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Gikas v. Washington School Dist.

May 16, 2003


On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civ. No. 00-cv-00890) Judge: Honorable Robert J. Cindrich

Before: Becker, Chief Judge,*fn1 Scirica, Circuit Judge,*fn2 and Shadur,*fn3 District Judge

The opinion of the court was delivered by: Becker, Circuit Judge


Argued: February 25, 2003


This appeal concerns the property rights created by the Pennsylvania Veterans' Preference Act ("VPA"), 51 Pa. C.S.A. § 7104. Section 7104(a) of the VPA provides that a veteran possessing the "requisite qualifications" shall be given a preference in the assignment of public jobs. After working as a substitute teacher in the Washington School District, plaintiff James Gikas, who had received an honorable discharge from both the Army and the Navy, sought full-time employment in the District as a social studies teacher. On two occasions, non-veterans were hired into the District's social studies department instead of Gikas, who would have qualified for a preference over the non-veteran applicants if it were shown that he possessed the "requisite qualifications." Gikas asserts that the District violated his substantive due process rights by denying him the preference and by not hiring him when a position became available in the social studies department in 1999.

Gikas also claims that his procedural due process rights were violated because the District failed to define the "requisite qualifications" for the positions and to publish those requirements so that applicant veterans would know what was required in advance of applying for the positions. By not defining in advance the "requisite qualifications," Gikas maintains, the District had free rein to ignore the veterans' preference. In his submission, the District could define "requisite qualifications" post hoc as those of the most qualified applicant so that a veteran would be employed only if he was the most qualified, essentially eviscerating any preference. Gikas argues that § 7104(a) was meant to be a counterpart to § 7104(b) of the VPA, which creates a preference in the assignment of public jobs when a civil service exam is administered; if an applicant veteran passes the civil service exam, he is entitled to the position even if "his name does not stand highest on the eligible or promotional list." 51 Pa. C.S.A. § 7104(b). Thus, Gikas argues that the District must provide in advance of the hiring process an objective definition of "requisite qualifications" to ensure that applicant veterans are actually given the preference to which they are entitled under the Act.

The District Court dismissed the procedural due process claim because Gikas had "fail[ed] to state a claim upon which relief can be granted," and granted the defendants' motion for summary judgment on the substantive due process claim because "there [was] no genuine issue as to any material fact and" the defendants were "entitled to a judgment as a matter of law." Fed. R.Civ. P. 12(b)(6); Fed R.Civ. P. 56(c). We too conclude that Gikas has alleged neither a substantive nor a procedural due process violation. While the veterans' preference contained in § 7104(a) is a property interest subject to procedural due process protection, "not all property interests worthy of procedural due process protection are protected by the concept of substantive due process." Reich v. Beharry, 883 F.2d 239, 244 (3d Cir. 1989). Rather, a property interest must be "fundamental" under the United States Constitution to be subject to substantive due process protection. In our view, the preference contained in § 7104(a) is not sufficiently "fundamental" to qualify as a property interest deserving substantive due process protection.

Moreover, we conclude that procedural due process does not require the District to publish the definition of "requisite qualifications" for a position in advance of the hiring process. The property interest at issue here is not in the teaching position itself, but in the preference. As such, the District is not required to help applicant veterans become qualified for the job; rather it is required to give those applicants a preference only if they are independently qualified. Requiring the publication in advance of the "requisite qualifications" for a position is simply too attenuated from the specific protected property interest in the preference to be required by procedural due process. In sum, Gikas has not established a federal constitutional violation, hence we are constrained to affirm the judgment of the District Court.


In 1997, James Gikas, a veteran of both the Army and the Navy who is certified to teach school in Pennsylvania, applied for a teaching position in the Washington School District and was hired as a part-time substitute teacher. In June 1998, a full-time teaching position became available in the social studies department and the District hired Cyril Walther, a non-veteran substitute teacher who had served an entire year in the position to be filled, teaching the same material required for the position. When Gikas asked why he was passed over for the position, he was told that he did not have enough experience as a full-time substitute teacher. Gikas objected because he had not been informed that working full time (as opposed to part time) as a substitute teacher would affect his ability to be hired as a full-time teacher. The school board represented that it would inform Gikas of future openings in his area of certification and would delineate the minimum qualifications for such openings.

In the summer of 1999, another full-time teaching position became available in the District's social studies department. William Watson, the District's high school principal, and Ronald Junko, the District's assistant high school principal, chose eight candidates, including Gikas, to interview for the position based on the following criteria:

(1) the appearance of the application; (2) extracurricular activities; (3) grade point average; and (4) proximity of his or her residence. During the interview, Watson and Junko evaluated the applicants based on four general criteria; those criteria were further divided into subsets. The criteria were:

(1) Instruction

(A) Teaching Techniques/ ...

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