Homar v. Gilbert
| Citation | 89 F.3d 1009 |
| Decision Date | 02 November 1995 |
| Docket Number | No. 95-7218,95-7218 |
| Parties | , 111 Ed. Law Rep. 33, 12 IER Cases 1368 Richard J. HOMAR, Appellant, v. James E. GILBERT, Individually, and in his capacity as Pres. of E.S. Univ.; Gerald Levanowitz, Individually, and in his capacity as director of Human Res. at E.S. Univ.; David Marazas, Individually, and in his capacity as Police Chief of E.S. Univ.; Curtis English, Individually, and in his capacity as V.P. of E.S. Univ. . Submitted Under Third Circuit LAR 34.1(a), |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
James V. Fareri, Mervine, Brown, Newman, Williams & Mishkin, Stroudsburg, PA, for Appellant.
Gwendolyn T. Mosley, Office of Attorney General, Harrisburg, PA, for Appellees.
Before: NYGAARD, ALITO, and SAROKIN, Circuit Judges.
Plaintiff Richard Homar was suspended without pay from his position as a police officer at East Stroudsburg University after his arrest on drug-related charges. The criminal charges against Homar were eventually dismissed, but Homar was nonetheless subsequently demoted to the position of groundskeeper. Homar filed suit in federal district court seeking reinstatement, backpay and damages for violations of his due process rights. The district court entered summary judgment in favor of defendants. Plaintiff appeals.
Although we conclude that these circumstances warranted and justified an immediate suspension of employment without a hearing, the added suspension of pay necessitated a hearing. Furthermore, the subsequent restoration of that pay cannot serve to cure the due process violation. It may serve to reduce the damages to which the employee may be entitled, but the deprivation must be viewed at the time of its occurrence, not as belatedly corrected by later action; otherwise employers could violate the due process rights of their employees and simply cure those violations through the means of retroactive pay.
We also hold that once suspended, an employee is entitled to a hearing before any further action is taken to demote, terminate, or extend his suspension. At such a hearing, the employee is entitled to know the evidence against him and be afforded the opportunity for a meaningful response. We conclude that there is a genuine issue of material fact as to whether such a hearing was afforded here, and we thus reverse the order of summary judgment.
Plaintiff Richard Homar was employed as a police officer at East Stroudsburg University ("ESU"). On August 26, 1992, Homar was arrested when a drug raid took place at the home of his friend, James Crompton, whom he was visiting. That same day, the Pennsylvania State Police filed a criminal complaint against Homar charging him with possession of marijuana, possession with intent to deliver and criminal conspiracy.
The state police called David Marazas, ESU's police chief and Homar's supervisor, to inform him of Homar's arrest and the charges against him. Marazas then informed Gerald Levanowitz, ESU's Director of Human Resources, to whom ESU President James Gilbert had delegated authority to discipline and suspend ESU employees. Levanowitz decided immediately to suspend Homar without pay. No pre-suspension hearing was held.
On August 27, Homar received a letter from Levanowitz advising him that he was suspended without pay pending further investigation and disposition of the criminal charges. The letter advised Homar that any administrative action taken by the University against him "[did] not have to coincide with the disposition of those charges through the legal process." Appendix ("App.") at 197.
District Justice Charles P. Eyer dismissed all criminal charges against Homar on September 1, 1992. Levanowitz still refused to lift Homar's suspension.
On September 11, 1992, Levanowitz, along with two ESU police sergeants who were assigned to conduct an investigation on Homar, met with two state troopers and a Corporal to discuss Homar's situation. One of the troopers was the state trooper who signed the criminal complaint against Homar. At this meeting, Levanowitz was provided with a copy of a page from the Pennsylvania State Police investigative file regarding Homar, called the "Supplemental Report." This report includes statements attributed to Homar that he allegedly made to the Pennsylvania State Police when he was interviewed shortly after his arrest. According to the Supplemental Report, Homar admitted his knowledge of drug dealing by Crompton and another man named Habhab, and Homar further admitted that he had received marijuana from Habhab for his own use while he was employed as an ESU police officer. Homar contests that he ever made these statements.
On September 15, 1992, Levanowitz called Homar and arranged for a meeting three days later. Levanowitz explained that this meeting would be an "administrative hearing," and that accordingly Homar had a right to have his union representative present but that he did not have a right to legal counsel.
Homar attended this meeting on September 18, 1992, along with his union representative. Besides Levanowitz, Marazas was also present, as well as Levanowitz's secretary. At the start of the meeting, Homar's union representative requested that Homar's attorney be present. Levanowitz responded that if Homar so chose, they would have to postpone the meeting until a later time. Homar opted to proceed with the meeting unrepresented. According to the notes taken by Levanowitz's secretary, Levanowitz made the following statement to Homar:
The purpose of this meeting today is to give you an opportunity to provide any information on your own behalf that would assist us in making a determination concerning the action that would end your suspension and any information that would be of help to you in presenting your case.
Levanowitz maintained at a deposition held later that he had told Homar that "the State Police had given [him] some evidence very serious in nature," App. at 164, and that he offered Homar the opportunity to present his side of the story. Levanowitz never informed Homar that he had received the Supplemental Report from the state police containing his alleged confession.
On September 23, 1992, Levanowitz wrote a letter to Homar advising him that he was being demoted from the position of police officer to the position of groundskeeper. The text of the letter reads, in pertinent part, as follows:
This is to inform you that you are to be demoted from your position as a Police Officer I in the Campus Police Department to the position of Groundskeeper ... . The action is effective retroactive to August 26, 1992, and you are to be given back pay to that date at the rate of pay for a Groundskeeper. You are to report to work at 7:00 A.M. on September 24, 1992 at the Facilities Management Office. Your new rate of pay as Groundskeeper will be $552.80 bi-weekly. 1
This action is being taken as a result of admissions made by yourself to the Pennsylvania State Police on August 26, 1992 that you maintained association with individuals whom you knew were dealing in large quantities of marijuana and 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 East Stroudsburg University Police Department Manual.
App. at 208 (footnote added).
After this letter was issued, the president of the union representing Homar requested that Homar have an opportunity to meet with President Gilbert regarding the letter. The meeting occurred on September 24, 1992 at 2:00 p.m. By this time, Homar had received and read a copy of the Supplemental Report. Gilbert provided Homar with an opportunity to respond to the charges and to Levanowitz's decision. Gilbert nonetheless sustained the suspension.
After failing to obtain relief through his union grievance procedure, Homar filed a complaint in the district court for the Middle District of Pennsylvania against Gilbert, Levanowitz and Marazas. His complaint alleges that the procedures by which he was suspended and then demoted lacked required due process, that defendants' actions deprived him of liberty and property, and that his substantive due process rights were also violated. The district court entered summary judgment in favor of the defendants on March 17, 1995. Homar then appealed to this court.
The district court had jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 1983. This court has jurisdiction over the appeal of the district court's final decision under 28 U.S.C. § 1291.
Our review of the district court's order for summary judgment is plenary, and we thus apply the same standards that were applicable in the district court. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1530 (3d Cir., 1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1313, 113 L.Ed.2d 246 (1991). Summary judgment is appropriately granted when "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). If, however, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), summary judgment shall not be granted. Homar, as the nonmoving party, is entitled to have all reasonable inferences drawn in his favor. See J.F. Feeser, 909 F.2d at 1531.
Homar's first claim is that ESU failed to provide him a meaningful pre-deprivation hearing prior to his suspension without pay and his subsequent demotion from police officer to groundskeeper.
In Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the United States Supreme Court held that when a public employee has a property interest in his or her employment he or she is entitled to a meaningful pre-termination...
To continue reading
Request your trial
-
Larsen v. Senate of the Com. of Pennsylvania
...a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him.'" Homar v. Gilbert, 89 F.3d 1009, 1022 (3d Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 678, 136 L.Ed.2d 604 (1997) (quoting Board of Regents v. Roth, 408 U.S. 564, 573, 92 ......
-
Coover v. Saucon Valley School Dist.
...interests worthy of procedural due process protections are protected by the concept of substantive due process.'" Homar v. Gilbert, 89 F.3d 1009, 1021 (3d Cir.1996) (3-2 decision), cert. granted, ___ U.S. ___, 117 S.Ct. 678, 136 L.Ed.2d 604 (1997) (No. 96-651) (quoting Reich v. Beharry, 883......
-
Phillips v. Borough of Keyport
...by the in banc court or by the Supreme Court. As I have previously suggested, see Homar v. Gilbert, 89 F.3d 1009, 1029-30 (3d Cir.1996) (Alito, J., concurring in part and dissenting in part), cert. granted on other issue, --- U.S. ----, 117 S.Ct. 678, 136 L.Ed.2d 604 (1997), I think that Be......
-
Ecogen, LLC v. Town of Italy, 06-CV-6196 L.
...J., concurring); Tri County Paving, Inc. v. Ashe County, 281 F.3d 430, 439 (4th Cir.2002); Homar v. Gilbert, 89 F.3d 1009, 1029-30 (3d Cir.1996) (Alito, J., concurring in part and dissenting in part), reed on other grounds, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 While the Court certa......
-
LIVING FREELY BEHIND BARS: REFRAMING THE DUE PROCESS RIGHTS OF TRANSGENDER PRISONERS.
...acts, generally laws and broad executive regulations, apply to large segments of society." Id at 139 n. 1 (quoting Homar v. Gilbert, 89 F.3d 1009, 1027 (3d Cir. 1995) (Alito, J., concurring in part and dissenting in (209) Id. (quoting Alexander v. Whitman, 114 F.3d 1392, 1403 (3d Cir. 1997)......