                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 13-4077


                                  JAMES LUCIANI,
                                             Appellant

                                           v.

                       CITY OF PHILADELPHIA;
  DENNIS R. CURCIO, Co-Administrators of The Estate of Enrico Foglia, Deceased;
   ROBERT FOGLIA, Co-Administrators of The Estate of Enrico Foglia, Deceased


                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (D.C. No. 2-10-cv-02918)
                   District Judge: Honorable Thomas N. O’Neill, Jr.
                                  ________________

                              Argued November 19, 2014

                Before: AMBRO, SCIRICA and ROTH, Circuit Judges

                             (Opinion filed: March 7, 2016)


Robert A. Davitch, Esquire
Gary Green, Esquire                     (Argued)
Sidkoff, Pincus & Green
1101 Market Street
Suite 2700
Philadelphia, PA 19107

                   Counsel for Appellant
Jane L. Istvan, Esquire              (Argued)
City of Philadelphia
Law Department
1515 Arch Street, 17th Floor
One Parkway
Philadelphia, PA 19102

                       Counsel for Appellees




                                           OPINION*


ROTH, Circuit Judge

         James Luciani appeals two orders of the District Court, one granting summary

judgment to the City of Philadelphia and two individual defendants and the other denying

Luciani’s motion for leave to amend his complaint. For the reasons set forth below, we

will affirm both orders.


                                               I.

         Luciani worked for the City of Philadelphia for twenty-three years before being

terminated in July 2008. Luciani was formally terminated for residing in New Jersey, in

violation of Philadelphia’s Civil Service Regulations requirement that he live in

Philadelphia.1 On June 17, 2010, Luciani filed this Section 1983 action, alleging that his

termination was actually a result of his blowing the whistle on corruption in the City’s



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
    See Phila. Civ. Serv. Regs. § 30.01.
                                                2
Board of Revision of Taxes (BRT), and that he was being retaliated against in violation

of the First Amendment. Luciani maintains that he has always lived in Philadelphia and

that the charge that he lived in New Jersey was pretext for his termination. Luciani also

alleges that he was denied due process because the outcome of his “sham” pre-

termination hearing was predetermined.

       In Luciani’s initial complaint, he alleged only his whistleblowing and his allegedly

pretextual termination. On January 27, 2012, after the close of discovery, Luciani moved

to amend his complaint. The proposed amended complaint (PAC) adds allegations of a

conspiracy between two FBI agents, Brian Nichilo and Raymond Manna, and a

contractor with the City’s Office of Inspector General (OIG), Thomas Steel. Luciani

asserts that he did not uncover evidence of the conspiracy until late in discovery, despite

the names of all three purported conspirators appearing in the City’s initial disclosures

and all three being deposed at least five months before Luciani’s motion for leave to

amend his complaint. Nichilo and Steel allegedly manufactured evidence regarding

Luciani’s residence, including an allegedly fabricated confession from Luciani that he

lived in New Jersey, and brought Manna into the scheme to act as a false witness.

According to Luciani, the goal of the alleged conspiracy was to use the threat of exposing

Luciani’s living outside the City, which could result in his termination, to extract from

Luciani incriminating information about Vincent Fumo, a former state senator later

convicted of corruption. The FBI/OIG investigation ultimately led to Luciani’s dismissal

for failing to maintain a residence within the City of Philadelphia.



                                             3
                                            II.2

       The District Court denied Luciani’s motion for leave to amend his complaint and

granted summary judgment to the City. As counsel noted at oral argument, a finding that

leave to amend should have been granted would make this matter “a completely different

case.” For that reason, we will address Luciani’s motion for leave to amend before

turning to the District Court’s grant of summary judgment.

       We review the District Court’s denial of leave to amend for abuse of discretion.3

Under Federal Rule of Civil Procedure 15(a)(2), a “court should freely give leave when

justice so requires.”4 While “[a] district court may deny leave to amend a complaint

where it is apparent from the record that ‘(1) the moving party has demonstrated undue

delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the

amendment would prejudice the other party,’”5 “delay alone is an insufficient ground to

deny leave to amend.”6

       The District Court did not abuse its discretion in denying Luciani’s motion for

leave to amend his complaint. Luciani had access to the OIG report containing the

allegedly false information and knowledge of the FBI and OIG personnel involved prior

to filing his suit. The complete file was provided to Luciani, again, as part of the City’s

disclosures in this matter, as were the names of the FBI special agents involved. The

2
  The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and we
have jurisdiction pursuant to 28 U.S.C. § 1291.
3
  United States ex rel. Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 849 (3d Cir.
2014).
4
  Fed. R. Civ. P. 15(a)(2).
5
  Schumann, 769 F.3d at 849 (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)).
6
  Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001).
                                              4
facts on which Luciani’s proposed Bivens claim rests were well known to him, at the very

least, by September 2011, when he had completed deposing the relevant witnesses and

had reviewed the OIG file. Yet, despite ample time remaining in the discovery period to

file a motion to amend, Luciani did not so move until after discovery had closed. The

District Court’s finding of unexplained delay was, therefore, not an abuse of discretion.

       Nor was the District Court’s finding of undue prejudice to the defendants based

merely on the delay. “[P]rejudice to the non-moving party is the touchstone for denial of

an amendment,”7 and we have found previously that changing the legal and factual basis

of a claim can create undue prejudice.8 As previously noted, Luciani’s motion for leave

to amend purported to add new legal bases for relief as well as new defendants who were

previously merely potential witnesses. Far from being a change that resulted in “no

additional discovery, cost, and preparation to defend against new . . . theories,”9 granting

Luciani’s motion would have resulted in the re-opening of discovery and substantial

additional motions practice to accommodate the new defendants and allegations. One

need look no further than Luciani’s own counsel’s assessment that the amended

complaint would have been “a completely different case” in order to see the obvious

prejudice that would have resulted from allowing amendment at the eleventh hour.

Consequently, we conclude that the District Court did not abuse its discretion in denying

Luciani’s motion for leave to amend.


7
  Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) (quoting Cornell & Co., Inc. v.
Occupational Safety & Health Rev. Comm’n, 573 F.2d 820, 823 (3d Cir. 1978)).
8
  See Cureton, 252 F.3d at 273.
9
  Id.
                                             5
       Turning to the merits of the complaint, Luciani contends that he was denied his

constitutionally guaranteed procedural due process in the loss of his property interest in

his public employment because his pre-termination hearing was a “sham.” This

argument is unavailing. While some kind of pre-termination proceeding is necessary

before a public employee is terminated, this proceeding may be relatively informal and

need not be conducted by an unbiased factfinder or the ultimate decision-maker.10 The

proceeding need only advise the employee of the charges against him, provide a general

explanation of the employer’s evidence, and give the employee an opportunity to make a

case on his own behalf.11 If the Commonwealth provides adequate post-termination

proceedings, with an appropriately neutral decision-maker empowered to rectify any

errors, the employee’s rights to procedural due process are preserved.12

       Luciani’s contention that the pre-termination hearing to which he was subjected

had a predetermined outcome is ultimately immaterial to his procedural due process

claim. He admits that he had a union grievance and civil service procedure to which he

could resort after the pre-termination proceeding found against him. He also admits that

he did not complete the post-termination proceeding because he did not want to wait for

its results. Since Luciani failed to avail himself of the available, constitutionally

sufficient avenues for relief, his procedural due process claim must fail.13



10
   McDaniels v. Flick, 59 F.3d 446, 460 (3d Cir. 1995).
11
   Id. at 454.
12
   Id. at 460.
13
   See Dykes v. SE Penn. Transp. Auth., 68 F.3d 1564, 1572 (3d Cir. 1995); McDaniels,
59 F.3d at 460.
                                              6
       Luciani’s reliance on our decisions in Alvin v. Suzuki14 and Schmidt v. Creedon15

for the proposition that a pre-termination proceeding can be so infected with bias as to

render any post-termination relief inadequate is misplaced. In Alvin, we held that a

university professor’s failure to follow the university’s grievance procedure eliminated

any procedural due process claim and the burden is on the public employee to follow the

appropriate procedures.16 Far from supporting Luciani’s case, Alvin favors the result

reached by the District Court. Luciani similarly failed to follow through on his right to a

post-deprivation proceeding before an impartial decision-maker.

       Schmidt offers no support for Luciani’s position and is inapposite. In Schmidt, we

held that, absent extraordinary circumstances, some form of pre-deprivation proceeding

was necessary before suspending an employee from a position in which he had a property

interest, even if constitutionally adequate post-deprivation proceedings are available.17

The critical fact in Schmidt was the absence of any pre-deprivation proceeding.18 Here,

there is no dispute that Luciani was given a pre-termination hearing. Instead, Luciani’s

complains that the hearing’s outcome was predetermined and his claims were rejected.

Merely rejecting an employee’s claims at a pre-termination proceeding is not a

constitutional violation, so long as adequate post-termination remedies exist to satisfy




14
   227 F.3d 107 (3d Cir. 2000).
15
   639 F.3d 587 (3d Cir. 2011).
16
   227 F.3d at 117.
17
   639 F.3d at 589–90.
18
   Id. at 597.
                                             7
procedural due process.19 Thus, we will affirm the District Court’s grant of summary

judgment to the City on Luciani’s procedural due process claims.

       Luciani’s substantive due process claim fails because Luciani’s property interest in

his public employment is not subject to substantive due process protection. 20 Without a

protected property interest, there can be no substantive due process claim, as the District

Court correctly held. We will affirm the District Court’s grant of summary judgment to

the City on Luciani’s substantive due process claim.

       As for Luciani’s First Amendment retaliation claim, the District Court held that

Luciani had engaged in protected speech by complaining about alleged corruption in his

office to the City Controller, but that he had failed to offer proof that this speech was a

factor in his termination. Luciani contends that his own perception of increased

“antagonism” from his supervisors, combined with his recollection of conversations with

other City employees, is sufficient to raise an issue of material fact for trial. It is not. At

the summary judgment stage, it is axiomatic that a plaintiff must come forward with

some affirmative evidence to support his claim.21

       Nor can Luciani rely on perceived deficiencies in his pre-termination proceedings

as evidence of a retaliatory motive: he has offered no evidence that these perceived

deficiencies, such as declining to produce to him a full, confidential OIG report until after

the pre-termination hearing, were motivated by his whistle-blowing statements. Indeed,

Luciani argues that a “rogue agent” of law enforcement, apparently miffed at Luciani’s

19
   See McDaniels, 59 F.3d at 456 n.5.
20
   Nicholas v. Penn. State Univ., 227 F.3d 133, 142 (3d Cir. 2000).
21
   See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
                                               8
lack of knowledge about an investigation Luciani did not have knowledge about,

included allegedly false information in the OIG report that the City later relied upon in

his pre-termination proceeding. If Luciani’s theory is correct, the OIG report would have

eventually led to the termination proceedings regardless of whether Luciani had spoken

to the Controller, an outcome the District Court noted was corroborated by deposition

testimony. The ten month interval between Luciani’s statements to the Controller in

September 2007 and his pre-termination proceedings in July 2008 also militates against a

finding of causation based solely on temporal proximity.22 Consequently, we will affirm

the District Court’s grant of summary judgment to the City on Luciani’s First

Amendment retaliation claims.

                                            III.

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




22
  Marra v. Phila. Hous. Auth., 497 F.3d 286, 303 n.14 (3d Cir. 2007) (noting it is
“undoubtedly correct” that a nine month lapse in time between First Amendment conduct
and alleged retaliatory act is insufficient evidence, standing alone, from which to infer
causation).
                                             9
                        James Luciani v. City of Philadelphia, et al.
                                      No. 13-4077

_______________________________________________________________________

AMBRO, Circuit Judge, dissenting in part

       I agree with my colleagues that the District Court did not err in denying Luciani’s

motion to amend his complaint. I would also not disturb the dismissal of the substantive

due process claim. They and I differ, however, as to the entry of summary judgment

against Luciani on the remainder of his claims. In my view, he presented sufficient

evidence of procedural due process and retaliation claims to survive summary judgment.

For that reason, I respectfully dissent in part.

       Beginning with the procedural due process claim, my majority colleagues reject

the argument that the pre-termination hearing was a “sham.” But they forget that Luciani

also alleged that defendants violated procedural due process by failing to give him proper

notice of the evidence used to fire him. Prior to a pre-termination hearing, an employee

“is entitled to 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.” Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). When an employee facing a pre-

termination hearing is not given sufficient notice of the evidence against him, this is a

violation of the employee’s right to procedural due process. See, e.g., Cotnoir v. Univ. of

Maine Sys., 35 F.3d 6, 12 (1st Cir. 1994) (university violated due process by failing to

provide professor who was fired with copies of the investigation report and the content of

the interviews on which it was based). Indeed, “a sin[e] qua non of a meaningful


                                               1
hearing is sufficient explanation of the employer’s evidence to permit a meaningful

response.” Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d 74, 80 (3d Cir.

1989). I would reverse the District Court’s grant of summary judgment on the procedural

due process claim because Luciani was denied access to a critical piece of evidence

before the pre-termination hearing and was hampered in his ability to defend against the

allegation that he violated the City’s residency requirements.

       Luciani’s only notice before the hearing of the evidence against him was a letter

stating, in general terms, that a recent investigation by the Office of the Inspector General

(“OIG”) had concluded that he resided in New Jersey based in part on information from

the FBI. We know now that a key piece of evidence was an OIG report that Luciani had

admitted to an FBI agent—during an interview unrelated to the investigation into his

residency—that he had lived in New Jersey for the past twenty years. The problem is

that even though the City, the OIG, and the FBI knew about the alleged confession,

Luciani states he did not. He denies having ever told the agent during the interview that

he lived in New Jersey, and on summary judgment we should construe the evidence on

this point in his favor.

       Up to and through the time of the pre-termination hearing, the City never disclosed

to Luciani this key evidence against him, and this was so despite his requests. Before

Luciani’s hearing, his union representative requested, among other things, the OIG

report. A City employee refused, explaining that the report was a “confidential

document” that was part of the City’s evidence but not subject to disclosure. During the

hearing, Luciani’s attorney renewed the request for a copy of the report and was again

                                              2
rebuffed on the ground of confidentiality. Remarkably, no one at the hearing referenced

Luciani’s statement to the FBI or questioned him about the statement, notwithstanding

that supervisors later testified this was a significant piece of evidence. At the hearing,

Luciani was thus unable to challenge the veracity of the admission or the credibility of

the FBI agent. In these circumstances, there is a genuine dispute as to whether

defendants gave him sufficient notice of the evidence—a dispute that deserves to be

decided by a jury, not a judge on summary judgment.

       The majority asserts that any procedural due process claim “must” fall because

Luciani “failed to avail himself of the available, constitutionally sufficient avenues for

relief.” Majority Op. at 6. After the pre-termination hearing, Luciani filed a grievance

with the City to challenge his termination, and the City finally gave his union

representative a copy of the OIG report. On the surface, this may seem a good reason to

dismiss the procedural due process claim because Luciani could have challenged his

admission to the FBI through the grievance procedure. Case law does not support this

result, however. True enough, we have held that a plaintiff who fails to take advantage of

post-termination procedures cannot later bring a procedural due process claim on the

theory that the decisionmaker at the pre-termination hearing was biased. See McDaniels

v. Flick, 59 F.3d 446, 460 (3d Cir. 1995); Dykes v. Se. Pa. Transp. Auth., 68 F.3d 1564,

1571-72 (3d Cir. 1995). But we have not extended this requirement to cases like the one

before us now, where the allegation is that defendants deprived Luciani of

constitutionally mandated pre-termination procedures. See Alvin v. Suzuki, 227 F.3d 107,

120 (3d Cir. 2000) (“[I]f the Constitution requires pre-termination procedures, the most

                                              3
thorough and fair post-termination hearing cannot undo the failure to provide such

procedures.”). Moreover, Luciani reached an agreement with the City to resolve the

grievance that preserved his right to bring this lawsuit. Under the agreement, Luciani

agreed to withdraw the grievance but not release the City from any claims related to his

termination, and in return the City agreed to change his termination retroactively to

reflect a retirement so that he could receive pension benefits as of July 2008. In these

circumstances, I would not punish him for making this deal by dismissing the procedural

due process claim.

       Turning to the First Amendment retaliation claim, there is a genuine issue of

whether there was a causal connection between Luciani’s protected speech and his

termination. To establish a causal connection a plaintiff typically “must prove either (1)

an unusually suggestive temporal proximity between the protected activity and the

allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to

establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d

Cir. 2007). Although this a close question, there is for me enough evidence of a pattern

of antagonism and suggestive timing to survive summary judgment.

       Consider this truncated summary of events: in September 2007, Luciani expressed

concern to his supervisors about a “pattern of corruption” in the City’s Board of Revision

of Taxes. Luciani heard from another employee that Charlesretta Meade, Chair of the

Board of Revision of Taxes, was “livid” that Luciani was “blowing the whistle” and had




                                             4
“spoke[n] out against the department.”1 Sometime that same month, an FBI agent

interviewed Luciani about an unrelated matter and asked about his residency. In October

2007, the FBI told the OIG that Luciani had admitted to living outside Philadelphia and

the OIG began its investigation into his residency. In January 2008, Luciani told Meade

that he thought the OIG was trying to recruit him as a whistleblower. In February and

March 2008, Luciani met with an OIG investigator and an FBI agent on three occasions

to discuss corruption at the Board of Revision of Taxes. During one of the March

meetings, Luciani agreed to provide significantly more information about corruption on

the condition that the residency investigation be dropped. In March 2008, Luciani

expressed concern in an email that management thought he was a whistleblower and that

he might be retaliated against. On June 6, 2008, the OIG issued its report and found a

violation of the residency policy. On June 19, 2008, the City notified Luciani that it

intended to fire him.

       This timeline of events raises enough suspicions that a reasonable juror could

conclude that the City used the residency investigation as pretext for firing Luciani in

retaliation for his September 2007 statement. Accordingly, I would also reverse the

District Court’s grant of summary judgment on the retaliation claim and let the case

proceed to trial. For these reasons, I respectfully dissent in part.


1
  The District Court and my majority colleagues find Luciani’s recollection of the
conversation insufficient to raise an issue of material fact for trial. “There is simply no
rule of law,” however, “that provides that a discrimination plaintiff may not testify in his
or her own behalf, or that such testimony, standing alone, can never make out a case of
discrimination that will survive a motion for summary judgment.” Jackson v. Univ. of
Pittsburgh, 826 F.2d 230, 236 (3d Cir. 1987).
                                               5
