Charles Morgan v. Michael Fiorentino, Jr.

• Court: Court of Appeals for the Third Circuit
• Decided: April 27, 2020
• Docket: 19-2623
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 19-2623 ________________

CHARLES MORGAN,

Appellant

v.

MICHAEL FIORENTINO, JR.; DEANA HILL; THE PENNSYLVANIA STATE SYSTEM OF HIGHER EDUCATION; LOCK HAVEN UNIVERSITY OF PENNSYLVANIA ________________

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 4-17-cv-01142) District Judge: Honorable John E. Jones, III ________________

Submitted Under Third Circuit L.A.R. 34.1(a) April 14, 2020

Before: AMBRO, JORDAN and SHWARTZ, Circuit Judges

(Opinion filed April 27, 2020) ________________

OPINION* ________________

AMBRO, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Appellant Charles Morgan appeals from the District Court’s grant of summary

judgment, on the basis of qualified immunity, to the Pennsylvania State System of Higher

Education (“PASSHE”), Lock Haven University (“LHU”), Michael Fiorentino, and

Deana Hill (collectively “Appellees”) on Morgan’s claims under 42 U.S.C. § 1983,

alleging violations of his substantive and procedural due process rights. He also appeals

the adverse judgment on his Title VII claim for failure to establish a prima facie case of

sex discrimination. In addition, he challenges the District Court’s failure to give

preclusive effect to the Pennsylvania Commonwealth Court’s decision in Pennsylvania

State System of Higher Education v. Ass’n of Pennsylvania State College & University

Faculties, 193 A.3d 486 (Pa. Commw. Ct. 2018) (hereinafter “PASSHE”). For the

reasons stated below, we affirm the decision of the District Court.1

I. Background

Morgan is a tenured professor of mathematics at LHU in Pennsylvania where he

has been employed since 2004. When he initially applied for a position as an assistant

professor at LHU in 2004, he was asked on his employment application whether he had

been convicted of any criminal offense within the past ten years. In 1990, Morgan, then

under twenty-one years old, pled guilty to one count of sexual assault and two counts of

sodomy resulting from acts taken with two minors. As this was a nearly fifteen-year-old

conviction at the time he was applying to LHU, he answered truthfully that he had not

been convicted of an offense within the past ten years.

1 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367(a). We have appellate jurisdiction under 28 U.S.C. § 1291. 2 The Pennsylvania General Assembly amended the Commonwealth’s Child

Protective Services Law (“Child Protective Law”), 23 Pa. Cons. Stat. §§ 6301 et seq., to

apply to prospective employees having direct contact with children. This change

required prospective employees to receive a background check and prohibited schools

from hiring applicants previously convicted of certain impermissible offenses such as

sexual assault and sexual abuse of children. § 6344(c). Had Morgan been a prospective

employee at the time, these changes would have barred LHU from hiring him, but as a

current employee the new ban did not apply to him. See id.

In response to these amendments, PASSHE issued the University Protection of

Minors Policy Handbook (“Minors Policy”) to develop a criminal background

investigation policy in the employment context. This policy applied to all current

university employees, and LHU adopted the policy. Thereafter, the Child Protective Law

was again amended to clarify that it did “not apply to an employee of an institution of

higher education whose direct contact with children, in the course of employment, is

limited to either: (A) prospective students visiting a campus operated by the institution of

higher education; or (B) matriculated students who are enrolled with the institution.” 23

Pa. Cons. Stat. § 6344(a.1)(2)(ii).

The Commonwealth Court subsequently enjoined PASSHE from requiring faculty

members to submit clearance “except with respect to PASSHE employees who teach

courses containing dual enrollees or who are involved with programs that require

employees to have direct contact with children.” PASSHE, 193 A.3d at 491. Further, “all

PASSHE employees teaching an introductory level course, often referred to as a ‘l00-

3 level course,’ must submit Section 6344 clearances.” Id. The Pennsylvania Supreme

Court affirmed. See PASSHE, 161 A.3d 193 (Pa. 2017).

Pursuant to the new Minors Policy, LHU required Morgan, as a professor scheduled

to teach an introductory-level mathematics course, to submit to a background check, and

he complied. It revealed his 1990 conviction. On receiving this information, LHU’s

President Michael Fiorentino informed Morgan on April 6, 2016, that LHU planned to

conduct a fact-finding investigation, that he had requested additional information from

the Commonwealth of Kentucky (where Morgan’s conviction had occurred) “so that the

University had a better understanding of the circumstances surrounding [his] prior

situation before taking any action,” and that Morgan was being placed on paid

administrative leave. App. 205. The records of his conviction were attached to the

notice.

Morgan attended the fact-finding meeting on April 15, 2016, with a representative

from the faculty union, where he explained to Associate Vice President of Human

Resources Deana Hill that he had not had any criminal issues since his 1990 guilty plea,

had consistently obeyed LHU’s policies, was a “safe member of the faculty,” and always

kept his office door open to avoid ever being “under suspicion.” App. 865. Then on May

9, 2016, Fiorentino held a pre-disciplinary conference attended by Hill, Morgan, and

Morgan’s union representative where they discussed Morgan’s past conviction.

Additionally, Fiorentino gave Morgan the opportunity to provide any additional

information to the investigative report. Morgan clarified that the version of the Child

Protective Law that was included in the investigative report had since been amended, and

4 reiterated that “[t]wenty-seven years [had] passed” since his arrest and subsequent

conviction, and he was “not the same person as [he] was then.” App. 195.

Two days later, Fiorentino sent Morgan a letter formally terminating his employment

at LHU “because of [his] criminal conviction of a reportable offense(s) as defined by the

[Child Protective Law].” App. 868. Fiorentino considered that Morgan’s regular

teaching duties included an introductory level course with non-matriculated students and

an annual academic program for high school students, as well as the “strong policy

statement from the General Assembly” in passing the Child Protective Law that would

have barred Morgan as a new hire. App. 869. Accordingly, he determined that “[t]he

nature of [the] convictions involving the sexual victimization of minors is so significant

that the passage of time does not weigh in favor of discounting the severity of these

convictions.” Id.

Morgan challenged his termination under his collective bargaining agreement before

an arbitrator, who concluded that Morgan’s termination was without just cause and

ordered reinstatement. PASSHE, 193 A.3d at 502–03. The Pennsylvania Commonwealth

Court affirmed the decision. Id.

Morgan brought suit against PASSHE, LHU, Fiorentino, and Hill in June 2017,

alleging, as relevant here, that Fiorentino and Hill deprived him of his substantive and

procedural due process rights, and that PASSHE and LHU discriminated against him

because of his sex in violation of Title VII. As to the civil rights claims, the District

Court granted summary judgment in favor of the Appellees, ruling that Hill and

Fiorentino were entitled to qualified immunity because it was not “clearly established”

5 that the termination procedure and eventual termination were unlawful. App. 21. As to

the Title VII violations, the District Court granted summary judgment to PASSHE and

LHU because Morgan failed to point to anything in the record establishing any causal

connection between his gender and his termination. It accordingly denied Morgan’s

cross-motion for summary judgment. This appeal followed.

II. Discussion2

A. Procedural Due Process

Fiorentino and Hill are entitled to qualified immunity on Morgan’s procedural due

process claim.

“The doctrine of qualified immunity shields officials from civil liability so long as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Mullenix v. Luna, 136 S. Ct. 305, 308

(2015) (citation and internal quotation marks omitted). To determine whether qualified

immunity applies, we ask “(1) whether the plaintiff sufficiently alleged the violation of a

constitutional right, and (2) whether the right was ‘clearly established’ at the time of the

official’s conduct.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 241 (3d Cir. 2016) (citation

omitted). For a right to be clearly established, “existing precedent must have placed the

statutory or constitutional question beyond debate,” Ashcroft v. al-Kidd, 563 U.S. 731,

2 We review a district court’s order granting or denying summary judgment de novo, using the same standard employed by the District Court. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). Construing all facts in the light most favorable to the non-moving party, summary judgment is proper only if the movant shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. at 276– 77 (quoting Fed. R. Civ. P. 56(c)). 6 741 (2011), such that “it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted,” Saucier v. Katz, 533 U.S. 194, 202 (2001). “If

the law did not put the officer on notice that his conduct would be clearly unlawful,

summary judgment on qualified immunity is appropriate.” Id.

We conduct a two-part inquiry for procedural due process claims, asking, “(1)

whether the plaintiff has a property interest protected by procedural due process, and (2)

what procedures constitute due process of law.” Schmidt v. Creedon, 639 F.3d 587, 595

(3d Cir. 2011) (citation and internal quotation marks omitted). It is undisputed that

Morgan had a property interest in his employment; thus we proceed directly to the second

prong of the inquiry. A “public employee with a property interest in his or her job is

entitled to a ‘pretermination opportunity to respond, coupled with post-termination

administrative procedures.’” Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d

74, 84 (3d Cir. 1989) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547–

48 (1985)). “In particular, a ‘tenured public employee is entitled to [pretermination

process consisting of] oral or written notice of the charges against him, an explanation of

the employer's evidence, and an opportunity to present his side of the story.” Id. (quoting

Loudermill, 470 U.S. at 546).

Regardless of whether Morgan’s right to procedural due process was violated, it

was not “clear” to a reasonable person in Fiorentino or Hill’s position that the

predeprivation process provided was constitutionally inadequate. After the background

check revealed his 1990 conviction, Fiorentino wrote to Morgan informing him that LHU

intended to conduct a fact-finding investigation “in response to information that has come

7 to our attention as a result of criminal background clearances” and that it had requested

“[a]dditional information” so that LHU “had a better understanding of the circumstances

surrounding [his] situation prior to taking any action.” App. 205. As additional notice

and explanation, Fiorentino attached copies of the records received as part of the

background check.

At the fact-finding conference, Morgan was given an opportunity to relay any

information that would be helpful to his disciplinary decision. Indeed, Morgan

participated in the conference, highlighted his exemplary record since his conviction, and

reiterated that he was a different person. Further, Fiorentino and Hill held a pre-

disciplinary conference to discuss the conviction, at which Morgan, accompanied by a

union representative, was once again given the opportunity to provide additional details.

He used that opportunity to advocate for himself and point out the amended Child

Protective Law was not included in the investigation documents, demonstrating his notice

of that law.

We have never required an employer to disclose every detail of its basis for a

termination decision prior to termination in order to satisfy due process. See, e.g.,

Copeland v. Phila. Police Dep’t, 840 F.2d 1139, 1145 (3d Cir. 1988) (holding that there

was no violation of procedural due process where police officer was suspended based on

a urinalysis without having been advised of the specific results “[g]iven [his] status as a

police officer, his having submitted to a prior urinalysis, his awareness of the reason for

the current test, and his being advised that he had tested positive”). Accordingly, this is

not a situation in which “it would be clear to a reasonable officer that his conduct was

8 unlawful in the situation he confronted,” Saucier, 533 U.S. at 202, and Fiorentino and

Hill are entitled to qualified immunity on the procedural due process claim.

B. Substantive Due Process

Morgan alleges that Fiorentino violated his substantive due process right when he

applied the Child Protective Law to terminate him even though Fiorentino knew that it

did not apply to existing employees.

“To prevail on a non-legislative substantive due process claim, ‘a plaintiff must

establish as a threshold matter that he has a protected property interest to which the

Fourteenth Amendment’s due process protection applies.’” Nicholas v. Pa. State Univ.,

227 F.3d 133, 139–40 (3d Cir. 2000) (citation omitted). This inquiry “is not determined

by reference to state law, but rather depends on whether that interest is ‘fundamental’

under the United States Constitution.” Id. at 140. In that context, a property interest in a

tenured professorship is not entitled to substantive due process protection. Id. at 138.

Thus Morgan fails as a threshold matter to establish that he has a substantive due

process right in public employment, regardless of whether Fiorentino knew the Child

Protective Law did not apply to Morgan at the time of termination or whether Fiorentino

terminated Morgan because of the law. Accordingly, Appellees were entitled to

summary judgment on this claim.

C. Title VII Claims

9 Morgan also contends that questions of fact remain as to his Title VII gender

discrimination claim; thus summary judgment in favor of the Appellees is inappropriate.

A prima facie case of gender-based employment discrimination requires a plaintiff to

show: 1) membership in a protected class; 2) qualification for the position; 3) an adverse

employment action taken against him despite being qualified; and (4) “the action

occurred under circumstances that could give rise to an inference of intentional

discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). In essence, the

plaintiff must establish “some causal nexus” between membership in the protected class

and the termination decision. Id. at 798. Impermissible stereotyping may support this

inference. See Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003).

The gist of Morgan’s claim is that Fiorentino terminated him based on the

impermissible stereotype that males are more likely to perpetrate sexual abuse. But

Morgan has failed to point to anything in the record that would demonstrate that his

termination was because of his being a male or based on stereotypes associated with

males. Indeed, that Fiorentino “thought of” the Jerry Sandusky case involving Penn State

University—because it was “very prevalent [and had] received a great deal of press and

had an impact on the well-being of the University,” App. 94–95—is insufficient to show

impermissible stereotyping, let alone indicate an inference of gender discrimination. The

same is true for Fiorentino’s statement in Morgan’s termination letter that “[t]he nature of

[his] convictions . . . is so significant that the passage of time does not weigh in favor of

discounting [their] severity.” App. 869. Accordingly, we affirm on this claim as well.

D. Full Faith and Credit

10 Finally, Morgan contends that the District Court erred in declining to give

preclusive effect (and thereby accord full faith and credit) to the Commonwealth Court’s

ruling in PASSHE, 193 A.3d 486, on his substantive due process claim.

Under collateral estoppel and preclusion principles, “once a court decides an issue

of fact or law necessary to its judgment, that decision precludes relitigation of the same

issue on a different cause of action between the same parties.” Walker v. Horn, 385 F.3d

321, 336 (3d Cir. 2004) (citation omitted). “[A] federal court must give to a state-court

judgment the same preclusive effect as would be given that judgment under the law of the

State in which the judgment was rendered.” Id. at 237 (citation omitted).

Collateral estoppel applies per Pennsylvania law where: “(1) the issue decided in

the prior adjudication was identical with the one presented in the later action; (2) there

was a final judgment on the merits; (3) the party against whom the plea is asserted was a

party or in privity with a party to the prior adjudication; and (4) the party against whom it

is asserted has had a full and fair opportunity to litigate the issue in question in a prior

action.” Id.

We easily determine that the first requirement is not met here. In PASSHE, the

Commonwealth Court upheld an arbitrator’s award finding that “PASSHE lacked just

cause for the termination, holding that the preponderance of evidence showed that

[Morgan’s] youthful criminal acts had not followed him into middle age.” 193 A.3d at

494. It had no occasion itself to rule that Morgan’s substantive due process rights were

violated by his termination. In any event, the District Court aptly noted, even if it were to

give preclusive effect to those findings, they would not be dispositive because the Court

11 was considering not whether there was a constitutional violation, but rather whether a

reasonable official would have understood that what he was doing violated constitutional

rights. And here we hold on de novo review that Morgan did not have any substantive

due process right in his employment under federal law, so any state court findings as to

the constitutionality of blanket employment bans are irrelevant to our disposition.3

* * * * *

We affirm the decision of the District Court.

3 Morgan’s argument that the District Court violated the Constitution’s Contract Clause by failing to give full faith and credit to the arbitration award also comes up short. To determine whether legislation violates the Contract Clause, we apply a three-part analysis, one part of which asks “whether the law has operated as a substantial impairment of a contractual relationship.” United Steel Paper & Forestry Rubber Mfg. Allied Indus. & Serv. Workers Int’l Union v. Virgin Islands, 842 F.3d 201, 210 (3d Cir. 2016). Morgan does not allege that any legislation impaired his contractual relationship. Rather, he argues that the District Court “de facto” applied the Child Protective Law, which impaired his collective bargaining agreement with LHU. The Court did not “de facto” apply the Child Protective Law. However, even if it had reasoned that the Child Protective Law applied, its decision granting qualified immunity to Appellees on Morgan’s constitutional claims did not impair his relationship with LHU under his collective bargaining agreement. Thus, Morgan’s Contract Clause claim fails. 12