Stana v. School Dist. of City of Pittsburgh, 85-3004

• Citation: 775 F.2d 122
• Decision Date: 22 October 1985
• Docket Number: No. 85-3004,85-3004
• Parties: 28 Ed. Law Rep. 53 Loretta E. STANA, Appellant, v. SCHOOL DISTRICT OF the CITY OF PITTSBURGH and Charles N. Allebrand.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 122

775 F.2d 122

28 Ed. Law Rep. 53

Loretta E. STANA, Appellant, v. SCHOOL DISTRICT OF the CITY OF PITTSBURGH and Charles N. Allebrand.

No. 85-3004.

United States Court of Appeals,

Third Circuit.

Argued July 19, 1985.

Decided Oct. 22, 1985.

Joseph S. Hornack (argued), Edward Jaffee Abes & Associates, P.C., Pittsburgh, Pa., for appellant.

David H. Dille (argued), Robert J. Stefanko, Board of Public Educ. School Dist. of Pittsburgh, Pittsburgh, Pa., for appellee.

Before SEITZ, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Appellant Loretta E. Stana brought this suit under 42 U.S.C. Sec. 1983 (1982), alleging that the defendants, the School District of Pittsburgh and Charles N. Allebrand, Assistant Director of Personnel for the District, violated her constitutional rights to due process of law. We must decide whether the district court erred in granting summary judgment for defendants. See Stana v. School District of Pittsburgh, 598 F.Supp. 842 (W.D.Pa.1984).

The following facts are undisputed: Stana was certified to teach chemistry and general science by the Pennsylvania Department of Education in 1972. On June 1, 1980, she applied for a teaching position with the Pittsburgh School District. Under Article XXI of the Public School Code of 1949, governing School Districts of the First Class (Philadelphia and Pittsburgh only), the Superintendent of Schools must keep eligibility lists "arranged as nearly as possible in the order of rank or standing". 24 Pa.Stat.Ann. Sec. 21-2110 (Purdon 1962). Moreover, "no person shall be appointed, promoted, or transferred to any educational position in the public school system ... whose name does not appear among the three highest names upon the proper eligible list." Id.

Pursuant to the policies of the Pittsburgh School District, a teacher's rank on the eligibility lists is determined by the total of the teacher's scores from four sources: the National Teacher Exam "Core Battery" test; the "Specialty Area" tests; the score s/he receives from an interview by a panel of administrators; and the score s/he receives on an evaluation by a credentials committee. An applicant with a score of 80 or higher is placed on the appropriate list.

Stana had a score of 89 and was notified on June 30, 1981 that she would be placed on the eligibility list for chemistry and science on August 27. From August 27, 1981 until October 21, 1982, Stana was one of the top three names on the list. A teacher usually remains on the list for four years unless s/he fails to respond to inquiries regarding present status.

Allebrand, who had the responsibility to update the files of persons on the list with current information, testified that sometime in late 1981 or early 1982, he noticed from a notation in the file that Stana was teaching at Seton-LaSalle High School, a private Catholic school. He asked that school's Principal, Brother Joseph Mahon, for his evaluation and was told that Stana's teaching performance was unsatisfactory. Brother Joseph gave the same response in writing on a confidential inquiry form dated March 16, 1982.

Allebrand took no action with respect to this negative evaluation, which was apparently unprecedented in his experience, until October 1982, when he convened a committee to re-evaluate Stana's credentials. Before then, however, in September 1982, a chemistry position became open at Alderdice High School. Only two names were on the relevant list. One was Stana's; the other's was someone Allebrand knew was unavailable. Because of Brother Joseph's negative evaluation, Allebrand decided, after discussions with his supervisor, Dr. Galligan, to bypass Stana for the position and to advertise the opening. The position was filled shortly thereafter by Susan Jackson, who had not been on the eligibility list. Although Stana technically remained on the eligibility list until after the School District hired Jackson, Allebrand bypassed Stana, relying on "some research done in [the District's legal department that] if there is no one available on the eligibility list, then the personnel officer may seek [a qualified candidate in] any way possible." App. at 67.

Stana contacted Allebrand's office on September 17 concerning the advertisement and was told that the position was filled. Her attempts to reach Allebrand and Galligan were unsuccessful. At that time, she did not know that the person hired was not on the eligibility list.

In late October 1982, Stana was notified in writing by Allebrand that, pursuant to a credentials committee re-evaluation, her name had been removed from the eligibility list. At a meeting on November 2, 1982, Allebrand told Stana that he had received negative "confidential information" about her. Stana, who inferred that the information came from Brother Joseph, told Allebrand that her contract at Seton-LaSalle for the 1982-1983 school year was not renewed by Brother Joseph so that he would have a teaching position in which to place a football coach, who was thereafter hired by the school as a chemistry teacher. Stana was not actually informed by the School District that the "confidential information" came from Brother Joseph until December 1983.

Stana's Sec. 1983 complaint alleges that the District's failure to provide her with notice and an opportunity to be heard concerning the negative evaluation prior to its decision to bypass her for the Alderdice teaching position and to remove her from the list violated the Due Process Clause of the Fourteenth Amendment.

II.

In granting the defendants' motion for summary judgment, the district court assumed without deciding that Stana was deprived of an interest constituting "property" within the meaning of the Due Process Clause. The court characterized Allebrand's action in appointing someone from outside the top three positions on the eligibility list as "a random, unauthorized act by a state employee." 598 F.Supp. at 844. The court construed Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Cohen v. City of Philadelphia, 736 F.2d 81 (3d Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984), as holding that there is no violation of due process when the deprivation takes place as a result of "an unauthorized failure of state agents to follow prescribed procedures" and "the state provides a forum within which redress may be had." 598 F.Supp. at 844. The court noted that, "there is no claim that Plaintiff did not have access to the state courts, that Mr. Allebrand was acting according to a state policy in denying Plaintiff a position as a teacher, or that the state eligibility system is itself constitutionally defective or insufficient." Id. The court then concluded that the defendants were entitled to judgment as a matter of law, albeit without prejudice to Stana's right "to seek redress in the appropriate Pennsylvania forum." Id.

Stana now appeals, arguing, inter alia, that the present case is distinguishable from Parratt because here predeprivation notice and some opportunity to be heard was not impracticable.

III.

The predicate for requiring a governmental entity to comply with the rudiments of procedural due process is a determination that some constitutional interest is at stake. In this case, Stana's retention on the eligibility list, which was a sine qua non for her placement in a teaching position with the Pittsburgh School District, implicated a constitutional "property" interest created by state law. ¹ The evidence establishes that Stana had a sufficient "legitimate claim of entitlement" to her place on the eligibility list so that it could not be "arbitrarily undermined", the essence of a property interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

The "property" that is safeguarded by the due process clause of the Fourteenth Amendment may be "created ... by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. "[T]he types of interests protected as 'property' are varied and, as often as not, intangible, relating 'to the whole domain of social and economic fact.' " Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct 1148, 1155, 71 L.Ed.2d 265 (1982) (quoting National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 1209, 93 L.Ed 1556 (1949) (Frankfurter, J., dissenting)); cf. Perri v. Aytch, 724 F.2d 362, 364 (3d Cir.1983). Property interests are often expressly created by state statutes or regulations, but they can also arise from written or unwritten state or local government policies or from "mutually explicit understandings" between a government employer and employee. See Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972). In all cases, the relevant inquiry is whether the claimant has a "legitimate claim of entitlement". Roth, 408 U.S. at 577, 92 S.Ct. at 2709.

In this case, Stana claims that she had "a legitimate claim of entitlement to proper classification on [the] eligibility list" maintained by the School District, Appellant's Brief at 17, which constitutes an adequate property interest to trigger due process analysis. She contends that the Pennsylvania Public School Code, 24 Pa.Stat.Ann. Sec. 21-2110 (Purdon 1962), and the policies of the Pittsburgh School District create a "mutually explicit understanding" that a person who has earned a place on the eligibility list will not be removed from the list for four years. Complaint p 14, App. at 7.

We cannot agree that a property interest can be grounded in section 21-2110. That section states only that the School District cannot hire for a permanent position anyone whose name is not among the three highest on the relevant eligibility list. ² That sectio...