Gilbert v. Homar

• Citation: 520 U.S. 924,117 S.Ct. 1807,138 L.Ed.2d 120
• Decision Date: 09 June 1997
• Docket Number: 96651
• Parties: James E. GILBERT, President, East Stroudsburg University, et al., Petitioners, v. Richard HOMAR
• Court: United States Supreme Court

520 U.S. 924

117 S.Ct. 1807

138 L.Ed.2d 120

James E. GILBERT, President, East Stroudsburg University, et al., Petitioners,

v Richard HOMAR.

No. 96-651.

Supreme Court of the United States

Argued March 24, 1997.

Decided June 9, 1997.

Syllabus ^*

On August 26, 1992, while employed as a policeman at East Stroudsburg University (ESU), a Pennsylvania state institution, respondent was arrested by State Police and charged with a drug felony. Petitioners, ESU officials, suspended him without pay, effective immediately, pending their own investigation. Although the criminal charges were dismissed on September 1, his suspension remained in effect. On September 18, he was provided the opportunity to tell his side of the story to ESU officials. Subsequently, he was demoted to groundskeeper. He then filed suit under 42 U.S.C. §1983, claiming, inter alia, that petitioners' failure to provide him with notice and a hearing before suspending him without pay violated due process. The District Court granted petitioners summary judgment, but the Third Circuit reversed.

Held: In the circumstances here, the State did not violate due process by failing to provide notice and a hearing before suspending a tenured public employee without pay. Pp. ____-____.

(a) In Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494, this Court held that before being fired a public employee dismissable only for cause was entitled to a limited pre-termination hearing, to be followed by a more comprehensive post-termination hearing. The Third Circuit erred in relying on dictum in Loudermill to conclude that a suspension without pay must also be preceded by notice and a hearing. Due process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484; FDIC v. Mallen, 486 U.S. 230, 240, 108 S.Ct. 1780, 1787-88, 100 L.Ed.2d 265. Pp. ____-____.

(b) Three factors are relevant in determining what process is constitutionally due: (1) the private interest that will be affected by the official action; (2) 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 (3) the Government's interest. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18. Respondent asserts an interest in an uninterrupted paycheck; but account must be taken of the length and finality of the temporary deprivation of his pay. Logan v. Zimmerman Brush Co., 455 U.S. 422, 434, 102 S.Ct. 1148, 1157, 71 L.Ed.2d 265. So long as a suspended employee receives a sufficiently prompt post-suspension hearing, the lost income is relatively insubstantial, and fringe benefits such as health and life insurance are often not affected at all. On the other side of the balance, the State has a significant interest in immediately suspending employees charged with felonies who occupy positions of public trust and visibility, such as police officers. While this interest could have been accommodated by suspending respondent with pay, the Constitution does not require the government to give an employee charged with a felony paid leave at taxpayer expense. The remaining Mathews factor is the most important in this case: The purpose of a pre-suspension hearing-to assure that there are reasonable grounds to support the suspension without pay, cf. Loudermill, supra, at 545-546, 105 S.Ct., at 1495-has already been assured by the arrest and the filing of charges. See FDIC, supra. That there may have been discretion not to suspend does not mean that respondent had to be given the opportunity to persuade officials of his innocence before the decision was made. See id., at 234-235, 108 S.Ct., at 1784-1785. Pp. ____-____.

(c) Whether respondent received an adequately prompt post -suspension hearing should be considered by the Third Circuit in the first instance. Pp. ____-____.

89F. 3d 1009, reversed and remanded.

SCALIA, J., delivered the opinion for a unanimous Court.

Gwendolyn T. Mosley, Harrisburg, PA, for petitioners.

Ann Hubbard, for U.S. as amicus curiae, by special leave of the Court.

James V. Fareri, Stroudsburg, for Respondent.

Gregory O'Duden, Washington, DC, for National Treasury Employees Union as amicus curiae, by special leave of the Court.

Justice SCALIA delivered the opinion of the Court.

This case presents the question whether a State violates the Due Process Clause of the Fourteenth Amendment by failing to provide notice and a hearing before suspending a tenured public employee without pay.

I

Respondent Richard J. Homar was employed as a police officer at East Stroudsburg University (ESU), a branch of Pennsylvania's State System of Higher Education. On August 26, 1992, when respondent was at the home of a family friend, he was arrested by the Pennsylvania State Police in a drug raid. Later that day, the state police filed a criminal complaint charging respondent with possession of marijuana, possession with intent to deliver, and criminal conspiracy to violate the controlled substance law, which is a felony. The state police notified respondent's supervisor, University Police Chief David Marazas, of the arrest and charges. Chief Marazas in turn informed Gerald Levanowitz, ESU's Director of Human Resources, to whom ESU President James Gilbert had delegated authority to discipline ESU employees. Levanowitz suspended respondent without pay effective immediately. Respondent failed to report to work on the day of his arrest, and learned of his suspension the next day, when he called Chief Marazas to inquire whether he had been suspended. That same day, respondent received a letter from Levanowitz confirming that he had been suspended effective August 26 pending an investigation into the criminal charges filed against him. The letter explained that any action taken by ESU would not necessarily coincide with the disposition of the criminal charges.

Although the criminal charges were dismissed on September 1, respondent's suspension remained in effect while ESU continued with its own investigation. On September 18, Levanowitz and Chief Marazas met with respondent in order to give him an opportunity to tell his side of the story. Respondent was informed at the meeting that the state police had given ESU information that was "very serious in nature,'' Record, Doc. No. 26, p. 48, but he was not informed that that included a report of an alleged confession he had made on the day of his arrest; he was consequently unable to respond to damaging statements attributed to him in the police report.

In a letter dated September 23, Levanowitz notified respondent that he was being demoted to the position of groundskeeper effective the next day, and that he would receive backpay from the date the suspension took effect at the rate of pay of a groundskeeper. —(Respondent eventually received backpay for the period of his suspension at the rate of pay of a university police officer.) The letter maintained that the demotion was being imposed "as a result of admissions made by yourself to the Pennsylvania State Police on August 26, 1992 that you maintained associations with individuals whom you knew were dealing in large quantities of marijuana and that you obtained marijuana from one of those individuals for your own use. Your actions constitute a clear and flagrant violation of Sections 200 and 200.2 of the [ESU] Police Department Manual.'' App. 82a. Upon receipt of this letter, the president of respondent's union requested a meeting with President Gilbert. The requested meeting took place on September 24, at which point respondent had received and read the police report containing the alleged confession. After providing respondent with an opportunity to respond to the charges, Gilbert sustained the demotion.

Respondent filed this suit under Rev. Stat. §1979, 42 U.S.C. §1983, in the United States District Court for the Middle District of Pennsylvania against President Gilbert, Chief Marazas, Levanowitz, and a Vice President of ESU, Curtis English, all in both their individual and official capacities. He contended, inter alia, that petitioners' failure to provide him with notice and an opportunity to be heard before suspending him without pay violated due process. The District Court entered summary judgment for petitioners. A divided Court of Appeals reversed the District Court's determination that it was permissible for ESU to suspend respondent without pay without first providing a hearing. 89 F.3d 1009 (1996). We granted certiorari. 519 U.S. ----, 117 S.Ct. 678, 136 L.Ed.2d 604 (1997).

II

The protections of the Due Process Clause apply to government deprivation of those perquisites of government employment in which the employee has a constitutionally protected "property'' interest. Although we have previously held that public employees who can be discharged only for cause have a constitutionally protected property interest in their tenure and cannot be fired without due process, see Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2709-2710, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 602-603, 92 S.Ct. 2694, 2700-2701, 33 L.Ed.2d 570 (1972), we have not had occasion to decide whether the protections of the Due Process Clause extend to discipline of tenured public employees short of termination. Petitioners, however, do not contest this preliminary point, and so without deciding it we will, like the District Court, " [a]ssum[e] that the suspension infringed a protected property interest,'' App. to Pet. for Cert. 59a, and turn at once to petitioners' contention that respondent received all the process he was due.

A

In Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), we concluded that a public employee dismissable only for cause was entitled to a very limited hearing prior...