Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-2005

Hill v. City of Scranton
Precedential or Non-Precedential: Precedential

Docket No. 02-3833




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                                 PRECEDENTIAL
       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                ______________

            Nos. 02-3833/3988 & 03-1377
                  _____________

      PHYLLIS HILL; ROBERT K. MURRAY;
      DONALD HICKEY; PAUL W. GRAHAM

                          v.

CITY OF SCRANTON; JAMES P. CONNORS, Individually
           and as mayor, City of Scranton

              Phyllis Hill and Paul Graham,

                      Appellants - No. 02-3833


      PHYLLIS HILL; ROBERT K. MURRAY;
      DONALD HICKEY; PAUL W. GRAHAM


                           v.

    CITY OF SCRANTON; JAMES P. CONNORS,
      Individually and as Mayor, City of Scranton


                Phyllis Hill, Donald Hickey
                  and Paul W. Graham,

                     Appellants - No. 03-1377
        PHYLLIS HILL; ROBERT K. MURRAY;
        DONALD HICKEY; PAUL W. GRAHAM

                               v.

CITY OF SCRANTON; JAMES P. CONNORS, Individually
           and as mayor, City of Scranton

                         Donald Hickey,

                       Appellant- No. 02-3988


        Appeal from the United States District Court
          for the Middle District of Pennsylvania
                   (D.C. No. 01-cv-00744 )
        District Judge: Honorable John E. Jones, III


               Argued on September 3, 2003

Before: SLOVITER, NYGAARD and ROTH Circuit Judges

               (Opinion filed: June 9, 2005)

Cynthia L. Pollick, Esquire (Argued)
The Employment Law Firm
126 South Main Street, Suite 201
Pittston, PA 18640

      Counsel for Appellants


Joseph G. Ferguson, Esquire (Argued)
Rosenn, Jenkins & Greenwald
120 Wyoming Avenue
Scranton, PA 18503

      Counsel for Appellees

                               2
                        OPINION


ROTH, Circuit Judge

        Since 1980, the city of Scranton, Pennsylvania, has
maintained an ordinance requiring city employees to reside
within the city. In 1997, a group of twenty-two police officers
sought to have the ordinance declared unconstitutional. The
U.S. District Court for the Middle District of Pennsylvania
dismissed the suit and we affirmed. After an investigation in
2000, the city terminated four of these officers, as well as a
police mechanic, who was not a party to the 1997 suit, for
failing to comply with the ordinance. The terminated officers
brought a new suit, alleging that the city had infringed their
First Amendment freedom to petition the government and had
violated their right to equal protection of the laws by
enforcing the ordinance against them in retaliation for their
participation in the 1997 suit. The mechanic also brought
suit, alleging that he was terminated in retaliation for
complaining about the condition of the Department of Public
Works garage. Three of the four officers’ cases were
consolidated for pre-trial purposes with the mechanic’s case.
The District Court granted summary judgment in favor of the
city on the three officers’ claims but allowed the mechanic’s
claims to proceed to trial.1

       We conclude that the District Court should not have
granted summary judgment on the police officers’ retaliation
claim. The officers presented enough evidence to raise a
dispute of material fact as to whether the city impermissibly
targeted the 1997 plaintiffs. First and foremost, the officers
presented evidence that other city employees, who were not
parties to the 1997 suit, were permitted to keep their jobs


   1
       The District Court subsequently granted partial
summary judgment in favor of the city in the fourth officer’s
case but that case is not before us.

                               3
despite the city’s knowledge that they were not city residents.
Further, it is undisputed that, prior to the officers’
terminations in 2000, no city employee had ever been fired for
non-compliance with the residency ordinance.

        We further hold that the District Court did not abuse its
discretion or otherwise err in denying Officer Hickey leave to
amend his complaint to add a due process claim that his post-
termination Municipal Service Commission hearing has been
unreasonably delayed. We also reject the officers’ contention
that the District Court improperly and unnecessarily entered a
final judgment on January 8, 2003. Finally, we reject without
substantive discussion all of the remaining issues raised in
these appeals.2

              II. Facts and Procedural History

       In 1997, a group of twenty-two Scranton police
officers filed a complaint alleging that the city’s residency
ordinance was unconstitutional on its face and as applied.
With certain exceptions, the ordinance requires all city
employees to maintain a “bona-fide residence” within the
corporate limits of Scranton during their time of employment.
See Scranton, Pa., File of the Council No. 17 § 2 (Feb. 27,
1980).3 The District Court dismissed the complaint in


   2
        Thus, we affirm the district court’s decision to grant
summary judgment on Hickey’s claim under the Americans
with Disabilities Act. We also hold that the officers waived
their claim that the district court improperly dismissed as
moot various discovery motions pending at the time the
district court rendered summary judgment in favor of the city.
The officers’ passing reference to this claim in the “Statement
of Issues For Review” in their opening brief does not suffice
to bring it before this court. See Kopec v. Tate, 

,
775 (3d Cir. 2004) (citations omitted).
   3
       The ordinance provides in relevant part:
         Section 2. On or after March 1, 1980, any
         new employee of the City of Scranton who
         is not a resident of the City of Scranton at

                               4
December of 1997. The court rejected the officers’ facial due
process and equal protection challenges to the ordinance,
holding, among other things, that the ordinance was rationally
related to one or more legitimate government purposes and
that the term “bona-fide residence” is not unconstitutionally
vague because it is synonymous with “legal domicile,” a well-
understood legal concept.4 The District Court also held that
the officers’ as-applied and procedural due process challenges
were not ripe for adjudication. The officers alleged that,
despite the ordinance’s general applicability, only police
officers had received threats of impending enforcement and
requests for documents establishing residency. However, the
District Court reasoned that none of these claims were ripe
because the city had not yet formally enforced the ordinance
against any employee or group of employees, nor had the
officers alleged that waivers had been granted in an arbitrary
or discretionary manner. We affirmed in an unpublished
decision. Kreischer v. City of Scranton, No. 98-7439 (3d Cir.
June 16, 1999).

      In late December 1997, shortly after the District Court
dismissed the police officers’ challenge, the City Controller



         the time of the commencement of
         employment shall have six (6) months
         from the time of commencement of
         employment to acquire a bona-fide
         residence within the corporate limits of the
         City. Such residence must be maintained
         during continuous employment by the city
         or be a cause for immediate termination of
         the employment relationship between the
         City of Scranton and the new employee.
   4
       The district court relied heavily on McCarthy v.
Philadelphia Civil Service Commission, 

, (1976),
affirming 

(Pa. Commw. Ct. 1975). The
Supreme Court in McCarthy refused to consider a facial
constitutional challenge to a similar residency requirement,
concluding that the requirement was not 

.

                              5
issued a memorandum to all city employees requesting
documentation and affidavits verifying each employee’s
residency.5 In October 1999, several months after we had
affirmed the dismissal, the city and the police union agreed to
incorporate the residency ordinance into the new collective
bargaining agreement (CBA), which was ratified later that
month. The CBA specified that the term “bona fide
residence” means “sole legal residence or domicile.” It also
provided for a six-month grace period for all police officers to
come into compliance. While the precise language varied, the
residency ordinance was also incorporated into other
collective bargaining agreements between the city and other
unions representing city employees.

       In May 2000, the city hired a private investigation firm
to investigate certain employees who were suspected of living
outside the city. The city initially sent a list of eight names to
the investigator, seven of whom were police officers who had
sued the city in 1997 and one of whom was a firefighter.
Ultimately, between 2000 and 2001, the city investigated
about 25 individuals but only terminated five: Donald
Hickey, Phyllis Hill, Paul Graham, Jason Gnall, and Robert
Murray. Hickey, Hill, Graham, and Gnall were police officers
involved in the 1997 suit against the city. All were offered
pre-termination hearings with the mayor. Hickey and Gnall
sought post-termination hearings before the Municipal
Service Commission of the City of Scranton but as of early
2004 had yet to receive their hearings.

        In April 2001, Hickey, Hill, Graham, and Murray
brought this suit under 42 U.S.C. § 1983 against the city of
Scranton and Mayor James Connors (hereinafter the “city”),
alleging among other things that the city selectively enforced
the residency ordinance against them in retaliation for



   5
        Section 5 of the residency ordinance provides that
“[t]he Controller of the City of Scranton may, from time to
time, . . . require adequate proof of bona-fide residence within
the City of Scranton.” Scranton, Pa., File of Council No. 17,
§ 5.

                                6
exercising their First Amendment rights.6 Hickey, Hill, and
Graham alleged that the city retaliated against them for suing
the city in 1997, while Murray alleged that the city terminated
him for complaining about the condition of the Department of
Public Works garage. In July 2001 the District Court
consolidated these cases for all pretrial purposes. In July
2002, the parties filed cross-motions for summary judgment.
In Hickey’s brief opposing the city’s motion for summary
judgment, he argued for the first time that the lengthy delay in
his post-termination Municipal Service hearing violated his
right to procedural due process. In September, 2002 the
District Court granted summary judgment in favor of the city
against Hickey, Hill, and Graham but denied summary
judgment with respect to Murray’s claims. The court denied
the plaintiffs’ motions for summary judgment. The court
treated Hickey’s new argument concerning post-termination
hearing delay as a constructive motion to amend his complaint
and gave the parties additional time to brief the issue whether
leave to amend should be granted. In October 2002, the court
denied leave to amend after finding that the amendment
would be futile and would be made in bad faith. Hill and
Graham appealed the September 2002 order and Hickey
appealed both the September and October orders.7

        In November 2002 the city filed a motion for partial
final judgment pursuant to Federal Rule of Civil Procedure
54(b). The District Court granted this motion over the
plaintiffs’ opposition, reasoning that a final judgment under
Rule 54(b) was necessary to terminate Hickey, Hill, and
Graham’s claims because the September order was not final
as to Murray’s claims. Hill, Hickey, and Graham appealed
this decision as well. We consolidated all of the appeals for
purposes of oral argument and resolve all of them in this


   6
      Gnall brought a similar suit sometime later, but that
case was not consolidated with the others.
   7
       The appellants do not claim that the District Court
should have granted their motions for summary judgment,
only that it should not have granted summary judgment
against them.

                               7
opinion.




                        II. Jurisdiction

       The District Court had jurisdiction over the plaintiffs’
federal claims and pendent state claims under 28 U.S.C. §§
1331 and 1367, respectively. We have appellate jurisdiction
to review the District Court’s final decisions pursuant to 28
U.S.C. § 1291. As noted, this case involves consolidated
appeals. Because the officers’ appeal of the District Court’s
January 2003 Rule 54(b) order implicates our jurisdiction
over the officers’ other appeals we consider it in this section.

        Federal Rule of Civil Procedure 54(b) provides a
mechanism for rendering a partial final judgment as to some,
but not all, parties or claims in a single action.8 See Berckeley
Inv. Group, Ltd. v. Colkitt, 

, 140 (3d Cir. 2001).
Without a valid Rule 54(b) order, we do not ordinarily have
appellate jurisdiction over a district court order that resolves
fewer than all the claims of all the parties in a single action
because such orders do not constitute “final decisions” per 28
U.S.C. § 1291. 

below, we hold that the
district court properly directed entry of partial final judgment
in this case. Accordingly, we have jurisdiction over all of the
consolidated appeals.



   8
         Pursuant to Rule 54(b), “the court may direct the entry
of a final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that
there is no just reason for delay and upon an express direction
for the entry of judgment.” However, “[i]n the absence of
such determination and direction, any order . . . which
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate the
action as to any of the claims or parties, and the order or other
form of decision is subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights
and liabilities of all the parties.” Fed. R. Civ. P. 54(b).

                                8
        The officers claim that Rule 54(b) is not applicable
here because the three cases brought by the officers and
Robert Murray’s case had been consolidated only “for
discovery purposes.” According to the officers, therefore, the
September and October 2002 orders terminated three of these
four cases and the District Court lacked jurisdiction to enter a
separate final judgment in these cases in January 2003.
However, the officers’ argument depends on what appears to
be a deliberate misreading of the record. In July 2001 the
District Court ordered that “the four cases shall be
consolidated for all pretrial proceedings, with a determination
to be made at the final pretrial conference as to whether there
will be more than one trial.” (Emphasis added.) The court
further provided that “all four cases are consolidated into
4:CV-01-0744 as the surviving case.” Thus, the four cases
were not consolidated only for discovery purposes — they
were consolidated for “all pretrial proceedings,” including
summary judgment proceedings. Thus, as the city correctly
argues, a partial final judgment under Rule 54(b) was
necessary to terminate Hickey, Hill, and Graham’s claims
because the September 2002 order granting summary
judgment to the city was not final as to Murray’s claims. If
the District Court had not entered partial final judgment
pursuant to Rule 54(b) in January 2003, we would not have
had jurisdiction over the officers’ appeals of the September
and October 2002 orders. See Berckeley Inv. 

; see also In re Unisys Corp. Retiree Med. Benefit
“ERISA” Litig., 

, 502 (3d Cir. 2001). We affirm
the district court’s decision to enter partial final judgment in
January 2003.

                  IV. Standards of Review

       We exercise plenary review over the District Court’s
order granting summary judgment to the city. Assaf v. Fields,

, 171 (3d Cir. 1999). Accordingly, we apply the
same test that the District Court should have applied.
Chipollini v. Spencer Gifts, Inc., 

, 896 (3d Cir.
1987) (en banc). We review the record as a whole,
“draw[ing] all reasonable inferences in favor of the non-
moving party” but not weighing the evidence or making


                               9
credibility determinations. Reeves v. Sanderson Plumbing
Prods., Inc., 

, 150 (2000) (citation omitted). If
we determine that “there is no genuine issue as to any material
fact” and that the movant is entitled to judgment as a matter of
law, we will affirm the district court’s grant of summary
judgment. Fed. R. Civ. P. 56(c).

       We review the District Court's denial of leave to
amend Hickey’s complaint for abuse of discretion. Lum v.
Bank of America 

, 223 (3d Cir. 2004). Whether
the District Court properly entered final judgment pursuant to
Fed. R. Civ. P. 54(b) is a matter of law that we review de
novo. Berckeley Inv. 

.

                         IV. Discussion

A.     The Officers’ First Amendment and Equal Protection
       Claims

        The officers allege that the city terminated them not
because they failed to comply with the residency ordinance
but because they exercised their First Amendment right to
petition the government by suing the city in 1997. We follow
a well-established three-step test to evaluate a public
employee’s claim of retaliation for engaging in activity
protected under the First Amendment. See Baldassare v.
State of New Jersey, 

, 195-96 (3d Cir. 2001); San
Filippo v. Bongiovanni, 

, 430-31 (3d Cir. 1994);
Holder v. City of Allentown, 

, 194 (3d Cir.
1993). First, the employee must show that the activity is in
fact protected. Pickering v. Bd. of Educ., 

(1968). Second, the employee must show that the protected
activity “was a substantial factor in the alleged retaliatory
action.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

, 287 (1977). Third, the employer may defeat the
employee’s claim by demonstrating that the same adverse
action would have taken place in the absence of the protected
conduct. 

further allege that the city violated their
right to equal protection of the laws under the Fourteenth


                                10
Amendment by selectively enforcing the ordinance against
them while failing to terminate other similarly situated city
employees who did not bring suit in 1997. As noted above,
we affirmed the District Court’s dismissal of the 1997 claim
that the residency ordinance violated the equal protection
clause on its face. However, discriminatory enforcement of a
facially valid law is also unconstitutional under the equal
protection clause. Yick Wo v. Hopkins, 

, 373-74
(1886); 

(applying Yick Wo to a claim
of discriminatory enforcement of a residency ordinance). To
establish their selective enforcement claim, the officers must
demonstrate 1) that other similarly situated employees were
not terminated despite their non-compliance with the
ordinance and 2) that this selective treatment was based on an
“unjustifiable standard, such as race, or religion, or some
other arbitrary factor, . . . or to prevent the exercise of a
fundamental right.” 

(citing United
States v. Schoolcraft, 

, 68 (3d Cir. 1989) (internal
quotations omitted). Here, the officers seek to demonstrate
that the city singled them out for exercising their fundamental
First Amendment right to petition the government when they
brought suit against the city in 1997.

        The officers’ First Amendment and Equal Protection
claims are functionally identical and it would be redundant to
treat them separately.9 As a leading treatise explains, “[i]t is
generally unnecessary to analyze laws which burden the
exercise of First Amendment rights by a class of persons
under the equal protection guarantee, because the substantive
guarantees of the Amendment serve as the strongest
protection against the limitation of these rights.” Ronald
Rotunda & John Nowak, 3 Treatise on Constitutional Law:


   9
        The officers seek to prove the second prong of their
equal protection claim by proving their First Amendment
claim. Conversely, the officers’ most significant evidence
supporting their First Amendment claim is that other similarly
situated city employees who did not participate in the 1997
suit were not terminated. This same evidence would also
satisfy the officers’ burden of proof on the first prong of their
equal protection claim.

                               11
Substance and Procedure § 18.40, at 796 (3d ed. 1999). If a
law passes muster under the First Amendment it is also likely
to be upheld under the Equal Protection clause. 

a law violates First Amendment rights there is no need to
resort to the Equal Protection clause to redress the
constitutional violation. Id.; see also Sherbert v. Verner, 

, 410 (1963) (no need to examine equal protection
claim based on denial of unemployment benefits to
individuals whose religious principles prohibit Saturday work
where Court held same practice unconstitutional under free
exercise clause). We will examine the officers’ First
Amendment retaliation claim directly rather than as a
component of their derivative equal protection claim.10

        The first prong – whether the relevant activity is
protected under the First Amendment – is not contested here.
In this circuit, any lawsuit brought by an employee against a
public employer qualifies as a protected “petition” under the
First Amendment so long as it is not “sham litigation.” San

. The city does not argue that the
police officers’ 1997 suit against the city was a sham. As for
the second and third prongs, we will consider them together
because we conclude that the same evidence is sufficient to
defeat the city’s summary judgment motion with respect to
each prong.11 See San 

, 444 (holding


   10
         We took the same approach in San Filippo but did not
provide an explanatory discussion because in that case “the
parties agree[d] that the analysis is the same under the first
amendment and equal protection 

n.6.
   11
        This is a case-specific determination based on the facts
before us, not a general principle. There may well be cases in
which evidence satisfying the “substantial factor” prong is
insufficient to rebut evidence demonstrating that the same
adverse employment action would have occurred
notwithstanding the protected activity. See, e.g., Torres-
Rosado v. Rotger-Sabat, 

, 13-14 (1st Cir. 2003)
(assuming plaintiff’s evidence satisfied “substantial factor”
test but granting summary judgment to defendants based on
uncontested evidence that plaintiff would have been

                               12
that evidence supporting professor’s claim that his protected
activities were a “substantial factor” in his termination also
rebutted employer’s claim that the professor would have been
terminated regardless of his protected activities).

        We reject the officers’ contention that courts may
never grant summary judgment on either the second or third
steps of this analysis. Although we have often noted that the
first prong of the First Amendment retaliation test presents
questions of law for the court while the second and third
prongs present questions of fact for the jury, e.g., Curinga v.
City of Clairton, 

, 310 (3d Cir. 2004) (citing

), only genuine questions of fact
should be determined by the jury. For example, in Ambrose v.
Township of Robinson, Pa., 

, 496 (3d Cir. 2002),
we held that judgment as a matter of law under Rule 50(b)
should have been granted to the defendant where the plaintiff
failed to present sufficient evidence that his protected activity
was a substantial factor in his suspension. The same principle
applies in the summary judgment context under Rule 56. E.g.,
Watters v. City of Philadelphia, 

, 892 (3d Cir.
1995) (noting District Court concluded that plaintiff made
sufficient showing that speech was substantial factor
motivating termination to submit question to jury).




terminated anyway). As this court explained in Suppan v.
Dadonna, “substantial factor” does not mean “dominant” or
“primary” factor. 

, 235 (3d Cir. 2000) (citing
Village of Arlington Heights v. Metro. Housing Development
Corp., 

, 265 (1977)). Thus, even if a plaintiff
shows that activity protected by the First Amendment was a
“substantial factor” in her termination, the defendant may
show that some other factor unrelated to the protected activity
was the but-for cause of the termination. 

because the defendant bears the burdens of proof and
persuasion on the third prong, San 

n.7,
to prevail at summary judgment on this prong the defendant
must present evidence of such quality that no reasonable juror
could conclude that the protected activity was the but-for
cause of the termination.

                               13
       In this case, the officers satisfied their evidentiary
burden on the “substantial factor” prong and sufficiently
rebutted the city’s evidence that they would have been
terminated anyway. The officers’ strongest evidence suggests
that several non-resident employees who did not participate in
the 1997 lawsuit were not terminated despite the city’s
knowledge or unrebutted suspicions that they lived outside the
city.

        The District Court in its opinion gives an example of
such an employee. After holding that the officers could not
substantiate their claim that “similarly situated” employees
were allowed to keep their jobs, the court held that Robert
Murray had successfully done so. Murray alleged that his
neighbor Robert Warner, a firefighter for the city, was not
terminated even though they both lived outside the city. The
court found that whether Warner actually lived outside the
city and whether the city knew of Warner’s possible non-
compliance were genuine issues of fact for the jury. The
court then determined, however, that neither Warner nor any
other non-police officer could be “similarly situated” to the
police officer plaintiffs because the language defining “bona-
fide residence” in the police CBA made the CBA more strict
than the residency ordinance itself. The court also found that
the city terminated the police officers because of their non-
compliance with the CBA, not because of their non-
compliance with the residency ordinance. We conclude,
however, that the court erred in reaching both conclusions.

        First, based on the record on appeal, all city employees
subject to the residency ordinance are “similarly situated” for
purposes of the First Amendment analysis. The ordinance
requires all city employees to establish a “bona-fide
residence” in the city of Scranton, but does not define the
term. The police CBA explicitly defines “bona-fide
residence” to mean “sole legal residence or domicile.”
However, the police CBA does not purport to alter or
augment the residency ordinance by providing this definition.
In fact, the police CBA’s definition of “bona-fide residence”
appears to be lifted directly from City of Meadville, Firemen's
Civil Service Commission v. Neff, a Pennsylvania


                               14
Commonwealth Court decision construing a municipal
residency ordinance. 

, 1079-80 n.3 (Pa.
Commw. Ct. 1982) (“Reference to a bona fide residence in a
municipal ordinance establishing a residency requirement for
municipal employees means the sole legal residence or
domicile of the employee.”) (citation omitted, emphasis
added). See also McCarthy v. Phila. Civil Serv. Comm’n, 

, 636-37 (Pa. Commw. Ct. 1975), aff'd, 

(1976) (holding that “bona fide residence” in municipal
residency ordinance means “domicile,” and further explaining
that a person can have more than one residence but only one
domicile). Thus, the residency requirement in the police CBA
is not more strict than the ordinance – it is exactly the same.12
For that reason, the court erred in holding that other city
employees were not similarly situated to the officers simply
because they were not subject to the police CBA.13

        Second, the District Court erred by finding that the
officers were terminated because of their failure to comply
with the police CBA rather than their failure to comply with
the ordinance. As just explained, there is no difference
between the residency requirements imposed by the police
CBA and the ordinance. The distinction made by the District
Court could still be relevant, however, to the extent it reflects
the city’s subjective intent. For example, the city might argue
that it only investigated and terminated employees whose
unions had agreed to include the residency ordinance in their


   12
        In fact, in 1997 the District Court held that “bona fide
residence” as used in Scranton’s residency ordinance was
synonymous with “legal domicile,” and we explicitly upheld
this determination when we affirmed that decision in 1999.
Kreischer v. City of Scranton, No. 98-7439, slip op. at n.2.
   13
        We further note that even if the police CBA imposed
slightly different residency requirements than the ordinance,
the police officers would still be “similarly situated” to other
city employees so long as the core residency requirement was
the same. See Bennun v. Rutgers State Univ., 

,
178 (3d Cir. 1991) (explaining that “similarly situated” does
not mean “identically situated”).

                               15
CBA. This would supply a non-retaliatory explanation for
any evidence that certain non-resident employees were not
terminated if those employees’ unions had not agreed to such
inclusion.

        Under the facts before the court, however, the question
whether the city was willing to enforce the residency
ordinance without the supplemental authority of a collective
bargaining agreement is a genuine factual issue that the
District Court should not have resolved at the summary
judgment stage. In late May 2000, the city sent letters to
eleven police officers and two firefighters threatening
“immediate termination” if the recipients failed to provide
updated documents and affidavits establishing their residency
in the city. These letters referred to both the residency
ordinance and the relevant CBA incorporating that
ordinance.14 However, the pre-termination letters issued to
Hill, Hickey, and Graham cite only the residency ordinance.
Further, other evidence in the record suggests that the city was
willing to rely solely on the residency ordinance. For
example, in 1987, long before the ordinance had been
incorporated into any CBA, the city controller issued a city-
wide request for documentation of residency that threatened
termination for non-compliance.

       In addition to Robert Warner, the officers provided
evidence that at least three other city employees – all police
officers who did not sue the city in 1997 – were allowed to
remain employed despite the city’s knowledge or un-rebutted
suspicions that they were not in compliance with the
residency ordinance.15 In June 2000, Ray Mountford, the lead


   14
      The firefighters’ CBA also incorporated the residency
ordinance.
   15
       The officers have also attempted to swell the ranks of
“similarly situated” employees by listing several golf course
employees and temporary summer employees who were not
terminated despite city personnel records showing them to
have non-Scranton addresses. However, neither of these
groups are subject to the residency ordinance, and therefore

                              16
private investigator working on the residency investigation for
the city, was asked to investigate police officers Donald
Pettinato and Anthony Gillette. Just after the investigation of
Pettinato got underway, however, Mountford was told by the
city that Pettinato lived in Old Forge, Pennsylvania, that he
was not moving back to the city, and that the investigation
should be discontinued. Mountford also testified that his
associate determined based on surveillance and public records
that Gillette lived in Jessup, Pennsylvania. Mountford’s notes
from July 7, 2000, indicate that the city had decided to set
hearings for Pettinato, Gillette, and Paul Graham, one of the
appellants in this case. However, of these three only Graham
was terminated for non-compliance with the residency
ordinance and it appears that no hearings ever took place with
respect to Pettinato and Gillette.16



the officers cannot reasonably argue that any of these
employees are “similarly situated” to them. The golf course is
operated by the Scranton Recreation Authority, an
independent agency not subject to the control of the city of
Scranton. See Smith v. Athens Township Auth., 

,
656 (Pa. Commw. Ct. 1996) (citation omitted). The
Recreation Authority has the sole authority to hire, fire, and
set conditions of employment for its employees. See 53 Pa.
Cons. Stat. § 5607(d). Further, Scranton employees are only
required to live in the city during “continuous employment by
the city.” Temporary summer employees are by definition not
continuously employed by the city, and therefore they are not
subject to the residency ordinance.
   16
        In sharp contradiction to Mountford’s testimony, James
Connors, the mayor of Scranton, testified that the 2000
investigation revealed that both Pettinato and Gillette lived in
Scranton. Connors further testified that the city subsequently
ordered a second investigation of Gillette based on a tip that
he was living outside the city. According to Connors, Gillette
retired during the second investigation. Mountford testified
that he was asked to investigate Gillette a second time in
August 2001, but that his associate had already determined in
2000 that Gillette lived in Jessup, PA. Even if Gillette
ultimately retired under pressure, the fact that the city delayed

                               17
       The officers also showed that the city suspected police
officer Patrick Tobin of residing outside the city but may have
called off the investigation without adequately rebutting those
suspicions. In June 2000, the city asked the private
investigators to investigate Tobin, but Mountford and his
associate were never able to determine Tobin’s residence
despite multiple days of surveillance over the course of four
months.17 City records custodian Conall Kolleen later averred
that Tobin now resides at a specific address in Scranton.
However, the investigators conducted surveillance on this
address – which Mountford identified as Tobin’s ex-wife’s
house – and could not determine whether Tobin resided there.


       For all the above reasons, the District Court’s
conclusion that the plaintiff police officers were “the only
ones that did not come into compliance with the terms of their
CBA” was an improper resolution of a genuine factual
dispute.

      The officers further contend that they were actually in
compliance with the residency ordinance. The officers



enforcing the ordinance against him for over a year
nonetheless supports the officers’ position. Also, the only
evidence of Gillette’s forced retirement on this record comes
from Mayor Connors, an interested witness. Therefore, this
factual issue cannot be resolved on summary judgment. See
Reeves v. Sanderson Plumbing Products, Inc., 

,
149-151 (2000) (explaining that when drawing all reasonable
inferences in favor of the non-movant the courts must
disregard evidence the jury is not required to believe,
including testimony of interested witnesses) (citations
omitted).
   17
       Mountford explained that Tobin was “playing a game”
by purposefully eluding the investigators. Mountford’s
records indicate that Tobin was observed at three different
Scranton addresses, including the homes of his ex-wife and
daughter, but the investigators could not conclude that Tobin
resided at any of these three addresses.

                              18
certainly do not need to allege or prove compliance with the
ordinance to prevail on their First Amendment claim.
Discriminatory enforcement of a statute or ordinance is not
justified simply because the enforcement is otherwise valid.
See Desi's Pizza, Inc. v. City of Wilkes-Barre, 

,
424-25 (3d Cir. 2003). Evidence of the officers’ compliance
with the ordinance would nonetheless be powerful evidence
that their termination was pre-textual. On this record, no
reasonable fact-finder could conclude that either Hill or
Hickey came into compliance with the ordinance within the
time provided by the city.18

       Graham, however, should be permitted to argue his
case for compliance to the jury. As discussed above, a
Scranton employee’s “bona-fide residence” is his domicile.
In Pennsylvania “[t]he domicile of a person is the place where
he has voluntarily fixed his habitation with a present intention
to make it either his permanent home or his home for the
indefinite future.” In re McKinley's Estate, 

, 734
(Pa. 1975). “A new domicile can be acquired only by
physical presence at a new residence plus intent to make that
new residence the principal home.” In re Prendergast, 

, 327-28 (Pa.1996). Graham has established that he
became domiciled in Scranton shortly after he was hired as a
police officer in 1993. It is the city’s burden to demonstrate


   18
        Hill was domiciled with her family in Factoryville, PA,
at the time of her hire as a police officer in 1990, and no
reasonable fact-finder could conclude that she changed her
domicile merely by renting an apartment in Scranton and
spending the night there “occasionally.” Hickey claims that
he received an oral waiver of the residency ordinance from
the chief of police in 1995, but the ordinance provides that a
waiver may only be obtained from the mayor, with the advice
and consent of the city council. See Ordinance, § 4. Further,
his attempt to come into compliance with the ordinance by
moving into his house in the city the day before his pre-
termination hearing on June 8, 2000, is insufficient. The May
26, 2000, threat letter adequately informed Hickey that he had
until June 2, 2000, to come into compliance and supply the
requested proof of compliance to the city.

                               19
    that Graham changed his domicile to Nicholson,
    Pennsylvania, when he re-married in 1998.19 See In re
    

(noting that the burden of
    showing changed domicile “rests upon whomever makes the
    allegation”).

           The city has introduced more than enough evidence to
    meet its burden. First and foremost, the city has shown that
    Graham’s second wife and step-children were domiciled in
    Nicholson during all times relevant to this dispute. The
    location of an individual's family is very strong evidence of
    the location of his domicile. Indeed, the Pennsylvania
    Supreme Court has defined domicile as “the place at which an
    individual has fixed his family home and principal
    establishment for an indefinite period of time.” In re
    

(citing In re Dorrance’s Estate,
    

, 175 (1932)); see also In re Nomination Petitions
    of McIntyre, 

(Pa. Commw. Ct. 2001). The city
    also provided other evidence of changed domicile, including
    Mountford’s testimony that Graham’s Scranton apartment
    was just a “mail drop” being used by both Graham and Hill in
    an attempt to achieve technical compliance with the residency
    ordinance despite actually living outside the city.

            Nevertheless, Graham has introduced enough evidence
    to create a genuine factual dispute on this issue. Graham
    testified that he moved into Scranton within six months of
    being hired as a police officer in 1993 to come into
    compliance with the residency ordinance. He rented various
    apartments there until approximately six months after his
    termination in October 2000. Graham claims that he and his
    new wife lived apart from the time of his marriage until after
    his termination because of his job.20 He explained that he


       19
1           Graham was divorced from his first wife in 1987.
       20
           Graham explained that after he met his second wife,
    Jacqueline, but before they were married, he might stay in his
    Scranton apartment three nights a week, at his parents’ house
    in Clarks Summit once or twice a week, and with Jacqueline
    the remainder of the time. It appears Graham was never

                                  20
never believed that merely renting an apartment and paying
city taxes was sufficient to comply with the residency
ordinance; rather, he thought he had to stay in his Scranton
apartment “three to five” nights a week. At his pre-
termination hearing Graham called four witnesses who
attested that they were Graham’s neighbors when he lived in
the Scranton apartment also claimed by Phyllis Hill. Finally,
Graham claims that his wife solely owned the Nicholson
home.

        Graham’s account is self-serving and somewhat
unlikely. A person’s intent to change domicile is based on
“the actual state of facts, not what one declares them to be.”
In re 

. However, courts do not
weigh evidence or determine credibility questions at the
summary judgment stage. Reeves v. Sanderson Plumbing
Prods., Inc., 

, 150 (2000) (citation omitted).
Viewed in the light most favorable to Graham, a reasonable
fact-finder could conclude that Graham made his home in
Scranton when he moved there after being hired as a police
officer and that he never made Nicholson his principal home
after he re-married because he knew that if he did so he would
be in violation of the residency ordinance.21

        The officers also presented additional evidence of
retaliation. Without the evidence regarding specific
employees described above, we doubt whether this additional



asked about his typical weekly routine after he was married.
   21
        Our conclusion on this issue does not compel a similar
result in Hill’s case. Hill was domiciled in Factoryville with
her own family and children when she was hired as a police
officer. Hill is listed with her husband on the deed associated
with that property. When asked if she slept in her Scranton
apartment on a regular basis Hill answered “no.” She
followed by stating that she slept there “occasionally,” but
refused to be more specific. She was equally vague when
asked how often she ate meals there. Further, while Graham
claims that he had a private bedroom in the shared apartment,
Hill claims that she slept on a “sofa couch.”

                              21
evidence would be sufficient to meet the officers’ burden of
rebuttal. However, we need not resolve this question because
the sum of all the evidence supporting the officers is
sufficient to carry their burden.

        First, viewed in the light most favorable to the officers,
the residency ordinance had been enforced half-heartedly and
sporadically at best prior to the 2000 residency investigation.
Since the ordinance’s passage in 1980, the city has attempted
only twice to collect residency information from all
employees – in 1987 and 1997.22 More important, there is no
evidence that prior to June 2000 any employee was
disciplined or terminated for failure to comply with the
ordinance. The city’s sudden vigilance could suggest that the
city was motivated at least in part by the officers’
participation in the 1997 lawsuit. See 

(noting Holder’s allegation that no other city employee had
been fired for non-compliance with residency ordinance in
ordinance’s fourteen-year existence).23



   22
       Roseann Novembrino, the City Controller, testified
that she also collected residency information in 1991, but the
city produced no records supporting this claim. The fact that
the officers do not directly challenge Novembrino’s testimony
on this point is irrelevant. As noted above, supra note 16,
when evaluating a summary judgment motion a court should
not consider even uncontradicted testimony of an interested
witness where that testimony supports the movant. See

(citations omitted).
   23
        On the other hand, a reasonable fact-finder might
conclude that this argument places the cart before the horse.
The plaintiffs argued in their 1997 lawsuit that the city
intended to begin enforcing the residency ordinance in earnest
after years of inattention. In fact, the city’s threats of
imminent enforcement were the basis of the 1997 lawsuit.
Nonetheless, the city did not initiate termination proceedings
against anyone prior to the 1997 lawsuit, and a reasonable
fact-finder could conclude that the city’s vigilance in 2000
was motivated in part by the 1997 suit.

                               22
        Next, the officers showed that of the initial list of eight
names sent to the private investigation firm in May 2000,
seven were police officers who sued the city in 1997. The
city could respond that shortly thereafter four more police
officers were added to the list and that three of these four
were not plaintiffs in the 1997 suit.24 However, the officers’
evidence could still reasonably suggest that the city prioritized
and targeted the 1997 plaintiffs, especially considering the
fact that no police officer who did not sue the city in 1997
was ever terminated for non-compliance with the ordinance.

        The officers also showed that the 2000 investigation
was not conducted in a systematic fashion. Despite the City
Controller’s attempt to gather residency information from all
city employees in 1997, Mayor Connors was unsure whether
his office used that information to determine which
employees warranted further investigation. Rather, Mayor
Connors and City Attorney James Mulligan testified that the
lists of suspicious employees were generated largely from tips
from the public or from other city employees. Mayor Connors
testified that he was “very satisfied” that the 2000
investigation produced a “complete list” of suspected
violators and explained that the city may have used the results
of the 1997 request to eliminate from suspicion the majority
of city employees. The officers presented evidence, however,
that approximately two hundred employees failed to respond
to the 1997 request for residency documentation – there were
only 445 respondents out of approximately 650 city
employees. The city makes no attempt to either contradict or
explain this shortfall. The city’s failure to conduct a
systematic and thorough investigation of all employees,
especially of those who raised red flags by failing to respond
to the mandatory 1997 request, is consistent with the alleged
retaliatory motive.



   24
     The city might also argue that it was most likely that the
employees who had brought suit were in violation of the
ordinance. For that reason, the city started with them. This
argument was not, however, made by the city in the District
Court.

                                23
        Further, the temporal proximity between the officers’
protected activity and their termination supports an inference
of retaliation. The officers lost their case in the District Court
in December 1997, but we did not deny their appeal until June
1999. Hickey and Hill were fired within one year of our
decision, while Graham’s termination followed four months
later. We need not, however, decide whether a one-year gap
is sufficient to support an inference of retaliation. We have
explained that a retaliatory inference based on temporal
proximity is strengthened where “the decisionmaker lacked a
pretext on which to dismiss the plaintiff until shortly before
the time of dismissal.” San 

. After the
city prevailed in the District Court and before us, it apparently
decided to strengthen its position by incorporating the
residency ordinance into all of its collective bargaining
agreements with the various unions representing city
employees.25 The police CBA containing the new residency
provision was ratified on October 28, 1999, and included a
six-month grace period to run from the date of ratification.
ickey and Hill were investigated in May 2000 and terminated
in early June, just a few weeks after the expiration of this
grace period. Further, although Graham was not terminated
until October 2000, there is evidence that his pre-termination
hearing was originally scheduled for July. Under these
circumstances there is enough evidence to support a slight
inference of retaliation. As in San Fillipo, we need not
determine whether this evidence would be sufficient absent
the additional evidence of retaliation detailed in this 

.



   25
        The city’s actions may have been motivated by the
plaintiffs’ claims in 1997 that the residency ordinance was not
only unconstitutional but also inconsistent with the police
CBA. The District Court acknowledged this claim but never
addressed it, and we affirmed the District Court’s order
without mentioning the CBA claim. Thus, the city may have
been concerned that the residency ordinance was still
vulnerable to legal challenge, and hence may have sought to
eliminate that vulnerability by incorporating the ordinance
into all of its collective bargaining agreements.

                               24
        Finally, the officers presented some evidence that
Mayor Connors was particularly concerned with the officers
who sued the city in 1997. Hickey testified that Connors
asked him at his pre-termination hearing why he participated
in the 1997 lawsuit. Further, another police officer testified
that Connors had sought “stronger language” regarding
residency in the police CBA to ensure that the officers would
not be able to further resist the city’s enforcement efforts.
While these comments are amenable to a non-retaliatory
interpretation, a reasonable fact-finder could also conclude, in
light of all the other evidence discussed above, that Mayor
Connors was unfavorably disposed towards the officers who
participated in the 1997 lawsuit.

        For all the above reasons, we conclude that the police
officers have presented sufficient evidence that the city used
the residency ordinance as a pretext for retaliatory
terminations in violation of the officers’ First Amendment
right to petition the government.

B.     Hickey’s Post-Termination Hearing Delay Claim

        As noted in Part II, Hickey argued in opposition to the
city’s motion for summary judgment that the lengthy delay in
providing his post-termination Municipal Service hearing
violated his right to procedural due process. The District
Court treated Hickey’s argument as a constructive motion to
amend his complaint under Federal Rule of Civil Procedure
15(a), which it ultimately denied. We conclude that the
District Court did not abuse its discretion or commit any legal
error in reaching this decision.




       First, we reject Hickey’s frivolous argument that his
complaint gave effective notice to the city of his post-
termination hearing delay claim. Hickey is correct that notice
pleading requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief,” Fed. R.
Civ. P. 8(a), but Hickey’s complaint falls far short of this low
threshold. Nowhere in the complaint does Hickey even allege


                               25
that he requested a Municipal Service hearing, much less that
the city failed to timely provide such a hearing. In fact,
Hickey’s complaint does not allege any facts at all relating to
the period after he was terminated in June 2000.

        Next, we agree with the District Court that it would
have been futile to allow Hickey to amend his complaint
because his allegations before the District Court did not state
a claim on which he could have obtained relief. While Rule
15(a) provides that leave to amend should be “freely given,” a
district court has discretion to deny a request to amend if it is
apparent from the record that (1) the moving party has
demonstrated undue delay, bad faith or dilatory motives, (2)
the amendment would be futile, or (3) the amendment would
prejudice the other party. See, e.g., Grayson v. Mayview State
Hosp., 

, 108 (3d Cir. 2002) (citing Foman v.
Davis, 

, 182 (1962)). Hickey is correct that the
due process clause “requires provision of a [post-termination]
hearing at a meaningful time.” Cleveland Bd. of Educ. v.
Loudermill, 

, 547 (1985). Thus, “there is a point
at which an unjustified delay in completing a post-deprivation
proceeding would become a constitutional violation.” FDIC
v. Mallen, 

, 242 (1988) (internal citation
omitted). The key point, however, is that the delay must be
“unjustified.” We have held that the “mere allegation of a . . .
twenty-month delay” without supplementary allegations
concerning the cause of the delay does not state a
constitutional claim. Ritter v. Cohen, 

, 124 (3d
Cir. 1986). Before the District Court, Hickey simply stated in
conclusory fashion that his due process rights had been
violated by “the unwarranted delay of two and [a] half (2 1/2)
years.” Rather than attempt to explain the cause of the delay,
Hickey chose instead to devote the majority of his brief to re-
arguing the merits of his First Amendment and equal
protection claims. Accordingly, the District Court correctly
followed Ritter and held that granting leave to amend would
be futile.

       Hickey now argues for the first time on appeal that the
city caused the delay in the Municipal Service Commission
proceeding by failing to comply with his legitimate discovery


                               26
requests. Had this allegation been made in the District Court,
the court might not have held that Hickey’s attempted
amendment was futile. However, the District Court reached
the correct result based on the information provided at the
time by the parties .26 Accordingly, we conclude that the
District Court did not abuse its discretion by denying leave to
amend.27

                        V. Conclusion

        For the foregoing reasons we will vacate the District
Court’s order granting summary judgment to the city on the
officers’ First Amendment claims and remand those claims for
further proceedings. We will affirm the District Court’s orders
in all other respects.




   26
       We note that the District Court might have also relied
on Hickey’s lack of diligence in timely raising his post-
termination due process claim. Hickey filed his original
complaint in April 2001, and an amended complaint in
December 2001, approximately one and a half years after he
was terminated in June 2000. Yet Hickey did not mention any
post-termination hearing delay until August 2002, more than
two years after his termination. Hickey never attempted to
explain to the District Court why he waited more than two
years to raise this claim for the first time, nor has he offered
any explanation for this delay on appeal.
   27
      We need not consider the District Court’s alternative
conclusion that Hickey’s constructive motion to amend was
made in bad faith.

                              27