Michelle Thomas v. Delaware State University , 626 F. App'x 384 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-4228
_____________
MICHELLE THOMAS,
Appellant
v.
DELAWARE STATE UNIVERSITY;
LANCE T. HOUSTON, individually and in his official capacity;
AMIR MOHAMMADI, individually and in his official capacity;
OFFICER HEATHER COOKE, individually and in her official capacity
_______________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 10-cv-00522)
District Judge: Honorable Gregory M. Sleet
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 17, 2015
Before: FISHER, CHAGARES, and JORDAN, Circuit Judges.
(Filed: September 21, 2015)
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OPINION
_______________

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Appellant Michelle Thomas asks us to reverse an order of the United States
District Court for the District of Delaware granting summary judgment against her on
claims that Lance Houston and Amir Mohammadi violated her rights under the First
Amendment and the Due Process Clause of the Fourteenth Amendment to the United
States Constitution.1 We will affirm.
I. BACKGROUND2
Thomas was first hired by Delaware State University (“DSU”) in 2001 and is
currently employed as a senior secretary at DSU’s Department of Housing and
Residential Education. She is also a member of the American Federation of State and
County Municipal Employees Local 1007 (“AFSCME” or the “Union”), in which she has
held various leadership positions throughout her employment, eventually becoming the
Union president. In that capacity, Thomas brought grievances against DSU on behalf of
1
At the time the appellees moved for summary judgment, Thomas was asserting
claims against Delaware State University (“DSU”), consisting of constitutional claims
under 42 U.S.C. § 1983 and whistleblower claims under Delaware state law. In her
summary judgment briefing, Thomas conceded that DSU was not amenable to suit under
§ 1983, thus leaving only the state-law whistleblower claims pending against DSU.
Because the District Court dismissed all of Thomas’ federal claims, it declined to
exercise supplemental jurisdiction over the state-law claims and thus dismissed the case
against DSU. Thomas has not advanced any argument in either her opening brief or her
reply brief that the dismissal of the claims against DSU was in error. Accordingly, she
has abandoned any challenge to that portion of the District Court’s decision. See, e.g.,
United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well settled that an
appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of
that issue on appeal.”).
2
The facts are recounted in the light most favorable to Thomas, the non-movant.
See infra n.4.
2
the Union, the majority of which concerned violations of the Collective Bargaining
Agreement. At the time of the events underlying this litigation, Mohammadi was
employed as DSU’s Vice President for Finance and Administration and Houston was
employed as DSU’s Assistant Vice President for Human Resources and Legal Affairs.
Both Mohammadi and Houston have since left DSU.
Between 2005 and 2008, Thomas amassed approximately 20 parking citations for
violations of DSU parking regulations. Based on her failure to pay those parking tickets,
Thomas’s vehicle was one of 193 vehicles added to a DSU tow list. On October 8, 2008,
Heather Cooke, a DSU police officer, arranged to have Thomas’s car towed.3 Although
the precise details are disputed (and irrelevant to this case), some kind of altercation
ensued and Thomas offensively touched Cooke. Thomas’s car was never towed and she
paid the outstanding tickets. Cooke nevertheless spoke with James Overton, the chief of
the DSU police force, and ultimately decided to press charges against Thomas for the
touching incident. Thomas was arrested on November 6, 2008.
After learning that Thomas had been arrested, DSU initiated its own investigation
and Mohammadi scheduled a meeting with her to ascertain her side of the story. On
November 19, 2008, the meeting took place with Thomas, Mohammadi, and an
AFSCME union representative in attendance. Although he believed that Thomas did, in
fact, offensively touch Cooke, Mohammadi apparently decided to wait until the outcome
of Thomas’s criminal proceedings before instituting disciplinary action. In June 2009,
while the criminal charges were still pending but unresolved, Thomas filed a union
3
Cooke did not know at the time that the car belonged to Thomas.
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grievance against Mohammadi’s son, alleging that he had performed work at DSU that
was reserved for union members only. Mohammadi was upset and allegedly told
Thomas’s AFSCME representative that he would “get” Thomas for what she had done.
On December 1, 2009, after several delays, Thomas entered a plea agreement in
her criminal case and thereby admitted to offensively touching a law enforcement officer.
After Mohammadi learned that Thomas had pled guilty to the offense, he sent her a
Notice of Paid Administrative Leave and Intent to Terminate (the “Notice”) on
December 3, 2009. The Notice informed Thomas that she was going to be placed on paid
administrative leave due to her false and misleading statements during DSU’s
investigation of the criminal incident, that DSU intended to terminate her, and that
Thomas had the right to request a pre-termination hearing within three days.
Shortly after receiving the Notice, Thomas requested a pre-termination hearing.
DSU held the pre-termination hearing on January 21, 2010, with Houston conducting the
hearing and Thomas and her AFSCME representative also attending. Thomas argued
that she had not lied about her conduct and that the termination was retaliatory. On
February 9, 2010, Houston issued a notice of termination to Thomas based on the charges
set forth in the December 3 notice, with Mohammadi being the one who ultimately made
the decision to terminate her. After she filed a union grievance, however, Thomas was
reinstated to her position without backpay and returned to work on December 10, 2010.
In this suit, Thomas initially brought claims for First Amendment retaliation,
malicious prosecution, due process violations, false arrest, false imprisonment, and
violations of the Delaware Whistleblower Protection Act, 19 Del. Code § 1703. By
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stipulation, she dismissed all of her claims against Cooke and most of her claims against
the remaining defendants, leaving only section 1983 claims for deprivation of due
process and her First Amendment rights, and certain state-law whistleblower claims. The
remaining defendants – Mohammadi, Houston, and DSU – successfully moved for
summary judgment, and Thomas timely appealed the ruling as to Mohammadi and
Houston.
II. DISCUSSION4
Thomas argues that the District Court erred in dismissing her due process claim
because the pre-termination hearing was insufficient and erred in dismissing her First
Amendment claim because her disclosures were both protected and causally related to her
termination.
A. DUE PROCESS CLAIM
Thomas claims that her dismissal violated her due process rights because she was
terminated without an opportunity to “explain her side of the story.” (Opening Br. at 32.)
As the District Court ruled, however, that is incorrect. In order to establish a due process
violation, Thomas must show that: “(1) [s]he was deprived of an individual interest that is
encompassed within the Fourteenth Amendment’s protection of life, liberty, or
4
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of
summary judgment de novo and “view inferences to be drawn from the underlying facts
in the light most favorable to the nonmoving party.” Montanez v. Thompson, 603 F.3d
243, 248 (3d Cir. 2010) (internal quotation marks omitted). Summary judgment is
appropriate if we are satisfied that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
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property[;] and (2) the procedures available to h[er] did not provide due process of law.”
Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214, 219 (3d Cir. 2009)
(internal quotation marks omitted). Before a public employee may be terminated for
cause, she is entitled to a pre-termination hearing. Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 545-46 (1985). The issue here is the adequacy of the pre-termination
hearing afforded to Thomas.5
The “formality and procedural requisites for the [pre-termination] hearing can
vary,” but, at a minimum, the employee must be given “notice and an opportunity to
respond.” Id. (internal quotation marks omitted). The pre-termination hearing need not
be elaborate and serves only as an “initial check against mistaken decisions.” Id. at 545.
It necessarily includes “oral or written notice of the charges, an explanation of the
employer’s evidence, and an opportunity for the employee to tell h[er] side of the story.”
Gilbert v. Homar, 520 U.S. 924, 929 (1997). The hearing can be informal and “need not
definitively resolve the propriety” of the deprivation. Loudermill, 470 U.S. at 545.
Where there are adequate post-termination remedies available, “[a]n employee is
generally not entitled to notice of the reasons for h[er] discharge in advance of a pre-
deprivation hearing, or to present h[er] case to an impartial decision-maker at such a
hearing.” Schmidt v. Creedon, 639 F.3d 587, 596-97 (3d Cir. 2011) (internal citations
omitted).
5
The parties agree that Thomas had a protected property interest in her
employment and that termination represents a deprivation of that right.
6
Contrary to Thomas’s assertions, the District Court correctly concluded that she
was not terminated on December 3, 2009, the date upon which she received the notice of
intent to terminate. See Riggins v. Goodman, 572 F.3d 1101, 1110 (10th Cir. 2009)
(rejecting public employee’s argument that he was terminated on the date he received a
letter apprising him that his employer intended to terminate him). Rather, her
employment was terminated on February 9, 2010 – indeed, she had been on paid
administrative leave up to that date. Further, the notice and opportunity to respond that
Thomas received were sufficient to comport with due process: she received a letter on
December 3, 2009 informing her of the reasons for the proposed termination, and had a
hearing on January 21, 2010 at which she was represented by an AFSCME delegate and
was able to present argument and evidence on her own behalf in responding to the
charges. This is all that due process requires. Loudermill, 470 U.S. at 545-46.
Although Thomas concedes that the District Court’s conclusion that “a [collective
bargaining agreement] violation d[oes] not necessarily constitute a due process violation”
is “technically correct,” she nonetheless argues that collective bargaining agreements
“exist to protect union employees and ensure that the correct process is followed. To
ignore this is to negate the due process principles contained in the [collective bargaining
agreement].” (Opening Br. at 31.) But, regardless of whether the hearing may have
comported with the requirements set forth in the AFSCME collective bargaining
agreement, it comported with the constitutional requirements of due process. Cf. Shuman
ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 150 n.4 (3d Cir. 2005) (“It is
well-accepted that state law does not ordinarily define the parameters of due process for
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Fourteenth Amendment purposes; rather, the minimum, constitutionally mandated
requirements of due process in a given context and case are supplied and defined by
federal law, not by state law or regulations.” (internal quotation marks omitted));
Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 319 (2d Cir. 2002) (“The Constitution, not
state law sources such as the [collective bargaining agreement], determines what process
is due.”). Accordingly, her due process claim fails.
B. FIRST AMENDMENT CLAIM
Thomas also disagrees with the District Court’s dismissal of her First Amendment
claim. To prevail on such a claim, she must establish: (1) constitutionally protected
conduct, (2) retaliatory action, and (3) a causal connection between the constitutionally
protected conduct and the retaliatory action. Thomas v. Independence Twp., 463 F.3d
285, 296 (3d Cir. 2006). The District Court concluded that Thomas did not engage in
protected activity and that she could not establish a causal connection between said
activity and her subsequent termination. To dispose of this appeal, it is enough to note
our agreement that Thomas did not engage in protected activity.
For a public employee’s speech to be protected, she must have made the
statements as a citizen, the statements must involve a matter of public concern, and the
government employer must not have an adequate justification for treating the employee
differently from a member of the public. Hill v. Borough of Kutztown, 455 F.3d 225,
241-42 (3d Cir. 2006) (citing Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). Here,
Thomas’s union grievances are not protected because they do not involve matters of
public concern. While it is true that union activities may sometimes touch on a matter of
8
public concern, see Clue v. Johnson, 179 F.3d 57, 61 (2d Cir. 1999) (union activities that
“necessarily entail a substantial criticism of management raise matters of public
concern”), it is not the case that all union-related grievances do, Boals v. Gray, 775 F.2d
686, 693 (6th Cir. 1985) (“[A]n employee’s speech, activity or association, merely
because it is union-related, does not touch on a matter of public concern as a matter of
law.”). Thomas’s grievances related to “working conditions and other issues in union
members’ employment,” (App. at 70) and Thomas offers nothing that would transform
those personnel matters into issues of interest to the broader community. Davignon v.
Hodgson, 524 F.3d 91, 101 (1st Cir. 2008) (“Private speech to fellow employees
regarding union activities is not necessarily imbued with … public qualities.”); Campbell
v. Galloway, 483 F.3d 258, 267 (4th Cir. 2007) (“Personal grievances, complaints about
conditions of employment, or expressions about other matters of personal interest do not
constitute speech about matters of public concern that are protected by the First
Amendment, but are matters more immediately concerned with the self-interest of the
speaker as employee.” (internal quotation marks omitted)).6
6
Thomas said she disclosed problems of asbestos and mold at DSU, and that
could, arguably, touch on matters of public concern, Brennan v. Norton, 350 F.3d 399,
415 (3d Cir. 2003) (“[T]he statements regarding exposure of public employees to hazards
such as asbestos can be fairly considered as relating to a matter of concern to the
community.” (internal quotation marks, brackets, and alterations omitted)), but she offers
absolutely no evidence that she ever filed grievances or made any disclosures regarding
the alleged contamination. Her unsupported deposition testimony, which is contradicted
by the record, is insufficient to defeat summary judgment. N.L.R.B. v. FES, (a Div. of
Thermo Power), 301 F.3d 83, 95 (3d Cir. 2002) (“Roche’s testimony … amounts to an
unsupported, conclusory assertion, which we have held is inadequate to satisfy the
movant’s burden of proof on summary judgment.”); see also Arrington v. United States,
473 F.3d 329, 343 (D.C. Cir. 2006) (“[S]ummary judgment is most likely when a
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III. CONCLUSION
For the forgoing reasons, we will affirm the ruling of the District Court.
plaintiff’s claim is supported solely by the plaintiff’s own self-serving testimony,
unsupported by corroborating evidence, and undermined … by other credible evidence…
.” (internal quotation marks and emphasis omitted)); Brooks v. Am. Broad. Cos., Inc., 999
F.2d 167, 172 (6th Cir. 1993) (“As with a summary judgment analysis, the district court
was not required to accept unsupported, self-serving testimony as evidence sufficient to
create a jury question.”); cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)
(“The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.”).
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