On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-06-cv-00740). District Judge: Honorable Gregory M. Sleet.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Before: SLOVITER, HARDIMAN, Circuit Judges, and POLLAK*fn1, District Judge.
Edward A. Biliski ("Biliski") brought this civil rights action under 42 U.S.C. § 1983 against his former employer, the Red Clay Consolidated School District Board of Education (the "Board"), and individual defendants employed by the Board (together, "Red Clay"), alleging that they violated his procedural due process rights in terminating his employment. The District Court entered summary judgment in favor of Red Clay, concluding that Biliski was an at-will employee without a constitutionally protectable property interest in his job and, therefore, he could not establish a due process claim. We find it unnecessary to address whether Biliski possessed a property interest in his continued employment because, even assuming that he had such an interest, the process he received comported with his rights under the Due Process Clause of the Fourteenth Amendment.
I. Factual and Procedural Background
Biliski was employed by the Red Clay School District as a computer technician from March 20, 2001, until he was terminated effective August 11, 2006. During that time, he was also briefly employed as a Help Desk Coordinator, but returned to his job as a technician. Biliski was under the impression that he could only be fired for "just cause," but admits that this understanding came from his co-workers, not from any documents he received from Red Clay. App. at 29.
Biliski's termination resulted from several performance issues that began in March 2006. On March 30, 2006, Ted Ammann, Red Clay School District's Manager of Technology, addressed a disciplinary memo to Biliski, noting that he failed to meet an important deadline (after being asked to do so a "number of times"), that he refused to undertake another task he was asked to complete, saying that it was "someone else's job," and that he showed a "lack of respect and attention" at a customer service training. App. at 80. This memo also states that "[f]ailure to demonstrate an improved attitude as well as completion of assigned tasks will result in disciplinary action" and that "[t]here will be a follow-up by the end of April regarding the issues outlined above." App. at 80. The memo has a place for Biliski's signature at the bottom but is not signed by Biliski. In his deposition, Biliski recalled a meeting with Ted Ammann and Cara Gaudino, Red Clay's technology coordinator and Biliski's direct supervisor, in which they told him they were "disappointed" in him or his work, but Biliski claimed that he was not given a copy of this disciplinary memo. App. at 45. Biliski also testified that he did not recall being told he had to improve his performance within a specific period of time or that failure to do so would result in discipline.
On July 31, 2006, Ammann issued Biliski a second memo regarding another missed deadline. The memo states: "Future missed deadlines will result in disciplinary action up to and including termination." App. at 81. Biliski testified that he discussed this missed deadline with Ammann and was given a copy of this memo by Ammann's secretary, Rhonda Henry-Carter, but Biliski refused to sign it: "I told [Henry-Carter] something like I got 4,000 closed work orders and he's going to make a big deal out of this one little thing." App. at 47. HenryCarter's version of that conversation was that Biliski "became very angry and said that he wasn't going to sign that 'fucking memo.'" App. at 131. Biliski denied using profanity, but admitted making disparaging comments about Ammann.
On August 8, 2006, Biliski was called to a meeting with Ammann and Debra Davenport, Red Clay School District's manager of human resources, and was given three disciplinary memos, each dated August 7, 2006. The first relates to the inappropriate language and behavior he displayed when refusing to sign the earlier memo and also cites him for leaving the office that day without informing anyone of his whereabouts. It states that Biliski had been told to email his supervisor when leaving and that "[c]ursing or disparaging remarks about supervisors . . . will lead to discipline up to and including termination." App. at 83. The second memo cites him for parking in a fire lane after having received an email (sent to the whole team) directing employees not to park there. The third memo states that when asked to unload a van of equipment several days before, Biliski refused and stated, "No, I'm not doing it. I've been in the schools and it's hot." App. at 85. The memo also informed him that his "[f]ailure to complete assigned tasks can not [sic] be tolerated and continued refusal will lead to disciplinary action up to and including termination." App. at 85.
In his deposition, Biliski testified that he was not given an opportunity to respond to the charges in the memos: "During that meeting when I tried to rebut what he was saying, Debra Davenport stopped me [and] said, 'Oh, no, you don't. . . . You have to listen to what he's saying.'" App. at 55. However, in a "verification" filed in the District Court, Ammann claimed that "Biliski was given an opportunity to explain his actions," but instead just "talked about issues that were unrelated to the performance problems raised." App. at 129.
At the end of the August 8, 2006, meeting, Biliski was given a letter informing him that his name "will be submitted to the Board of Education for termination" and that "[i]f approved your date of termination will be effective August 11, 2006." App. at 86. Biliski admits that the meeting ended with him calling Ammann a "no good motherfucker," throwing a pencil at him, and being asked to leave the building. App. at 56.
Sometime after this meeting, the deputy superintendent, Diane Dunmon, received a "form" from Davenport recommending Biliski's dismissal. Dunmon's deposition testimony was that she would normally have a follow-up conversation with a supervisor about the employee's potential dismissal, so she would have had conversations about Biliski (and seen corroborating documents). However, Dunmon had no "detailed recollections other than there were performance issues as I recall." App. at 67-68. As a general matter, when the administration recommended firing an employee, ...