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


2-16-2005

Elmore v. Cleary
Precedential or Non-Precedential: Precedential

Docket No. 04-1744




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                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                       _____

                         No. 04-1744
                           ______

                     KAREN ELMORE,
                          Appellant

                               v.

          DONALD CLEARY; EUGENE TURNER;
              KENNETH NAUGLE; AND
              HUNTINGTON TOWNSHIP




        On Appeal from the United States District Court
            for the Middle District of Pennsylvania
                 (D.C. Civil No. 03-cv-01959)
            District Judge: Hon. John E. Jones, III




          Submitted Under Third Circuit LAR 34.1(a)
                     February 14, 2005

Before: SLOVITER, AMBRO and ALDISERT, Circuit Judges

                   (Filed February 16, 2005)


Bruce J. Phillips
Wetzel, Caverly, Shea, Phillips & Rodgers
Wilkes-Barre, Pa. 18701

      Attorney for Appellant
Erin A. Brennan
Oliver, Price & Rhodes
Clarks Summit, Pa. 18411

       Attorney for Appellees




                     OPINION OF THE COURT


SLOVITER, Circuit Judge.

      Appellant Karen Elmore appeals from the final order of
the United States District Court for the Middle District of
Pennsylvania dismissing her complaint. The Appellees are
Elmore’s former supervisors and employer: Donald Cleary,
Kenneth Naugle, Eugene Turner, and Huntington Township,
Pennsylvania (hereinafter collectively “Appellees”).

       The District Court had jurisdiction pursuant to 28 U.S.C.
§ § 1331, 1367; this court has jurisdiction over the District
Court’s final order pursuant to 28 U.S.C. § 1291. Finding no
error, we will affirm.

                                I.

      Beginning in August 2000, Huntington Township,
Pennsylvania (“Huntington”) employed Elmore as an office
manager. Prior to hiring Elmore, Huntington had issued a
“Personnel Policy Handbook,” a document ostensibly meant to
govern relations between the municipality and its employees.
Among other provisions, this Handbook states that the
“township shall take no disciplinary action against an employee
without just cause.” App. at 29. The document also delimits a
protocol calling for “[p]rogressive disciplinary action” and sets




                                2
forth a grievance process. Id.1

       On March 27, 2002, Elmore was terminated from her
position as office manager. Notwithstanding the provisions of
the Personnel Policy Handbook, there is no dispute that this
firing was effectuated without notice or a hearing.2 Moreover,
Elmore contends that this termination was not supported by just
cause.

        Thereafter, Elmore brought a three-count complaint in the
United States District Court for the Middle District of
Pennsylvania against the Appellees. In Count One, Elmore
asserted an action under 42 U.S.C. § 1983 and claimed that, in
firing her without notice, a hearing, or just cause, the Appellees
violated her due process rights. In Counts Two and Three,
Elmore asserted state law claims; these counts claimed,
respectively, that the Appellees had discriminated against her on
the basis of her sex in violation of the Pennsylvania Human
Relations Act, see 43 Pa. Cons. Stat. § 951 et seq., and that her
termination amounted to a breach of contract.

       The District Court granted the Appellees’ motion to
dismiss Count One for failure to state a claim upon which relief
can be granted, holding, as a matter of law, that Elmore did not
have a property interest in her job sufficient to implicate due
process concerns. See Fed. R. Civ. P. 12(b)(6). Thereafter, the
District Court declined to continue exercising pendant
jurisdiction over Elmore’s state law claims and dismissed them
without prejudice to her ability to refile in state court. See
generally 28 U.S.C. § 1367(c)(3); Borough of W. Mifflin v.




       1
        The Handbook, however, explicitly states that it “does not
constitute a contract with any employee or group of employees.”
App. at 30.
       2
       That being said, Cleary, Naugle, and Turner all aver that
they “verbally warned Elmore about her behavior at work on
numerous occasions” prior to the firing. Br. of Appellees at 2.

                                  3
Lancaster, 45 F.3d 780, 788-89 (3d Cir. 1995). 3 This timely
appeal followed.

                                 II.

        We exercise plenary review over a district court’s
decision to dismiss a complaint pursuant to Fed. R. Civ. P.
12(b)(6). Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir.
1993). We must accept as true all well-pleaded factual
allegations in the complaint and draw all reasonable inferences
from such allegations in favor of the complainant. See Weston
v. Pa., 251 F.3d 420, 425 (3d Cir. 2001); Nami v. Fauver, 82
F.3d 63, 65 (3d Cir. 1996). Dismissal for failure to state a claim
is appropriate only if it “appears beyond doubt that [the
complainant] can prove no set of facts in support of [her] claim
which would entitle [her] to relief.” Conley v. Gibson, 355 U.S.
41, 45-46 (1957).

                                III.

        The federal civil rights statute here at issue, 42 U.S.C. §
1983, “is not itself a source of substantive rights, but [rather] a
method for vindicating federal rights elsewhere conferred.”
Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). To establish
liability under 42 U.S.C. § 1983, a plaintiff must show that the
defendants, acting under color of law, violated the plaintiff’s
federal constitutional or statutory rights, and thereby caused the
complained of injury. Sameric Corp. of De., Inc. v. City of
Phila., 142 F.3d 582, 590 (3d Cir. 1998). As recounted above,
Count I of Elmore’s complaint averred that, in firing her without
process or just cause, the Appellees violated her federal due
process rights.

       The Fourteenth Amendment to the United States
Constitution prohibits deprivations “of life, liberty, or property,



       3
        Elmore subsequently refiled her state claims with the Court
of Common Pleas of Luzerne County, Pennsylvania; the state court
has stayed the action pending resolution of this appeal.

                                 4
without due process of law.” U.S. Const. amend. XIV, § 1. The
first step in analyzing a due process claim is to determine
whether the “asserted individual interest . . . [is] encompassed
within the [F]ourteenth [A]mendment’s protection of life,
liberty, or property.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d
Cir. 2000) (internal citations and quotations omitted). Here,
Elmore claims that she possessed a property interest in her job
that was deserving of due process protection. See, e.g.,
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985);
Perry v. Sindermann, 408 U.S. 593 (1972).

        To have a property interest in a job, however, a person
must have more than a unilateral expectation of continued
employment; rather, she must have a legitimate entitlement to
such continued employment. Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 577 (1972). The decisional law is clear that
an at-will employee does not have a legitimate entitlement to
continued employment because she serves solely at the pleasure
of her employer. Chabal v. Reagan, 841 F.2d 1216, 1223 (3d
Cir. 1988). Therefore, once a court determines that a public
employee “held [her] position at the will and pleasure of the
[governmental entity],” such a finding “necessarily establishes
that [the employee] had no property interest” in the job sufficient
to trigger due process concerns. Bishop v. Wood, 426 U.S. 341,
346 n.8 (1976) (internal quotations omitted); see also Robertson
v. Fiore, 62 F.3d 596, 601 (3d Cir. 1995) (per curiam) (stating
that at-will employee “lacks a protected property interest in his
position within the meaning of the Fourteenth Amendment”).

       As an initial matter, state law determines whether such a
property interest exists. Brown v. Trench, 787 F.2d 167, 170 (3d
Cir. 1986); see also Kelly v. Borough of Sayreville, 107 F.3d
1073, 1077 (3d Cir. 1997) (“State law creates the property rights
protected by the Fourteenth Amendment.”). Here, under
controlling Pennsylvania law, a “public employee takes his job
subject to the possibility of summary removal by the employing
authority. He is essentially an employee-at-will.” Scott v. Phila.
Parking Auth., 166 A.2d 278, 280 (Pa. 1960); see also Rank v.
Twp. of Annville, 641 A.2d 667, 670 (Pa. Commw. Ct. 1994);
Bolduc v. Bd. of Supervisors, 618 A.2d 1188, 1190 (Pa.

                                 5
Commw. Ct. 1992). Stated otherwise, a public employee in
Pennsylvania generally serves at the pleasure of her employer
and thus has no legitimate entitlement to continued employment.

        Elmore, although recognizing this general rule, asserts
that the provisions of the Personnel Policy Handbook mandate
that she was not an at-will employee, but rather could only be
fired for “just cause.” In other words, Elmore asserts that the
Handbook acted to override the default rule of at-will
employment and provided her with a legitimate entitlement to
continued employment sufficient to have created a property
interest in her job.

        Elmore’s argument is not convincing. A local
government in Pennsylvania cannot provide its employees with
tenure status unless there exists express legislative authority for
doing so. See Stumpp v. Stroudsburg Mun. Auth., 658 A.2d
333, 334 (Pa. 1995); Scott, 166 A.2d at 280; see also Perri v.
Aytch, 724 F.2d 362, 364 (3d Cir. 1983); Rosenthal v. Rizzo,
555 F.2d 390, 392 (3d Cir. 1977). Cf. Appeal of Gagliardi, 163
A.2d 418, 419 (Pa. 1960) (“A municipality is a creature of the
state and possesses only such powers of government as are
expressly granted to it and as are necessary to carry the same into
effect.”). As the Pennsylvania Supreme Court has stated,
“‘[t]enure in public employment, in the sense of having a claim
to employment which precludes dismissal on a summary basis is,
where it exists, a matter of legislative grace.’” Stumpp, 658
A.2d at 334 (quoting Scott,166 A.2d at 281). 4

       Absent explicit enabling legislation from the
Pennsylvania General Assembly, a township such as Huntington
cannot employ workers on anything but an at-will basis. Cooley
v. Pa. Hous. Fin. Agency, 830 F.2d 469, 471 (3d Cir. 1987),



       4
       Examples of “legislative grace,” Stumpp, 658 A.2d at 334,
whereby the Pennsylvania General Assembly has precluded the
dismissal of public employees on a summary basis include the Civil
Service Act, see 71 Pa. Cons. Stat. § 741.1 et seq., and the Public
School Code of 1949, see 24 Pa. Cons. Stat. § 1-101 et seq.

                                 6
called into question on other grounds, Foster v. Chesapeake Ins.
Co., Ltd., 933 F.2d 1207, 1215 n.12 (3rd Cir. 1991). The parties
have not cited, and this court’s independent research has not
revealed, a Pennsylvania statute that would permit Huntington to
grant employment to individuals serving as office managers on
anything other than an at-will basis. Cf. Albrechta v. Borough of
White Haven, 810 F. Supp. 139, 142-43 (M.D. Pa. 1992).
Therefore, even if Huntington fully intended its Personnel Policy
Handbook to confer “just cause” employment status on its
employees – a question this court need not decide – it simply had
no authority to do so. See Stumpp, 658 A.2d at 334. It follows
that Elmore had no property interest in her job sufficient to
implicate the Due Process Clause. See Cooley, 830 F.2d at 473.
For this reason, the District Court did not err in dismissing Count
I of Elmore’s complaint. 5

                               IV.

       For the above stated reasons, we will affirm the order of
the District Court.




       5
        Elmore has not appealed the District Court’s decision
declining to exercise continued jurisdiction over her state law
claims; thus, this court will not address that issue. Cf. Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).

                                7
