due process. Moreover, as described below, the procedures used to revoke plaintiff's security clearance were sufficient to provide due process.
Generally, a pre-termination hearing "need not be elaborate." Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 545 (1985). "Where adequate post-termination procedures are available, an employee is entitled only to `notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.'" Schmidt v. Creedon, 639 F.3d 587, 596 (3d Cir. 2011) (citing Loudermill, 470 U.S. at 545). The pre-termination hearing "need not definitively resolve the propriety" of
In Department of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court stated that "it should be obvious that no one has a `right' to a security clearance." Id. at 528. "[E]very court of appeals [that] has addressed the issue has ruled that a person has no constitutionally protected liberty or property interest in a security clearance or a job requiring a security clearance." Stehney v. Perry, 101 F.3d 925, 936 (3d Cir. 1996) (citations omitted). The court recognizes that the cited cases involve federal security clearances; however, like those clearances, the grant of a DOC security clearance in the case at bar requires a discretionary act on the part of the granting official or department. Plaintiff has not demonstrated a protected property interest in her position at BWCI because it is contingent upon a DOC security clearance. Without such a protected property interest, plaintiff has no claim for a violation of due process. Moreover, as described below, the procedures used to revoke plaintiff's security clearance were sufficient to provide due process.
Generally, a pre-termination hearing "need not be elaborate." Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 545 (1985). "Where adequate post-termination procedures are available, an employee is entitled only to `notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Schmidt v. Creedon, 639 F.3d 587, 596 (3d Cir. 2011) (citing Loudermill, 470 U.S. at 545). The pre-termination hearing "need not definitively resolve the propriety" of the termination. Loudermill, 470 U.S. at 545. "It should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Id. at 545-46.
As the facts demonstrate, plaintiff participated in several meetings and hearings
In totality, the pre-termination procedures pass muster under Loudermill, providing plaintiff notice, an explanation from her employer, and an opportunity to present her story. As a facially adequate post-termination proceeding under § 121(a)(5) was available, plaintiff was afforded the required pre-termination due process.
"To establish liability under 42 U.S.C. § 1983, a plaintiff must show that the defendants, acting under color of law, violated the plaintiff's federal constitutional or statutory rights, and thereby caused the complained of injury." Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005). "[Section] 1983 merely provides a mechanism for enforcing individual rights `secured' elsewhere, i.e., rights independently `secured by the Constitution and laws' of the United States." Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002). Federal and state regulations such as DOC and DOE policies do not give rise to a liberty interest. See Rambert v. Beard, Civ. No. 09-0634, 2012 WL 760619, at *13 (M.D. Pa. Mar. 7, 2012) (compiling cases and holding that "[f]ederal and state regulations in and of themselves do not create a liberty interest" in the disputed DOC procedure at issue).
In the case at bar, the DOC and DOE policies and procedures are neither provisions in the Constitution, nor federal law. They are state policies and procedures of the Delaware DOC and DOE respectively. Defendants' alleged failure to follow the prescribed disciplinary process provided for under DOE and DOC policies and procedures is not itself a violation subject to § 1983.
For the aforementioned reasons, defendants' motion to dismiss (D.I. 6) is granted. An appropriate order shall issue.
In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426 (3d Cir. 1997) (internal citations omitted)(emphasis omitted).
Issues with nomenclature do not raise "lack of notice" concerns. Although defendants do supply an exhibit (D.I. 7) with their motion to dismiss, plaintiff takes no issue with the information contained in this exhibit, such as the IA report, and "relied upon [it] in framing the complaint." Id.; (see D.I. 1 at 25) The motion at bar remains a motion to dismiss.
