                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                _______________

                     No. 17-3084
                   _______________

                JEROME MCKINNEY

                           v.

           UNIVERSITY OF PITTSBURGH,
                                   Appellant

                   _______________

     On Appeal from the United States District Court
         for the Western District of Pennsylvania
       (W.D. Pa. Civil Action No. 2-15-cv-01538)
        District Judge: Honorable Nora B. Fischer
                    _______________

               Argued: September 6, 2018

Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges

           (Opinion Filed: February 14, 2019 )
Shannon H. Paliotta
University of Pittsburgh
Office of General Counsel
1710 Cathedral of Learning
4200 Fifth Avenue
Pittsburgh, PA 15260

Kim M. Watterson          [Argued]
Reed Smith
225 Fifth Avenue
Suite 1200
Pittsburgh, PA 15222

M. Patrick Yingling
Reed Smith
10 South Wacker Drive
40th Floor
Chicago, IL 60606

      Counsel for Appellant University of Pittsburgh

Sean L. Ruppert            [Argued]
Kraemer Manes & Associates
600 Grant Street
U.S. Steel Tower, Suite 4875
Pittsburgh, PA 15219

      Counsel for Appellee Jerome McKinney




                             2
Shannon D. Farmer
Burt M. Rublin
Ballard Spahr
1735 Market Street
51st Floor
Philadelphia, PA 19103

       Counsel for Amicus Appellants Temple University, the
       Pennsylvania State University, Rowan University and
       Delaware State University


                       ______________

                 OPINION OF THE COURT
                     _______________

KRAUSE, Circuit Judge.

       Jerome McKinney, a longtime, tenured professor at the
University of Pittsburgh’s Graduate School of Public and
International Affairs, challenges the University’s decision to
reduce his salary as a violation of the Due Process Clause.
Based largely on the negative implications that can be drawn
from a University policy that discusses salary increases but
nowhere mentions salary decreases, McKinney argues that he
has a property interest in the continued receipt of his base
salary and that he was deprived of that interest without due
process. The District Court agreed, granting summary
judgment for McKinney. Because we conclude McKinney
lacks a property interest in the entirety of his base salary, we
will reverse and remand for entry of judgment in favor of the
University.




                               3
I.     Background

       When McKinney was hired in 1970 and granted tenure
in 1974, the terms of his employment were not governed by a
collective bargaining agreement or employment contract per
se, but by University policies promulgated by the University
Trustees. Those policies provide that tenured faculty can be
terminated only “for cause,” App. 795, and they explicitly
provide yearly salary raises for all faculty who perform
satisfactorily or meritoriously. According to University Policy
07-09-01 (the “Policy”), “[e]ach faculty or staff member
performing satisfactorily will receive a percentage increase of
the size determined for that year for maintenance of real
salary,” i.e., a salary increase to account for inflation. App.
1152–53. And for meritorious faculty, the Policy states that
“every faculty . . . member whose performance is judged
meritorious receives a merit increase in salary.” App. 1153.
Any salary increase for “maintenance” or merit “become[s]
part of [the faculty member’s] base contract salary in
subsequent years.” Id.

       No explicit provisions govern salary decreases, but the
Policy provides procedures to address complaints from faculty
members dissatisfied with their salary decisions and requires
that if a faculty member’s performance is “judged
unsatisfactory,” the faculty member “must be informed of the
specific reasons for that judgment.” App. 1154.

        Whether a given professor’s performance is
meritorious, satisfactory or unsatisfactory depends on three
criteria: (1) teaching ability, (2) achievements in research and
scholarship, and (3) service to the University and/or
community. For McKinney, these criteria were assessed in an




                               4
annual review process overseen by the Dean of the Graduate
School of Public and International Affairs (the “Grad School”).
To evaluate these criteria, the Dean invites input from the
faculty members themselves and from their peers and students.
That input is typically in the form of reports prepared by each
faculty member, which summarize their activities and
achievements for the year; evaluations provided by an elected
committee of Grad School faculty members, which scores each
faculty member on all three criteria; and student evaluations
and enrollment data tracked by the University. Based on the
submissions received, the Dean makes a final decision about
faculty performance, rating each faculty member as
meritorious, satisfactory, or unsatisfactory, and determines
what salary a faculty member will receive the following year
in accordance with the Policy.

        McKinney did not fare well in recent years in this
review process. In McKinney’s 2010 and 2011 reviews, John
Keeler, the Dean of the Grad School for all relevant periods,
expressed concern about declining enrollment in McKinney’s
classes, poor student evaluations, and a stagnant research
agenda, but nonetheless granted him the standard 2.0% and
1.5% maintenance increases which were budgeted respectively
in those years for faculty with “satisfactory” performance.
Despite the admonition from Dean Keeler, these same
deficiencies persisted through the 2012 review, in which
McKinney ranked last among the Grad School faculty and was
given a performance rating of “less than satisfactory.” App.
231. At the conclusion of that review in August 2012,
McKinney was advised that his salary would be increased by
only 0.5%, and that if his “performance d[id] not improve next
year . . . [Dean Keeler] w[ould] have no recourse but to give




                              5
[McKinney] a 0.0% raise or even consider a salary reduction.”
App. 233.

        Still,   McKinney’s     performance    showed      no
improvement. He was again ranked last in the 2013 review,
prompting Dean Keeler to reduce his salary by 20%. In a face-
to-face meeting with McKinney in September 2013, Dean
Keeler advised McKinney of this decision and provided him a
letter that laid out over the course of five pages the long-
standing problems with McKinney’s teaching and research that
justified the decision.

       McKinney then lodged a complaint directly with the
University Provost. Although this was not consistent with the
prescribed Grad School appeal process, the University
investigated and ultimately concluded that McKinney’s salary
reduction was not improper.

        At that point, McKinney filed a complaint in federal
court alleging that the University unconstitutionally deprived
him of his property interest in the entirety of his base salary.
After discovery, the parties cross-filed for summary judgment,
which the District Court granted in favor of McKinney.1 In
support of his motion, McKinney argued that the University’s
“tenure system, policies, and bylaws” created a “property right
to his salary.” McKinney v. Univ. of Pittsburgh, Civil Action
No. 15-1538, 2017 WL 2418689, at *11 (W.D. Pa. June 5,
2017) (quoting ECF No. 25 at 5–6). The University countered

       1
        McKinney’s complaint also included a count alleging
racial discrimination, but McKinney did not oppose the
University’s motion for summary judgment on this claim.




                               6
in its motion that though McKinney had a property interest in
continued employment, he did “not have a constitutionally
protected interest in any set salary.” Id. at *10 (citing ECF No.
21 at 16–17).

       After reviewing the relevant University policies and the
process by which the University reduced McKinney’s salary,
the District Court sided with McKinney, concluding that he
had a property interest in his full salary and that the University
deprived him of that interest without due process. The
University moved to stay the proceeding and filed for
interlocutory appeal, which we granted.2

II.    Jurisdiction and Standard of Review3




       2
         The District Court initially certified to us only the
question of McKinney’s property interest in the entirety of his
base salary, and we granted review as to that question and the
question of whether the process by which the University
reduced McKinney’s salary comported with the Due Process
Clause. Because of the conclusion we reach below, however,
we do not reach the procedural due process issue.
       3
         The District Court had jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction under 28 U.S.C. § 1292(b).
For purposes of the state action doctrine, the parties agree that
“[a]ctions taken by [the University] are . . . actions taken under
color of state law and are subject to scrutiny under section
1983.” Krynicky v. Univ. of Pittsburgh, 742 F.2d 94, 103 (3d
Cir. 1984).




                                7
        We review the District Court’s grant of summary
judgment de novo. Faush v. Tuesday Morning, Inc., 808 F.3d
208, 215 (3d Cir. 2015) (citation omitted). To prevail at this
stage, the moving party must establish 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). We view
all facts “in the light most favorable to the non-moving party,”
with “all reasonable inferences [drawn] in that party’s favor,”
Scheidemantle v. Slippery Rock Univ. State Sys. of Higher
Educ., 470 F.3d 535, 538 (3d Cir. 2006).

III.   Discussion

       On appeal, the University argues that McKinney does
not have a property interest in his full salary because the Policy
does not protect his base salary against reduction. McKinney
also focuses exclusively on the Policy, arguing that the
language of the Policy gives him a constitutionally protected
property interest in his base salary.4 We conclude that the

       4
         On appeal, McKinney has abandoned any argument
that the mere fact of tenured status supports a property interest
in his entire base salary. See Appellee Br. 15 (“Plaintiff does
not contend that his property right to the entirety of his salary
is derived from his tenure status, nor to the mere lack of a
specific policy allowing for salary reductions. Rather, Plaintiff
contends that his property interest in a specific amount of
salary arises directly out of Defendant’s Policy 07-09-01.”).
Nor does he contend that the salary reduction he received was
of sufficient magnitude to implicate the interest a tenured
faculty member at the University would have in continued
employment. See Ferraro v. City of Long Branch, 23 F.3d 803,
806–07 (3d Cir. 1994) (recognizing that adverse employment




                                8
Policy is insufficient to support a constitutionally protected
property interest. Below, we first address what is needed to
establish a property interest in this context and then explain
why the Policy fails to meet that high bar.

        The Fourteenth Amendment protects against
“depriv[ation] of an individual interest [in] . . . property”
without the “due process of law.” Hill v. Borough of Kutztown,
455 F.3d 225, 233–34 (3d Cir. 2006) (quoting Alvin v. Suzuki,
227 F.3d 107, 116 (3d Cir. 2000)). Core to the existence of an
individual property interest is the requirement that the plaintiff
have “a legitimate claim of entitlement to” the interest at issue
that stems from “an independent source such as state law” or
“rules or understandings that secure certain benefits.” Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
Thus, it is not sufficient that a plaintiff has an “abstract need or
desire” or a “unilateral expectation” of a particular benefit. Id.
Instead, the property interest must arise from either the
“circumstances of . . . service” or the “mutually explicit
understandings that support [the] claim of entitlement to the
benefit.” Perry v. Sindermann, 408 U.S. 593, 601–02 (1972).

       The Supreme Court has set a high bar for how “explicit”
an understanding must be in order to support a property
interest. In the context of state universities, for example, the
Court has recognized a property interest in “continued


actions short of termination can “rise to [the] level
of . . . constructive discharge” and thereby implicate an interest
in continued employment); Appellant Br. 35, 37
(acknowledging McKinney’s property interest in continued
employment).




                                 9
employment” where tenured faculty have been expressly
informed that they may be terminated only “for cause.” See
Gilbert v. Homar, 520 U.S. 924, 928–29 (1997) (“[P]ublic
employees who can be discharged only for cause have a
constitutionally protected property interest in their tenure and
cannot be fired without due process.” (citation omitted)). In
other contexts, the Court likewise has found property interests
where it was clear that the expectation was mutual. See
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11–12
(1978) (“Because petitioners may terminate [utility] service
only ‘for cause,’ respondents assert a ‘legitimate claim of
entitlement’ within the protection of the Due Process Clause.”
(footnote omitted)); Goldberg v. Kelly, 397 U.S. 254, 262
(1970) (recognizing a property interest in welfare benefits that
were assured as “a matter of statutory entitlement”). And
conversely, it has declined to recognize such an interest where
the claimants failed to “show[] the requisite mutual
understanding,” even if those claimants could show
“reasonable expectations of” receiving the benefit at issue.
Leis v. Flynt, 439 U.S. 438, 441–43 (1979) (addressing an “out-
of-state lawyer’s [alleged property] interest in appearing pro
hac vice,” where “the prevalence of pro hac vice practice in
America[n] courts” and “not a right granted either by statute or
the Constitution” was the purported basis of the interest).

       Although the Supreme Court itself has not had occasion
to address the contours of a property interest in base salary,
some of our sister circuits have done so, holding that a public
employee may claim such an interest only where there is
explicit assurance to that effect. See, e.g., Roybal v.
Toppenhish Sch. Dist., 871 F.3d 927, 930, 932 (9th Cir. 2017)
(holding that a statute which “limit[ed] the grounds on which
salary may be reduced, create[d] a reasonable expectation that




                              10
[public school] principals w[ould] continue to receive their
salary, and therefore, a protected property right” (citation
omitted)); Atterberry v. Sherman, 453 F.3d 823, 827 (7th Cir.
2006) (holding that a statute protecting against “demotion,”
which was defined in terms of salary reduction, created a
“certain legitimate expectation[]” that the employee “could not
be subjected to reduction in salary or rate”); Sonnleitner v.
York, 304 F.3d 704, 711 (7th Cir. 2002) (holding that a statute
which provided that a state employee “may be removed,
suspended without pay, discharged, reduced in base pay or
demoted only for just cause” created a property interest).

       On the other hand, where there is ambiguity or it is
explicit that a public employee’s salary can be reduced, the
Courts of Appeals do not recognize a property interest in a set
salary. See, e.g., Williams v. Texas Tech. Univ. Health Scis.
Ctr., 6 F.3d 290, 294 (5th Cir. 1993) (holding that tenure
regulations which subjected salary to “possible annual
adjustments” did not create a property interest in a particular
salary        because        the       “‘mutually          explicit
understanding’ . . . rested on periodic . . . salary revisions”);
Ash v. Bd. of Educ. of Woodhaven Sch. Dist., 699 F.2d 822,
826 (6th Cir. 1983) (holding that a reduction in public school
teacher pay following the shortening of a school calendar did
not violate a property interest because the teachers had only a
“unilateral expectation of receiving their full salary”); Childers
v. Indep. Sch. Dist. No. 1 of Bryan Cty., 676 F.2d 1338, 1341
(10th Cir. 1982) (holding that a teacher’s reassignment, which
resulted in a lower salary, did not “deprive[] him of a protected
property interest” because the relevant statutes did not require
that each year’s contract “contain identical terms as those
found in the preceding year’s contract.”). In general, as the
Fifth Circuit has observed, “the more detailed and conditional




                                11
the understanding becomes between employer and employee,
the weaker the linkage becomes between those understandings
and the Due Process Clause.” Williams, 6 F.3d at 293 (citation
omitted).

        Here, we confront a policy that falls somewhere
between the explicit assurances that salary cannot be reduced,
as in the Roybal line of cases, and the explicit admonitions that
it can be reduced, in cases like Williams. McKinney grounds
his claim in a single line in the Policy: “Each faculty or staff
member performing satisfactorily will receive a percentage
increase of the size determined for that year for maintenance
of real salary.” App. 1153. But measured against the yardstick
of Perry and Roth and the case law of our sister circuits, this
language is not sufficient to give McKinney a “legitimate
expectation” in the continuance of his base salary. We reach
this conclusion for three reasons.

        First, the Policy by its terms speaks to a potential
property interest in “maintenance,” i.e., an incremental annual
adjustment to account for inflation, not a property interest in
base salary. “Maintenance” is evaluated annually and thus
relates to a benefit that has not yet been received. McKinney
does not challenge the University’s decision to not award him
a maintenance increase; instead, he elides this prospective
benefit with the continued receipt of an existing benefit: his last
year’s base salary.5 Yet the Policy refers not to base salaries




       5
          In August 2013, McKinney had a possible property
interest in the continued receipt of his $117,350 base salary,
which was set in August 2012, and a possible property interest




                                12
but to maintenance increases, and thus, to the extent it creates
any “mutually explicit understanding,” it is not one that
supports the property interest that McKinney claims on appeal.

        Second, we can hardly derive a “mutually explicit
understanding” from the Policy when McKinney’s entire
argument is premised on a negative implication. His argument,
after all, is that the phrase “increase . . . for maintenance of real
salary,” App. 1153, assumes—and therefore implicitly
guarantees—the baseline of the prior year’s salary. But while
such an assumption about the meaning of “increase” may
support a “unilateral expectation,” Roth, 408 U.S. at 577, about
the baseline salary, it does not protect against the reduction of
salary for purposes of the Due Process Clause. And even
assuming this language is sufficiently ambiguous to render
McKinney’s interpretation a reasonable one, the burden is on
McKinney, as the plaintiff asserting a constitutionally
protected property interest, to establish the converse: that a
policy explicitly prohibits the reduction of base salary. See
Leis, 439 U.S. at 443 (requiring the plaintiffs to “show[] the
requisite mutual understanding” (emphasis omitted)); Roth,
408 U.S. at 579 (noting that the plaintiff had “not shown that
he was deprived of . . . property protected by the Fourteenth
Amendment”). This, he fails to do.

       Third, any assurances the Policy gives, even as to
increases for “maintenance,” are too “detailed and
conditional,” Williams, 6 F.3d at 293, to support a property
interest in the base salary. Indeed, the Policy expressly


in the receipt of an additional $1,760.25 for maintenance of his
salary.




                                 13
anticipates negative consequences for unsatisfactory
performance in that it requires the Grad School to inform
faculty members whose performance is “judged
unsatisfactory” of the “specific reasons for that judgment,”
App. 1154, and it specifies procedures a faculty member may
invoke to seek reconsideration of salary decisions—a
circumstance that can arise in the normal course not only with
salary increases that a faculty member may consider
inadequate but also with salary decreases a faculty member
may wish to contest. And the Policy’s three-tiered rating
structure (meritorious, satisfactory, unsatisfactory) itself
reinforces the understanding that salary may be reduced as well
as increased. Given that the Policy provides for salary
increases beyond “maintenance” for those whose performance
is deemed “meritorious” and an “increase . . . for maintenance
of real salary,” App. 1153, for those whose performance is
deemed “satisfactory,” the logical implication is that those
whose performance is “less than satisfactory,” App. 231, may
be subject to salary reductions. In sum, both the appeal
provisions and the three-tiered rating structure indicate that
salaries are subject to “possible annual adjustments,” Williams,
6 F.3d at 294, and that McKinney thus had no more than a
“unilateral expectation of receiving [his] full salary,” Ash, 699
F.2d at 826.

        The “circumstances of [McKinney’s] service,” Perry,
408 U.S. at 602, bolster that conclusion. There is evidence in
the record that the University had reduced the salary of as many
as twenty faculty members in the past, indicating that
McKinney’s salary reduction was not wholly unusual.
Furthermore, McKinney was notified as early as August 2012
that if his “performance d[id] not improve next year . . . [Dean
Keeler] w[ould] have no recourse but to give [McKinney] a




                               14
0.0% raise or even consider a salary reduction.” App. 233. Yet
McKinney offered no response, and at no point before his
salary was actually reduced over a year later, in September
2013, did he express surprise or object to this prospect. In
short, McKinney has failed to establish any explicit
understanding—much        less      a    “mutually     explicit
understanding”—that his salary was protected against
reduction.

        Finally, we note that where, as here, a university policy
is at best ambiguous in establishing a property interest, courts
should refrain from constructing one. “Judicial interposition
in the operation of the public school system of the Nation raises
problems requiring care and restraint. . . . By and large, public
education in our Nation is committed to the control of state and
local authorities.” Goss v. Lopez, 419 U.S. 565, 578 (1975)
(ellipsis in original) (quoting Epperson v. Arkansas, 393 U.S.
97, 104 (1968)). We have heeded this admonition before, see
Chung v. Park, 514 F.2d 382, 386 (3d Cir. 1975), and because
we are “particularly ill-equipped” to wade into the realm of
“academic decisionmaking,” we will not do so without good
reason. Bd. of Curators of Univ. of Missouri v. Horowitz, 435
U.S. 78, 92 (1978).6 That reason is notably absent here, where




       6
         We are recipients here of an insightful and well-
researched amicus brief by several public universities located
within our Circuit. As that brief highlights, the prospect of
federal courts reviewing “a university’s academic judgment
concerning the performance of a member of its faculty,” Amici
Curiae Br. 5, could inject constitutional rights into an array of
public university decisions about other benefits received by




                               15
the language of the Policy offers too slender a reed to support
the weight of a constitutional right.

IV.    Conclusion

       For the foregoing reasons, we will reverse the District
Court’s order granting summary judgment to McKinney and
will remand with instructions to enter judgment in favor of the
University.




their employees, such as health insurance and paid leave. As a
result, federal courts should not start down this slippery slope.




                               16
