PITTSBURGH – A federal magistrate judge has jettisoned more than 40 paragraphs from a complaint brought by a former veteran schoolteacher against the Pittsburgh School District and its Board of Education, which charged she was wrongfully terminated after she posted a right-wing article accompanied by racist language on her personal Facebook page.
Denise Deltondo first filed suit in the U.S. District Court for the Western District of Pennsylvania on Feb. 25 versus the Pittsburgh School District, various administrators within the District, the Pittsburgh Board of Education and all of its members.
Deltondo, a self-described supporter of former President Donald Trump, shared a post on her personal Facebook account on Aug. 9, 2020, of a news report that the plaintiff claims “pointed out the hypocrisy of those who rely on public assistance complaining about ‘privilege’ while profligately spending that public assistance and living a life without the responsibility assumed by taxpayers.”
Deltondo captioned the post with “Awesome read!” – and claims she was then targeted as a “political opponent” by the defendants and other administrators in the Pittsburgh school system of opposing ideology.
According to Deltondo, Pittsburgh School District’s then-superintendent Anthony Hamlet publicly criticized her on Facebook and Twitter on Aug. 10, 2020, before even attempting to contact her, with Hamlet writing that her post “does not reflect the attitude or beliefs of our District.”
Local news outlets began to report on the matter, and Deltondo found herself suspended by the District the following day.
The suit claimed the District then undertook a “fraudulent” process to make it appear as though she was receiving a fair hearing, beginning on Sept. 10, 2020. On that day, the District scheduled a “due process hearing” for the following week, which Deltondo called “a sham.”
At the hearing, Deltondo alleged the District never specifically identified what charges it was levying against her and what its evidence was, aside from calling her a racist and wanting to know her reasons for sharing the Facebook post.
Deltondo said she then heard nothing for three months, until the District mailed her a letter on Dec. 22, 2020 explaining that she had been fired.
“The letter itself is an illegitimate screed personally attacking plaintiff and her politics, and confirming beyond a shadow of a doubt that plaintiff was terminated based on the content of her opinions and her political affiliation. The letter conclusorily asserts that plaintiff is ‘racist’ and then laundry lists almost every possible charge in the School Code, many of which do not even have the remotest applicability to such a situation: immorality, incompetency, intemperance, cruelty, persistent negligence in the performance of her duties, willful neglect of her duties, persistent and willful violation of or a failure to comply with school laws of this Commonwealth,” the suit said.
“None of these charges had previously been raised with Denise at any point, and certainly not at the Sept. 17, 2020 meeting. The laundry listing of these allegations, most of which have no hypothetical applicability to this situation, is proof of political animus and lack of fairness in the process being afforded to plaintiff. This is a political persecution and the pre-determined goal was to get rid of plaintiff by any means possible.”
The defendants filed an answer on April 29, defending its decision to fire Deltondo and accusing her of voluntarily resigning her own employment when the District allegedly failed to comply with a $1 million pre-suit settlement demand.
“Ms. Deltondo claims that the United States Constitution affords her the unfettered right to say whatever she wants, whenever she wants and in whatever forum she likes – regardless of her statement’s impact. That has never been the case, and it is certainly not the case here. The First Amendment does not protect a public school teacher’s right to endorse and promote racist views to the detriment of the public school system and the students it serves,” their answer stated.
“Deltondo, a former Kindergarten teacher in the Pittsburgh Public School System, enthusiastically endorsed and shared a social media post with clearly racist undertones to make a point: Black people are privileged because they receive benefits they have neither earned nor deserve. Two days before her scheduled hearing on disciplinary charges related to the offensive post, Deltondo – with and through her counsel – resigned her employment rather than defend her actions, indignant that defendants failed to accede to her $1,000,000 pre-complaint settlement demand.”
The defendants added that the Board members’ conduct is protected by qualified immunity, that the due process allegations fail because Deltondo resigned and waived her disciplinary hearing, that Deltondo’s First Amendment speech retaliation claim fails because her Facebook post harboring clearly racist undertones was not protected speech, and that the First Amendment political association claim fails because the complaint does not allege that political affiliation was a substantial or motivating factor in the plaintiff’s discipline.
UPDATE
U.S. Magistrate Judge Patricia L. Dodge issued a report and recommendation on Jan. 30, which granted in part and denied in part the defendants’ motion to strike a multitude of paragraphs from the suit – for reasons of those paragraphs containing “redundant, immaterial, impertinent and scandalous matters.”
“While these allegations, or at least some of them, appear to be related to Deltondo’s claims, the Court notes that many of these allegations are repeated again, and in some cases multiple times, in the remainder of the amended complaint. In addition to seeking to strike the first 103 paragraphs, defendants move to strike a number of other allegations that recur multiple times in the amended complaint,” Dodge stated, in part.
“While Deltondo asserts that this case is ‘complex,’ the incidents that form the basis of her four counts are capable of being described substantially more succinctly than she has done and without unnecessary repetition. Thus, the amended complaint hardly represents a ‘short and plain statement’ of Deltondo’s claim. And notably, Deltondo was aware of the deficiencies raised by defendants through the process of a meet and confer and declined to make any revisions.”
However, Dodge refused to strike Paragraphs 1-103 in their totality, finding they would not be stricken on the ground of either redundancy or immateriality.
“Defendants move to strike Deltondo’s personal opinions that allowing them to terminate her for controversial speech would ‘give carte blanche to the Heckler’s Veto and render the First Amendment a dead letter’, and that the ‘right to free speech in the First Amendment which protects plaintiff’s Facebook posts is basic Civics 101.’ While the Court finds that these allegations may, in fact, represent Deltondo’s opinions, they will not be stricken because at least arguably, they could be interpreted as somehow related to her First Amendment claim,” Dodge said.
“On the other hand, Paragraphs 6, 7, 20 and 21 (the latter two of which are repetitious of the first two paragraphs) represent allegations of purported fact about individuals who receive public assistance and what the majority of Americans believe. The issues in this case revolve around whether Deltondo was improperly disciplined and constructively terminated for expressing certain opinions, not whether her opinions are true. Thus, these statements are immaterial to the issues in this case and will be stricken.”
Since the Court is recommending dismissal of Counts II, III and IV, Dodge found it was “not necessary to strike references to these terms in those counts” and that it was also “unnecessary to strike references to the collective bargaining agreement, the terms ‘defamed,’ ‘defaming,’ and ‘defamatory’ or references to a ‘hostile work environment’ and ‘hostile environment.”
The Court also recommended that Count II, which relates to political association retaliation, should be dismissed and therefore, Dodge felt that all such references are also not only scandalous and/or impertinent, but immaterial and irrelevant – and additionally, that these references “have no bearing on whether Deltondo was suspended and then terminated for expressing her opinions.”
“Deltondo includes other scandalous opinions and accusations about one or more of the defendants throughout the amended complaint that are pejorative, derogatory and unduly prejudicial. Thus, all of the paragraphs cited above will be stricken. Deltondo’s amended complaint is also rife with unnecessary citations to and quotes from various case law,” Dodge said.
“Defendants move to strike case law references to constructive discharge and the treatment of First Amendment claims by students (as opposed to employees such as teachers) on the ground that they are immaterial, impertinent and unrelated to the issues in the case. Notably, there are a substantial number of other case citations that have no purpose in a complaint. Nonetheless, while references to and discussion of case law in a complaint are both unnecessary and inconsistent with Rule 8, the Court declines, in the interest of judicial economy, to strike them.”
Dodge added that the amended complaint also includes a number of other allegations that are “immaterial, redundant, impertinent or represent other personal opinions of Deltondo.”
“The Court agrees that Deltondo’s approach to pleading her claims, which was unchanged even after a Court-ordered meet and confer, is not in conformity with the pleading requirements of the Federal Rules of Civil Procedure. At the same time, the nature of her claims can be determined despite the unwieldy length and often superfluous or repetitive content of her amended complaint. Thus, it is in the best interests of the parties and the most effective use of judicial resources to advance this lawsuit without striking every allegation that may be redundant or immaterial,” the report continued.
Dodge then ordered that the following paragraphs of the amended complaint were stricken: Paragraphs 2, 6, 7, 10, 20, 21, 23, 26, 33, 34, 35, 42, 45, 49, 59, 60, 64, 71, 74, 75, 76, 80, 86, 96, 97, 101, 102, 124, 128(a), 164, 165, 168, 169(a), 170, 181, 186, 187, 189, 193, 194 and 218, and further ordered that the defendants’ motion to strike is otherwise denied.
For counts of First Amendment violation and retaliation for free expression and political affiliation, Fourteenth Amendment procedural due process violation and declaratory and equitable relief, the plaintiff is seeking a long list of reliefs:
• A name-clearing hearing and public retraction and correction;
• Compensatory damages, inclusive of any and all harm attributable to defendants’ actions or inaction, including loss of earnings, loss of career, reputational/stigma damage,
• Mental and emotional pain and suffering;
• Punitive damages to punish the defendants for their outrageous conduct, self-interest and duplicitous behavior, reckless and callous indifference to plaintiff’s rights, and evil motives;
• Exemplary damages to set an example for others;
• Attorneys’ fees, costs and court costs under Section 1988;
• Interest;
• Pre-judgment interest;
• Delay damages;
• Other equitable relief that may be necessary to enforce plaintiff’s rights; and,
• Such other and further relief and/or equitable relief that this Court deems just and/or necessary.
The plaintiff is represented by Alfred Joseph Fluehr of Francis Alexander, in Media.
The defendants are represented by Jennifer S. Park, Myah A. Cummings, Samantha L. Cook and Michael Disotell of Denton Cohen & Grigsby in Pittsburgh and Wexford, plus Ira Weiss of Weiss Burkardt Kramer, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-00350
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com