                                                             NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                    No. 18-3115
                                    __________

   JOHN SARANCHUK; JAMIE SARANCHUK; JOHN R. MACIOLEK; TAMMY
        MACIOLEK; JASON KWIATKOWSKI; AMY KWIATKOWSKI;
                        CHARLES YARICK,
                                  Appellants

                                          v.

  DAN LELLO, individually in his personal capacity and as Mayor of the Borough of
Dupont; STANLEY KNICK, Jr., individually in his personal capacity and as President of
   the Council of the Borough of Dupont; MARK KOWALCZYK, individually in his
personal capacity, as Vice Chairperson of the Council of Dupont Borough and as head of
 the Police Commission; JOSEPHINE HANSEN, individually in her personal capacity
   and as a member of the Police Commission and Council of the Borough of Dupont;
 BERNARD ZIELINSKI, individually in his personal capacity and as a member of the
Council of Dupont Borough; SEAN MURRAY, individually in his personal capacity and
    as Chief of Police of the Borough of Dupont; BOROUGH OF DUPONT, Luzerne
                                  County, Pennsylvania
                                      __________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                              (D.C. No. 3-15-cv-00893)
                     District Judge: Hon. Malachy E. Mannion
                                    __________

                                Argued June 11, 2019

           Before: HARDIMAN, KRAUSE, and PORTER, Circuit Judges.

                                (Filed: July 19, 2019)
Andrew J. Katsock, III       [ARGUED]
15 Sunrise Drive
Wilkes-Barre, PA 18705

       Attorney for Appellants


David J. MacMain          [ARGUED]
Laurie A. Fiore
MACMAIN LAW GROUP LLC
433 West Market Street, Suite 200
West Chester, PA 19382

       Attorneys for Appellees


                                        __________

                                         OPINION *
                                        __________


PORTER, Circuit Judge.

       Appellants are four police officers who worked for the Borough of Dupont,

Pennsylvania. They contend that, because they were members of the local police union,

the Borough either terminated their employments or severely cut their hours. And this

retaliation, they say, violated their property interests under the union’s collective

bargaining agreement with the Borough and the Due Process Clause of the Fourteenth

Amendment. The District Court held that the Borough did not violate the officers’

procedural due process rights because the officers did not have constitutionally protected

property interests in their continued employment. We disagree. We will affirm in part,


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                              2
reverse in part, and vacate in part the District Court’s decision and remand for further

consideration.

                                             I1

       John Saranchuk, John Maciolek, Jason Kwiatkowski, and Charles Yarick were

police officers with the Borough of Dupont, Pennsylvania. Each of them was a member

or officer of the Dupont Borough Police Officers’ Association (“Union”). The Union

negotiated a collective bargaining agreement (“CBA”) with the Borough that was

effective from January 1, 2013 through December 31, 2016.

       The Borough paid the officers by the hour and did not guarantee the officers any

number of work hours per week. None of the officers had employment contracts with the

Borough. Instead, their shifts were determined on a month-to-month basis by the Officer

in Charge, who, from early 2011 to August 2014, was Saranchuk. In general, the Officer

in Charge had absolute discretion to set the monthly schedule, prorating hours among

officers roughly by availability, seniority, and competency.

       In August 2014, the Borough appointed Sean Murray to be the new Officer in

Charge of the Borough police department, replacing Saranchuk. Saranchuk was told not

to come back to work until further notice. A few days later, Saranchuk received notice

from the Borough Council to attend a “meeting … regarding a Luzerne County District



       1
         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
appellate jurisdiction under 28 U.S.C. § 1291. We exercise de novo review over the
District Court’s grant of summary judgment, “viewing the facts in a light most favorable
to the nonmoving party, and applying the same standard that guides our district courts.”
Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008).
                                             3
Attorney’s detective investigation.” Supp. App. 251. That meeting—which the Borough

called a “Loudermill hearing”—was rescheduled twice. Supp. App. 250–52. When

Saranchuk finally met with the Borough, he was told that the hearing had to be

rescheduled yet again and that he would be provided with written accusations against

him. He alleges that his employment was terminated shortly after that, without a hearing,

because of his association with the Union. The Borough contends that Saranchuk was

terminated for misconduct.

       The other officers allege that the Borough similarly retaliated against them.

Maciolek asserts that his hours were cut within a few weeks of Murray’s appointment and

that he was terminated shortly thereafter. Kwiatkowski says that his hours were reduced

significantly, starting around October 2014, until he was “[e]ffectively” terminated in

May 2015. Supp. App. 527. And Yarick contends that his hours were repeatedly cut by

the Borough and eventually reduced to zero in early 2016. For its part, the Borough says

that Maciolek and Kwiatkowski were not actually terminated; they were simply not

scheduled for shifts because they were unresponsive or incompetent.

       The officers sued the Borough, the Borough Council’s members, the Borough’s

mayor, and Sean Murray in May 2015, asserting a dozen claims under 42 U.S.C. § 1983,

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978), and state

common law. 2 In particular, the officers alleged that the Borough violated their

procedural due process rights under the Fourteenth Amendment by terminating their


       2
       We refer to the various defendants-appellees collectively as simply the
“Borough.”
                                             4
employments or significantly cutting their hours with no associated process. After some

discovery, the Borough moved for summary judgment.

       Ultimately, the District Court rejected all the officers’ claims. As relevant here, the

District Court found that the Borough did not violate the officers’ procedural due process

rights because, under the CBA, the officers had no constitutionally protected property

interest in their continued employments. And, given that lack of a property interest, the

Court declined to “undertake an inquiry into the adequacy of the procedures that were

provided to the plaintiffs.” App. 22. The officers 3 timely appealed. 4

                                              II

       Our procedural due process analysis proceeds in two steps. First, we determine

whether the officers had a constitutionally protected property interest in their continued

employment. See Wilson v. MVM, Inc., 475 F.3d 166, 177 (3d Cir. 2007). If the answer is

yes, “we then must decide what procedures constitute ‘due process of law’” and whether



       3
          The notice of appeal also names three of the officers’ spouses as Appellants.
App. 1. But the spouses do not challenge the District Court’s decisions on any of their
state-law claims. And the spouses have never asserted that they have constitutionally
protected property interests at issue here or that the Borough violated their due process
rights. So even though the spouses are putative appellants, they have no claims at issue in
this appeal.
        4
          The officers purported to appeal the District Court’s decision only as it related to
four of their twelve claims. At oral argument, the officers’ counsel conceded that they
contest the District Court’s judgment only on their procedural due process and Monell
claims. So we address only those claims in this opinion. (The officers’ other two claims
are meritless anyway. Their substantive due process claim fails for lack of a fundamental,
constitutionally protected property interest. See Nicholas v. Pa. State Univ., 227 F.3d
133, 139–41 (3d Cir. 2000). And their civil rights conspiracy claim fails because they
cannot show any evidence of “invidious” discrimination. See Farber v. City of Patterson,
440 F.3d 131, 134, 143 (3d Cir. 2006).)
                                              5
the officers received such procedures. Dee v. Borough of Dunmore, 549 F.3d 225, 229

(3d Cir. 2008) (internal quotation marks and citation omitted).

       Employees like the officers do not automatically have protected property interests

in their jobs. That is, they “must have a legitimate entitlement to [their] continued

employment,” and not merely a “unilateral expectation.” Wilson, 475 F.3d at 177

(internal quotation marks and citation omitted). Whether the officers had such an

entitlement turns on state law—here, Pennsylvania. See Kelly v. Borough of Sayreville,

107 F.3d 1073, 1077 (3d Cir. 1997) (“State law creates the property rights protected by

the Fourteenth Amendment.”). And because the officers disclaimed at oral argument any

reliance on Pennsylvania statutes, 5 their only resort is to the CBA. See Pipkin v. Pa. State

Police, 693 A.2d 190, 192 (Pa. 1997) (“A governmental employee only has a personal or

property right in his employment where he can establish a legitimate expectation of

continued employment through either a contract or a statute.”).

       Article 19, Section 1 of the CBA provides:

              No full-time Police Officer or regular part-time Police Officer
              covered by this Agreement shall be discharged, suspended or
              demoted, or otherwise disciplined, except for just cause, and


       5
         The officers asserted in supplemental briefing that they also had constitutionally
protected property rights to their continued employments under the Pennsylvania
Borough Code and the Police Tenure Act. Appellant’s Supp. Letter Br. 2–3 (citing 53 Pa.
Stat. §§ 811, 812; 8 Pa. Cons. Stat. § 1101). They expressly waived this contention at oral
argument, so we take no position on it here. We note, however, that whether the officers
would otherwise count as members of a “police force,” or whether they would be
excepted from that definition because they are “[e]xtra police serving from time or time
or on an hourly or daily basis,” 8 Pa. Cons. Stat. § 1170(4), is an open question. The
Pennsylvania Supreme Court has granted a petition for certification on this issue in
DeForte v. Borough of Worthington, 189 A.3d 390 (Pa. 2018) (table).
                                              6
              the Borough shall state the reason for just cause, in writing, at
              the same time such action is taken.

Supp. App. 778. Under our precedent, this provision creates a constitutionally protected

property interest in the officers’ continued employments. Wilson, 475 F.3d at 177 (“In the

governmental context, … employment contracts that contain a ‘just cause’ provision

create a property interest in continued employment.” (citing Kelly, 107 F.3d at 1077)

(other citation omitted)); Dee, 549 F.3d at 231; Unger v. Nat’l Residents Matching

Program, 928 F.2d 1392, 1399 (3d Cir. 1991) (explaining that a constitutionally

protected “property interest arises where the contract itself includes a provision that the

state entity can terminate the contract only for cause”). Put simply, the CBA guaranteed

that the Borough could not “discharge[], suspend[] or demote[], or otherwise discipline[]”

the officers without “just cause.” Supp. App. 778. That guarantee is sufficient to confer a

constitutionally protected property interest.

       Yet the contours of that interest are hazy. The Borough regularly emphasized to

the officers that they were not guaranteed any hours of work. And the CBA nowhere

guarantees hours either. So although the officers had an interest not to be “discharged,

suspended or demoted, or otherwise disciplined” without “just cause,” it is unclear

whether a reduction in not-guaranteed hours would impinge on that interest.

       On remand, the District Court should take three steps. First, it should determine

whether, in view of the officers’ variable month-to-month schedules, the officers’

reduction in hours was a form of “discipline,” or was dramatic enough to constitute a

“demotion,” “suspension,” or constructive “discharge.” Supp. App. 778; see Ferraro v.


                                                7
City of Long Branch, 23 F.3d 803, 806–07 (3d Cir. 1994) (recognizing that “constructive

discharge” may constitute a deprivation of a protected property interest). If so, the Court

should next decide whether “extraordinary circumstances” rendered pre-deprivation

process infeasible. Schmidt v. Creedon, 639 F.3d 587, 597 (3d Cir. 2011); see Dee, 549

F.3d at 233. And lastly, if an officer suffered only “discipline” or “demotion” under the

CBA, the Court should decide whether these adverse actions even trigger the Due Process

Clause’s protections as a matter of federal constitutional law. See Town of Castle Rock v.

Gonzales, 545 U.S. 748, 757 (2005); see also, e.g., Perez v. Cucci, 725 F. Supp. 209, 243

(D.N.J. 1989) (finding property interest in not being demoted), aff’d mem., 898 F.2d 142

(3d Cir. 1990).

       The Borough contends that “[n]o [p]rotections [a]ttach to [the officers] [u]nder

Article 19, Section 1” because the officers “waived their right[s] to proceed” under that

section by failing to complete the formal grievance process under the CBA. 6 Appellees’

Supp. Letter Br. 9–10. Put differently, the Borough thinks that because the officers did

not seek to validate their interests through arbitration under the CBA, they never had any

protected property interests in the first place. But this conflates the two parts of our

procedural due process analysis. First we examine whether a property interest exists; only

after answering that question do we turn to whether grievance procedures (if any) were

adequate or availed. Dee, 549 F.3d at 229. Our answer at the first step is not contingent



       6
        Article 19, Section 2 provides that “whether ‘JUST CAUSE’ exists” under
Section 1 “shall be subject to the grievance/arbitration procedure” in Article 17. Supp.
App. 778.
                                              8
on whether, at the second step, the plaintiffs adequately pursued available procedures. In

short, whether the officers arbitrated their claims says nothing about whether the officers

had a property interest entitling them to pre-deprivation process.

       The Borough’s waiver argument is incorrect anyway. The grievance procedure

under the CBA is designed to sort out “whether ‘JUST CAUSE’ exist[ed]” for the

Borough to take adverse employment action against an officer only after the fact. Supp.

App. 777–78. Yet, “absent extraordinary circumstances, due process requires notice and a

hearing prior to suspension without pay, even where union grievance procedures, after

the fact, fully compensate erroneously suspended employees.” Schmidt, 639 F.3d at 597;

see Dee, 549 F.3d at 233 (“Only in extraordinary situations where some valid

government interest is at stake is it permissible to postpone the hearing until after the

deprivation has already occurred.” (internal quotation marks and citations omitted)).

       Ordinarily, our next steps would be to determine whether the Borough in fact

infringed on the officers’ protected interests, and, if so, whether the officers received

sufficient pre-deprivation process under the Fourteenth Amendment. See, e.g., Dee, 549

F.3d at 232–33; Wilson, 475 F.3d at 178–79. But because the District Court stopped at

step one, and given the remaining factual disputes in the record, we decline to take these

next steps here. See Dee, 549 F.3d at 233. Instead, we will simply reverse the District

Court’s initial determination that the officers lacked a constitutionally protected property

interest under the CBA and remand for consideration of the remaining Procedural Due

Process analysis consistent with this opinion.



                                              9
         To be clear, we take no position on whether the officers other than Saranchuk

were in fact “discharged, suspended or demoted, or otherwise disciplined” under Article

19. Supp. App. 778. Nor do we express an opinion on whether, assuming the officers’

property interests were derogated, the Borough afforded the officers sufficient due

process. The District Court is better suited to answer these questions in the first instance

on remand. And any conclusions by the fact-finder will inform the District Court’s legal

determination of what process each officer may have been due. See Midnight Sessions,

Ltd. v. City of Phila., 945 F.2d 667, 682–84 (3d Cir. 1991), abrogated on other grounds

by United Artists Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 400–01 (3d Cir.

2003).

         Finally, because the officers’ Monell claim may rise or fall with their procedural

due process claim under § 1983, we take no position on it here. We will vacate the

District Court’s decision on that claim and remand it as well.

                                     * * * * *

         For these reasons, we will affirm the District Court’s decision on the officers’

substantive due process and conspiracy claims. We will reverse the District Court’s initial

determination that the officers had no constitutionally protected property interest under

the CBA. And we will vacate the District Court’s decision on the officers’ Monell claim.

We will remand the officers’ procedural due process and Monell claims to the District

Court for further consideration consistent with this opinion.




                                              10
