Wednesday, March 30, 2011

employment - due process - suspension - prior hearing

Schmidt v. Creedon - 3d Cir. - March 29, 2011

Under Pennsylvania law, 53 Pa. Stat. § 46190, policemen [sic] and fireman [sic] cannot be suspended or terminated without just cause. 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.

The District Court held that, despite plaintiff'‘s property interest in his position, because there was a post-suspension hearing provided by the Collective Bargaining Agreement, no pre-suspension hearing was necessary.

The Third Circuit reversed, holding 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 plaintiff‘s suspension, it held that appellees were entitled to qualified immunity.