                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-4228
                                      _____________

                                  MICHELLE THOMAS,
                                       Appellant

                                             v.

                       DELAWARE STATE UNIVERSITY;
             LANCE T. HOUSTON, individually and in his official capacity;
             AMIR MOHAMMADI, individually and in his official capacity;
           OFFICER HEATHER COOKE, individually and in her official capacity
                             _______________

                     On Appeal from the United States District Court
                               for the District of Delaware
                                 (D.C. No. 10-cv-00522)
                      District Judge: Honorable Gregory M. Sleet
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 17, 2015

              Before: FISHER, CHAGARES, and JORDAN, Circuit Judges.

                                (Filed: September 21, 2015)
                                     _______________

                                        OPINION
                                     _______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Appellant Michelle Thomas asks us to reverse an order of the United States

District Court for the District of Delaware granting summary judgment against her on

claims that Lance Houston and Amir Mohammadi violated her rights under the First

Amendment and the Due Process Clause of the Fourteenth Amendment to the United

States Constitution.1 We will affirm.

I.     BACKGROUND2

       Thomas was first hired by Delaware State University (“DSU”) in 2001 and is

currently employed as a senior secretary at DSU’s Department of Housing and

Residential Education. She is also a member of the American Federation of State and

County Municipal Employees Local 1007 (“AFSCME” or the “Union”), in which she has

held various leadership positions throughout her employment, eventually becoming the

Union president. In that capacity, Thomas brought grievances against DSU on behalf of

       1
         At the time the appellees moved for summary judgment, Thomas was asserting
claims against Delaware State University (“DSU”), consisting of constitutional claims
under 42 U.S.C. § 1983 and whistleblower claims under Delaware state law. In her
summary judgment briefing, Thomas conceded that DSU was not amenable to suit under
§ 1983, thus leaving only the state-law whistleblower claims pending against DSU.
Because the District Court dismissed all of Thomas’ federal claims, it declined to
exercise supplemental jurisdiction over the state-law claims and thus dismissed the case
against DSU. Thomas has not advanced any argument in either her opening brief or her
reply brief that the dismissal of the claims against DSU was in error. Accordingly, she
has abandoned any challenge to that portion of the District Court’s decision. See, e.g.,
United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well settled that an
appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of
that issue on appeal.”).
       2
         The facts are recounted in the light most favorable to Thomas, the non-movant.
See infra n.4.
                                             2
the Union, the majority of which concerned violations of the Collective Bargaining

Agreement. At the time of the events underlying this litigation, Mohammadi was

employed as DSU’s Vice President for Finance and Administration and Houston was

employed as DSU’s Assistant Vice President for Human Resources and Legal Affairs.

Both Mohammadi and Houston have since left DSU.

       Between 2005 and 2008, Thomas amassed approximately 20 parking citations for

violations of DSU parking regulations. Based on her failure to pay those parking tickets,

Thomas’s vehicle was one of 193 vehicles added to a DSU tow list. On October 8, 2008,

Heather Cooke, a DSU police officer, arranged to have Thomas’s car towed.3 Although

the precise details are disputed (and irrelevant to this case), some kind of altercation

ensued and Thomas offensively touched Cooke. Thomas’s car was never towed and she

paid the outstanding tickets. Cooke nevertheless spoke with James Overton, the chief of

the DSU police force, and ultimately decided to press charges against Thomas for the

touching incident. Thomas was arrested on November 6, 2008.

       After learning that Thomas had been arrested, DSU initiated its own investigation

and Mohammadi scheduled a meeting with her to ascertain her side of the story. On

November 19, 2008, the meeting took place with Thomas, Mohammadi, and an

AFSCME union representative in attendance. Although he believed that Thomas did, in

fact, offensively touch Cooke, Mohammadi apparently decided to wait until the outcome

of Thomas’s criminal proceedings before instituting disciplinary action. In June 2009,

while the criminal charges were still pending but unresolved, Thomas filed a union

       3
           Cooke did not know at the time that the car belonged to Thomas.
                                              3
grievance against Mohammadi’s son, alleging that he had performed work at DSU that

was reserved for union members only. Mohammadi was upset and allegedly told

Thomas’s AFSCME representative that he would “get” Thomas for what she had done.

       On December 1, 2009, after several delays, Thomas entered a plea agreement in

her criminal case and thereby admitted to offensively touching a law enforcement officer.

After Mohammadi learned that Thomas had pled guilty to the offense, he sent her a

Notice of Paid Administrative Leave and Intent to Terminate (the “Notice”) on

December 3, 2009. The Notice informed Thomas that she was going to be placed on paid

administrative leave due to her false and misleading statements during DSU’s

investigation of the criminal incident, that DSU intended to terminate her, and that

Thomas had the right to request a pre-termination hearing within three days.

       Shortly after receiving the Notice, Thomas requested a pre-termination hearing.

DSU held the pre-termination hearing on January 21, 2010, with Houston conducting the

hearing and Thomas and her AFSCME representative also attending. Thomas argued

that she had not lied about her conduct and that the termination was retaliatory. On

February 9, 2010, Houston issued a notice of termination to Thomas based on the charges

set forth in the December 3 notice, with Mohammadi being the one who ultimately made

the decision to terminate her. After she filed a union grievance, however, Thomas was

reinstated to her position without backpay and returned to work on December 10, 2010.

       In this suit, Thomas initially brought claims for First Amendment retaliation,

malicious prosecution, due process violations, false arrest, false imprisonment, and

violations of the Delaware Whistleblower Protection Act, 19 Del. Code § 1703. By

                                             4
stipulation, she dismissed all of her claims against Cooke and most of her claims against

the remaining defendants, leaving only section 1983 claims for deprivation of due

process and her First Amendment rights, and certain state-law whistleblower claims. The

remaining defendants – Mohammadi, Houston, and DSU – successfully moved for

summary judgment, and Thomas timely appealed the ruling as to Mohammadi and

Houston.

II.    DISCUSSION4

       Thomas argues that the District Court erred in dismissing her due process claim

because the pre-termination hearing was insufficient and erred in dismissing her First

Amendment claim because her disclosures were both protected and causally related to her

termination.

       A.       DUE PROCESS CLAIM

           Thomas claims that her dismissal violated her due process rights because she was

terminated without an opportunity to “explain her side of the story.” (Opening Br. at 32.)

As the District Court ruled, however, that is incorrect. In order to establish a due process

violation, Thomas must show that: “(1) [s]he was deprived of an individual interest that is

encompassed within the Fourteenth Amendment’s protection of life, liberty, or

       4
          The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of
summary judgment de novo and “view inferences to be drawn from the underlying facts
in the light most favorable to the nonmoving party.” Montanez v. Thompson, 603 F.3d
243, 248 (3d Cir. 2010) (internal quotation marks omitted). Summary judgment is
appropriate if we are satisfied that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

                                              5
property[;] and (2) the procedures available to h[er] 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)

(internal quotation marks omitted). Before a public employee may be terminated for

cause, she is entitled to a pre-termination hearing. Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 545-46 (1985). The issue here is the adequacy of the pre-termination

hearing afforded to Thomas.5

       The “formality and procedural requisites for the [pre-termination] hearing can

vary,” but, at a minimum, the employee must be given “notice and an opportunity to

respond.” Id. (internal quotation marks omitted). The pre-termination hearing need not

be elaborate and serves only as an “initial check against mistaken decisions.” Id. at 545.

It necessarily includes “oral or written notice of the charges, an explanation of the

employer’s evidence, and an opportunity for the employee to tell h[er] side of the story.”

Gilbert v. Homar, 520 U.S. 924, 929 (1997). The hearing can be informal and “need not

definitively resolve the propriety” of the deprivation. Loudermill, 470 U.S. at 545.

Where there are adequate post-termination remedies available, “[a]n employee is

generally not entitled to notice of the reasons for h[er] discharge in advance of a pre-

deprivation hearing, or to present h[er] case to an impartial decision-maker at such a

hearing.” Schmidt v. Creedon, 639 F.3d 587, 596-97 (3d Cir. 2011) (internal citations

omitted).




       5
      The parties agree that Thomas had a protected property interest in her
employment and that termination represents a deprivation of that right.
                                              6
       Contrary to Thomas’s assertions, the District Court correctly concluded that she

was not terminated on December 3, 2009, the date upon which she received the notice of

intent to terminate. See Riggins v. Goodman, 572 F.3d 1101, 1110 (10th Cir. 2009)

(rejecting public employee’s argument that he was terminated on the date he received a

letter apprising him that his employer intended to terminate him). Rather, her

employment was terminated on February 9, 2010 – indeed, she had been on paid

administrative leave up to that date. Further, the notice and opportunity to respond that

Thomas received were sufficient to comport with due process: she received a letter on

December 3, 2009 informing her of the reasons for the proposed termination, and had a

hearing on January 21, 2010 at which she was represented by an AFSCME delegate and

was able to present argument and evidence on her own behalf in responding to the

charges. This is all that due process requires. Loudermill, 470 U.S. at 545-46.

       Although Thomas concedes that the District Court’s conclusion that “a [collective

bargaining agreement] violation d[oes] not necessarily constitute a due process violation”

is “technically correct,” she nonetheless argues that collective bargaining agreements

“exist to protect union employees and ensure that the correct process is followed. To

ignore this is to negate the due process principles contained in the [collective bargaining

agreement].” (Opening Br. at 31.) But, regardless of whether the hearing may have

comported with the requirements set forth in the AFSCME collective bargaining

agreement, it comported with the constitutional requirements of due process. Cf. Shuman

ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 150 n.4 (3d Cir. 2005) (“It is

well-accepted that state law does not ordinarily define the parameters of due process for

                                             7
Fourteenth Amendment purposes; rather, the minimum, constitutionally mandated

requirements of due process in a given context and case are supplied and defined by

federal law, not by state law or regulations.” (internal quotation marks omitted));

Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 319 (2d Cir. 2002) (“The Constitution, not

state law sources such as the [collective bargaining agreement], determines what process

is due.”). Accordingly, her due process claim fails.

       B.     FIRST AMENDMENT CLAIM

       Thomas also disagrees with the District Court’s dismissal of her First Amendment

claim. To prevail on such a claim, she must establish: (1) constitutionally protected

conduct, (2) retaliatory action, and (3) a causal connection between the constitutionally

protected conduct and the retaliatory action. Thomas v. Independence Twp., 463 F.3d

285, 296 (3d Cir. 2006). The District Court concluded that Thomas did not engage in

protected activity and that she could not establish a causal connection between said

activity and her subsequent termination. To dispose of this appeal, it is enough to note

our agreement that Thomas did not engage in protected activity.

       For a public employee’s speech to be protected, she must have made the

statements as a citizen, the statements must involve a matter of public concern, and the

government employer must not have an adequate justification for treating the employee

differently from a member of the public. Hill v. Borough of Kutztown, 455 F.3d 225,

241-42 (3d Cir. 2006) (citing Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). Here,

Thomas’s union grievances are not protected because they do not involve matters of

public concern. While it is true that union activities may sometimes touch on a matter of

                                             8
public concern, see Clue v. Johnson, 179 F.3d 57, 61 (2d Cir. 1999) (union activities that

“necessarily entail a substantial criticism of management raise matters of public

concern”), it is not the case that all union-related grievances do, Boals v. Gray, 775 F.2d

686, 693 (6th Cir. 1985) (“[A]n employee’s speech, activity or association, merely

because it is union-related, does not touch on a matter of public concern as a matter of

law.”). Thomas’s grievances related to “working conditions and other issues in union

members’ employment,” (App. at 70) and Thomas offers nothing that would transform

those personnel matters into issues of interest to the broader community. Davignon v.

Hodgson, 524 F.3d 91, 101 (1st Cir. 2008) (“Private speech to fellow employees

regarding union activities is not necessarily imbued with … public qualities.”); Campbell

v. Galloway, 483 F.3d 258, 267 (4th Cir. 2007) (“Personal grievances, complaints about

conditions of employment, or expressions about other matters of personal interest do not

constitute speech about matters of public concern that are protected by the First

Amendment, but are matters more immediately concerned with the self-interest of the

speaker as employee.” (internal quotation marks omitted)).6


       6
         Thomas said she disclosed problems of asbestos and mold at DSU, and that
could, arguably, touch on matters of public concern, Brennan v. Norton, 350 F.3d 399,
415 (3d Cir. 2003) (“[T]he statements regarding exposure of public employees to hazards
such as asbestos can be fairly considered as relating to a matter of concern to the
community.” (internal quotation marks, brackets, and alterations omitted)), but she offers
absolutely no evidence that she ever filed grievances or made any disclosures regarding
the alleged contamination. Her unsupported deposition testimony, which is contradicted
by the record, is insufficient to defeat summary judgment. N.L.R.B. v. FES, (a Div. of
Thermo Power), 301 F.3d 83, 95 (3d Cir. 2002) (“Roche’s testimony … amounts to an
unsupported, conclusory assertion, which we have held is inadequate to satisfy the
movant’s burden of proof on summary judgment.”); see also Arrington v. United States,
473 F.3d 329, 343 (D.C. Cir. 2006) (“[S]ummary judgment is most likely when a
                                             9
III.   CONCLUSION

       For the forgoing reasons, we will affirm the ruling of the District Court.




plaintiff’s claim is supported solely by the plaintiff’s own self-serving testimony,
unsupported by corroborating evidence, and undermined … by other credible evidence…
.” (internal quotation marks and emphasis omitted)); Brooks v. Am. Broad. Cos., Inc., 999
F.2d 167, 172 (6th Cir. 1993) (“As with a summary judgment analysis, the district court
was not required to accept unsupported, self-serving testimony as evidence sufficient to
create a jury question.”); cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)
(“The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.”).

                                            10
