Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit
12-4-2008
Dee v. Borough of Dunmore Precedential or Non-Precedential: Precedential
Docket No. 07-1720
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
________
No. 07-1720 _________
ROBERT K. DEE, JR., Appellant
v.
BOROUGH OF DUNMORE; BOROUGH OF DUNMORE COUNCIL; JOSEPH LOFTUS; THOMAS HENNIGAN; JOSEPH TALUTTO; FRANK PADULA; LEONARD VERRASTRO; MICHAEL CUMMINGS; all individually and in their capacity as Councilmen _________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 05-cv-01342) District Judge: Honorable A. Richard Caputo __________ Argued March 25, 2008 Before: McKEE, RENDELL, and TASHIMA*, Circuit Judges
(Filed: December 4, 2008)
Cynthia L. Pollick, Esq. [ARGUED] The Employment Law Firm 363 Lauren Street Pittston, PA 18640 Counsel for Appellant Robert K. Dee, Jr.
Karoline Mehalchick, Esq. [ARGUED] Olvier, Price & Rhodes 1212 South Abington Road P. O. Box 240 Clarks Summit, Pa 18411 Counsel for Appellee Borough of Dunmore; Borough of Dunmore Council; Joseph Loftus; Thomas Hennigan; Joseph Talutto; Frank Padula; Leonard Verrastro; Michael Cummings; all individually and as Councilmen
__________________
* Honorable A. Wallace Tashima, Senior Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
2 __________
OPINION OF THE COURT __________
RENDELL, Circuit Judge.
Appellant Robert Dee, Jr. appeals from the final order of
the United States District Court for the Middle District of
Pennsylvania granting summary judgment in favor of Appellees
the Borough of Dunmore, the Borough of Dunmore Council,
and various Borough officials: Joseph Loftus, Thomas
Hennigan, Joseph Talutto, Frank Padula, and Leonard Verrastro
(collectively “the Borough”). In June of 2005, after
approximately eighteen years of service with the Borough of
Dunmore Fire Department, Dee was suspended without notice
by the Borough Council based on its determination that he had
failed to complete two training requirements. Days later, news
3 of Dee’s suspension was published in the Borough’s local paper.
Eight days after the suspension was initially announced, the
Borough Council held a post-suspension hearing, at which it
concluded that Dee was in fact in compliance with all applicable
training requirements.
Dee brought suit under 42 U.S.C. § 1983, alleging
violations of his First, Fifth, and Fourteenth Amendment rights
as a result of the Borough’s conduct;1 he also included several
causes of action under state law. On appeal, Dee challenges the
District Court’s conclusion that his allegations were insufficient
to state a § 1983 claim against the Borough for violating his
1 As recognized by the District Court, Dee’s Complaint actually cited the First, Fourth, and Fourteenth Amendments. Because the Complaint contains no allegations involving unlawful searches and seizures, we will assume, as did the District Court, that the mention of the Fourth Amendment was in error and that Dee’s intention was to cite the Fifth Amendment. We note that neither party disputed the District Court’s assumption on appeal.
4 right to procedural due process as guaranteed by the Fourteenth
Amendment. Specifically, Dee argues that the District Court
erred in determining that the property and liberty interests
alleged in his Complaint did not warrant constitutional
protection.
We have jurisdiction to hear this appeal pursuant to
28 U.S.C. § 1291. For the reasons stated below, we will vacate
the District Court’s entry of judgment and remand for further
proceedings consistent with this opinion.
B ACKGROUND
At all times relevant to his Complaint, Dee was employed
as a full-time firefighter by the Borough of Dunmore Fire
Department. After serving as a volunteer firefighter for
approximately three years, Dee was eventually hired full time
and, over a span of fifteen years, was promoted through the
5 ranks of the Department, from Lieutenant to Captain to
Assistant Fire Chief. As a full-time firefighter, Dee’s
employment with the Borough was not “at will”; rather it was
governed by the terms of the Collective Bargaining Agreement
(“CBA”) between the Borough and Local Union No. 860 of the
International Association of Fire Fighters, AFL-CIO, of which
Dee was a member.
On May 20, 2005, Joseph Loftus, the Borough Manager,
requested from Frank Arnone, the Borough Fire Chief, a list of
the necessary qualifications and certifications for full-time work
in the Fire Department according to the CBA, along with
documentation that each full-time firefighter had met these
qualification. On May 23, 2005, Arnone sent Loftus a memo
with the requested list and notified Loftus that all certification
information was kept in the Department’s personnel file. Three
days later, on May 26, Loftus inquired of Arnone as to whether
6 all of the firefighters had completed the identified requirements
and then went back to Arnone once again, seeking some
additional information. After reviewing the materials he
received from Arnone, Loftus determined that Dee had failed to
complete two weeks of required training at the Pennsylvania
State Fire Academy and did not have the required EMT
Certification. Without contacting Dee, and without conducting
any further investigation, Loftus conveyed this information to
the Borough Council.
On June 27, 2005, relying only on the information
provided by Loftus, the Borough Council voted to suspend Dee
with pay pending a hearing to be held eight days later. Dee was
not present at the Council’s vote, nor was he even aware that his
personnel file was under review. Once the decision to suspend
Dee had been made, Loftus sent a letter to Arnone on June 28th,
informing him of the suspension and of the scheduled hearing.
7 Arnone in turn informed Dee, who learned then for the first time
of the charges against him. Dee was immediately removed from
the schedule and prohibited from returning to work unless and
until his suspension was lifted.
On June 30, 2005, after receiving a copy of Loftus’s
June 28th letter to Arnone, The Times-Tribune published a story
entitled “Firefighters suspended for not completing required
training.” 2 (App. 164.) The article named Dee and Captain
Edward Smith as the firefighters with incomplete training
records. It also included, inter alia, a quote from Councilman
Paul Nardozzo, who stated that he voted against the suspensions
because he “d[id]n’t think this was looked at and researched
2 The parties dispute how the The Times-Tribune came into possession of the June 28th letter. Dee holds the Borough accountable for the release of the confidential personnel document, while the Borough states only that it came from “an unidentified and unknown” source. (Appellee’s Br. 9.)
8 enough.” (App. 164.) Five days after the article was published,
on July 5, 2005, Dee filed this lawsuit.
On July 6, 2005, the Borough Council met. Dee attended
the meeting, together with union counsel, who presented
evidence as to the true facts. The Council then determined that
Dee had in fact completed all required training, and that, under
the terms of the CBA, he was not required to have the EMT
certification for which he had been suspended, because the
requirement only applied to those hired after a certain date.
After the meeting, Dee was notified by Fire Chief Arnone that
he would be permitted to return to work. On July 7, 2005, The
Times-Tribune ran a story entitled “Dunmore firefighters
reinstated.” (App. 165.)
After a period of discovery in the District Court, the
Borough moved for summary judgment, and the District Court
granted the Borough’s motion. The Court concluded, without
9 analysis, that Dee did not have a property interest cognizable
under the Fourteenth Amendment, and found, after considering
the elements of a liberty interest claim, that his asserted interest
did not warrant constitutional protection. Having dismissed
Dee’s federal causes of action, the District Court declined to
exercise supplemental jurisdiction over the state law claims.
Dee filed a timely notice of appeal.
On appeal, Dee contends that he was denied procedural
due process that should have been afforded by virtue of his
asserted property and liberty interests, and that, accordingly, he
was entitled to survive summary judgment.
S TANDARD OF R EVIEW
We exercise plenary review over a grant of summary
judgment, viewing the facts in a light most favorable to the
nonmoving party, and applying the same standard that guides
10 our district courts. Erie Telecomms. Inc. v. City of Erie, 853
F.2d 1084, 1093 (3d Cir. 1988). Under that standard, a party is
entitled to summary judgment only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
D ISCUSSION
Originally enacted as part of the Civil Rights Act of 1871, 42
U.S.C. § 1983 provides a private right of action against anyone
who, acting under the color of state law, deprives another of “any
rights, privileges, or immunities secured by the Constitution and
laws” of the United States. 42 U.S.C. § 1983; see also Nextel
Partners Inc. v. Kingston Twp., 286 F.3d 687, 693-94 (3d Cir.
2002). In this case, the right upon which Dee bases his § 1983
11 claim is his Fourteenth Amendment right to procedural due
process.3
In order to determine whether the Borough’s actions, as outlined
above, deprived Dee of due process, “we must first ask whether the
asserted individual interests are encompassed within the fourteenth
amendment’s protection of ‘life, liberty, or property.’” Robb v. City
of Phila., 733 F.2d 286, 292 (3d Cir. 1984); see also Board of
Regents v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of
procedural due process apply only to the deprivation of interests
encompassed by the Fourteenth Amendment’s protection of liberty
and property.”); Stana v. Sch. Dist. of Pittsburgh, 775 F.2d 122, 125
(3d Cir. 1985) (“The predicate for requiring a government entity to
3 Dee’s Complaint also included a § 1983 claim based on an alleged violation of his First Amendment right “to be free from injury to his reputation.” (App. 8.) Dee does not challenge the dismissal of this aspect of his Complaint on appeal. There is also no dispute regarding the status of Appellants as state actors.
12 comply with the rudiments of procedural due process is a
determination that some constitutional interest is at stake.”). “If
protected interests are implicated, we then must decide what
procedures constitute ‘due process of law.’” Robb, 733 F.2d at 292.
As recognized above, Dee argues that he was deprived of a
constitutionally protected property interest and a constitutionally
protected liberty interest without due process as a result of the
Borough’s actions. We will address each of Dee’s asserted interests
in turn.
I. Property Interest
Dee defines his asserted property interest as the interest “in not
being suspended without just cause.” (Appellant’s Br. 12.) To
determine whether such an interest exists, we will first look to state
law. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972)
(“Property interests are not created by the Constitution. Rather they
13 are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law.”); see also Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077
(3d Cir. 1997) (“State law creates the property rights protected by
the Fourteenth Amendment.”); Brown v. Trench, 787 F.2d 167, 170
(3d Cir. 1986) (“State law determines whether . . . a property
interest exists.”).
A review of the civil service provisions of the Pennsylvania
Borough Code reveals that, indeed, a borough fireman such as Dee
may only be suspended for cause. 53 Pa. Stat. § 46190 specifically
states that “[n]o person employed in any . . . fire force of any
borough shall be suspended, removed or reduced in rank” except for
one of six enumerated reasons.4 As there is no dispute that Dee is
4 Those reasons are:
(1) Physical or mental disability affecting his (continued...)
14 and was at all times relevant to his Complaint a “person employed
in [a] fire force of [a] borough,” there can be no dispute that 53 Pa.
Stat. § 46190 creates for him a property interest triggering the
protections of the Fourteenth Amendment. As the Supreme Court
recognized in Logan v. Zimmerman Brush Co., 455 U.S. 422, 430
(1982), “[t]he hallmark of property . . . is an individual entitlement
4 (...continued) ability to continue in service, in which cases the person shall receive an honorable discharge from service. (2) Neglect or violation of any official duty. (3) Violation of any law which provided that such violation constitutes a misdemeanor or felony. (4) Inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming an officer. (5) Intoxication while on duty. (6) Engaging or participating in conducting of any political or election campaign otherwise than to exercise his own right of suffrage.
53 Pa. Stat. § 46190.
15 grounded in state law, which cannot be removed except ‘for
cause.’” That is precisely what we have here.
The fact that we are dealing with a suspension and not a
termination is of no moment at this point in our analysis.5 It is the
Pennsylvania statute that defines the property interest, and the
statute explicitly states that it applies to those “suspended, removed
or reduced in rank.” 53 Pa. Stat. § 46190.6 Given the unambiguous
language of 53 Pa. Stat. § 46190, which was before the District
5 While an employee’s interest in retaining his job may—but need not necessarily—be found to weigh more heavily than his interest in avoiding suspension in the context of a Mathews v. Eldridge balancing analysis (discussed below), the relative weights of the interests make them no more nor less “entitlements” worthy of basic Fourteenth Amendment protections. 6 As we noted in a similar context in Gniotek v. City of Phila., 808 F.2d 241, 243 n.5 (3d Cir. 1986), “under Pennsylvania law, suspensions, like dismissals are only proper when for just cause; therefore, appellants had a separate property interest in not being suspended.”
16 Court during the summary judgment proceedings (see App. 181,
209-10), this is not a close call.7 Dee has clearly demonstrated an
entitlement to Fourteenth Amendment protection.
Even without 53 Pa. Stat. § 46190, however, Dee had a
constitutionally protected property interest based on the terms of the
CBA. “Today it is beyond dispute that a contract with a state entity
can give rise to a property right protected by the Fourteenth
Amendment.” Unger v. Nat’l Residents Matching Program, 928
F.2d 1392, 1397 (3d Cir. 1991); see also Stana v. Sch. Dist. of City
of Pittsburgh, 775 F.2d 122, 126 (3d Cir. 1985) (acknowledging
that, while “[p]roperty interests are often expressly created by state
statutes or regulations, [they] can also arise from . . . ‘mutually
explicit understandings’ between a government employer and
7 In fact, at oral argument, counsel for the Borough admitted as much, acknowledging that a state statute prohibiting the suspension of a fireman without just cause would create a constitutionally protected property interest in the same.
17 employee” (quoting Perry v. Sindermann, 408 U.S. 593, 601-02
(1972))). And even though “the Supreme Court has never held that
every state contract gives rise to a property interest protected under
the Fourteenth Amendment,” Unger, 928 F.2d at 1397 (emphasis
added), we have recognized that “employment contracts that contain
a ‘just cause’ provision create a property interest in continued
employment.” Wilson v. MVM, Inc., 475 F.3d 166, 177 (3d Cir.
2007) (internal citation omitted); see also Unger, 928 F.2d at 1399
(recognizing that a property interest protected under the Fourteenth
Amendment arises “where the contract itself includes a provision
that the state entity can terminate the contract only for cause”).
Here, the CBA that governed Dee’s employment with the Borough
contained such a provision. Article XIV, section B of the CBA,
explicitly states: “It is agreed that the Borough Council has the
18 right to discipline and/or discharge Employees for ‘just cause.’” 8
(App. 122.) The Borough does not dispute that Dee was an
“Employee” under terms of the CBA, nor does it argue on appeal
that Dee’s suspension did not qualify as a form of “discipline and/or
discharge.” Thus, again, we reach our conclusion with relative
ease. Dee’s employment contract with the Borough created a
constitutionally protected property interest in not being suspended
without just cause. He was therefore entitled to due process before
this interest was abridged.9
8 The CBA also provided, at Article I, section B, that the Fire Chief and Mayor have the right “to classify, promote, suspend, discipline or discharge [Employees] with just cause.” (App. 93.) 9 Dee’s situation is distinguishable from that described in Miller v. Clinton County, No. 07-2105, 2008 WL 4415102 (3d Cir. Oct 1, 2008). In Miller, a former employee of the Clinton County probation office sought to establish a property interest in her continued employment. We held that because the plaintiff was an at-will employee, she did not have such a property interest, citing Elmore v. Cleary, 399 F.3d 279 (3d Cir. (continued...)
19 As we did above, we reject any argument that Dee lacks a property
interest because suspension appears to be a less drastic form of
discipline than termination. We find no legal basis for such an
argument, and the Borough provides us with none. In the state
employment context, an employee’s property interests are “created
and defined by the terms of his appointment,” Roth, 408 U.S. at
578, and, in this case, the terms of the CBA secure for Dee an
9 (...continued) 2005) for the proposition that Pennsylvania law precludes local governments from employing workers as anything except at-will employees unless explicit enabling legislation to the contrary is passed by the Pennsylvania General Assembly. 2008 WL 4415102, at *7. In Miller, there was no such enabling legislation. Here, however, Dee is covered by the Collective Bargaining for Policemen and Firemen Act (Act 111), 43 Pa. Stat. § 217.1-10, which gives police officers and firefighters the right to collectively bargain with their public employers as to the terms and conditions of their employment. The CBA at issue here makes it clear that Dee and other Borough firefighters are not at-will employees, like the plaintiff in Miller. “It is agreed that the Borough Council has the right to discipline and/or discharge Employees for ‘just cause.’” (App. 122.)
20 interest in not being “discipline[d] and/or discharge[d]” without just
cause (App. 122). As the Borough has affirmatively chosen to grant
Dee this entitlement, it is not for this Court to say that it is unworthy
of constitutional protection.10
In light of the above analysis, we hold that 53 Pa. Stat. § 46190 and
Article XIV, section B of the CBA, together and standing alone,
created for Dee a constitutionally protected property interest in not
being suspended without just cause. We will reverse the District
Court’s holding to the contrary.
10 Similarly, we also eschew any notion that Dee lacks a constitutionally protected property interest because he was suspended with pay as opposed to without. Neither the language of 53 Pa. Stat. § 46190, nor the terms of the CBA, distinguish between the various forms that suspensions and/or discipline may take, and we find no legal authority that would permit us to create a distinction in this context.
As we stated above, however, the fact that Dee was suspended with pay may—but need not necessarily—be found to affect the Mathews v. Eldridge balancing analysis. See supra note 5.
21 Having determined that Dee did in fact have a property interest
protected by the Fourteenth Amendment, we must next determine
the level of process he was constitutionally due. See Cleveland Bd.
of Ed. v. Loudermill, 470 U.S. 532, 541 (1985) (“[O]nce it is
determined that the Due Process Clause applies, ‘the question
remains what process is due.’” (quoting Morrissey v. Brewer, 408
U.S. 471, 481 (1972))); see also Robb, 733 F.2d at 292 (“If
procedures constitute ‘due process of law.’”).
In Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme
Court held that “identification of the specific dictates of due process
generally requires the consideration of three distinct factors.”
Those factors are:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the
22 fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id.
In this case, it is undisputed that the Borough provided Dee with
neither notice nor a hearing prior to being suspended. Certainly,
when an individual is not provided with any form of pre-deprivation
process, as in this case, the risk of an erroneous deprivation of his
constitutionally protected interest—i.e., the second factor of the
Mathews balancing—is heightened considerably. As the Supreme
Court has made clear, “[w]hen protected interests are implicated,
the right to some kind of prior hearing is paramount.” Roth, 408
U.S. at 569-70; see also id. at 570 n.7 (“While (m)any controversies
have raged . . . about the Due Process Clause, . . . it is fundamental
that except in emergency situations . . . due process requires that
when a State seeks to terminate (a protected) interest . . . , it must
afford notice and opportunity for hearing appropriate to the nature
23 of the case before the termination becomes effective.” (internal
quotation marks omitted; third ellipsis added)); Loudermill, 470
U.S. at 542 (“An essential principle of due process is that a
deprivation of life, liberty, or property ‘be preceded by notice and
opportunity for hearing appropriate to the nature of the case.’”
(quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 313 (1950)); id. (“We have described ‘the root requirement’ of
the Due Process Clause as being ‘that an individual be given an
opportunity for a hearing before he is deprived of any significant
property interest.’” (quoting Boddie v. Connecticut, 401 U.S. 371,
379 (1971)) (emphasis in original)); cf. id. at 546 (“The opportunity
to present reasons, either in person or in writing, why proposed
action should not be taken is a fundamental due process
requirement.”). Only in “‘extraordinary situations where some valid
government interest is at stake’” is it permissible to postpone the
hearing until after the deprivation has already occurred. Roth, 408
24 U.S. at 570 n.7 (quoting Boddie, 401 U.S. at 379); see also
Loudermill, 470 U.S. at 542 n.7; Gilbert v. Homar, 520 U.S. 924,
930-31 (1997).
Here, the Borough argues that this was one of those extraordinary
situations. According to the Borough, Dee was not provided with
a pre-deprivation hearing because “Dunmore feared the potential
harm of having a firefighter working for the Borough without
proper certification.” (Appellees’ Br. at 17.) The Borough contends
that its interest in protecting the safety of its citizens far outweighs
Dee’s interest in avoiding suspension with pay and no loss in
benefits or seniority.
Dee responds that the Borough failed to provide him with a pre-
deprivation hearing, not because it feared for the public safety, but
because the Council feared for its own public image. In support of
this contention, Dee cites the deposition testimony of Defendant
Joseph Talutto, one of the Borough’s council members, who
25 indicated that the Council acted with such immediacy, at least in
part, because the members “d[id]n’t want to get blasted in the
press.” (Appellant’s Br. 5 (citing App. 403).) Dee also challenges
the credibility of any suggestion that he could have possibly been
considered a threat to public safety, pointing out that, as of the time
of his suspension, he had served honorably with the Dunmore Fire
Department for approximately eighteen years and had been
promoted by Dunmore to the rank of Assistant Fire Chief.
According to Dee, the Borough’s “illusory” interest in the safety of
the community (Appellant’s Br. 20) cannot outweigh his
constitutionally protected property interest in not being suspended
without just cause.
The District Court did not reach this issue, nor did it really address
the sufficiency of Dee’s property interest claim in any detail.
Although “a district court’s failure to consider an issue below does
not necessarily preclude us from addressing it on appeal,” Norfolk
26 Southern Ry. Co. v. Basell USA Inc., 512 F.3d 86, 97 (3d Cir. 2008),
“where the resolution of an issue requires the exercise of discretion
or fact finding . . ., it is inappropriate and unwise for an appellate
court to step in,” Hudson United Bank v. LiTenda Mortgage Corp.,
142 F.3d 151, 159 (3d Cir. 1998). The parties’ arguments, as
summarized above, indicate that, at the very least, there exist issues
of disputed fact regarding the Borough’s justification for
suspending Dee without first affording him notice and a hearing.
This will greatly impact the analysis of the factors to be examined
under Mathews v. Eldridge. Accordingly, we will remand to the
District Court for further proceedings.
27 II. Liberty Interest
We turn next to the question of whether Dee has asserted a
constitutionally cognizable liberty interest. Dee bases this aspect of
his § 1983 claim on the damage to his reputation from the June 30,
2005, newspaper article, coupled with his suspension without just
cause.
By now it is clear that “reputation alone is not an interest protected
by the Due Process Clause.” Clark v. Twp. of Falls, 890 F.2d 611,
619 (3d Cir. 1993) (citing Paul v. Davis, 424 U.S. 693, 701-12
(1976)) (emphasis added). “Rather, to make out a due process
claim for deprivation of a liberty interest in reputation, a plaintiff
must show a stigma to his reputation plus deprivation of some
additional right or interest.” Hill v. Borough of Kutztown, 455 F.3d
225, 236 (3d Cir. 2006) (emphasis in original); see also Clark, 890
F.2d at 619 (“[D]efamation is actionable under 42 U.S.C. § 1983
only if it occurs in the course of or is accompanied by a change or
28 extinguishment of a right or status guaranteed by state law or the
Constitution.”); Strum v. Clark, 835 F.2d 1009, 1012 (3d Cir. 1987)
(“[M]ere damage to reputation, apart from the impairment of some
additional interest previously recognized under state law, is not
cognizable under the due process clause.”). This has been referred
to as the “stigma-plus” test. See e.g., Hill, 455 F.3d at 236.
In this case, without addressing the “stigma” prong of the analysis,
the District Court concluded that Dee had not stated a sufficient
“plus,” as his suspension fell short of termination. In support of this
conclusion, the District Court reasoned:
The Third Circuit Court of Appeals has, in several cases, held that the deprivation a plaintiff suffered along with stigma to his reputation was not sufficiently weighty to satisfy the “plus” requirement, because the plaintiff in each case did not lose his job, and instead complained about some adverse employment action less drastic than discharge.
29 (App. 7 (citing Edwards v. Cal. Univ. of Pa., 156 F.3d 488 (3d Cir.
1998); Kelly v. Borough of Sayreville, 107 F.3d 1073 (3d Cir.
1997); Clark, 890 F.2d 611; Robb, 733 F.2d 286).)
While it is certainly true that in each of the cases cited by the
District Court (1) the plaintiff had suffered “some adverse
employment action less drastic than discharge” and (2) we found the
challenged action to be insufficient to satisfy Mathews’ “plus”
requirement, in none of the cases did the action complained of
implicate an “interest previously recognized under state law.” See
Strum, 835 F.2d at 1012. In this case, however, such an interest is
implicated. As we have determined above, Dee has stated a
constitutionally protected property interest—created and defined by
state statutory law and the terms of the CBA—in not being
suspended without just cause. In light of the existence of that
interest, we hold that he has alleged a sufficient “plus.” This is
consistent with the views of our sister courts of appeals who have
30 held that a constitutionally protected property interest qualifies as
a sufficient “plus.” 11
11 See, e.g., Greenwood v. New York, 163 F.3d 119, 124 (2d Cir. 1998) (“Several circuits have held that the deprivation of a property interest satisfies the ‘plus’ prong of stigma plus. We agree with this position. And . . . we hold that government defamation combined with the deprivation of a property interest . . . g[i]ve[s] rise to a due process liberty interest.” (internal citations omitted)); Cypress Ins. Co. v. Clark, 144 F.3d 1435, 1436-37 (11th Cir. 1998) (“The ‘stigma-plus’ standard[] requires a plaintiff to show that the government official’s conduct deprived the plaintiff of a previously recognized property or liberty interest in addition to damaging the plaintiff’s reputation.”); San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701-02 (5th Cir. 1991) (“To establish the [plus] portion of the stigma plus infringement test, a claimant must establish that the state sought to remove or significantly alter a life, liberty, or property interest recognized and protected by state law or guaranteed by one of the provisions of the Bill of Rights that has been incorporated.” (internal quotation marks omitted)); Cooper v. Dupnik, 924 F.2d 1520, 1532 n.22 (9th Cir. 1989) (“The ‘plus’ part of th[e stigma-plus] test can be met by either the denial of a right specifically secured by the Bill of Rights (such as the right to free speech or counsel), or the denial of a state-created property or liberty interest such that the Fourteenth Amendment’s Due Process Clause is violated.”).
(continued...)
31 Because the District Court ended its liberty interest analysis with
the conclusion that Dee had failed to satisfy the “plus” requirement,
it did not address the “stigma” prong of the “stigma plus” test. “To
satisfy the ‘stigma’ prong of the test, it must be alleged that the
purportedly stigmatizing statements(s) (1) were made publicly and
(2) were false.” Hill, 435 F.3d at 236 (internal citations omitted).
11 (...continued) We also note that we have held—consistent with the precedent of several of our sister circuits—that when a public employee bases his “plus” on government conduct that does not implicate a state law-created property interest, the employee nonetheless satisfies the “stigma-plus” test if he can establish that he was “defamed in the course of being terminated or constructively discharged.” Hill, 455 F.3d at 238; accord Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1104-12 (D.C. Cir. 1985); Dennis v. S & S Consol. Rural High Sch. Dist., 577 F.2d 338, 342-43 (5th Cir. 1978); Colaizzi v. Walker, 542 F.2d 969, 973 (7th Cir. 1976). As we have determined that a state law- created property was implicated in this case, termination or constructive discharge was not required.
32 We conclude that we cannot, and should not, resolve this aspect of
the liberty interest analysis as there are issues of material fact that
prevent us from doing so. A review of the record reveals a dispute
as to the circumstances surrounding the release of the news of Dee’s
suspension to The Times-Tribune. See supra note 2. Such a dispute
affects our ability to address the first step of the “stigma” analysis.12
Accordingly, we will remand to the District Court for additional fact
finding.
C ONCLUSION
12 We note further that there is a dispute as to whether the Borough Council’s July 6, 2005, meeting qualified as a name- clearing hearing sufficient to satisfy the requirements of due process. Should Dee be able to satisfy the “stigma” prong of the “stigma plus” test, Mathews v. Eldridge balancing would again be in order; this time to determine whether the Council’s July 6th hearing was constitutionally sufficient. See Graham v. City of Phila., 402 F.3d 139, 145-47 (3d. Cir. 2005); see also Patterson v. City of Utica, 370 F.3d 322, 336-37 (2d Cir. 2004).
33 For the reasons set forth above, we will VACATE the District
Court’s entry of judgment and REMAND for further proceedings
consistent with this Opinion.