                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 16-2828
                                  _____________

                               DAVAUN BARNETT,
                                    Appellant

                                          v.

                    PENN HILLS SCHOOL DISTRICT;
             PENN HILLS SCHOOL DISTRICT SCHOOL BOARD;
            CARL BARBARINO; JENNIFER BURGESS-JOHNSON;
            DENISE GRAHAM-SHEALY; HEATHER HOOLAHAN;
            ROBERT HUDAK; DONALD KUHN; JOHN ZACCHIA


                 On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                          District Court No. 2-16-cv-00274
                District Judge: The Honorable Terrence F. McVerry

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 July 13, 2017

    Before: SMITH, Chief Judge, NYGAARD, and FUENTES, Circuit Judges

                               (Filed: July 17, 2017)
                             _____________________

                                    OPINION*
                             _____________________

SMITH, Chief Judge

*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
      Plaintiff Davaun Barnett was fired from his job as principal of Linton

Middle School in the Penn Hills School District (“PHSD”). In this action, Barnett

alleges that PHSD, its School Board, and several Board members violated (and

conspired to violate) his rights to procedural and substantive due process. He also

asserts several claims arising under state law. The District Court dismissed

Barnett’s federal claims and declined to exercise supplemental jurisdiction over the

remaining state-law claims. For the following reasons, we will affirm.

                                         I

      Barnett’s wife allegedly stole $300 from a school fundraiser. This allegation

led PHSD to charge Barnett with “immorality” for failing to account for or return

the funds. Following a hearing, PHSD’s Board voted to terminate Barnett’s

employment.

      Barnett appealed to Pennsylvania’s Acting Secretary of Education. The

Acting Secretary performed a de novo review. By Order dated July 18, 2014, the

Acting Secretary affirmed the Board’s decision—citing, inter alia, Barnett’s

inconsistent representations about what happened to the money.

      Barnett petitioned for review to the Commonwealth Court of Pennsylvania.

By Order dated May 28, 2015, the Commonwealth Court affirmed the Acting

Secretary’s Order. Barnett v. Penn Hills Sch. Dist., No. 1412 C.D. 2014, 2015 WL

5436932, at *9 (Pa. Commw. Ct. May 28, 2015).

                                         2
      On March 9, 2016, Barnett filed this action in the United States District

Court for the Western District of Pennsylvania. Barnett claims that, during the

pendency of his second appeal, he discovered new evidence that his original pre-

termination hearing was a sham: certain unidentified individuals reportedly

informed Barnett that PHSD had struck Barnett’s salary from the school’s budget

before the hearing occurred. Barnett draws the inference that the Board prejudged

his hearing.

      Named as defendants are PHSD, the School Board, and several individual

Board members. Barnett’s Complaint asserts seven Counts against all defendants:

(I) “Procedural Due Process,” (II) “Substantive Due Process,” (III) “Conspiracy,”

(IV) “Violation of the Pennsylvania Constitution,” (V) “Breach of Contract,”

(VI) “Infliction of Emotional Distress,” and (VII) “Vicarious Liability.” JA36–42.

      On May 18, 2016, the District Court granted the defendants’ motion to

dismiss. See Barnett v. Penn Hills Sch. Dist., No. 2:16-cv-274, 2016 WL 2895136

(W.D. Pa. May 18, 2016). The District Court dismissed the federal due-process

claims with prejudice for two reasons. First, the District Court concluded that the

due-process claims were precluded. Specifically, it held that the claims against

PHSD and the Board were barred by claim preclusion (res judicata), and the claims

against the individual defendants, who were not parties in the previous litigation,

were barred by issue preclusion (collateral estoppel). Second, the District Court

                                         3
alternatively concluded that the due-process claims failed on the merits. The

District Court also dismissed the conspiracy claim with prejudice because it

depended on underlying due-process violations, and dismissed the remaining state-

law claims without prejudice pursuant to 28 U.S.C. § 1367(c).

      This timely appeal followed.1

                                          II

      We exercise plenary review over the District Court’s dismissal of Barnett’s

federal claims. See, e.g., United States ex rel. Petras v. Simparel, Inc., 857 F.3d 497

(3d Cir. 2017). We agree with the District Court that the claims—procedural due

process, substantive due process, and conspiracy—fail as a matter of law.2




      1
         The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.
       2
         Barnett argues that the District Court erroneously held that claim and issue
preclusion bar his due-process challenges. Specifically, he relies on a non-
precedential opinion to argue that claim preclusion is inapplicable because the new
evidence was fraudulently concealed. See Haefner v. N. Cornwall Twp., 40 F.
App’x 656, 658 (3d Cir. 2002) (“Claim preclusion . . . applies even where new
claims are based on newly discovered evidence, unless the evidence was . . .
fraudulently concealed . . . .”). He also argues that issue preclusion is inapplicable
because the newly discovered evidence supports a challenge to the basic integrity
of the hearing that was not litigated below. But we need not reach those issues.
Because “[p]reclusion . . . is not jurisdictional[,] . . . we can affirm the District
Court on the merits” and “need not reach the question of the preclusive effect of
the prior state-court judgments.” Great W. Mining & Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 173 (3d Cir. 2010).
                                          4
                                         A

      We begin with Barnett’s claim that the defendants violated his right to

procedural due process under the Fourteenth Amendment to the United States

Constitution. We agree with the District Court that the two layers of review cure

any procedural defect in the original pre-termination hearing.

      This Court has previously held that a public employee with access to de

novo review of a termination decision receives “sufficient process to protect his

property rights,” even if the earlier proceedings were infected with bias. McDaniels

v. Flick, 59 F.3d 446, 461 (3d Cir. 1995); see also Dykes v. SEPTA, 68 F.3d 1564,

1571 (3d Cir. 1995). To be sure, “the most thorough and fair post-termination

hearing cannot undo” the outright denial of pre-termination procedures. Alvin v.

Suzuki, 227 F.3d 107, 120 (3d Cir. 2000). But once some process is provided, we

have held that de novo review can cure any claimed bias in appropriate cases.

McDaniels, 59 F.3d at 461.

      Here, the requisite pre-termination process was in fact provided.3 When the

matter was not decided in his favor, Barnett obtained de novo review from the


      3
        To the extent that Barnett claims that he did not receive appropriate pre-
termination notice, see Compl. ¶ 24, that question was resolved against Barnett in
the proceedings below, see Barnett, 2015 WL 5436932, at *9 (“Petitioner was
informed that he was being charged with immorality on the basis of his failure to
account for the missing funds raised at the fundraising event.”). While we do not
rule on whether Barnett’s due-process challenges are precluded in their entirety,
Barnett is barred from relitigating the specific issue of notice. It was fully and
                                         5
Acting Secretary and additional review from the Commonwealth Court. This case

is thus a straightforward application of McDaniels, notwithstanding Barnett’s “new

evidence.” Even if the new evidence showed bias in the original pre-termination

hearing, it does not undermine the integrity or independence of the Acting

Secretary or the Commonwealth Court.

      Barnett attempts to distinguish McDaniels by arguing that the plaintiff in

that case failed to pursue de novo review. But that distinction does not help

Barnett. If a plaintiff’s due-process claim fails because he did not, but could have,

obtained further review, a plaintiff who actually obtains such review does not have

a stronger claim for deprivation of due process. As the District Court aptly put it,

seeking and obtaining review “would tend to further undermine his claim, not

support it.” Barnett, 2016 WL 2895136, at *8.

      Accordingly, we will affirm the dismissal of Barnett’s procedural due

process claim.

                                         B

      Barnett’s substantive due process claim fails because he was not deprived of

a fundamental interest under the Constitution. Barnett’s claimed interests—his

public employment and reputation—fall short of the mark.


fairly litigated in the earlier proceedings and has nothing to do with the new
evidence. See generally Metro. Edison Co. v. Pa. Pub. Util. Comm’n, 767 F.3d 335,
351 (3d Cir. 2014).
                                         6
      To prevail on a substantive due process claim, “a plaintiff must establish as a

threshold matter that he has a protected property interest to which the Fourteenth

Amendment’s due process protection applies.” Nicholas v. Pa. State Univ., 227

F.3d 133, 139–40 (3d Cir. 2000) (quoting Woodwind Estates, Ltd. v. Gretkowski,

205 F.3d 118, 123 (3d Cir. 2000)). “[N]ot all property interests worthy of

procedural due process protection are protected by the concept of substantive due

process.” Id. at 140 (quoting Reich v. Beharry, 883 F.2d 239, 243 (3d Cir. 1989)).

The interest must be “fundamental” under the Constitution. Id. at 142.

      Barnett fails that threshold inquiry. While his interests in his public

employment and reputation may be entitled to procedural protections, see

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), Barnett does

not have a substantive right to any particular outcome in those proceedings. As we

have held, “public employment . . . bears little resemblance to other rights and

property interests that have been deemed fundamental under the Constitution.”

Nicholas, 227 F.3d at 143. And, to the extent that Barnett’s claim is “based not only

on loss of his job, but also on reputational injury that decreased his ‘ability to earn

a living,’ it also fails.” Hill v. Borough of Kutztown, 455 F.3d 225, 235 n.12 (3d Cir.

2006).




                                           7
      Accordingly, we will affirm the dismissal of Barnett’s substantive due

process claim.4

                                        III

      Finally, Barnett argues that the District Court should have granted leave to

file an amended complaint. But we agree with the District Court that amendment

would be futile.

      “[I]n the event a complaint fails to state a claim, unless amendment would

be futile, the District Court must give a plaintiff the opportunity to amend her

complaint.” Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). We

review a determination of futility de novo. Maiden Creek Assocs., L.P. v. U.S. Dep’t

of Transp., 823 F.3d 184, 189 (3d Cir. 2016). In this case, Barnett proposed three

amendments that he argues would save the Complaint. We reject each.

      First, Barnett argues that he could amend the Complaint to clarify that

Barnett’s salary was omitted from the budget for the year after he was going to be

terminated. While the District Court did note that Barnett’s new evidence “strains

credulity” because the Complaint’s description was not clear, Barnett, 2016 WL


      4
         Barnett does not appeal the dismissal of the conspiracy count. But even if
he did, that claim could only be reinstated if we also reinstated one of his due-
process claims. See Barnett, 2016 WL 2895136, at *9 (“[W]here, as here, a
plaintiff has not succeeded in pleading an underlying constitutional violation, any
claim for conspiracy must also be dismissed.”). The remaining Counts arise under
state law. Barnett does not appeal the District Court’s decision to dismiss those
claims without prejudice pursuant to 28 U.S.C. § 1367(c).
                                         8
2895136, at *4, Barnett’s proposed clarification would not save any claim from

dismissal. The budget’s effective date is not material to our analysis.

      Second, Barnett offers to amend his Complaint to include the identities of

the individuals who provided him the new evidence. But their identities have no

legal significance. Barnett’s claims fail even accepting their statements as true.

      Finally, Barnett argues that he should be allowed to plead additional facts to

demonstrate that the Acting Secretary’s de novo review was tainted by bias. But

Barnett has not proffered any facts to suggest that the Acting Secretary was herself

biased against Barnett. Instead, Barnett argues that the Acting Secretary considered

testimony from the pre-termination hearing that should never have been admitted

because the witness was not sequestered before testifying. But Barnett has cited no

authority for the proposition that the testimony could not have been considered. Cf.

Gov’t of V.I. v. Edinborough, 625 F.2d 472, 474 (3d Cir. 1980) (noting that “failure

to sequester witnesses is not, in itself, grounds for reversal,” and that “the witness

is not necessarily disqualified”).

      Furthermore, this argument has nothing to do with Barnett’s new evidence;

he knew about this issue in 2013 when the testimony occurred. He could have, and

should have, raised this issue before the Acting Secretary and the Commonwealth

Court. Barnett cannot use his own failure to present an issue in a proceeding to



                                          9
later show that the proceeding was unfair. Simply put, Barnett received the process

he was due.

                                        IV

      For the foregoing reasons, we will affirm.




                                        10
