                                          PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                       No. 17-2189
                      ____________

                     HOLLY JUDGE,

                                      Appellant

                             v.

   SHIKELLAMY SCHOOL DISTRICT; PATRICK M.
    KELLEY, Individually and in his capacity as District
   Superintendent of the Shikellamy School District; DR.
JAMES P. HARTMAN, Individually and in his capacity as
 President of the Shikellamy Board of Education; WENDY
WIEST, Individually and in her capacity as Vice President of
   the Shikellamy Board of Education; LORI GARMAN,
     Individually and in her capacity as Secretary of the
  Shikellamy Board of Education; KELLIE CIANFLONE,
     Individually and in her capacity as a member of the
    Shikellamy Board of Education; JAMES GARMAN,
     Individually and in his capacity as a member of the
 Shikellamy Board of Education; C. SCOTT KARPINSKI,
     Individually and in his capacity as a member of the
  Shikellamy Board of Education; THOMAS MICHAEL,
     Individually and in his capacity as a member of the
    Shikellamy Board of Education; MICHAEL STEPP,
     Individually and in his capacity as a member of the
 Shikellamy Board of Education; DR. JEFFREY WALTER,
     Individually and in his capacity as a member of the
              Shikellamy Board of Education
                       ____________

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
                  (D.C. No. 4-15-cv-00551)
       District Judge: Honorable Matthew W. Brann
                       ____________

       Submitted Under Third Circuit L.A.R. 34.1(a)
                   September 7, 2018

      Before: HARDIMAN, KRAUSE, and BIBAS,
                   Circuit Judges.

               (Filed: September 24, 2018)

Donald H. Brobst
Thomas J. Campenni
Rosenn Jenkins & Greenwald, LLP
15 South Franklin Street
Wilkes-Barre, PA 18711
      Counsel for Appellant

Kimberly A. Boyer-Cohen
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street, Suite 2300
Philadelphia, PA 19103
      Counsel for Appellees




                            2
                       ____________

                 OPINION OF THE COURT
                      ____________

HARDIMAN, Circuit Judge.

        Holly Judge resigned her position at the Shikellamy
School District after she was arrested on suspicion of drunk
driving. Judge sued Shikellamy and a number of its officers
(the Individual Defendants), claiming she was constructively
discharged in violation of her constitutional and contractual
rights. Because there is no genuine dispute that Judge resigned
voluntarily, we will affirm.

                              I1

       Judge had been principal of Oaklyn Elementary School
for about three years when, on the evening of May 30, 2014,
she was stopped by a Pennsylvania State Trooper for failing to
signal as she pulled into traffic. After acknowledging she had
been drinking, Judge became upset and asked the trooper to let
her go because she was concerned about her job. The trooper
declined and took Judge to the State Police barracks, where she
was given a blood alcohol test. The test showed that Judge’s
blood alcohol content was .332, more than four times the legal



       1
        The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1367. We have jurisdiction under 28 U.S.C.
§ 1291. We review the District Court’s summary judgment de
novo. Bradley v. W. Chester Univ. of Pa. State Sys. of Higher
Ed., 880 F.3d 643, 650 (3d Cir. 2018).




                              3
limit. Judge was released from the barracks that night without
being informed of the test results.

        A few weeks later, Judge had three encounters with
Shikellamy Superintendent Patrick Kelley. Having been
advised by two school board members that Judge had been the
subject of a traffic stop, Kelley walked into Judge’s office, shut
the door, and began asking her questions about the incident.
Later that day, around 3:00 p.m., Kelley summoned Judge to
his own office. As soon as Judge arrived, Kelley gave her a
letter to read. The letter stated three things: first, Kelley knew
that Judge had been stopped on suspicion of drunk driving;
second, Judge had not disclosed the events of May 30 until
confronted 20 days later; and third, Judge had a choice to make.
In Kelley’s words, the “underlying facts” required him to ask
for Judge’s “immediate resignation.” App. 120. The letter
continued:

              If you do choose to resign then I
              will offer a neutral reference in the
              future upon inquiry. . . . [I]n the
              alternative, if you decide not to
              resign and DUI charges are filed
              against you then I will be forced to
              issue a written statement of
              charges for dismissal. These
              charges will be based upon the
              following elements:




                                4
                 • Immorality - conduct which
                   offends the morals of the
                   Commonwealth and is a
                   bad example to the youth
                   whose ideals a professional
                   educator . . . has a duty to
                   foster and elevate. . . .

              This letter is delivered on . . . June
              19, 2014, and I await your answer
              on, or before, 12:30 [p.m.] on June
              20, 2014.

App. 120–21. 2 After reading the letter, Judge asked Kelley if
there was “anything [she] could do,” App. 201, but Kelley said
there was not. By the time Judge left Kelley’s office, it was
about 4:00 p.m. Judge went home and spoke with her mother
about the situation but did not contact a lawyer, even though
she had retained counsel after her arrest in anticipation of
possible criminal charges. Ultimately, Judge decided to resign
her position.

       The next day, Judge met with Kelley for a third time and
presented him with a letter of resignation. Before handing
Kelley the letter, Judge told him she “was not even charged
with DUI yet.” App. 202. Kelley then handed Judge some court
documents indicating that, in fact, she had been charged. That
was the first time Judge learned she had been charged with DUI
under 75 Pa. Cons. Stat. § 3802(a)(1) (general impairment) and


       2
          The letter also alleged two other grounds for
termination—“moral turpitude” and “intemperance”—which
the parties have not discussed on appeal.




                                5
§ 3802(c) (highest rate of alcohol), as well as a number of
related moving violations.

       Almost a year later, Judge sued Shikellamy and the
Individual Defendants in the United States District Court for
the Middle District of Pennsylvania. She asserted four
claims—deprivation of procedural due process, deprivation of
substantive due process, violation of equal protection, and
breach of contract—all arising out of the common allegation
that Shikellamy had constructively discharged her. The
Defendants filed a motion to dismiss, which the District Court
granted in part and denied in part. The District Court held that
the Individual Defendants were entitled to qualified immunity
and dismissed them from the case. As to Shikellamy, the Court
dismissed Judge’s substantive due process, equal protection,
and contract claims in full. And it dismissed her procedural due
process claim to the extent it alleged a deprivation of Judge’s
liberty interest in her reputation. The District Court granted
Judge leave to amend so she could supplement her contract and
procedural due process claims against Shikellamy. After Judge
filed an amended complaint, Shikellamy answered, the parties
conducted discovery on those two theories, and the District
Court granted summary judgment in favor of Shikellamy.
Judge filed a timely notice of appeal from both the Court’s
dismissal of the Individual Defendants and its summary
judgment for Shikellamy.

                               II

       The District Court recognized that neither Judge’s
procedural due process nor her breach of contract claim could
go to a jury unless there was a genuine dispute as to whether
she had been constructively discharged or had voluntarily
resigned. See Fed. R. Civ. P. 56(a); see Leheny v. City of




                               6
Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999). The Court held
that Judge had failed to demonstrate such a dispute and granted
summary judgment for Shikellamy on both claims. We agree.

       Our case law establishes a presumption that when
employees resign, they do so freely, so the onus is on Judge to
produce “evidence to establish that the resignation . . . was
involuntarily procured.” Leheny, 183 F.3d at 227. In cases like
this appeal, where Judge does not claim she was misled into
resigning, we ask whether Shikellamy “force[d] the
resignation . . . by coercion or duress.” Id. at 228. We apply an
objective standard—the ultimate issue is not what Judge
herself felt or believed, but whether a reasonable person under
the circumstances “would have felt compelled to resign.”
Colwell v. Rite Aid Corp., 602 F.3d 495, 502 (3d Cir. 2010)
(quoting Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 167
(3d Cir. 2001)). 3

       Before today, we have not explained how claims of
constructive discharge should be evaluated. Consequently, the
parties have focused their attention on a non-exhaustive list of
factors identified by the United States Court of Appeals for the



       3
         Unlike her due process claim, Judge’s contract claim
is governed by Pennsylvania rather than federal law. But the
difference here is immaterial because Pennsylvania appears to
apply essentially the same standard to distinguish between
voluntary resignations and constructive discharges. See Helpin
v. Trs. of Univ. of Pa., 969 A.2d 601, 614 & n.8 (Pa. Super. Ct.
2009) (framing the inquiry in terms of “whether a reasonable
person in the employee’s position would have felt compelled
to resign.”).




                               7
Eleventh Circuit, which we think provides a useful framework
for decision. As that court has explained:

              Other circuits addressing this issue
              have indicated that certain factors
              may be helpful in determining
              whether the resignation was
              obtained by coercion or duress:
              (1) whether the employee was
              given     some     alternative    to
              resignation;    (2) whether      the
              employee understood the nature of
              the choice [s]he was given;
              (3) whether the employee was
              given a reasonable time in which to
              choose; (4) whether the employee
              was permitted to select the
              effective date of the resignation;
              and (5) whether the employee had
              the advice of counsel.

Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir.
1995) (citing Angarita v. St. Louis Cty., 981 F.2d 1537, 1544
(8th Cir. 1992); Stone v. Univ. of Md. Med. Sys. Corp., 855
F.2d 167, 174, 177 (4th Cir. 1988); Schultz v. U.S. Navy, 810
F.2d 1133, 1136 (Fed. Cir. 1987); Scharf v. Dep’t of the Air
Force, 710 F.2d 1572, 1574 (Fed. Cir. 1983)); see also Leheny,
183 F.3d at 227–28 (favorably citing Hargray). The District
Court concluded that the balance of those factors was not
enough for a reasonable jury to find that Judge had overcome
the presumption that her resignation was voluntary. We
substantially agree with the District Court’s careful analysis.




                               8
       Initially, we note that Judge was presented with a
reasonable alternative to immediate resignation, having
Shikellamy issue a “written statement of charges for dismissal,”
after which the terms of her employment contract entitled her
to a hearing before she could actually be terminated. See App.
120, 150. Judge’s argument in response—that this was an
illusory alternative because Shikellamy lacked good cause to
seek her termination—fails. Pennsylvania law permits the
termination of tenured school employees for “immorality,” 24
Pa. Stat. Ann. § 11-1122, and the Commonwealth Court has
previously held that “certain circumstances . . . involving
drinking and driving may constitute conduct that is immoral”
under that provision, Zelno v. Lincoln Intermediate Unit No.
12 Bd. of Dirs., 786 A.2d 1022, 1026 n.7 (Pa. Commw. Ct.
2001). As the District Court observed, given that Judge was
charged with the category of DUI applicable to the highest
BAC levels, Shikellamy could reasonably have believed that
“there existed ‘certain circumstances’ making [her] DUI arrest
immoral” and a valid basis for termination. Judge v. Shikellamy
Sch. Dist., 2017 WL 1550042, at *14–15 (M.D. Pa. May 1,
2017). This was not a situation where, because “the reason for
the threatened removal could not be substantiated,” the choice
between resignation and the initiation of termination
proceedings was “purely coercive.” Schultz, 810 F.2d at 1136.

       Second, any reasonable school principal in Judge’s
position would have understood the nature of her choice
between resignation and charges followed by a pre-termination
hearing. Judge’s own employment contract, which she had to
sign each year she worked for the District, said Judge could be
terminated only after written notice and a hearing. Even
assuming Judge believed in good faith that her options were
between resignation and immediate termination, her subjective




                              9
state of mind is immaterial to the objective legal standard that
applies in this case.

       Third, although Judge had less than 24 hours to make a
decision after Kelley’s ultimatum, all of these events took
place almost three weeks after Judge was actually arrested. The
circumstances of that arrest put Judge on notice (as they would
have any reasonable person) that she was at serious risk of
being charged with a high-level DUI. And given the
disapprobation society attaches to driving under the influence
of alcohol, Judge’s arrest at least raised the possibility that she
might be terminated for “immorality” as a result. As the
District Court put it, the clear “possible effect of a DUI on the
night of her arrest” gave Judge “more than two weeks to
foresee the ‘gathering storm.’” Judge, 2017 WL 1550042, at
*16–17.

       The final two factors—the ability to set her own
resignation date and the advice of counsel—favor Judge to
some extent. But in light of the other factors we have discussed,
and considering the fact that Judge made no attempt to seek
advice from anyone but her mother over two weeks, we agree
with the District Court that the final two factors don’t suffice
to carry Judge’s burden. Judge’s decision was presumptively
voluntary, and no reasonable jury could find otherwise on this
record. That conclusion dooms her contract and procedural due
process theories.

                                III

       Judge’s remaining claims fare no better. She has
abandoned her equal protection and substantive due process
arguments on appeal by allotting them only one sentence
apiece in her opening brief. See Judge Br. 32–33; New Jersey




                                10
v. Merrill Lynch & Co., Inc., 640 F.3d 545, 547 n.3 (3d Cir.
2011). Moreover, with those claims having been abandoned
and summary judgment having been properly granted on the
others, we have no basis to conclude that Judge can establish a
substantive constitutional violation. We therefore have no
reason to disturb the District Court’s decision to dismiss the
Individual Defendants based on qualified immunity. See De
Ritis v. McGarrigle, 861 F.3d 444, 452 & n.3 (3d Cir. 2017).

                       *      *      *

       For the reasons stated, we will affirm the District
Court’s summary judgment in favor of the Shikellamy School
District and its order dismissing the Individual Defendants.




                              11
