PITTSBURGH – A federal judge has concurred with a magistrate colleague on the bench and adopted their report and recommendations as to litigation from 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, 2022 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, 2022, 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.
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.”
Dodge refused to strike Paragraphs 1-103 in their totality, finding they would not be stricken on the ground of either redundancy or immateriality.
However, Dodge did order that the following paragraphs of the amended complaint were stricken for the aforementioned redundancy or immateriality: 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.
UPDATE
In response to Dodge’s report and recommendations, the parties were given the opportunity to file objections. Each side filed its own objections, in addition to respective responses to each other’s objections.
While the defendants want the Court to essentially dismiss Deltondo’s entire first amended complaint dismissed, Deltondo seeks to have all the counts in her first amended complaint proceed to the discovery phase.
U.S. District Court for the Western District of Pennsylvania Judge William S. Stickman IV issued an order on March 16, which granted in part and denied in part the defendants’ motion to dismiss her amended complaint, the former of which was filed in June 2022.
It also adopted Dodge’s report and recommendations in their entirety.
“To the extent that the last sentence in Deltondo’s objections is an objection to Judge Dodge’s memorandum order, it is vague and does not specifically state the objection and the basis for the objection to each stricken paragraph. The Court’s standard of review for non-dispositive matters is whether the ruling was ‘clearly erroneous or contrary to law.’ That is certainly not the case here, and the Court will not alter Magistrate Judge Dodge’s decision. If anything, the Court would be more inclined to strike additional portions of the first amended complaint. But, in the interest of advancing this litigation, the Court will not strike many of the other allegations that it views as redundant and immaterial,” Stickman said.
“The Court [further] takes this opportunity to express its concern about the tone of Deltondo’s pleadings, which are unnecessarily laced with anger and dangerously close to crossing the line between zealous advocacy and inappropriate and antagonistic behavior. The Court expects civility from the parties and that they behave fairly toward one another in the course of this action. Uncivil behavior does not constitute effective advocacy; rather, it serves to increase litigation costs and fails to advance a client’s lawful interests. No further incivility, pejorative and/or derogatory language in pleadings will be countenanced. It detracts from the substantive merits of the case and the Court will not become preoccupied with policing conduct.”
Stickman concluded by dismissing Counts II (violation of the First Amendment through retaliation for political affiliation), III (violation of procedural due process) and IV (declaratory and equitable relief through a name-clearing hearing) of Deltondo’s first amended complaint, dismissed defendants Sylvia Wilson, Kevin Carter, Terry Kennedy, Cynthia Falls, William J. Gallagher, Pamela Harbin, Sala Udin, Veronica Edwards, Devon Taliaferro, Dr. David May-Stein, Dr. Monica Lamar and Anne Reckhouse as parties to the case and all claims against them, and retained Deltondo’s claim for punitive damages against the non-municipal defendants, as Stickman felt it was “premature” for the Court to resolve it at this stage of the proceedings.
For counts of First Amendment violation and retaliation for free expression, the plaintiff is seeking a long list of reliefs:
• 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