Kmetz v. University of Delaware et al
MEMORANDUM OPINION re 9 MOTION to Dismiss. Signed by Judge Richard G. Andrews on 6/25/2014. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
UNIVERSITY OF DELAWARE, RICK L.
ANDREWS, In his individual and official
Civil Action No. 14-309-RGA
capacities, THOMAS E. BECKER, In his
individual and official capacities, BRUCE
WEBER, In his individual and official
capacities, NANCY BRICKHOUSE, In
her individual and official capacities,
Michael G. Rushe, Esq., Hudson Jones Jaywork & Fisher, Dover, DE; Mark Frost, Esq., Ryan
Lockman, Esq., Mark B. Frost & Associates, Philadelphia, PA, Attorneys for Plaintiff.
James D. Taylor, Jr., Esq., William E. Manning, Esq., Gerard M. Clodomir, Esq., Saul Ewing LLP,
Wilmington, DE, Attorneys for Defendants.
The Plaintiff filed this action against the Defendants claiming due process violations under
42 U.S.C. § 1983 ("Count I") and breach of contract ("Count II"). (D.I. 1at15-18). Pursuant to
Fed. R. Civ. P. 12(b)(6), the Defendants move to dismiss Count I of the Complaint as to all
Defendants and Count II as to the Individual Defendants. (D.I. 9 at 1). The Defendants also move
to strike portions of the Plaintiff's Prayer for Relief pursuant to Fed. R. Civ. P. 12(f). (Id.). The
Court's jurisdiction over Count I is pursuant to 28 U.S.C. § 1331 and the Court has supplemental
jurisdiction over Count II, a state law claim, pursuant to 28 U.S.C. § 1367.
According to the Complaint, the Plaintiff is a tenured associate professor who was denied a
promotion to full professor. (D.I. 2, 15). He claims that it was a part ofhis contract that he could be
promoted for "service" (as opposed to scholarship or teaching), and that there were irregularities in
the process used to consider, and deny, his request for promotion. (D.I. 4, 15-16). The Complaint
alleges that the process was not "fair and impartial" and that the wrong criteria were used. (Id.).
In addressing a claim made pursuant to 42 U.S.C. § 1983, courts engage in a two-step
inquiry. Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). First, courts ask whether "the asserted
individual interests are encompassed within the Fourteenth Amendment's protection of 'life,
liberty, or property"'; and second, whether the procedures available provided the plaintiff with
"due process oflaw." Id. Here, the Plaintiff asserts that the Defendants deprived him of his
constitutionally protected property rights. (D.I. 1 at 16-17). The Supreme Court, in Board of
Regents ofState College v. Roth, held that in order to hold a property interest in a benefit, a person
must have a legitimate claim of entitlement to the interest rather than an abstract need or desire for
it or a unilateral expectation of obtaining that benefit. 408 U.S. 564, 578 (1972). The Plaintiff
concedes that a government employee does not ordinarily have a property right in a promotion.
(D.I. 11 at 14). Rather, the Plaintiff asserts a legitimate claim of entitlement to the procedures
contained in the University of Delaware's promotional policy, including promotions based on a
"service track." (D.I. 11 at 14). This distinction, the Plaintiff argues, has been recognized by
courts, including the Third Circuit, as potentially creating property interests. (Id. at 14-15).
Defendants respond that courts have time and again made clear that specific university
guidelines for promotion do not create property interests protected by the Fourteenth Amendment.
(D.I. 9 at 5, 6). In support of their claim, the Defendants cite Kovats v. Rutgers, The State
University, 822 F.2d 1303 (3d Cir. 1987). In Kovats, while the court did not formally rule on the
subject, it stated that the "Supreme Court has made clear that promises of specific procedures do
not create property interests." Id. at 1314. The court went on to suggest that, without more, a party
cannot assert a property interest in regulations setting out procedures for tenure evaluations. Id.
The court also suggested that a contract by itself was insufficient: "it is difficult to ascertain
whether [the] claim falls under traditional constitutional principles or merely states a claim for
breach of contract." Id.
The Court agrees with the Defendants' position. While courts have recognized that
university procedures may give rise to definite property interests, these procedures must have been
enacted to limit University officials' discretion in making decisions. Id.; see also Goodisman v.
Lytle, 724 F.2d 818, 820 (9th Cir. 1984) ("a constitutionally protected interest is created only ifthe
procedural guidelines are intended to be a 'significant substantive restriction' on University
decision making"); Teigen v. Renfrow, 511F.3d1072, 1081 (10th Cir. 2007). The Ninth Circuit's
opinion in Goodisman is particularly helpful in this matter. In Goodisman, the court found, first,
that the procedural steps for tenure and promotion evaluation had no constitutional significance;
The Third Circuit, in Robb v. City ofPhiladelphia, held that the plaintiff in that case could claim no legitimate claim
of expectation to a promotion. 733 F.2d 286, 293 (3d Cir. 1984).
and, second, that the guidelines did not "enhance a candidate's expectation ofreceiving tenure
enough to establish a constitutionally protected interest." 724 F.2d at 820. Similarly to the tenure
procedures in Goodisman, the University of Delaware's promotional policy indicated three factors
considered by University officials in making decisions on promotions. (D.I. 6-7). The University
policy also had a promotion process schedule similar to the procedural steps determined to have no
constitutional significance in Goodisman. (Id. at 7). Accordingly, the Court does not find the
University of Delaware's policy to be a substantive limitation on the University officials'
discretion. Rather, the criteria specified in the University's policy serve as guidelines for the
University officials in exercising their discretion. For this reason, the Court finds that the Plaintiff
does not have a constitutionally protected property interest in the promotional process contained in
the University's policy.
The Court agrees with the Defendants that the cases cited by the Plaintiff in support of his
claim are not persuasive. With regard to Zavatsky v. 0 'Brien, the Plaintiff relies on the court's
recognition that a party could demonstrate a property interest in continued employment upon a
showing of a de facto tenure policy in place. 902 F. Supp. 2d 135 (D. Mass. 2012). However, the
more relevant point is that the court also ruled that the plaintiff in that case could not have a
property interest in a merits-based promotion process. Id. at 142. Thus, Zavatsky supports the
conclusion that the Plaintiff does not have a constitutionally-protected interest in this case.
Further, the Plaintiffs reliance on Stana v. School Dist. Of City ofPittsburgh is misguided.
775 F.2d 122 (3d Cir. 1985). There, the plaintiff was removed from an eligibility list without
notice and an opportunity to be heard. Id. at 127. The court ruled that retention on the eligibility list
was a sine qua non for employment as a teacher in that school district. Id. at 125. Thus, the court
found that the interest in remaining on the eligibility list was a significant private interest,
reasoning that courts have frequently recognized the "severity of depriving a person of the means
oflivelihood." Id. at 128. The facts in Stana are not analogous to the facts in this case. Here, the
Plaintiff's interest in receiving a promotion does not rise to the level of private interest discussed in
Stana. For this reason, the Court does not find the court's ruling in Stana to be helpful to the
decision in this case.
The Court grants the motion to dismiss Count I as to all Defendants. The parties agreed that
if the Court granted the motion to dismiss the federal claim, it would be appropriate to decline to
exercise supplemental jurisdiction over the breach of contract claim (D.I. 9 at 7; D.I. 11 at 19 n.4),
which can presumably be filed and litigated in Superior Court. The Court need not address the
Defendant's motion to strike portions of the Plaintiff's prayer for relief as that request is moot. A
separate order will be entered.
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