549 F.3d 225 (3rd Cir. 2008), 07-1720, Dee v. Borough of Dunmore

Docket Nº:07-1720.
Citation:549 F.3d 225
Party Name: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.
Case Date:December 04, 2008
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 225

549 F.3d 225 (3rd Cir. 2008)

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.

No. 07-1720.

United States Court of Appeals, Third Circuit.

December 4, 2008

Argued March 25, 2008.

Page 226

Cynthia L. Pollick, Esq. [Argued], The Employment Law Firm, Pittston, PA, for Appellant, Robert K. Dee, Jr.

Karoline Mehalchick, Esq. [Argued], Olvier, Price & Rhodes, Clarks Summit, PA, 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.

Page 227

Before: McKEE, RENDELL, and TASHIMA,[*] Circuit Judges.

OPINION

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 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 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.

BACKGROUND

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 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,

Page 228

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 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. 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 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 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

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property and liberty interests, and that, accordingly, he was entitled to survive summary judgment.

STANDARD OF REVIEW

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 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).

DISCUSSION

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 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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (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 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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ( “ Property interests are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an...

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257 practice notes
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    • Federal Cases United States District Courts 3th Circuit District of New Jersey
    • 30 Marzo 2012
    ...any property interest based on, e.g., the contracts pertaining to the Project. (Am. Compl. at 20-24.) See Dee v. Borough of Dunmore , 549 F.3d 225, 229 (3d Cir. 2008) ("In order to determine whether the Borough's actions... deprived Dee of due process, we must first ask whether the ass......
  • Blick v. Ann Arbor Public School District, 020221 MIEDC, 19-12127
    • United States
    • Federal Cases United States District Courts 6th Circuit Eastern District of Michigan
    • 2 Febrero 2021
    ...not actually terminate her; rather the claim is that she was constructively discharged”); cf. Dee v. Borough of Dunmore, 549 F.3d 225, 234 n.11 (3d Cir. 2008) (“[T]he employee nonetheless satisfies the ‘stigma-plus' test if he can establish that he was “defamed......
  • Minnich v. Northeastern School District, 012621 PAMDC, Civ. 1:20-CV-00378
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • 26 Enero 2021
    ...property interest. See Graham v. City of Philadelphia, 402 F.3d 139, 142 n.2 (3d Cir. 2005); Dee v. Borough of Dunmore, 549 F.3d 225, 234 (3d Cir. 2008). “Although deprivation of the ‘liberty to pursue a calling or occupation' or to ‘earn a living' have been deemed ......
  • Smith v. Borough of Dunmore, 052711 PAMDC, 3:05-CV-1343
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • 27 Mayo 2011
    ...and the collective bargaining agreement give rise to a property interest in not being suspended without cause. Dee v. Borough of Dunmore, 549 F.3d 225, 231-32 (3d Cir. 2008); Smith v. Borough of Dunmore, 633 F.3d 176, 180 (3d Cir. 2011). The court of appeals further held that Dee and Smith ......
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257 cases
  • D & D. Associates, Inc. v. Board of Education of North Plainfield, 033012 NJDC, 03-1026 (MLC)
    • United States
    • Federal Cases United States District Courts 3th Circuit District of New Jersey
    • 30 Marzo 2012
    ...any property interest based on, e.g., the contracts pertaining to the Project. (Am. Compl. at 20-24.) See Dee v. Borough of Dunmore , 549 F.3d 225, 229 (3d Cir. 2008) ("In order to determine whether the Borough's actions... deprived Dee of due process, we must first ask whether the ass......
  • Blick v. Ann Arbor Public School District, 020221 MIEDC, 19-12127
    • United States
    • Federal Cases United States District Courts 6th Circuit Eastern District of Michigan
    • 2 Febrero 2021
    ...not actually terminate her; rather the claim is that she was constructively discharged”); cf. Dee v. Borough of Dunmore, 549 F.3d 225, 234 n.11 (3d Cir. 2008) (“[T]he employee nonetheless satisfies the ‘stigma-plus' test if he can establish that he was “defamed......
  • Minnich v. Northeastern School District, 012621 PAMDC, Civ. 1:20-CV-00378
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • 26 Enero 2021
    ...property interest. See Graham v. City of Philadelphia, 402 F.3d 139, 142 n.2 (3d Cir. 2005); Dee v. Borough of Dunmore, 549 F.3d 225, 234 (3d Cir. 2008). “Although deprivation of the ‘liberty to pursue a calling or occupation' or to ‘earn a living' have been deemed ......
  • Smith v. Borough of Dunmore, 052711 PAMDC, 3:05-CV-1343
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • 27 Mayo 2011
    ...and the collective bargaining agreement give rise to a property interest in not being suspended without cause. Dee v. Borough of Dunmore, 549 F.3d 225, 231-32 (3d Cir. 2008); Smith v. Borough of Dunmore, 633 F.3d 176, 180 (3d Cir. 2011). The court of appeals further held that Dee and Smith ......
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