# Petition for Writ of Certiorari — Gilbert v. Homar

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 924

## Text

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 t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0027%3A02. Public record. Not legal advice.