                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 09-3015
                                  _____________

                             ALBERT J. MCCARTHY,
                                              Appellant
                                       v.

          JEFFREY S. DARMAN; BOROUGH OF KENNETT SQUARE;
           MARC D. JONAS; GRACE M. DEON; RICHARD A. PESCE;
        EMIDIO J. FALINI; JOSEPH M. MAKOWSKI; DAVID B. MILLER;
                   JEROME E. RHODES; JOHN R. THOMAS
                              _____________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                            (D.C. Civil No. 07-cv-03958)
                      District Judge: Honorable. Curtis Joyner
                                    __________

                    Submitted Under Third Circuit LAR 34.1(a)
                                on March 26, 2010
                 Before: RENDELL and FUENTES, Circuit Judges,
                           and KUGLER, District Judge.

                              (Filed : March 30, 2010)




                                     OPINION


__________________

   * Honorable Robert B. Kugler, Judge of the United States District Court for
     the District of New Jersey, sitting by designation.
KUGLER, District Judge

       This appeal arises out of an employment dispute between Appellant Albert J.

McCarthy, former Chief of Police of the Borough of Kennett Square, and Appellees

Jeffrey S. Darman, Borough of Kennett Square, Marc D. Jonas, Grace M. Deon, Richard

A. Pesce, Emidio J. Falini, Joseph M. Makowski, David Miller, Jerome E. Rhodes, and

John R. Thomas (collectively, “the Borough Defendants”). McCarthy appeals from the

District Court’s Opinion and Order denying his motion for partial summary judgment,

granting the Borough Defendants’ motion for summary judgment as to all of his federal

claims, and dismissing his state law claims. McCarthy advances three arguments on

appeal: 1) he was denied procedural due process when he was suspended/constructively

discharged without a pre- or postdeprivation hearing; 2) he was denied procedural due

process when he suffered a “stigma plus” deprivation of his liberty interest in his

reputation; and 3) he was retaliated against in violation of the First Amendment.1 For the

reasons discussed below, we will affirm.

                                              I.

       As the parties are familiar with the facts, the recitation here is limited to those

necessary to explain the decision. McCarthy was the Chief of Police of the Borough of

Kennett Square. In early June 2007, he announced his intent to retire effective July 31,




  1
   The First Amendment claim is raised for the first time on appeal and therefore is
waived. See Brown v. Philip Morris Inc., 250 F.3d 789, 799 (3d Cir. 2001).

                                               2
2007. McCarthy sent a memorandum to “All Patrols” of the Kennett Square Police

Department announcing that he would be teaching Lieutenant Edward Zunino the “fiscal

side of the Police Department so that the law enforcement activities in the Borough will

not be impeded.” A416. Mayor Leon Spencer publicly announced McCarthy’s

retirement on June 18, 2009 via a separate memorandum, which stated, inter alia, that

“Lt. Zunino will serve as Acting Chief upon Chief McCarthy’s Retirement.” A435.

       On July 26, 2007, David Fiorenza, Borough Manager, sent a letter to McCarthy

accepting his retirement, but noting that McCarthy would not be paid for unused vacation

time, holiday and personal pay, or overtime. The letter also stated: “Because of its need

to transition the leadership of the [Police] Department, it is the Borough’s intention to

name Lieutenant Zunino as acting Police Chief effective August 1, 2007.” A461. The

letter further noted that McCarthy was not permitted to hold two full-time jobs during the

remainder of his time as Chief. Seemingly on June 18, 2007, McCarthy had signed a

contract to act as Chief of Police for nearby Kennett Township.

       Notwithstanding his previous announcement, McCarthy sent a letter to Fiorenza

dated July 30, 2007 that he had no intention of retiring “at any time in the near future.”

A465. In response, the Borough Council convened a special meeting on August 6, 2007

and voted to suspend McCarthy with pay. The Borough Council further directed the

Solicitor to “immediately investigate such further appropriate action which may be

warranted including termination, suspension without pay or other disciplinary actions as



                                              3
provided by law.” A474-75. In the Official Minutes from the session, Council President

Darman commented that the situation was “a dispute about the Borough and the Borough

Council’s fiduciary responsibility.” A476. He further commented that he had “extreme

confidence in Acting Chief of Police Zunino and the citizen’s [sic] of the Borough should

confidence [sic] that the Police Department will continue to function just fine.” A476.

Fiorenza sent a letter to McCarthy the same day notifying him that “[b]ecause of, among

other things, the unexpected nature of your change in plans, please know that I have been

directed by the Borough Council to place you in a work status of administrative leave

with pay, effective immediately.” A478.

       McCarthy responded with a letter dated August 8, 2007 in which he indicated that

he would not accept pay while not working, and he also indicated that he intended to stay

on as Chief. Fiorenza responded via letter the next day asking McCarthy to clarify his

employment status with the Borough and asking him to disclose whether he was working

for Kennett Township, asking that he respond within three days. McCarthy did not

respond. On August 22, 2007, Fiorenza sent McCarthy a letter with the subject

“Loudermill Notice” and informed him that he might be subject to disciplinary action for

submitting a false timesheet on July 3 (because he allegedly submitted time to the

Borough while actually performing work for Kennett Township) and for failing to

respond to the August 9 letter. A486-88. McCarthy supplied a lengthy response on

August 29, asserting that he had protected property and liberty rights in his position as



                                              4
Chief of Police, and lodging responses to the Borough’s allegations and actions.

       Then on September 14, 2007, Borough President Darman sent McCarthy a letter

with the subject “Second Loudermill Notice,” raising allegations that McCarthy was

present in restricted areas of the Police Department, in defiance of the Borough’s

August 6 letter, and notifying McCarthy that the Borough was investigating whether he

had removed information from a computer hard drive at the Department. A495-97.

McCarthy responded to the allegations on September 21 and also announced his

resignation as Chief. He filed the underlying suit the same day.

                                             II.

       This Court has jurisdiction over this appeal under 28 U.S.C. § 1291. We exercise

plenary review over a grant of summary judgment, viewing the facts in a light most

favorable to the nonmoving party, and applying the same standard that guides our district

courts. Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008). Summary

judgment should be granted where “the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).

                                             III.

       At the outset, we note that McCarthy’s claimed violations can only relate to the

August 6 suspension and not the September 21 purported constructive discharge. An

involuntary resignation (i.e., a constructive discharge) triggers the protections of the due



                                              5
process clause in only two circumstances: “(1) when the employer forces the employee’s

resignation or retirement by coercion or duress, or (2) when the employer obtains the

resignation or retirement by deceiving or misrepresenting a material fact to the

employee.” Hill v. Borough of Kutztown, 455 F.3d 225, 233 n.10 (3d Cir. 2006). As the

District Court properly pointed out, the only allegation in the Complaint vis-à-vis

constructive discharge relates to the August 6 suspension, not the September 21

resignation. See McCarthy v. Darman, No. 07-CV-3958, 2009 WL 1812788, at *7 n.6

(E.D. Pa. June 24, 2009); A68 at ¶ 155 (“Although the defendants claim that McCarthy is

currently serving as Chief of Police of the Borough and remains in full employment status

with the municipality, its actions have denied McCarthy his protected interest in the

position of Chief. He was de facto terminated on August 6, 2007.”). The August 6

suspension cannot support a constructive discharge claim because McCarthy did not

actually resign or retire on that date. While he may have intended to plead a claim based

upon his later resignation, he failed to do so. Thus, the analysis here is limited to whether

the August 6 suspension was a violation of his procedural due process rights.

       To establish a procedural due process claim, a party must demonstrate that “(1) he

was deprived of an individual interest that is encompassed within the Fourteenth

Amendment’s protection of life liberty or property, and (2) the procedures available to

him did not provide due process of law.” Biliski v. Red Clay Consol. Sch. Dist. Bd. of

Educ., 574 F.3d 214, 219 (3d Cir. 2009) (quotations removed). Property interests within



                                              6
the Fourteenth Amendment are defined by such sources as state law rules or

understandings. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). As is

relevant here, under Pennsylvania law, a person employed “in any police or fire force”

cannot be “suspended, removed, or reduced in rank” absent one of six statutory reasons.

53 Pa. Stat. § 46190. This statute defines a protected property interest. See Dee, 549

F.3d at 230. Both McCarthy and the Borough Defendants argue at some length about

whether McCarthy had a protected property interest at the time of his suspension (either

because he was not a Civil Service Employee or because the Borough had already

accepted his retirement), but for purposes of analysis, we will assume arguendo that such

an interest existed.

       Thus, we must determine what process McCarthy was due. See Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 541 (1985). At bottom, procedural due process

requires notice and an opportunity to be heard. Id. at 542. What constitutes sufficient

process is determined by balancing three factors: (1) the private interest at stake, (2) the

risk of “erroneous deprivation” and the value of alternative procedures, and (3) the

government’s interest. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Due process

usually requires that an individual receive a hearing before he is deprived of an interest;

however, that rule is not absolute. See Gilbert v. Homar, 520 U.S. 924, 930 (1997). For

example, the state may postpone a hearing until after the deprivation has occurred in

“‘extraordinary situations where some valid governmental interest is at stake . . . .’”



                                              7
Roth, 408 U.S. at 570 n.7 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)); see

also Dee, 549 F.3d at 233 (quoting same).

       In this dispute, the Borough Defendants did not provide notice or a hearing to

McCarthy before he was suspended on August 6. Nevertheless, the District Court found,

and we agree, that the circumstances presented an “extraordinary situation,” meaning an

absence of predeprivation process was permitted. The Borough Defendants assert that

immediate action was necessary to assure “proper leadership of the Police Department.”

Appellant br. at 26; see also A1072 (Br. in support of summary judgment motion) (“The

position of Chief of Police is one that is important to the proper operation of the police

department and the protection of the citizenry.”).

       It is without doubt that order in the police department and a clear chain of

command are vital interests to the Borough. Cf. Kannisto v. City & County of San

Francisco, 541 F.2d 841, 843 (9th Cir. 1976) (holding police department has a

“substantial interest in developing ‘discipline, esprit de corp, and uniformity’ . . . to

ensure adequate ‘promotion of safety of persons and property’” (quoting Kelley v.

Johnson, 425 U.S. 238, 246, 247 (1976))); Waters v. Chaffin, 684 F.2d 833, 839 (11th

Cir. 1982) (citing Kannisto). The public needs to be protected and subordinate officers

need to know who is in command. Here, both the public and the Police Department were

told time and again that Lt. Zunino would be in charge effective August 1. McCarthy’s

change of heart at the eleventh hour thus put the public’s safety – at least in the eyes of



                                               8
the Borough Council – in jeopardy as both McCarthy’s and Zunino’s statuses with the

Borough and the Department were unclear. See A911 (August 3, 2007 newspaper

editorial questioning “[s]ince the borough notified him that it was accepting his retirement

plan and asked him to relinquish his position, is he legally authorized to be in uniform?”).

The Borough Defendants’ response under the circumstances comported with due process,

provided they furnished a postsuspension opportunity to be heard. See Loudermill,

470 U.S. at 544-45 (“[I]n those situations where the employer perceives a significant

hazard in keeping the employee on the job, it can avoid the problem by suspending with

pay.”). And indeed they did provide a sufficient postdeprivation opportunity to be heard

when they requested additional information from McCarthy regarding his employment

status in their August 6 letter. Cf. id. at 546 (holding writing sufficient for due process in

certain circumstances). Therefore, McCarthy was not deprived of a property interest

without due process of the law.

       Likewise, McCarthy was not deprived of a liberty interest. To state a due process

claim for deprivation of a liberty interest in reputation, “a plaintiff must show a stigma to

his reputation plus deprivation of some additional right or interest.” Hill, 455 F.3d at 236.

This is the “stigma-plus” test. Id. The stigma portion of the test is met where the alleged

stigmatizing statements (1) were made publicly and (2) were false. Id. McCarthy argues

that the stigmatizing statement from the Borough Defendants was the publication of the

Official Minutes from the August 6 meeting on the internet, which said that he was



                                              9
suspended and said an investigation was on-going. Appellant br. at 33. However, as the

District Court properly found, these statements do not show a stigma because they were

not false. Indeed, McCarthy was suspended and the Borough Defendants were engaged

in an on-going investigation. Therefore, McCarthy was not deprived of a liberty interest

without due process of the law.

       For these reasons, McCarthy was not deprived of his Fourteenth Amendment right

to due process. Therefore, we will affirm the decision of the District Court denying his

motion for partial summary judgment and granting the Borough Defendants’ motion for

summary judgment as to all federal claims.




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