McDaniels v. Flick

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

7-11-1995

McDaniels v Flick
Precedential or Non-Precedential:

Docket 94-1838

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 94-1838 and 94-1935

FRANK MCDANIELS

v.

JAMES R. FLICK; JOHN M. FITZPATRICK;
FRANK C. HESS, JR.; JAMES P. GAFFNEY;
JOSEPH W. GATTINELLA; NANCY J. GILOLEY;
DEE M. GRANT; SHARON KREITZBERG;
JAMES J. MCCANN; BARBARA W. MOSS;
ALBERT T. OLENZAK; LUTHER H. SMITH;
ROBERT E. WELSH; DELAWARE COUNTY
COMMUNITY COLLEGE

Delaware County Community College,

Appellant

FRANK MCDANIELS

Appellant

v.

JAMES R. FLICK; JOHN M. FITZPATRICK;
FRANK C. HESS, JR.; JAMES P. GAFFNEY;
JOSEPH W. GATTINELLA; NANCY J. GILOLEY;
DEE M. GRANT; SHARON KREITZBERG; JAMES J.
MCCANN; BARBARA W. MOSS; ALBERT T. OLENZAK;
LUTHER H. SMITH; ROBERT E. WELSH;
DELAWARE COUNTY COMMUNITY COLLEGE

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 92-00932)

Argued May 24, 1995

BEFORE: GREENBERG, ROTH, and ALDISERT, Circuit Judges

(Filed: July 11, 1995)
 Arlin M. Adams
Ralph G. Wellington (argued)
Nancy Winkelman
Schnader, Harrison, Segal &
Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103

D. Barry Gibbons
Gibbons, Buckley, Smith, Palmer
& Proud
P.O. Box 229
Media, PA 19063

Attorneys for appellant-
appellee Delaware County
Community College and the

individual appellees

Richard A. Ash
Cletus P. Lyman (argued)
Michael S. Fellner
Lyman & Ash
1612 Latimer Street
Philadelphia, PA 19103

Attorneys for appellee-
appellant Frank McDaniels

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. PROCEDURAL BACKGROUND

This matter is before this court on appeal by Delaware

County Community College from orders denying its motions for

judgment as a matter of law and on a cross-appeal by Frank

McDaniels from orders dismissing the trustees of the college as
defendants and denying him a new trial on non-economic damages.

The case arose as a result of McDaniels' discharge as a tenured

professor at the college.

We describe the unusual procedural background of the

case at length.1 On February 13, 1992, McDaniels filed this

action in the district court under 42 U.S.C. § 1983 against the

college's Board of Trustees, individually and in their official

capacity, and against the college. He charged that the

defendants, in terminating his employment by reason of certain

serious charges of misconduct made against him by a student at

the college, violated his procedural due process rights under the

United States Constitution. The student later was identified as

John Federici.

In March 1992, the college filed a motion for summary

judgment, which the district court denied without opinion. The

college then unsuccessfully moved for reconsideration. In

denying that motion, the district court explained that there was

an issue of material fact as to whether McDaniels received notice

of the charges or the purpose of the pretermination meeting

before the meeting and whether he was informed of the specific

accusations during the meeting.

1
. The college also appeals from the denial of pretrial motions
for summary judgment. In response McDaniels contends that in
view of the verdict at the trial we cannot entertain the appeal
from the denial of these motions. We do not address this point,
however, for our conclusion that the college was entitled to
judgment as a matter of law renders it moot.
 After discovery, both sides moved for summary judgment.

The court granted partial summary judgment on liability to

McDaniels and thus denied the college's motion. On January 27,

1994, it started a jury trial on damages but, after hearing

McDaniels' testimony, the court determined that there was a

genuine issue of fact as to whether there had been a procedural

due process violation. In a subsequent memorandum opinion

explaining its reasoning, the court noted that actions taken

after the pretermination meeting might show that McDaniels was

aware of the specific charges and that he had an opportunity to

respond to them. Consequently, the court concluded that it had

granted McDaniels partial summary judgment improvidently. The

court therefore offered McDaniels a choice between proceeding

with the trial and proving liability as well as damages, or

having the court declare a mistrial. McDaniels elected to have

the court declare a mistrial. In a subsequent written opinion

explaining why it had reached the foregoing conclusions, the

court included a footnote stating that the trustees had been

dismissed as defendants "sua sponte and without objection"

because they had nothing to do with the pretermination events

leading up to McDaniels' discharge.

The court divided the second trial into three separate

sub-trials, which we shall call phases, with the first phase

focusing on liability. At the close of McDaniel's case on this

phase, which was also the close of all of the evidence as the

college did not call any witnesses, both McDaniels and the

college unsuccessfully moved for judgment as a matter of law
under Fed. R. Civ. P. 50(a). Then in response to specific

questions, the jury returned a verdict that: (1) the college

adequately notified McDaniels that the November 27, 1991 meeting

was a pretermination hearing on Federici's sexual harassment

charges; (2) the college informed McDaniels of the substance of

the case against him during that meeting; but (3) McDaniels was

not given a meaningful opportunity to respond and tell his side

of the story. App. 1214-15. In view of the third finding, the

college could be liable. In the second phase the jury determined

that if McDaniels had been given an adequate opportunity to

respond, the college would not have terminated his employment,

presuming that it would have acted fairly and reasonably. App.

2171. Based on this verdict, the court entered an order

reinstating McDaniels on the faculty and awarding him $134,081 in

lost wages. Finally, in the third phase the jury found that

McDaniels was not entitled to damages for non-economic harm. The

court, nevertheless, awarded him one dollar on that claim for

nominal damages. App. 2333.

The college then moved for judgment as a matter of law

under Fed. R. Civ. P. 50(b). McDaniels filed a "conditional"

post-trial motion for a new trial on the issue of damages. In

opposing the college's motion, McDaniels contended that it was

estopped from moving for judgment as a matter of law because the

college's attorney in his closing argument at the third phase led

the jury to believe that the college agreed to "make peace" with

McDaniels and make him whole. The court, though not estopping

the college, denied the post-trial motions on August 22, 1994.
The college then filed a notice of appeal, and McDaniels filed a

notice of cross-appeal.

Thereafter, McDaniels moved in this court to dismiss

the appeal and cross-appeal on the basis of the statements the

college's attorney made during closing argument at the third

phase. Essentially he contends, as he did in the district court,

that the statements estop the college from seeking post-trial

remedies. After he filed that motion in this court, the district

court issued a memorandum opinion explaining the reason for its

disposition of the post-trial motions, including why it had

rejected McDaniels' judicial estoppel argument. We now deny the

motion to dismiss the appeal and cross-appeal as we agree with

the district court that the college's attorney's comments should

not estop it from pursuing post-trial remedies.

On appeal, the college argues that the district court

should have granted its motions for judgment as a matter of law.

McDaniels cross-appeals from the district court's dismissal of

his case against the individual defendants and from the denial of

his post-trial motion for a new trial on non-economic damages.

We will reverse on the college's appeal from the denial of its

post-trial motion for judgment, will affirm on McDaniels' cross-

appeal challenging the dismissal of the trustees, and will not

reach McDaniels' argument seeking a new trial on non-economic

damages.

II. FACTUAL BACKGROUND
 We set forth the facts, many of which are not in

dispute, viewing them in a light most favorable to McDaniels.2

McDaniels was a tenured professor at the college which is a

public institution in Delaware County, Pennsylvania. In 1990,

the college received complaints from two male students that

McDaniels sexually harassed them. App. 1075-80. After

investigating the reports, the college sent McDaniels a letter

informing him that he had violated the school's sexual harassment

policy. App. 1029-30. The letter warned McDaniels that

"reoccurrence of such incidents will result in serious

disciplinary action including termination of employment." App.

1030. McDaniels responded to these charges in writing and signed

the college's letter to acknowledge that he had reviewed its

contents. App. 1030-31, 1075-80.

In the summer of 1991, McDaniels taught a marketing

class at the college. John Federici, who was one of the students

in the class, had trouble with the course work and sought help

from McDaniels. Due to various problems, including a final term

paper that Federici handed in late, McDaniels gave him a "D" for

the course.3 App. 938. Federici needed at least a "C" in the

course to transfer the credit for it toward a nearly completed

degree from Pennsylvania State University. App. 746. According

2
. We are generous to McDaniels in so viewing the facts because
the college was the verdict winner at the first phase except on
the third issue.
3
. McDaniels first gave Federici a grade of "Incomplete." App.
935.
to McDaniels, Federici became irate and threatened to get him.

App. 1017. McDaniels reported the incident to Assistant Dean

Henry Jackson, McDaniels' supervisor at the time. App. 1017.

Federici also approached Jackson and complained that he

disagreed with McDaniels' grading of his term paper. App. 934-

36. Jackson contacted McDaniels after learning that Federici

already had confronted McDaniels about the grade. App. 936-38.

McDaniels told him that the term paper was not well done. App.

938. Jackson did not read the term paper. App. 947-49. Jackson

then told McDaniels that Federici apparently misunderstood and

that Jackson would contact him and explain the situation to him.

App. 938-39. Jackson then called Federici, but when he could not

make Federici understand McDaniels' position, he told Federici to

contact McDaniels directly. App. 939. Federici refused, saying

something to the effect of "I can't do that." App. 939. When

Jackson pressed him, Federici said that he needed to talk to

Jackson about another matter. App. 939-40. Federici told him

that McDaniels "always wanted to counsel [him]" and "always

wanted to see [him.]" App. 940. Federici also told him that

McDaniels talked to him about "tough love." App. 940-41.

Jackson then asked if he was talking about sexual harassment.

App. 941. Federici said he was and Jackson told him to discuss

the matter with James Bryan, the college's Director of Personnel

Services. App. 941.

On November 18, 1991, Federici met with Bryan. App.

736, 739. Federici told Bryan that he needed credits to transfer

to Pennsylvania State University for his degree; he had problems
with McDaniels' class; he was seeing a counselor regarding

anxiety and stress problems; and he had been involved in various

incidents with McDaniels. App. 736-47. Bryan took notes of the

conversation. App. 739. Bryan asked Federici to make a written

statement regarding these allegations. App. 754. When Federici

said that he would need help doing so, Bryan offered to compile

his notes into a written statement for Federici to sign. App.

754. After their talk, Bryan composed a summary from his notes

which Federici later reviewed and signed. App. 760-61. The

summary, in relevant part, reads as follow:
While in the library studying [John
Federici] fell asleep & awoke to see [Frank
McDaniels] who was massaging John's neck.
John was taken by surprise & felt very
strange that this would have happened. After
that incident, [McDaniels] came into the
library more & more as if he was looking for
John.

John was in the library on another
occasion with his friend Tom & [McDaniels]
came in to talk to them. [McDaniels] seemed
to keep looking at the 'lower half' of John's
body while he spoke. [McDaniels] did not
make eye contact with John but continued to
stare at his lower body.4

John made an appointment to speak [with
McDaniels] in [McDaniels'] office about the
added class work to improve his grade.
[McDaniels] repeatedly said he wanted to help
John & counsel him. [McDaniels] asked if
John had heard of tough love & John said no.
With this, [McDaniels] proceed (sic) to say
that he would help him & 'If I need to I will

4
. Bryan testified that Federici also told him that after
McDaniels left, Federici asked Tom if he noticed the way
McDaniels was staring at him, to which Tom responded negatively
and laughed. App. 781.
 hug you, beat the crap out of you or put my
penis in your mouth.' [McDaniels] reached
over & put both of his hands on John's face &
seemed to be about to cry & said, 'I really
want to help you.' John backed away and was
stunned to hear this.

Summer I ended & John got an
'Incomplete' for his marketing course. He
reluctantly called [McDaniels] at [the
college] to attempt to get the assignments
necessary to get a grade for the course.
[McDaniels] returned his call & made some
'sexual innuendo' remarks. [McDaniels] made
an appointment to see John on campus. John
was reluctant but needed to get an assignment
to remove the 'Incomplete.'

At the appointment [McDaniels] discussed
make-up work & repeating the final exam but
then went into another description of the
tough love thing with another explicit
reference to sexual matters. [McDaniels]
said to come back to his office later if he
wanted to have help on matters external to
class activities but if he did not return,
[McDaniels] would know John didn't want help
in these personal matters. [McDaniels] also
said John should not discuss this with anyone
since he could loose (sic) his job.
[McDaniels] said he would 'get him' if he
mentioned their conversations to anyone.
[McDaniels] left the clear impression that
the two of them could go somewhere off-campus
'in private' to work out these personal
problems (sexual overtones were clear).

App. 258-61 (testified to at app. 763).

After his meeting with Federici, Bryan verified that

Federici was a student in McDaniels' marketing course. He then

alerted several officials at the college about the matter. App.

768-71. In particular Bryan discussed the situation with Dean

Thomas McNicholas and asked Dr. Lois Ann Craig to determine
whether Federici had any record of unusual behavior. App. 771-

72.

On November 27, 1991, Bryan contacted McDaniels and

told him to meet him in Bryan's office at 2:30 p.m. that

afternoon and to bring along his grade book. App. 787-88. Prior

to the meeting, McDaniels met Bryan and inquired about the reason

for it. App. 788-90. Bryan told him only that it was about a

"student problem" and he gave him no other information about the

meeting. App. 788-90; 983. The meeting was held as scheduled

with McNicholas, Bryan, and McDaniels present.

At the start of the meeting, Bryan told McDaniels that

a student had lodged a sexual harassment complaint against him

and that he and McNicholas would recommend McDaniels'

termination. App. 791, 982-83. McDaniels testified that upon

hearing Bryan's opening statement, he was "shocked, dismayed, . .

. thrown offguard." App. 983. Bryan testified that he then told

McDaniels "that the purpose of the meeting was to understand what

the charge was, to have an opportunity for me to relay to him

what the charges were specifically and for him to have a chance

to respond." App. 791. McNicholas, the only other person at

this meeting, confirmed this statement. App. 915-16. McDaniels

testified that he "did not comprehend" that Bryan said explicitly

that it was to be a "pretermination hearing." App. 1072.

McDaniels explained, "Well, if they did say it, they said it in

the same sentence whereby they said they were recommending my

termination to the board of trustees. If they did say it, they

had blown my mind so bad at that point, they had disorganized me
-- disoriented me so much that I didn't remember them saying it,

if they did say it." App. 1073. Bryan and McNicholas also

testified that Bryan told McDaniels that he could adjourn the

meeting at any time. App. 862, 916.

A few minutes into the meeting, Bryan informed

McDaniels that Federici filed the complaint. App. 792-93, 851,

913-14, 1014. McDaniels became very upset upon learning this and

left the room. App. 851, 914, 1014-18. After trying to collect

himself, he returned and "was a little bit better," but was

"still in a total state of shock" and "[didn't] even know what

[he] said." App. 1018. McDaniels told them that Federici had

threatened earlier to "get" him. App. 794, 853. McDaniels told

Bryan and McNicholas that Federici had emotional problems,

Federici's parents were aware of this, and McDaniels had made

Dean Jackson aware of this as well. App. 794-95, 859-60, 918.

Bryan and McNicholas recalled McDaniels as having said that he

knew Federici's parents and had talked to them. App. 794, 859.

McDaniels testified, however, that "If I did say that, I was in

panic," and that he did not know them, and meant to say that they

must have known that Federici had emotional problems. App. 1025-

26. Bryan and McNicholas agreed to talk to Jackson and

Federici's mother. App. 865. Bryan and McNicholas also

testified that McDaniels asked them if he could save his job if

he agreed to seek counselling. App. 858.

During the pretermination hearing, Bryan discussed

Federici's allegations but he did not read or show the written

summary to McDaniels. App. 802, 1018. It is unclear whether
Bryan described Federici's allegations in a direct manner.

However, Bryan asked McDaniels several questions relating to

them. App. 1019-21. Bryan asked whether McDaniels touched

Federici's neck or face in the library. App. 1019. McDaniels

responded that he had not, but might have, and recalled an

incident in which Federici was sitting when he walked into the

library and saw him. App. 917, 1019-20. Bryan asked whether

McDaniels had stared at the lower part of Federici's body in the

library, in the presence of another student. App. 1020.

McDaniels denied this. App. 1020. Bryan also asked whether

McDaniels had talked to Federici about "tough love." App. 854,

915, 1020. McDaniels said that Federici initiated that topic.

App. 1020. Bryan testified that he also asked McDaniels about

the sexually explicit remark quoted by Federici and about the

alleged warning by McDaniels for Federici to keep quiet about

their conversations. App. 854, 856. McDaniels, however, denied

that Bryan ever mentioned these two points. Bryan also brought

to McDaniels' attention his previous reprimand for sexual

harassment, showing him the warning letter. App. 856, 1029.

McDaniels told Bryan and McNicholas that the sexual harassment

allegations regarding Federici were not true.

Bryan and McNicholas testified that Bryan told

McDaniels that he should contact Bryan if he thought of any other

matters, and that he had available various options to deal with

these charges under his collective bargaining agreement with the

college, the college's sexual harassment policy, and the

Pennsylvania Local Agency Law, including an appeal to the
president of the college. App. 861-63, 915. McDaniels did not

recall any of this. App. 1091.

As agreed, Bryan contacted Federici's parents. In

particular Bryan had a telephone conversation with Federici's

mother, who told him that she did not remember talking to

McDaniels. App. 797. McNicholas met with Jackson and asked

whether McDaniels had told him that Federici was "off the wall"

or "crazy" and Jackson answered "no." App. 920.

Subsequently, Bryan sent McDaniels a letter, dated

December 4, 1991, informing him that Bryan had investigated the

matter and would recommend that the Board of Trustees terminate

McDaniels' employment for sexual harassment. App. 804. The

letter also advised McDaniels of his post-termination rights:
As I mentioned during the pre-termination
meeting last Wednesday, you may want to have
the [Board of Trustees'] action heard through
the grievance procedure as provided under the
terms of the collective bargaining agreement
or you may elect to have a hearing before a
committee of the Board of Trustees.

App. 246 (testified to at app. 803-04). Bryan sent McDaniels

another letter, dated December 9, 1991, which said briefly:
Consistent with procedures in Regulation
63.03, page 12 of the College Policy Manual,
I am writing to inform you that you may
exercise your right to request a further
review and investigation by the President of
the College or his designee on the matter of
the sexual harassment complaint lodged
against you. You have five (5) days to file
this request.

Please phone me should you have any
questions on this matter.
App. 248 (testified to at app. 804, 1045).

McDaniels wrote to the college's president, Richard D.

DeCosmo, on December 12, 1991, to request that DeCosmo

investigate the sexual harassment charges. App. 1051. McDaniels

indicated in the letter that he has "formally filed a grievance

with the intent of going all the way through the grievance

procedure (arbitration) & beyond to civil action to avoid

termination." App. 165, 2352-53 (testified to at 1052-53).

McDaniels testified, however, that at the time of the letter, he

had not begun the grievance procedure but was only "looking into"

it. App. 1093-94. McDaniels also wrote:
Enclosed is a chronologized transcript
of my total contact with this student. I
emplor (sic) you to thoroughly investigate
his alligations (sic) personally & overturn
the termination decision. . . .

. . . I would be most happy to visit
you & go over cronology (sic) of contact with
John Federici from first meeting to last
confrontation spanning May 23, 1991 to
October 22, 1991. Every single meeting was
for class business only.

After receiving this letter, DeCosmo reviewed the

documents relating to this matter, and met with Bryan,

McNicholas, and Jackson to review their investigations and

findings. App. 1126. On December 18, 1991, DeCosmo wrote the

following to McDaniels:
I am satisfied that there has been a thorough
review of the matter in question. I do not
believe further review is necessary. The
recommendation to terminate your employment
for violation of the College's sexual
harassment policy will be presented to the
 Board of Trustees at their meeting on
December 18.

App. 250 (testified to at app. 1102).

At the Board of Trustees' meeting on December 18, 1991,

the Board voted unanimously to terminate McDaniels' employment.

McDaniels did not appeal to or ask for a hearing by the Board of

Trustees. Nor has he pursued the matter in state court.

Instead, he began arbitration procedures as provided for by the

collective bargaining agreement. Before the parties completed

selection of the arbitrators, however, McDaniels filed this

action. Consequently, the arbitration proceedings have been

stayed pending its disposition.

III. JURISDICTION

The district court had jurisdiction over this civil

rights action pursuant to 28 U.S.C. § 1331 (federal question) and

28 U.S.C. § 1343 (civil rights). We have jurisdiction under 28

U.S.C. § 1291 over the final orders entered by the district

court.

IV. DISCUSSION

A. Judgment as a Matter of Law

The college made a motion for judgment as a matter of

law based on Fed. R. Civ. P. 50(a) at the close of McDaniels'

case in the first phase, which was also at the close of all the

evidence, and a motion for judgment as a matter of law under Fed.

R. Civ. P. 50(b) after completion of all three phases. The
district court denied both motions, and the college appeals from

both denials.

We exercise plenary review over the district court's

denial of the college's motions for judgment as a matter of law

pursuant to Fed. R. Civ. P. 50(a) and 50(b). Lightning Lube,

Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993), sets forth

the standard we follow when considering a defendant's motion for

judgment as a matter of law:
Such a motion should be granted only if,
viewing the evidence in the light most
favorable to the nonmovant and giving it the
advantage of every fair and reasonable
inference, there is insufficient evidence
from which a jury reasonably could find
liability. In determining whether the
evidence is sufficient to sustain liability,
the court may not weigh the evidence,
determine the credibility of witnesses, or
substitute its version of the facts for the
jury's version.

Id. (citations omitted). A review of the record leads us to

conclude that the jury verdict to the extent unfavorable to the

college at the first phase is not supported by legally sufficient

evidence and that the college should have been granted a judgment

as a matter of law.

The parties agree that the starting point of the

resolution of this procedural due process dispute is Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487 (1985).

In Loudermill, two discharged school district employees sued

their former employers for deprivation of liberty and property

interests without due process in the pretermination procedures.

The Supreme Court held that the district court erred in
dismissing the complaints. The Court first confirmed that under

applicable Ohio law, the plaintiffs had property rights in

continued employment. Id. at 538-39, 105 S.Ct. at 1491. Then,

in determining "what process is due," Morrissey v. Brewer, 408

U.S. 471, 481, 92 S.Ct. 2593, 2600 (1972), the Loudermill Court

began with the long-standing precept that "[a]n essential

principle of due process is that a deprivation of life, liberty,

or property 'be preceded by notice and opportunity for hearing

appropriate to the nature of the case.'" Loudermill, 470 U.S. at

542, 105 S.Ct. at 1493 (citing Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57 (1950)). The

Court reiterated the settled rule that due process "requires

'some kind of a hearing' prior to the discharge of an employee

who has a constitutionally protected property interest in his

employment." Id. (citing Board of Regents of State Colleges v.

Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705 (1972); Perry v.

Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698 (1972)). The

Court noted that one essential component of due process, was a

pretermination opportunity to respond. Id.

Having said that, the Court went on to point out that

"the pretermination 'hearing,' though necessary, need not be

elaborate." Id. at 545, 105 S.Ct. at 1495. Rather, "'[t]he

formality and procedural requisites for the hearing can vary,

depending upon the importance of the interests involved and the

nature of the subsequent proceedings.'" Id. (quoting Boddie v.
Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786 (1971)). Thus,

after balancing the interests of public employees and employers,
the Court held that "[t]he tenured public employee is entitled to

oral or written notice of the charges against him, an explanation

of the employer's evidence, and an opportunity to present his

side of the story." Id. at 546, 105 S.Ct. at 1495. The Court

concluded that "all the process that is due is provided by a

pretermination opportunity to respond, coupled with post-

termination administrative procedures as provided by the Ohio

statutes." Id. at 547-48, 105 S.Ct. at 1496.

The parties agree that under Loudermill McDaniels had a

constitutionally protectible property interest in continued

employment as a tenured professor at the college. Loudermill

therefore provides the guidelines for "what process is due."

Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600. The

question then is whether the college satisfied its obligations

under these guidelines.

After the closing of the first phase of the trial, the

district court charged the jury in relevant part:
Being a tenured professor at a community
college he was a public employee with a
property interest in his job. The law is
that such an employee is entitled to the
notice of the charges against him, an
explanation of the employer's evidence, and
an opportunity to present his side of the
story. And this entire process is known as a
pre-termination hearing.

The notice may be written or oral, that
is spoken. It need not be advance notice,
that is a pre-hearing notification. In other
words, the notice of the charges may be given
at the hearing itself. The hearing can be
informal . . . . It is not required to be a
full hearing before the final decision maker.
 . . .

The employee need not be informed as to
all of the evidence, but at least the
substance of it. He must be given the
opportunity to respond to the charges, and
for that opportunity to be meaningful he must
know the substance of the case that the
employer has against him. This enables the
employee to make any plausible arrangements
that might prevent the termination. . . .

In deciding whether Mr. McDaniels was
given the opportunity to respond, you may
consider what you decide occurred at the
meeting on November 27, 1991, and also what
occurred thereafter, prior to his termination
on December 18th. If you decide that under
all the circumstances that Mr. McDaniels was
substantially unable to respond, either at
the meeting or before December 18, and that
his inability to do so was caused by the
conduct of the college's representatives,
then it could not be said that he had the
opportunity to respond to the charges.

App. 1200-03. The jury found that the college, through Bryan,

did notify McDaniels "that the meeting on November 27, 1991 was a

pre-termination hearing based on the sexual harassment charges of

John Federici;" at that meeting Bryan did inform McDaniels as to
the substance of the case against him; but McDaniels was not

given a meaningful opportunity to respond and tell his side of

the story. App. 1214-15.

On appeal, the college does not quarrel with the

foregoing charge. But McDaniels appears to argue that, as a

tenured professor who had been teaching at the college for 20

years, he deserved more protection than those set forth in

Loudermill. We disagree. The Loudermill Court balanced the

competing interests of the employer and the employee in deriving
the pretermination requirements. In determining whether the

Loudermill standard should apply here, we must consider the

interests of McDaniels versus those of the college and the

students.

It is true that McDaniels has a property interest in

his continued employment and perhaps a liberty interest in

clearing his reputation of sexual harassment charges. But

McDaniels appears to argue that because he is a professor and has

been at the college for 20 years, his property interest in

continued employment is constitutionally greater than those held

by the employees in Loudermill. Yet he has not offered any basis

on which we could or should distinguish reasonably between the

interest of a tenured employee who has worked 20 years and the

interest of one who has worked only one year for the same

employer and we can conceive of no principled way to distinguish

between the two. Arguably, the interest in continued employment

may be greater for younger employees who have started only

recently because they have potentially more years of employment

ahead.

McDaniels claims that "[u]nlike ordinary public

employees, the rights of professors to teach, free from arbitrary

discharge by administrators, implicates the societal value of

academic freedom. Tenure is the pillar upon which academic

freedom rests." Br. at 34. Although this assertion may be true,

it is not material in this case. Inasmuch as the college did not

discharge McDaniels in retaliation for his exercise of First

Amendment rights, this case does not implicate free speech
issues. Indeed, in his complaint McDaniels does not refer to the

First Amendment. Rather, we are concerned with the minimum

process due under the Constitution to protect property rights in

public employment.

McDaniels also cites Skehan v. Board of Trustees of

Bloomsburg State College, 669 F.2d 142, 152 (3d Cir.), cert.

denied, 459 U.S. 1048, 103 S.Ct. 468 (1982), for the proposition

that college professors deserve more process than the run-of-the-

mill, Loudermill-type employee. In Skehan, we adhered to our

earlier decision in Chung v. Park, 514 F.2d 382 (3d Cir.), cert.

denied, 423 U.S. 948, 96 S.Ct. 364 (1975), where we stated that

pretermination safeguards due to tenured professors

may include: (1) written notice of the
grounds for termination; (2) disclosure of
the evidence supporting termination; (3) the
right to confront and cross-examine adverse
witnesses; (4) an opportunity to be heard in
person and to present witnesses and
documentary evidence; (5) a neutral and
detached hearing body; and (6) a written
statement by the fact finders as to the
evidence relied upon.

Chung, 514 F.2d at 386 (emphasis added). Nevertheless, neither

Skehan nor Chung announced that due process required all six of

these steps in cases involving tenured professors. In both

cases, we did not reach that issue because the colleges provided

all six. And neither case based the listed due process

safeguards on the distinguishing fact that the employees were

professors and therefore were entitled to extra protection in the

name of academic freedom. In any event, both cases were decided
before Loudermill. Inasmuch as Loudermill sets the minimum due

process pretermination requirements where state procedure also

provides, as it does here, substantial post-termination

safeguards, Loudermill defines the minimum due process

requirements for this case. We further note that in Skehan we

did not even consider the post-termination remedies, if any, as

later required by Loudermill. And in Chung, although certain

post-termination remedies were available, see 514 F.2d at 385

n.3., we did not consider them in reaching our result. In fact,

we held that some of the six enumerated steps may be provided

after termination, and decided that the professor was not

entitled to a hearing prior to termination. Id. at 387.

In considering the interests of the college, we note

that it, as much as a professor, has a great interest in

preserving its reputation. Moreover, the college had adopted a

policy of protecting its students from the types of behavior

charged against McDaniels. We also need to consider the

interests of the alleged victim of the sexual harassment. If the

charges are well founded, the complainant should be protected

against possible retaliation and threats.

In sum, we conclude that only the Loudermill
pretermination requirements were required here. We therefore

find that the trial court's instructions that due process

required the college to provide McDaniels with notice and

explanation of the charges and an opportunity to respond were

correct. See, e.g., Bradley v. Pittsburgh Bd. of Educ., 913 F.2d
1064, 1077-78 (3d Cir. 1990) (suspension without pay also
requires prior notice and hearing); Copeland v. Philadelphia

Police Dep't, 840 F.2d 1139, 1144-46 (3d Cir. 1988) (suspension

complied with due process where interview was held which notified

employee of charges, allowed him to explain, and notified him of

suspension), cert. denied, 490 U.S. 1004, 109 S.Ct. 1636 (1989);

Gniotek v. City of Philadelphia, 808 F.2d 241, 244 (3d Cir. 1986)

(no advance notice of the pretermination hearing is required;

"Notice is sufficient, (1) if it apprises the vulnerable party of

the nature of the charges and general evidence against him, and

(2) if it is timely under the particular circumstances of the

case."), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183 (1987).

The college argues that McDaniels was given notice of

the hearing and the charges against him, an adequate explanation

of its evidence, and an adequate opportunity to present his side

of the story. The college points out that McDaniels had various

post-termination remedies, including a hearing before the Board

of Trustees, arbitration, and an appeal to the state court.

Finally, the college argues that the verdict should be overturned

because the jury's finding that McDaniels did not have a

meaningful opportunity to respond cannot be squared with evidence

indisputably showing that McDaniels in fact did respond to the

charges.

We agree with the college that, in light of the

undisputed evidence regarding the timing of the relevant events,

the jury's conclusion that he was not given a meaningful

opportunity to respond and to tell his side of the case cannot

stand. McDaniels received adequate notice of the nature of the
November 27, 1991 meeting, and an explanation of the substance of

the case against him. Given this background, the time between

his November 27 meeting with Bryan and McNicholas and the

December 18 Board meeting was adequate as a matter of law for him

to make an appropriate pretermination response. Indeed, not only

did Bryan and McNicholas ask for and receive McDaniels' responses

during the November 27 meeting, but the correspondence shows that

he was encouraged to respond further and did so. In fact,

Bryan's December 9, 1991 letter informed McDaniels that he could

request a review prior to termination by the president of the

college. DeCosmo's actions in reading and answering McDaniels'

letter showed that the college did not refuse him an opportunity

to respond.5 Finally, the facts that McDaniels did respond to

the charges during the pretermination meeting by essentially

denying them and attributing the charges to Federici's emotional

problems, and by writing to DeCosmo after the meeting,

conclusively established that, contrary to the verdict, the

college gave him a meaningful opportunity to respond and to tell

his side of the story before termination. Thus, if the jury's

findings as to the first two questions are upheld, its third

finding cannot stand.

In response to the college's arguments, McDaniels

maintains that he did not receive timely and adequate notice, an

adequate explanation of the specific allegations, or a meaningful

5
. Of course, the fact that they did not accept his responses is
irrelevant for purposes of determining whether his procedural due
process rights were offended.
opportunity to respond, though he does not ask that the verdicts

adverse to him on the first two issues be set aside. McDaniels

contends that the notice given him was insufficient because it

was not provided until the beginning of the pretermination

meeting. We have held, however, that "advance notice is not

required." Gniotek, 808 F.2d at 244. In Copeland v.

Philadelphia Police Dep't, 840 F.2d 1139, 1142-46, we held that

procedural due process was met where a policeman was told that he

had tested positive for illegal drug use, was allowed to respond,

and was told that he would be suspended with intent to dismiss,

all in the course of a single interview.

Second, McDaniels contends that he did not receive

adequate notice and explanation of the charges against him

because he was not told or given the exact allegations made by

Federici. In this regard, it is not disputed that the written

summary of Federici's allegations was not given or read to

McDaniels before his termination. We have held, however, that

pretermination notice of the charges and evidence against an

employee need not be in great detail as long as it allows the

employee "the opportunity to determine what facts, if any, within

his knowledge might be presented in mitigation of or in denial of

the charges." Gniotek, 808 F.2d at 244; see also Derstein v.

Kansas, 915 F.2d 1410, 1413 (10th Cir. 1990) (fact that employee

did not know of all relevant facts and was not given copy of

investigation transcript is insignificant), cert. denied, 499

U.S. 937, 111 S.Ct. 1391 (1991). Nor is it disputed that Bryan

asked McDaniels specific questions about Federici's allegations
and that McDaniels replied to the questions. The only dispute,

then, is whether this session put McDaniels on sufficient notice

of the charges against him so he could respond meaningfully and

on this point the verdict is unassailable.

Thus, given that, for the reasons we already have

stated, McDaniels received adequate notice and a sufficient

explanation of the charges against him, it must be concluded that

he also was given an adequate opportunity to respond. McDaniels

places great emphasis on his state of mind during the

pretermination meeting. In essence, he argues that by not giving

him prior notice of the reason for the meeting, he was placed

into a state of shock and was unable to respond when Bryan told

him he was being charged with sexual harassment and might be

terminated. Though we do not decide the point, this contention

might have been reasonable if he had been dismissed at the end of

meeting, which only lasted about an hour. See, e.g., Adams v.

Sewell, 946 F.2d 757 (11th Cir. 1991). But that was not the case

here. Several weeks elapsed between the pretermination meeting

and the Board of Trustees' meeting at which he was terminated.

Bryan informed him that he could appeal to DeCosmo, which he did.

We need not determine today what amount of time for "cooling

off," if any, must be allowed for an employee to respond to

charges because the facts show that McDaniels had ample time to

collect himself.6 Indeed, the record demonstrates that he

6
. We are not holding that any delay beyond the pretermination
hearing is required for a response. Thus, this case does not
cast doubt on the general practice reflected in the cases of
consulted an attorney7 and sent a written response to DeCosmo

before the December 18 meeting.

Derstein v. Kansas, 915 F.2d 1410, supports our

conclusion that the elapse of time between the November 27 and

the December 18 meetings requires that judgment as a matter of

law be entered in favor of the college. Indeed, Derstein is

remarkably similar to this case on the facts. In that case the

public employer received information that a tenured employee was

sexually harassing other employees. As a result, he was directed

to appear at a meeting with persons responsible for his

employment. He was not informed of the purpose of the meeting

before it started but at the meeting he was advised of the sexual

harassment charges and given ten days to resign or be terminated.

He also was told he could appeal. At the end of the ten days the

employee was given a termination letter which described the

appeal rights and which advised him of the charges against him.

He appealed but the appeal board dismissed his appeal as

frivolous. Following a bench trial, the district court found

that the employee's pretermination rights had been violated and

thus it entered judgment for him.

The court of appeals reversed. Of particular interest

here, it emphasized that the employee "was not terminated at the
(..continued)
terminating an employee at the pretermination hearing. Our
opinion simply reflects what happened here.
7
. McDaniels testified that he talked to his union's attorney
after the pretermination meeting. App. 1095. In addition, his
letter to Cosmo indicated that he was withholding copies of the
letter from Federici "on advice of attorney." App. 2253.
meeting but given ten days to respond" and "[h]e was given ten

days before termination." Id. at 1413. McDaniels had even more

time to respond than the employee in Derstein and he did respond

after the November 27 meeting.

Finally, McDaniels argues that the district court

should have granted him judgment as a matter of law because the

college's termination procedure violated Pennsylvania Local

Agency Law. This argument flies in the face of both logic and

law. His complaint charged that the college violated McDaniels

federal constitutional rights to procedural due process. The

question of whether an employee has a property right in continued

employment is a question of state law. Board of Regents of State

Colleges v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. But the

determination of "'what process is due' . . . is not to be found

in [state statutes]." Loudermill, 470 U.S. at 541, 105 S.Ct. at

1493 (citation omitted). Rather, it is a question of federal

constitutional law. See Vitek v. Jones, 445 U.S. 480, 491, 100

S.Ct. 1254, 1263 (1980) (minimum requirements of procedural due

process are "a matter of federal law" and "are not diminished by

the fact that the State may have specified its own procedures

that it may deem adequate"). Purported violations of state law

are not germane here.

In reaching our result we take note of Judge Aldisert's

contentions in his dissent that the college denied McDaniels

procedural due process of law. He predicates this contention on

his conclusions that the notice of the pretermination hearing was

constitutionally inadequate and that McDaniels did not have an
opportunity to prepare a meaningful defense to the charges.

Judge Aldisert relies principally on Morton v. Beyer, 822 F.2d

364 (3d Cir. 1987), in reaching his conclusions.

Our opinion to this point adequately responds to Judge

Aldisert's contentions except that we have not mentioned Morton

v. Beyer which we thus now address. In Morton v. Beyer at the

pretermination hearing the employee was suspended without pay.

822 F.2d at 366. Thus, the proceedings at the hearing were

critical because unless the employee's response then and there

convinced the administrators not to take action, and it did not,

the employee forthwith would suffer a serious adverse employment

action. Here, unlike the plaintiff in Morton v. Beyer, McDaniels

does not allege that he was suspended without pay at the

pretermination hearing. Rather, his complaint is that the

trustees unlawfully discharged him on December 18, 1991.

Accordingly, McDaniels quite logically did not sue Bryan and

McNicholas, he sued the trustees. Therefore, Morton v. Beyer is

completely distinguishable from this case and it is not

controlling here.

B. Preclusion from Showing that Pretermination

Hearing was a Sham

McDaniels also argues that the district court erred in

refusing to allow him to show at trial that the pretermination

procedure afforded him was a sham. Essentially, McDaniels'

theory is that the college administrators never believed

Federici's allegations to be true. Instead, he charges that they
pounced on Federici's complaint to get rid of a highly paid

professor to save money. The district court, relying in part on

a recent case from the Court of Appeals for the Eleventh Circuit,

McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (in banc), cert.

denied, 115 S.Ct. 898 (1995), ruled that even if proven, the fact

that the proceedings were a sham would be irrelevant to the claim

that pretermination procedural due process was denied because the

sufficiency of post-termination protection was not at issue.

App. 1005-10.

Although due process requires an impartial

decisionmaker before final deprivation of a property interest,

Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 1670

(1982), it is not clear that strict impartiality is required at

each stage of the process. In situations as the one at hand,

there are two stages, pretermination and post-termination, but

normally the post-termination proceedings conclusively determine

the employee's status. The pretermination hearing merely serves

as "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." Loudermill, 470 U.S. at 545-46, 105 S.Ct. at
1495 (citations omitted).

We have not decided the specific question of whether,

in the employment termination context, an impartial decisionmaker

is required at the pretermination hearing. In Rosa v. Resolution
Trust Corp., 938 F.2d 383, 396-97 (3d. Cir.), cert. denied, 502

U.S. 981, 112 S.Ct. 582 (1991), however, we touched upon a
similar issue in another context. Rosa involved a pension plan

of a bank placed under the conservatorship of the Resolution

Trust Corporation (the "RTC"). At first, the RTC decided to

continue the plan and assumed payment obligations. But after two

contribution payments, the RTC decided to halt contributions and

it sent out notices that the plan was to be terminated in two

months. The beneficiaries of the plan sued. Under the Financial

Institutions Reform and Recovery Enforcement Act, however,

certain of the plaintiffs' claims for monetary relief had to be

presented first to the RTC for review. The plaintiffs argued

that this claims procedure violated due process because the RTC

was biased as it had a financial interest in the determination of

their claims. We held that the alleged bias did not violate due

process because, after exhaustion of the RTC claims procedure,

the plaintiffs would have the post-deprivation option of

obtaining a de novo court evaluation of their claims. 938 F.2d

at 397. Our holding in Rosa is consistent with the approaches

taken by other circuits in resolving this issue in the employment

termination context.

In McKinney v. Pate, cited by the district court, a
county official challenged the procedures of his termination,

alleging that the Board of County Commissioners, who made the

preliminary decision to terminate his employment, "was

preordained to find against him, regardless of the evidence."

McKinney, 20 F.3d at 1561. The court of appeals in banc, stated

that "[a] demonstration that the decisionmaker was biased . . .

is not tantamount to a demonstration that there has been a denial
of procedural due process." McKinney, 20 F.3d at 1562. The

court reasoned that the employee was entitled also to a post-

termination hearing and would not be deprived of due process

"unless and until the state refuses to provide due process." Id.

The court held:
[I]n the case of an employment termination
case, 'due process [does not] require the
state to provide an impartial decisionmaker
at the pre-termination hearing. The state is
obligated only to make available "the means
by which [the employee] can receive redress
for the deprivations."' Schaper v. City of
Hunstville, 813 F.2d 709, 715-16 (5th Cir.
1987) (quoting Parratt v. Taylor, 451 U.S.
527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d
420 (1981)) (footnote omitted).

McKinney, 20 F.3d at 1562. Other court of appeals have come to

this same conclusion in cases where hearings are provided both

before and after dismissal. See, e.g., Walker v. City of

Berkeley, 951 F.2d 182, 184 (9th Cir. 1991) ("failure to provide

an impartial decisionmaker at the pretermination stage, of

itself, does not create liability, so long as the decisionmaker

at the post-termination hearing is impartial"); Duchesne v.
Williams, 849 F.2d 1004, 1005 (6th Cir. 1988) (in banc)

(Loudermill does not require a "neutral and impartial

decisionmaker" at the pretermination hearing but only "a right of

reply before the official responsible for the discharge"), cert.

denied, 489 U.S. 1081, 109 S.Ct. 1535 (1989). Likewise, the

Court of Appeals for the Fifth Circuit reached the same

conclusion via an application of Parratt v. Taylor, 451 U.S. 527,

101 S.Ct. 1908 (1981), and held that even if allegations of bias
and conspiracy on the part of the decisionmaker were true, "the

state cannot be expected to anticipate such unauthorized and

corrupt conduct." Schaper v. City of Huntsville, 813 F.2d 709,

714-16 (5th Cir. 1987).

We find these cases convincing. First, as the Supreme

Court has held, "[t]he constitutional [procedural due process]

violation actionable under § 1983 is not complete when the

deprivation occurs; it is not complete unless and until the State

fails to provide due process." Zinermon v. Burch, 494 U.S. 113,

126, 110 S.Ct. 975, 983 (1990). The Zinermon Court held that

part of the process that the State may offer to avoid

constitutional violations is a remedy for erroneous deprivations.

Id. Thus, a discharged employee cannot claim in federal court

that he has been denied due process because his pretermination

hearing was held by a biased individual where he has not taken

advantage of his right to a post-deprivation hearing before an

impartial tribunal that can rectify any possible wrong committed

by the initial decisionmaker.

We also find most persuasive the application of Parratt
v. Taylor, 451 U.S. at 527, 101 S.Ct. 1908, to claims that

pretermination decisionmakers were not impartial. In Parratt v.

Taylor, a prisoner claimed violation of his procedural due

process rights because the mail-ordered hobby kits for which he

had paid disappeared after their delivery to his prison. The

Supreme Court first recognized that "either the necessity of

quick action by the State or the impracticality of providing any

meaningful predeprivation process, when coupled with the
availability of some meaningful means by which to assess the

propriety of the State's action at some time after the initial

taking, can satisfy the requirements of procedural due process."

Parratt v. Taylor, 451 U.S. at 539, 101 S.Ct. at 1915 (footnote

omitted). The Court held that the prisoner failed to make out a

procedural due process claim. The Court reasoned that the nature

of this deprivation, "a tortious loss [resulting from] a random

and unauthorized act by a state employee," makes it difficult if

not impossible for the State to hold a meaningful hearing before

the deprivation. Id. at 541, 101 S.Ct. at 1916. The Court held

that in such instances post-deprivation remedies such as tort

laws are adequate.

This reasoning applies equally well in the employment

termination context. Usually, an employment termination decision

is made initially by the employee's direct supervisor or someone

working in the same organization as the employee -- a sensible

approach given that such person often is already familiar with

the employee's abilities and shortcomings as well as the needs

and interests of the employer organization. Yet, these

individuals are also likely targets for claims of bias or

improper motive simply because of their positions. For example,

personality discord may lead to charges that a direct supervisor

was biased. Or, as here, budget squeezes may lead to charges

that the motivation for the dismissal was to trim the budget.

While these charges may have merit in certain cases, to require

that the state ensure an impartial pretermination hearing in

every instance would as a practical matter require that
termination decisions initially be made by an outside party

rather than the employer as charges of bias always could be made

following an in-house discharge. Not only is this procedure

unduly cumbersome, but it also may be unreasonably invasive for

the employee, who may want to keep the circumstances of his

discharge private. On the whole, we do not think that such

excessive pretermination precaution is necessary where the state

provides a neutral tribunal at the post-termination stage that

can resolve charges of improper motives.

Here, the parties agree that the college is a "local

agency" subject to Pennsylvania Local Agency Law.8 Under

sections 752 and 754 of the Local Agency Law, 2 Pa. Cons. Stat.

Ann. §§ 752 & 754 (Supp. 1994), McDaniels had the right to appeal

the college's decision to the state court. See Monaghan v. Board

of Sch. Directors of Reading Sch. Dist., 618 A.2d 1239, 1241 (Pa.

Commw. Ct. 1992). Under section 754, a court may hold a de novo

hearing "[i]n the event a full and complete record of the

proceedings before the local agency was not made." Moreover, the

court may modify or set aside an agency decision if it finds

violations of the employee's constitutional rights, an error of

law, or that necessary findings of fact were not supported by

substantial evidence. Id.; see also Coyle v. Middle Bucks Area
Vocational Technical Sch., 654 A.2d 15, 16 (Pa. Commw. Ct. 1994);

Springfield Sch. Dist. v. Shellem, 328 A.2d 535, 537-38 (Pa.

8
. Pennsylvania statute defines "local agency" as "[a]
government agency other than a Commonwealth agency." 2 Pa. Ann.
Stat. Ann. § 101 (Supp. 1994).
Commw. Ct. 1974). Clearly then, even aside from McDaniels'

options in his union contract, which procedures he in fact

initiated, the state offered him sufficient process to protect

his property rights.

C. Denial of New Trial on Non-Economic Damages

As we find that the college did not violate McDaniels'

procedural due process rights, we need not reach the question

raised on his cross-appeal as to whether the trial court erred in

denying his motion for a new trial on non-economic damages.

D. Dismissal of Individual Defendants

In a memorandum opinion, the district court noted that

it had dismissed, sua sponte and without objection, the case as

to the individual defendants because they had nothing to do with

the pretermination events leading to McDaniels' discharge. There

has been some confusion as to the resolution of this issue

because McDaniels states that he did not agree to the dismissal

and an order of dismissal was not entered until June 28, 1994,

which was several months after the dismissal at the aborted

trial. When the case was retried, McDaniels' attorney brought up

this point and the court adhered to its ruling. App. 703-04. In

his cross-appeal, McDaniels challenges this dismissal.

We exercise plenary review over the district court's

dismissal of the individual defendants. Alnor Check Cashing v.
Katz, 11 F.3d 27, 29 (3d Cir. 1993). We have some question as to

whether the district court's reasoning was correct as the
trustees actually terminated McDaniels' employment. However, in

light of our conclusion that the college did not violate

McDaniels' rights to procedural due process, we will affirm the

dismissal of the individual defendants. Inasmuch as the

pretermination procedures did not violate McDaniels' rights, the

individual defendants could not be liable.

V. CONCLUSION

For the above reasons, we will reverse the order

denying the college's post-trial motion for judgment as a matter

of law and will affirm the trial court's dismissal of the case as

to the individual defendants. We do not address the college's

appeal from the order denying its motion made at the end of the

McDaniels' case for a judgment as a matter of law as it is moot.

In sum, the consequence of our opinion is that this litigation is

terminated in the federal courts with judgments in favor of all

the defendants.

McDANIELS v. FLICK
No. 94-1838 & 94-1935

ALDISERT, Circuit Judge, Dissenting

Fundamental fairness is the hallmark of the procedural

protections afforded by the Due Process Clause. Here we must

decide whether the pretermination procedures of Delaware County

Community College comported with the requirements of due process.
In my view they did not. I would affirm the judgment of the

district court. Accordingly, I dissent.

Prior to termination, a public employee with a property

interest in continued employment must be afforded "a

pretermination opportunity to respond, coupled with post-

termination administrative [or judicial] procedures." Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 547-48 (1985). To

ensure that the pretermination hearing is a meaningful one, the

employee "is entitled to oral or written notice of the charges

against him, an explanation of the employer's evidence, and an

opportunity to present his side of the story." Id. at 546.

In this case, Professor McDaniels was not provided

adequate notice of the subject or purpose of the November 27,

1991 meeting. He was told only that he should bring his current

gradebook and that it related to "a student problem." App. Vol.

II at 790-91, 868-70. To be sure, advance notice is not a per se

requirement of due process. Gniotek v. City of Philadelphia, 808

F.2d 242, 244 (3d Cir. 1986). Rather, as the majority correctly

noted, "[n]otice is sufficient, 1) if it apprises the vulnerable

party of the nature of the charges and general evidence against

him, and 2) if it is timely under the particular circumstances of

the case." Id. at 244. Thus, although advance notice is not

required, "'the timing and content of notice ... will depend on

appropriate accommodation of the competing interests involved.'"

Id. (quoting Goss v. Lopez, 419 U.S. 565, 579 (1975)). I

conclude that the "particular circumstances" in this case
required some form of advance notice. See Morton v. Beyer, 822

F.2d 364, 369 (3d Cir. 1987).

In Morton v. Beyer, a corrections sergeant at a state

prison was summoned to a pretermination hearing six months after

the putative misconduct, in that case inmate abuse, although he

was aware that an internal affairs investigation was initiated

within a couple of days of the alleged incident. On the morning

of the hearing, the public employee received "vague" notice that

the upcoming hearing had something to do with "a general

allegation of inmate abuse." 822 F.2d at 370. At the hearing

itself, the employee was accompanied by his union representative

and was provided a packet of materials containing the various

investigative reports of the incident for his review and comment,

to which the employee declined to respond at the advice of his

representative. We concluded: "On the undisputed facts of this

case, [the employee] was not afforded timely notice of the nature

of the charges or the general evidence against him." Id. at 371.

This case assumes a fortiori proportions. First,

although Professor McDaniels also was summoned months after the

alleged incident, he was never aware that he was being

investigated at any time prior to the pretermination hearing.

Second, McDaniels received notice more vague than that in Morton
v. Beyer: He was told less than two hours before the meeting

only that he should bring his current gradebook and that it

related to "a student problem." App. Vol. II at 790-91, 868-70.

He was not informed that the upcoming meeting was intended to

serve as a pretermination hearing or that it related to a student
complaint of sexual harassment. Amazingly, this lack of notice

was in keeping with the college's policy that the more serious

the alleged incident, the less notice and information is

provided. App. Vol. II at 802-03. Third, unlike the public

employee in Morton v. Beyer, McDaniels was not accompanied by a

representative and was not afforded the opportunity to review the

investigative report or evidence against him, specifically a

three-page hand-written summary composed by Bryan and signed by

the complaining student. Fourth, as part of the pretermination

procedure the employee in Morton v. Beyer was provided a

departmental hearing after the initial hearing, 822 F.2d at 367

n.1 & n.2, whereas Professor McDaniels, notwithstanding the

availability of what the majority characterize as "post-

termination rights," was refused further pretermination review or

investigation when, at the suggestion of Bryan, he filed a

written request for this additional safeguard from the president

of the college.

Although I am satisfied that McDaniels' pretermination

hearing afforded him, to some degree, an impromptu opportunity to

hear some of the college's evidence and present his side of the

story, clearly he was unable to mount a defense equivalent to the

studied and prepared presentation levelled against him:
In affirming the conclusion of the district
court that [McDaniels] likely received an
inadequate Loudermill hearing, we emphasize
that we simply hold that, on the facts of
this case, prior notice of the nature of the
charges against [McDaniels] was required.
Particularly in light of the significant
lapse in time between the alleged improper
conduct and the hearing in [Bryan's] office,
 [McDaniels] should have been provided
sufficient time, at the very least, to
recount the facts in his own mind and thus to
prepare himself to demonstrate to [Bryan and
McNicholas] that reasonable grounds to
believe that the charges were true did not
exist.

Morton v. Beyer, 822 F.2d at 371 n. 11.

The majority and I seem to agree that it is difficult

to square the jury's finding that Professor McDaniels was

afforded constitutionally adequate notice of the pretermination

hearing and the charges against him with its finding that he was

not afforded a constitutionally adequate opportunity to respond.

With such an agreement is an implicit acknowledgement that notice

and opportunity to be heard are inextricably bound.

Subsumed in the due process requirement of notice is

the concept that the recipient will be afforded some opportunity

to prepare a meaningful defense. In this case the fact that

notice of the pretermination meeting was given, as found by the

jury, was nevertheless insufficient to permit Professor McDaniels

to defend against a serious charge of sexual harassment

intentionally flung upon him out of the blue, as also found by

the jury. Under my view of due process protection, notice of a

meeting is meaningless unless the vulnerable party is permitted a

realistic opportunity to mount a defense and respond accordingly.

To be sure, the jury found that Professor McDaniels

received notice of the meeting. That is a question of fact which

I will not disturb on review. As a matter of constitutional law,

however, I believe that the notice failed to meet the
constitutional requirements of procedural due process. That is a

question for the court and not for the jury.

Accordingly, I dissent.