                                                               NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                             ___________

                                      No. 08-4687
                                      ___________

                                     ERIC VIOLA,
                                                               Appellant

                                            v.

                    BOROUGH OF THROOP; TOM LUKASEWICZ,
                    Individually and as Council President; STANLEY
                 LUKOWSKI, Individually and as Mayor; NEIL FURIOSI,
                  Individually and as Chief of Police; TONY CHAZAN,
                           Individually and as Council President

                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                               (D.C. Civil No. 3-cv-1930)
                     District Judge: Honorable James M. Munley
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)

                                    February 1, 2010

        Before: McKEE, Chief Circuit Judge, HARDIMAN, Circuit Judge, and
                              Pollak, District Judge *

                              (Opinion filed: July 22, 2010)
                                       _________
                                       OPINION
                                       _________



   *
     The Honorable Louis H. Pollak, Senior District Judge for the United States Court for
the Eastern District of Pennsylvania, sitting by designation.
McKEE, Chief Judge

       Eric Viola appeals the district court’s grant of summary judgment in favor of the

defendants: the Borough of Throop, Stanley Lukowski, Neil Furiosi, Tony Chazan, and

Tom Lukasewicz (referred to collectively as “Defendants”), in the civil rights action he

brought against them under 42 U.S.C. § 1983. In that suit, he alleged that: (1) his

suspension violated his right to due process,1 and (2) Defendants violated his First

Amendment rights by retaliating against him for filing a grievance. For the reasons set

forth below, we will affirm the grant of summary judgment on Viola’s First Amendment

claim but vacate summary judgment on Viola’s due process claim and remand for further

proceedings.

                                             I.



   1
     In their motion to strike, Viola’s appeal of the district court’s August 5, 2008 order,
Defendants argues that we should not consider Viola’s due process claims because
Viola’s notice of appeal did not “designate the judgment, order, or part thereof being
appealed.” Fed. R. App. P. 3(c)(1)(A). Defendants claims that Viola’s notice of appeal
only specifies the district court’s order dated October 31, 2008, regarding Viola’s motion
for reconsideration and not the district court’s August 5, 2008 order granting Throop’s
motion for summary judgment. The argument is meritless. First, we construe the
requirements of Rule 3(c) liberally. United States v. Carelock, 459 F.3d 437, 441-42 (3d
Cir. 2006). Second,“the appeal from a final judgment draws into question all prior non-
final orders and rulings which produced the judgment.” Elfman Motors, Inc. v. Chrysler
Corp., 567 F.2d 1252, 1253 (3d Cir. 1977). In addition. we can exercise appellate
jurisdiction over “orders that are not specified in the notice of appeal where: “(1) there is
a connection between the specified and unspecified orders; (2) the intention to appeal the
unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full
opportunity to brief the issues.” Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139, 144
(3d Cir. 1998).


                                              2
       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a grant of summary judgment, applying the same standard as the district court. Erie

Telecomms., Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir. 1988). Under Fed. R. Civ.

P. 56(c), a party is entitled to summary judgment “if 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.”

                                             II.

       As we write primarily for the parties who are familiar with the facts of this case,

we need not recite the factual or procedural history in detail. As just noted, Viola argues

that his suspension violated his right to due process of law. “[O]nce it is determined that

the Due Process Clause applies, ‘the question remains what process is due.’” Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (quoting Morrissey v. Brewer, 408

U.S. 471, 481 (1972)). “Due process is flexible and calls for such procedural protections

as the particular situation demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997)

(quotation omitted).

       After the district court granted summary judgement on Viola’s claims, we decided

Dee v Borough of Dunmore, 549 F.3d 225 (3d Cir. 225). There, the Borough suspended

Dee from his position as a firefighter without notice or hearing based upon the Borough’s

belief that he was not qualified to serve as a paid firefighter. Dee sued under § 1983

alleging (inter alia) that the Borough’s action deprived him of his right to due process.



                                              3
The district court granted summary judgment in favor of the Borough based upon its

conclusion that the alleged property interest was not entitled to the procedural protections

guaranteed by the Fourteenth Amendment. Dee had defined his protected property

interest as the right of “‘not being suspended without just cause.’” 549 F.3d at 229.

       We reversed the district court’s dismissal of that due process claim. We held that

53 Pa. Stat. § 46190 created a sufficient property interest in not being terminated without

just cause to warrant the protection of the Due Process Clause.2 We also held that Dee’s

property interest was not mitigated by the fact that he had merely been suspended, and not

terminated.

       Since the district court here did not have the benefit of the analysis in Dee, we will

vacate the order granting summary judgment on Viola’s Fourteenth Amendment due

process claim so that the court can reconsider that claim in light of our analysis in Dee.

The court’s inquiry on remand will include an analysis of the factors set forth in Mathews

v. Eldridge, 424 U.S. 319, 335 (1976) in the context of the property interest recognized in

Dee. That inquiry requires a heightened government interest where the government

provides process only after the deprivation. Dee, 549 F.3d at 233.

                                            III.

       Viola also argues that Throop violated his First Amendment rights by retaliating



   2
     Dee was also protected from an “at will” termination by the terms of a collective
bargaining agreement. However, that additional consideration was not determinative
there, and it is not relevant to our analysis here.

                                              4
against him for filing a grievance pertaining to his suspension. In order to establish a

First Amendment retaliation claim, a public employee must allege facts that show “(1)

that the activity in question is protected by the First Amendment, and (2) that the

protected activity was a substantial factor in the alleged retaliatory action.” Hill v.

Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (citations omitted). The district

court found that Viola “presented no evidence by which a jury could conclude that his

filing of a grievance was a ‘substantial motivating factor’ in the decision to suspend him

without pay.” Viola v. Borough of Throop, 06 Civ. No. 1930, 2008 WL 4793744, *6

(M.D. Pa. Oct. 31, 2008) (“Viola II”) (quoting San Filippo v. Bongiovanni, 30 F.3d 424,

446 (3d Cir. 1994)). The district court also concluded that “even if a jury could find that

the filing of the grievance was a substantial motivating factor in the decision to suspend

plaintiff without pay, plaintiff has not presented any facts by which a jury could discount

the defendants’ evidence that plaintiff’s suspension came because he had failed properly

to perform his duties as a police officer.” Id. We agree. Accordingly, we will affirm the

dismissal of Viola’s First Amendment claim for retaliation.

                                             IV.

       For the foregoing reasons, we will affirm the order dismissing Viola’s First

Amendment claim, but vacate the order dismissing his due process claim, and remand for

further proceedings.




                                               5
