Gilbert v. Homar,
520 U.S. 924 (1997)

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No.96-651. Argued March 24, 1997-Decided June 9, 1997

On August 26, 1992, while employed as a policeman at East Stroudsburg University (ESU), a Pennsylvania state institution, respondent was arrested by state police and charged with a drug felony. Petitioners, ESU officials, suspended him without pay, effective immediately, pending their own investigation. Although the criminal charges were dismissed on September 1, his suspension remained in effect. On September 18, he was provided the opportunity to tell his side of the story to ESU officials. Subsequently, he was demoted to groundskeeper. He then filed suit under 42 U. S. C. § 1983, claiming, inter alia, that petitioners' failure to provide him with notice and a hearing before suspending him without pay violated due process. The District Court granted petitioners summary judgment, but the Third Circuit reversed.

Held: In the circumstances here, the State did not violate due process by failing to provide notice and a hearing before suspending a tenured public employee without pay. Pp. 928-936.

(a) In Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, this Court held that before being fired a public employee dismissable only for cause was entitled to a limited pretermination hearing, to be followed by a more comprehensive posttermination hearing. The Third Circuit erred in relying on dictum in Loudermill to conclude that a suspension without pay must also be preceded by notice and a hearing. Due process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U. S. 471, 481; FDIC v. Mallen, 486 U. S. 230, 240. Pp. 929-931.

(b) Three factors are relevant in determining what process is constitutionally due: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest. Mathews v. Eldridge, 424 U. S. 319, 335. Respondent asserts an interest in an uninterrupted paycheck; but account must be taken of the length and finality of the temporary deprivation of his pay. Logan v. Zimmerman Brush Co., 455 U. S. 422, 434. So long as a suspended employee receives a sufficiently prompt postsuspension hearing, the lost


income is relatively insubstantial, and fringe benefits such as health and life insurance are often not affected at all. On the other side of the balance, the State has a significant interest in immediately suspending employees charged with felonies who occupy positions of public trust and visibility, such as police officers. While this interest could have been accommodated by suspending respondent with pay, the Constitution does not require the government to give an employee charged with a felony paid leave at taxpayer expense. The remaining Mathews factor is the most important in this case: The purpose of a presuspension hearing-to assure that there are reasonable grounds to support the suspension without pay, cf. Loudermill, supra, at 545-546has already been assured by the arrest and the filing of charges. See FDIC, supra. That there may have been discretion not to suspend does not mean that respondent had to be given the opportunity to persuade officials of his innocence before the decision was made. See id., at 234235. Pp. 931-935.

(c) Whether respondent received an adequately prompt postsuspension hearing should be considered by the Third Circuit in the first instance. Pp. 935-936.

89 F.3d 1009, reversed and remanded.

SCALIA, J., delivered the opinion for a unanimous Court.

Gwendolyn T. Mosley, Senior Deputy Attorney General of Pennsylvania, argued the cause for petitioners. With her on the brief were D. Michael Fisher, Attorney General, Calvin R. Koons, Senior Deputy Attorney General, and John G. Knoor III, Chief Deputy Attorney General.

Ann Hubbard argued the cause for the United States as amicus curiae in support of petitioners. On the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Deputy Assistant Attorney General Preston, David C. Frederick, William Kanter, Jeffrica Jenkins Lee, Lorraine P. Lewis, and Mary S. Mitchelson.

James v: Fareri argued the cause for respondent. With him on the brief was Jennifer Harlacher Sibum.

Gregory O'Duden argued the cause for the National Treasury Employees Union as amicus curiae urging affirmance.

Full Text of Opinion

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