Thompson v. Del. Dep't of Servs. for Children, Youth & Their Families

• Decision Date: 11 August 2022
• Docket Number: 20-3111
• Citation: 44 F.4th 188
• Parties: Debra R. THOMPSON, Appellant v. STATE OF DELAWARE DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES; Alison McGonigal; Karryl McManus; Assistant Clerk Angela Porter; Josette Manning
• Court: U.S. Court of Appeals — Third Circuit

44 F.4th 188

Debra R. THOMPSON, Appellant

v.STATE OF DELAWARE DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH AND THEIR FAMILIES; Alison McGonigal; Karryl McManus; Assistant Clerk Angela Porter; Josette Manning

No. 20-3111

United States Court of Appeals, Third Circuit.

Argued: September 24, 2021

Opinion filed: August 11, 2022

Victor F. Battaglia [ARGUED], Robert D. Goldberg, Biggs & Battaglia, 921 Orange Street, P.O. Box 1489, Wilmington, DE 19899, Counsel for Appellant

Ryan T. Costa [ARGUED], Office of Attorney General of Delaware, Delaware Department of Justice, 6th Floor, 820 North French Street, Carvel Office Building, Wilmington, DE 19801, Counsel for Appellees

Before: CHAGARES, Chief Judge, HARDIMAN, and MATEY, Circuit Judges

OPINION OF THE COURT

CHAGARES, Chief Judge.

Debra Thompson brought claims under 42 U.S.C. § 1983 for violations of her right to due process and under state law against the State of Delaware Department of Services for Children, Youth and their Families ("DSCYF") and several individual defendants after Thompson was demoted and eventually terminated from DSCYF. The District Court dismissed Thompson's federal procedural due process claims on the ground that, as a former probationary employee at DSCYF, Thompson did not have a protected property interest in her employment. The District Court also dismissed Thompson's claim brought pursuant to the Delaware Whistleblowers' Protection Act ("WPA") on the ground that the Eleventh Amendment precluded the claim. The District Court declined to exercise supplemental jurisdiction over Thompson's remaining state law claims, and Thompson does not challenge this discretionary ruling. Thompson appeals, focusing mainly upon her procedural due process claims. An issue central to this appeal is whether probationary employees working for the State of Delaware have a constitutionally protected property right in continued employment or in the retention of a particular position or rank for the purpose of federal procedural due process. We hold that they do not and conclude that Thompson's due process claim was properly dismissed. In addition, we hold that the District Court properly dismissed Thompson's WPA claim because the WPA does not evince a clear intention by the State of Delaware to subject itself to suit in federal court. We will thus affirm the District Court's order.

I.

In the spring of 2016, Thompson — then employed as the Development Coach for the Professional Development Center at the University of Delaware — applied for an advertised open position as the Education Unit Supervisor ("Education Supervisor") for DSCYF. The defendants informed Thompson during her interview for the position that the prior Education Supervisor, Angela Porter, had been terminated for personal reasons. DSCYF offered Thompson the position, and in July 2016, Thompson left her job at the University of Delaware to take the Education Supervisor position with a one-year probationary period.

Thompson understood at the time she was hired that DSCYF "had concerns that the education side of the Department was weak and not up to date on current rules, laws and process" and wanted Thompson to address these problems. Appendix ("App.") 22 ¶ 13. She alleges that she upgraded systems and received positive feedback for her work.

Thompson first learned in October 2016 that Porter had successfully contested her termination and that, as a result, the Delaware Merit Employee Relations Board had ordered that Porter be reinstated. Thompson expressed concern about the security of her position and was subsequently assured in writing that Porter would be filling a new position titled, "Transition Coordinator." Porter returned to DSCYF as the Transition Coordinator. But on February 17, 2017, defendant Alison McGonigal — Thompson's supervisor — informed Thompson that Porter would be reinstated as Education Supervisor in thirty days and that Thompson would become the Transition Coordinator instead. DSCYF did not provide Thompson the opportunity to pursue a grievance with respect to the change in her position. Thompson alleges that, upon information and belief, the defendants "disseminated false and misleading information concerning [Thompson's] professional reputation and abilities," because she began hearing from co-workers that she was being demoted for poor performance.¹ App. 25 ¶ 25.

Between approximately March 20 and May 19, 2017, Thompson worked as the Transition

Coordinator. She alleges that the defendants, including Porter, thwarted her attempts to fulfill the duties of that position. Thompson was hospitalized for emergency surgery in May 2017 and could not return to work for several months.

Thompson's one-year probationary period was set to end in July 2017. But, unbeknownst to Thompson, the defendants requested of the Office of Management and Budget an extension of her probationary period on June 5, 2017.² The request stated that in January 2017, Thompson "received a six month probationary review and was placed on a Performance Improvement Plan (PIP)." App. 53. The request further stated that Thompson had been removed from the Education Supervisor position "through no fault of her own" and that her direct supervisor was "unable to effectively measure performance." App. 53. Finally, the request noted "continued concerns regarding quality of work and interpersonal skills, and several absences" by Thompson. App. 53. According to Thompson, these statements are false. The defendants' extension request was approved, and Thompson's probationary period was extended.

Thompson returned to work in October 2017 after leaving for her surgery in May. Around this time, DSCYF demoted Thompson to a teaching position at a reduced salary, which gave Porter supervisory authority over Thompson. Thompson was not afforded an opportunity to contest the demotion. Thompson also lacked the necessary special education certifications for her new teaching position, and the defendants continually requested that she obtain those certifications. She requested accommodations, waivers, or exemptions –– which she contends were commonly afforded to teachers unable to obtain the certifications –– all to no avail.

Porter recommended in April 2018 that Thompson be terminated for failure to obtain the special education certifications that were required for her teaching position. Thompson concedes in passing that she could be terminated from the new teaching position "without cause under a collective bargaining agreement." Thompson Br. 12, 37. Thompson nevertheless filed a grievance claim. The hearing on this claim occurred on April 24, 2018, with Porter as the Hearing Officer. At the hearing, Porter determined that Thompson would have until June 30, 2018, to obtain the necessary special education credentials. Thompson was unable to do so and was terminated from DSCYF on July 2, 2018.

Thompson filed a lawsuit against DSCYF, Porter, and several other individual defendants. She claimed that her demotions and resulting termination from DSCYF violated both federal and state law. The defendants moved to dismiss for failure to state a claim, which the District Court granted. Thompson filed an amended complaint in which she reasserted most of her original claims and added factual allegations. Counts I through V of the amended complaint assert federal due process violations under § 1983 based upon Thompson's assertion that her employment as a probationary employee in Delaware's merit system was subject to the protections of the Fourteenth Amendment. The remaining counts are state-law claims, including Count IX, which alleges violations under the WPA. The defendants moved to dismiss the amended complaint. The District Court granted the motion, holding that because Thompson was a probationary employee under Delaware Merit Rule 9.2, she lacked a property interest in her continued employment at DSCYF for purposes of a procedural due process claim. The court also dismissed Thompson's WPA claim on the ground that the State of Delaware had not consented to be sued in federal court under the WPA. Thompson timely appealed.

II.

The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the grant of a motion to dismiss for failure to state a claim. Klotz v. Celentano Stadtmauer & Walentowicz LLP, 991 F.3d 458, 462 (3d Cir. 2021).

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). We accept as true all factual matters Thompson alleges, but her amended complaint cannot survive unless the facts it recites are enough to state plausible grounds for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We disregard legal conclusions and recitals of the elements of a cause of action that are supported only by mere conclusory statements. Oakwood Lab'ys LLC v. Thanoo, 999 F.3d 892, 904 (3d Cir. 2021).

III.

Thompson challenges the District Court's dismissal of her procedural due process claim. Central to this challenge is the issue of whether Delaware state probationary employees have a constitutionally protected property right in continued employment or in the retention of a particular position or rank. We hold that they do not. This is fatal to Thompson's claim, as discussed more fully below.

A.

Thompson contends that she was deprived of procedural due process when she was demoted and ultimately terminated by DSCYF. To state a claim under § 1983 for a violation of procedural due process rights, Thompson must allege that she was deprived of an individual interest that is "encompassed within the Fourteenth Amendment's protection of life, liberty, or property" and that the available procedures did not provide due process of law. In re Energy Future...