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Matthew M. Hoffman


Co-chair, Municipal & School Group

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School District Subject to Suit for False Answers on an Act 168 (“Pass the Trash”) Form

Matthew M. Hoffman, Esq., (412) 594-3910,

Dale McClendon v. The School District of Philadelphia, 2023 WL 4237080 (E.D. Pa 2023). (Federal court held that a school district was subject to due process and breach of contract claims for the manner in which it completed a former employee’s Act 168 form).


Dale McClendon was employed as a special education assistant teacher by the School District of Philadelphia. In the fall of 2013, McClendon was assigned to care for a specific special needs student at his school, who was part of the class taught by Linda Fitzpatrick. Fitzpatrick previously taught this student during the 2012-2013 school year, during which the student broke two of Fitzpatrick’s fingers. Because of the student’s behavioral issues and Fitzpatrick’s frustration with teaching the student for two years in a row, Fitzpatrick frequently asked McClendon to take the student out of her classroom to work with the student one-on-one. After McClendon was injured by this student during the fall of 2013, however, McClendon told Fitzpatrick that the student would need to spend more time in Fitzpatrick’s classroom. Fitzpatrick allegedly reacted angrily to McClendon’s telling her that the student would need to be in her classroom more frequently.

Shortly after this conversation, Fitzpatrick notified the District that she witnessed McClendon inappropriately lying on the floor with the student and physically striking the student. According to McClendon, these allegations were entirely false and were created so that Fitzpatrick could avoid interacting with the special needs student and so that the student would be removed from her school. After Fitzpatrick reported these allegations, McClendon was arrested and charged with simple assault, harassment, and endangerment of the welfare of a child. At the preliminary hearing in the criminal case against McClendon, Fitzpatrick testified regarding the alleged abuse that she witnessed. But at the conclusion of the hearing, the presiding judge repudiated Fitzpatrick’s allegations and credibility, resulting in McClendon being acquitted of the charges.

After the conclusion of the criminal action and the dismissal of all charges, McClendon filed a defamation action against Fitzpatrick and the District for advancing false allegations of abuse against him. The parties ultimately agreed to settle McClendon’s civil action, along with a related grievance filed by his union on his behalf. Among the terms of the settlement, the District agreed to reinstate McClendon or – should he fail to return to work – provide McClendon with a neutral employment reference. The parties also jointly agreed to a non-disparagement clause. McClendon ultimately resigned from his employment with the District.

Since separating from the District, McClendon struggled to find employment opportunities, repeatedly interviewing for positions but never hearing back from potential employers. McClendon eventually secured a position with a charter school.

Act 168 Form Questions

As part of the application process for this position, the school required McClendon to complete an Act 168 form and requested his prior employers to complete that form. The Act 168 Form requires the applicant and the former employer School District to answer “Yes” or “No” in response to the following questions:

Have you (Applicant) ever / To the best of your knowledge, has Applicant ever:

Been the subject of an abuse or sexual misconduct investigation by an employer, state licensing agency, law enforcement agency, or child protective services agency (unless the investigation resulted in a finding that the allegations were false)?

Been disciplined, discharged, non-renewed, asked to resign from employment, resigned from, or otherwise separated from employment while allegations of abuse or sexual misconduct were pending or under investigation or due to adjudication or findings of abuse or sexual misconduct?

Had a license, professional license, or certificate suspended, surrendered, or revoked while allegations of abuse or sexual misconduct were pending or under investigation or due to an adjudication or findings of abuse or sexual misconduct?

McClendon answered each question “No,” but the District answered “Yes” to the first two questions. McClendon was then terminated from his employment with the charter school for allegedly providing false information.

McClendon subsequently filed suit in federal court against the District claiming a violation of due process rights and breach of his settlement agreement. The court rejected the District’s motion to dismiss the complaint, concluding that McClendon stated viable claims.


The court concluded that the circumstances alleged by the complaint were sufficient to state a due process claim for deprivation of McClendon’s reputational interests. The court explained that the first question on the form asked the District whether McClendon had ever “[b]een the subject of an abuse or sexual misconduct investigation by any employer, state licensing agency, law enforcement agency, or child protective services agency” – but this question explicitly excluded any investigation which “resulted in a finding that the allegations were false.” Despite McClendon having been acquitted of the charges following a finding that the accuser, Fitzpatrick, was not credible, the District nonetheless responded affirmatively to this question, thus implying that McClendon was guilty or likely guilty of abusing a student. That the District was willing to reinstate McClendon or provide him with a neutral reference should he seek employment elsewhere was consistent with his argument that the District considered the allegations to be false.

The court also concluded that the actions of the District, as alleged, could support a claim for breach of the non-disparagement clause of the parties’ settlement agreement. The court rejected the District’s argument that McClendon’s claim was barred by the provision of Act 168 providing immunity to school districts for responding to the questionnaire since the statute excludes immunity for providing information known to be false.


The McClendon decision illustrates the importance to school administrators of carefully considering the questions asked of former school employers by the Act 168 form. While the statute generally immunizes school officials from responding to the inquiries, that immunity does not extend to providing information that is untrue. Here, that the former employee was investigated for abuse or sexual misconduct did not warrant an affirmative response where the investigation determined the allegations of abuse or sexual misconduct to be unfounded or false.

The decision also demonstrates that standard provisions in separation agreements may not always be appropriate, particularly in instances where an employee resigns in the context of allegations or investigations of abuse or sexual misconduct. While a non-disparagement clause is common to separation agreements, school districts should consider the need to qualify any such covenant by reserving the right to provide information as necessary to comply with Act 168, to comply with other applicable law, or to defend claims against the school district.

For more information, contact Matt Hoffman at (412) 594-3910 or at

November 08, 2023

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