Gikas v. Washington School DistrictGikas v. Washington School District
Case Information
*1 Opinions of the United 2003 Decisions States Court of Appeals
for the Third Circuit 5-16-2003
Gikas v. Washington Sch Dist
Precedential or Non-Precedential: Precedential
Docket 02-1934
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PRECEDENTIAL
Filed May 16, 2003 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 02-1934 JAMES GIKAS, Appellant v.
WASHINGTON SCHOOL DISTRICT, WASHINGTON BOARD OF SCHOOL DIRECTORS, DR. MARYANN B. WEINSTEIN, DONALD G. EMERY, DR. JAMES S. BALENT, ALAN B. COTTRILL, JANE S. FERGUS, DAVID R. JOHNSTON, JONATHAN W. MILES, PHYLLIS L. WALLER, and ED WESTCOTT, individually On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civ. No. 00-cv-00890) Judge: Honorable Robert J. Cindrich Argued: February 25, 2003 Before: BECKER, Chief Judge ,* Scirica, Circuit Judge ,**
and Shadur,*** District Judge * Judge Becker completed his term as Chief Judge on May 4, 2003.
** Judge Scirica succeeded to the position of Chief Judge on May 4, 2003.
*** Honorable Milton I. Shadur, United States District Judge for the Northern District of Illinois, sitting by designation.
(Filed: May 16, 2003) DANIEL W. ERNSBERGER (ARGUED) Behrend & Ernsberger 306 Fourth Avenue Suite 300
Pittsburgh, PA 15222 Counsel for Appellant DOUGLAS R. NOLIN (ARGUED) Peacock Keller Ecker & Crothers, LLP
70 East Beau Street Washington, PA 15301 Counsel for Appellees OPINION OF THE COURT BECKER, Circuit Judge :
This appeal concerns the property rights created by the
Pennsylvania Veterans’ Preference Act (“VPA”),
On two occasions, non-veterans were hired into the District’s social studies department instead of Gikas, who would have qualified for a preference over the non-veteran applicants if it were shown that he possessed the “requisite qualifications.” Gikas asserts that the District violated his substantive due process rights by denying him the preference and by not hiring him when a position became available in the social studies department in 1999.
Gikas also claims that his procedural due process rights were violated because the District failed to define the “requisite qualifications” for the positions and to publish those requirements so that applicant veterans would know what was required in advance of applying for the positions.
By not defining in advance the “requisite qualifications,”
Gikas maintains, the District had free rein to ignore the
veterans’ preference. In his submission, the District could
define “requisite qualifications” post hoc as those of the
most qualified applicant so that a veteran would be
employed only if he was the most qualified, essentially
eviscerating any preference. Gikas argues that
The District Court dismissed the procedural due process
claim because Gikas had “fail[ed] to state a claim upon
which relief can be granted,” and granted the defendants’
motion for summary judgment on the substantive due
process claim because “there [was] no genuine issue as to
any material fact and” the defendants were “entitled to a
judgment as a matter of law.”
Moreover, we conclude that procedural due process does not require the District to publish the definition of “requisite qualifications” for a position in advance of the hiring process. The property interest at issue here is not in the teaching position itself, but in the preference. As such, the District is not required to help applicant veterans become qualified for the job; rather it is required to give those applicants a preference only if they are independently qualified. Requiring the publication in advance of the “requisite qualifications” for a position is simply too attenuated from the specific protected property interest in the preference to be required by procedural due process. In sum, Gikas has not established a federal constitutional violation, hence we are constrained to affirm the judgment of the District Court.
I. In 1997, James Gikas, a veteran of both the Army and the Navy who is certified to teach school in Pennsylvania, applied for a teaching position in the Washington School District and was hired as a part-time substitute teacher. In June 1998, a full-time teaching position became available in the social studies department and the District hired Cyril Walther, a non-veteran substitute teacher who had served an entire year in the position to be filled, teaching the same material required for the position. When Gikas asked why he was passed over for the position, he was told that he did not have enough experience as a full-time substitute teacher. Gikas objected because he had not been informed that working full time (as opposed to part time) as a substitute teacher would affect his ability to be hired as a full-time teacher. The school board represented that it would inform Gikas of future openings in his area of certification and would delineate the minimum qualifications for such openings.
In the summer of 1999, another full-time teaching position became available in the District’s social studies department. William Watson, the District’s high school principal, and Ronald Junko, the District’s assistant high school principal, chose eight candidates, including Gikas, to interview for the position based on the following criteria: (1) the appearance of the application; (2) extracurricular activities; (3) grade point average; and (4) proximity of his or her residence. During the interview, Watson and Junko evaluated the applicants based on four general criteria; those criteria were further divided into subsets. The criteria were:
(1) Instruction
(A) Teaching Techniques/ Learning (B) Planning
(C) Managing Students
(D) Motivating Students (2) Professional Development and Fit with Needs (A) Preparation
(B) Experience
(C) Professional Growth/ Responsibility (D) Philosophy/ Goals
(E) Coaching/ Sponsoring (3) Relationships
(A) Staff
(B) Parents/ Community
(4) Other
(A) Standard District Measure. The applicants were given a score in each area based on their answers to a standardized series of questions.
Based on this score, Gikas ranked sixth out of the eight candidates, and he was not offered the teaching position.
Watson testified that Gikas provided only generic responses to questions related to teaching techniques, planning, managing and motivating students, and that he did not demonstrate an understanding of the District’s demographics or philosophies. A non-veteran, Mark Albertina, who scored the highest in the interview evaluation, was hired.
Gikas brought suit, pursuant to
The District Court issued an order adopting the recommendations of the Magistrate Judge. Gikas timely appealed.
The District Court had jurisdiction pursuant to
1999) (“We exercise plenary review over a grant of summary judgment and apply the same legal standard used by the District Court.”).
1. Gikas brought suit against the following individuals: Dr. Maryann B.
Weinstein, Donald G. Emery, Dr. James S. Balent, Alan B. Cottril, Jane S. Fergus, David R. Johnson, Jonathan W. Miles, Phillis L. Walker, and Ed Wescott.
II. Gikas argues that the District deprived him of a property interest protected by substantive due process when it hired Albertina, a non-veteran, to fill the full-time teaching position in the social studies department. In particular, Gikas maintains that because he was one of eight individuals selected to be interviewed for the position, he met the “requisite qualifications” for the job, and as a result, he was entitled to a preference under § 7104(a) of the Pennsylvania Veterans’ Preference Act. [2] Section 7104 of the VPA provides:
(a) Non-civil service. Whenever any soldier possesses the requisite qualifications and is eligible to appointment to or promotion in a public position, where no such civil service examination is required, the appointing power in making an appointment or promotion to a public position shall give preference to such soldier.
(b) Name on civil service list. Whenever any soldier possesses the requisite qualifications, and his name appears on any eligible or promotional list, certified or furnished as the result of any such civil service examination, the appointing or promoting power in 2. Gikas also maintains that he was denied the preference simply because he did not supply the District with a Form DD214 documenting his veteran status. He bases this on a 1999 letter from the District’s solicitor which states that “in reviewing [Gikas’] file, I note that the School District has not been provided, by Mr. Gikas, with a DD214 form . . . . Public school districts in Pennsylvania are not required to view an individual as a “soldier” for purposes of the Veterans’ Preference Act unless and until that individual provides the School District with a DD214. . . . Consequently, we ask that you provide to us copies of the DD214s issued to Mr. Gikas.” This is not sufficient to show that Gikas was denied the preference because he did not provide this form. It simply demonstrates that before litigating the issue, the District wanted to make sure that Gikas was actually a veteran, as defined by the VPA.
Rather, it appears that Gikas was not hired because the District concluded, from his responses during the interview process, that he did not possess the “requisite qualifications” for the position, and that as such, he was not entitled to the preference even if he had supplied the District with the Form DD214.
8
making an appointment or promotion to a public
position shall give preference to such soldier,
notwithstanding, that his name does not stand highest
on the eligible or promotional list.
Pursuant to our caselaw, “ ‘a plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment’s due process protection applies.’ ” Nicholas, M.D. v. Pa. State Univ. , 227 F.3d 133, 139-40 (3d Cir. 2000) (quoting Woodwind Estates, Ltd. v. Gretkowski , 205 F.3d 118, 123 (3d Cir.
2000)). Gikas maintains that the veterans’ preference in
Gikas misunderstands the import of
Carter
. Although
Carter
holds that
Although this is not explicitly stated in the opinion, it is
self-evident because the
Carter
panel cited to
Boards of
Regents v. Roth
, 408 U.S. 564 (1972), for the proposition
that a
state-created property
interest deserves
constitutional protection if the plaintiff has a legitimate
claim of entitlement, and not simply an expectation of the
benefit.
procedural due process protection, see discussion infra .
The
Carter
panel went on to conclude that the veterans’
preference in
In Nicholas, M.D. v. Pennsylvania State University , supra , we explained that a property interest protected by procedural due process is not necessarily protected by substantive due process:
On past occasion, we have lamented that “the case law of this circuit and the Supreme Court provides very little guidance as to what constitutes this ‘certain quality’ of property interest worthy of protection under the substantive due process clause.” Nevertheless, we believe that a careful review of the case law does reveal one guiding principle: whether a certain property interest embodies this “particular quality” is not determined by reference to state law, but rather depends on whether that interest is “fundamental” under the United States Constitution . . . . [T]his Circuit has adopted an approach to substantive due process that focuses on the nature of the property interest at stake. By way of illustration, we have so far limited non-legislative substantive due process review to cases involving real property ownership . . . we have been reluctant to extend substantive due process protection to other, less fundamental property interests. 227 F.3d at 140-141 (emphasis added) (internal citations omitted).
The Nicholas panel also cited favorably Justice Powell’s concurrence in Regents of University of Michigan v. Ewing , 474 U.S. 214 (1985), in which the majority assumed the existence of a substantive due process property interest in the university’s decision to dismiss the plaintiff from a program of study, although it eventually concluded that the there was no violation since the decision to dismiss the plaintiff was not arbitrary or capricious. Justice Powell noted:
Although I join in the Court’s opinion holding that respondent presents no violation of the substantive due process right that he asserts, I think it unnecessary to assume the existence of such a right on the facts of this case. . . . Even if one assumes the existence of a property right . . . not every such right is entitled to the protection of substantive due process. While property interests are protected by procedural due process even though the interest is derived from state law rather than the Constitution, substantive due process rights are created only by the Constitution. . . . The interest asserted by respondent [in continued university enrollment] is essentially a state-law contract right. It bears little resemblance to the fundamental interests that previously have been viewed as implicitly protected by the Constitution. Ewing , 474 U.S. at 228-230 (Powell, J. concurring) (internal citations omitted).
Using this analysis, the Nicholas panel held that a university professor’s tenured public employment was not a fundamental property interest entitled to substantive due process protection. See Nicholas , 227 F.3d at 143 (“[The plaintiff’s] tenured public employment is a wholly state- created contract right . . . . [W]e view public employment as more closely analogous to those state-created property interests that this Court has previously deemed unworthy of substantive due process than to the venerable common- law rights of real property ownership. . . . [T]he federal judiciary should not become a general court of review for state employment decisions.”) (internal citations omitted).
The property interest at issue in this case, which Gikas
alleges entitles him to substantive due process protection,
is not even a state-created employment interest. Rather, the
property interest here is in an employment
preference
, not
in the employment itself. At all events, the property interest
in the preference appears to be no more fundamental under
the federal Constitution than the employment interest in
Nicholas
. The interest in the preference is solely based upon
state law. Thus, having no reason to believe that Gikas’
interest in the veterans’ preference is a fundamental right
created by the federal Constitution, we conclude that
III.
Gikas argues that he was deprived of procedural due
process when the District failed to notify him of the
meaning of “requisite qualifications” so that he could make
himself a better applicant for the teaching positions that
became available in 1998 and 1999. Gikas also maintains
that applicant veterans have no way of knowing whether
they are entitled to the veterans’ preference if the District is
not required to publish the “requisite qualifications” for the
position in advance of hiring. The practical result of not
publishing the “requisite qualifications” in advance of
hiring, the argument continues, is to eliminate the veterans’
preference under
Gikas relies on Justice Zappala’s concurrence
in
Brickhouse v. Spring-Ford Area School District
, stating that
for the veterans’ preference under
In order to determine whether the District deprived Gikas
of a property interest without following the procedures
required by due process, we engage in a familiar “two-
stage” analysis. We first determine whether Gikas has
alleged a property interest protected by procedural due
process. “[W]e then must decide what procedures constitute
‘due process of law.’ ”
Robb v. City of Phila.
, 733 F.2d 286,
292 (3d Cir. 1984) (citing
Roth
, 408 U.S. at 569-72, and
Morrissey v. Brewer
, 408 U.S. 471, 481 (1972)). In
Carter
,
we concluded that
Because the clear language of
The District seeks to differentiate
Thus, because we conclude that
But even though
at 577).
542 (1985) (quoting Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S 306, 313 (1950)); see also Witkowski v. Welch , 173 F.3d 192, 205 (3d Cir. 1999) (holding that the procedures required by due process are defined by federal law). In the employment context, notice and an opportunity to be heard generally refer to having “some kind of a hearing” before being discharged. [5] Loudermill , 470 U.S. at 542; see also Alvin v. Suzuki , 227 F.3d 107, 121 (3d Cir.
2000). In the case at bar, Gikas argues that due process requires that he be given notice of the “requisite qualifications” before he can be deprived of the preference, but he has not cited to any case holding that due process requires that applicants be notified of hiring criteria. We will nonetheless consider whether Gikas has been deprived of a protected property interest without due process of law by not being informed of the “requisite qualifications” for the teaching positions in 1998 and 1999.
While we are sympathetic to Gikas’ situation, we conclude that procedural due process does not require the District to publish the “requisite qualifications” in advance of hiring. [6] Our primary concern is that the procedure that 5. Gikas is not arguing here that he was denied a hearing in connection with the District’s decision to not hire him. Pennsylvania school districts and their governing boards are “local agencies,” governed by and subject to Pennsylvania local agency law and procedure. Monaghan v. Bd. of Sch.
Dirs.
, 618 A.2d 1239, 1241(Pa. Commw. Ct. 1992);
6. We do note, however, that the criteria used by the District to determine whether Gikas possessed the “requisite qualifications,” i.e.
teaching techniques, planning, motivating students, etc. , appear to be basic indicators of whether an applicant would be a good teacher; if so, Gikas should have anticipated that the District would use these, or similar, criteria.
14 Gikas desires (publication of the definition of “requisite qualifications” in advance of hiring) does not track the property interest of which he alleges he was deprived: the hiring preference . We emphasize that Gikas does not have a property interest in the teaching position itself, but in the veterans’ preference, which comes into play only if he has the “requisite qualifications” for the job. See Carter , 989 F.2d at 122 (“We caution here that [the plaintiff’s] interest is not in the promotion per se but in being given a preference when his promotion is considered.”) (emphasis in original).
In sum, the property interest in the preference does not
require that an applicant veteran be informed of the
meaning of “requisite qualifications.” Gikas has a property
interest only after he has demonstrated that he has met the
“requisite qualifications”; the VPA does not create a
property interest in helping the veteran achieve those
requirements. In other words, the District is not required by
due process to give applicant veterans notice of the
“requisite requirements” in advance of hiring because the
veteran does not have a property interest at that time. The
purpose of
The judgment of the District Court will be affirmed. [8]
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
8. The District also argued that five of the individuals named as defendants by Gikas were not liable because they were not members of the school board at the time the alleged violations took place. There is no need to address this issue since we are affirming the District Court on other grounds.