Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-4-2008

Dee v. Borough of Dunmore
Precedential or Non-Precedential: Precedential

Docket No. 07-1720




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                                     PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

                     ________

                    No. 07-1720
                    _________


               ROBERT K. DEE, JR.,
                                         Appellant

                          v.

            BOROUGH OF DUNMORE;
       BOROUGH OF DUNMORE COUNCIL;
     JOSEPH LOFTUS; THOMAS HENNIGAN;
       JOSEPH TALUTTO; FRANK PADULA;
LEONARD VERRASTRO; MICHAEL CUMMINGS;
 all individually and in their capacity as Councilmen
                      _________

   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
            (D.C. Civil No. 05-cv-01342)
    District Judge: Honorable A. Richard Caputo
                     __________
                 Argued March 25, 2008
              Before: McKEE, RENDELL,
             and TASHIMA*, Circuit Judges

                (Filed: December 4, 2008)

Cynthia L. Pollick, Esq. [ARGUED]
The Employment Law Firm
363 Lauren Street
Pittston, PA 18640
Counsel for Appellant
  Robert K. Dee, Jr.

Karoline Mehalchick, Esq. [ARGUED]
Olvier, Price & Rhodes
1212 South Abington Road
P. O. Box 240
Clarks Summit, Pa 18411
Counsel for Appellee
  Borough of Dunmore;
  Borough of Dunmore Council;
  Joseph Loftus; Thomas Hennigan; Joseph Talutto;
  Frank Padula; Leonard Verrastro; Michael Cummings;
  all individually and as Councilmen

__________________

   * Honorable A. Wallace Tashima, Senior Judge of the
     United States Court of Appeals for the Ninth Circuit,
     sitting by designation.


                            2
                        __________

                OPINION OF THE COURT
                      __________


RENDELL, Circuit Judge.

      Appellant Robert Dee, Jr. appeals from the final order of

the United States District Court for the Middle District of

Pennsylvania granting summary judgment in favor of Appellees

the Borough of Dunmore, the Borough of Dunmore Council,

and various Borough officials:      Joseph Loftus, Thomas

Hennigan, Joseph Talutto, Frank Padula, and Leonard Verrastro

(collectively “the Borough”).      In June of 2005, after

approximately eighteen years of service with the Borough of

Dunmore Fire Department, Dee was suspended without notice

by the Borough Council based on its determination that he had

failed to complete two training requirements. Days later, news


                              3
of Dee’s suspension was published in the Borough’s local paper.

Eight days after the suspension was initially announced, the

Borough Council held a post-suspension hearing, at which it

concluded that Dee was in fact in compliance with all applicable

training requirements.

        Dee brought suit under 42 U.S.C. § 1983, alleging

violations of his First, Fifth, and Fourteenth Amendment rights

as a result of the Borough’s conduct;1 he also included several

causes of action under state law. On appeal, Dee challenges the

District Court’s conclusion that his allegations were insufficient

to state a § 1983 claim against the Borough for violating his


    1
     As recognized by the District Court, Dee’s Complaint
actually cited the First, Fourth, and Fourteenth Amendments.
Because the Complaint contains no allegations involving
unlawful searches and seizures, we will assume, as did the
District Court, that the mention of the Fourth Amendment was
in error and that Dee’s intention was to cite the Fifth
Amendment. We note that neither party disputed the District
Court’s assumption on appeal.

                                4
right to procedural due process as guaranteed by the Fourteenth

Amendment. Specifically, Dee argues that the District Court

erred in determining that the property and liberty interests

alleged in his Complaint did not warrant constitutional

protection.

       We have jurisdiction to hear this appeal pursuant to

28 U.S.C. § 1291. For the reasons stated below, we will vacate

the District Court’s entry of judgment and remand for further

proceedings consistent with this opinion.




                        B ACKGROUND

       At all times relevant to his Complaint, Dee was employed

as a full-time firefighter by the Borough of Dunmore Fire

Department.    After serving as a volunteer firefighter for

approximately three years, Dee was eventually hired full time

and, over a span of fifteen years, was promoted through the

                              5
ranks of the Department, from Lieutenant to Captain to

Assistant Fire Chief.      As a full-time firefighter, Dee’s

employment with the Borough was not “at will”; rather it was

governed by the terms of the Collective Bargaining Agreement

(“CBA”) between the Borough and Local Union No. 860 of the

International Association of Fire Fighters, AFL-CIO, of which

Dee was a member.

       On May 20, 2005, Joseph Loftus, the Borough Manager,

requested from Frank Arnone, the Borough Fire Chief, a list of

the necessary qualifications and certifications for full-time work

in the Fire Department according to the CBA, along with

documentation that each full-time firefighter had met these

qualification. On May 23, 2005, Arnone sent Loftus a memo

with the requested list and notified Loftus that all certification

information was kept in the Department’s personnel file. Three

days later, on May 26, Loftus inquired of Arnone as to whether

                                6
all of the firefighters had completed the identified requirements

and then went back to Arnone once again, seeking some

additional information.    After reviewing the materials he

received from Arnone, Loftus determined that Dee had failed to

complete two weeks of required training at the Pennsylvania

State Fire Academy and did not have the required EMT

Certification. Without contacting Dee, and without conducting

any further investigation, Loftus conveyed this information to

the Borough Council.

       On June 27, 2005, relying only on the information

provided by Loftus, the Borough Council voted to suspend Dee

with pay pending a hearing to be held eight days later. Dee was

not present at the Council’s vote, nor was he even aware that his

personnel file was under review. Once the decision to suspend

Dee had been made, Loftus sent a letter to Arnone on June 28th,

informing him of the suspension and of the scheduled hearing.

                               7
Arnone in turn informed Dee, who learned then for the first time

of the charges against him. Dee was immediately removed from

the schedule and prohibited from returning to work unless and

until his suspension was lifted.

       On June 30, 2005, after receiving a copy of Loftus’s

June 28th letter to Arnone, The Times-Tribune published a story

entitled “Firefighters suspended for not completing required

training.” 2 (App. 164.) The article named Dee and Captain

Edward Smith as the firefighters with incomplete training

records. It also included, inter alia, a quote from Councilman

Paul Nardozzo, who stated that he voted against the suspensions

because he “d[id]n’t think this was looked at and researched



   2
   The parties dispute how the The Times-Tribune came into
possession of the June 28th letter. Dee holds the Borough
accountable for the release of the confidential personnel
document, while the Borough states only that it came from “an
unidentified and unknown” source. (Appellee’s Br. 9.)

                               8
enough.” (App. 164.) Five days after the article was published,

on July 5, 2005, Dee filed this lawsuit.

       On July 6, 2005, the Borough Council met. Dee attended

the meeting, together with union counsel, who presented

evidence as to the true facts. The Council then determined that

Dee had in fact completed all required training, and that, under

the terms of the CBA, he was not required to have the EMT

certification for which he had been suspended, because the

requirement only applied to those hired after a certain date.

After the meeting, Dee was notified by Fire Chief Arnone that

he would be permitted to return to work. On July 7, 2005, The

Times-Tribune ran a story entitled “Dunmore firefighters

reinstated.” (App. 165.)

       After a period of discovery in the District Court, the

Borough moved for summary judgment, and the District Court

granted the Borough’s motion. The Court concluded, without

                               9
analysis, that Dee did not have a property interest cognizable

under the Fourteenth Amendment, and found, after considering

the elements of a liberty interest claim, that his asserted interest

did not warrant constitutional protection. Having dismissed

Dee’s federal causes of action, the District Court declined to

exercise supplemental jurisdiction over the state law claims.

Dee filed a timely notice of appeal.

       On appeal, Dee contends that he was denied procedural

due process that should have been afforded by virtue of his

asserted property and liberty interests, and that, accordingly, he

was entitled to survive summary judgment.




                     S TANDARD OF R EVIEW

       We exercise plenary review over a grant of summary

judgment, viewing the facts in a light most favorable to the

nonmoving party, and applying the same standard that guides

                                10
   our district courts. Erie Telecomms. Inc. v. City of Erie, 

, 1093 (3d Cir. 1988). Under that standard, a party is

   entitled to summary judgment only “if the pleadings,

   depositions, answers to interrogatories, and admissions on file,

   together with the affidavits, if any, show that there is no genuine

   issue as to any material fact and that the moving party is entitled

   to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).




                             D ISCUSSION

Originally enacted as part of the Civil Rights Act of 1871, 42

U.S.C. § 1983 provides a private right of action against anyone

who, acting under the color of state law, deprives another of “any

rights, privileges, or immunities secured by the Constitution and

laws” of the United States. 42 U.S.C. § 1983; see also Nextel

Partners Inc. v. Kingston Twp., 

, 693-94 (3d Cir.

2002). In this case, the right upon which Dee bases his § 1983

                                   11
claim is his Fourteenth Amendment right to procedural due

process.3

In order to determine whether the Borough’s actions, as outlined

above, deprived Dee of due process, “we must first ask whether the

asserted individual interests are encompassed within the fourteenth

amendment’s protection of ‘life, liberty, or property.’” Robb v. City

of Phila., 

, 292 (3d Cir. 1984); see also Board of

Regents v. Roth, 

, 569 (1972) (“The requirements of

procedural due process apply only to the deprivation of interests

encompassed by the Fourteenth Amendment’s protection of liberty

and property.”); Stana v. Sch. Dist. of Pittsburgh, 

, 125

(3d Cir. 1985) (“The predicate for requiring a government entity to


      3
       Dee’s Complaint also included a § 1983 claim based on an
   alleged violation of his First Amendment right “to be free from
   injury to his reputation.” (App. 8.) Dee does not challenge the
   dismissal of this aspect of his Complaint on appeal. There is
   also no dispute regarding the status of Appellants as state actors.


                                   12
comply with the rudiments of procedural due process is a

determination that some constitutional interest is at stake.”). “If

protected interests are implicated, we then must decide what

procedures constitute ‘due process of law.’” 

.

  As recognized above, Dee argues that he was deprived of a

constitutionally protected property interest and a constitutionally

protected liberty interest without due process as a result of the

Borough’s actions. We will address each of Dee’s asserted interests

in turn.




                       I. Property Interest

Dee defines his asserted property interest as the interest “in not

being suspended without just cause.” (Appellant’s Br. 12.) To

determine whether such an interest exists, we will first look to state

law. See Board of Regents v. Roth, 

, 577 (1972)

(“Property interests are not created by the Constitution. Rather they

                                   13
are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state

law.”); see also Kelly v. Borough of Sayreville, 

, 1077

(3d Cir. 1997) (“State law creates the property rights protected by

the Fourteenth Amendment.”); Brown v. Trench, 

, 170

(3d Cir. 1986) (“State law determines whether . . . a property

interest exists.”).

A review of the civil service provisions of the Pennsylvania

Borough Code reveals that, indeed, a borough fireman such as Dee

may only be suspended for cause. 53 Pa. Stat. § 46190 specifically

states that “[n]o person employed in any . . . fire force of any

borough shall be suspended, removed or reduced in rank” except for

one of six enumerated reasons.4 As there is no dispute that Dee is


      4
          Those reasons are:

             (1) Physical or mental disability affecting his
                                                      (continued...)

                                   14
and was at all times relevant to his Complaint a “person employed

in [a] fire force of [a] borough,” there can be no dispute that 53 Pa.

Stat. § 46190 creates for him a property interest triggering the

protections of the Fourteenth Amendment. As the Supreme Court

recognized in Logan v. Zimmerman Brush Co., 

, 430

(1982), “[t]he hallmark of property . . . is an individual entitlement




      4
          (...continued)
               ability to continue in service, in which cases the
               person shall receive an honorable discharge from
               service.
               (2) Neglect or violation of any official duty.
               (3) Violation of any law which provided that such
               violation constitutes a misdemeanor or felony.
               (4) Inefficiency, neglect, intemperance,
               immorality, disobedience of orders, or conduct
               unbecoming an officer.
               (5) Intoxication while on duty.
               (6) Engaging or participating in conducting of any
               political or election campaign otherwise than to
               exercise his own right of suffrage.

   53 Pa. Stat. § 46190.

                                      15
grounded in state law, which cannot be removed except ‘for

cause.’” That is precisely what we have here.

The fact that we are dealing with a suspension and not a

termination is of no moment at this point in our analysis.5 It is the

Pennsylvania statute that defines the property interest, and the

statute explicitly states that it applies to those “suspended, removed

or reduced in rank.” 53 Pa. Stat. § 46190.6 Given the unambiguous

language of 53 Pa. Stat. § 46190, which was before the District




      5
       While an employee’s interest in retaining his job may—but
   need not necessarily—be found to weigh more heavily than his
   interest in avoiding suspension in the context of a Mathews v.
   Eldridge balancing analysis (discussed below), the relative
   weights of the interests make them no more nor less
   “entitlements” worthy of basic Fourteenth Amendment
   protections.
      6
      As we noted in a similar context in Gniotek v. City of Phila.,
   

, 243 n.5 (3d Cir. 1986), “under Pennsylvania law,
   suspensions, like dismissals are only proper when for just cause;
   therefore, appellants had a separate property interest in not being
   suspended.”

                                   16
Court during the summary judgment proceedings (see App. 181,

209-10), this is not a close call.7 Dee has clearly demonstrated an

entitlement to Fourteenth Amendment protection.

Even without 53 Pa. Stat. § 46190, however, Dee had a

constitutionally protected property interest based on the terms of the

CBA. “Today it is beyond dispute that a contract with a state entity

can give rise to a property right protected by the Fourteenth

Amendment.” Unger v. Nat’l Residents Matching Program, 

, 1397 (3d Cir. 1991); see also Stana v. Sch. Dist. of City

of Pittsburgh, 

, 126 (3d Cir. 1985) (acknowledging

that, while “[p]roperty interests are often expressly created by state

statutes or regulations, [they] can also arise from . . . ‘mutually

explicit understandings’ between a government employer and


      7
      In fact, at oral argument, counsel for the Borough admitted
   as much, acknowledging that a state statute prohibiting the
   suspension of a fireman without just cause would create a
   constitutionally protected property interest in the same.

                                   17
employee” (quoting Perry v. Sindermann, 

, 601-02

(1972))). And even though “the Supreme Court has never held that

every state contract gives rise to a property interest protected under

the Fourteenth Amendment,” 

(emphasis

added), we have recognized that “employment contracts that contain

a ‘just cause’ provision create a property interest in continued

employment.” Wilson v. MVM, Inc., 

, 177 (3d Cir.

2007) (internal citation omitted); see also 

(recognizing that a property interest protected under the Fourteenth

Amendment arises “where the contract itself includes a provision

that the state entity can terminate the contract only for cause”).

Here, the CBA that governed Dee’s employment with the Borough

contained such a provision. Article XIV, section B of the CBA,

explicitly states: “It is agreed that the Borough Council has the




                                   18
right to discipline and/or discharge Employees for ‘just cause.’” 8

(App. 122.)    The Borough does not dispute that Dee was an

“Employee” under terms of the CBA, nor does it argue on appeal

that Dee’s suspension did not qualify as a form of “discipline and/or

discharge.” Thus, again, we reach our conclusion with relative

ease. Dee’s employment contract with the Borough created a

constitutionally protected property interest in not being suspended

without just cause. He was therefore entitled to due process before

this interest was abridged.9


      8
      The CBA also provided, at Article I, section B, that the Fire
   Chief and Mayor have the right “to classify, promote, suspend,
   discipline or discharge [Employees] with just cause.” (App. 93.)
          9
        Dee’s situation is distinguishable from that described in
   Miller v. Clinton County, No. 07-2105, 

   (3d Cir. Oct 1, 2008). In Miller, a former employee of the
   Clinton County probation office sought to establish a property
   interest in her continued employment. We held that because the
   plaintiff was an at-will employee, she did not have such a
   property interest, citing Elmore v. Cleary, 

(3d Cir.
                                                      (continued...)

                                   19
As we did above, we reject any argument that Dee lacks a property

interest because suspension appears to be a less drastic form of

discipline than termination. We find no legal basis for such an

argument, and the Borough provides us with none. In the state

employment context, an employee’s property interests are “created

and defined by the terms of his appointment,” 

, and, in this case, the terms of the CBA secure for Dee an



     9
      (...continued)
   2005) for the proposition that Pennsylvania law precludes local
   governments from employing workers as anything except at-will
   employees unless explicit enabling legislation to the contrary is
   passed by the Pennsylvania General Assembly. 

, at *7. In Miller, there was no such enabling
   legislation. Here, however, Dee is covered by the Collective
   Bargaining for Policemen and Firemen Act (Act 111), 43 Pa.
   Stat. § 217.1-10, which gives police officers and firefighters the
   right to collectively bargain with their public employers as to the
   terms and conditions of their employment. The CBA at issue
   here makes it clear that Dee and other Borough firefighters are
   not at-will employees, like the plaintiff in Miller. “It is agreed
   that the Borough Council has the right to discipline and/or
   discharge Employees for ‘just cause.’” (App. 122.)

                                   20
interest in not being “discipline[d] and/or discharge[d]” without just

cause (App. 122). As the Borough has affirmatively chosen to grant

Dee this entitlement, it is not for this Court to say that it is unworthy

of constitutional protection.10

In light of the above analysis, we hold that 53 Pa. Stat. § 46190 and

Article XIV, section B of the CBA, together and standing alone,

created for Dee a constitutionally protected property interest in not

being suspended without just cause. We will reverse the District

Court’s holding to the contrary.


        10
         Similarly, we also eschew any notion that Dee lacks a
   constitutionally protected property interest because he was
   suspended with pay as opposed to without. Neither the language
   of 53 Pa. Stat. § 46190, nor the terms of the CBA, distinguish
   between the various forms that suspensions and/or discipline
   may take, and we find no legal authority that would permit us to
   create a distinction in this context.

           As we stated above, however, the fact that Dee was
   suspended with pay may—but need not necessarily—be found
   to affect the Mathews v. Eldridge balancing analysis. See supra
   note 5.

                                     21
Having determined that Dee did in fact have a property interest

protected by the Fourteenth Amendment, we must next determine

the level of process he was constitutionally due. See Cleveland Bd.

of Ed. v. Loudermill, 

, 541 (1985) (“[O]nce it is

determined that the Due Process Clause applies, ‘the question

remains what process is due.’” (quoting Morrissey v. Brewer, 

, 481 (1972))); see also 

(“If

protected interests are implicated, we then must decide what

procedures constitute ‘due process of law.’”).

In Mathews v. Eldridge, 

, 335 (1976), the Supreme

Court held that “identification of the specific dictates of due process

generally requires the consideration of three distinct factors.”

Those factors are:

First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved and the

                                    22
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.

case, it is undisputed that the Borough provided Dee with

neither notice nor a hearing prior to being suspended. Certainly,

when an individual is not provided with any form of pre-deprivation

process, as in this case, the risk of an erroneous deprivation of his

constitutionally protected interest—i.e., the second factor of the

Mathews balancing—is heightened considerably. As the Supreme

Court has made clear, “[w]hen protected interests are implicated,

the right to some kind of prior hearing is paramount.” 

; see also 

n.7 (“While (m)any controversies

have raged . . . about the Due Process Clause, . . . it is fundamental

that except in emergency situations . . . due process requires that

when a State seeks to terminate (a protected) interest . . . , it must

afford notice and opportunity for hearing appropriate to the nature


                                   23
of the case before the termination becomes effective.” (internal

quotation marks omitted; third ellipsis added)); 

(“An essential principle of due process is that a

deprivation of life, liberty, or property ‘be preceded by notice and

opportunity for hearing appropriate to the nature of the case.’”

(quoting Mullane v. Central Hanover Bank & Trust Co., 

, 313 (1950)); 

described ‘the root requirement’ of

the Due Process Clause as being ‘that an individual be given an

opportunity for a hearing before he is deprived of any significant

property interest.’” (quoting Boddie v. Connecticut, 

,

379 (1971)) (emphasis in original)); cf. 

(“The opportunity

to present reasons, either in person or in writing, why proposed

action should not be taken is a fundamental due process

requirement.”). Only in “‘extraordinary situations where some valid

government interest is at stake’” is it permissible to postpone the

hearing until after the deprivation has already occurred. Roth, 

n.7 (quoting 

); see also

n.7; Gilbert v. Homar, 

,

930-31 (1997).

Here, the Borough argues that this was one of those extraordinary

situations. According to the Borough, Dee was not provided with

a pre-deprivation hearing because “Dunmore feared the potential

harm of having a firefighter working for the Borough without

proper certification.” (Appellees’ Br. at 17.) The Borough contends

that its interest in protecting the safety of its citizens far outweighs

Dee’s interest in avoiding suspension with pay and no loss in

benefits or seniority.

Dee responds that the Borough failed to provide him with a pre-

deprivation hearing, not because it feared for the public safety, but

because the Council feared for its own public image. In support of

this contention, Dee cites the deposition testimony of Defendant

Joseph Talutto, one of the Borough’s council members, who

                                    25
indicated that the Council acted with such immediacy, at least in

part, because the members “d[id]n’t want to get blasted in the

press.” (Appellant’s Br. 5 (citing App. 403).) Dee also challenges

the credibility of any suggestion that he could have possibly been

considered a threat to public safety, pointing out that, as of the time

of his suspension, he had served honorably with the Dunmore Fire

Department for approximately eighteen years and had been

promoted by Dunmore to the rank of Assistant Fire Chief.

According to Dee, the Borough’s “illusory” interest in the safety of

the community (Appellant’s Br. 20) cannot outweigh his

constitutionally protected property interest in not being suspended

without just cause.

The District Court did not reach this issue, nor did it really address

the sufficiency of Dee’s property interest claim in any detail.

Although “a district court’s failure to consider an issue below does

not necessarily preclude us from addressing it on appeal,” Norfolk

                                    26
Southern Ry. Co. v. Basell USA Inc., 

, 97 (3d Cir. 2008),

“where the resolution of an issue requires the exercise of discretion

or fact finding . . ., it is inappropriate and unwise for an appellate

court to step in,” Hudson United Bank v. LiTenda Mortgage Corp.,

, 159 (3d Cir. 1998).         The parties’ arguments, as

summarized above, indicate that, at the very least, there exist issues

of disputed fact regarding the Borough’s justification for

suspending Dee without first affording him notice and a hearing.

This will greatly impact the analysis of the factors to be examined

under Mathews v. Eldridge. Accordingly, we will remand to the

District Court for further proceedings.




                                   27
                       II. Liberty Interest

We turn next to the question of whether Dee has asserted a

constitutionally cognizable liberty interest. Dee bases this aspect of

his § 1983 claim on the damage to his reputation from the June 30,

2005, newspaper article, coupled with his suspension without just

cause.

By now it is clear that “reputation alone is not an interest protected

by the Due Process Clause.” Clark v. Twp. of Falls, 

,

619 (3d Cir. 1993) (citing Paul v. Davis, 

, 701-12

(1976)) (emphasis added). “Rather, to make out a due process

claim for deprivation of a liberty interest in reputation, a plaintiff

must show a stigma to his reputation plus deprivation of some

additional right or interest.” Hill v. Borough of Kutztown, 

, 236 (3d Cir. 2006) (emphasis in original); see also 

(“[D]efamation is actionable under 42 U.S.C. § 1983

only if it occurs in the course of or is accompanied by a change or

                                   28
extinguishment of a right or status guaranteed by state law or the

Constitution.”); Strum v. Clark, 

, 1012 (3d Cir. 1987)

(“[M]ere damage to reputation, apart from the impairment of some

additional interest previously recognized under state law, is not

cognizable under the due process clause.”). This has been referred

to as the “stigma-plus” test. See e.g., 

.

In this case, without addressing the “stigma” prong of the analysis,

the District Court concluded that Dee had not stated a sufficient

“plus,” as his suspension fell short of termination. In support of this

conclusion, the District Court reasoned:

The Third Circuit Court of Appeals has, in several cases, held that
the deprivation a plaintiff suffered along with stigma to his
reputation was not sufficiently weighty to satisfy the “plus”
requirement, because the plaintiff in each case did not lose his job,
and instead complained about some adverse employment action
less drastic than discharge.




                                    29
(App. 7 (citing Edwards v. Cal. Univ. of Pa., 

(3d Cir.

1998); Kelly v. Borough of Sayreville, 

(3d Cir.

1997); Clark, 

; Robb, 

).)

While it is certainly true that in each of the cases cited by the

District Court (1) the plaintiff had suffered “some adverse

employment action less drastic than discharge” and (2) we found the

challenged action to be insufficient to satisfy Mathews’ “plus”

requirement, in none of the cases did the action complained of

implicate an “interest previously recognized under state law.” See

. In this case, however, such an interest is

implicated.   As we have determined above, Dee has stated a

constitutionally protected property interest—created and defined by

state statutory law and the terms of the CBA—in not being

suspended without just cause. In light of the existence of that

interest, we hold that he has alleged a sufficient “plus.” This is

consistent with the views of our sister courts of appeals who have

                                  30
held that a constitutionally protected property interest qualifies as

a sufficient “plus.” 11


        11
          See, e.g., Greenwood v. New York, 

, 124
   (2d Cir. 1998) (“Several circuits have held that the deprivation
   of a property interest satisfies the ‘plus’ prong of stigma plus.
   We agree with this position. And . . . we hold that government
   defamation combined with the deprivation of a property interest
   . . . g[i]ve[s] rise to a due process liberty interest.” (internal
   citations omitted)); Cypress Ins. Co. v. Clark, 

,
   1436-37 (11th Cir. 1998) (“The ‘stigma-plus’ standard[]
   requires a plaintiff to show that the government official’s
   conduct deprived the plaintiff of a previously recognized
   property or liberty interest in addition to damaging the plaintiff’s
   reputation.”); San Jacinto Sav. & Loan v. Kacal, 

,
   701-02 (5th Cir. 1991) (“To establish the [plus] portion of the
   stigma plus infringement test, a claimant must establish that the
   state sought to remove or significantly alter a life, liberty, or
   property interest recognized and protected by state law or
   guaranteed by one of the provisions of the Bill of Rights that has
   been incorporated.” (internal quotation marks omitted)); Cooper
   v. Dupnik, 

, 1532 n.22 (9th Cir. 1989) (“The
   ‘plus’ part of th[e stigma-plus] test can be met by either the
   denial of a right specifically secured by the Bill of Rights (such
   as the right to free speech or counsel), or the denial of a
   state-created property or liberty interest such that the Fourteenth
   Amendment’s Due Process Clause is violated.”).

                                                        (continued...)

                                   31
Because the District Court ended its liberty interest analysis with

the conclusion that Dee had failed to satisfy the “plus” requirement,

it did not address the “stigma” prong of the “stigma plus” test. “To

satisfy the ‘stigma’ prong of the test, it must be alleged that the

purportedly stigmatizing statements(s) (1) were made publicly and

(2) were false.” 

(internal citations omitted).




      11
       (...continued)
           We also note that we have held—consistent with the
   precedent of several of our sister circuits—that when a public
   employee bases his “plus” on government conduct that does not
   implicate a state law-created property interest, the employee
   nonetheless satisfies the “stigma-plus” test if he can establish
   that he was “defamed in the course of being terminated or
   constructively discharged.” 

; accord Doe
   v. U.S. Dep’t of Justice, 

, 1104-12 (D.C. Cir.
   1985); Dennis v. S & S Consol. Rural High Sch. Dist., 

, 342-43 (5th Cir. 1978); Colaizzi v. Walker, 

,
   973 (7th Cir. 1976). As we have determined that a state law-
   created property was implicated in this case, termination or
   constructive discharge was not required.

                                   32
We conclude that we cannot, and should not, resolve this aspect of

the liberty interest analysis as there are issues of material fact that

prevent us from doing so. A review of the record reveals a dispute

as to the circumstances surrounding the release of the news of Dee’s

suspension to The Times-Tribune. See supra note 2. Such a dispute

affects our ability to address the first step of the “stigma” analysis.12

Accordingly, we will remand to the District Court for additional fact

finding.




                            C ONCLUSION


       12
        We note further that there is a dispute as to whether the
   Borough Council’s July 6, 2005, meeting qualified as a name-
   clearing hearing sufficient to satisfy the requirements of due
   process. Should Dee be able to satisfy the “stigma” prong of the
   “stigma plus” test, Mathews v. Eldridge balancing would again
   be in order; this time to determine whether the Council’s July
   6th hearing was constitutionally sufficient. See Graham v. City
   of Phila., 

, 145-47 (3d. Cir. 2005); see also
   Patterson v. City of Utica, 

, 336-37 (2d Cir. 2004).


                                     33
For the reasons set forth above, we will VACATE the District

Court’s entry of judgment and REMAND for further proceedings

consistent with this Opinion.




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