In revisiting the analysis employed with respect to the plaintiff's Title VII claim and to the extent that the complaint states a cause of action under Section 1981, we similarly must conclude that Mr. O'Brien has failed to offer even a scintilla of evidence to rebut that provided by the defendant that the decision not to hire him was grounded upon a legitimate business reason which was in no way related to his race. Summary judgment shall therefore be entered in favor of the defendant as to the § 1981 claim as well.
4. Plaintiff's Claim Under the Fourteenth Amendment
Insofar as the plaintiff's amended complaint includes allegations to the effect that the police department's rejection of his employment application on the basis of the allegations of his mother-in-law deprived him of his rights to due process of law, it appears that the plaintiff has also endeavored to plead a cause of action under the Fourteenth Amendment to the United States Constitution. Upon close and careful scrutiny of the existing record in this matter, however, we find that summary judgment is appropriately entered in Defendants' favor on this claim as well. It is well established that the requirements of due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property and when protected interests are implicated, the right to some kind of prior hearing is paramount. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-570, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548 (1972). To determine whether due process requirements apply in the first place, the nature of the interest at stake must be examined. Id., 408 U.S. at 571, 92 S. Ct. at 2706.
A property interest in employment will be found to exist where state law supports a claim of entitlement to continued employment. Bradley v. Pittsburgh Board of Education, 913 F.2d 1064, 1078 (3rd Cir. 1990). Permanent employment status, by itself, is not a property right. Braderman v. Pennsylvania Housing Finance Agency, 598 F. Supp. 834, 841 (M.D.Pa. 1984) citing, inter alia, Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976). A property interest in state employment exists where an employee has a legitimate claim of entitlement to such employment under state law, policy or custom. An employee, however, must have more than an abstract type of unilateral expectation. Sanguigni v. Pittsburgh Board of Public Education, 968 F.2d 393, 401 (3rd Cir. 1992).
Similarly, to state a valid claim of a protected liberty interest, a plaintiff must plead and prove that the allegedly stigmatizing information was published or otherwise disseminated by his government employer to the public. Anderson v. City of Philadelphia, 845 F.2d 1216, 1222 (3rd Cir. 1988); Chabal v. Reagan, 841 F.2d 1216, 1223 (3rd Cir. 1988). Again, however, neither a liberty nor a property interest in public employment can be found to exist unless such interest is created by state law or some similar independent source. Thus, to prevail, the plaintiff must show that under Pennsylvania law, he had a legitimate claim of entitlement to employment as a city policeman. Anderson, at 1220. In the instant case, Mr. O'Brien has provided this court with no evidence and no state law authority which could be construed to confer upon him a liberty or property interest in his application to become a Philadelphia police officer. Moreover, nowhere in plaintiff's pleadings are there any allegations that the city defendants published or notified any third party or the public about its reasons for rejecting Mr. O'Brien's application nor is it alleged that Mr. O'Brien suffered any harm as the result of the denial of his application with the exception of the fact that he did not receive the city policeman's job which he desired. Rather, the record indicates that prior to his application, Plaintiff was employed as a SEPTA policeman and that he remains so employed today.
Finally, we also note that as the plaintiff's amended complaint and the affidavit of John P. Straub both indicate, Mr. O'Brien was given the opportunity and did appear before the Police Department's Review Board to explain the allegations made by his mother-in-law and the circumstances surrounding the entering of the Protection From Abuse Order by his wife and the lawsuit against him and another SEPTA officer for use of excessive force. Accordingly, we cannot find that the plaintiff will be able to make out a case against these defendants for a violation of his Fourteenth Amendment rights and summary judgment shall therefore be entered in favor of the defendants and against the plaintiff on all of the claims presented in his amended complaint pursuant to the following order.
AND NOW, this 22nd day of November, 1993, upon consideration of Defendants' Motion for Summary Judgment and Plaintiff's Response thereto, it is hereby ORDERED that the Motion is GRANTED and Judgment in no amount is hereby entered in favor of the defendants and against the plaintiff on all claims raised in the plaintiff's amended complaint.
BY THE COURT:
J. CURTIS JOYNER, J.
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