Edward A. Biliski v. Red Clay Consolidated School District Board of Education

Hon. Louis H. Pollak, Senior Judge, United States District*
Court for the Eastern District of Pennsylvania, sitting by
designation.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1742
EDWARD A. BILISKI,
Appellant
v.
RED CLAY CONSOLIDATED SCHOOL DISTRICT
BOARD OF EDUCATION; IRWIN J. BECNEL, Jr.;
CHARLES CAVANAUGH;
GARY LINARDUCCI; JAMES J. BUCKLEY;
MARGUERITE VAVALA;
YVONNE JOHNSON; MARTIN A. WILSON, Sr.,
individually and in their official capacities as members of the
Red Clay Consolidated School District Board of Education;
ROBERT J. ANDRZEJEWSKI, individually and in his official
capacity as Superintendent of the Red Clay
Consolidated School District;
RED CLAY CONSOLIDATED SCHOOL DISTRICT
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-06-cv-00740)
District Judge: Honorable Gregory M. Sleet
Argued March 5, 2009
Before: SLOVITER, HARDIMAN, Circuit Judges,
and POLLAK , District Judge*

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Joseph M. Bernstein (Argued)
Wilmington, DE 19801
Attorney for Appellant
Seth J. Reidenberg
Barry M. Willoughby (Argued)
Young, Conaway, Stargatt & Taylor
Wilmington, DE 19899
Attorneys for Appellee
Filed: July 29, 2009
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Edward A. Biliski (“Biliski”) brought this civil rights
action under 42 U.S.C. § 1983 against his former employer, the
Red Clay Consolidated School District Board of Education (the
“Board”), and individual defendants employed by the Board
(together, “Red Clay”), alleging that they violated his procedural
due process rights in terminating his employment. The District
Court entered summary judgment in favor of Red Clay,
concluding that Biliski was an at-will employee without a
constitutionally protectable property interest in his job and,
therefore, he could not establish a due process claim. We find it
unnecessary to address whether Biliski possessed a property
interest in his continued employment because, even assuming
that he had such an interest, the process he received comported
with his rights under the Due Process Clause of the Fourteenth
Amendment.

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3
I.
Factual and Procedural Background
Biliski was employed by the Red Clay School District as
a computer technician from March 20, 2001, until he was
terminated effective August 11, 2006. During that time, he was
also briefly employed as a Help Desk Coordinator, but returned
to his job as a technician. Biliski was under the impression that
he could only be fired for “just cause,” but admits that this
understanding came from his co-workers, not from any
documents he received from Red Clay. App. at 29.
Biliski’s termination resulted from several performance
issues that began in March 2006. On March 30, 2006, Ted
Ammann, Red Clay School District’s Manager of Technology,
addressed a disciplinary memo to Biliski, noting that he failed to
meet an important deadline (after being asked to do so a
“number of times”), that he refused to undertake another task he
was asked to complete, saying that it was “someone else’s job,”
and that he showed a “lack of respect and attention” at a
customer service training. App. at 80. This memo also states
that “[f]ailure to demonstrate an improved attitude as well as
completion of assigned tasks will result in disciplinary action”
and that “[t]here will be a follow-up by the end of April
regarding the issues outlined above.” App. at 80. The memo
has a place for Biliski’s signature at the bottom but is not signed
by Biliski. In his deposition, Biliski recalled a meeting with Ted
Ammann and Cara Gaudino, Red Clay’s technology coordinator
and Biliski’s direct supervisor, in which they told him they were
“disappointed” in him or his work, but Biliski claimed that he
was not given a copy of this disciplinary memo. App. at 45.
Biliski also testified that he did not recall being told he had to
improve his performance within a specific period of time or that
failure to do so would result in discipline.
On July 31, 2006, Ammann issued Biliski a second memo
regarding another missed deadline. The memo states: “Future
missed deadlines will result in disciplinary action up to and
including termination.” App. at 81. Biliski testified that he

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4
discussed this missed deadline with Ammann and was given a
copy of this memo by Ammann’s secretary, Rhonda Henry-
Carter, but Biliski refused to sign it: “I told [Henry-Carter]
something like I got 4,000 closed work orders and he’s going to
make a big deal out of this one little thing.” App. at 47. Henry-
Carter’s version of that conversation was that Biliski “became
very angry and said that he wasn’t going to sign that ‘fucking
memo.’” App. at 131. Biliski denied using profanity, but
admitted making disparaging comments about Ammann.
On August 8, 2006, Biliski was called to a meeting with
Ammann and Debra Davenport, Red Clay School District’s
manager of human resources, and was given three disciplinary
memos, each dated August 7, 2006. The first relates to the
inappropriate language and behavior he displayed when refusing
to sign the earlier memo and also cites him for leaving the office
that day without informing anyone of his whereabouts. It states
that Biliski had been told to email his supervisor when leaving
and that “[c]ursing or disparaging remarks about supervisors . . .
will lead to discipline up to and including termination.” App. at
83. The second memo cites him for parking in a fire lane after
having received an email (sent to the whole team) directing
employees not to park there. The third memo states that when
asked to unload a van of equipment several days before, Biliski
refused and stated, “No, I’m not doing it. I’ve been in the
schools and it’s hot.” App. at 85. The memo also informed him
that his “[f]ailure to complete assigned tasks can not [sic] be
tolerated and continued refusal will lead to disciplinary action up
to and including termination.” App. at 85.
In his deposition, Biliski testified that he was not given an
opportunity to respond to the charges in the memos: “During that
meeting when I tried to rebut what he was saying, Debra
Davenport stopped me [and] said, ‘Oh, no, you don’t. . . . You
have to listen to what he’s saying.’” App. at 55. However, in a
“verification” filed in the District Court, Ammann claimed that
“Biliski was given an opportunity to explain his actions,” but
instead just “talked about issues that were unrelated to the
performance problems raised.” App. at 129.

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At the end of the August 8, 2006, meeting, Biliski was
given a letter informing him that his name “will be submitted to
the Board of Education for termination” and that “[i]f approved
your date of termination will be effective August 11, 2006.”
App. at 86. Biliski admits that the meeting ended with him
calling Ammann a “no good motherfucker,” throwing a pencil at
him, and being asked to leave the building. App. at 56.
Sometime after this meeting, the deputy superintendent,
Diane Dunmon, received a “form” from Davenport
recommending Biliski’s dismissal. Dunmon’s deposition
testimony was that she would normally have a follow-up
conversation with a supervisor about the employee’s potential
dismissal, so she would have had conversations about Biliski
(and seen corroborating documents). However, Dunmon had no
“detailed recollections other than there were performance issues
as I recall.” App. at 67-68. As a general matter, when the
administration recommended firing an employee, it presented the
Board with an oral report at a Board meeting on the reasons for
termination, but did not also submit underlying documentation.
The August 8, 2006, letter informed Biliski that the Board
would decide the issue of his termination, but did not include the
date of the Board meeting. After he received this letter, Biliski
telephoned individual Board members to ask them not to vote on
his dismissal until they heard his side of the story. Irwin J.
Becnel, Jr., President of the Board, testified at his deposition that
when Biliski told him that he had a letter that he wanted to
submit to the Board, Becnel advised Biliski to take his letter to
the Board secretary who would distribute it to the Board.
Biliski’s letter was photocopied and circulated to the Board
members for the August 16, 2006, meeting at which Biliski’s
dismissal was discussed.
Biliski’s letter incorporated copies of four of the
disciplinary memos he received and contained his lengthy
responses to each of the disciplinary charges contained therein.
Biliski argued that other employees did worse things than he had
done and got away with them, that he did more work than
anyone else, that he was joking when he refused to unload the

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There is no record reference to any heart condition, and no1
indication that Biliski ever filed a worker’s compensation claim.
6
van equipment and did not help unload the equipment because
another employee said he should not do it because of his “heart
condition,” that he was too busy with other work to meet his1
deadlines, that he was so busy he completely overlooked an
entire project, and that he had not read the email instructing
employees not to park in the fire lane. This rebuttal letter
(including the attached memos) is fifteen pages long.
Becnel, the Board President who advised Biliski to
submit a rebuttal letter to the Board, testified at his deposition
that Biliski’s letter was discussed by the Board members
at the meeting. He stated: “As I remember Mr. Biliski’s letter, I
don’t recall him refuting any of [the] reasons [the administration
gave in support of his termination].” App. at 75. The Board
approved Biliski’s termination and sent him a letter dated
August 17, 2006, notifying him that he had been terminated
effective August 11, 2006. Biliski testified that he never
received this letter and that the Board also never responded to
his rebuttal letter. On August 21, 2006, Dunmon received a
letter from Biliski, requesting a meeting about his termination,
but did not respond.
On December 5, 2006, Biliski filed a complaint against
Red Clay in the United States District Court for the District of
Delaware, claiming that he had a property interest in his
continued employment and that his dismissal constituted a
deprivation of “his right to procedural due process under the
Fourteenth Amendment . . . actionable under 42 U.S.C. § 1983.”
App. at 22. Biliski sought 1) a declaratory judgment that the
defendants’ acts were unlawful and unconstitutional, 2)
preliminary and permanent injunctions restoring him to his job
and enjoining defendant from firing him again “unless the
termination procedures . . . comply with . . . due process,” and 3)
“monetary damages, including but not limited to backpay, future
earnings and fringe benefits, and compensation for all other
injuries and losses proximately caused by the unlawful acts of

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defendants.” App. at 23.
After discovery and depositions, Red Clay and Biliski
each filed a motion for summary judgment. As he does here,
Biliski argued that he had a property interest in his job because
his at-will employment status had been altered by a Red Clay
policy adopted in 1985 (“1985 Policy”), which provided that
classified employees may be fired only for “just and reasonable
cause” and after “notify[ing] the employee in writing of the
charges and . . . provid[ing] an opportunity for a hearing.” App.
at 114.
The District Court granted summary judgment in favor of
Red Clay, finding that Biliski had no protectable property
interest in his job because no statute limited his employer’s
ability to fire him and citing Delaware precedent for the
proposition that “unilateral expressions of company policies that
do not set out a definite term of employment, such as in an
employee handbook, do not alter an employee’s at-will status.”
App. at 8. Biliski timely appealed.
II.
Standard of Review
“Our review of the District Court’s grant or denial of
summary judgment is plenary, and we apply the same standard
that the District Court applied in determining whether summary
judgment was appropriate.” Norfolk S. Ry. v. Basell USA Inc.,
512 F.3d 86, 91 (3d Cir. 2008). Summary judgment is
appropriate where “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In making
this determination, we ‘must view the facts in the light most
favorable to the nonmoving party and draw all inferences in that
party’s favor.’” Norfolk, 512 F.3d at 91 (quoting Abramson v.
William Patterson Coll. of N.J., 260 F.3d 265, 276 (3d Cir.

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The District Court had jurisdiction under 28 U.S.C. §§2
1331, 1343(a)(3), and we have jurisdiction under 28 U.S.C. § 1291.
8
2001)).2
III.
Discussion
“To establish liability under 42 U.S.C. § 1983, a plaintiff
must show that the defendants, acting under color of law,
violated the plaintiff’s federal constitutional or statutory rights,
and thereby caused the complained of injury.” Elmore v. Cleary,
399 F.3d 279, 281 (3d Cir. 2005). We have explained that a
plaintiff, as in the case of Biliski, who seeks to establish a
procedural due process claim must demonstrate that “(1) he was
deprived of an individual interest that is encompassed within the
Fourteenth Amendment’s protection of ‘life, liberty, or
property,’ and (2) the procedures available to him did not
provide ‘due process of law.’” Hill v. Borough of Kutztown, 455
F.3d 225, 234 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d
107, 116 (3d Cir. 2000)).
In this case, the District Court concluded that Biliski did
not have a property interest in his job and, therefore, declined to
reach the question of whether the process Biliski received was
constitutionally sufficient. On appeal, Biliski argues that he
possessed a constitutionally protectable property interest in his
continued employment because “the Board’s adoption of the
‘1985 Policy’ was clearly a legally sufficient expression of the
Board’s intention to limit its discretion to fire District
employees.” Appellant’s Br. at 18. We have held that “[t]o have
a property interest in a job . . . a person must have more than a
unilateral expectation of continued employment; rather, she must
have a legitimate entitlement to such continued employment.”
Elmore, 399 F.3d at 282 (citing Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 577 (1972)). As a result, an at-will
employee has “‘no property interest’ in [his or her] job sufficient
to trigger due process concerns.” Id. (quoting Bishop v. Wood,

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The Policy reads:3
SUSPENSION AND DISMISSAL OF CLASSIFIED STAFF
MEMBERS
It will be the policy of the Board to strive to assist
personnel in every possible way to adjust to their
positions and to perform their duties satisfactorily. Every
reasonable effort will be made to avoid dismissing
personnel at any level.
No employee will be dismissed except for just and
reasonable cause, and only after an investigation has been
conducted and written and signed charges have been filed
within the Board. The Board, if it decides to proceed on
the charges, will notify the employee in writing of the
charges and will provide an opportunity for a hearing.
The Board, upon recommendation by the superintendent
or designee, has the right to suspend an employee against
whom formal charges have been filed, until such time as
a decision has been rendered.
App. at 114.
9
426 U.S. 341, 346 n.8 (1976)).
The Policy on which Biliski relies was adopted in 1985
and states, inter alia, that no employee will be dismissed “except
for just and reasonable cause.” Red Clay contends that the 19853
Policy was insufficient to confer a property right because it was
a unilateral employer policy that did not have the force of law
necessary to alter Biliski’s at-will status.
Despite the parties’ arguments in this case, we need not
decide whether the 1985 Policy conferred a property interest
because, even assuming arguendo that Biliski had such an
interest, the process that Biliski received comported with the
requirements of due process. “We may affirm a District Court’s

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In its motion for summary judgment, Red Clay argued that4
“[e]ven if this Court were to conclude that Biliski had a
constitutionally protected property interest, Biliski was provided
with procedural due process that met constitutional standards.”
Defendants’ Opening Br. in Support of Their Motion for Summary
Judgment at 17, Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ.,
No. 06-740 (D. Del. Oct. 29, 2007). Both parties also briefed this
issue on appeal.
The Supreme Court “has recognized, on many occasions,5
that where a State must act quickly, or where it would be
impractical to provide predeprivation process, postdeprivation
process satisfies the requirements of the Due Process Clause.”
10
judgment on grounds other than those considered by the District
Court itself,” Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir.
2001), as long as those grounds were presented to the court
below, Halderman v. Pennhurst State Sch. & Hosp., 673 F.2d
628, 639 (3d Cir. 1982) (en banc) (“Ordinarily we do not
consider . . . matters which were not first presented to the
District Court.”).4
“An essential principle of due process is that a
deprivation of life, liberty, or property ‘be preceded by notice
and opportunity for hearing appropriate to the nature of the
case.’” Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542
(1985) (quoting Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 313 (1950)). However, “[i]t is by now well
established that ‘“due process,” unlike some legal rules, is not a
technical conception with a fixed content unrelated to time, place
and circumstances.’” Gilbert v. Homar, 520 U.S. 924, 930
(1997) (quoting Cafeteria & Rest. Workers v. McElroy, 367 U.S.
886, 895 (1961)). “‘[D]ue process is flexible and calls for such
procedural protections as the particular situation demands.’” Id.
(alteration in original) (quoting Morrissey v. Brewer, 408 U.S.
471, 481 (1972)). For instance, the Supreme Court has
“‘rejected the proposition that [due process] always requires the
State to provide a hearing prior to the initial deprivation of
property.’” Id. (emphasis and alteration in original) (quoting
Parratt v. Taylor, 451 U.S. 527, 540 (1981)). “Accordingly,5

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Gilbert, 520 U.S. at 930.
11
resolution of the issue whether the administrative procedures
provided here are constitutionally sufficient requires analysis of
the governmental and private interests that are affected.”
Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (citing Arnet v.
Kennedy, 416 U.S. 134, 167-68 (1974) (Powell, J., concurring in
part)).
In Mathews v. Eldridge, the Supreme Court held that the
“identification of the specific dictates of due process generally
requires consideration of three distinct factors: First, the private
interest that will be affected by the official action; second, 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 finally, the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.” 424 U.S. at 335.
In Loudermill, the Supreme Court held that a
“pretermination ‘hearing’ . . . need not be elaborate,” but “[t]he
opportunity to present reasons, either in person or in writing,
why proposed action should not be taken is a fundamental due
process requirement.” 470 U.S. at 545-46. “The tenured public
employee is entitled to oral or written notice of the charges
against him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story.” Id. at 546.
Moreover, “[t]he formality and procedural requisites for the
hearing can vary, depending upon the importance of the interests
involved and the nature of the subsequent proceedings.” Id. at
545 (alteration in original). “In general, ‘something less’ than a
full evidentiary hearing is sufficient prior to adverse
administrative action.” Id. (quoting Mathews, 424 U.S. at 343).
Loudermill addresses the contours of pre-deprivation procedural
requirements in a factual scenario where the plaintiff, a “tenured
public employee,” had been provided a post-termination hearing.
470 U.S. at 546.

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Biliski does not argue that he was entitled to the full
panoply of formal proceedings that Delaware state law provides
for termination of the employment of teachers. See Del. Ann.
Code tit. 14, § 1413. Biliski argues that he was covered by the
1985 Policy which applies only to “classified employees.” The
District Court never decided whether Biliski was a “classified
employee,” an issue we also do not decide. Instead, we consider
whether, assuming arguendo he was entitled to due process, the
process he received comported with that requirement.
We apply the interest-balancing framework that the
Supreme Court established in Mathews v. Eldridge to decide
whether the totality of the administrative process Biliski received
in connection with his termination, including the written
presentation of his position to the formal decision-maker,
satisfied the “fundamental requirement of due process[, which]
is the opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’” Mathews, 424 U.S. at 333 (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Here, the
factors we consider are (1) Biliski’s private interest in retaining
his employment, (2) Red Clay’s “interest in the expeditious
removal of unsatisfactory employees and the avoidance of
administrative burdens” and (3) “the risk of erroneous
termination.” Loudermill, 470 U.S. at 543.
First, Biliski’s private interest in his job is, of course,
significant. The Supreme Court has often “recognized the
severity of depriving someone of the means of his livelihood.”
Gilbert, 520 U.S. at 932; see also Loudermill, 470 U.S. at 542-
43; Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 243 (1988).
“While a fired worker may find employment elsewhere, doing so
will take some time and is likely to be burdened by the
questionable circumstances under which he left his previous
job.” Loudermill, 470 U.S. at 543.
Second, Red Clay has a significant countervailing interest
in removing employees who fail to perform satisfactorily,
display inappropriate workplace behavior, and have been warned
that continued performance problems would lead to their
termination. Moreover, Red Clay has an interest in removing

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Biliski denies receiving the first memo or being told at that6
time that failure to improve his performance could lead to
disciplinary action. Nevertheless, in his deposition, Biliski testified
that he recalled the events described in that memo and the meeting
with Ted Ammann and Cara Gaudino in which they told him they
were “disappointed” in him or his work. App. at 45.
13
such employees by means that do not cause disproportionate
fiscal or administrative burdens.
Third, “[t]he last factor in the Mathews balancing, and the
factor most important to the resolution of [Biliski’s] case, is the
risk of erroneous deprivation [posed by the procedures afforded]
and the likely value of any additional procedures.” Gilbert, 520
U.S. 933.
Biliski received constitutionally sufficient notice of the
reasons that Red Clay sought his dismissal. Biliski was issued
five disciplinary memos between March 30, 2006, and August 8,
2006. Each memo outlined specific instances of poor work6
performance or inappropriate behavior and warned Biliski that
failure to improve his performance could result in disciplinary
action. The second discliplinary memo, dated July 31, 2006,
which concerned a missed deadline, specifically warned that
“[f]uture missed deadlines will result in disciplinary action up to
and including termination.” App. at 81. The last three memos,
all of which Biliski received during his August 8, 2006, meeting,
also cited specific instances of inappropriate or unsatisfactory
conduct (i.e., cursing at Ammann’s secretary when she gave
Biliski the July 31, 2006, memo, leaving the office for two hours
without informing anyone, refusing to unload an equipment van,
and parking in a fire lane after having been sent an email
reminding employees not to do so). Moreover, Biliski’s
supervisors gave him these memos at face-to-face meetings in
which they orally explained to Biliski the contents of the memos.
Biliski complains that he received no notice of the August
8, 2006, meeting and that he was not given an opportunity to

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Biliski conceded that he discussed the missed deadline7
cited in the July 31, 2006, memo at a meeting with Ammann and
Gaudino before he received this memo.
Although Biliski did not address the contents of the first8
memo, dated March 30, 2006, in his rebuttal letter because of his
claim that he did not receive it, there is no evidence in the record
that the Board took this memo (or the charges therein) into
consideration when making the decision to terminate him.
14
respond to the charges in the memos he received at that time.7
The ultimate decision-maker here was the Board, not the Red
Clay administrators who recommended Biliski’s termination.
The relevance of the meetings and the disciplinary memos was
that they provided Biliski notice of the charges against him and
the fact that the Board would decide the issue of his termination.
Moreover, even after August 11, 2006, set by the August
8, 2006, letter as the effective date of Biliski’s termination,
Biliski received what was in effect a post-deprivation hearing,
albeit not an oral hearing. When Biliski contacted members of
the Board, he was informed about the Board meeting and was
told by the Board President that he could submit a letter refuting
the charges against him. Because Biliski knew both the nature
of the charges against him and that the Board, the relevant
decision-maker, would be voting on his termination, he received
enough notice so that he could, and did, prepare a detailed and
lengthy written response to the charges against him in advance
of the August 16, 2006, Board meeting.
Likewise, Biliski’s submission of his fifteen-page rebuttal
letter to the Board, combined with the Board’s actual
consideration of that letter at its meeting, afforded Biliski a
meaningful opportunity to be heard on the issue of his
termination. Biliski’s letter included copies of the four
disciplinary memos he acknowledged receipt of and specifically
responded to each of the charges in detail. This letter allowed8
Biliski to give context to the disciplinary charges against him
and to offer his version of the events cited in the memos. In

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15
addition, the record shows - and Biliski does not dispute - that
the Board considered his rebuttal letter at its meeting and still
voted to fire him.
Biliski is not explicit about what “additional or substitute
procedural safeguards,” Mathews, 424 U.S. at 335, would have
rendered the process he received constitutional. He cannot argue
that the Board did not have an opportunity to “hear” his
responses to the allegations charges against him, as it is clear
that the Board members did in fact receive copies of his rebuttal
letter. Indeed, it was the Board President who arranged for
copies of Biliski’s response to be copied and distributed to each
member before the Board voted. Biliski complains that “the
letter did not inform [him] that he could appear before the Board
to contest his termination” and that “while the District
administration was given the opportunity to explain in person
why it wanted to fire Biliski, the same opportunity to appear
before the Board to refute the District’s allegations was not
afforded to [him].” Biliski Br. at 23. Insofar as Biliski contends
that he had a constitutional right to present oral responses at a
formal hearing, he is mistaken. “There is no inexorable
requirement that oral testimony must be heard in every
administrative proceeding in which it is tendered.” Mallen, 486
U.S. at 247-48 (citing Califano v. Yamasaki, 442 U.S. 682, 696
(1979)); see also Henry J. Friendly, Some Kind of Hearing, 123
U. Pa. L. Rev. 1267, 1281 (1975) (“Determination whether or
not an oral hearing is required should depend on the
susceptibility of the particular subject matter to written
presentation, on the ability of the complainant to understand the
case against him and to present his arguments effectively in
written form, and on the administrative costs.”). Although there
may be circumstances that require the employee be given the
opportunity to give oral testimony (or other trial-type
procedures) in order for the hearing to comport with due process,
this is not such a case.
Under these circumstances, we fail to see how more
elaborate pre-termination proceedings (or an oral post-

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In connection with arguing that his pre-termination9
proceedings were constitutionally deficient, Biliski also argues that
“the defendants[’] failure to provide any post-deprivation hearing
clearly violated Gilbert [v. Homar].” Appellant’s Br. at 25. This
argument is without merit. In Gilbert, a state employee, who had
been suspended without pay and later demoted after a post-
suspension hearing, argued that the state’s failure to provide him
with a pre-suspension hearing violated due process. 520 U.S. at
926-928. The Supreme Court rejected his claim, holding that “the
State had no constitutional obligation to provide [plaintiff] with a
presuspension hearing.” Id. at 933. Gilbert did not address the
necessity of post-deprivation proceedings. Similarly, neither
Loudermill, nor any other case of which we are aware, holds that
a post-deprivation hearing is always constitutionally required.
Instead, the Loudermill Court observed “‘the root requirement’ of
the Due Process Clause as being ‘that an individual be given an
opportunity for a hearing before he is deprived of any significant
property interest.’” Loudermill, 470 U.S. at 542 (emphasis in
original) (quoting Boddie v. Connecticut, 401 U.S. 371, 379
(1971)).
16
termination hearing) would have led to a different result. In that9
sense, any additional or substitute safeguards provided to Biliski
would have had no probable value.
Moreover, the record shows that the Board had ample
cause to dismiss Biliski. His own testimony shows that he had
trouble meeting deadlines and managing his workload, and that
he exhibited inappropriate language and behavior at work. This
suggests that additional safeguards would indeed have been of
no actual value to Biliski.
Considering the Mathews v. Eldridge factors as relevant
here, we are satisfied that Biliski received fair notice and an
opportunity to be heard as to why the Board should not terminate
his employment. In other words, given the interests at stake
here, Biliski received all the process that was due him.
Although Biliski has identified no binding authority to

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17
support his position, he urges us to follow the reasoning of the
United States District Court for the District of Delaware in its
unreported decision in Hameli v. Nazario, No. 94-199, 1994 WL
827787, at *4 (D. Del. Sept. 2, 1994). In that case, Hameli, the
Delaware Chief Medical Examiner, was terminated after a
former employee accused him of sexual harassment. Id. at *1, 3.
The state offered an opportunity for Hameli to be heard at an
informal pre-termination hearing at which he could be
represented by counsel and respond to the charges against him,
but also informed him that no post-termination process would be
offered. Id. at *3. When Hameli responded that the process
offered was deficient, he was terminated. Id. The district court
agreed with Hameli, finding the “hearing did not provide
plaintiff with a meaningful opportunity to be heard in a
meaningful manner” because the proposed pre-termination
proceedings did not require “defendants . . . to put on a case,”
and did not allow Hameli the opportunity to cross examine
witnesses or challenge the authenticity of the evidence against
him. Id. at *6-7. The court added: “This conclusion is all the
more compelling given the lack of a post-termination hearing.”
Id. at *7. Moreover, the court stressed that “due process
required confrontation and cross-examination of the State’s
witnesses” because “plaintiff’s termination was based upon
serious accusations having possible criminal implications.” Id.
at *7.
Even if Hameli were binding on this Court - which, of
course, it is not - it is readily distinguishable from Biliski’s case.
The charges against Biliski accused him of failing to complete
projects on time, failing to comply with rules, and displaying
inappropriate workplace behavior. Nothing in the charges
against him had “possible criminal implications.” As such,
Biliski’s private interest in his job - to be weighed as part of the
Mathews v. Eldridge balancing test - is not comparable to the
interest at stake in Hameli, where the plaintiff faced possible
criminal or civil liability for his alleged conduct.
IV.
Due process entails a balancing, appropriate to the

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Biliski’s motion for leave to supplement the record, dated10
August 18, 2008, is dismissed as moot.
18
circumstances of the particular case. In most instances, a formal
pre-termination hearing is adequate. When that is not practical,
a post-termination proceeding will suffice. In some instances, as
here, where Biliski presented to the final-decision maker the
reasons not to proceed with his termination, some combination
of the two is adequate.
For the above-stated reasons, we conclude that Biliski
received the proceedings to which he was entitled under the Due
Process Clause of the Fourteenth Amendment. Accordingly, we
will affirm the judgment of the District Court.10

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