915 F.3d 956 (3rd Cir. 2019), 17-3084, McKinney v. University of Pittsburgh

Docket Nº:17-3084
Citation:915 F.3d 956
Opinion Judge:KRAUSE, Circuit Judge.
Party Name:Jerome MCKINNEY v. UNIVERSITY OF PITTSBURGH, Appellant
Attorney:Shannon H. Paliotta, University of Pittsburgh, Office of General Counsel, Kim M. Watterson [Argued], Reed Smith, M. Patrick Yingling, Reed Smith, Counsel for Appellant University of Pittsburgh Sean L. Ruppert [Argued], Kraemer Manes & Associates, Counsel for Appellee Jerome McKinney Shannon D. Fa...
Judge Panel:Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges
Case Date:February 14, 2019
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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915 F.3d 956 (3rd Cir. 2019)

Jerome MCKINNEY

v.

UNIVERSITY OF PITTSBURGH, Appellant

No. 17-3084

United States Court of Appeals, Third Circuit

February 14, 2019

Argued: September 6, 2018

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On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. Civil Action No. 2-15-cv-01538), District Judge: Honorable Nora B. Fischer

Shannon H. Paliotta, University of Pittsburgh, Office of General Counsel, Kim M. Watterson [Argued], Reed Smith, M. Patrick Yingling, Reed Smith, Counsel for Appellant University of Pittsburgh

Sean L. Ruppert [Argued], Kraemer Manes & Associates, Counsel for Appellee Jerome McKinney

Shannon D. Farmer, Burt M. Rublin, Ballard Spahr, Counsel for Amicus Appellants Temple University, the Pennsylvania State University, Rowan University and Delaware State University

Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges

OPINION

KRAUSE, Circuit Judge.

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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

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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...

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