Petition for Writ of Certiorari — Gilbert v. Homar

Supreme Gari OB.

PILED

96 651 OCT 16 19%

No. 96-

GFFICE ou; ite CLERK

IN THE SUPREME COURT OF THE

UNITED STATES

October Term 1996

JAMES E. GILBERT, et ai.,

Petitioners

v.

RICHARD J. HOMAR,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR CERTIORARI

THOMAS W. CORBETT, JR.

Attorney General

By: | GWENDOLYN T. MOSLEY

Senior Deputy Attorney General

Counsel of Record

CALVIN R. KOONS

Senior Deputy Attorney General

JOHN G. KNORR, III

Chief Deputy Attorney General

Office of Attorney General Chief, Litigation Section

15 Fl., Strawberry Square

Harrisburg, PA 17120

(717) 783-1371

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QUESTION PRESENTED

Whether the suspension without pay of a public

employee always, regardless of circumstances, requires a pre-

suspension hearing?

LIST OF PARTIES

The petitioners are four officials of East Stroudsburg

University. vart of the Commonwealth of Pennsylvania's State

System of Higher Education: President James E. Gilbert,

Director of Human Resources Gerald Levanowitz; Police Chief

David Marazas; and Vice-President Curtis English. The

respondent is Richard J. Homar.

QUESTION PRESENTED.................. i

co csienecccsasecocccnccoos ii

TABLE OF AUTHORITIES................ V

OPINIONS BELOW.....................:065 l

STATEMENT OF JURISDICTION. ....... 2

CONSTITUTIONAL PROVISION

EES 3

STATEMENT OF THE CASE............. 4

REASONS FOR GRANTING

Nt ancccscecccsccococcosccces: 10

I. The Court of Appeals’

Decision Conflicts With

Decisions From Six Other

SEE cesintdensenccecececooces 10

Il. The Third Circuit's

Decision Conflicts With

The Applicable Decisions

Tl iendenpapncseccocese 11

III. The Issue Presented by

This Case Is Important

To Public Employers

At All Levels of

EEE ae 12

| TT RRA SPIT 14

——

TABLE OF AUTHORITIES

CASES PAGE(s)

Ambus v. Granite Bd. of Education,

975 F.2d 1555 (10th Cir. 1992)......... 10,12

Bailey v. Board of County Com'rs

of Alachua County, 956 F.2d

I 8,10

Cleveland Bd. of Education v.

Loudermill, 470 U.S. 532 (1985)...... passim

Daniels v. Williams,

Gee BE Ci iccenssscccccsccstecess ll

Engdahi v. Dept. of Navy,

900 F.2d 1572 (Fed. Cir. 1990)....... 8,9,10,12

Everett v. Napr er,

833 F.2d 1507 (11th Cir. 1987)........ 10

FDIC v. Mallen,

406 U.S. 230 (1968)............2.2..2..00- 8,12

Jones v. City of Gary, Ind..,

57 F.3d 1435 (7th Cir. 1995)............ 10

Logan v. Zimmerman Brush Co.,

GP We Ge Ge cctssccecsscscesccaes 6,10

TABLE OF AUTHORITIES CONT’D

CASES PAGES

Mathews v. Eldridge,

4B6 U.S. SID CIGPOD.....ccccccesccccsecees 11

Parratt v. Taylor,

5 RE 1]

Strong v. Bd. of Ed. of Uniondale

Union Free Sch. Dist.,

902 F.2d 208 (2d. Cir. 1990)........... 10

UNITED STATES CONSTITUTION

Fourteenth Amendment..................... 3

STATUTES

| ee 2

I as | 6

The opinion and order of the Court of Appeals are

reported at 89 F.3d 1009 and are reprinted in the Appendix at

la. The opinion and order of the District Court are not

reported but are reprinted in the Appendix at 47a.

STATEMENT OF JURISDICTION

The judgement of the Court of Appeals was filed on

July 18, 1996, and this petition was filed within ninety days

thereafter, on October 16, 1996. The Court has jurisdiction to

review the judgment of the Court of Appeals pursuant to 28

U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment's Due Process Clause

provides in relevant part that “No State shall ... deprive any

person of life, liberty, or property, without due process of

law.” U.S. Const., Art. XIV, § 1.

STATEMENT OF THE CASE

The issue in this case is whether it is ever permissible

for public officials to suspend an employee without pay, before

giving the employee a hearing. The Court of Appeals for the

Third Circuit held that a pre-hearing suspension without Pay

is never permissible under the Due Process Clause, regardless

of the length of the Suspension, the exigency of the

circumstances surrounding it, and the likelihood that it is

warranted. The Court of Appeals relied on dicta from the

Court’s decision in Cleveland Bd. of Education v. Loudermill,

470 U.S. 532 (1985), while acknowledging that the Court has

never directly addressed this issue, and that the courts of

appeals are deeply divided over it. The Court should therefore

take this opportunity to resolve the issue, which is important to

the day-to-day functioning of government at all levels.

1. This case arises from the attempts of state university

Officials to discipline one of the university's police officers after

he was arrested and charged with drug-related offenses. The

petitioners are four officials of East Stroudsburg University,

part of Pennsylvania’s State System of Higher Education:

President James E. Gilbert; Director of Human Resources

Gerald Levanowitz; Police Chief David Marazas; and Vice-

President Curtis English. The respondent is Richard J. Homar,

formerly a member of the University’s police force who is now

employed by the University as a groundskeeper.

On August 26, 1992, members of the Pennsylvania State

Police arrested Homar during a drug raid at the home of a

friend. Pet. App. 49a. The State Police charged Homar with

possession of marijuana, possession with intent to deliver, and

criminal conspiracy, a felony. Ibid. The State Police informed

Chief Marazas, Homar’s supervisor, of Homar’s arrest and the

charges against him, ibid; and Marazas in turn told Human

a

Oe ee eee ee

— al i ere a

Resources Director Levanowitz, to whom President Gilbert had

delegated authority to discipline and suspend university

employees. Pet. App. 50a. Levanowitz decided to suspend

Homar without pay. /bid.

Homar did not report to work that day. The next day,

however, he called Chief Marazas, told him that he had been

arrested, and asked whether he was suspended. /bid. Marazas

told him that he was, and later that day delivered to Homar a

letter from Levanowitz. The letter confirmed that Homar was

suspended pending further investigation, and explained that the

University’s final decision in the matter would not necessarily

coincide with disposition of the criminal charges against him.

Ibid.

About three weeks later, on September 18, Levanowitz

and Marazas met with Homar and his union representative.

Pet. App. 54a. In the meantime, the criminal charges against

Homar had been dismissed, Pet. App. 52a, and Levanowitz had

met with the State Police and obtained an investigative report

from them. Pet. App. 52a-53a. Levanowitz told Homar that he

had completed his investigation and that he had received some

“very serious” evidence about Homar from the State Police.

Pet. App. 54a. He invited Homar to give his account of what

occurred on the day of his arrest and Homar did so. Ibid. By

letter dated September 23, Levanowitz demoted Homar to the

position of groundskeeper. Pet. App. 54a. He was, however,

given back pay for the period of his suspension at his former

pay rate.’ Pet. App. 55a.

The next day, Homar and his union representative met

with President Gilbert. Pet. App. 56a-57a. Gilbert gave

Homar an opportunity to respond to the charges and to

Levanowitz’s decision, Pet. App. 57a, but sustained

‘'Homar was initially given back pay only at the lower rate paid to a

groundskeeper, but this was later increased to the higher rate. Pet. App. 55a.

5-

Levanowitz’ decision the same day. Ibid.

2. Homar brought this action pursuant to 42 U.S.C. §

1983 in the United States District Court for the Middle District

of Pennsylvania, seeking damages and reinstatement to his

former position. All of Homar’s Claims arose under the

Fourteenth Amendment’s Due Process Clause. As relevant

here, Homar claimed that the petitioners’ failure to give him a

hearing before Suspending him violated his right to procedural

due process.”

The District Court rejected all of Homar’s claims and

granted the petitioners’ motion for summary judgment. As to

Homar’s suspension without pay, the District Court applied the

balancing test from Logan v. Zimmerman Brush Co., 455 U.S.

422, 434 (1982). The District Court recognized that Homar

had a strong private interest in continuing to receive his Salary,

but also held that the University had a compelling interest in

preserving public confidence in law enforcement; and that

under the circumstances, the likelihood of governmental error

was slim. Taking all these interests into account, and

considering also that the deprivation suffered by Homar was

both temporary and brief, the District Court held that

postponing the hearing on Homar’s suspension did not violate

the Due Process Clause. Pet. App. 58a-63a.

3. A divided panel of the Court of Appeals reversed the

Was procedurally inadequate; that his suspension and demotion violated his right

= ; ‘ “a

deprived him of protected liberty, as well as property, interests. Pet. App. 63a-

73a. None of these claims is before the Court.

-6-

District Court’s decision on the suspension without pay issue.’

Pet. App. 7a-17a. The majority agreed with the District Court

that

there was a compelling governmental interest

which supports [the university’s] decision to

suspend Homar immediately and without a

hearing pending further investigation. The

university has a substantial interest in

maintaining public confidence in [its] police

force, and Homar’s arrest on drug charges

certainly suffices to ensure that the university’ s

concerns were not baseless or unwarranted ....

. Pet. App. lla. Nevertheless, the majority held that the

petitioners had violated Homar’s due process rights “because he

was suspended without pay.” Ibid (emphasis in original).

The panel majority relied primarily on dicta from the

Court’s decision in Cleveland Bd. of Education v. Loudermill,

470 U.S. 532 (1985). In Loudermill, the Court discussed the

possibility that a public employer might need to remove an

employee immediately without hearing, and suggested that “in

those situations where the employer perceives a significant

hazard in keeping the employee on the job, it can avoid the

problem by suspending with pay.” Id., at 544-45, quoted at

Pet. App. 11a (emphasis added by the Court of Appeals). This,

in the view of the panel majority, “strongly suggests that

suspension without pay must be preceded by notice and an

opportunity to be heard in all instances.” Ibid (emphasis

added).

SO RS ee et ee i

30On Homar’s other claims, the Court of Appeals reversed the District

Court's decision on the adequacy of the hearing given to Homar before his

demotion, and on his substantive due process claim: but affirmed the District

Court on his liberty interest claim. Pet. App. 17a-27a.

Jo

The majority recognized that at least two other courts of

appeals had considered the same language from Loudermill and

had reached the contrary conclusion. Pet. App. 12a & n. 12,

citing Engdahl v. Dept. of Navy, 900 F.2d 1572 (Fed. Cir.

1990) and Bailey v. Board of County Com'’rs of Alachua

County, 956 F.2d 1112 (11th Cir. 1992). They nevertheless

held that “a governmental employer may not suspend an

employee without pay unless that suspension is preceded by

some kind of pre-suspension hearing.” Pet. App. 14a.

Judge Alito dissented from the majority’s “blanket rule,”

Pet. App. 31a. Judge Alito relied on the Court’s recognition in

Loudermill that “[t}here are, of course, some situations in which

a postdeprivation hearing will satisfy due process

requirements,” Pet. App. 31a, quoting Loudermill, 470 U.S. at

542 n.7, and on the Court’s observation in FDIC v. Mallen,

486 U.S. 230 (1988), that

fajn important government interest,

accompanied by a substantial assurance that the

deprivation is not baseless or unwarranted, may

in limited cases demanding prompt action justify

postponing the opportunity to be heard until

after the initial deprivation.

Id, at 240, quoted at Pet. App. 29a. He would have applied the

balancing test of Logan and other cases, and would have held

that under circumstances such as those presented by this case,

there is no requirement that a public employer must pay its

“suspended employees. Pet. App. 30a. As to the dicta from

Loudermill relied on by the majority, Judge Alito agreed with

the Engdahl court that the Court’s language in Loudermill

is merely descriptive, not normative. We agree

that in the instant case, the government could

8

have suspended with pay. Nevertheless, we

cannot read Loudermill as holding that the

government must suspend him with pay.

Pet. App. 31a, quoting Engdahl, 900 F.2d at 1578.

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS’ DECISION

CONFLICTS WITH DECISIONS FROM

FIVE OTHER CIRCUITS.

The Third Circuit recognized that its per se rule that

“suspension without pay must be preceded by notice and an

opportunity to be heard in all instances,” Pet. App. lla

(emphasis added), conflicts with the decisions of at least two

other courts of appeals. Pet. App. 12a. In both Engdahi v.

Dept. of Navy, 900 F.2d 1572 (Fed. Cir. 1990) and Bailey v.

Board of County Com’rs of Alachua County, 956 F.2d 1112

(llth Cir. 1992), the courts squarely considered the same

language from Loudermill relied on by the Third Circuit, but

concluded that the Court did not by that language mean to

impose a blanket rule against pre-hearing suspensions without

pay. Engdahl, 900 F.2d at 1578; Bailey, 956 F.2d at 1124 n.

13.4

In addition, at least three other circuits have discussed

Loudermill, although not the precise language relied on by the

Third Circuit, in decisions upholding the constitutionality of

pre-hearing suspensions without pay. See Jones v. City of

Gary, Ind., 57 F.3d 1435, 1441 (7th Cir. 1995); Ambus v.

Granite Bd. Of Education, 975 F.2d 1555, 1562 (10th Cir.

1992); Strong v. Bd. of Ed. of Uniondale Union Free Sch.

Dist., 902 F.2d 208, 211 (2d. Cir. 1990). None of these

decisions can be reconciled with the Third Circuit’s holding in

this case. The Court should review this case in order to resolve

this conflict.

“As the Third Circuit pointed out, Pet. App. 1 la-12a & n. 12, an earlier

decision of the Eleventh Circuit agreed with its reading of Loudermill. See

Everett v. Napper, 833 F.2d 1507 (11th Cir. 1987).

-10-

Il. THE THIRD CIRCUIT’S DECISION CONFLICTS

WITH THE APPLICABLE DECISIONS OF THIS

COURT.

The Third Circuit's per se rule against pre-hearing

suspensions without pay is inconsistent with the flexible

analysis which has long been the hallmark of the Court's

procedural due process jurisprudence. The Court has long

emphasized

the truism that due process, unlike some legal

rules, is not a technical conception with a fixed

content unrelated to time, place and

circumstances.... [D]ue process is flexible and

calls for such procedural protections as the

particular situation demands.

Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (citations and

internal quotation marks omitted). The Court has consistently

held that the Due Process Clause requires, in each case, a

particularized balancing of the private and governmental

interests at stake, the need to avoid administrative burdens and

the probable value of additional safeguards, and the risk of an

erroneous deprivation. See, e.g., Loudermill, 470 U.S. at 542-

43; Logan v. Zimmerman Brush Co., 455 U.S. 422, 434

(1982).

Most importantly for this case, the Court has repeatedly

rejected the idea that due process “always requires the State to

provide a heai ng prior to the initial deprivation of property.”

Parratt v. Taylor, 451 U.S. 527, 540 (1981), overruled in part

on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

Rather, “there are ... some situations in which a post-

deprivation hearing will satisfy due process requirements.”

-ll-

Loudermill, 470 US. at 542 n. 7. Even in employment cases,

{a}n important government interest,

accompanied by a substantial assurance that the

deprivation is not baseless or unwarranted, may

in limited cases éemanding prompt action justify

postponing the opportunity to be heard until

after the initial deprivation.

FDIC v. Mallen, 486 U.S. 230, 240 (1988).

The Third Circuit’s imposition of a4 *lanket rule to

govern all cases of suspension without pay simply cannot be

squared with this well-settled analysis. The Court should

review this case to correct this error, and to resolve the tension

which the Third Circuit perceived to exist between the Court's

dicta in Loudermill and its holdings in Mallen and the other

cases cited above.

Ill. THE ISSUE PRESENTED BY THIS CASE IS

IMPORTANT TO PUBLIC EMPLOYERS AT

ALL LEVELS OF GOVERNMENT.

As the cases cited in this petition and in the decisions

below illustrate, governments at all levels are frequently faced

with the urgent need for prompt action to protect the public

are charged with criminal or other wrongdoing. See, e.g.,

Engdahi v. Dept. of Navy, supra (naval employee charged with

sexual offenses against child); Bailey v. Board of County

Com'rs of Alachua County, supra (prison guard arrested for

collusion in escape); Ambus v. Granite Bd. Of Education,

supra (teacher arrested on drug charges). When these

situations arise, it is important that officials know what they

may and may not do, consistent with the Constitution, to

-12-

protect the public. The Court should review this case to

provide that guidance.

CONCLUSION

For these reasons, the Court should grant the petition

for the writ of certiorari and, upon review, reverse the

judgment of the Court of Appeals on the respondent's

suspension-without-pay claim.

THOMAS W. CORBETT, JR.

Attorney General

By: GWENDOLYN T. MOSLEY

Senior Deputy Attorney General

Counsel of Record

CALVIN R. KOONS

Senior Deputy Attorney General

JOHN G. KNORR, III

Chief Deputy Attorney General

Office of Attorney General Chief, Litigation Section

15” Fl., Strawberry Square

Harrisburg, PA 17120

(717) 783-1371

October 16, 1996

-14-

Filed July 18, 1996

UNITED STATES COURT OF ALS

FOR THE THIRD CIRCUIT

No. 95-7218

Richard J. HOMAR,

¥ Appellant

JAMES E. GILBERT, Indivi , and in his

as Pres. of E.S. Univ.; GERAL LEVANO

Indi , and in his | as director of a.

Res. at E.S. Univ.; DA , Individually,

and in his as Police Chief of E.S. Univ.;

CURTIS ENGLISH, , and in his

capacity as V.P. of E.S. Univ.

from the United States District Court

or the Middle District of vania

(D.C. Civil No. 93-cv-0852)

Submitted Under Third Circuit LAR 34.1(a)

Thursday, November 2, 1995

Before: NYGAARD, ALITO, and SAROKIN,

Circuit Judges

(Filed July 18, 1995)

Attorneys for Appellees

OPINION OF THE COURT

SAROKIN, Circuit Judge.

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 whic’ 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

2a

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.

I.

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. App. at 143. 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

4a

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.

App. at 205.

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.’

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

‘On February 16, 1993, Levanowitz directed retroactive payment to

Homar of the difference in groundskeeper salary and police officer's salary for

the period of his suspension.

6a

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.

Il.

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 (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 (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.

Il.

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.

7a

In Cleveland Bd. of Education v. Loudermill, 470 U.S.

532 (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 hearing. Such a hearing need not be elaborate,

but rather "an initial check against mistaken

decision--essentially, a determination of whether there are

reasonable grounds to believe that the charges against the

employee are true and support the proposed action." Jd. at

545-46. Loudermill specifically requires that prior to

termination:

[a] tenured public employee is entitled to oral or written

notice of the charges against him, an explanation of the

employer's evidence, and an opportunity to present his

side of the story.

Id. at 546.

The Supreme Court has made it eminently clear that due

process entitles a party to such a hearing "before he [or she] is

deprived of any significant property interest, except for

extraordinary situations where some valid governmental interest

is at stake that justifies postponing the hearing until after the

event." Boddie v. Connecticut, 401 U.S. 371, 379 (1971); see

also Loudermill, 470 U.S. at 542; Bell v. Burson, 402 U.S.

535, 542 (1971). This fundamental right to a pre-deprivation

hearing is not abridged by the availability of extensive

post-deprivation remedies. See Morton v. Beyer, 822 F.2d

364, 368 (3d Cir.1987) (holding that "the availability of

extensive post-termination procedures does not eliminate the

essential requirement of due process that a hearing be provided

before discharge"); Gniotek v. City of Philadelphia, 808 F.2d

241, 243 (3d Cir.1986) (noting that "[t}he predeprivation

hearing need not be elaborate, but it is necessary, even if

8a

extensive post-deprivation remedies are afforded."), cert.

denied, 481 U.S. 1050 (1987).

While we recognize that Homar was not completely

terminated from his employment with ESU, he was terminated

from his position as a police officer and received a reduction in

his pay. Accordingly, we find the requirements of Loudermill

to be applicable in this instance. Indeed, there is no dispute

among the parties that Homar had a property interest in his

employment as police officer. Rather, the dispute concerns the

degree of due process to which Homar was entitled prior to his

suspension without pay and prior to his demotion from his

position as police officer to groundskeeper.

A.

We will first address Homar's contention that he was

entitled to notice and an opportunity to be heard prior to his

suspension without pay from his position as an ESU police

officer.

It is undisputed that Homar was not afforded any kind

of hearing prior to his suspension without pay immediately

following his arrest on drug charges. ESU nonetheless argues

that Homar's due process rights were not violated because,

while Homar's interest in remaining in his job is "an important

one,” ESU had a compelling interest in "taking prompt action

to maintain public confidence in its police force." Appellee's

Brief at 15. Indeed, the Supreme Court has explained that

[aJn important government interest, accompanied by a

substantial assurance that the deprivation is not baseless

or unwarranted, may in limited cases demanding prompt

action justify postponing the opportunity to be heard

until after the initial deprivation.

FDIC v. Mallen, 486 U.S. 230, 240 (1988); see also Boddie,

401 U.S. at 379 (noting that there can be “extraordinary

situations where some valid governmental interest is at stake

that justifies postponing the hearing until after the event").

The district court agreed with ESU, finding that it was

permissible for the university to suspend Homar without pay

and without a hearing. The court first noted that "[bjoth the

timing and the nature of requisite process depends upon an

‘appropriate accommodation of the competing interests

involved.’ " Homar v. Gilbert, No. CV-93-0853, typescript at

11 (M.D.Pa., March 17, 1995) (hereinafter "D. Ct. Op.")

(citing Goss v. Lopez, 419 U.S. 565, 579 (1975)). It then

applied the analysis prescribed by Logan v. Zimmerman Brush

Co., assessing the competing interests involved, including "the

importance of the private interest, and the length and finality of

the magnitude of the governmental interests involved." /d.,

typescript at 11 (quoting Logan v. Zimmerman Brush Co., 455

U.S. 422 (1982)). While the district court recognized that

Homar's "private interest was strong,” it found that “the

deprivation incident to a suspension was only temporary and of

a relatively brief duration (approximately one month)." /d.,

typescript at 11. The district court concluded that Homar's

interest in avoiding such a “temporary” and “brief” deprivation

was not as compelling as “the governmental interest in

preserving public confidence in law enforcement." Id.,

typescript at 12. The court found its conclusion bolstered by

the fact that Homar was eventually awarded full pay and

benefits for the period of suspension, noting that "

‘[s)uspension with pay does not raise due process concerns.’ "

Id., typescript at 13 (quoting Hicks v. City of Watonga, Okl.,

942 F.2d 737, 746 n. 4 (10th Cir.1991).

10a

We agree with the district court that there was a

compelling governmental interest which supports ESU's

decision to suspend Homar immediately and without a hearing

pending further investigation. The university has a substantial

interest in maintaining public confidence in the ESU police

force, and Homar's arrest on drug charges certainly suffices to

ensure that the university's concerns were not baseless or

unwarranted, as required by the Supreme Court. See Mallen,

486 U.S. at 240. In circumstances where public safety is

implicated, "[njot even an informal hearing ... must precede a

deprivation." Caine v. Hardy, 943 F.2d 1406, 1412 (Sth

Cir.1991) (en banc), cert. denied, 503 U.S. 936 (1992).

Nonetheless, we find that Homar's due process rights

were violated because he was suspended without pay. The

Supreme Court's decision in Loudermill strongly suggests that

suspension without pay must be preceded by notice and an

opportunity to be heard in all instances. Initially, the Court

noted that it had "frequently recognized the severity of

depriving a person of the means of livelihood." Loudermill,

470 U.S. at 543. Then the Court explained that, while it

recognized that there were some limited instances in which a

strong governmental interest might warrant immediately

removing a person from a position without a hearing, "in those

situations where the employer perceives a significant hazard in

keeping the employee on the job, it can avoid the problem by

suspending with pay.” Id. at 544-45 (emphasis added).

Other circuits which have examined this language in

Loudermill have disagreed with regard to its precise mandate.

At least one court of appeals has read Loudermill to require that

an employee be provided an opportunity to be heard prior to

suspension without pay. See Everett v. Napper, 833 F.2d

1507, 1512 (11th Cir. 1987) (holding that, under Loudermill a

suspended firefighter was entitled to a hearing prior to

lla

suspension because he was not paid during his suspension).

The Federal Circuit, by contrast, noted that Loudermill 's

prescription of suspension with pay in situations where

significant hazards would result from continued employment

was only dicta: "We agree that in the instant case, the

government could have suspended with pay. Nevertheless, we

cannot read Loudermill as holding the government must

suspend ... with pay." Engdahl v. Dept. of Navy, 900 F.2d

1572, 1578 (Fed.Cir. 1990). Other circuits, while not explicitly

addressing Loudermill, have on occasion allowed suspension

without pay to stand even in the absence of a pre-deprivation

hearing. See, e.g., Jones v. City of Gary, Ind., 57 F.3d 1435,

1436 (7th Cir.1995); Ambus v. Granite Bd. of Educ., 975 F.2d

1555, 1558, 1562 (10th Cir.1992), modified on rehearing by,

995 F.2d 992 (10th Cir.1993) (en banc).’

This court has not precisely addressed this issue in the

past. However, our decision in Bradley v. Pittsburgh Bd. of

Educ., 913 F.2d 1064 (3d Cir.1990), may be read to imply

that, under Loudermill, suspension without a pre-deprivation

hearing is only constitutional if the suspension is one with pay.

*In disagreeing with our conclusion that Loudermill suggests that a state

employer may not suspend an employee without pay absent a pre-suspension

hearing, the dissent lists several additional cases that it contends interpret the

language in Loudermill differently. Dissent, at 26-28. Only Engdahl and Bailey

v. Board of County Com'rs of Alachua County, 956 F.2d 1112, 1124 n. 13 (11th

Cir.1992) actually squarely consider the Loudermill language, however, and the

Eleventh Circuit in Bailey failed to acknowledge its previous contrary precedent

in Everett. The remainder simply allow suspensions without pay and without a

pre-deprivation hearing to stand without discussing whether Loudermill anticipates

that such a practice should be permitted. In the absence of such discussions, we

do not think these decisions can be characterized as reaching any conclusion one

way or the other about the Loudermill language. Furthermore, we do not think

that Mallen can be read to undermine the message of Loudermill, as it includes no

discussion of suspension with pay versus suspension without pay; indeed, the

pay or without pay.

12a

—

In Bradley, we were called upon to decide, among other issues,

whether a teacher who had been effectively suspended without

pay and without a hearing for one year prior to being officially

terminated, had been deprived of his procedural due process

rights. The employer in Bradley ultimately provided Bradley

full sabbatical pay for the year in question. The district court

had relied upon Loudermill to conclude that the employer was

entitled to suspend Bradley without a pre-suspension hearing

because he eventually had been provided payment for the

period of suspension. /d. at 1077. In reviewing this decision,

we first acknowledged that under Loudermill, in circumstances

where a governmental employer perceives substantial hazards

in keeping an employee on the job, it may suspend the

employee with pay until such time that a hearing may be held.

Id. (citing Loudermill, 470 U.S. at 544-45). We concluded,

however, that "Loudermill [did] not govern [that] case because

Bradley was suspended without pay." Id. We thus implicitly,

but necessarily, rejected the idea that a government employer

could cite to the substantial hazards of keeping an employee on

the job and thereby suspend him without a pre-suspension

hearing without pay. Had we determined that Bradley had been

suspended with pay, we presumably would have found that the

Loudermill exception--essentially the Mallen

exception--applied. Thus, while Bradley does not explicitly

declare that suspension without pay and without a

pre-suspension hearing always violates due process, such a

holding may be inferred from its reasoning.’

*As the dissent points out, later in the Bradley opinion, we did expressly

reserve decision on whether Bradley was entitled to a pre- or post-suspension

hearing, noting that Bradley was not provided any hearing whatsoever. The

discussion as written in Bradley does suggest that, had Bradley been provided a

post-suspension hearing, the court envisioned that it might have found a

post-suspension hearing was adequate under Mallen. However, we did not

consider the question in any detail. Had we done so, we would have realized that

a conclusion that a post-suspension hearing was sufficient would be inconsistent

13a

Today we clearly enunciate that a governmental

employer may not suspend an employee without pay unless that

suspension is preceded by some kind of pre-suspension hearing,

providing the employee with notice and an opportunity to be

heard. We think that such a holding is not only consistent with,

and suggested by, Loudermill, but it is also eminently sensible.

It is imperative that employers be provided with adequate

flexibility to allow them to protect the public and respond to

emergency situations expediently. Suspension with pay

addresses these important concerns while simultaneously

protecting the fundamental rights of an employee to due process

prior to being deprived of his or her property interest in

employment and its accompanying salary.‘ Furthermore, this

conclusion seems consistent with the Supreme Caurt's holding

in Zimmerman Brush that, in determining the timing and nature

of an appropriate hearing, courts should assess the competing

interests involved and arrive at an appropriate accommodation.

Zimmerman Brush, 455 U.S. at 434.°

with our earlier conclusion that the Loudermill exception could not apply because

Bradley was suspended without pay.

“The dissent questions the purpose a pre-deprivation hearing would have

served in Homar's case, given that he had been arrested, admitted as much, and

even anticipated being suspended. Dissent, 25 & n.1, 28-30. We think,

however, that a pre-suspension hearing may have allowed Homar an important

opportunity to present his side of the story, and deny any wrong-doing. While we

anticipate that ESU probably would have decided to suspend Homar pending

further exploration of the charges against him, had Homar had an opportunity to

present his story, ESU may have decided to limit the scope of the suspension by,

Homar may have been well aware of the reasons for his suspension, when ESU

deprived him of a pre-deprivation hearing, he nonetheless was denied a

meaningful opportunity to respond to the charges.

‘The dissent properly places much emphasis on the importance of courts

balancing competing interests and considering the particular circumstances of each

case in determining the procedural due process requirements See Dissent, at 28.

However, the dissent does not explain why, in order to maintain public confidence

l4a

As noted above, the district court treated Homar's

suspension as a suspension with pay:

That Homar was originally suspended without pay does

not warrant a finding that he was deprived of property

without due process. At most, he was denied use of his

salary for a very brief period of time. To recognize a

cause of action for denial of due process under these

circumstances would clearly elevate form over

substance.

* * *

Since he clearly could be suspended with pay without

after being suspended he was awarded full pay for the

period of suspension, any injury resulting from the

failure to provide an opportunity to be heard before the

suspension was imposed is surely de minimis.

D. Ct. Op., typescript at 13-14.

We fundamentally disagree with the district court's

conclusion. First, our decision in Bradley clearly indicates that

the subsequent awarding of backpay does not remedy a due

process violation:

The right to procedural due process cannot be so

ephemeral that it evaporates because an individual

suspended without pay happened to obtain paid leave

in the police department and to protect public safety, it is necessary that a ESU

not only suspend Homar from acting as a police officer, but also deprive him of

his salary. As noted above, we think that the substantial governmental interests

implicated in this case are protected by allowing ESU to immediately suspend

Homar without a pre-deprivation hearing, but with pay.

15a

thereafter.... That may affect the damages ultimately

awarded, but if there was a violation of due process,

[the employee] is entitled to have that right vindicated.

Bradley, 913 F.2d at 1077.

Second, Homar's suspension without pay cannot be

viewed as de minimis. At the time that Homar was suspended,

he was told that he was "to be suspended without pay, effective

immediately on 8/26/92, from [his] position as a police officer

at East Stroudsburg University." App. at 197. For a period of

approximately one month, Homar's very livelihood was

threatened because he received no salary. As far as Homar

knew at the time of his suspension, he had no prospects

whatsoever of receiving any wages for the indefinite duration

of his suspension. It was not until he received his letter of

demotion on September 24, 1992--nearly a month after he was

suspended--that he learned he would be receiving backpay at

the rate of a groundskeeper. While it is true that Homar

eventually received backpay at the wage rate he earned as a

police officer to cover the period of his suspension, we note

that according to Defendant's Statement of Material Fact

accompanying their Motion for Summary Judgment,

Levanowitz did not authorize Homar's backpay at the rate of a

police officer until February 16, 1993. Thus, for nearly six

months, Homar was deprived of a salary that was rightfully his.

Furthermore, there is evidence to suggest that ESU only agreed

to pay this rate upon pressure from Homar's union

representative.°

_ *That ESU ultimately provided Homar backpay at the rate of a police

officer for this period of his suspension is an indication that ESU was aware that

it had erroneously deprived Homar of his salary.

16a

Accordingly, we find that Homar was entitled to notice

and at least some kind of hearing prior to being suspended

without pay.’ It is undisputed that Homar received no hearing

prior to his suspension, and we conclude that the district court

erred in granting summary judgment in favor of defendants on

Homar further alleges that he was deprived of

meaningful pre-termination due process in the course of his

demotion to the position of groundskeeper.

As outlined above, Loudermill requires that a public

employee with a property interest in his or her employment be

granted a meaningful pre-termination hearing. Loudermill, 470

U.S. at 545-46. We reiterate that it is of paramount importance

that this hearing take place prior to the deprivation. As

explained above, absent compelling government interests

justifying postponement of a hearing, the hearing must take

place before the deprivation, see Boddie, 401 U.S. at 379;

Loudermill, 470 U.S. at 542; Bell, 402 U.S. at 542, because

"the only meaningful opportunity to invoke the discretion of the

’The dissent contends that our reasoning is flawed because a public

employer may suspend an employee for cause, with pay, without implicating any

constitutionally protected property interest. Dissent 30. While the Tenth Circuit

has squarely held suspension with pay does not implicate due process concerns,

see Hicks, 942 F.2d at 746 n. 4, we are less sure that such is the case. While a

salary is probably the most obvious property interest in employment, we think

there are clearly other interests involved. In Homar's case they would include his

interest in participating in the daily affairs of the ESU community as a police

officer, along with his interest in the honor and respect that accompanies the post.

Cf. Mallen, 486 U.S. at 240 (noting that a bank president's interest in the right

“to continue to serve as president of the bank and to participate in the conduct of

its affairs is a property right protected by the Fifth Amendment Due Process

Clause”) (emphasis added).

17a

decisionmaker is likely to be before the termination takes

effect." Id.; see also, Board of Regents v. Roth, 408 U.S.

564, 570 n. 7 (1972). Indeed, this right to pre-deprivation due

process is so fundamental that it remains "even if extensive

post-deprivation remedies are afforded." Gniotek, 808 F.2d at

243; see also Morton, 822 F.2d at 368.

This pre-deprivation hearing need not be elaborate. As

e)>lained by the Supreme Court, " ‘something less’ than a full

evi’ -mtiary hearing is sufficient prior to adverse administrative

action." Loudermill, 470 U.S. at 545 (citations omitted).

Nonetheless, the hearing must be sufficient to inform the

employee of the evidence against him or her and to respond to

the evidence. See Fraternal Order of Police Lodge No. 5 v.

Tucker, 868 F.2d 74, 80 (3d Cir.1989). "[A] sina [sic] qua

non of a meaningful hearing is a sufficient explanation of the

employer's evidence to permit a meaningful response." Jd.

Under the circumstances presented here, where Homar

was suspended from his position pending further investigation

into his activities, it is clear that there was no compelling

government issue at stake that would require ESU to

immediately deprive Homar of his employment. Any concerns

about preserving public safety or the integrity of the police

force were met by Homar's suspension. The university thus

was afforded the time it would need adequately to provide

Homar a pre-deprivation hearing. The question for us to

answer, then, is whether the university provided him such a

hearing.

The district court concluded that the "administrative

hearing" which took place on September 18 did not meet the

due process requirements of a pre-deprivation hearing because

it "did not allow [Homar] to make a meaningful response to the

18a

damaging information found in the supplemental report." D.

Ct. Op., typescript at 15. We agree.

During the September 18 meeting, Levanowitz only told

Homar that the State Police had given him some "evidence very

serious in nature." App. at 164. While it safely can be

presumed that Homar knew that ESU's concerns about his

employment arose from his arrest on drug charges, Homar was

not aware of the allegations made against him by the troopers

that were presented in the Supplemental Report, namely that he

allegedly confessed to knowing that Crompton and Habhab

were drug dealers and to receiving marijuana from Habhab

during his employment as a police officer. More to the point,

Homar was completely unaware that Levanowitz had received

a copy of the Supplemental Report containing these allegations.

Under these circumstances it is very clear that Homar's right to

a meaningful pre-deprivation hearing was denied. See Tucker,

868 F.2d at 80 (holding that suspended police officers who

were not told anything specific about drug use allegations or the

evidence regarding the allegations were deprived of their due

process rights because they had no opportunity to explain or

rebut evidence).

In spite of its conclusion regarding the insufficiency of

the September 18 "administrative hearing," the district court

entered summary judgment in favor of defendants because it

concluded that Homar's September 24, 1995 meeting with

President Gilbert, prior to which Homar had received and read

the Supplemental Report, was a meaningful pre-termination

hearing. D. Ct. Op., typescript at 16. Given that Homar was

afforded an opportunity to review the Supplemental Report and

offer meaningful responses to the allegations, we find that this

meeting afforded Homar with sufficient procedural due process

protections assuming it took place prior to his demotion

becoming effective. While true that an employee is not entitled

19a

to a pre-decision hearing, see Chung v. Park, 514 F.2d 382,

387 (3d Cir.), cert. denied, 423 U.S. 948 (1975), only if this

hearing took place before his demotion took effect can we

conclude that he was afforded meaningful due process.

The district court held as a matter of law that Homar's

dismissal from his position as a police officer took effect only

after this meeting with President Gilbert. D. Ct. Op.,

typescript at 16. The district court found that the meeting,

which took place at 2 p.m. on September 24, 1992, “occurred

before Homar would have started his evening shift as police

officer should Gilbert have decided to reinstate him to that

position," id., and thus concluded that "Gilbert's decision that

Homar could not return to ESU as a police officer is properly

viewed as the point in time when Homar was deprived of his

position as an ESU police officer." Id.

We disagree with the district court that the point in time

at which Homar's demotion became effective is clear. There

is substantial evidence in the record to support a conclusion that

Homar's demotion took effect prior to this meeting. Homar's

meeting with Gilbert took place on September 24 at 2:00 p.m.

The letter which Levanowitz sent to Homar apprising him that

he had been demoted to Groundskeeper was dated on

September 23, 1992. In that ietter, Levanowitz informed

Homar that he was “to be demoted from [his] position as a

Police Officer I in the Campus Police Department to the

position of Groundskeeper, a position [he] formerly held."

App. at 208 (emphasis added). The letter further required that

Homar "report to work at 7:00 A.M. on September 24, 1992,"

to start his job as groundskeeper, and informed Homar that this

“action is effective retroactive to August 26, 1992." App. at

208 (emphasis added). Homar testified during a deposition that

he was already working as a groundskeeper at the time of his

September 24th, 2:00 p.m. meeting with Gilbert. There is thus

20a

evidence suggesting that Homar had already been demoted to

groundskeeper by the time this meeting took place. If this is

true, then Homar was deprived of a meaningful pre-deprivation

hearing.

The district court based its contrary conclusion on two

grounds. First, the court determined that "[tJhe significance of

the meeting was that Gilbert held ultimate decision-making

authority regarding whether Homar would remain employed by

ESU as a police officer." D. Ct. Op., typescript at 15.

However, this meeting with Gilbert never would have occurred

had Homar's union representative not sought to arrange for the

meeting with Gilbert. App. at 225. This fact seems to suggest

that Levanowitz's demotion of Homar would have become

effective without Gilbert's approval, which would render

Levanowitz's letter the final demotion. | Levanowitz's

authoritative tone in the letter similarly supports this

conclusion.

The district court also concluded that the meeting with

Gilbert had taken place prior to Homar's demotion because it

occurred before 4 p.m., the time at which Homar would

normally begin his shift as a police officer. Jd. at 16. We

disagree that the timing of the demotion is so clear. We think

there is certainly an issue of material fact as to whether

Homar's demotion became effective on August 26, as stated in

the letter; at 7:00 a.m. on September 24, the date he was told

to report to work as a groundskeeper; or at 4:00 p.m. on

September 24, the time at which Homar would normally report

to work as a police officer. Unless defendants expected Homar

to act as both groundskeeper and police officer on September

24, the facts appear to support the conclusion that Homar's

demotion was effective at the latest by 7 a.m. on the morning

of September 24th, seven hours prior to his meeting with

Gilbert.

2la

We thus conclude that there is a genuine issue of

material fact regarding the date and time at which Homar's

demotion became effective, and that the district court's grant of

summary judgment was therefore inappropriate. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (holding

summary judgment is inappropriate if there is evidence "such

that a reasonable jury could return a verdict for the nonmoving

party."). Accordingly, we reverse the district court's entry of

summary judgment regarding Homar's meaningful

pre-deprivation hearing.

IV.

Homar also contends that there is an issue of material

fact as to whether his substantive due process rights were

violated. Relying on this court's precedent in Parkway

Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 692 (3d

Cir.1993) in which we stated that "[a] violation of substantive

due process rights is proven: ... ‘if the government's actions

in a particular case were in fact motivated by bias, bad faith or

improper motive ...,' " id. (quoting Midnight Sessions, Ltd. v.

City of Philadelphia, 945 F.2d 683 (3d Cir.1991), cert. denied,

503 U.S. 984 (1992)), Homar points to several facts that he

argues demonstrate thai his suspension and demotion were

motivated by bias, bad faith or improper motive.

The district court granted summary judgment in favor

of defendants on this claim on the ground that there was no

genuine issue of material fact as to whether Levanowitz, Gilbert

or any other ESU official was motivated by bias, bad faith or

improper motive.

While we agree with the district court that the evidence

in this case does not support a conclusion that Levanowitz or

any other ESU official was motivated by an improper motive in

22a

suspending and then demoting Homar, for there is, indeed,

"nothing improper about conducting an investigation of a law

enforcement officer who has been arrested, even if the charges

are ultimately dismissed," D. Ct. Op., typescript at 23, we

think that there is a question of material fact as to whether ESU

officials acted in bad faith. Several events leading up to

Homar's demotion suggest that Levanowitz did not engage in

a good faith effort to accord Homar appropriate due process

protection throughout his ordeal. Levanowitz never informed

Homar that he had received and read the Supplemental Report

prior to their September 18 meeting; Levanowitz ordered that

a poll be taken among police officers regarding whether Homar

should be allowed to return to the force, which is certainly a

very strange proceeding outside the realm of traditional due

process proceedings; and Levanowitz issued the September 23

letter of demotion prior to the meeting with President Gilbert--a

meeting which occurred only after Homar's union

representative requested it take place. Such events might lead

a reasonable fact-finder to conclude that Homar's demotion was

pre-determined and to view the entire demotion process as

rigged to produce this result.

Our conclusion that there is a genuine issue of material

fact as to whether ESU officials were motivated by bad faith,

however, does not lead us to remand this matter simply for a

factual finding. A more fundamental legal question must first

be addressed, namely whether Homar's property interest in his

state-created job is an interest worthy of protection under

substantive due process. DeBlasio v. Zoning Bd. of

Adjustment, 53 F.3d 592, 598, 600 (3d Cir.1993) (holding that

before addressing the sufficiency of the evidence of improper

motive, a court addressing a substantive due process claim

should first consider whether the plaintiff possesses a property

interest worthy of substantive due process protection).

Although Homar has succeeded in making a procedural due

23a

process claim, under the law of this circuit "not all property

interests worthy of procedural due process protections are

protected by the concept of substantive due process." Reich v.

Beharry, 883 F.2d 239, 244 (3d Cir.1989). In order to state a

substantive due process claim, “a plaintiff must have been

deprived of a certain quality of property interest." DeBlasio, 53

F.3d at 600.

question of whether a state-created property interest in

employment is the "certain quality" of property interest worthy

of protection under the substantive due process clause, nor did

the district court consider it. While courts of appeals do have

discretion to consider and resolve certain issues for the first

time on appeal, such as where the proper resolution is no! in

doubt or where " ‘injustice might otherwise result,’ " Singleton

v. Wulff, 428 U.S. 106, 121 (1976) (quoting Hormel v.

Helvering, 312 U.S. 552, 557 (1941)); see also Nelson v.

County of Allegheny, 60 F.3d 1010, 1013 n. 3 (3d Cir.1995),

it is a general rule that federal appellate courts do not consider

an issue not passed upon below. Singleton, 428 U.S. at 120.

In the instant case, we think it appropriate to remand

this issue for consideration in the first instance by the district

court. Certainly this is not a situation where the proper

resolution is clear. Rather, the case law of this circuit and the

Supreme Court provides very little guidance as to what

constitutes this "certain quality" of property interest worthy of

protection under the substantive due process clause. We have

held that “ownership is a property interest worthy of

substantive due process protection," id., but we have found that

neither interest in prompt receipt of payment for professional

services provided to the state, Reich, 883 F.2d at 244-45, nor

state law entitlement to water and sewer services, Ransom v.

Marrazzo, 848 F.2d 398, 411-12 (3d Cir.1988) are the "certain

24a

quality" of property interest worthy of substantive due process

protection. We also have strongly suggested in dictum that a

student's right to continued enrollment in a graduate program

does not rise to such a level on the ground that such an interest

bears " ‘little resemblance to the fundamental interests that

State-created employment. Given the complexity of this issue,

we think it appropriate to allow the district court the first

Opportunity to consider it. Should this issue return to us on

appeal, we will benefit from the district court's analysis.

Furthermore, we have already determined to remand this matter

on the procedural due process ground as well, eliminating any

concern about the injustice of delaying the final conclusion of

this case. Accordingly, we remand this question to the district

V.

Additionally, Homar contends that a genuine issue of

material fact exists as to whether Homar's due process rights

were violated because defendants made public statements about

his suspension that stigmatized Homar and damaged his

reputation. Specifically, Homar alleges that ESU violated his

protected liberty interest in two ways. First, he alleges that

ESU seriously damaged his good name and reputation by

publicly disclosing the charges against him. Second, Homar

alleges that ESU imposed a stigma or disability on him,

foreclosing his freedom to take advantage of other employment

opportunities. We will address these two claims in turn.

A.

The Supreme Court has held that a person has a liberty

interest in employment actions which require due process

"where a person's good name, reputation, honor or integrity is

at stake because of what the government is doing to him."

Roth, 408 U.S. at 573. Homar claims that this liberty interest

was implicated in the instant case because ESU's demotion of

him " ‘damage[d] his standing and associations in the

community.’ " Appellant's Brief at 28 (citing Roth, 408 U.S.

at 573. Homar may only prevail on this claim if he can

demonstrate that the government "create[d] and disseminate({d]

a false and defamatory impression about [him] in connection

with his termination." Codd v. Velger, 429 U.S. 624, 628

(1977) (per curiam). See also Bishop v. Wood, 426 U.S. 341,

348-49 (1976).

Homar contends that ESU's disclosure of its

investigation into his activities in a small article that appeared

in the Pocono Record newspaper,* coupled with his subsequent

demotion, implicated his liberty interest. We disagree. The

*The text of the article, which appeared on the September 3, 1992

edition of the paper, reads as follows:

East Stroudsburg University should decide by next week whether to

reinstate suspended ESU police officer Richard J. Homar.

Charges were dropped Tuesday against Homar, 26, after District

Justice Charles Eyer ruled their [sic] wasn't enough evidence to hold

him for trial. Homar had been charged with possession and delivery of

Jerry Levanowitz, ESU's director of Human Resources, said the

university is still conducting its investigation. "The dropping of the

charges has been noted,” he said.

Once the investigation is completed a due process hearing wil! be held

for Homar and a decision will be rendered, Levanowitz said.

Last week, state police arrested Homar, an ESU officer for about six

months, and two other men for allegedly conspiring to sell marijuana.

App. at 213.

26a

article in the newspaper did not disclose any specifics regarding

the nature of ESU's concern, nor did it disclose information

the article appeared prior to his demotion, and there is no

evidence to indicate that ESU publicly disclosed the outcome of

its investigation or the fact that it demoted Homar to

groundskeeper. We accordingly find that Homar has no liberty

interest claim. See Tucker, 868 F.2d at 82 (holding that no

liberty interest was implicated when press release about

discharge of police officers was not misleading).

Homar further alleges that ESU violated his liberty

interest because it imposed “a stigma ... that foreclosed his

freedom to take advantage of other employment opportunities."

Roth, 408 U.S. at 573. Yet Homar has proffered no evidence

to suggest that the disciplinary actions taken by the university

had in any way foreclosed other employment opportunities.”

Indeed, Homar testified at his deposition that he had not sought

Out a position with any other employer since his demotion.

App. at 50. Furthermore, as noted above, Homar makes no

allegations that any information in the newspaper article was

untrue; the university never even publicly disclosed that

Homar was terminated from his job as police officer. Under

such circumstances, we cannot find that Homar's liberty

interest was implicated. Tucker, 868 F.2d at 83.

Accordingly, we affirm the district court's issuance of

summary judgment as to this issue.

*Homar testified during his deposition that, prior to his arrest he had

applied for two part-time jobs for which he was not hired. App. at 97, 102. No

evidence was proffered, however, to indicate that his arrest was the reason he was

not offered these jobs.

27a

VI.

For the foregoing reasons, we affirm in part, reverse in

part and remand for further proceedings consistent with this

opinion.

ALITO, Circuit Judge, concurring in part and dissenting in

part.

I write separately for two reasons. First, I would hold,

based on the undisputed facts of this case, that the university's

suspension of Homar without pay and without a hearing did not

violate the principles of procedural due process as interpreted

by the Supreme Covs*. I thus dissent from section III.A of the

majority's opinion. Second, although I do not disagree with the

majority's decision to remand the substantive due process

question to the district court, I wish to set forth my own views

on that issue.

I.

A. Due process does not always require a

pre-suspension hearing. See, e.g., FDIC v. Mallen, 486 U.S.

230, 240-41 (1988); Barry v. Barchi, 443 U.S. 55, 63-66

(1979). In Mallen, the Supreme Court observed that "[a]n

important government interest, accompanied by a substantial

assurance that the deprivation is not baseless or unwarranted,

may in limited cases demanding prompt action justify

postponing the opportunity to be heard until after the initial

deprivation.” Jd. at 240 (citations omitted); see also Logan v.

Zimmerman Brush Co., 455 U.S. 422 (1982) ("[T]he timing

and nature of the required hearing ‘will depend on appropriate

accommodation of the competing interests involved. These

include the importance of the private interest and the length or

finality of the deprivation, the likelihood of governmental

error, and the magnitude of the governmental interests

involved.") (citations and footnote omitted). In my view, this

exception should apply here. See, e.g., Ambus v. Granite Bd.

of Educ., 975 F.2d 1555, 1562 (10th Cir.1992), aff'd as

modified on other ground, 995 F.2d 992 (10th Cir.1993) (en

banc).

29a

Under the particular circumstances of this case, a

pre-suspension hearing was not, in my view, essential. Within

a few hours of the August 26, 1992, drug raid that resulted in

Homar's arrest, the university learned that Homar had been

charged with possession of marijuana, possession with intent to

deliver marijuana, and criminal conspiracy. Homar did not

report to work on August 26 for his 4:00 p.m. to 12:00 p.m.

shift. The next day, Homar called his police chief to say that

he had been arrested and to ask whether he was suspended.

Homar was informed that he was suspended, and this was

confirmed by letter delivered the same day.'

I do not think that the university violated Homar's right

to procedural due process when it suspended him from his

position as a campus police officer after learning that he had

been arrested and charged with drug violations. There was

probable cause to support the criminal charges and hence a

substantial assurance that the deprivation was not baseless or

unwarranted. The university was certainly entitled to take the

position that Homar could not be permitted to work as a

campus police officer with such charges outstanding, and there

was thus, as the majority concedes, a compelling government

interest present. And the university needed to act promptly.

The majority admits all of this but finds that the university had

to suspend Homar with pay. I find no requirement that in such

circumstances a public employer must pay its suspended

employees.

‘As I discuss further, infra, given Homar's immediate admission of his

arrest, 1 am at a loss as to what purpose a pre-suspension hearing would have

served in this case. See generally Mathews v. Eldridge, 424 U.S. 319, 335

(1976) (one factor to consider in determining what due process requires is the

probable value, if any, of additional procedural safeguards).

30a

B. In reaching its conclusion to the contrary, the

majority declares that "a governmental employer may not

suspend an employee without pay unless that suspension is

preceded by some kind of pre-suspension hearing." Majority

Opinion, at 12. The majority essentially announces a blanket

rule that a public employer that wishes to suspend an

employee--even an employee in a public-safety position who

has been charged with multiple felonies--must either provide a

pre-suspension hearing or suspend the employee with pay.

This holding is based on one sentence of dictum from Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 544-45 (1985), the

Eleventh Circuit's reliance on that dictum in Everett v. Napper,

833 F.2d 1507, 1512 (11th Cir. 1987), and this court's opinion

in Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064 (3d

Cir.1990). These bases do not, in my view, withstand scrutiny.

With regard to Loudermill, I note that the Supreme

Court there expressly recognized that "[tJhere are, of course,

some situations in which a postdeprivation hearing will satisfy

due process requirements." Loudermill, 470 U.S. at 542 n. 7

(citations omitted). It is of course true, as the Court later

notes, that an employer can avoid any due process problems

associated with keeping a dangerous employee on the job by

suspending the employee with pay, id. at 544-45, "for then

there is not a deprivation." Bailey v. Board of County

Commissioners of Alachua County, 956 F.2d 1112, 1124 n. 13

(11th Cir.), cert. denied, 506 U.S. 832 (1992). But as the

Federal Circuit has explained, this "is merely descriptive, not

normative. We agree that in the instant case, the government

could have suspended with pay. Nevertheless, we cannot read

Loudermill as holding that the government must suspend him

with pay." Engdahl v. Department of Navy, 900 F.2d 1572,

1578 (Fed.Cir.1990). I agree.

3la

The Eleventh Circuit's decision in Everett, which was

issued before the Supreme Court's decision in Mallen, simply

relies on the Loudermill dictum. Numerous courts of appeals

have reached a contrary conclusion regarding the import of

Loudermill, particularly after Mallen. See Jones v. City of

Gary, 57 F.3d 1435, 1441-45 (7th Cir.1995) (no pre-

suspension hearing required where firefighter was suspended

without pay; plaintiff's property interests were adequately

protected by post-deprivation hearing); id. at 1445-46 (Ripple,

J., concurring) ("there are circumstances in which the need for

swift action on the part of those who exercise governmental

authority and responsibility for the safety and security of others

can justify the elimination or truncation of even the bare-bones

pretermination hearing required by Loudermill") (citations

omitted); Chaney v. Suburban Bus Div. of the Regional

Transp. Auth. , 52 F.3d 623, 628 (7th Cir. 1995) (plaintiff bus

driver suspended without pay after bus hit and injured

pedestrian; no pre-suspension hearing necessary as employer's

interests "clearly outweigh[ed]" those of plaintiff); Ambus v.

Granite Bd. of Educ., 975 F.2d 1555, 1562 (10th Cir. 1992)

(court discussed Loudermill but applied the Mallen exception

where a teacher was suspended without pay and without a

hearing after the school learned that the teacher had been

arrested on drug charges; court stated that "the substantiated

knowledge that a teacher had been arrested for drug sales raised

a substantial government interest justifying immediate

suspension without pay"), aff'd as modified on other ground,

995 F.2d 992 (10th Cir.1993) (en banc); Strong v. Board of

Educ. of Uniondale Union Free School Dist., 902 F.2d 208,

212 (2d Cir.) (citing Loudermill and Mallen, court concluded

that, on balance, no pre-termination hearing required; court

stressed that probable value of hearing was not very great

because parties were well aware of each other's assertions),

cert. denied, 498 U.S. 897 (1990); see also Richardson v. U.S.

Customs Service, 47 F.3d 415, 418-19 (Fed.Cir.1995)

32a

(discussing 5 U.S.C. § 7513(b)(1)) ("[A]n indictment for a

crime for which a sentence of imprisonment may be imposed

will, as a general rule, provide reasonable cause for an agency

to believe that the employee has committed such a crime, and,

when the -ature of the crime alleged relates to the employee's

ability to perform his or her duties, an agency may summarily

suspend the employee, without pay, pending the outcome of the

criminal proceedings.") (citations omitted); Bailey v. Board of

County Commissioners of Alachua County, 956 F.2d 1112,

1123-24 & n. 13 (11th Cir.) (qualified immunity) (stressing

flexibility of standard regarding necessity of pre-deprivation

hearing where prison guard was suspended without pay upon

his arrest), cert. denied, 506 U.S. 832 (1992); Gamble v.

Webb, 806 F.2d 1258, 1261 (Sth Cir.1986) (relying upon

Loudermill's statement that " ‘there are, of course, some

situations in which a post-deprivation hearing will satisfy due

process,’ " and concluding, under Logan balancing test, that

"the present one is such a situation") (quoting Loudermill, 470

U.S. at 542 n. 7) (brackets omitted). All of these

decisions--like the Supreme Court's procedural due process

cases in general and unlike the majority's blanket rule--reflect

a balancing of interests based on the particular circumstances of

each case.

I also believe that the majority has misinterpreted our

opinion in Bradley. Citing Bradley, 913 F.2d at 1077, the

majority states that Bradley implies that suspension without pay

and without a pre-suspension hearing always violates due

process. Majority Opinion, at 11-12. However, on the next

page of the Bradley opinion, the panel clearly stated:

We need not decide in this case whether Bradley was

entitled to a pre-suspension hearing, as he contends, or

whether a post-suspension hearing sufficed. Compare

Loudermill, 470 U.S. at 544, 105 S.Ct. at 1494

33a

(because government's interest in immediate termination

of security guard who had lizd when seeking

employment did not outweigh employee's interest in

retaining employment, pre-termination hearing was

required) with FDIC v. Mallen, 486 U.S. 230, 108

S.Ct. 1780, 1787-88, 100 L.Ed.2d 265 (1988) (because

government had substantial interest in suspending

indicted bank official to protect bank and depositors, a

post-suspension hearing within a reasonable time was

sufficient).

Bradley received no hearing, either before or after the

suspension, and hence if he was suspended, as the

record suggests, he was deprived of due process.

913 F.2d at 1078. In my view, far from implying anything, the

Bradley panel expressly reserved decision on the issue

presented in this case.’

I would resolve that issue in this case by following the

great weight of federal appellate authority cited above and

holding that whether a pre-suspension hearing was required in

this particular case requires a balancing of the relevant factors.

>The majority also defends its reliance on Bradley by characterizing the

Loudermill dictum and the Mallen exception as one and the same. See Majority

Opinion, at 11 & n.3. I do not agree with this assessment. Loudermili states that

an employer may satisfy due process by suspending an employee with pay. That

was not done in Bradley, and so the district court's reliance on the Loudermill

dictum was rightly held to be improper. But defendants in Bradley--like

defendants in this case-argued separately that they came within the independent

Mallen exception--pursuant to which pay is not required--and that a

pre-suspension hearing thus was not necessary. We did not decide whether

Mallen excused the need for a pre-suspension hearing because Bradley did not

receive even a post-suspension hearing. I see nothing “inconsistent” in Bradley,

nor do I read Bradley as “necessarily [ } reject[ing]" the possible adequacy of a

post-suspension hearing in circumstances like those here.

34a

For the reasons already expressed above, I would hold that in

the circumstances of this case, a pre-suspension hearing was not

required and that a post-suspension hearing within a reasonable

time after the suspension was sufficient. It may be that the

university failed to conduct a sufficiently prompt or adequate

post-suspension hearing after the criminal charges were

dismissed on September 1, 1992, but that is a different

question. Moreover, as in Strong, I am not sure how a

pre-suspension hearing on August 26, 1992, would have made

any difference. The only fact important to the university's

decision was whether Homar had been arrested and charged.

Homar did not dispute this, and in fact confirmed it the next

day; Homar was well aware of the reasons for his suspension.

As in Strong, the hearing required by the majority would have

been "an empty formality." See Strong, 902 F.2d at 212.

C. I have one final problem with the section of the

majority opinion dealing with the need for a pre-suspension

hearing. The majority assumes that an important government

interest requiring prompt action is what permits an employer to

suspend an employee without a pre-suspension hearing but with

pay. I think that this is inaccurate. It is my understanding that

a public employer may generally suspend a public employee for

cause, with pay, and without a hearing--even absent an

emergency situation--because such a suspension does not

ordinarily implicate any constitutionally protected property

interest. See, e.g., Hicks v. City of Watonga, 942 F.2d 737,

746 n. 4 (10th Cir.1991) ("[N]o property interest was infringed

at Mr. Hicks' first round of hearings when he was suspended

and then reprimanded. Mr. Hicks suffered no loss in pay

because of the pre-hearing suspension. Suspension with pay

does not raise due process concerns.") (citations omitted); Pitts

v. Board of Educ. of U.S.D. 305, Salina, Kansas, 869 F.2d

555, 556 (10th Cir.1989) (same); see also Hardiman v.

Jefferson County Bd. of Educ., 709 F.2d 635, 637-38 & n. 2

35a

(11th Cir.1983) (not deciding but questioning whether

suspension with pay could ever constitute deprivation of

property interest, and opining that "bad-faith" suspension with

pay might infringe liberty interest); Koelsch v. Town of

Amesbury, 851 F.Supp. 497, 500 (D.Mass.1994) ("A public

employee's suspension with pay does not implicate a

constitutionally protected property interest.") (citations

omitted). Under the majority's reasoning, the important

government interest requiring prompt action is rendered a

nullity because it simply allows the employer to do what it

could do in a typical non-emergency, for-cause suspension

situation, i.e., suspend the employee with pay.

Il.

Although I do not disagree with the majority's

determination that a remand is in order on Homar's substantive

due process claim, I write separately to set forth my views on

the viability of that claim. I do not think that a plaintiff has a

substantive due process claim for a non-legislative deprivation

of a state-created property right by a public employer.

Moreover, if Homar has a substantive due process claim in this

context, it seems to me that he must show that the employer's

actions were not rationally related to a legitimate government

interest; mere allegations of bad faith cannot suffice.

A. Neither the Supreme Court nor this court has

previously held that a plaintiff has a substantive due process

claim for a non-legislative deprivation of a state-created

property interest by a public employer. The Eleventh Circuit

recently overruled a decade of its own decisions recognizing

such claims. McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994)

(en banc), cert. denied, 115 S.Ct. 898 (1995); see also Rivkin

v. Dover Twp. Rent Leveling Bd. , 671 A.2d 567 (N.J. 1996).

Essentially for the reasons stated in McKinney, which I find

36a

persuasive, I believe that Homar's allegations state only

procedural due process claims.

In McKinney, the Eleventh Circuit considered the

following issue: “whether, under the Fourteenth Amendment,

a government employee possessing a state-created property

interest in his employment states a substantive due process

claim, rather than a procedural due process claim, when he

alleges that he was deprived of the employment interest by an

Id. at 1553. Sitting en banc, a unanimous Eleventh Circuit

answered “no,” and in an effort to bring its cases back into line

with Supreme Court precedent, overruled a decade of its prior

decisions.’ The court held that "in non-legislative cases, only

procedural due process claims are available to pretextually

terminated employees." Jd. at 1560; see also Rivkin, 671 A.2d

at 577 (plaintiffs' purported substantive due process claim “is

much closer to a procedural due process claim" in that it

“amounts to an allegation that the State failed to furnish an

impartial tribunal, which ‘is a matter of procedural, not

substantive, due process’ ") (citations omitted).

Two aspects of the Eleventh Circuit's opinion in

McKinney bear emphasis here. First, the court concluded that

allegations of arbitrary and capricious action by governmental

employers affecting an individual's property interest in public

employment "will not make out a substantive due process claim

under the jurisprudence of the Supreme Court ... because only

procedural issues are implicated." Jd. at 1559 (emphasis in

original); see also id. at 1561 ("McKinney's allegation is

procedural: the County failed to provide one of the elements

*Those prior cases, like the test advocated by Homar, essentially

required that a public employee show the deprivation of a property right in public

employment for improper, pretextual, or arbitrary and capricious reasons.

37a

of procedural due process--an unbiased decisionmaker.").* |

agree, as I discuss further below.

Second, crucial to the court's decision was the

distinction between legislative acts and non-legislative or

executive acts. Executive acts, such as employment decisions,

typically apply to one person or to a limited number of persons,

while legislative acts, generally laws and broad executive

regulations, apply to large segments of society. Jd. at 1557 n.

9. The court criticized its prior decision in Hearn v. City of

Gainesville, 688 F.2d 1328 (11th Cir.1982)—its first case to

apply substantive due process analysis to an arbitrary

termination claim--because "[{i]n that case, where a terminated

employee challenged an executive act, we cited Nebbia [v. New

York, 291 U.S. 502 (1934) ], where a legislative act (to wit, a

law) was at issue." Jd. at 1558 n. 14. The court added that "[i}t

is imperative that a stricter segregation of these two distinct

Case-categories be maintained." Jd. The court indicated that

rational basis review under the substantive component of the

Due Process Clause is appropriate only in the context of

challenges to legislative action. Jd. at 1557-58 & nn. 9 & 14;

see also TRM, Inc. v. United States, 52 F.3d 941, 945 & n. 17

(11th Cir.1995) (applying rational basis review to substantive

due process challenge to regulation under Food Stamp Act and

noting that "[tj}his standard is not affected by our decision in

McKinney " because "[t}he holding of that case was specifically

limited to substantive due process challenges to non-legislative

acts") (citations omitted); Sullivan Properties, Inc. v. City of

Winter Springs, 899 F.Supp. 587, 594-96 (M.D.Fla.1995)

(considering the impact of McKinney on substantive due process

challenges in the area of zoning and the granting of building

“I note that the Supreme Court has never held that a public employee has

a substantive due process right to be free from arbitrary or capricious conduct

adversely affecting the employee's property interest in that employment.

Like the prior decisions in the Eleventh Circuit, a

decision allowing Homar to maintain a substantive due process

claim based on an allegation of bad faith would elevate

Supreme Court in Rivkin, and I would not recognize such a

claim. It seems to me that Homar's claim is clearly procedural

and should be recognized as such.

Further, the cases upon which Homar relies essentially

derive--as is discussed more fully below-—from Pace Resources,

Inc. v. Shrewsbury Tp., 808 F.2d 1023 (3d Cir.), cert. denied,

482 U.S. 906 (1987), and Rogin v. Bensalem Tp., 616 F.2d

680, 689 (3d Cir.1980), cert. denied, 450 U.S. 1029 (1981),

both of which involve challenges to zoning ordinances and thus

*See also Kauth v. Hartford Ins. Co. of Illinois, 852 F.2d 951, 956-58

(7th Cir. 1988) (plaintiff alleged not that statute or regulation was unconstitutional

but that sheriff arbitrarily ignored law in seizing property; court found that “in

cases where the plaintiff complains that he has been unreasonably deprived of a

state-created property interest, without alleging a violation of some other

substantive constitutional right or that the available state remedies are adequate.

the plaintiff has not stated a substantive due process claimn”) (citations omitted).

39a

challenges to legislative acts. The cases that have applied Pace

Resources and Rogin in challenges to non-legislative acts have,

in my view, fallen into the trap identified by the Eleventh

Circuit in McKinney. I would not extend them into the public

employment setting.

B. Assuming for the sake of argument that there is a

substantive due process claim for arbitrary and capricious

non-legislative actions by public employers and that Homar's

interest in his position as a campus police officer constituted a

“property” interest for substantive due process purposes,° I

"But see, ¢.g., Regents of the Univ. of Michigan v. Ewing, 474 U.S.

214, 229 (1985) (Powell, J.,concurring) ("As the Court correctly points out,

respondent's claim to a property right is dubious at best. Even if one assumes the

existence of a property right, however, not every such right is entitled to the

protection of substantive due process. While property interests are protected by

procedural due process even though the interest is derived from state law rather

than the Constitution, substantive due process rights are created only by the

Constitution.”); DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 598-601 (3d

Cir.) (“to state a substantive due process claim, a plaintiff must have been

deprived of a particular quality of property interest"), cert. denied, 116 S.Ct. 352

(1995); Reich v. Beharry, 883 F.2d 239, 243-44 (3d Cir. 1989) (“ While, as we

have discussed above, it is well settled that state-created property interests,

including some contract rights, implicate the protection of the procedural aspect of

the due process clause, the issue of whether and when state-created property

interests invoke substantive due process concerns has not been decided by the

Supreme Court and is subject to varying analyses and conclusions by the lower

courts.... [We have] acknowledged that what constitutes a property interest in the

procedural due process context might not constitute one in that of substantive due

process... [I)m this circuit, at least, not all property interests worthy of

procedural due process protection are protected by the concept of substantive due

process.”) (citations omitted); Ransom v. Marrazzo, 848 F.2d 398, 411-12 (Gd

Cir. 1988) (“Substantive due process refers to and protects federal rights. The

provision of water and sewer services, whether by a municipality or by a private

utility company, is not, however, a federally protected right. The legal fact that,

once a municipality (or, for that matter, a private utility company) establishes a

utility for its citizens, a citizen's expectation of receiving that service rises to the

level of a property interest cognizable under the Due Process Clause, merely

brings that expectation within the compass of the Fourteenth Amendment's

procedural protections.... It does not transform that expectation into a substantive

40a

nonetheless conclude that Homar seeks application of the wrong

standard in evaluating his claim. Under true rational basis

review-which is the most that Homar is entitled to where he is

asserting the violation of a non-fundamental, state-created

property interest--I think that Homar failed to create a fact issue

as to whether the university violated his substantive due process

rights.

The appropriateness of summary judgment as to

Homar's substantive due process claim requires consideration

of what Homar must show to establish a substantive due

process violation. Homar argues that our cases hold that a

plaintiff can establish a substantive due process violation by

proving that the government's actions were motivated by bias,

bad faith, or improper motive. Homar contends that a public

employee who suffers an adverse employment decision may

maintain a substantive due process claim against the public

employer by showing (1) that the employer's actions were not

rationally related to a legitimate government interest or (2) that

the employer's actions were motivated by (a) bias, (b) bad

faith, or (c) improper motive. I do not agree.

First, as I alluded to above, we have never applied this

test in the public employment context, and I would not extend

this test to this context, whatever its appropriateness in other

contexts. Further, it seems to me that the statements in our

opinions regarding the nature of rational basis review in

substantive due process cases have evolved in a strange and, I

think, unintended way. Beginning with unobjectionable

descriptions of classical rational basis review, our opinions

eventually reached the point of suggesting that a plaintiff can

state a substantive due process claim merely by alleging that an

guarantee against the state in any circumstance.”) (citations omitted).

4la

individual decision resulting in the deprivation of a property

right was taken in bad faith, The Supreme Court has never

sanctioned such a broad proposition, and I am confident that

this cannot be the law. If a plaintiff like Homar has a

substantive due process claim in this context, it seems to me

that he must show that the employer's actions were not

rationally related to a legitimate government interest and that

mere allegations of bad faith cannot suffice.

In Pace Resources, Inc. v. Shrewsbury Tp., 808 F.2d

1023 (3d Cir.), cert. denied, 482 U.S. 906 (1987), plaintiff

challenged a municipality's land use restrictions on substantive

due process grounds. In describing the "narrow review" over

zoning ordinances, we quoted our prior decision in Rogin v.

Bensalem Tp. , 616 F.2d 680, 689 (3d Cir.1980), cert. denied,

450 U.S. 1029 (1981):

" The test for determining whether a law comports with

substantive due process is whether the law is rationally

related to a legitimate state interest. '[T]he law need

not be in every respect logically consistent with its aims

to be constitutional. It is enough that there is an evil at

hand for correction, and that it might be thought that the

particular legislative measure was a rational way to

correct it.’ "

808 F.2d at 1034 (quoting Rogin, 616 F.2d at 689) (quoting

Williamson v. Lee Optical, 348 U.S. 483, 487-88 (1955))

(brackets in Rogin). We explained that "[a] plaintiff making a

substantive due process claim in federal court has the burden of

showing that the regulation is arbitrary or irrational. Thus to

state a Claim, Pace's complaint would have to allege facts that

would support a finding of arbitrary or irrational legislative

action by the Township." Jd. at 1035 (citations omitted). After

concluding that "Pace's complaint fails to make any factual

42a

allegations that indicate irrationality" and that "Pace does not

present a case involving actions aimed at this developer for

reasons unrelated to land use planning,” we concluded that

"[bJecause it appears on the face of the amended complaint that

the Township decisionmakers could have had rational reasons

for the decisions contested here and because that complaint

alleges no facts suggesting arbitrariness, it fails to state a

substantive due process claim upon which relief can be

granted." Jd. at 1035-36 (citation omitted).

In Bello v. Walker, we noted the rational basis review

articulated in Pace Resources, but we focused on the language

from Pace stating that the plaintiff there did not allege "actions

aimed at this developer for reasons unrelated to land use

planning.” Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.)

(citation omitted), cert. denied, 488 U.S. 851 (1988). We thus

distinguished Pace Resources and announced as follows:

We need not define, at this juncture, the outer limits of

the showing necessary to demonstrate that a

governmental action was arbitrary, irrational, or tainted

by improper motive. The plaintiffs in this case

presented evidence from which a fact finder could

reasonably conclude that certain council members,

acting in their capacity as officers of the municipality

improperly interfered with the process by which the

so for partisan political or personal reasons unrelated to

the merits of the application for the permits. These

actions can have no relationship to any legitimate

governmental objective, and if proven, are sufficient to

establish a substantive due process violation actionable

under section 1983.

Id. at 1129-30 (footnote omitted).

43a

Next, the panel in Midnight Sessions paraphrased Bello

and stated that "a plaintiff may maintain a claim of substantive

due process violation upon allegations that the government

deliberately and «arbitrarily abused its power." Midnight

Sessions, Ltd. v. C.ty of Phil., 945 F.2d 667, 683 (3d Cir. 1991)

(citation omitted), cert. denied, 503 U.S. 984 (1992). "Thus,

allegations that the government's actions in a particular case

were motivated by bias, bad faith, or improper motive ... may

support a finding of substantive due process violation." Id.

(citing Bello and Pace Resources).

In Parkway Garage, Inc. v. City of Phil., 5 F.3d 685,

692 (3d Cir.1993), we explained that "[s]ubstantive due process

protects citizens from arbitrary and irrational acts of

government." /d. at 692 (citing Rogin v. Bensalem Tp., 616

F.2d 680, 689 (3d Cir.1980), cert. denied, 450 U.S. 1029

(1981)).’ We then stated the following test (which is the test

quoted by the parties in this case): "A violation of substantive

due process rights is proven: (1) if the government's actions

were not rationally related to a legitimate interest; or (2) ‘if the

government's actions in a particular case were in fact motivated

by bias, bad faith or improper motive.' " /d. (citation omitted);

see also Blanche Road Corp. v. Bensalem Tp., 57 F.3d 253,

263 (3d Cir.), cert. denied, 116 S.Ct. 303, 133 (1995).

From Rogin to Parkway Garage, then, we have moved

from inquiring merely whether a legislative act survived pure

rational basis review to inquiring whether actions by specific

’Rogin presents, in my view, the proper scope of substantive due

process review. There, we found that the township “has a legitimate interest in

controlling population growth and density and the zoning amendments are a

rational and reasonable means to accomplish that purpose. Therefore, the zoning

amendments were not arbitrary or irrational...." Jd. I find nothing in Rogin to

support the broad proposition that substantive due process protects citizens in

general from arbitrary and irrational acts of government.

44a

defendants vis-a-vis a specific plaintiff were somehow

improper. It seems to me that our cases began looking to

governmental conduct that might prove a lack of rational basis,

but we have now set forth an entirely separate test for

evaluating substantive due process claims that is independent of

standard rational basis review. See also Rivkin, 671 A.2d at

576-77 (declining to follow DeBlasio and Bello and stating that

"[iJt is a mistake ... to equate the concept of ‘arbitrary and

irrational’ governmental land use decisions with the substantive

component of the Due Process Clause of the Fourteenth

Amendment"). In my view, the court should take the next

available opportunity to clarify that the appropriate test is true

rational basis review.*

If we are to recognize substantive due process claims in

the public employment context--which, for the reasons

discussed above, I think would be a mistake--then, in my view,

we should ask merely whether the plaintiff can show that the

employer's actions were not rationally related to a legitimate

government interest. It should not be enough to allege bad faith

by a single governmental actor; the overall conduct complained

of must be unrelated to any legitimate governmental interest.

If this mode of analysis is applied to this case, I think that it is

clear that the university's actions were rationally related to its

legitimate interests, and, indeed, Homar does not contend

otherwise.

C. In sum, substantive due process applies where there

is a fundamental right at stake or legislation is challenged as

*] note that some district court opinions in this circuit have recognized

the mixed signals sent by this court. For example, in Ersek v. Township of

Springfield, 822 F.Supp. 218 (E.D.Pa.1993), a public employment case, the court

opined that Bello and Pace Resources do not apply outside of the building and

zoning permit contexts. Jd. at 221 (dicta).

4Sa

having no rational relationship to any legitimate government

interest. Here, plaintiff suggests no fundamental right within

the meaning of the substantive component of the Due Process

Clause; nor is plaintiff challenging a legislative act on

rational-basis grounds. In my view, then, plaintiff has no

substantive due process claim on the undisputed facts

presented. °

Il.

For the foregoing reasons, I respectfully dissent from

the majority's conclusion, set forth in section III.A, that Homar

had a right to a hearing prior to his suspension. Although I

join in section IV of the opinion remanding the substantive due

process issue to the district court, I do not believe that Homar's

substantive due process claim should survive a motion for

summary judgment on remand.

Clerk of the United States Court of Appeals

for the Third Circuit

%] also note the Supreme Court's consistent instruction that the

substantive component of the Due Process Clause be narrowly construed. E.g.,

Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) ("As a general

matter, the Court has always been reluctant to expand the concept of substantive

due process because the guideposts for responsible decisionmaking in this

unchartered area are scarce and open-ended. The doctrine of judicial

self-restraint requires us to exercise the utmost care whenever we are asked to

break new ground in this field.“) (citation omitted); see also Fagan v. City of

Vineland, 22 F.3d 1296, 1306 n. 6 (3d Cir. 1994) (en banc) (“We cannot ignore

the Supreme Court's repeated warnings against an overly generous interpretation

of the substantive component of the Due Process Clause.”).

46a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD J. HOMAR,

Plaintiff :

: CV-93-0852

v. :

: JUDGE VANASKIE

JAMES E. GILBERT, et al.,

Defendants

MEMORANDUM

The Fourteenth Amendment to the Constitution

protects against the deprivation of liberty and property

without due process of law. In Cleveland Board of

Education v. Loudermill, 470 U.S. 532 (1985), the Supreme

Court held that a public employee who enjoys a protectible

property interest in his position may not be terminated

without written or oral notice of the charges against him, an

explanation of the employer’s evidence, and an opportunity

to respond.

Plaintiff Richari J. Homar, a former East

Stroudsburg University (“ESU”) police officer who was

ESU and certain of its employees --defendants here —denied

him notice and an opportunity to be heard prior to the

suspension. Homar also contends that the Defendants denied

him procedural and substantive due process when, after

47a

conducting an internal investigation of the drug charges and

his activities, the Defendants demoted Homar to the position

of ESU groundskeeper, which was Homar’s position prior to

becoming a campus police officer. The demotion became

effective following Homar’s meeting with the individual who

held ultimate authority regarding his employment status with

ESU --Defendant James Gilbert, ESU’s President.

Pending is Defendants’ motion for summary

judgment. Although Homar was initially suspended without

pay, within thirty (30) days of his suspension Defendants

agreed to pay Homar all of the wages he would have received

as a police officer during the suspension period.

Consequently, because he lost no salary due to the

Homar suffered no compensable due process violation as a

consequence of the suspension. See Hicks v. City of

Watonga, 942 F.2d 737, 746 n. 6 (10° Cir. 1991)

(“[sJuspensoin with pay does not raise due process

concerns”); Pitts v. Board of Educ, Of U.S.D. 305, Salina,

Kansas, 869 F.2d 555, 556 (10" Cir. 1989) (suspension of

public employee with pay does not infringe any measurable

property interest); Watkins v. McConologue, 820 F.Supp.

70, 72 (S.D. N.Y.), aff'd mem., 978 F.2d 706 (2 Cir.

1992). Furthermore, even a suspension without pay would

not have violated Homar’s due process rights.

Nor did the Defendants fail to provide requisite

process in connection with Homar’s demotion. Homar was

accorded the opportunity to respond to all charges against

him before the demotion became effective, which was all the

process that is required by Loudermil]. Finally, Homar’s

suspension and demotion did not infringe his substantive due

process rights, nor result in an unconstitutional deprivation

48a

of a protected liberty interest. Accordingly, defendants’

summary judgment motion will be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND, '

Homar was arrested by state po lice in a drug raid at

the apartment of James Compton in Monroe County,

Pennsylvania, on the morning of August 26, 1992. A local

newspaper reported the state police’s drug arrests, in

pertinent part, as follows:

Police said Joseph Habhab of

Tannersville and his family were at the core of

the high-level distribution ring, which

obtained 50 to 100 pounds of marijuana every

few weeks from Mexico through Texas.

** *

State police Sgt. Richard Morris said

investigators found much of the marijuana was

sold in the areas of East Stroudsburg

University . . . . [Article attached to Dkt.

Entry #28.]

In the early afternoon of August 26, the state police

called David Marazas, ESU’s Police Chief, to inform him of

Homar’s arrest and the charges against him. Those charges

included possession of marijuana, possession with intent to

deliver, and criminal conspiracy to violate the controlled

substance law, which is a felony.

' Defendants filed a statement of material facts (Dit. Entry #19) to

49a

By mid-afternoon Marazas brought the information to

the attention of Gerald Levanowitz, ESU’s Director of

Human Resources, who was the ESU official to whom

President Gilbert had delegated authority to discipline and

suspend ESU employees. After meeting with Marazas,

Levanowitz decided to suspend Homar immediately, without

pay. (See Marazas Aug. 26 notes, attached to Ex. “13,” Dkt.

Entry #28.) Levanowitz did not conduct a pre-suspension

hearing or provide Homar an opportunity to argue against his

suspension. Levanowitz, however, did issue a suspension

letter. (Letter attached to Dkt. Entry #25.)

Because Homar worked the second shift at ESU, he

was to report for duty at 4:00 p.m. on August 26. He did

not report to work that day.

The day after his arrest, on August 27, 1992, Homar

called to tell Marazas that he had been arrested and to ask if

he was suspended. (See Marazas Aug. 26 notes, attached to

Ex. “13" dkt. Entry #28.) Marazas informed Homar that he

was suspended and told Homar that he would deliver

Levanowitz’s suspension letter to him later that day. (Jd.)

The letter advised of the suspension pending further

investigation and disposition of the criminal charges, but

explained that ESU’s ultimate decision in the matter would

not necessarily coincide with disposition of the criminal

charges. :

On the same day (August 27), a Pennsylvania state

trooper prepared a supplemental report describing his

interview with Homar the previous day at 2:00 p.m. The

supplemental report stated:

HOMAR related that he started to hang

around COMPTON around January of 1992.

Joseph HABHAB would come to

COMPTON’S residence and that is how he

(HOMAR) knows HABHAB. HOMAR knew

that COMPTON and HABHAB were dealing

in marijuana. HOMAR related that originally

he knew that HABHAB and COMPTON were

dealing in small amounts but since about

January of 1992 he knew that they were

dealing in large amounts of marijuana and that

they were bringing the marijuana in from

Texas. HOMAR further related that

HABHAB had given him marijuana joints in

the past for his personal use. [Report attached

to Dkt. Entry #25.]

The report indicated that Homar “signed a waiver of his

rights form.”

During his deposition, Homar denied saying the

substance of the statements attributed to him in the

supplemental report. Homar explained:

I feel they -- Larry Gerrard, the officer that

was with me, was trying to confuse me at the

tume to make these statements --something like

this. This isn’t what I said myself, he was

trying to persuade me. [Dkt. Entry #25 at 29.]}

Homar addressed some of this confusion by

explaining, for instance, that he did not have knowledge that

marijuana was being imported from Texas: “I only stated that

I knew . . . that his brother . . . lived in Texas and that he

went to visit him.” (Dkt. Entry #25 at 29.) Homar also

Sla

contested that he stated that Habhab had given him marijuana

joints for personal use. (Jd.) Regarding his relationship with

Compton, Homar explained that, as opposed to the

supplemental report’s version that Homar knew Compton

since 1992, he actually knew Compton “before high school

and I was involved in high school athletics with him and

things like that.” (Dkt. Entry #25 at 27.)

Homar explained that on the morning of his

arrest he visited Compton’s apartment, which is located close

to Homar’s mother. (Dkt. Entry #25 at 17.) Homar stated:

I went into his house, his apartment

was unlit and I came down to the living room

area of his house. I focused my attention on

the TV. Jim was sitting on the couch at the

time and I was telling him how I was ready to

get going; I was in work clothes to do yard

work and I just was in a hurry to get that over

with. And I went to turn to his kitchen area to

get a glass of water. I heard two men come

down the hallway in plain, dark clothes and I

was pushed to the ground. [Dkt. Entry #25 at

17-18.]}

On September 1, 1992, a Pennsylvania state court

dismissed the charges against Homar. Levanowitz learned of

investigation. On September 11, 1992, Levanowitz met with

the state police to inquire about Homar’s arrest.’ The state

? Defendants contended in their statement of maternal facts that

“Levanowitz felt he needed to do his own investigation of the events before

deciding on the discipline of Homar." (Dit. Entry #19 at 418.) Homar refuted

police provided a copy of the supplemental report to

Levanowitz and related a far different story of the

circumstances surrounding Homar’s arrest than maintained

by Homar. Levanowitz’s notes state:

Trooper George said that when he entered the

Compton residence on August 26, 1992, Mr.

Homar was seated on a sofa in the living room

of the house. When Trooper George yelled

Homar got up and moved quickly toward the

kitchen of the residence. Troopers [sic]

George saw a metallic object flashing/flying

from Mr. Homar’s direction which he thought

might be a gun. Then he drew his weapon.

Trooper George related that the metallic object

later turned out to be a metal plate used for

processing and cutting marijuana. Trooper

George and Raab told me that there were four

marijuana “joints” on a coffee table where Mr.

Homar had been sitting and one of the joints

was half burned and there was a heavy odor of

marijuana smoke in the house. They told me

that a search of the premises turned up a triple

beam scale, five pounds of marijuana and

paraphernalia. [Dkt. Entry #28 at Ex. “1,” p.

1.)

On September 15, 1992, Levanowitz called Homar to

schedule a meeting for September 18. Levanowitz told

a jury question.” (Dit. Entry #22 at 418.) Despite Homar’s framing of the

matter, Levanowitz’s purported belief does not create a “material fact.” Homar’s

disagreement with other immaterial facts does not preclude adjudication of this

case on Defendants’ summary judgment mouon.

Homar that a union representative would be permitted to

attend the meeting with him, but that since, in Levanowitz’s

wages Ad be an administrative beerine.

Homar did not have a right to have an attorney attend.

(Levanowitz Deposition (Dkt. Entry #26) at 42.)

Homar and his union representative, Richard Connell,

attended the September 18” meeting with Levanowitz.

Connell requested that Homar’s attorney be present, and

Levanowitz responded that the meeting would have to be

postponed because an attorney for ESU also would have to

be present. (Dkt. Entry #26 at 52.) The meeting then

proceeded without Homar’s attorney attending. Homar did

not have a copy of the State Police “supplemental report” as

of the date of the meeting.

Levanowitz maintains that during the meeting he

represented that he “had already done [his] investigation,

with the rest of the investigation including talking to the State

Police.” (Levanowitz Dep. at 48.)—Levanowitz also asserts

‘that he represented during the meeting “that the State Police

had given me some evidence very serious in nature.” (jd.)

Homar acknowledged that Levanowitz requested Homar’s

“side of the story [as] to what happened on August 26,

1992.” (Dkt. Entry #22 at § 24.) However, Levanowitz did

not divulge the substance of the supplemental report during

the meeting. Consequently, Homar was not able to respond

to the damaging statements attributed to him in the

supplemental report.

Levanowitz issued a letter to Homar dated September

23, 1992, in which Levanowitz demoted Homar to

groundskeeper. The letter, in part, stated:

This is to inform you that you are to be

demoted from your position as a Police

ee

the position of Groundskeeper . .

ea rye nena

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

individuals for your own use. Your actions

constitute a clear and flagrant violation of

Sections 200 and 200.2 of the East

Manual. [Dkt. Entry #25 at Ex. “2" (emphasis

in original). }°

Although in the letter Levanowitz provided Homar

with back pay for the suspension period at the rate paid to a

groundskeeper, he later provided Homar with a retroactive

payment of the difference between the groundskeeper salary

> During his deposition, Homar suggested that he was working as a

groundskeeper at the time that LEVANOWITZ made the demotion decision.

(Dit. Entry #25 at 45.) it is unclear whether Homar was permitted to work in a

non-law enforcement capacity during the period of his suspension.

5Sa

Entry #19 at ¢ 51; Homar Dep. at 24-25.) Thus, although

the letter purported to make the demotion retroactive, it did

not take effect until after September 24, 1992. Homar

consequently does not claim that he lost pay or benefits

during the period of his suspension. (Homar Dep. at 24.)*

Before Homar’s suspension was to take effect,

Homar’s union representatives contacted President Gilbert,

who had final authority with regard to Homar’s status as an

ESU employee, to request a meeting to discuss Levanowitz’s

disciplinary action. They requested the meeting “because we

felt that maybe Mr. Levanowitz ws only giving his side of

the story and not giving a fair - he wasn’t giving me a fair

shake on his conversations with Dr. Gilbert.” (Dkt. Entry

#25 at 45.) Gilbert arranged a meeting at 2:00 p.m. on

September 24".

Although Levanowitz had not provided Homar with a

copy of the supplemental report during their September 18°

meeting, Homar was in possession of the supplemental report

by the time that th meeting with Gilbert occurred. (Dkt.

Entry #25 at 46.) Homar also had Levanowitz’s demotion

letter, which explained that the information contained in the

letter, which explained that the information contained in the

supplemental report formed the basis for the demotion

decision.

Connell, the union representative who attended the

* Although Homar conceded during his deposition that he did not lose

benefits, Homar contended in his response to Defendants’ statement of material

facts that “[i}t is unknown to plaintiff whether any non-salary benefits were

affected.” (Dit. Entry #22 at ¢ 10.) Curiously, however, Homar admitted the

defendants’ very last material fact, stating: “Homar does not claim he lost pay or

benefits during the period of suspension.” (Dit. Entry #22 at 4 52.)

56a

earlier meeting, Dave Pottiger, a union vice president,

Homar and Levanowitz attended the meeting with Gilbert.

The meeting lasted approximately 30 to 35 minutes. (Gilbert

Statement 413.) Because Homar and his union

representatives were concerned that Levanowitz’s private

discussions with Gilbert were possibly prejudicial to Homar,

they requested that Levanowitz step out of the office during

part of the meeting, which he did. (Dkt. Entry #25 at 46.)

provided Homar with a full opportunity to respond to the

charges and the discipline Levanowitz imposed. (Pottiger

Dep. at 22.)

By letter dated September 24, 1992, Gilbert informed

Homar that it was his “decision to sustain the

recommendation of Chief Marazas, Director Levanowitz, and

Vice President English and your demotion stands as stated in

our letter of September 23, 1992.” (Plaintiff's Exhibit 16

attached to the Levanowitz Deposition (Docket Entry 26).)

Grievance procedures in the collective bargaining agreement

covering HOMAR’s employment were then utilized to

challenge Homar’s demotion. Homar’s collective bargaining

representative was free to present evidence in support of

Homar’s position. The State System of Higher Education

denied the grievance at Step 3 and the Commonwealth’s

Office of Labor Relations, Bureau of Labor Relations denied

the grievance at step 4. Although the union had the right to

proceed to arbitration following the denial at Step 4, it

elected to withdraw the matter.

Homar filed his suit on June 7, 1993. Defendants

filed an answer on September 7, 1993. Defendants

subsequently filed their summary judgment motion in

January of 1994. Briefing was completed in March of 1994.

S7a

This matter is ripe for disposition.

Il. DISCUSSION

Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment should be 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). Summary judgment will not lie “if the

dispute about a material fact is ‘genuine,’ that is, if the

evidence is such that a reasonable jury could return a verdict

for the non-moving party.”

Inc., 477 U.S. 242, 248 (1986). There is no issue for trial

unless sufficient evidence exists which favors the non-moving

party so that a jury may return a verdict for that party.

Anderson, 477 U.S. at 249-250.

A fact is “material” if proof of its existence or non-

existence would affect the outcome of the lawsuit under the

law applicable to the case. Jd., at 248. Summary judgment

thus should be entered when a party “fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986).

A. Procedural Due Process

1. Property Interest

The parties do not dispute that Pennsylvania law

provided Homar with a protectible property interest in his

position as an ESU police officer; they instead dispute

whether the process Homar received was constitutional. In

that regard, both parties cite Cleveland Board of Education

58a

v. Loudermill, 470 U.S. 532 (1985), in which the Court

said:

A tenured public employee is entitled to

pretermination process consisting of oral or

written notice of the charges against him, an

explanation of the employer’s evidence, and

an Opportunity to present his side of the story.

Id. at 544, 546 (emphasis added).°

Yet Homar was not terminated from the employ of

ESU. He instead was temporarily suspended and then

demoted. Thus, Homar is not a terminated employee as

discussed in Loudermill]. It is unclear whether due process

protections extend to employment discipline short of

termination. Since neither party has addressed the issue,

however, it will be presumed that Homar had a protectible

property interest in the position of ESU police officer [sic]

2. _Homar’s Suspension

Homar contends that he was entitled to an opportunity

to be heard before he was suspended from his position as an

ESU police officer. Assuming that the suspension infringed

a protected property interest, it does not follow that Homar

was entitled to some form of hearing before the suspension

* Emphasis is added here to highlight the fact that the notice may be

oral. Thus, Homar’s technical argument that his rights were violated because the

Defendants did not provide him with written notice of the specific allegations

upon which the demotion decision was made is unavailing. See Fraternal Order

of Police Lodge No. 5 v. Tucker, 868 f.2d 74, 80 n. 5 (3 Cir. 1989). Ina

similar vein, Homar’s technical argument that the Defendants did not provide him

with a copy of the supplemental report is unavailing. (See Dkt. Entry #23 at 15.)

Homar admits that he had a copy of the report at the Gilbert meeting.

59a

was implemented. See Ceko v. Martin, 753 F.Supp. 1418,

1424 (N.D. Ill. 1990). Both the timing and the nature of the

requisite process depends upon an “appropriate

accommodation of the competing interests involved.” Goss

v. Lopez, 419 U.S. 565, 579 (1975). Those competing

interests, which necessarily must be assessed in the context

of the facts peculiar to each case, include “the importance of

the private interest and the length and finality of the

deprivation, . . . the likelihood of governmental error,

and the magnitude of the governmental interests involved.” 4

Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982).

See also Loudermill, 470 U.S. at 542. “An important

government interest, accompanied by a substantial assurance

that the deprivation is not baseless or unwarranted, may in

limited cases demanding prompt action justify postponing the

opportunity to be heard until after the initial deprivation.”

FDIC vy. Mallen, 486 U.S. 230, 240 (1988).

In this case, the private interest was strong, but the

deprivation incident to a suspension was only temporary and

of a relatively brief duration (approximately one month).

The likelihood of governmental error was slim in that the

suspension was based on the undisputed fact that Homar had

been arrested when he was found at the location where

significant drug-related activities were being conducted.

Thus, there was indeed “a substantial assurance that the

deprivation [was] not baseless or unwarranted.” Mallen, 486

U.S. at 240. Finally, the governmental interest in preserving

public confidence in law enforcement was compelling.

Under similar circumstances, suspensions without a

prior opportunity to be heard have withstood constitutional

challenges. See, e.g., Ceko, 753 F.Supp. at 1425; Sherod v.

Wahl, No. 91-7953, 1993 WL 81428 (N.D. Il. Mar. 19,

60a

1993). Cf., Cheathon v. Brinkley, 822 F.Supp. 1241, 1245-

46 (M.D.La. 1993) (defendants who immediately suspended

plaintiff upon learning of his arrest for accepting bribes

entitled to qualified immunity inasmuch as there was no

Clearly-established right to a pre-suspension opportunity to be

heard).° As explained in Caine v. Hardy, 943 F.2d 1406,

1412 (S® Cir. 1991), “[nJot even an informal hearing .

must precede a deprivation undertaken to protect the public

safety.” See also Stana v. School District of City of

Pittsburgh, 775 F.2d 122, 128 (3 Cir. 1985) (implying that

where “emergency involving the public welfare was at issue,”

government need not hold hearing prior to termination).

Homar was certainly charged with important law

enforcement responsibilities and the preservation of public

safety. His arrest on a drug-related charge implicated

important governmental interests in maintaining public

confidence in our law enforcement agents. Clearly, his

immediate suspension upon being arrested did not violate the

due process clause of the Fourteenth Amendment.’

* The Defendants in the matter sub judice did not raise the defense of

qualified immunity in their summary judgment motion, but it may be applicable

here.

” Contrary to Homar’s assertion, our Court of Appeals did not hold in

| Fraternal Order of Police Lodge No. 5 v, Tucker, 868 F.2d 74 (3% Cir. 1989),

that a police officer is entitled to a hearing before being suspended under any

circumstances. In Tucker, the police officers in question had been “suspended

with intent to dismiss,” which the Third Circuit viewed as “an action . . .

tantamount to dismissal.” Jd. at 79. Thus, the court did not address the question

of the timing of a hearing for a temporary suspension as opposed to an immediate

termination. Second, the police officers in that case had been “suspended with

intent to dismiss” based upon an internal investigation without ever having been

charged with any criminal wrongdoing. Thus, that case did not present the

“substantial assurance that the deprivation is not baseless or unwarranted” that is

present here. Mallen, 486 U.S. at 240. In short, Tucker did not address the

question presented here--whether a police officer is entitled to an opportunity to

6la

The fact that Homar was awarded full pay and

benefits for the period of suspension also compels entry of

judgment in favor of the Defendants on this claim.

“Suspension with pay does not raise due process concerns.”

Hicks v. City of Watonga, OkL., 942 F.2d 737, 746 n.4 (10”

Cir. 1991). Accord, Pitts v. Board of Educ, Of U.S.D. 305,

Salina, Kansas, 869 F.2d 555, 556 (10° Cir. 1989)

(suspension of public employee with pay does not infringe

any measurable property interest); Watkins v. McConologue,

820 F.Supp. 70, 72 (S.D. N.Y.), aff'd mem., 978 F.2d 706

(2™ Cir. 1992)(same); Weg v. Macchiarola, 729 F.Supp.

328, 338 (S.D.N.Y. 1990) (same). Indeed, Loudermil]

explicitly recognized that a suspension with pay while an

investigation is pursued to determine whether the

employment relationship should be severed was an

appropriate course of action to be taken by the employer.

470 U.S. at 545.

That Homar was originally suspended without pay

does not warrant a finding that he was deprived of property

without due process. At most, he was denied the use of his

salary for a very brief period of time. To recognize a cause

of action for denial of due process under these circumstances

would clearly elevate form over substance.

In Swick v. Chicago, 11 F.3d 85, 87 (7 Cir. 1993),

the court observed:

The maxim de minimis non curat lex retains

force even in constitutional cases, even in civil

rights cases. Its particular function is to place

be heard where he or she is suspended after being arrested for significant criminal

activity,

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wihew. axed: *.

outside the scope of legal relief the sorts of

intangible injuries normally small and

invariably difficult to measure that must be

accepted as the price of living in society rather

than made a federal case out of. The injury

that results when a person is temporarily

‘eprived of his rig! f ,

badge, to carry a gun, to arrest people, and to

pr re rp mre blic officer is of this cl 7

[Emphasis added. ]

Homar has not articulated any injury accruing as a

result of his suspension upon being arrested for drug related

charges. Since he clearly could be suspended with pay

without implicating due process concerns, and within one

month after being suspended he was awarded full pay for the

period of suspension, any injury resulting from the failure to

provide an opportunity to be heard before the suspension was

imposed is surely de minimis. Accordingly, Defendants are

entitled to summary judgment on the suspension claim

because the alleged deprivation was de mimimis.

3. Homar’s Demotion

The primary thrust of Homar’s contention that he was

denied due process is that his September 18” meeting with

Levanowitz did not provide a meaningful pre-deprivation

opportunity to respond to the charges upon which

Levanowitz ultimately relied in deciding to demote him.

Prior to being deprived of a property right enjoyed in a job, a

public employee is entitled to a sufficient explanation of the

employer's evidence to permit a meaningful response.

Tucker, 868 F.2d at 80. This requirement does not mandate

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that all evidence of a charge or even documentary evidence

be provided to the employee; only that such descriptive

explanation be afforded as to permit the employee to respond

to the allegations giving rise to the dismissal. Linton v.

Frederick County Bd. Of County Commissioners, 964 F.2d

1436 (4" Cir. 1992); Tucker, 868 F.2d at 80 (merely

advising a discharged officer of drug use complaint did not

provide opportunity to rebut the specifics of the allegations of

drug use or the underlying evidence). Thus, Homar is

correct that his September 18” meeting with Levanowitz did

not allow him to make a meaningful response to the

damaging information found in the supplemental report.

Yet, the meeting with Levanowitz was not Homar’s sole pre-

deprivation opportunity to respond to the substance of the

supplemental report.

As noted above, Homar and two union representatives

acting on his behalf met with President Gilbert on September

24 at 2:00 p.m. The significance of the meeting was that

Gilbert held ultimate decisionmaking authority regarding

whether Homar would remain employed by ESU as a police

officer or groundskeeper. The significance of the timing of

the meeting was that September 24 was the date Levanowitz

allowed Homar to return to work at ESU; the meeting with

Gilbert occurred before Homar would have started his

evening shift as a police officer should Gilbert have decided

to reinstate him to that position. Thus, Homar was not

deprived of any work time (or pay) as a police officer by

Levanowitz’s decision. Indeed, Gilbert’s decision that

Homar could not return to ESU as a police officer is properly

viewed as the point in time when Homar was deprived of his

position as an ESU police officer.

In addition to having in his possession Levanowitz’s

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letter which directly referred to the supplemental report,

Homar obtained a copy of the report to review prior to the

meeting with Gilbert. Homar thus had notice of all charges

or allegations upon which Gilbert would make a decision.

Homar does not contend that Gilbert did not allow him a

sufficient opportunity to respond to the information found in

the supplemental report during the meeting, which lasted

about thirty minutes. Indeed, Homar’s union vice president,

who attended the meeting, acknowledged that Gilbert

provided a full opportunity to respond. Moreover, reacting

to concerns about Levanowitz’s presence, Gilbert had

Levanowitz leave the meeting to allow Homar the

opportunity to influence him outside of Levanowitz’s

presence.

Homar contends that the meeung with Gilbert came

too late. He characterizes the Gilbert session as “a post-

deprivation appeal.” (Docket Entry 23 at 15). Although

Levanowitz had made his decision to demote Homar on

September 23, 1992, that decision did not take effect until

September 24, 1994 at 4:00 p.m., when Homar’s shift as an

ESU police officer began. Essentially, therefore, Homar is

contending that he was entitled to a pre-decision opportunity

to respond to the evidence that would be considered against

him.

A similar argument was raised in Chung v. Park, 514

F.2d 382 (3 Cir.) cert. denied, 423 U.S. 948 (1975).

Chung, a college professor, had received a letter informing

him that his position at Mansfield State College was being

terminated for a number of reasons. After Chung received

effective, a hearing was conducted at which Chung was

allocated the burden of showing that the termination was

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arbitrary, capricious or discriminatory. Our Court of

Appeals, affirming the entry of judgment in favor of the

defendants, ruled that “[a] pre-termination hearing is not a

hearing held prior to any decision to terminate, as Dr. Chung

suggests, but rather a hearing held prior to a termination of

benefits.” Id. at 386 n.7. Writing for the unanimous court,

Judge Adams explained:

{[Dr. Chung] would have us

hold that due process in the

present case required that a

hearing be held before any

decision to terminate was

reached by the administration

Due process does not impose

[T]he function of the [pre-

termination] hearing procedure

is to inform the professor of the

grounds for his non-retention

and to allow him to challenge

their sufficiency. [A] post-

decision hearing . . . is

adequate to satisfy due process.

Moreover, the administration of

the internal affairs of a college

Accord, Bignall v. North Idaho College, 538 F.2d 243, 246

(9" Cir. 1976); Vance v. Chester County Board of School

Trustees, 504 F.2d 820, 824-26 (4" Cir. 1974); Serafin v.

Lexington, 547 F.Supp. 1118, 1126 n.1 (D. Neb. 1982),

affirmed mem., 716 F.2d 909 (8" Cir. 1983); Keddie v.

Penns} |vamia State Unversity 412 F.Supp. 1264, 1271

(M.D. Pa. 1976).*

* As noted above, post-demotion procedures were pursued on Homar’s

behalf. It has been recognized that collective bargaining agreement grievance

procedures provide adequate post-deprivation process. See Wallace v. Tilley. 4!

F.3d 296, 302 (7* Cir. 1994). In any event, Homar has not requested that this

Court direct Defendants to conduct a belated hearing and has not otherwise

challenged the adequacy of post-deprivation processes.

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Chung has been followed in post-Loudermil] cases.

For example, in Jackson v. St. Joseph State Hospita], 840

F.2d 1387 (8" Cir. 1988), the court rejected a similar

argument to that advanced here, stating:

Jackson . . . argues that due

process was violated because

that the decision to terminate

had already been made. All he

was given was an opportunity to

convince Dr. Bartulica to

change his mind and rescind the

termination. Jackson argues

that his hearing should have

preceded the decision to

terminate rather than the

effective date of termination.

Due process, however, does not

require pre-decision hearings.

It only requires an opportunity

to be heard prior to the

termination of benefits. In the

present case, Jackson was given

written notice of his termination

on February 17, 1983. The

reasons for termination were

clearly set forth in this letter.

Accompanying the notice were

Statements made by hospital

employees explaining Jackson's

challenged the adequacy of post-deprivation processes.

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inadequacies. And, more

significantly, the notice stated

that Jackson’s termination was

not effective until February 28,

1983 and until then he would

continue to receive full pay....

From February 17 until

February 28 he had the

opportunity to present his case

and on February 23, 1983 he

made a written response to the

dismissal letter. Because

Jackson was given the

opportunity to be heard prior to

the termination of his salary,

his due process rights were not

violated. Ig. at 1391.

Accord, Alexander v. Temple University, 1992 U.S. Dist.

LEXIS 16803 *8 (E.D. Pa. 1992).

Therefore, assuming that Homar held a protectible

property interest in his position as a police officer, Gilbert

provided the timely process to which Homar was entitled.

Homar had notice of the charges against him, he knew of the

evidence Gilbert possessed, and he had an opportunity to

respond. The meeting certainly did not need to be

structured in any more formal manner than it was, for “[t}he

pretermination hearing may be informal so long as it affords

the employee an opportunity to make any ‘plausible

arguments that might . . . prevent [the] discharge.” Tucker,

868 F.2d at 79 (quoting Loudermill, 470 U.S. at 544). See

Dennison v. County of Frederick, 921 F.2d 50, 55 (4° Cir.

1990) (unscheduled performance review operated as a

constitutional pre-termination hearing where employee

resigned after supervisor informed employee that he would

be placed on probation unless performance improved), cert.

denied, 501 U.S. 1218 (1991); Buschi v. Kirven, 775 F.2d

1240 (4" Cir. 1985) (telephone call offering employee

opportunity to discuss discharge satisfied pre-termination

hearing requirements). Under these circumstances, it cannot

be said that Homar was deprived of property in violation of

the Fourteenth Amendment’s Due Process Clause.

Consequently, Defendants merit judgment as a matter of law

with regard to this claim.’

4. Homar’s “Liberty” Interest

Homar’s Complaint alleges that the demotion to

groundskeeper damaged his standing in the community and

continues to stigmatize him, even though he was cleared of

criminal charges. (Compl. at ¢433, 36.) Homar thus

appears to make a claim that the Defendants violated his

Fourteenth Amendment right to protection against

deprivation of liberty without due process of law.

A public employee has a protectible liberty interest in

* Homar also complains that his due process rights were violated

because he was not entitled to have his attorney present at the September 18, .992

meeting. It appears, however, that Levanowitz would have permitted Homar'’s

counsel to be present provided ESU’s lawyer was also in attendance, and that the

meeting would have to be adjourned to accomplish that. Moreover, Homar

admits that his union contract “is silent as to the right of counsel at disciplinary

hearings.” (Docket Entry 22 at 428.) Homar also does not contend that he

requested that counsel be permitted to attend the meeting with Gilbert, at which

Homar was represented by two union officials. In any event, due process does

en

or pre-demotion proceeding. See Wallace v, Tilley, 41 F.3d

296, 301 (7* Cir. 1994).

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receiving due process in two circumstances. First, “‘[wJhere

a person’s good name, reputation, honor or integrity is at

stake because of what the government is doing to him.’”

Board of Regents v. Roth, 408 U.S. 564, 573 (1972). This

interest is violated when, for example, the basis for discharge

without due process is that the employee had been “guilty of

dishonesty or immorality” which “might seriously damage

[the employee's] standing and associations in [the]

community.” Id. The employee, however, is entitled to due

process only when these charges are publicly disclosed by the

government entity. See Bishop v. Wood, 426 U.S. 341,

348-49 (1976); Codd v, Velger, 429 U.S. 624, 626-27

(1977).

The second circumstance in which a liberty interest

exists, requiring due process, is when the government

employer imposes “a stigma or other disability that

foreclosed [the employee's] freedom to take advantage of

other employment opportunities.” Roth, 408 U.S. at 573-74.

The effect of the stigma must be more than simply to make

the employee “somewhat less attractive to some other

employers” in order to amount to foreclosure of future job

opportunities. Id. at n. 13.

With regard to both circumstances, Homar fails to

proffer evidence “such that a reasonable jury could return a

verdict” in his favor. Anderson, 477 U.S. at 248. He does

not establish that the Defendants publicly disclosed the basis

for his demotion. Furthermore, Homar does not establish

that his demotion imposes a stigma upon him which

forecloses his opportunities to find other employment.

Indeed, Homar, who continued to work as an ESU

groundskeeper as of the filing of his brief in opposition to

Defendants’ motion for summary judgment, does not contend

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that he even sought other employment. Consequently,

Defendants are entitled to judgment on Homar’s claim that

his “liberty interests” were infringed without due process.

See Loudermill, 740 U.S. at 547 n.13; Watkins, 820 F.Supp.

at 72; Weg, 729 F.Supp. at 339.

B. Substantive Due Process

Homar and Defendants concur that “[a] violation of

substantive due process rights is proven: (1) if the

government’s actions were not rationally related to a

legitimate government interest; or (2) if the government's

actions in a particular case were in fact motivated by bias,

bad faith or improper motive.” Parkway Garage v.

Philadelphia, 5 F.3d 685, 692 (3 Cir. 1993). Homar does

not contend that his demotion was not rationally related to a

legitimate government interest. Instead, he contends that the

record supports a finding of bias, bad faith or improper

motive.

The only evidence proffered by Homar on this issue

concerns the actions of Levanowitz. The final decision to

demote Homar, however, was made by ESU President

Gilbert. Homar does not suggest any bias, bad faith or

improper motive on the part of Gilbert.

Moreover, the evidence relating to Levanowitz is not

sufficient to submit the question of bias, bad faith or

improper motive to a jury. For example, Homar contends

that evidence of bad faith is shown by his suspension without

prior notice or opportunity for a hearing; but as noted above,

Homar’s arrest on drug-related charges provided ample basis

for his suspension without any hearing. Homar also

contends that after the charges against him were dismissed

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made known to Homar prior to his September 18, 1993

meeting with Leanowitz. There is nothing improper about

conducting an investigation of a law enforcement officer who

has been arrested, even if the charges are ultimately

dismissed. Nor would it seem to have been imprudent to poll

members of the police department on this issue. And the

information on which the demotion decision was premised

was disclosed to Homar before his meeting with the

University President. Homar also contends that

inappropriate conduct is revealed by Levanowitz’ statement

that Homar did not have a right to legal counsel at the

September 18, 1992 [sic] meeting. Not only does it appear

that Levanowitz’ advice was correct, but it also appears that

Levanowitz was willing to postpone the meeting so that both

sides could be represented by counsel. No inference of bias,

bad faith or improper motive can be discerned from such

conduct. Accordingly, Defendants are entitled to summary

judgment on Homar’s substantive due process claim.

An appropriate Order is attached.’°

'° Paragraph 39 of Homar’s Complaint regards the alleged denial of

unspecified procedural guarantees set forth in the Pennsylvania state constitution.

Inasmuch as Homar may intend to assert a pendent state law claim, Pennsylvania

retains its sovereign immunity, | Pa. C.S. §2310; Toombs v. Manning, 835 F.2d

453, 457-60 (3" Cir. 1987), which also shields the Defendants. Poliskiewicz v.

East Stroudsburg University, 113 Pa.Cmwith. 13, 17, 536 A.2d 472, 474 (1988)

(ESU is Commonwealth for purposes of sovereign immunity). See also Shoop v.

Dauphin County, 766 F.Supp. 1327, 1334 (M.D. Pa.) (Rambo, J.) (1 Pa. C.S. §

2310 also protects Commonwealth employees and officials). aff d mem., 945

F.2d 396 (3 Cir. 1991), cert. den., 112 S.Ct. 1178 (1992).

73a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD J. HOMAR,

Plaintiff :

: CV-93-0852

v. 4

: JUDGE VANASKIE

JAMES E. GILBERT, et al.,

Defendants

ORDER

NOW, THIS 17" DAY OF MARCH, 1995,

for the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED THAT:

1. Defendants’ Motion for Summary Judgment

(Docket Entry #19 is GRANTED.

, % The Clerk of Court is directed to enter

judgment in favor of Defendants.

3. The Clerk of Court is directed to close this

case file.

Thomas I. Vanaskie

United States District Judge

T4a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JUDGMENT IN A CIVIL CASE

RICHARD J. HOMAR

vs. Case Number:

3:CV-93-0852

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. Of E.S.

Univ., DAVID MARAZAS, Individually

and in his capacity as Police Chief of E.S. Univ.,

And CURTIS ENGLISH, Individually and in his

capacity as V.P. of E.S. Univ.

IT IS ORDERED AND ADJUDGED that judgment be and is

hereby entered in favor of the defendants, James E. Gilbert,

Gerald Levanowitz, David Marazas, and Curtis English, and

against plaintiff Richard J. Homar.

DATE CLERK

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