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DEMKO v. LUZERNE COUNTY COMMUNITY COLLEGE
September 18, 2000
JOSEPH DEMKO, PLAINTIFF,
LUZERNE COUNTY COMMUNITY COLLEGE, DEFENDANT.
The opinion of the court was delivered by: Vanaskie, Chief Judge.
On March 25, 1998, the plaintiff, Joseph Demko, brought this
action against the defendant, Luzerne County Community College
("LCCC" or "the College"), under 42 U.S.C. § 1983, for alleged
violations of civil rights and under state law for breach of
contract. (Dkt. Entry 1.) LCCC employed Demko in its Financial
Aid Department, and the complaint arises from the circumstances
of LCCC's discharge of Demko from his position. Demko's complaint
contains two counts. Demko's first count alleges that LCCC denied
him due process related to both property and liberty interests
when it discharged him. The second count alleges that LCCC
breached a contract between it and Demko that Demko maintains
restrained LCCC from discharging him without "just cause."
Currently pending are summary judgment motions from both
parties. All the issues have been briefed and are ripe for
Because LCCC did not have statutory authority to enter into a
non-at-will employment contract with Demko, the alleged contract
was void ab initio. As such it did not entitle Demko to any
property interest in his continued employment with LCCC. Because
Demko had no property interest in his job, he was not entitled to
a hearing in connection with the decision to fire him.
Accordingly, LCCC's motion for summary judgment on Demko's claim
for a deprivation of property rights without due process will be
granted, and Demko's motion on that issue will be denied.
Because the contract was void ab initio, the contract is
unenforceable. Accordingly, LCCC's motion for summary judgment on
the pendent state law claim for breach of contract will be
granted, and Demko's motion will be denied.
Because LCCC made public allegations of sexual harassment
against Demko at the time of his dismissal, Demko had a liberty
interest in clearing his good name and reputation that required
the College to afford Demko due process in connection with the
decision to fire him. Because the College afforded Demko an
adequate opportunity to be heard before he was fired, and state
law accorded Demko a full panoply of post-termination procedural
rights, the requirements of due process were satisfied in this
case. Accordingly, the College's motion for summary judgment on
Demko's claim of deprivation of a liberty
interest without due process will be granted, and Demko's motion
will be denied.
Demko worked at the College, in various capacities, from
November 1974 until his discharge in November 1997. (Statement of
Material Facts to which the Def. Contends there is no Material
Dispute, Dkt. Entry 29 at ¶¶ 5-7.) In November of 1991, he was
named Financial Aid Officer of LCCC. As an administrator of LCCC,
Demko had executed an employment agreement with LCCC on an annual
basis. On September 29, 1997, Demko signed a "Professional
Employment Contract" with LCCC that covered the period October 1,
1997 through September 30, 1998. (Id., ¶ 5 and Ex. 2.) This
agreement provided that Demko would "perform the duties assigned
to [the Financial Aid Director] in keeping with the general
operational policies of [LCCC] and the policies, rules and
regulations adopted by the Board of Trustees of [LCCC]." (Id.)
The phrase, "policies adopted by the Board of Trustees,"
encompassed LCCC's personnel policy manual applicable to
administrators such as Demko. (Pl.'s Statement of Material Facts,
Dkt. Entry 39 at ¶ 11.) The personnel policy manual stipulated
that "[e]mployees may be terminated or suspended for just cause,"
and that "[s]uch discharge should be completed in conjunction
with all due process and contractual rights entitled to by the
employee." (Id. at ¶ 12.) The personnel policy manual, however,
did not specify the "due process and contractual rights" to which
an employee was entitled. (Larson Dep., Ex. 2 to Pl.'s Statement
of Material Facts, Dkt. Entry 40 at 13.)
At the time that Demko executed the Professional Employment
Contract covering the period October 1, 1997 through September
30, 1998, he was on "probation" on account of a complaint made by
Barbara Brody, a female subordinate of Demko who charged Demko
with using vulgar language and creating a hostile work
environment. (Pl.'s Statement of Material Facts in Opp'n To
Def.'s Summ. J. Mot., Dkt. Entry 48 at ¶ 1.) Brody began work as
a clerk in the Financial Aid Department in 1994. (Demko Dep.,
Dkt. Entry 31.) Sometime prior to April of 1995, Brody complained
to College administrators that Demko had sexually harassed her.
(Id. at 34.) On April 3, 1995, Demko met with Susan Merkle,
Associate Dean of Human Resources, Thomas Leary, Dean of
Admissions and Student Affairs, and Ann Williams, Dean of
Community Services and Continuing Education. (Id. at 32.) At
this meeting, Demko and the College administrators discussed the
complaints that Brody had made. (Id. at 34.) The administrators
gave Demko the opportunity to respond to Brody's complaints.
(Id. at 39.) Demko generally denied the allegations of sexual
harassment, but he did not deny that he had used vulgar language
in the Financial Aid Department. (Id. at 35.) Shortly after the
meeting of April 3, 1995, Demko received a letter from Leary in
which Leary explained that the College concluded that Demko had
"made remarks to Ms. Brody that had sexual or demeaning
implications." (Id. at 40 & Ex. 3.) The letter also stated that
Demko must attend seminars "dealing with issues on Management
Skills and Harassment. . . ." (Id.) The letter further informed
Demko that he had the right to "exercise the option of a formal
hearing."*fn1 Finally, the letter concluded that "[a] repetition
of the behavior cited in this communication may result in
termination of services by [LCCC]." (Id.)
In May of 1997, Brody again complained to administrators that
Demko used vulgar language and created a hostile work environment
in the Financial Aid Department. (Pl.'s Statement of Material
Disputed Facts in Opp'n to Def.'s Mot. for Summ. J., Dkt. Entry
48 at ¶ 1.) On June 9, 1997, the College placed Demko on
probation, and he was again informed that he must "attend
training seminars relative to issues on management skills and
sensitivity." (Dkt. Entry 31 at 63 & Ex. 5.) Demko's probationary
period extended through December 19, 1997, at the conclusion of
which LCCC was to "render a decision relative to the probation
On October 28, 1997, Brody filed a complaint of sexual
harassment with the Pennsylvania Human Relations Commission
("PHRC"). (Dkt. Entry 48 at ¶ 2.) On November 5, 1997, Demko met
with Leary and Merkle, and they discussed the complaint that
Brody had filed. (Dkt. Entry 31 at 66.) Merkle gave Demko a copy
of Brody's complaint. (Id.) At this meeting, Demko was put on
paid administrative leave, and Leary suggested that Demko should
retain counsel. (Id. at 68-70.)
Merkle conducted an investigation into the Brody PHRC
complaint, interviewing four of the five full-time employees in
the Financial Aid Department. The fifth person, Brody, refused to
be interviewed on advice of counsel. (Dkt. Entry 29 at ¶ 25.) On
November 12, 1997, Demko met with Merkle to discuss the Brody
PHRC complaint. (Dkt. Entry 31 at 72.) At this meeting, Demko had
the opportunity to respond to Merkle's questions and to offer any
information relative to Brody's complaint. (Id. at 76-77.)
Merkle made the determination that Demko continued to use
vulgar language after the College put him on probation on June 8,
1997. (Dkt. Entry 29 at ¶ 24.) Further, Merkle concluded that a
hostile work environment existed in the Financial Aid Department.
(Id. at ¶ 31.)
On November 24, 1997, Demko met with Merkle and Jon Larson,
President of the College. (Dkt. Entry 31 at 167 and Larson Dep.,
Dkt. Entry 35 at 65-70.) At that meeting, Larson gave Demko a
letter stating that the College was discharging Demko for
"continued inappropriate conduct." (Dkt. Entry 31 at 167.) On
December 4, 1997, counsel for Demko requested a "formal due
process hearing to challenge the termination of his employment."
(Dkt. Entry 29 at Ex 6.) On January 19, 1998, counsel for the
College confirmed that the College "[did] not intend to offer
[Demko] any post-termination hearing." (Id. at Ex. 7.) On March
25, 1998, Demko brought suit in this Court.
A. Summary Judgment Standard
A court should grant summary judgment when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). A fact is "material" if proof of its existence or
non-existence might affect the outcome of the suit under the
applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[S]ummary judgment
will not lie if the dispute about a material fact is `genuine,'
that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id.
Initially, the moving party must show the absence of a genuine
any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 329,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party, and the entire record must be examined
in the light most favorable to the nonmoving party. Continental
Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982).
Once the moving party has satisfied its burden, the nonmoving
party "must present affirmative evidence in order to defeat a
properly supported motion for summary judgment." Anderson, 477
U.S. at 256-57, 106 S.Ct. 2505. The affirmative evidence must
consist of verified or documented materials. Mere conclusive
allegations or denials taken from the pleadings are insufficient
to withstand a motion for summary judgment once the moving party
has presented evidentiary materials. Schoch v. First Fidelity
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also
Hampton v. Borough of Tinton Falls Police Dep't, 98 F.3d 107,
112 (3d Cir. 1996) ("In order to defeat `a properly supported
summary judgment motion, the party opposing it must present
sufficient evidence for a reasonable jury to find in its favor.'"
(quoting Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d
Cir. 1995))); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358,
1366 (3d Cir. 1996) ("If the movant meets this burden, then the
opponent . . . must counter with specific facts which demonstrate
that there exists a genuine issue for trial."). Rule 56(e)
requires the entry of summary judgment, after adequate time for
discovery, when a party "fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also
Orson, 79 F.3d at 1366.
The Third Circuit recently summarized the burden of the
[I]f a moving party satisfies its initial burden of
proving a prima facie case for summary judgment, the
opposing party "must do more than simply show that
there is some metaphysical doubt as to material
facts." Rather, "[t]here must be sufficient evidence
for a jury to return a verdict in favor of the
non-moving party; if the evidence is merely colorable
or not significantly probative, summary judgment
should be granted."
Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998)
B. Demko's Property Interest in his Job
To have a property interest in a governmental position, a
person must "have a legitimate claim of entitlement to it."
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33
L.Ed.2d 548 (1972). "Property interests are not created by the
Constitution, `they are created and their dimensions are defined
by existing rules or understandings that stem from an independent
source such as state law. . . .'" Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494
(1985) (quoting Roth, supra). Courts have recognized that a
"for-cause" termination provision in an enforceable employment
agreement or statute may establish a protected property interest.
See Linan-Faye Constr. Co. v. Housing Auth. of City of Camden,
49 F.3d 915, 932 (3d Cir. 1995); Sanguigni v. Pittsburgh Bd. of
Public Educ., 968 F.2d 393, 401 (3d Cir. 1992); Unger v. Nat'l
Residents Matching Program, 928 F.2d 1392, 1399 (3d Cir. 1991).
Demko contends that he was a party to a valid one-year contract
for the period of October 1, 1997 to September 30, 1998. (Pl.'s
Br. in Supp. of his Mot. for Summ. J. and in Opp'n to Def.'s Mot.
for Summ. J., Dkt. Entry 47 at 1 & Dkt. Entry 31 at Ex. 2.) The
contract in question reads: "I accept this assignment on the
conditions listed above and will perform the duties assigned to
said position in keeping with the general operational policies of
the College and the policies, rules and regulations adopted by
the Board of Trustees. . . ."
(Dkt. Entry 31 at Ex. 2.) Demko argues that the contract