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McKinney v. University of Pittsburgh

United States Court of Appeals, Third Circuit

February 14, 2019

JEROME MCKINNEY
v.
UNIVERSITY OF PITTSBURGH, Appellant

          Argued: September 6, 2018

          On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. Civil Action No. 2-15-cv-01538) District Judge: Honorable Nora B. Fischer

          Shannon H. Paliotta University of Pittsburgh Office of General Counsel Jerome

          Kim M. Watterson [Argued] Reed Smith

          M. Patrick Yingling Reed Smith Counsel for Appellant University of Pittsburgh

          Sean L. Ruppert [Argued] Kraemer Manes & Associates Counsel for Appellee Jerome McKinney

          Shannon D. Farmer Burt M. Rublin Ballard Spahr Counsel for Amicus Appellants Temple University, the Pennsylvania State University, Rowan University and Delaware State University

          Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges

          OPINION

          KRAUSE, CIRCUIT JUDGE

         Jerome McKinney, a longtime, tenured professor at the University of Pittsburgh's Graduate School of Public and International Affairs, challenges the University's decision to reduce his salary as a violation of the Due Process Clause. Based largely on the negative implications that can be drawn from a University policy that discusses salary increases but nowhere mentions salary decreases, McKinney argues that he has a property interest in the continued receipt of his base salary and that he was deprived of that interest without due process. The District Court agreed, granting summary judgment for McKinney. Because we conclude McKinney lacks a property interest in the entirety of his base salary, we will reverse and remand for entry of judgment in favor of the University.

         I. Background

         When McKinney was hired in 1970 and granted tenure in 1974, the terms of his employment were not governed by a collective bargaining agreement or employment contract per se, but by University policies promulgated by the University Trustees. Those policies provide that tenured faculty can be terminated only "for cause," App. 795, and they explicitly provide yearly salary raises for all faculty who perform satisfactorily or meritoriously. According to University Policy 07-09-01 (the "Policy"), "[e]ach faculty or staff member performing satisfactorily will receive a percentage increase of the size determined for that year for maintenance of real salary," i.e., a salary increase to account for inflation. App. 1152-53. And for meritorious faculty, the Policy states that "every faculty . . . member whose performance is judged meritorious receives a merit increase in salary." App. 1153. Any salary increase for "maintenance" or merit "become[s] part of [the faculty member's] base contract salary in subsequent years." Id.

         No explicit provisions govern salary decreases, but the Policy provides procedures to address complaints from faculty members dissatisfied with their salary decisions and requires that if a faculty member's performance is "judged unsatisfactory," the faculty member "must be informed of the specific reasons for that judgment." App. 1154.

         Whether a given professor's performance is meritorious, satisfactory or unsatisfactory depends on three criteria: (1) teaching ability, (2) achievements in research and scholarship, and (3) service to the University and/or community. For McKinney, these criteria were assessed in an annual review process overseen by the Dean of the Graduate School of Public and International Affairs (the "Grad School"). To evaluate these criteria, the Dean invites input from the faculty members themselves and from their peers and students. That input is typically in the form of reports prepared by each faculty member, which summarize their activities and achievements for the year; evaluations provided by an elected committee of Grad School faculty members, which scores each faculty member on all three criteria; and student evaluations and enrollment data tracked by the University. Based on the submissions received, the Dean ...


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