for veterans when the interview team deemed the remaining candidates
A recent case, Zablow v. Bd. of Educ. of Sch. Dist. of Pittsburgh, is
further instructive. 729 A.2d 124 (Pa.Cmwlth. 1999). The Zablow plaintiff
was not hired because he was not one of the three highest ranked
applicants. Id. In Zablow, no candidate was considered qualified unless he
or she ranked, ultimately, among the top three. Plaintiff points out that
a veteran candidate thus qualified would be preferred automatically over
the other two candidates, regardless of their standing relative to each
other. The procedure in Zablow is analogous to the one in this case, in
which the School Board winnows the candidates to a select group of
qualified individuals, and then applies a preference for any veteran
remaining in that group. Whether or not the School District "places
another step in the process," Pl.'s 7/30/99 Reply Br. at 5, compared to
the process at issue in Zablow is irrelevant to whether the hiring
process was valid as required by veterans' preference law.
Finally, we note that Plaintiffs argument that Defendants' hiring
method was not compliant with the VPA relies for the most part on the
Brickhouse concurrence. This reliance is misplaced, for the Brickhouse
court did not adopt the concurring opinion, and that opinion is not
controlling law. Plaintiffs frequent reference to the concurrence as the
holding of the court is misleading at best; his nebulous arguments based
thereon, about the proper and improper use of various subjective
criteria, are unsupported by precedent.
Although Mr. Basile's accomplishments, as those of the Brickhouse
plaintiff, appear to be many, he is not accomplished in the particular
manner sought by the Defendants. See Brickhouse at 488. We agree with
Plaintiff that it appears he was more qualified for the positions to
which he applied than was the plaintiff in Brickhouse, and his
qualifications were obviously apparent to the Defendants, who passed him
through several rounds in the application process. Nonetheless, his
accomplishments fail to satisfy the reasonable criteria required by the
Defendants. Therefore, he cannot receive the benefit of the VPA.
2. Remaining Claims
Plaintiffs remaining claims, brought under the Fifth, Eighth and Ninth
Amendments of the United States Constitution, have no merit. The due
process clause of the Fifth Amendment is limited to acts of the federal
government and has no application to state government actions. See
Bartkus v. Illinois, 359 U.S. 121, 124, 79 S.Ct. 676, 3 L.Ed.2d 684
(1959); Shoemaker v. City of Lock Haven, 906 F. Supp. 230, 237-38
(M.D.Pa. 1995); Shepherdson v. Nigro, 5 F. Supp.2d 305, n. 2 (E.D.Pa.
1998). The Eighth Amendment applies only to prisoners who have been
convicted of a crime and is irrelevant to the instant case. Ingraham v.
Wright 430 U.S. 651, 664-665, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977);
Whitley v. Albers, 475 U.S. 312, 318, 106 S.Ct. 1078, 89 L.Ed.2d 251
(U.S. 1986); Cerva v. Fulmer, 596 F. Supp. 86, 89 (E.D.Pa. 1984).
Finally, the Ninth Amendment does not confer substantive rights in
addition to those conferred by other portions of our governing law, and
does not independently secure a constitutional right for purposes of
pursuing a civil rights claim. See Strandberg v. City of Helena,
791 F.2d 744, 748 (9th Cir. 1986); Quilici v. Village of Morton Grove,
695 F.2d 261, 271 (7th Cir. 1982); U.S. v. LeBeau, 985 F.2d 563, 1993 WL
21970 (7th Cir. 1993). Rather, the Ninth Amendment serves to protect
fundamental rights that are not set forth in the Constitution. Charles
v. Brown, 495 F. Supp. 862, 863 (N.D.Ala. 1980); see also Gibson v.
Matthews, 926 F.2d 532 (6th Cir. 1991). Plaintiff has failed to identify
any abridged fundamental right implicitly guaranteed by the Ninth
Amendment, and cannot maintain the claim.
3. Qualified Immunity
Because Plaintiff has not proven a violation of a constitutional
right, it is unnecessary for this court to rule on Defendants'
affirmative defense that qualified immunity protects them from
liability. Nevertheless, we conclude that qualified immunity would
protect the individual Defendants even if Plaintiffs constitutional rights
had been violated.
The Supreme Court established the standard for qualified immunity in
Harlow v. Fitzgerald, holding that "government officials performing
discretionary functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would
have known." 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982);
see also Thompson v. Burke, 556 F.2d 231, 240 (3d Cir. 1977) (officials
performing administrative or investigatory functions may be entitled to a
qualified immunity). The inquiry first requires us to examine whether the
conduct of the individual Defendants violated constitutional rights
"clearly established at the time the action occurred." See Harlow at
818-19, 102 S.Ct. 2727. If so, then the court must address whether an
objectively reasonable person in the position of any of the Defendants
would have known that his or her conduct was violative of such
constitutional rights. See id. The immunity is available even where
officials "of reasonable competence could disagree" as to whether the
conduct complained of was objectively reasonable. See Malley v. Briggs,
475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
The Supreme Court has explained the meaning of "clearly established"
law for the purposes of a qualified immunity inquiry:
The contours of the right must be sufficiently clear
that a reasonable official would understand what he
is doing violates that right. This is not to say
that an official action is protected by qualified
immunity unless the very action in question has
previously been held unlawful, but it is to say . . .
the unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523
(1987) (citation omitted). The Third Circuit has held that a law cannot
be regarded as clearly established when there is a lack of substantially
similar authority on point. See Sharrar v. Felsing, 128 F.3d 810, 828-829
(3d Cir. 1997); Johnson v. Horn, 150 F.3d 276, 286 (3d Cir. 1998); Pro
v. Donatucci, 81 F.3d 1283, 1292 (3d Cir. 1996). Indeed, qualified
immunity protects "all but the plainly incompetent or those who knowingly
violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89
L.Ed.2d 271 (1986).
In the instant case, Plaintiff has not shown and no facts indicate that
Dr. Allan L. Thrush, Debra Weaver, Steven Houser, Carol Myers, Robert L.
Enk, Barbara A. Hippensteel, A. John Larue, Carol A. Miller, Michael S.
Moulds, Jamie H. Rowley, Andrew L. Saylor, Thomas M. Troutman, or
Kathleen Weaver were knowingly violating a constitutional right during
the School District's interview and hiring process. Given that the
existence of a property right in VPA § 7104(a) was not explicitly
decided prior to the instant case, see supra, III.A.1., there was no
established right at the time of Plaintiffs applications. No reasonable
public official could have known that denying a veteran a preference would
violate that veteran's property right. See Anderson at 640, 107 S.Ct.
Moreover, we found that although a property right is created by VPA
§ 7104(a), Plaintiff was not entitled to that right. See supra,
III.A.1. We also found that there is no constitutional right under the
Fifth, Eighth or Ninth Amendments in connection with Plaintiffs alleged
injuries. See supra, III.A.2. A necessary concomitant to the
determination of whether the constitutional right asserted by a plaintiff
is clearly established is whether the plaintiff has asserted a violation
of a constitutional
right at all. See Siegert v. Gilley, 500 U.S. 226, 233, 111 S.Ct. 1789,
114 L.Ed.2d 277 (1991); County of Sacramento v. Lewis, 523 U.S. 833, 118
S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Because the actions complained of by
the Plaintiff do not approach the level of a constitutional violation,
the officials involved would clearly be entitled to qualified immunity
even if a constitutional right under § 7104(a) were clearly
established. See In re City of Philadelphia Litig., 158 F.3d 711, 719 (3d
As the threshold issues for our qualified immunity analysis are whether
the constitutional right asserted by Plaintiff was clearly established at
the time any one of the Defendants acted, see Siegert at 232, 111 S.Ct.
1789, and if so, whether or not Defendants' actions violated that right,
this court need not move to the analysis of whether the officials'
conduct was objectively reasonable. See Johnson v. Horn, 150 F.3d 276,
286 n. 7 (3d Cir. 1998).
4. Municipal Liability
A § 1983 charge against a municipality or state officials acting in
their official capacities invokes an analysis entirely different from one
determining the liability of an individual state actor. Although local
governments and governmental entities cannot be sued for vicarious
liability as an employer under § 1983, they are not accorded the
protection of qualified immunity, and may be held liable for
constitutional violations caused by an official policy or custom of the
municipality. See Monell v. Dep't of Social Servs., 436 U.S. 658, 691,
694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Owen v. City of Independence,
445 U.S. 622, 650, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Therefore, the
School District and the Board are subject to § 1983 liability. See
Monell at 690-91, 98 S.Ct. 2018; see also 24 P.S. § 2-211.
Moreover, because suing state officials in their official capacity is
equivalent to suing the municipality itself, see Kentucky v. Graham,
473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), such
officials may similarly be held liable for instituting an official policy
or custom of the municipality. Monell at 694, 98 S.Ct. 2018. Only those
municipal officers and employees who have final policymaking authority
can by their actions subject their municipal employers to § 1983
liability, however. Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80,
106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). It is unclear from the facts which
if any of the individual Defendants had policymaking authority; yet such
a determination is unnecessary, as Plaintiff has failed to prove that any
of the alleged improper actions were taken pursuant to an established
policy, practice or custom. See Bell v. City of Milwaukee, 746 F.2d 1205,
1268 (7th Cir. 1984); Frazier v. City of Philadelphia, 927 F. Supp. 881,
887 (E.D.Pa. 1996); Di Maggio v. O'Brien, 497 F. Supp. 870, 874 (E.D.Pa.
In § 1983 cases against government units, "liability only exists
where the constitutional injury results from a municipal policy or
custom." Frazier, 927 F. Supp. at 887. The Third Circuit has explained
that a government policy or custom can be demonstrated in either of two
[p]olicy is made when a "decision maker possessing
final authority to establish municipal policy with
respect to the action" issues an official
proclamation, policy or edict. A course of conduct
is considered to be a "custom" when, though not
authorized by law, "such practices of state
officials [are] so permanent and well-settled" as to
virtually constitute law.
Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (quoting
Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990),
cert. denied, 519 U.S. 1151, 117 S.Ct. 1086, 137 L.Ed.2d 219 (1997)).
Municipal liability through a course of conduct is established by proving
that identified and relevant policy makers within the municipal unit had
notice or knowledge of a risk of deprivation of rights through a
pattern of prior deprivations, and by demonstrating that the policy makers
acted with "deliberate indifference" to the known risk. Beck, at 965-67.
A single incident generally cannot establish a "custom" because there can
be no "deliberate indifference" without prior knowledge.*fn8 City of
Oklahoma v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).
To establish municipal liability, Plaintiff would have to show either
an official policy not to implement a veterans' preference in hiring, or
a like custom so ingrained in the hiring process that it operated as a
policy. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1059 (3d Cir.
1991); Bielevicz at 850; Monell at 690, 98 S.Ct. 2018. Plaintiff has
failed to provide any evidence that the Board's alleged failure to apply
the veteran's preference was the result of any custom or policy, as the
facts show no prior instances where similarly situated individuals were
discriminated against. Although the facts adduce lack of an formally
promulgated veterans' preference policy in the School District, they also
state that a preference would be applied as required by law for any
qualified veteran; in any event, whether or not there was an official
veterans' preference policy is irrelevant to the determination of the
existence of a policy not to favor qualified veterans. As Plaintiff has
failed to prove the required elements for municipal liability, his §
1983 claim against policymaking Defendants would fail even if there was a
property interest violation in this case.
B. Pendent State Law Claims
This court has supplemental jurisdiction over claims arising under the
Pennsylvania VPA pursuant to 28 U.S.C. § 1367. Plaintiff argues that
Defendants violated VPA § 7104(a) by not granting him the statutory
preference over other qualified applicants when it considered him for a
teaching position for the 1995-1996 and 1996-1997 academic years. See
Pl.'s Compl. at p. 9. Our analysis of Plaintiffs Fourteenth Amendment
claim required us to examine whether Plaintiff was in fact denied a
mandatory preference, see supra at II.A.1., which is precisely the issue
of the state law claim. Therefore, with reference to our above analysis,
we find for Defendants on the state law claim. See discussion, supra, at
II.A.1. Defendants did not violate the VPA, because Plaintiff was not a
qualified veteran entitled to a preference under the statute. Id.
III. CONCLUSIONS OF LAW
Consistent with the above findings of fact and discussion, we make the
following conclusions of law:
1. Plaintiff has failed to show by a preponderance of the evidence that
he was improperly denied a preference under the Pennsylvania Veterans'
2. Defendants were permitted to establish hiring requirements in their
search for teachers as long as the requirements reasonably related to the
positions, and the requirements of the Elizabethtown School District for a
successful teaching applicant were reasonably related to the positions
for which the district was hiring.
3. The Defendants did not violate the VPA by deciding that Plaintiff
did not satisfy their requirements and was not a qualified applicant for
the 1995-1996 or 1996-1997 school years.
4. Because Plaintiff was not a qualified applicant to Defendant School
has not proved that he enjoyed a property interest under the Fourteenth
Amendment. Therefore, the Defendants did not violate Plaintiffs
Fourteenth Amendment property right, and Plaintiff was not entitled to
any due process under the United States Constitution.
5. Plaintiff has failed to prove by a preponderance of the evidence
that Defendants violated his rights under the Fifth Amendment, which
applies only to acts of the federal government.
6. Plaintiff has failed to prove by a preponderance of the evidence
that Defendants violated his rights under the Eighth Amendment, which
applies only to criminals.
7. Plaintiff has failed to prove by a preponderance of the evidence
that Defendants violated his rights under the Ninth Amendment, which does
not accord substantive rights in addition to those conferred by other
portions of our governing law.
8. The individual Defendants would have been entitled to qualified
immunity even if Plaintiff proved that Defendants had violated a property
right. The constitutional right was not clearly established, and no
reasonable person in the position of any of the Defendants would have
understood that denying a veteran a preference would violate that
veteran's constitutional property right.
9. Defendants School Board, School District, and any policymaking
officials would not have been liable even if Plaintiff showed that
Defendants violated a property right under the VPA, because Plaintiff did
not show any relevant policy or custom by the municipal Defendants to
violate those rights.
10. Plaintiff has failed to show that Defendants violated the
Pennsylvania Veterans' Preference Act. Plaintiff was not a qualified
applicant under the statute, and was therefore not entitled to the
11. Defendants are entitled to judgment in their favor.