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


5-21-2008

Garzella v. Dunmore
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2247




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                                                 NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                           No. 07-2247


               POLICE OFFICER TONY GARZELLA,
                                   Appellant

                                v.

   BOROUGH OF DUNMORE; DUNMORE BOROUGH COUNCIL;
    BOROUGH OF DUNMORE CIVIL SERVICE COMMISSION;
      MICHAEL CUMMINGS, individually and as Councilman;
      JOSEPH LOFTUS, individually and as Borough Manager;
      THOMAS HENNIGAN, individually and as Councilman;
        JOSEPH TALUTTO, individually and as Councilman;
     LEONARD VERRASTRO, individually and as Councilman;
   JOHN BARRETT, individually and as Civil Service Commissioner;
WILLIAM GALLAGHER, individually and as Civil Service Commissioner;
   RALPH MARINO, individually and as Civil Service Commissioner;
             DUNMORE POLICE ASSOCIATION
                 (D.C. Civil No. 05-cv-01626)


                           No. 07-2248


               POLICE OFFICER ANTHONY CALI,
                                  Appellant

                                v.

   BOROUGH OF DUNMORE; DUNMORE BOROUGH COUNCIL;
    BOROUGH OF DUNMORE CIVIL SERVICE COMMISSION;
      MICHAEL CUMMINGS, individually and as Councilman;
      JOSEPH LOFTUS, individually and as Borough Manager;
      THOMAS HENNIGAN, individually and as Councilman;
        JOSEPH TALUTTO, individually and as Councilman;
     LEONARD VERRASTRO, individually and as Councilman;
         JOHN BARRETT, individually and as Civil Service Commissioner;
      WILLIAM GALLAGHER, individually and as Civil Service Commissioner;
         RALPH MARINO, individually and as Civil Service Commissioner;
                  DUNMORE POLICE ASSOCIATION
                      (D.C. Civil No. 05-cv-01627)


                                      No. 07-2249


                           POLICE OFFICER JODY SIBIO,
                                             Appellant

                                           v.

         BOROUGH OF DUNMORE; DUNMORE BOROUGH COUNCIL;
          BOROUGH OF DUNMORE CIVIL SERVICE COMMISSION;
            MICHAEL CUMMINGS, individually and as Councilman;
            JOSEPH LOFTUS, individually and as Borough Manager;
            THOMAS HENNIGAN, individually and as Councilman;
              JOSEPH TALUTTO, individually and as Councilman;
           LEONARD VERRASTRO, individually and as Councilman;
         JOHN BARRETT, individually and as Civil Service Commissioner;
      WILLIAM GALLAGHER, individually and as Civil Service Commissioner;
         RALPH MARINO, individually and as Civil Service Commissioner;
                   DUNMORE POLICE ASSOCIATION
                       (D.C. Civil No. 06-cv-00995)


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                 District Judge: The Honorable A. Richard Caputo


                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 8, 2008


         Before: BARRY, STAPLETON, Circuit Judges, and RESTANI,* Judge

*
  Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
                                           2
                             (Opinion Filed: May 21, 2008)


                                        OPINION


BARRY, Circuit Judge

       Appellants, Officers Anthony Cali, Anthony Garzella, and Jody Sibio, appeal the

orders of the District Court granting the motions for summary judgment of appellees

Borough of Dunmore (“Borough”) and Borough of Dunmore Police Association

(“DPA”).1

       Appellants worked for the Borough as active reserve police officers for 26, 15, and

13 years, respectively. As members of the DPA, their employment with the Borough was

governed by a collective bargaining agreement (“CBA”). On December 31, 2003, the

CBA expired and negotiations were referred to arbitration. Under the resulting arbitration

award, active reserve police officers could be promoted to regular, full-time status upon

passing a civil service exam administered by the Borough of Dunmore Civil Service

Commission (“Commission”).

       Under section 714 of the Rules and Regulations of the Commission, “[t]he

minimum passing grade for an examination for any position in the classified service for

which a numerical grade is given shall be a score of seventy (70%) per cent, and each

applicant for any such position shall score at least seventy (70%) per cent on each


1
  Appellants do not appeal the grant of summary judgment in favor of the Borough of
Dunmore Council, the Borough of Dunmore Civil Service Commission, and the
individual defendants employed by the Borough, the Commission, and the Council.
                                            3
element of the examination except for those elements which shall be rated Pass/Fail.”

(App. 129-31.) The exam was developed, administered, and scored by Stanard and

Associates, a nationally recognized testing company. According to appellants, the exam

merely required them to achieve an overall score of 70% or above, while appellees argue

that 70% was required on each individual math, grammar, reading, and writing section of

the exam. The exam was administered on May 21, 2005. Garzella received an overall

score of 77% but received 60% on the math section. Cali received an overall score of

72% but received 40% on the math section. Sibio received an overall score of 78% but

received 50% on the grammar section. Based upon these scores, appellants were

informed they had failed the exam. The officers that did pass the exam became regular,

full-time officers at a higher wage, were placed above appellants in seniority, and became

members of the pension plan. However, there was no diminishment of appellants’ pay,

benefits, or employment status.

       Appellants asked the DPA to file a grievance on their behalf, but at a membership

meeting on June 14, 2005, it voted not to do so. Members of the DPA were concerned

that if they grieved the exam, they would have to grieve the entire process for everyone,

which might result in the administration of a new exam even for those who had been

successful on the earlier one. On June 23, 2005, appellants filed their own grievance. In

response to that grievance, the DPA arranged a telephone conference with DPA attorney

Thomas Jennings, during which Jennings advised appellants that they could not simply

challenge the scoring of the exam, but had to challenge the exam in its entirety. No

                                             4
further grievance was pursued by appellants. On July 1, 2005, Sibio resigned as an active

reserve police officer.

       On January 4, 2006, Dunmore adopted a resolution requiring police officers

employed by the Borough to provide documentation that they were civil service qualified.

The DPA opposed the resolution, arguing that this was a change in employment

conditions that required negotiations, and that the requirement could be prospective only.

On April 24, 2006, the Borough of Dunmore Council (“Council”) vacated the resolution

upon the advice of counsel. Eight days earlier, Cali’s counsel had requested that Cali

receive full-time status.   2



       Appellants sought relief under 42 U.S.C. § 1983 alleging violations of procedural

due process with Sibio alleging, as well, a violation of substantive due process.

Appellants Garzella and Cali also claimed that, in violation of the First Amendment, they

had been retaliated against for speaking out against the exam and claimed, in their

amended complaints, that the resolution was passed in retaliation for their having filed the

initial complaints. All three appellants brought claims under state law against the DPA

for breach of the duty of fair representation and against the Borough for breach of the

CBA.

       In three separate opinions and orders, the District Court granted summary

judgment on the procedural due process claims on the ground that none of the appellants

2
  Cali allegedly provided passing scores from two previous civil service exams but was
not given full-time status. According to the Borough, however, Cali had never completed
the qualification process and was not civil service qualified.

                                             5
had exhausted his administrative remedies under the CBA. The Court granted summary

judgment on the First Amendment retaliation claim of appellants Garzella and Cali on the

ground that neither officer had engaged in speech involving a matter of public concern,3

nor shown any causal link between the initial filing of this action and the passing of the

resolution. The Court declined to exercise supplemental jurisdiction over the state law

claims, and they were dismissed.4 On appeal, appellants argue (1) that the District Court

erred when it dismissed appellants’ procedural due process claims, (2) that they should

have been given the opportunity to refute the determination that they did not pass the

exam, and (3) that Dunmore retaliated against appellants Garzella and Cali by passing and

then rescinding the resolution.

       To state a claim a violation of one’s right to procedural due process, a plaintiff

must have taken advantage of the processes that were available, unless those processes

were patently inadequate. Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). A state

cannot be held to have violated due process when a plaintiff has refused to utilize

procedural protections that were available. Id. Here, appellants had several avenues

available but did not take advantage of them. In particular, appellants could and most

3
  As to this component of appellant Garzella’s retaliation claim, the District Court found,
in the alternative, that there was no issue of material fact as to whether a causal link
existed between voicing opposition to the exam and “being deemed to have failed the
exam.” A13.

4
  The District Court granted summary judgment in favor of the DPA on the constitutional
claims brought against it on the ground that the DPA was a labor union and not a state
actor. The Court granted summary judgment on Sibio’s substantive due process claim that
appellees failed to follow the requisite testing procedures, finding that there can be no
liberty interest in a procedure. Neither of these rulings is appealed.
                                               6
likely should have used the grievance process outlined in Article 18 of the CBA, under

which a police officer, a group of police officers, or the union must file a grievance with

the Council. If the grievance is denied, it must be submitted to binding arbitration within

ten days of the denial of the grievance.5 Appellants argue that it is unfair to require them

to have taken advantage of the grievance procedure when the DPA “abandoned” them by

refusing to pursue the grievance for them. When access to a procedure is blocked or there

is evidence that the procedures are a sham, a plaintiff need not pursue the procedures to

state a due process claim. Id. at 118. Here, however, there is no evidence that appellants

were unable to take advantage of the process without the DPA’s assistance or that the

DPA or any other party would have blocked their attempts to do so.

       Assuming exhaustion was not required prior to bringing the § 1983 action,

appellants claim that they had a property interest in being promoted to regular, full-time

status because they passed the exam by scoring above 70% overall and were denied

constitutionally required pre-deprivation notice, explanation of the evidence, and an

opportunity to defend themselves before being stripped of their seniority, denied the

5
 Other avenues of relief are also available to police officers under the Dunmore Borough
Civil Service Regulations and the Borough Code. Under section 1401 of the Dunmore
Borough Civil Service Regulations, any employee who has been suspended, removed, or
reduced in rank may make a written demand to the Commission for a hearing within
seven days of any action taken by the Council. Under section 46183 of the Borough
Code, the Commission will allow a person who feels aggrieved by the action of the
Commission in refusing to certify him as eligible after examination to appear with
counsel and the Commission will review its refusal to make such certification. 53 Pa.
Stat. Ann. § 46183. Under section 46191 of the Borough Code, any person suspended,
removed, or reduced in rank may make a written demand for a hearing with the
Commission. Id. § 46191. All parties have an immediate right of appeal to the Court of
Common Pleas of the County. Id.
                                              7
enhanced pay and benefits, and publicly “defamed.” Appellants did not have a property

interest in being given regular, full-time positions as police officers because they did not

have a “legitimate claim of entitlement” pursuant to a state statute or regulation, state or

local government policy, or even a “mutually explicit understanding[].” Stana v. Sch.

Dist. of Pittsburgh, 775 F.2d 122, 126 (3d Cir. 1985). The arbitration award itself did not

create an entitlement to full-time status, but merely provided that full-time status could be

achieved upon passing a civil service exam. Assuming, however, that appellants did have

a property interest, they were not deprived of due process. Appellants had notice of what

was required following the arbitration award. Prior to the exam, appellants received

study guides, and Cali participated in meetings with the Commission regarding the exam.

Following the exam, appellants had a number of avenues available to them to contest the

results, including the grievance process under the CBA. When an adequate grievance and

arbitration process is in place, these procedures satisfy due process requirements. Dykes

v. Southeastern Pennsylvania Transp. Auth., 68 F.3d 1564, 1571 (3d Cir. 1995).

       As for the retaliation claim, Garzella and Cali argue that the January 2006

resolution was passed in retaliation for filing their complaints in this action.6 They base

their argument on the fact that Thomas Hennigan, the President of the Council, knew that

they had failed the exam when the Council passed the resolution requiring civil service



6
  “Appellants do not challenge the District Court’s conclusion that their speech
complaining of the test was not a matter of public concern. They also do not challenge
the Court’s conclusion that Hennigan was entitled to summary judgment on this claim
because he is immune from suit by virtue of the doctrine of legislative immunity.

                                              8
qualification. They contend that the retaliatory motive is shown by the fact that the

resolution was rescinded only days after the Council discovered that Cali had passed an

exam in the past and was, therefore, entitled to a full-time, regular position. The District

Court correctly granted summary judgment on the retaliation claim because neither

Garzella nor Cali suffered any adverse employment action from the resolution, which was

in effect for four months and never enforced. There was no change in their employment

status by virtue of the resolution, and no reduction in pay or benefits. There is also no

evidence that the resolution was passed and/or rescinded in response to the filing of the

complaints in this action, other than the fact that it was passed five months after the

complaints were filed.

       We will affirm the orders of the District Court.




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