HARRISBURG – Litigation brought by a Hershey woman alleging that her comments to the Derry Township School Board on the relative dearth of mental health services provided to students there led to the District retaliating against her, has been stayed.
Jennifer L. Hynes of Hershey and TEAMCare Behavioral Health, LLC of Harrisburg initially filed suit in the Dauphin County Court of Common Pleas on July 7 versus Derry Township School District, also of Hershey.
“Plaintiff Hynes is CEO of plaintiff TEAMCare. TEAMCare provides Community Based Outpatient Services to various school districts in Central Pennsylvania. In 2018, DTSD contracted with TEAMCare to provide Community Based Outpatient Services to DTSD schools. Services were further defined as ‘Psychological Services by the mutual agreement of the Company and the School District,” the suit said.
An unprecedented increase in the amount and severity of mental health issues for children during the pandemic has also led to a greater need for psychological services.
“Jennifer Hynes attended the March 22, 2021 DTSD School Board meeting, as a concerned citizen with detailed direct knowledge of the concerns above and the impact of COVID on DTSD resources for the mental health services to its students,” according to the suit.
“The gist of her comments were directed to underutilization and understating in the social service position. She observed that her company provides services to other districts as well as DTSD, and that only 6 DTSD students were served, which was dramatically lower than other districts, even smaller ones. She observed that DTSD had only one social worker and that they probably needed three more social workers given the number of students and variety of issues they face. She invited the Board to contact her with any questions regarding services her company provided.”
Hynes added that days after making her comments, she received a letter from DTSD School Board President John Abel that TEAMCare services would not be renewed for the coming year, without an opportunity to be heard and no formal School Board action before or since the issuance of the letter.
“On April 20, 2021, plaintiff Hynes on behalf of herself and plaintiff TEAMCare texted Abel, ‘Just received the letter signed by you. This is complete retaliation since I spoke up about the lack of services in the schools. Mr. Abel provided no justification for the action or response to the retaliation assertion, and instead suggested they would have to ‘agree to disagree’. There was not, and is not, an agreement between DTSD and TEAMCare to terminate the agreement as provided. The agreement by its express term automatically renews from year to year in absence of mutual agreement to terminate and was in effect a requirements contract. No material breach by TEAMCare was alleged or established prior to the anticipatory repudiation,” per the suit.
“Pretext may be implied by the fact that DTSD did not terminate the contract for breach but merely provided notice of future non-renewal, allowing current services to continue until the renewal/termination date. The proffered non-renewal without cause is an anticipatory breach of the contract and particularly the term provision thereof. Termination was in fact retaliatory against plaintiffs because of the protected speech of plaintiff Hynes at the March 22, 2021 DTSD School Board Meeting. The notice of termination is not consistent with the terms of the contract, due process or the First Amendment rights of plaintiff Hynes. Prior to her First Amendment protected comments at the school board meeting, there was no issue which would have impacted continuation of services and no notice of any concern to be addressed in that respect.”
The suit was then removed to the U.S. District Court for the Western District of Pennsylvania on Oct. 11, and the defendant filed a motion to dismiss for failure to state a claim on Oct. 18.
“Count I of the amended complaint, which alleges a breach of contract claim, fails as a matter of law because the School Board members, who approved and executed the agreement with plaintiffs in 2018, cannot bind the District (and its current school board members) to the terms of such contract, which extends beyond their election term,” the motion stated, in part.
“In light of the foregoing, the decision of the School Board in its current iteration not to renew plaintiffs’ contract does not constitute a breach of the contract. The District was not and cannot be bound indefinitely by the terms of the agreement that was approved and signed by a prior iteration Board in 2018. Therefore, Count I fails as a matter of law.”
Likewise, the defense found the defamation and disparagement claims also failed.
“Here, the facts as pleaded in the amended complaint do not support a claim for defamation or disparagement. Specifically, as plaintiffs have acknowledged in the amended complaint, they are not able to plead the contents of any alleged defamatory words, or to whom the words were allegedly published,” the motion continued.
“Rather, plaintiffs’ allegations amount to nothing more than vague, conclusive allegations that are insufficient to establish a defamation or disparagement claim against the District, and as such, Count II of the amended complaint must be dismissed as a matter of law. Finally, although it is unclear, to the extent that plaintiffs are attempting to assert a due process claim pursuant to the 14th Amendment, the claim also fails.”
Defense counsel added that any substantive due process claim fails at the outset because “plaintiffs cannot demonstrate that there has been a deprivation of a fundamental right.”
UPDATE
On Nov. 23, U.S. District Court for the Middle District of Pennsylvania Judge Yvette Kane ordered the case stayed, as plaintiff counsel had recently been suspended from legal practice.
Additionally, Kane noted that the plaintiffs’ brief in opposition to the defendant’s dismissal motion was due on Nov. 15, but that the plaintiffs failed to file that document by that deadline.
“On Nov. 19, 2021, the Court became aware, through a filing in another case, Hartman v. Gratz Borough, that, on Nov. 18, 2021, plaintiffs’ attorney in this case, Andrew W. Barbin, who also represents the plaintiff in the Hartman case, was suspended from the practice of law by the Supreme Court of Pennsylvania for a period of 18 months,” Kane said.
“And so, on this 23rd day of November 2021, upon consideration of the foregoing, it is ordered that the deadlines in this case are stayed pending further Order of the Court.”
Barbin was charged with, among other things, filing frivolous litigation, incompetence and neglect.
For counts of breach of contract, defamation and disparagement and violation of 42 U.S.C. Section 1983, the plaintiffs are seeking compensatory damages in a liquidated amount in excess of the local arbitration amount, together with such other relief as this Court may deem just.
The defendant is represented by Christopher J. Conrad of Marshall Dennehey Warner Coleman & Goggin, in Camp Hill.
U.S. District Court for the Middle District of Pennsylvania case 1:21-cv-01736
Dauphin County Court of Common Pleas case 2021-CV-05787
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com