McKinney v. Univ. of Pittsburgh

• Decision Date: 14 February 2019
• Docket Number: No. 17-3084,17-3084
• Citation: 915 F.3d 956
• Parties: Jerome MCKINNEY v. UNIVERSITY OF PITTSBURGH, Appellant
• Court: U.S. Court of Appeals — Third Circuit

915 F.3d 956

Jerome MCKINNEY

v.UNIVERSITY OF PITTSBURGH, Appellant

No. 17-3084

United States Court of Appeals, Third Circuit.

Argued: September 6, 2018

Opinion Filed: February 14, 2019

Shannon H. Paliotta, University of Pittsburgh, Office of General Counsel, 1710 Cathedral of Learning, 4200 Fifth Avenue, Pittsburgh, PA 15260, Kim M. Watterson [Argued], Reed Smith, 225 Fifth Avenue, Suite 1200, Pittsburgh, PA 15222, M. Patrick Yingling, Reed Smith, 10 South Wacker Drive, 40th Floor, Chicago, IL 60606, Counsel for Appellant University of Pittsburgh

Sean L. Ruppert [Argued], Kraemer Manes & Associates, 600 Grant Street, U.S. Steel Tower, Suite 4875, Pittsburgh, PA 15219, Counsel for Appellee Jerome McKinney

Shannon D. Farmer, Burt M. Rublin, Ballard Spahr, 1735 Market Street, 51st Floor, Philadelphia, PA 19103, Counsel for Amicus Appellants Temple University, the Pennsylvania State University, Rowan University and Delaware State University

Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges

OPINION OF THE COURT

KRAUSE, Circuit Judge.

Jerome McKinney, a longtime, tenured professor at the University of Pittsburgh's Graduate School of Public and International Affairs, challenges the University's decision to reduce his salary as a violation of the Due Process Clause. Based largely on the negative implications that can be drawn from a University policy that discusses salary increases but nowhere mentions salary decreases, McKinney argues that he has a property interest in the continued receipt of his base salary and that he was deprived of that interest without due process. The District Court agreed, granting summary judgment for McKinney. Because we conclude McKinney lacks a property interest in the entirety of his base salary, we will reverse and remand for entry of judgment in favor of the University.

I. Background

When McKinney was hired in 1970 and granted tenure in 1974, the terms of his employment were not governed by a collective bargaining agreement or employment contract per se, but by University policies promulgated by the University Trustees. Those policies provide that tenured faculty can be terminated only "for cause," App. 795, and they explicitly provide yearly salary raises for all faculty who perform satisfactorily or meritoriously. According to University Policy 07-09-01 (the "Policy"), "[e]ach faculty or staff member performing satisfactorily will receive a percentage increase of the size determined for that year for maintenance of real salary," i.e., a salary increase to account for inflation. App. 1152–53. And for meritorious faculty, the Policy states that "every faculty ... member whose performance is judged meritorious receives a merit increase in salary." App. 1153. Any salary increase for "maintenance" or merit "become[s] part of [the faculty member's] base contract salary in subsequent years." Id.

No explicit provisions govern salary decreases, but the Policy provides procedures to address complaints from faculty members dissatisfied with their salary decisions and requires that if a faculty member's performance is "judged unsatisfactory," the faculty member "must be informed of the specific reasons for that judgment." App. 1154.

Whether a given professor's performance is meritorious, satisfactory or unsatisfactory depends on three criteria: (1) teaching ability, (2) achievements in research and scholarship, and (3) service to the University and/or community. For McKinney, these criteria were assessed in an annual review process overseen by the Dean of the Graduate School of Public and International Affairs (the "Grad School"). To evaluate these criteria, the Dean invites input from the faculty members themselves and from their peers and students. That input is typically in the form of reports prepared by each faculty member, which summarize their activities and achievements for the year; evaluations provided by an elected committee of Grad School faculty members, which scores each faculty member on all three criteria; and student evaluations and enrollment data tracked by the University. Based on the submissions received, the Dean makes a final decision about faculty performance, rating each faculty member as meritorious, satisfactory, or unsatisfactory, and determines what salary a faculty member will receive the following year in accordance with the Policy.

McKinney did not fare well in recent years in this review process. In McKinney's 2010 and 2011 reviews, John Keeler, the Dean of the Grad School for all relevant periods, expressed concern about declining enrollment in McKinney's classes, poor student evaluations, and a stagnant research agenda, but nonetheless granted him the standard 2.0% and 1.5% maintenance increases which were budgeted respectively in those years for faculty with "satisfactory" performance. Despite the admonition from Dean Keeler, these same deficiencies persisted through the 2012 review, in which McKinney ranked last among the Grad School faculty and was given a performance rating of "less than satisfactory." App. 231. At the conclusion of that review in August 2012, McKinney was advised that his salary would be increased by only 0.5%, and that if his "performance d[id] not improve next year ... [Dean Keeler] w[ould] have no recourse but to give [McKinney] a 0.0% raise or even consider a salary reduction." App. 233.

Still, McKinney's performance showed no improvement. He was again ranked last in the 2013 review, prompting Dean Keeler to reduce his salary by 20%. In a face-to-face meeting with McKinney in September 2013, Dean Keeler advised McKinney of this decision and provided him a letter that laid out over the course of five pages the long-standing problems with McKinney's teaching and research that justified the decision.

McKinney then lodged a complaint directly with the University Provost. Although this was not consistent with the prescribed Grad School appeal process, the University investigated and ultimately concluded that McKinney's salary reduction was not improper.

At that point, McKinney filed a complaint in federal court alleging that the University unconstitutionally deprived him of his property interest in the entirety of his base salary. After discovery, the parties cross-filed for summary judgment, which the District Court granted in favor of McKinney.¹ In support of his motion, McKinney argued that the University's "tenure system, policies, and bylaws" created a "property right to his salary." McKinney v. Univ. of Pittsburgh , Civil Action No. 15-1538, 2017 WL 2418689, at *11 (W.D. Pa. June 5, 2017) (quoting ECF No. 25 at 5–6). The University countered in its motion that though McKinney had a property interest in continued employment, he did "not have a constitutionally protected interest in any set salary." Id . at *10 (citing ECF No. 21 at 16–17).

After reviewing the relevant University policies and the process by which the University reduced McKinney's salary, the District Court sided with McKinney, concluding that he had a property interest in his full salary and that the University deprived him of that interest without due process. The University moved to stay the proceeding and filed for interlocutory appeal, which we granted.²

II. Jurisdiction and Standard of Review³

We review the District Court's grant of summary judgment de novo.

Faush v. Tuesday Morning, Inc. , 808 F.3d 208, 215 (3d Cir. 2015) (citation omitted). To prevail at this stage, the moving party must establish that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). We view all facts "in the light most favorable to the non-moving party," with "all reasonable inferences [drawn] in that party's favor," Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ. , 470 F.3d 535, 538 (3d Cir. 2006).

III. Discussion

On appeal, the University argues that McKinney does not have a property interest in his full salary because the Policy does not protect his base salary against reduction. McKinney also focuses exclusively on the Policy, arguing that the language of the Policy gives him a constitutionally protected property interest in his base salary.⁴ We conclude that the Policy is insufficient to support a constitutionally protected property interest. Below, we first address what is needed to establish a property interest in this context and then explain why the Policy fails to meet that high bar.

The Fourteenth Amendment protects against "depriv[ation] of an individual interest [in] ... property" without the "due process of law." Hill v. Borough of Kutztown , 455 F.3d 225, 233–34 (3d Cir. 2006) (quoting Alvin v. Suzuki , 227 F.3d 107, 116 (3d Cir. 2000) ). Core to the existence of an individual property interest is the requirement that the plaintiff have "a legitimate claim of entitlement to" the interest at issue that stems from "an independent source such as state law" or "rules or understandings that secure certain benefits." Bd. of Regents of State Colls. v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Thus, it is not sufficient that a plaintiff has an "abstract need or desire" or a "unilateral expectation" of a particular benefit. Id. Instead, the property interest must arise from either the "circumstances of ... service" or the "mutually explicit understandings that support [the] claim of entitlement to the benefit." Perry v. Sindermann , 408 U.S. 593, 601–02, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

The Supreme Court has set a high bar for how "explicit" an understanding must be in order to support a property interest. In the context of state universities, for example, the Court has recognized a property interest in "continued employment" where tenured faculty have been expressly informed that they may be terminated only "for cause." See Gilbert v. Homar , 520 U.S. 924, 928–29, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) ("[P]ublic employees who can be discharged only for cause have a...