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DEMKO v. LUZERNE COUNTY COMMUNITY COLLEGE

September 18, 2000

JOSEPH DEMKO, PLAINTIFF,
V.
LUZERNE COUNTY COMMUNITY COLLEGE, DEFENDANT.



The opinion of the court was delivered by: Vanaskie, Chief Judge.

    MEMORANDUM

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 decision.

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.

I. BACKGROUND

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 status." (Id.)

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.

II. DISCUSSION

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 issue concerning 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 nonmoving party:

[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) (citations omitted).

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 explicitly ...


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