Schmidt v. Creedon

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 09-2051 and 10-1633

MICHAEL C. SCHMIDT,

Appellant.

v.

JAMES P. CREEDON, CONNIE A. TENNIS,
RICHARD A. SHAFFER, GREGORY A. GREEN

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. Nos. 4-07-cv-01190 and 1-09-cv-00323)
District Judge: Honorable John E. Jones

No. 09-2051 Argued on November 2, 2010

No. 10-1633 Submitted under Third Circuit LAR 34.1 (a)
on November 2, 2010

Before: SCIRICA, STAPLETON and ROTH, Circuit Judges

(Opinion filed: March 29, 2011)
Nathan C. Pringle, Jr., Esquire (Argued)
2300 Vartan Way
Second Floor
Harrisburg, PA 17110

Counsel for Appellant

Thomas W. Corbett, Jr., Esquire
Attorney General
Howard G. Hopkirk, Esquire (Argued)
Senior Deputy Attorney General
Calvin R. Coons, Esquire
Senior Deputy Attorney General
John G. Knorr, III, Esquire
Chief Deputy Attorney General
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120

Counsel for Appellees

___________

OPINION
___________

ROTH, Circuit Judge:

This appeal involves the application of the Fourteenth
Amendment‘s Due Process Clause to the suspension of
policemen in Pennsylvania. Michael Schmidt, an officer in
Pennsylvania‘s Capitol Police, claims that appellees, senior

2
officers of the Capitol Police and officials of Pennsylvania‘s
Department of General Services, violated his due process
rights when they failed to provide him a hearing before
suspending him without pay. In deciding this appeal, we
keep in mind that, under Pennsylvania law, 53 Pa. Stat. §
46190, policemen and fireman cannot be suspended or
terminated without just cause.1 This recognition of this
property interest in their positions has been applied both to
terminations and to suspensions. See, e.g., Dee v. Borough of
Dunmore, 549 F.3d 225, 230 (3d Cir. 2008). Absent
extraordinary circumstances, the statute has been interpreted
as creating a property interest requiring at least a brief and
informal pre-termination or pre-suspension hearing.2 Id.

1
Section 46190 provides in pertinent part:
No person employed in any police or fire force of any
borough shall be suspended, removed or reduced in rank
except for the following reasons:
(1) Physical or mental disability affecting his ability to
continue in service . . .
(2) Neglect or violation of any official duty.
(3) Violation of any law which . . . constitutes a
misdemeanor or felony.
(4) Inefficiency, neglect, intemperance, immorality,
disobedience of orders, or conduct unbecoming an officer.
(5) Intoxication while on duty.
(6) Engaging or participating in the conducting of any
political or election campaign . . .
2
See, e.g., Bd. Of Regents v. Roth, 408 U.S. 564, 577
(1972); Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077
(3d Cir. 1997) (holding state law creates property rights
protected by Fourteenth Amendment).

3
 In the case before us, the District Court held that,
despite Schmidt‘s property interest in his position, because
there was a post-suspension hearing provided by the
Collective Bargaining Agreement (CBA), no pre-suspension
hearing was necessary. We now hold that, except for
extraordinary situations, under Pennsylvania law, even when
union grievance procedures permit a policeman to challenge
his suspension after the fact, a brief and informal pre-
termination or pre-suspension hearing is necessary. However,
because this rule was not clearly established at the time of
Schmidt‘s suspension, we conclude that appellees are entitled
to qualified immunity.

I. Background

A. Schmidt’s Handling of Complaint Against
Senior Capitol Police Officers

Schmidt was hired in November 2002 by the
Department of General Services (DGS) of the
Commonwealth of Pennsylvania to serve as a patrol officer
with Capitol Police. On July 15, 2006, Schmidt had a
scheduled shift at the Harristown post, an area of Harrisburg
covering the Attorney General‘s Office and the Rachel
Carson Building. Before his shift began, Schmidt was
approached by a fellow officer, Kenneth Shaffer (Officer
Shaffer), who wanted to file a complaint against his superior
officers, Richard Shaffer, the Superintendent of the Capitol
Police (Superintendent Shaffer),3 Robert Dillard, Deputy
Superintendent, and Robert J. Rapak, a Special Investigator.

3
Officer Kenneth Shaffer is not related to
Superintendent Richard Shaffer.

4
 The parties dispute the nature of Officer Shaffer‘s
complaint: according to appellees, Officer Shaffer merely
wished to file a union grievance, but according to Schmidt,
Officer Shaffer also wanted to file a criminal complaint.

Officer Shaffer wanted to file the complaint because
he believed he was about to be charged with misconduct by
his supervisors in retaliation for his refusal to re-file charges
against a suspect in an incident that he believed had already
been resolved.4 Officer Shaffer wanted a union representative
available when he was served with paperwork relating to his
own alleged misconduct.

Schmidt told Officer Shaffer that John Bruno, a fellow
police officer and union representative, would be available
soon. After Bruno arrived, Officer Shaffer explained his
complaint to Schmidt and Bruno. Schmidt and Bruno then
went to a dispatch center at a different location in order to
access the Capitol Police‘s computer system, which is called
―METRO.‖ METRO is used by most police agencies in the
Harrisburg area. Schmidt entered Officer Shaffer‘s complaint

4
According to a report prepared by the Office of
Inspector General (OIG) of the DGS, the incident had not
been resolved. Summary charges had been filed against a
person who had pushed and shoved Commonwealth
employees including Officer Shaffer. The charges were
dismissed because Officer Shaffer failed to appear in court to
testify regarding the charges. When Officer Shaffer was
ordered to re-file the charges, he refused. He was notified
that his refusal was being investigated and would be the
subject of a pre-disciplinary conference scheduled for July 18,
2006.

5
into METRO. Schmidt‘s entry summarized the complaint
against Superintendent Shaffer, Dillard, and Rapak and
selected type ―A‖ for each of them, indicating a status of
―Accused.‖

The parties dispute whether Schmidt knowingly
violated Capitol Police regulations and policies in making the
METRO entry. According to appellees, the dispatch center
was outside of Schmidt‘s duty area, and permission was
required for Schmidt to enter the center and use the METRO
system. Schmidt claims that it was permissible for him to
stop at the dispatch center on the way to his duty area and
that, while the order not to go into the center or use METRO
without permission had been communicated to supervisors, it
had not been communicated to him or other junior officers.
Moreover, Schmidt had a log-in and password for METRO.
The parties also dispute the significance of the ―A‖ entries
made by Schmidt. According to Schmidt, the ―A‖ meant only
that Shaffer had directly accused Superintendent Shaffer,
Dillard, and Rapak. According to appellees, the ―A‖ also
meant that there was probable cause to arrest the three senior
officers on sight. Schmidt did not believe that he needed to
report the complaint up the chain of command before entering
it into METRO. Appellees claim, however, that Capitol
Police policy required Schmidt to report the complaint to his
superiors before entering it.

After Superintendent Shaffer learned that Schmidt had
entered the complaint into METRO, he directed Schmidt‘s
supervisor, Sergeant Bistline, to make changes to the entry.
Bistline printed out a copy of the complaint and then removed
the entry from METRO. After learning of Bistline‘s actions,
Schmidt confronted him, questioned him about removing the

6
entry, and then told Bistline that he (Bistline) had ―fucked
up.‖

B. Suspension of Schmidt

Following the incident, Superintendent Shaffer
arranged a meeting with Gregory Green, Director of the
Bureau of Human Resources (HR) in the DGS, to discuss
allegations of misconduct against Schmidt. Superintendent
Shaffer, Dillard, Rapak, and Connie Tennis (Chief of Labor
Relations for HR) met with Green. The Superintendent asked
HR to handle the investigation of Schmidt because the
Superintendent, Dillard, and Rapak were accused in the
complaint that had been entered by Schmidt.5 At
Superintendent Shaffer‘s direction, Rapak conducted a
preliminary investigation into Schmidt‘s conduct and
provided his findings to Green and Tennis.6

Green concluded from the report that Schmidt had
failed to report to his assigned post, had disobeyed work
orders, and had showed disrespect and insubordination to his
supervisor. According to Green, this misconduct was serious
enough to raise ―issues of trust‖ with respect to Schmidt. For
that reason, he recommended that Schmidt be suspended
pending further investigation. Green discussed the matter

5
Normally, Rapak, as head of the Office of
Professional Responsibility, would be responsible for
investigating allegations of misconduct by Capitol Police
Officers.
6
The record indicates that Rapak gathered information
but did not conduct any analysis.

7
with Deputy Secretary of DGS Anne Rung, who was acting
on authority delegated by DGS Secretary James Creedon.
She approved Green‘s recommendation.

On July 18, 2006 – three days after Schmidt had
entered the complaint into the METRO system – Schmidt was
notified that he was suspended without pay from his position
with the Capitol Police. Schmidt was called into an office by
Dillard and several officers, told he was being suspended, and
provided with a letter concerning his suspension. The letter,
which was signed by Green on behalf of Secretary Creedon,
explained that ―the reason for this suspension was that you
allegedly were involved in the entry of information into the
‗METRO‘ system, which was intended to undermine the
administration and operation of the Capitol Police.‖ Included
with the letter were excerpts from the Pennsylvania Civil
Service Act concerning Schmidt‘s rights under the Act,
including a provision stating that, while an external
investigation is pending, an employee under investigation
could be suspended until the investigation was complete and
up to 30 days thereafter.7 The letter did not identify any rules
or regulations that had been violated by Schmidt.

The parties do not dispute that Schmidt was suspended
without being provided a pre-disciplinary hearing. According
to Schmidt, local newspapers learned of his suspension and
reported that he had been suspended for filing false reports;
he found this humiliating.

7
See 71 Pa. Stat. § 741.803

8
 C. Union Grievance and Investigation

Ten days after his suspension, Schmidt filed a
grievance with his union, the Fraternal Order of Police, Lodge
85 (FOP), alleging that he had been suspended in violation of
his constitutional right to due process. The FOP represented
Schmidt in the grievance process, which went to arbitration.
After holding a hearing and considering the parties‘ written
submissions, on November 14, 2006, the arbitrator awarded
Schmidt back pay, seniority, and benefits for the period
starting with his suspension on July 18, 2006 through the date
of the arbitral award.8

During Schmidt‘s suspension, the OIG also conducted
an investigation into Schmidt‘s conduct, and Schmidt was
interviewed as part of the investigation. The OIG issued its
report on February 5, 2007. The report concluded that
Schmidt and several other officers had deliberately entered
the complaint into METRO in an effort to embarrass and
discredit the Capitol Police. The OIG found that Schmidt‘s
statements lacked consistency and truthfulness and concluded
that this called into question Schmidt‘s ability to effectively
carry out his duties.

8
This description of the grievance proceedings is
gleaned from the parties‘ statements of material facts and
Schmidt‘s deposition. The collective bargaining agreement
applicable to the Capitol Police and the papers from
Schmidt‘s union grievance proceedings are not in the record
before us. It appears that the arbitrator did not order Schmidt
reinstated in the November 14 award. It was not until April
14, 2007 – after Schmidt‘s termination – that he was ordered
reinstated.

9
 On March 2, 2007, after the OIG‘s report had been
completed, Schmidt was notified by letter of a pre-
disciplinary conference. The letter charged Schmidt with the
following:

Specifically, on July 15, 2006, you left your
assigned duty post without permission, entered
the ICMS area without authorization and
entered information without authorization in the
METRO system which was intended to
undermine the administration and operation of
the Capitol Police. In addition, after learning
that Sgt. Bistline removed the information from
the METRO system, you became loud,
argumentative and insubordinate towards Sgt.
Bistline, used profanity and disrupted the
workforce.

The letter did not specifically refer to any rules or regulations
prohibiting this conduct.

On March 9, Schmidt participated in a pre-disciplinary
conference with Tennis and representatives from the FOP.
He declined to respond to the allegations against him or to
provide an explanation for his alleged conduct. Schmidt
contends that he could not respond to the charges because he
had not been informed of the rules he allegedly violated.
After the conference, Green recommended that Schmidt be
terminated from the Capitol Police. On March 14, 2007,
Schmidt was notified by letter that he was terminated.9 The

9
In June, 2004, Schmidt had been suspended for three
days without pay as discipline for making inappropriate

10
termination letter gave the same description of Schmidt‘s
conduct as the March 2 notice of pre-disciplinary conference,
and added: ―These actions violated numerous provisions and
procedures of the Capitol Police Duty Manual, which you are
bound by and expected to follow.‖ Schmidt invoked the
FOP‘s grievance procedure to challenge his termination. An
arbitrator ultimately ordered him reinstated, but without back
pay, seniority, or benefits for the period during which he was
terminated.

D. Suspension Litigation

On July 2, 2007, Schmidt filed a two-count complaint
naming as defendants Superintendent Shaffer, Creedon,
Green, and Tennis, alleging that they had suspended him from
the Capitol Police without providing an adequate hearing in
violation of his rights under the Due Process Clause of the
Fourteenth Amendment (Count I), and terminated him in
violation of his First Amendment rights (Count II). Schmidt
sought money damages under 42 U.S.C. §§ 1983 and 1985
for ―embarrassment, humiliation, and mental anguish‖
resulting from his suspension and termination, as well as back
pay, front pay, interest, and compensatory and punitive
damages.

The District Court denied the defendants‘ motion to
dismiss on April 24, 2008, and the parties proceeded to
discovery. On February 18, 2009, the District Court granted

comments. He invoked the FOP grievance procedure to
challenge his suspension and was awarded back pay, but the
suspension remained in effect. Green took this prior incident
into account in deciding to terminate Schmidt.

11
in part and denied in part the defendants‘ motion for summary
judgment. Schmidt v. Creedon, No. 4:07-cv-1190,
Memorandum and Order at 22 (M.D. Pa. Feb. 18, 2009). The
court granted summary judgment on all of Schmidt‘s claims,
except the due process claim arising from his suspension.10
Id. at 19-21. The District Court dismissed Schmidt‘s claim
arising from his termination because a due process claim for
his termination was not pleaded in his complaint but was
raised for the first time in his summary judgment papers.

The court then turned to the merits of Schmidt‘s
suspension claim, citing Board of Regents v. Roth, 408 U.S.
564, 570 (1972), for the proposition that ―[b]efore a person is
deprived of a protected interest, he must be afforded
opportunity for some kind of a hearing, ‗except for
extraordinary situations where some valid governmental
interest is at stake that justifies postponing the hearing until
after the event.‘‖ Schmidt, No. 4:07-cv-1190, Memorandum

10
Summary judgment was granted on (1) Schmidt‘s
claims under 42 U.S.C. § 1985, because Schmidt had
produced no evidence that there was a conspiracy to suspend
and terminate him motivated by race or class-based animus,
Schmidt, No. 4:07-cv-1190, Memorandum and Order at 10
n.14; (2) his First Amendment retaliation claim because he
failed to present any evidence other than temporal proximity
showing that his termination resulted from his assertion of his
constitutional rights through the union grievance and
arbitration procedure, id. at 19-22; and (3) his claims against
Superintendent Shaffer because he failed to present sufficient
evidence that Shaffer was involved in the decision to suspend
him, id. at 17-19. Schmidt does not challenge these rulings
on appeal.

12
and Order at 14. Defendants had argued that because
Schmidt ―was a police officer entrusted with a firearm and
assigned to protect the public, issues of trust, credibility, and
judgment are the types of extraordinary situations that
implicate a valid government interest justifying the failure to
provide predeprivation process.‖ Id. at 12. The District
Court found, however, that ―a reasonable jury could infer that
the three-day delay between the incident and the Plaintiff‘s
suspension, coupled with the time consumed by coordinating
and conducting the . . . meeting [in which Schmidt‘s
suspension was discussed], indicates that the exigencies
alleged by Defendants did not exist.‖ Id. at 13-14.

Defendants then moved for reconsideration of the
denial of summary judgment, arguing that the union
grievance procedures available to Schmidt constituted a
constitutionally adequate alternative to a pre-deprivation
hearing. The District Court agreed:

In Jackson v. Temple University, 721 F.2d 931,
933 n.2 (3d Cir. 1983), the Third Circuit held
that an arbitration proceeding provided an
―alternative forum‖ that provided plaintiff with
―essentially the same due process safeguards
that would have been available through an
unbiased hearing.‖ In such circumstances, the
Third Circuit has held that the dictates of due
process have been satisfied because ―the risk of
an erroneous determination in the
grievance/arbitration procedure is not large, and
the value of an additional or substitute
procedures is not great.‖ Dykes v.[SEPTA], 68
F.3d 1564, 1572 (3d Cir. 1995).

13
Schmidt v. Creedon, No. 4:07-cv-1190, Memorandum and
Order at 4-5 (M.D. Pa. Mar. 24, 2009). Because Schmidt had
access to union grievance procedures to challenge his
suspension, the court found this ―type of post-deprivation
process afforded to Plaintiff cures the defects in pre-
deprivation due process he received such that it brings the
totality of Defendants‘ conduct relative to Plaintiff‘s
suspension within the bounds of the Due Process Clause of
the Fourteenth Amendment.‖ Id. at 5. Accordingly, the
District Court granted summary judgment to appellees on
Schmidt‘s remaining claim. Id. at 6. Schmidt appealed the
judgment of the District Court.

E. Termination Litigation

While his appeal was pending, Schmidt filed a new
complaint against the same defendants alleging that he had
been terminated without due process. Schmidt claimed that,
because the notice of pre-disciplinary hearing only ―vaguely
asserted‖ the charges against him and did not identify the
specific rules he was alleged to have violated, he was not
given a true opportunity to defend himself at his pre-
termination hearing. The District Court found that Schmidt‘s
due process claim for his termination was not barred by res
judicata because he had not had an opportunity in the prior
litigation to fully and fairly litigate it. Schmidt v. Creedon,
No. 09-cv-323, 2010 WL 411330, *5-6 (M.D. Pa. Jan. 25,
2010).11 On the merits, the court agreed with the defendants

11
Because we will affirm the District Court‘s
determination that Schmidt was not denied due process in the
notice provided prior to the termination hearing, we will not
revisit the issue of res judicata.

14
that there was no evidence that Shaffer was involved in
Schmidt‘s termination and that due process did not require
that Schmidt be informed of the specific rules he was alleged
to have violated at or prior to his pre-termination hearing. Id.
at *4-5, *7. Schmidt again appealed. We have consolidated
Schmidt‘s appeals and decide both in this opinion.

II. Discussion

A. Jurisdiction and Standard of Review

The District Court had jurisdiction over both actions
brought by Schmidt under 28 U.S.C. § 1331, and we have
jurisdiction over the District Court‘s final orders disposing of
Schmidt‘s claims under 28 U.S.C. § 1291. ―We review de
novo district court orders granting or denying summary
judgment,‖ Elassaad v. Independence Air, Inc., 613 F.3d
119, 124 (3d Cir. 2010), ―apply[ing] the same test required of
the district court and view[ing] inferences to be drawn from
the underlying facts in the light most favorable to the
nonmoving party.‖ Bayer v. Monroe Cnty. Children and
Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009). Our review
is not limited to the reasoning of the court below and we
―may affirm the district court on grounds different from those
relied on by the district court.‖ In re Mushroom Transp. Co.,
382 F.3d 325, 344 (3d Cir. 2004).

B. Schmidt’s Suspension Claim

Appellees‘ assertion of qualified immunity shapes our
analysis of Schmidt‘s suspension claim. Under the rule in
Saucier v. Katz, 533 U.S. 194, 201 (2001), we consider first
whether ―the facts alleged show the officer‘s conduct violated

15
a constitutional right‖ and then, ―if a violation could be made
out . . . the next, sequential step is to ask whether the right
was clearly established.‖12

1. Absent Extraordinary Circumstances,
Schmidt Had the Right to a Pre-
Suspension Hearing

The Fourteenth Amendment provides that a State may
not ―deprive any person of life, liberty, or property, without
due process of law.‖ U.S. Const. amend. XIV, § 1. A
procedural due process claim is subject to a ―two-stage‖
inquiry: (1) whether the plaintiff has ―a property interest
protected by procedural due process,‖ and (2) ―what
procedures constitute ‗due process of law.‘‖ Gikas v. Wash.
Sch. Dist., 328 F.3d 731, 737 (3d Cir. 2003). The parties
agree that the first prong is met: Schmidt had a
constitutionally protected property interest in not being
terminated or suspended from his position as a Capitol Police
Officer without good cause. See Dee, 549 F.3d at 230
(concluding that, under the Pennsylvania civil service statute,
53 Pa. Stat. § 46190, a fireman has a property interest in not
being suspended without just cause).

12
Pearson v. Callahan, 555 U.S. 223, 230 (2009),
limited Saucier, holding that ―[b]ecause the two-step Saucier
procedure is often, but not always, advantageous, the judges
of the district courts and the courts of appeals are in the best
position to determine the order of decisionmaking [that] will
best facilitate the fair and efficient disposition of each case.‖
For reasons that will become evident, the two-step Saucier
procedure is the more helpful one in considering Schmidt‘s
suspension claim.

16
 The question here is whether the procedure followed in
suspending Schmidt comports with due process. In assessing
what process is due, this Court considers the factors set out in
Mathews v. Eldridge:

First, the private interest that will be affected by
the official action; second, the risk of an
erroneous deprivation of such interest through
the procedures used, and the probable value, if
any, of additional or substitute procedural
safeguards; and finally, the Government‘s
interest, including the function involved and the
fiscal and administrative burdens that the
additional or substitute procedural requirement
would entail.

424 U.S. 319, 335 (1976); see Dee, 549 F.3d at 232 (applying
Mathews framework to fireman suspended without pre-
deprivation hearing). Although ―[d]ue process is flexible and
calls for such procedural protections as the particular situation
demands,‖ Mathews, 424 U.S. at 334, several general
principles guide application of the Mathews test. One
―essential principle‖ is that ―a deprivation of life, liberty, or
property ‗be preceded by notice and opportunity for hearing
appropriate to the nature of the case.‘‖13 Biliski v. Red Clay
Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214, 220 (3d Cir.

13
On the day he was suspended, Schmidt was provided
with a letter explaining why he was being suspended without
pay. Schmidt does not claim that this notice was insufficient
and thus we limit our analysis to whether Schmidt was
entitled to a hearing prior to his suspension.

17
2009) (quoting Cleveland Bd. of Ed. v. Loudermill, 470 U.S.
532, 542 (1985)). Accordingly, ―[o]nly in ‗extraordinary
situations where some valid government interest is at stake‘ is
it permissible to postpone the hearing until after the
deprivation has already occurred.‖ Dee, 549 F.3d at 233
(quoting Roth, 408 U.S. at 570 n.7).

As we have set out above, under Pennsylvania law, a
policeman‘s property interest in his job is protected from
either termination or suspension, 53 Pa. Stat § 46190, and due
process therefore entitles him to a pre-suspension or pre-
termination hearing – albeit a brief and informal one. See
Dee, 549 F.3d at 233; Gniotek v. City of Philadelphia, 808
F.2d 241, 243 (3d. Cir. 1986). We therefore reaffirm our
holding in Dee that, absent extraordinary circumstances,
policemen cannot be suspended without pay unless there has
been a pre-suspension hearing.

Gilbert v. Homar, 520 U.S. 924 (1997), does not alter
our analysis. There, the Supreme Court held that a police
officer, who had been arrested and charged with drug
possession, could be immediately suspended without a prior
hearing. Gilbert is not applicable here for two reasons. First,
the Court reasoned in Gilbert that because ―the purpose of
any pre-suspension hearing would be to assure that there are
reasonable grounds to support the suspension,‖ and because
―an independent third party [had already] determined that
there [was] probable cause to believe the employee
committed a serious crime,‖ there was adequate ―assur[ance
without a pre-suspension hearing] that the state employer‘s
decision to suspend the employee was not ‗baseless or
unwarranted.‘‖ Id. at 933-34. Here, Schmidt was only
accused of wrongdoing by his superiors, and no such

18
assurance would exist without a pre-suspension hearing.
Second, the policeman in Gilbert was a university employee,
not a member of a Pennsylvania borough police force, as
specified in section 46190. The parties did not address this
point, however, and the Court assumed without deciding that
―the suspension infringed a protected property interest,‖ and
therefore focused on the University‘s contention that the
policeman ―received all the process he was due.‖ Id. at 929.
Here, unlike the situation in Gilbert, Schmidt is a police
officer subject to section 46190; that statute provides that
both termination and suspension must be for ―good cause‖
and are subject to the same criteria, indicating that both
implicate interests of comparable importance.

Furthermore, we note that providing an opportunity to
be heard prior to suspension without pay would not impose a
significant administrative or fiscal burden on the
Commonwealth of Pennsylvania. Ordinarily, a pre-
deprivation hearing ―need not be elaborate.‖ Loudermill, 470
U.S. at 545. Where adequate post-deprivation procedures are
available, an employee is entitled only to ―notice of the
charges against him, an explanation of the employer's
evidence, and an opportunity to present his side of the story.‖
Id. The hearing can be informal and ―need not definitively
resolve the propriety‖ of the deprivation. Id. ―It should be an
initial check against mistaken decisions – essentially, a
determination of whether there are reasonable grounds to
believe that the charges against the employee are true and
support the proposed action.‖ Id. An employee is generally
not entitled to notice of the reasons for his discharge in
advance of a pre-deprivation hearing, Gniotek, 808 F.2d at
244, or to present his case to an impartial decision-maker at
such a hearing, McDaniels v. Flick, 59 F.3d 446, 460 (3d Cir.

19
1995). Appellees do not claim that providing such limited
pre-suspension hearings would impose any administrative or
fiscal burden on the Commonwealth.14

We therefore conclude that, absent extraordinary
circumstances, due process requires notice and a hearing prior
to suspension without pay, even where union grievance
procedures, after the fact, fully compensate erroneously
suspended employees.15

Appellees contend that our decisions in Dykes v.
SEPTA, 68 F.3d 1564, 1575 (3d Cir. 1995), and Jackson v.
Temple University, 721 F.2d 931 (3d Cir. 1983), hold that
adequate post-deprivation grievance procedures render a pre-
deprivation hearing unnecessary. We disagree. These cases
stand for the proposition that certain defects in post-
deprivation union grievance procedures do not violate due
process because state law already provides remedies for such

14
We note that the standard applicable to suspension
with pay is a more difficult question that we do not consider
here. See Loudermill, 470 U.S. at 544-45 & n.10 (―in those
situations where the employer perceives a significant hazard
in keeping the employee on the job, it can avoid the problem
by suspending with pay‖); Dee, 549 F.3d at 231 n.10 (―the
fact that [the employee] was suspended with pay may—but
need not necessarily—be found to affect the Mathews v.
Eldridge balancing analysis‖).
15
Because we hold, infra, that Schmidt‘s right to a pre-
suspension hearing was not clearly established, we do not
consider whether extraordinary circumstances justifying
suspension without a prior hearing were present in this case.

20
defects. Specifically, ―[w]here a due process claim is raised
against a public employer, and grievance and arbitration
procedures are in place, . . . those procedures satisfy due
process requirements ‗even if the hearing conducted by the
Employer . . . [was] inherently biased.‘‖ Dykes, 68 F.3d at
1571 (quoting Jackson, 721 F.2d at 931). Neither case
supports the broader claim advanced by appellees that a pre-
deprivation hearing is unnecessary when post-deprivation
union grievance and arbitration procedures are available.

The issue in both Dykes and Jackson was the
sufficiency of the post-deprivation union grievance
procedures, not whether a pre-deprivation hearing was
required. Although it appears from the facts of both cases
that the employees were not provided hearings prior to their
termination, this argument was not raised on appeal in either
case and it is apparent from our opinions in these cases that
we did not consider it. Because we did not consider the
availability of a pre-deprivation hearing in Dykes and
Jackson, and our reasoning did not address the contention that
the employees in those cases were entitled to such a hearing,
these cases cannot be read as holding that the availability of
post-deprivation union grievance procedures relieves a public
employer of the obligation to provide an employee with a
hearing prior to his termination or suspension without pay.
See generally IFC Interconsult, AG v. Safeguard Intern.
Partners, LLC., 438 F.3d 298, 311 (3d Cir. 2006) (holding of
a case includes only the facts and reasoning essential to the
holding).

21
 2. Schmidt’s Right to a Pre-Suspension
Hearing Was Not Clearly Established

Although absent extraordinary circumstances, Schmidt
had a right to a hearing prior to his suspension, appellees are
entitled to qualified immunity because this right was not
clearly established at the time of his suspension. ―The
relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.‖ Saucier, 533 U.S. at 202. ―‗This
inquiry . . . must be undertaken in light of the specific context
of the case, not as a broad general proposition,‘ and turns on
the ‗objective legal reasonableness of the action, assessed in
light of the legal rules that were clearly established at the time
it was taken.‘‖ Bayer, 577 F.3d at 192 (quoting Pearson, 555
U.S. at 231).

We begin our analysis by considering the clearly
established legal rules at the time Schmidt was suspended in
July of 2006. The Supreme Court‘s decision in Loudermill,
470 U.S. at 542, clearly established that, absent extraordinary
circumstances, certain state employees were entitled to a
hearing prior to termination. Cases from this Court also made
clear that this rule applied to police officers. See, e.g.,
Gniotek, 808 F.2d at 244. However, it was not clearly
established in 2006 whether this rule applied when
appropriate post-suspension union grievance procedures were
available to suspended employees. Loudermill made clear
that a pre-termination hearing was required even when a post-
termination administrative hearing was available, but
Loudermill dealt with termination, not suspension. We note
that the District Court carefully considered the question and

22
essentially concluded that Loudermill did not apply to
Schmidt‘s suspension, holding that, under Dykes and Jackson,
the availability of the post-suspension union grievance
process ―cured‖ any failure to provide a pre-suspension
hearing.16

In addition to our cases and decisions of the Supreme
Court, ―we routinely consider decisions by other Courts of
Appeals as part of our ‗clearly established‘ analysis when we
have not yet addressed the right asserted by the plaintiff.‖
Williams v. Bitner, 455 F.3d 186, 192-93 (3d Cir. 2006)
(collecting cases). At the time of Schmidt‘s suspension, other
circuits had concluded that ―due process requires pre-
termination notice and an opportunity to respond even where
a [collective bargaining agreement] provides for post-
termination procedures that fully compensate wrongfully
terminated employees.‖ Chaney v. Suburban Bus Div. of the
Regional Transp. Auth., 52 F.3d 623, 629 (7th Cir. 1995); see

16
A district court‘s error of law at step one of the
Saucier procedure is relevant, but not dispositive, when
considering whether a right is clearly established. In some
cases, a lower court‘s error is simply an oversight, rather than
evidence that the law is not clearly established. See, e.g.,
Dee, 549 F.3d at 230 (finding that employee‘s suspension
clearly implicated due process concerns despite lower court‘s
finding of no due process protections), vacating and
remanding 2007 U.S. Dist. LEXIS 21448 (M.D. Pa. Mar. 7,
2007); Kopec v. Tate, 361 F.3d 772, 778 (3d Cir. 2004)
(finding that excessively tight handcuffs violated clearly
established Fourth Amendment law despite lower court‘s
finding of no excessive force), rev’g 230 F. Supp. 2d 619, 622
(E.D. Pa. 2002).

23
also Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d
Cir. 2002) (hearing required prior to demotion of employee,
even where post-demotion union grievance procedures were
available); Cotnoir v. University of Me. Sys., 35 F.3d 6, 12
(1st Cir. 1994) (hearing required prior to termination of
employee, even where post-termination union grievance
procedures were available). These cases did not clearly
establish that Schmidt was entitled to a hearing before being
suspended – as opposed to being terminated.

In light of the closeness of the question, the absence of
clear precedent in this or other circuits, and the District
Court‘s thoughtful conclusion, we cannot say that ―it would
be clear to a reasonable [official] that his conduct was
unlawful in the situation‖ presented to appellees in this case.
Saucier, 533 U.S. at 202. Accordingly, the appellees are
entitled to qualified immunity and the District Court correctly
granted summary judgment to the appellees on Schmidt‘s
suspension claim.

C. Schmidt’s Termination Claim

Schmidt‘s termination claim is much more
straightforward than his suspension claim. We agree with the
District Court‘s holding that Schmidt was provided with
adequate process before he was discharged. As we have
explained above, a pre-termination hearing ―need not be
elaborate.‖ Loudermill, 470 U.S. at 545. An employee is
entitled to ―notice of the charges against him, an explanation
of the employer‘s evidence, and an opportunity to present his
side of the story.‖ Id. ―The pretermination hearing may be
informal so long as it affords the employee an opportunity to
make any ‗plausible arguments that might . . . prevent

24
discharge.‘‖ Fraternal Order of Police Lodge No. 5 v.
Tucker, 868 F.2d 74, 79 (3d Cir. 1989).

We have specifically addressed the adequacy of notice
provided to police officers in a pre-disciplinary hearing in two
cases. See Copeland v. Phila. Police Dep’t, 840 F.2d 1139
(3d Cir. 1988); Gniotek, 808 F.2d at 244. In Gniotek, police
officers participated in a hearing prior to their suspension and
subsequent termination for accepting bribes. Id. at 244-45.
At the hearing, each officer was provided a form stating ―We
are questioning you concerning testimony presented in
Federal Court under oath by Eugene Boris an admitted
number writer, that he paid $60 per month for an extended
period beginning in 1982 for protection of his illegal
activities.‖ Id. at 244. We held:

This statement, clearly, gave Gniotek notice of
the charges and nature of the evidence against
him. It was of such specificity to allow Gniotek
the opportunity to determine what facts, if any,
within his knowledge might be presented in
mitigation of or in denial of the charges . . .
[U]nder the standards enunciated in Loudermill,
this notice satisfied the demands of due process.

Id. at 244.

In Copeland, a police department received allegations
that a police officer was using drugs and requested that the
officer provide a urine sample for drug testing. 840 F.2d at
1142-43. In an interview with a police inspector, the officer
was informed that his urinalysis showed that he had been
using drugs. Id. at 1145. The officer declined to comment

25
and two days later he was suspended and given a notice of
suspension with intent to dismiss. Id. We held that the
inspector‘s statement provided the officer with sufficient
notice of the grounds for his suspension for due process
purposes, even though the officer was not informed of the
details of his urinalysis test and did not learn of the formal
charges against him until two days after the interview. Id. at
1145-46.

There is no dispute that Schmidt was given prior notice
of the hearing which described in sufficient detail the conduct
that was the basis for his suspension. Schmidt‘s only
objection is that appellees did not identify the specific rules
that they claimed his conduct violated. In light of the simple
notices we upheld in Gniotek and Copeland, we conclude that
the notice provided to Schmidt of the termination hearing did
not violate due process.17

III. Conclusion

For the above reasons, we will affirm the orders of the
District Court, granting judgment to the appellees in both
actions brought by Schmidt.

17
In light of this holding, we need not address whether
Schmidt provided sufficient evidence of Superintendent
Shaffer‘s involvement in his termination.

26