                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 11-3140
                                    ___________

                              RONALD HENEGHAN,
                                          Appellant

                                          v.

                   NORTHAMPTON COMMUNITY COLLEGE;
                       DR. ELIZABETH BUGAIGHIS
                         _______________________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                       D.C. Civil Action No. 5-09-cv-04979
                         (Honorable Lawrence F. Stengel)
                                 ______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 4, 2012

       Before: SCIRICA, GREENAWAY, JR. and NYGAARD, Circuit Judges.

                               (Filed: August 15, 2012)
                                 _________________

                             OPINION OF THE COURT
                                _________________

SCIRICA, Circuit Judge.

      Ronald Heneghan appeals the grant of summary judgment on his § 1983 claim that

Northampton Community College deprived him of his protected property interest in
public employment without due process of law. Because Pennsylvania law afforded

Heneghan ample procedural protections, we will affirm.

                                              I.

       Heneghan joined the faculty of Northampton Community College in the fall of

2003 in a tenure-track position as an Associate Professor of Communications and

Theatre. Heneghan was hired on an initial contract covered by the collective bargaining

agreement (“CBA”) between the College and the American Federation of Teachers, a

public employee union. Under the CBA, “Faculty on initial contracts are typically offered

six one-year contracts. . . . Non-renewals during the first five years may not be appealed,

but a Faculty Member may appeal a non-renewal occurring during the sixth year of

employment to the Board [of Trustees]. . . . The Board’s decision in the appeal shall be

final.” Art. VI, ¶ C. While the College may decline to renew an initial contract “for any

reason,” Art. VI, ¶ C, it may discharge faculty “only for just cause.” Art. X, ¶ A. Another

section of the CBA sets out a three-step grievance process for disputes “arising out of the

interpretation, application, or violation of [its terms].” Art. XIV, ¶ A.

       In February 2009, during his sixth year on the initial contract, Heneghan was

recommended to the Board of Trustees for tenure, and on March 5, 2009, the Board voted

to approve his tenure appointment. In a memorandum, Kathy Siegfried, the College’s

Director of Human Resources, informed Heneghan of the vote, writing that his

appointment was “effective with the 2009/10 academic year.” App. at 251. Shortly after

the March 5 tenure vote, however, allegations surfaced about Heneghan’s personality

conflicts with other faculty and inappropriate interactions with students. According to

                                              2
these allegations, Heneghan brought beer to student parties where underage students were

present, kissed a female student during a rehearsal, and humiliated another female student

in class by commenting on her weight. As a result, on March 13, 2009, Heneghan

received a letter from the College President rescinding the earlier letter and notifying

Heneghan that the decision on his appointment would be delayed.

       On April 2, 2009, the Board of Trustees ratified the rescission of Heneghan’s

tenure appointment. Heneghan appealed this decision in a letter to Helene Whitaker, the

Vice-President of Administrative Affairs, citing his right to appeal under Article VI, ¶ C,

of the CBA. The Board of Trustees heard Heneghan’s appeal on May 7, 2009, and

affirmed its decision not to grant tenure.

       Heneghan, assisted by a union representative, filed a grievance on May 13, 2009,

challenging the College’s tenure decision under the three-step grievance process set out

in Article XIV of the CBA. The College official who heard his grievance denied his

claim on the ground that the Article VI appeal was the exclusive procedure available to

Heneghan, and union officials decided not to pursue the matter further. In an email

exchange with the College President, Heneghan attempted to elevate his grievance to the

second step of the grievance process, but the College President ultimately denied his

second-step grievance.

       Heneghan filed this § 1983 suit on October 29, 2009, contending that the

College’s actions violated the due process clause of the Fourteenth Amendment. The




                                             3
District Court granted summary judgment for the College and denied Heneghan’s motion

for reconsideration. Heneghan appeals.1

                                             II.

       The Fourteenth Amendment prohibits the states from depriving a person of life,

liberty, or property without due process of law. See U.S. Const. amend. XIV, § 1. Public

employment is a protected property interest when state law confers such interest by

statute or contract. See Unger v. Nat’l Residents Matching Program, 928 F.2d 1392, 1398

(3d Cir. 1991). In such circumstances, a public employee is entitled to “a pretermination

opportunity to respond, coupled with post-termination administrative [or judicial]

procedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547-48 (1985). At a

minimum, the pretermination procedures must give the employee “oral or written notice

of the charges against him, an explanation of the employer’s evidence, and an

opportunity to present his side of the story.” Id. at 546. Generally, due process does not

require an impartial decisionmaker at the pretermination hearing provided the state

affords “a neutral tribunal at the post-termination stage.” McDaniels v. Flick, 59 F.3d

446, 460 (3d Cir. 1995).

       The District Court determined that Heneghan’s fleeting tenure appointment

created a question of fact as to whether he had a protected property interest in his


1
  The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the grant of
summary judgment, applying the same standard as the District Court. Doe v. Luzerne
Cnty., 660 F.3d 169, 174 (3d Cir. 2011). Summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
                                             4
employment. Because we conclude that the procedures available to Heneghan satisfied

due process, we assume without deciding that Heneghan had such an interest.

       Heneghan claims his termination violates due process because he never had the

opportunity for a hearing before a neutral decisionmaker. The District Court determined,

however, that Heneghan could have obtained an impartial post-termination hearing either

through a state court action to compel arbitration of his grievance under the three-step

grievance process set out in Article XIV of the CBA or by seeking judicial review of the

agency action under a provision of Pennsylvania’s Local Agency Law, 2 Pa. Cons. Stat.

Ann. § 754.2

       The CBA’s grievance procedure provides for arbitration of disputes arising out of

the “interpretation, application, or violation” of its terms. Article XIV, ¶ A. Heneghan

does not dispute that arbitration of the merits of his termination would satisfy the due

process requirement of an impartial hearing. Rather, he argues that the arbitration

procedure in Article XIV of the CBA was not available to him.

       Heneghan contends he was prevented from pursuing arbitration because college

and union officials believed his termination could only be challenged through an appeal

to the Board of Trustees under Article VI of the CBA and thus could not be grieved under

Article XIV’s three-step procedure. We disagree. The language of the collective

bargaining agreement governs and that language entrusts disputes arising out of the

“interpretation, application, or violation” of its terms to the three-step grievance

2
 Because we conclude that the availability of an action to compel arbitration satisfies due
process, we need not reach the District Court’s alternative holding that Pennsylvania’s
Local Agency Law affords an adequate procedural remedy.
                                              5
procedure. Whether Heneghan’s termination is arbitrable is itself a matter arising out of

the interpretation of the CBA and thus falls under the grievance procedure. See Davis v.

Chester Upland Sch. Dist., 786 A.2d 186, 188-89 (Pa. 2001) (“Whether the dispute . . . is

in fact a grievance that can be arbitrated under the collective bargaining agreement must,

at least initially, be left to an arbitrator to decide.”). That the unique factual circumstances

of Heneghan’s fleeting tenure appointment and subsequent termination are not

specifically addressed in the CBA does not rule out arbitration.

       Nor does the failure of his union to seek arbitration render the process unavailable

or inadequate. “If a public employee believes that the grievance process was defective, he

may seek relief available under state law.” Dykes v. Se. Pa. Transp. Auth., 68 F.3d 1564,

1571 (3d Cir. 1995). The Pennsylvania Public Employee Relations Act, 43 Pa. Stat. Ann.

§ 1101.101 et seq., authorizes the Court of Common Pleas sitting in equity to order

completion of the CBA’s arbitration procedure. Dykes, 68 F.3d at 1571 (citing Martino v.

Transp. Workers’ Union of Phila. Local 234, 480 A.2d 242, 252 (Pa. 1984)). As we held

in Dykes, the availability of this safeguard under Pennsylvania law satisfies due process

even if the original hearing conducted by the employer was biased and the union refused

to take the employee’s claim to arbitration. Id. In fact, Heneghan informs us that he has

filed a state court action under the Public Employee Relations Act seeking to compel

arbitration of his employment grievance. Put simply, Pennsylvania offers a path to a

neutral post-termination hearing, and even as Heneghan treads this path, he claims that it

is barred to him.

                                                   III.

                                               6
      Because sufficient procedural protections were available to Heneghan, we will

affirm the District Court’s grant of summary judgment.




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