United States Court of Appeals, Third Circuit

808 F.
2d 241
GNIOTEK, Louis; Christy, Carmen; Gioffre, Joseph;

Pescatore, Augustine; Garris, Leonard; Fraternal Order of
Police, Sullivan, Eugene; Sofronski, David; Schwartz,
Robert; Stansfield, Robert, Appellants,
v.
CITY OF PHILADELPHIA, Goode, Wilson W., Mayor; City
of
Philadelphia, Brooks, Leo; Managing Director, City of
Philadelphia, Sambor, Gregore J.; Police Commissioner, City
of Philadelphia, Hantwerker, Andreas; Inspector Ethics and
Accountability Division, Philadelphia Police Department,
Straub, John Esq.; Assistant City Solicitor, Police
Counsel, Co-Commander Ethics and Accountability Division,
Philadelphia Police Department, Mather, Barbara; Solicitor,
City of Philadelphia.
No. 86-1175.
United States Court of Appeals,

Third Circuit.
Argued Nov. 17, 1986.
Decided Dec. 24, 1986.
Anthony J. Molloy, Jr. (argued), Robert B. Mozenter, Mozenter, Molloy

& Durst, Philadelphia, Pa., for appellants.
Jesse Milan, Jr. (argued), Chief Asst. City Sol., Ralph J. Teti, Divisional
Deputy City Sol., Philadelphia, Pa., for appellees.
Adam Thurschwell, Kairys & Rudovsky, Philadelphia, Pa., for amicus
curiae American Civil Liberties Foundation on behalf of appellants.
Before SEITZ, GIBBONS and HUNTER, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
This case arises out of events surrounding the 1984 Philadelphia Police
corruption trials. In those two trials, United States v. Martin and United States
v. Volkmar, government witnesses identified appellants, who were then officers
in the Philadelphia Police Department, as recipients of unlawful bribes. The two
trials were monitored by investigators for the Philadelphia Police Ethics
Accountability Division ("EAD"). When the witnesses identified the officers,
the EAD investigators immediately reported the witnesses' testimony to the
Police Commissioner and to the commanding officer of the EAD, Inspector
Andreas Hantwerker.1 Thereupon, the Commissioner instructed Inspector
Hantwerker to interview each officer.
The next day Inspector Hantwerker executed a "Notice of Suspension with

Intent to Dismiss" for each officer. He then summoned the officers to appear at
EAD headquarters. Each officer appeared with counsel, and each was called in
individually to the Inspector's office. Hantwerker advised each officer that he
had been identified in federal court testimony as the recipient of bribes and that
he was the subject of a criminal investigation. Each was given his Miranda
warnings and was asked if he wished to make a statement. On advice of counsel
each chose to remain silent.2 Thereupon, Hantwerker gave each his "Notice of
Suspension with Intent to Dismiss" effective immediately, with suspension to
be without pay and to last for 30 days or until dismissal.
Four days later the officers were served "Notices of Intention to Dismiss" which
specified the charges against each officer and which stated that if the recipient
thought that dismissal was unjustified he had, under the regulations of the Civil
Service Commission, ten days to submit to the Commissioner his reasons in
support of his belief that dismissal was unjustified. None of the officers
exercised his right to make a submission within ten days. Each was officially
dismissed when the ten day period expired.
All six appellants lodged grievances with the Police Commissioner challenging
the dismissals. The grievances were submitted to arbitration. The arbitrator
ruled that three of the officers were dismissed with just cause and that two were
not. One case is still pending.
In April, 1985, the Fraternal Order of Police, the individual appellants herein,
and three other officers who do not participate in this appeal filed suit in United
States District Court for the Eastern District of Pennsylvania against the City of
Philadelphia and various city officials (hereinafter collectively referred to as

"the city"). They alleged, inter alia, that the manner in which they were
dismissed from the police force constituted violations of their rights to due
process and equal protection, and violated the fifth amendment's prohibition of
compelled self-incrimination. The district court granted defendants' motion for
summary judgment on all claims. Gniotek v. City of Philadelphia, 630 F.Supp.
827 (E.D.Pa.1986). On appeal, only the due process and self-incrimination
claims are pressed. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291
(1982).
DISCUSSION
6
The only due process issue in this case is whether appellants received adequate
predeprivation hearings. All parties agree that appellants have a cognizable
property interest in their jobs and that the City of Philadelphia provides
adequate post-deprivation remedies.3
In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84
L.Ed.2d 494 (1985), the Supreme Court held that when threatened with
dismissal, a public employee with a property interest in his job is entitled to "a
pretermination opportunity to respond, coupled with post-termination
administrative (or judicial) procedures." Id., 105 S.Ct. at 1496. The
predeprivation hearing need not be elaborate, but it is necessary, even if
extensive post-deprivation remedies are afforded.4 Id. at 1495. Prior to
deprivation "[t]he tenured public employee is entitled to notice of the charges
against him, an explanation of the employer's evidence, and an opportunity to
present his side of the story." Id.
The district court held that appellants received adequate predeprivation

hearings. However, the district court deemed that the deprivation occurred
when appellants were officially dismissed, not when they were suspended
without pay. Gniotek, 630 F.Supp. at 834. Thus, the court held that the 10 day
opportunity to respond in writing which the appellants were given (and which
the Civil Service regulations require) constituted adequate predeprivation
hearings. Appellants urge, however, that the suspensions with intent to dismiss
were de facto dismissals and the deprivation, therefore, occurred when they
were suspended, i.e., before they were given 10 days to respond.5 The
appellants' argument has merit. The Fifth Circuit addressed a similar argument
in Thurston v. Dekle, 531 F.2d 1264 (5th Cir.1976), vacated on other grounds,
438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978). Thurston involved a
tenured public employee who was suspended for thirty days without pay, and
the suspension automatically became a termination if the employee failed to
successfully appeal the suspension within the 30 days. The Fifth Circuit held
that the suspension was the functional equivalent of permanent discharge
subject to a condition subsequent; therefore, the employee threatened with
"suspension" was entitled to the same predeprivation process required when an
employee is threatened with discharge. At least one district court in this circuit
has accepted the reasoning of Thurston. See Hopkins v. Mayor & Council of
Wilmington, 600 F.Supp. 542 (D.Del.1984) (due process violation when
policeman is suspended without pay after being arrested for drug possession).
The Thurston rule prevents the government employer from circumventing the
pretermination hearing requirement, and we adopt it here. Accordingly, we
hold that before appellants were suspended with intent to dismiss they were
entitled to whatever pretermination procedures the Constitution mandates prior
to actual dismissal.
9
Our inquiry, therefore, is narrowed to the question whether the interviews that
the individual appellants had with Inspector Hantwerker were sufficient, under
Loudermill, to discharge the city's duty to provide pretermination hearings. The
adequacy of any hearing must be evaluated in reference to the "two essential
requirements of due process, ... notice and an opportunity to respond."
Loudermill, 105 S.Ct. at 1495. We will examine separately these two essential
requirements.
A. Notice
10
Notice is sufficient, 1) if it apprises the vulnerable party of the nature of the

charges and general evidence against him, and 2) if it is timely under the
particular circumstances of the case. See id.; and see Goss v. Lopez, 419 U.S.
565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). We believe that the notices served to
appellants satisfied both of these requirements.
11
We first examine the content of the notices. During the interviews with
Inspector Hantwerker, each appellant was given a form containing a summary
of the evidence against him and containing a recitation of the Miranda rights.
Each appellant, before being suspended, signed the form applicable to him.
Appellant Gniotek's form, for instance, stated:
I12am Inspector Andreas Hantwerker, this is Deputy City Solicitor John Straub and
your C.O., Captain Joseph Stine.
13 are questioning you concerning testimony presented in Federal Court under oath
We
by Eugene Boris an admitted number writer, that he paid you $60 per month for an
extended period beginning in 1982 for protection of his illegal activities.
14
This statement, clearly, gave Gniotek notice of the charges and nature of
evidence against him. It was of such specificity to allow Gniotek the
opportunity to determine what facts, if any, within his knowledge might be
presented in mitigation of or in denial of the charges. We find that under the
standards enunciated in Loudermill, this notice satisfied the demands of due
process. We have also examined the notices given to the other appellants.
Though different in detail from the notice given to Gniotek, they are similar in
degree of specificity. Accordingly, we hold that they are not constitutionally
defective.
15
Having found that the notices are not lacking in content, we now must
determine if they were timely served. Here, appellants received notice at the
hearing itself; no advance notice was given. Lack of advance notice, however,
does not constitute a per se violation of due process. See, e.g., Goss, 419 U.S. at
582, 95 S.Ct. at 740 (In the case of a student's suspension from school, "[t]here
need be no delay between the time 'notice' is given and the time of hearing.").
Indeed, the First Circuit recently indicated that in the employee termination
context, notice served at the predeprivation hearing satisfies the demands of
due process. Brasslett v. Cota, 761 F.2d 827, 836 (1st Cir.1985).
16
We agree with the First Circuit that advance notice is not required. "[T]he
timing and content of notice ... will depend on appropriate accommodation of
the competing interests involved." Goss, 419 U.S. at 579, 95 S.Ct. at 738. In
Loudermill, the Supreme Court attempted to accommodate the government's
interest in quickly removing an unsatisfactory employee with the employee's
interest in retaining employment. The balance was struck by allowing the
government to dismiss the employee after only a compressed hearing and by
guaranteeing to the employee "an opportunity to present his side of the story"
followed by a prompt and complete post-termination hearing. In the
circumstances of this case, advance notice was not necessary to enable the
employee to present his story and would have burdened the government's
interest in quickly suspending an unsatisfactory employee. The balance has
been struck by the Supreme Court in Loudermill, and imposing an advance
notice requirement would, we feel, tip the scales in this case. We therefore
conclude that the appellants received proper notice.
B. Opportunity to Respond
17
Appellants and amicus curiae, the American Civil Liberties Foundation, urge
that because appellants were the subjects of a criminal investigation and
because their responses in the pretermination hearings could have been used
against them in a criminal action, they were not given a meaningful opportunity
to respond as required by due process. They further urge that the city
unconstitutionally burdened their privilege against self-incrimination because
they were compelled to choose between asserting the privilege and
responding.6
18
These contentions are meritless. The fact that appellants had to choose whether
to talk or to remain silent offends neither the fifth nor the fourteenth
amendment. The Supreme Court's decisions in Williams v. Florida, 399 U.S.
78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) and United States v. Rylander, 460
U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983) lead us to this conclusion.7 In
Williams, the Court observed that the decision whether to respond to the state's
evidence is often a difficult one, but the fact that a choice must be made does
not raise fifth or fourteenth amendment problems:
19
The defendant in a criminal trial is frequently forced to testify himself and to

call other witnesses in an effort to reduce the risk of conviction. When he
presents his witnesses, he must reveal their identity and submit them to crossexamination which in itself may prove incriminating or which may furnish the
State with leads to incriminating rebuttal. That the defendant faces such a
dilemma demanding a choice between complete silence and presenting a
defense has never been thought an invasion of the privilege against compelled
self-incrimination. The pressures generated by the State's evidence may be
severe but they do not vitiate the defendant's choice to present an alibi defense
and witnesses to prove it, even though the attempted defense ends in
catastrophe for the defendant. However "testimonial" or "incriminating" the
alibi defense proves to be, it cannot be considered "compelled" within the
meaning of the Fifth and Fourteenth Amendments.
20
Williams, 399 U.S. at 83-84, 90 S.Ct. at 1896-1897. Relying on Williams, the

Court in Rylander held that no constitutional violation occurs when a defendant
in a civil contempt proceeding is confronted with the option of offering
evidence to discharge his burden of proof or of asserting his fifth amendment
privilege. By remaining silent, the defendant in Rylander was precluded from
discharging his burden of proof and therefore was subject to imprisonment for
civil contempt. If there is no constitutional defect when one must choose
between possible loss of freedom and self-incrimination, a fortiori, there is no
defect when one must opt between speaking at an employment termination
hearing and asserting the fifth amendment privilege.
21
In sum, appellants received all the process due them and were accorded their
rights under the fifth amendment. The judgment appealed from will therefore
be affirmed.
Appellants Gniotek, Christy, Garris and Pescatore were identified on July 19,
1984. Appellants Stansfield and Sofronski were identified on November 14,
1984. The scenarios as to each appellant were identical, however
One appellant requested his "Charter Rights" which, in essence, is a request for
use immunity. The request was denied
Appellants assert, however, that inadequacies in their predeprivation hearings

"tainted their post-deprivation due process rights." Appellants' Brief at 33.
Because we will hold that the predeprivation hearings were adequate, we need
not address this contention. The adequacy of the post-deprivation hearings is
otherwise unchallenged
Thus, Loudermill supersedes our decision in Cohen v. City of Philadelphia, 736

F.2d 81 (3d Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360
(1984). See Stana v. School Dist. of City of Pittsburgh, 775 F.2d 122, 130 (3d
Cir.1985); Brown v. Trench, 787 F.2d 167, 171 (3d Cir.1986)
It should be noted further that under Pennsylvania law, suspensions, like

dismissals are only proper when for just cause; therefore, appellants had a
separate property interest in not being suspended
Appellants and amicus would have us hold that appellants were entitled to use
immunity. Because we hold that appellants' rights under the fifth and fourteenth
amendments were not violated, we, of course, do not find that they were
entitled to use immunity at the pretermination hearings. We note, however, that
an Illinois federal district court recently held that a defendant in a non-criminal
proceeding is not entitled to immunity merely because he is faced with a "Fifth
Amendment Dilemma." United States v. One 1985 Plymouth, 644 F.Supp.
1546, (N.D.Ill.1986). We agree with that holding
Appellants contend that the line of cases holding that a tenured government
employee cannot be dismissed solely because he asserts his fifth amendment
rights is controlling here. See Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316,
38 L.Ed.2d 274 (1973); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20
L.Ed.2d 1082 (1968); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17
L.Ed.2d 562 (1967). In these cases, however, the employees were dismissed not
because of any evidence of bribery or other wrong-doing, but solely because
they chose to assert the privilege against self-incrimination. In the present case,
appellants were confronted with evidence constituting grounds for dismissal; it
was then up to each appellant to rebut this evidence. Instead, each appellant
stood silent. They were privileged to do so, "but the claim of privilege is not a
substitute for relevant evidence." Rylander, 460 U.S. at 761, 103 S.Ct. at 1554.
Appellants were therefore dismissed on the basis of the city's evidence of
bribery. It is the existence of this evidence and the city's use thereof that
distinguishes the present case from Lefkowitz, Gardner, and Garrity

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808 F.

GNIOTEK, Louis; Christy, Carmen; Gioffre, Joseph;

United States Court of Appeals,

Anthony J. Molloy, Jr. (argued), Robert B. Mozenter, Mozenter, Molloy

JAMES HUNTER, III, Circuit Judge:

The next day Inspector Hantwerker executed a "Notice of Suspension with

Philadelphia and various city officials (hereinafter collectively referred to as

The district court held that appellants received adequate predeprivation

Notice is sufficient, 1) if it apprises the vulnerable party of the nature of the

The defendant in a criminal trial is frequently forced to testify himself and to

Williams, 399 U.S. at 83-84, 90 S.Ct. at 1896-1897. Relying on Williams, the

Appellants assert, however, that inadequacies in their predeprivation hearings

Thus, Loudermill supersedes our decision in Cohen v. City of Philadelphia, 736

It should be noted further that under Pennsylvania law, suspensions, like

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