Davaun Barnett v. Penn Hills School District, et al

Filing

NOT PRECEDENTIAL OPINION Coram: SMITH, NYGAARD and FUENTES, Circuit Judges. Total Pages: 10. Judge: SMITH Authoring. We will affirm.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2828
_____________
DAVAUN BARNETT,
Appellant
v.
PENN HILLS SCHOOL DISTRICT;
PENN HILLS SCHOOL DISTRICT SCHOOL BOARD;
CARL BARBARINO; JENNIFER BURGESS-JOHNSON;
DENISE GRAHAM-SHEALY; HEATHER HOOLAHAN;
ROBERT HUDAK; DONALD KUHN; JOHN ZACCHIA

On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-16-cv-00274
District Judge: The Honorable Terrence F. McVerry
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 13, 2017
Before: SMITH, Chief Judge, NYGAARD, and FUENTES, Circuit Judges
(Filed: July 17, 2017)
_____________________
OPINION*
_____________________
SMITH, Chief Judge
*

This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.

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Plaintiff Davaun Barnett was fired from his job as principal of Linton
Middle School in the Penn Hills School District (“PHSD”). In this action, Barnett
alleges that PHSD, its School Board, and several Board members violated (and
conspired to violate) his rights to procedural and substantive due process. He also
asserts several claims arising under state law. The District Court dismissed
Barnett’s federal claims and declined to exercise supplemental jurisdiction over the
remaining state-law claims. For the following reasons, we will affirm.
I
Barnett’s wife allegedly stole $300 from a school fundraiser. This allegation
led PHSD to charge Barnett with “immorality” for failing to account for or return
the funds. Following a hearing, PHSD’s Board voted to terminate Barnett’s
employment.
Barnett appealed to Pennsylvania’s Acting Secretary of Education. The
Acting Secretary performed a de novo review. By Order dated July 18, 2014, the
Acting Secretary affirmed the Board’s decision—citing, inter alia, Barnett’s
inconsistent representations about what happened to the money.
Barnett petitioned for review to the Commonwealth Court of Pennsylvania.
By Order dated May 28, 2015, the Commonwealth Court affirmed the Acting
Secretary’s Order. Barnett v. Penn Hills Sch. Dist., No. 1412 C.D. 2014, 2015 WL
5436932, at *9 (Pa. Commw. Ct. May 28, 2015).
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On March 9, 2016, Barnett filed this action in the United States District
Court for the Western District of Pennsylvania. Barnett claims that, during the
pendency of his second appeal, he discovered new evidence that his original pretermination hearing was a sham: certain unidentified individuals reportedly
informed Barnett that PHSD had struck Barnett’s salary from the school’s budget
before the hearing occurred. Barnett draws the inference that the Board prejudged
his hearing.
Named as defendants are PHSD, the School Board, and several individual
Board members. Barnett’s Complaint asserts seven Counts against all defendants:
(I) “Procedural Due Process,” (II) “Substantive Due Process,” (III) “Conspiracy,”
(IV) “Violation of the Pennsylvania Constitution,” (V) “Breach of Contract,”
(VI) “Infliction of Emotional Distress,” and (VII) “Vicarious Liability.” JA36–42.
On May 18, 2016, the District Court granted the defendants’ motion to
dismiss. See Barnett v. Penn Hills Sch. Dist., No. 2:16-cv-274, 2016 WL 2895136
(W.D. Pa. May 18, 2016). The District Court dismissed the federal due-process
claims with prejudice for two reasons. First, the District Court concluded that the
due-process claims were precluded. Specifically, it held that the claims against
PHSD and the Board were barred by claim preclusion (res judicata), and the claims
against the individual defendants, who were not parties in the previous litigation,
were barred by issue preclusion (collateral estoppel). Second, the District Court
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alternatively concluded that the due-process claims failed on the merits. The
District Court also dismissed the conspiracy claim with prejudice because it
depended on underlying due-process violations, and dismissed the remaining statelaw claims without prejudice pursuant to 28 U.S.C. § 1367(c).
This timely appeal followed.1
II
We exercise plenary review over the District Court’s dismissal of Barnett’s
federal claims. See, e.g., United States ex rel. Petras v. Simparel, Inc., 857 F.3d 497
(3d Cir. 2017). We agree with the District Court that the claims—procedural due
process, substantive due process, and conspiracy—fail as a matter of law.2

1

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.
2
Barnett argues that the District Court erroneously held that claim and issue
preclusion bar his due-process challenges. Specifically, he relies on a nonprecedential opinion to argue that claim preclusion is inapplicable because the new
evidence was fraudulently concealed. See Haefner v. N. Cornwall Twp., 40 F.
App’x 656, 658 (3d Cir. 2002) (“Claim preclusion . . . applies even where new
claims are based on newly discovered evidence, unless the evidence was . . .
fraudulently concealed . . . .”). He also argues that issue preclusion is inapplicable
because the newly discovered evidence supports a challenge to the basic integrity
of the hearing that was not litigated below. But we need not reach those issues.
Because “[p]reclusion . . . is not jurisdictional[,] . . . we can affirm the District
Court on the merits” and “need not reach the question of the preclusive effect of
the prior state-court judgments.” Great W. Mining & Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 173 (3d Cir. 2010).
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A
We begin with Barnett’s claim that the defendants violated his right to
procedural due process under the Fourteenth Amendment to the United States
Constitution. We agree with the District Court that the two layers of review cure
any procedural defect in the original pre-termination hearing.
This Court has previously held that a public employee with access to de
novo review of a termination decision receives “sufficient process to protect his
property rights,” even if the earlier proceedings were infected with bias. McDaniels
v. Flick, 59 F.3d 446, 461 (3d Cir. 1995); see also Dykes v. SEPTA, 68 F.3d 1564,
1571 (3d Cir. 1995). To be sure, “the most thorough and fair post-termination
hearing cannot undo” the outright denial of pre-termination procedures. Alvin v.
Suzuki, 227 F.3d 107, 120 (3d Cir. 2000). But once some process is provided, we
have held that de novo review can cure any claimed bias in appropriate cases.
McDaniels, 59 F.3d at 461.
Here, the requisite pre-termination process was in fact provided.3 When the
matter was not decided in his favor, Barnett obtained de novo review from the

3

To the extent that Barnett claims that he did not receive appropriate pretermination notice, see Compl. ¶ 24, that question was resolved against Barnett in
the proceedings below, see Barnett, 2015 WL 5436932, at *9 (“Petitioner was
informed that he was being charged with immorality on the basis of his failure to
account for the missing funds raised at the fundraising event.”). While we do not
rule on whether Barnett’s due-process challenges are precluded in their entirety,
Barnett is barred from relitigating the specific issue of notice. It was fully and
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Acting Secretary and additional review from the Commonwealth Court. This case
is thus a straightforward application of McDaniels, notwithstanding Barnett’s “new
evidence.” Even if the new evidence showed bias in the original pre-termination
hearing, it does not undermine the integrity or independence of the Acting
Secretary or the Commonwealth Court.
Barnett attempts to distinguish McDaniels by arguing that the plaintiff in
that case failed to pursue de novo review. But that distinction does not help
Barnett. If a plaintiff’s due-process claim fails because he did not, but could have,
obtained further review, a plaintiff who actually obtains such review does not have
a stronger claim for deprivation of due process. As the District Court aptly put it,
seeking and obtaining review “would tend to further undermine his claim, not
support it.” Barnett, 2016 WL 2895136, at *8.
Accordingly, we will affirm the dismissal of Barnett’s procedural due
process claim.
B
Barnett’s substantive due process claim fails because he was not deprived of
a fundamental interest under the Constitution. Barnett’s claimed interests—his
public employment and reputation—fall short of the mark.

fairly litigated in the earlier proceedings and has nothing to do with the new
evidence. See generally Metro. Edison Co. v. Pa. Pub. Util. Comm’n, 767 F.3d 335,
351 (3d Cir. 2014).
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To prevail on a substantive due process claim, “a plaintiff must establish as a
threshold matter that he has a protected property interest to which the Fourteenth
Amendment’s due process protection applies.” Nicholas v. Pa. State Univ., 227
F.3d 133, 139–40 (3d Cir. 2000) (quoting Woodwind Estates, Ltd. v. Gretkowski,
205 F.3d 118, 123 (3d Cir. 2000)). “[N]ot all property interests worthy of
procedural due process protection are protected by the concept of substantive due
process.” Id. at 140 (quoting Reich v. Beharry, 883 F.2d 239, 243 (3d Cir. 1989)).
The interest must be “fundamental” under the Constitution. Id. at 142.
Barnett fails that threshold inquiry. While his interests in his public
employment and reputation may be entitled to procedural protections, see
Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), Barnett does
not have a substantive right to any particular outcome in those proceedings. As we
have held, “public employment . . . bears little resemblance to other rights and
property interests that have been deemed fundamental under the Constitution.”
Nicholas, 227 F.3d at 143. And, to the extent that Barnett’s claim is “based not only
on loss of his job, but also on reputational injury that decreased his ‘ability to earn
a living,’ it also fails.” Hill v. Borough of Kutztown, 455 F.3d 225, 235 n.12 (3d Cir.
2006).

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Accordingly, we will affirm the dismissal of Barnett’s substantive due
process claim.4
III
Finally, Barnett argues that the District Court should have granted leave to
file an amended complaint. But we agree with the District Court that amendment
would be futile.
“[I]n the event a complaint fails to state a claim, unless amendment would
be futile, the District Court must give a plaintiff the opportunity to amend her
complaint.” Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). We
review a determination of futility de novo. Maiden Creek Assocs., L.P. v. U.S. Dep’t
of Transp., 823 F.3d 184, 189 (3d Cir. 2016). In this case, Barnett proposed three
amendments that he argues would save the Complaint. We reject each.
First, Barnett argues that he could amend the Complaint to clarify that
Barnett’s salary was omitted from the budget for the year after he was going to be
terminated. While the District Court did note that Barnett’s new evidence “strains
credulity” because the Complaint’s description was not clear, Barnett, 2016 WL

4

Barnett does not appeal the dismissal of the conspiracy count. But even if
he did, that claim could only be reinstated if we also reinstated one of his dueprocess claims. See Barnett, 2016 WL 2895136, at *9 (“[W]here, as here, a
plaintiff has not succeeded in pleading an underlying constitutional violation, any
claim for conspiracy must also be dismissed.”). The remaining Counts arise under
state law. Barnett does not appeal the District Court’s decision to dismiss those
claims without prejudice pursuant to 28 U.S.C. § 1367(c).
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2895136, at *4, Barnett’s proposed clarification would not save any claim from
dismissal. The budget’s effective date is not material to our analysis.
Second, Barnett offers to amend his Complaint to include the identities of
the individuals who provided him the new evidence. But their identities have no
legal significance. Barnett’s claims fail even accepting their statements as true.
Finally, Barnett argues that he should be allowed to plead additional facts to
demonstrate that the Acting Secretary’s de novo review was tainted by bias. But
Barnett has not proffered any facts to suggest that the Acting Secretary was herself
biased against Barnett. Instead, Barnett argues that the Acting Secretary considered
testimony from the pre-termination hearing that should never have been admitted
because the witness was not sequestered before testifying. But Barnett has cited no
authority for the proposition that the testimony could not have been considered. Cf.
Gov’t of V.I. v. Edinborough, 625 F.2d 472, 474 (3d Cir. 1980) (noting that “failure
to sequester witnesses is not, in itself, grounds for reversal,” and that “the witness
is not necessarily disqualified”).
Furthermore, this argument has nothing to do with Barnett’s new evidence;
he knew about this issue in 2013 when the testimony occurred. He could have, and
should have, raised this issue before the Acting Secretary and the Commonwealth
Court. Barnett cannot use his own failure to present an issue in a proceeding to

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later show that the proceeding was unfair. Simply put, Barnett received the process
he was due.
IV
For the foregoing reasons, we will affirm.

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