A tenured professor had a property interest in his job, but no legitimate expectation in a set salary. Therefore, the university did not violate the Due Process Clause by reducing his base pay.
A long-tenured professor’s challenge to the University of Pittsburgh’s decision to reduce his salary as a violation of the Due Process Clause failed on appeal, ruled the Third Circuit. The employee had argued that he had a property interest in the continued receipt of his base salary and that he was deprived of that interest without due process. The university countered that though the employee had a property interest in continued employment, he “did not have a constitutionally protected interest in any set salary.” The appeals court agreed with the university, concluding that university policy regarding faculty salaries was insufficient to support a constitutionally protected property interest (McKinney v. University of Pittsburgh, February 14, 2019, Krause, C.).
When the employee was hired in 1970 and granted tenure in 1974, the terms of his employment were governed by university policies promulgated by the university trustees. Those policies provided that tenured faculty can be terminated only “for cause,” and provided yearly salary increases for all faculty who perform satisfactorily or meritoriously. Any salary increase becomes part of the faculty member’s base contract salary in subsequent years.
Review process. No explicit policy provisions governed salary decreases, but the policy provides procedures to address complaints from faculty dissatisfied with their salary decisions. 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 the employee, these criteria were assessed by the annual review process overseen by the dean of the school. The dean invited input from the faculty members themselves, peers, and students.
The employee did not fare well in recent years in the review process. In 2010 and 2011, the dean expressed concern about declining enrollment in his classes, poor student evaluations, and a stagnant research agenda. Nonetheless, he was granted the standard maintenance increases for faculty with “satisfactory” performance. Despite the admonition from the dean, the same deficiencies persisted through the 2012 review. The employee ranked last among faculty and was given a performance rating of “less than satisfactory.” Still the employee was given a nominal salary increase, but was warned of a possible 0 percent increase or even a salary reduction.
Salary reduction. After the employee showed no improvement in performance in the 2013 review, the dean reduced his salary by 20 percent. The employee lodged a complaint with the university. Following an investigation, the university concluded that the reduction was not improper. At that point, the employee filed a complaint alleging the university unconstitutionally deprived him of his property interest in the entirety of his base salary. The district court agreed with the employee and granted his motion for summary judgment.
On appeal, the university argued that the employee did not have a property interest in his full salary because university policy does not protect his base salary against reduction. The Third Circuit reversed the judgment of the district court, concluding that university policy regarding faculty salaries was insufficient to support a constitutionally protected property interest.
Property interest in salary. The appeals court first addressed what is needed to establish a property interest in this context. Core to the existence of an individual property interest is the requirement that the plaintiff have “a legitimate claim of entitlement to” the interest at issue that stems from “an independent source such as state law” or “rules of understandings that secure certain benefits.” Thus, it is not sufficient that a plaintiff has an “abstract need or desire” or a “unilateral expectation” of a particular benefit. Instead, the property interest must arise from either the “circumstances of . . . service” or the “mutually explicit understandings that support [the] claim of entitlement to the benefit.”
The Supreme Court has set a high bar for how “explicit” an understanding must be in order to support a property interest. In the context of state universities, the Court has recognized a property interest in “continued employment” where tenured faculty have been expressly informed that they may be terminated only “for cause.” Conversely, the Court has declined to recognize such an interest where the claimants failed to “show the requisite mutual understanding, even if those claimants could show “reasonable expectations of” receiving the benefit at issue.
The Supreme Court has not addressed the contours of a property interest in base salary, but other circuits have held that a public employee may claim such an interest only where there is explicit assurance to that effect. On the other hand, where there is an ambiguity or it is explicit that a public employee’s salary can be reduced, the appeals courts do not recognize a property interest in a set salary. In general, “the more detailed and conditional the understanding becomes between the employer and employee, the weaker the linkage becomes between those understandings and the Due Process Clause.”
No legitimate expectation. In this instance, the appeals court was confronted with a policy that fell somewhere in between the explicit assurances that a salary cannot be reduced, and the explicit admonitions that it can be reduced. The employee grounded his claim on a policy statement that faculty members performing satisfactorily will receive a percentage increase that year for maintenance of real salary. But this language was not sufficient to give the employee a “legitimate expectation” in the continuance of his base salary.
First, the policy speaks to a potential property interest in “maintenance,” not a property interest in base salary. Thus, to the extent it creates any “mutually explicit understanding,” it is not one that supports the property interest that the employee claims. Second, the employee’s entire argument is premised on a negative implication. Here, the employee failed to establish that the policy explicitly prohibited the reduction of base salary. Third, any assurances given by the policy were too “detailed and conditional” to support a property interest in base salary. The policy expressly anticipated negative consequences for unsatisfactory performance, and it specified procedures a faculty member may invoke to seek reconsideration of salary decisions.
Finding that the language of the policy offered too slender a reed to support the weight of a constitutional right, the Third Circuit reversed the district court’s grant of summary judgment to the employee.
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