2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-9-2005

Hill v. City of Scranton

Precedential or Non-Precedential: Precedential

Docket No. 02-3833

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

Nos. 02-3833/3988 & 03-1377

_____________ 

PHYLLIS HILL; ROBERT K. MURRAY;

DONALD HICKEY; PAUL W. GRAHAM

 v.

CITY OF SCRANTON; JAMES P. CONNORS, Individually

and as mayor, City of Scranton

 Phyllis Hill and Paul Graham,

 Appellants - No. 02-3833

PHYLLIS HILL; ROBERT K. MURRAY;

DONALD HICKEY; PAUL W. GRAHAM

 v.

CITY OF SCRANTON; JAMES P. CONNORS,

Individually and as Mayor, City of Scranton

 Phyllis Hill, Donald Hickey

 and Paul W. Graham,

 Appellants - No. 03-1377
2

PHYLLIS HILL; ROBERT K. MURRAY;

DONALD HICKEY; PAUL W. GRAHAM

 v.

CITY OF SCRANTON; JAMES P. CONNORS, Individually

and as mayor, City of Scranton

 Donald Hickey,

 Appellant- No. 02-3988

 

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 01-cv-00744 )

District Judge: Honorable John E. Jones, III

 

Argued on September 3, 2003

Before: SLOVITER, NYGAARD and ROTH Circuit Judges

(Opinion filed: June 9, 2005)

Cynthia L. Pollick, Esquire (Argued)

The Employment Law Firm

126 South Main Street, Suite 201

Pittston, PA 18640

Counsel for Appellants

Joseph G. Ferguson, Esquire (Argued)

Rosenn, Jenkins & Greenwald

120 Wyoming Avenue

Scranton, PA 18503

Counsel for Appellees
 The District Court subsequently granted partial 1

summary judgment in favor of the city in the fourth officer’s

case but that case is not before us.

3

 

O P I N I O N

 

ROTH, Circuit Judge

Since 1980, the city of Scranton, Pennsylvania, has

maintained an ordinance requiring city employees to reside

within the city. In 1997, a group of twenty-two police officers

sought to have the ordinance declared unconstitutional. The

U.S. District Court for the Middle District of Pennsylvania

dismissed the suit and we affirmed. After an investigation in

2000, the city terminated four of these officers, as well as a

police mechanic, who was not a party to the 1997 suit, for

failing to comply with the ordinance. The terminated officers

brought a new suit, alleging that the city had infringed their

First Amendment freedom to petition the government and had

violated their right to equal protection of the laws by

enforcing the ordinance against them in retaliation for their

participation in the 1997 suit. The mechanic also brought

suit, alleging that he was terminated in retaliation for

complaining about the condition of the Department of Public

Works garage. Three of the four officers’ cases were

consolidated for pre-trial purposes with the mechanic’s case. 

The District Court granted summary judgment in favor of the

city on the three officers’ claims but allowed the mechanic’s

claims to proceed to trial.1

We conclude that the District Court should not have

granted summary judgment on the police officers’ retaliation

claim. The officers presented enough evidence to raise a

dispute of material fact as to whether the city impermissibly

targeted the 1997 plaintiffs. First and foremost, the officers

presented evidence that other city employees, who were not

parties to the 1997 suit, were permitted to keep their jobs
 Thus, we affirm the district court’s decision to grant 2

summary judgment on Hickey’s claim under the Americans

with Disabilities Act. We also hold that the officers waived

their claim that the district court improperly dismissed as

moot various discovery motions pending at the time the

district court rendered summary judgment in favor of the city. 

The officers’ passing reference to this claim in the “Statement

of Issues For Review” in their opening brief does not suffice

to bring it before this court. See Kopec v. Tate, 361 F.3d 772,

775 (3d Cir. 2004) (citations omitted).

 The ordinance provides in relevant part: 3

Section 2. On or after March 1, 1980, any

new employee of the City of Scranton who

is not a resident of the City of Scranton at

4

despite the city’s knowledge that they were not city residents. 

Further, it is undisputed that, prior to the officers’

terminations in 2000, no city employee had ever been fired for

non-compliance with the residency ordinance. 

We further hold that the District Court did not abuse its

discretion or otherwise err in denying Officer Hickey leave to

amend his complaint to add a due process claim that his posttermination Municipal Service Commission hearing has been

unreasonably delayed. We also reject the officers’ contention

that the District Court improperly and unnecessarily entered a

final judgment on January 8, 2003. Finally, we reject without

substantive discussion all of the remaining issues raised in

these appeals.

2

II. Facts and Procedural History

In 1997, a group of twenty-two Scranton police

officers filed a complaint alleging that the city’s residency

ordinance was unconstitutional on its face and as applied. 

With certain exceptions, the ordinance requires all city

employees to maintain a “bona-fide residence” within the

corporate limits of Scranton during their time of employment. 

See Scranton, Pa., File of the Council No. 17 § 2 (Feb. 27,

1980). The District Court dismissed the complaint in 3
the time of the commencement of

employment shall have six (6) months

from the time of commencement of

employment to acquire a bona-fide

residence within the corporate limits of the

City. Such residence must be maintained

during continuous employment by the city

or be a cause for immediate termination of

the employment relationship between the

City of Scranton and the new employee.

 The district court relied heavily on McCarthy v. 4

Philadelphia Civil Service Commission, 424 U.S. 645, (1976),

affirming 339 A.2d 634 (Pa. Commw. Ct. 1975). The

Supreme Court in McCarthy refused to consider a facial

constitutional challenge to a similar residency requirement,

concluding that the requirement was not irrational. 424 U.S.

at 646-47.

5

December of 1997. The court rejected the officers’ facial due

process and equal protection challenges to the ordinance,

holding, among other things, that the ordinance was rationally

related to one or more legitimate government purposes and

that the term “bona-fide residence” is not unconstitutionally

vague because it is synonymous with “legal domicile,” a wellunderstood legal concept. The District Court also held that 4

the officers’ as-applied and procedural due process challenges

were not ripe for adjudication. The officers alleged that,

despite the ordinance’s general applicability, only police

officers had received threats of impending enforcement and

requests for documents establishing residency. However, the

District Court reasoned that none of these claims were ripe

because the city had not yet formally enforced the ordinance

against any employee or group of employees, nor had the

officers alleged that waivers had been granted in an arbitrary

or discretionary manner. We affirmed in an unpublished

decision. Kreischer v. City of Scranton, No. 98-7439 (3d Cir.

June 16, 1999).

In late December 1997, shortly after the District Court

dismissed the police officers’ challenge, the City Controller
 Section 5 of the residency ordinance provides that 5

“[t]he Controller of the City of Scranton may, from time to

time, . . . require adequate proof of bona-fide residence within

the City of Scranton.” Scranton, Pa., File of Council No. 17,

§ 5.

6

issued a memorandum to all city employees requesting

documentation and affidavits verifying each employee’s

residency. In October 1999, several months after we had 5

affirmed the dismissal, the city and the police union agreed to

incorporate the residency ordinance into the new collective

bargaining agreement (CBA), which was ratified later that

month. The CBA specified that the term “bona fide

residence” means “sole legal residence or domicile.” It also

provided for a six-month grace period for all police officers to

come into compliance. While the precise language varied, the

residency ordinance was also incorporated into other

collective bargaining agreements between the city and other

unions representing city employees. 

In May 2000, the city hired a private investigation firm

to investigate certain employees who were suspected of living

outside the city. The city initially sent a list of eight names to

the investigator, seven of whom were police officers who had

sued the city in 1997 and one of whom was a firefighter. 

Ultimately, between 2000 and 2001, the city investigated

about 25 individuals but only terminated five: Donald

Hickey, Phyllis Hill, Paul Graham, Jason Gnall, and Robert

Murray. Hickey, Hill, Graham, and Gnall were police officers

involved in the 1997 suit against the city. All were offered

pre-termination hearings with the mayor. Hickey and Gnall

sought post-termination hearings before the Municipal

Service Commission of the City of Scranton but as of early

2004 had yet to receive their hearings.

In April 2001, Hickey, Hill, Graham, and Murray

brought this suit under 42 U.S.C. § 1983 against the city of

Scranton and Mayor James Connors (hereinafter the “city”),

alleging among other things that the city selectively enforced

the residency ordinance against them in retaliation for
 Gnall brought a similar suit sometime later, but that 6

case was not consolidated with the others.

 The appellants do not claim that the District Court 7

should have granted their motions for summary judgment,

only that it should not have granted summary judgment

against them.

7

exercising their First Amendment rights. Hickey, Hill, and 6

Graham alleged that the city retaliated against them for suing

the city in 1997, while Murray alleged that the city terminated

him for complaining about the condition of the Department of

Public Works garage. In July 2001 the District Court

consolidated these cases for all pretrial purposes. In July

2002, the parties filed cross-motions for summary judgment. 

In Hickey’s brief opposing the city’s motion for summary

judgment, he argued for the first time that the lengthy delay in

his post-termination Municipal Service hearing violated his

right to procedural due process. In September, 2002 the

District Court granted summary judgment in favor of the city

against Hickey, Hill, and Graham but denied summary

judgment with respect to Murray’s claims. The court denied

the plaintiffs’ motions for summary judgment. The court

treated Hickey’s new argument concerning post-termination

hearing delay as a constructive motion to amend his complaint

and gave the parties additional time to brief the issue whether

leave to amend should be granted. In October 2002, the court

denied leave to amend after finding that the amendment

would be futile and would be made in bad faith. Hill and

Graham appealed the September 2002 order and Hickey

appealed both the September and October orders.7

In November 2002 the city filed a motion for partial

final judgment pursuant to Federal Rule of Civil Procedure

54(b). The District Court granted this motion over the

plaintiffs’ opposition, reasoning that a final judgment under

Rule 54(b) was necessary to terminate Hickey, Hill, and

Graham’s claims because the September order was not final

as to Murray’s claims. Hill, Hickey, and Graham appealed

this decision as well. We consolidated all of the appeals for

purposes of oral argument and resolve all of them in this
 Pursuant to Rule 54(b), “the court may direct the entry

8

of a final judgment as to one or more but fewer than all of the

claims or parties only upon an express determination that

there is no just reason for delay and upon an express direction

for the entry of judgment.” However, “[i]n the absence of

such determination and direction, any order . . . which

adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties shall not terminate the

action as to any of the claims or parties, and the order or other

form of decision is subject to revision at any time before the

entry of judgment adjudicating all the claims and the rights

and liabilities of all the parties.” Fed. R. Civ. P. 54(b).

8

opinion.

II. Jurisdiction

The District Court had jurisdiction over the plaintiffs’

federal claims and pendent state claims under 28 U.S.C. §§

1331 and 1367, respectively. We have appellate jurisdiction

to review the District Court’s final decisions pursuant to 28

U.S.C. § 1291. As noted, this case involves consolidated

appeals. Because the officers’ appeal of the District Court’s

January 2003 Rule 54(b) order implicates our jurisdiction

over the officers’ other appeals we consider it in this section.

Federal Rule of Civil Procedure 54(b) provides a

mechanism for rendering a partial final judgment as to some,

but not all, parties or claims in a single action. See Berckeley 8

Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 140 (3d Cir. 2001). 

Without a valid Rule 54(b) order, we do not ordinarily have

appellate jurisdiction over a district court order that resolves

fewer than all the claims of all the parties in a single action

because such orders do not constitute “final decisions” per 28

U.S.C. § 1291. Id. As explained below, we hold that the

district court properly directed entry of partial final judgment

in this case. Accordingly, we have jurisdiction over all of the

consolidated appeals.
9

The officers claim that Rule 54(b) is not applicable

here because the three cases brought by the officers and

Robert Murray’s case had been consolidated only “for

discovery purposes.” According to the officers, therefore, the

September and October 2002 orders terminated three of these

four cases and the District Court lacked jurisdiction to enter a

separate final judgment in these cases in January 2003. 

However, the officers’ argument depends on what appears to

be a deliberate misreading of the record. In July 2001 the

District Court ordered that “the four cases shall be

consolidated for all pretrial proceedings, with a determination

to be made at the final pretrial conference as to whether there

will be more than one trial.” (Emphasis added.) The court

further provided that “all four cases are consolidated into

4:CV-01-0744 as the surviving case.” Thus, the four cases

were not consolidated only for discovery purposes — they

were consolidated for “all pretrial proceedings,” including

summary judgment proceedings. Thus, as the city correctly

argues, a partial final judgment under Rule 54(b) was

necessary to terminate Hickey, Hill, and Graham’s claims

because the September 2002 order granting summary

judgment to the city was not final as to Murray’s claims. If

the District Court had not entered partial final judgment

pursuant to Rule 54(b) in January 2003, we would not have

had jurisdiction over the officers’ appeals of the September

and October 2002 orders. See Berckeley Inv. Group, 259 F.3d

at 139-40; see also In re Unisys Corp. Retiree Med. Benefit

“ERISA” Litig., 242 F.3d 497, 502 (3d Cir. 2001). We affirm

the district court’s decision to enter partial final judgment in

January 2003.

IV. Standards of Review

We exercise plenary review over the District Court’s

order granting summary judgment to the city. Assaf v. Fields,

178 F.3d 170, 171 (3d Cir. 1999). Accordingly, we apply the

same test that the District Court should have applied. 

Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.

1987) (en banc). We review the record as a whole,

“draw[ing] all reasonable inferences in favor of the nonmoving party” but not weighing the evidence or making
10

credibility determinations. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000) (citation omitted). If

we determine that “there is no genuine issue as to any material

fact” and that the movant is entitled to judgment as a matter of

law, we will affirm the district court’s grant of summary

judgment. Fed. R. Civ. P. 56(c). 

We review the District Court's denial of leave to

amend Hickey’s complaint for abuse of discretion. Lum v.

Bank of America 361 F.3d 217, 223 (3d Cir. 2004). Whether

the District Court properly entered final judgment pursuant to

Fed. R. Civ. P. 54(b) is a matter of law that we review de

novo. Berckeley Inv. Group, 259 F.3d at 140.

IV. Discussion

A. The Officers’ First Amendment and Equal Protection

Claims

The officers allege that the city terminated them not

because they failed to comply with the residency ordinance

but because they exercised their First Amendment right to

petition the government by suing the city in 1997. We follow

a well-established three-step test to evaluate a public

employee’s claim of retaliation for engaging in activity

protected under the First Amendment. See Baldassare v.

State of New Jersey, 250 F.3d 188, 195-96 (3d Cir. 2001); San

Filippo v. Bongiovanni, 30 F.3d 424, 430-31 (3d Cir. 1994);

Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir.

1993). First, the employee must show that the activity is in

fact protected. Pickering v. Bd. of Educ., 391 U.S. 563

(1968). Second, the employee must show that the protected

activity “was a substantial factor in the alleged retaliatory

action.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 287 (1977). Third, the employer may defeat the

employee’s claim by demonstrating that the same adverse

action would have taken place in the absence of the protected

conduct. Id. 

The officers further allege that the city violated their

right to equal protection of the laws under the Fourteenth
 The officers seek to prove the second prong of their 9

equal protection claim by proving their First Amendment

claim. Conversely, the officers’ most significant evidence

supporting their First Amendment claim is that other similarly

situated city employees who did not participate in the 1997

suit were not terminated. This same evidence would also

satisfy the officers’ burden of proof on the first prong of their

equal protection claim.

11

Amendment by selectively enforcing the ordinance against

them while failing to terminate other similarly situated city

employees who did not bring suit in 1997. As noted above,

we affirmed the District Court’s dismissal of the 1997 claim

that the residency ordinance violated the equal protection

clause on its face. However, discriminatory enforcement of a

facially valid law is also unconstitutional under the equal

protection clause. Yick Wo v. Hopkins, 118 U.S. 356, 373-74

(1886); Holder, 987 F.2d at 197 (applying Yick Wo to a claim

of discriminatory enforcement of a residency ordinance). To

establish their selective enforcement claim, the officers must

demonstrate 1) that other similarly situated employees were

not terminated despite their non-compliance with the

ordinance and 2) that this selective treatment was based on an

“unjustifiable standard, such as race, or religion, or some

other arbitrary factor, . . . or to prevent the exercise of a

fundamental right.” Holder, 987 F.2d at 197 (citing United

States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989) (internal

quotations omitted). Here, the officers seek to demonstrate

that the city singled them out for exercising their fundamental

First Amendment right to petition the government when they

brought suit against the city in 1997. 

The officers’ First Amendment and Equal Protection

claims are functionally identical and it would be redundant to

treat them separately. As a leading treatise explains, “[i]t is 9

generally unnecessary to analyze laws which burden the

exercise of First Amendment rights by a class of persons

under the equal protection guarantee, because the substantive

guarantees of the Amendment serve as the strongest

protection against the limitation of these rights.” Ronald

Rotunda & John Nowak, 3 Treatise on Constitutional Law:
 We took the same approach in San Filippo but did not 10

provide an explanatory discussion because in that case “the

parties agree[d] that the analysis is the same under the first

amendment and equal protection claims.” 30 F.3d at 430 n.6.

 This is a case-specific determination based on the facts 11

before us, not a general principle. There may well be cases in

which evidence satisfying the “substantial factor” prong is

insufficient to rebut evidence demonstrating that the same

adverse employment action would have occurred

notwithstanding the protected activity. See, e.g., TorresRosado v. Rotger-Sabat, 335 F.3d 1, 13-14 (1st Cir. 2003)

(assuming plaintiff’s evidence satisfied “substantial factor”

test but granting summary judgment to defendants based on

uncontested evidence that plaintiff would have been

12

Substance and Procedure § 18.40, at 796 (3d ed. 1999). If a

law passes muster under the First Amendment it is also likely

to be upheld under the Equal Protection clause. Id. Likewise,

if a law violates First Amendment rights there is no need to

resort to the Equal Protection clause to redress the

constitutional violation. Id.; see also Sherbert v. Verner, 374

U.S. 398, 410 (1963) (no need to examine equal protection

claim based on denial of unemployment benefits to

individuals whose religious principles prohibit Saturday work

where Court held same practice unconstitutional under free

exercise clause). We will examine the officers’ First

Amendment retaliation claim directly rather than as a

component of their derivative equal protection claim.10

The first prong – whether the relevant activity is

protected under the First Amendment – is not contested here. 

In this circuit, any lawsuit brought by an employee against a

public employer qualifies as a protected “petition” under the

First Amendment so long as it is not “sham litigation.” San

Filippo, 30 F.3d at 443. The city does not argue that the

police officers’ 1997 suit against the city was a sham. As for

the second and third prongs, we will consider them together

because we conclude that the same evidence is sufficient to

defeat the city’s summary judgment motion with respect to

each prong. See San Filippo, 30 F.3d at 434, 444 (holding 11
terminated anyway). As this court explained in Suppan v.

Dadonna, “substantial factor” does not mean “dominant” or

“primary” factor. 203 F.3d 228, 235 (3d Cir. 2000) (citing

Village of Arlington Heights v. Metro. Housing Development

Corp., 429 U.S. 252, 265 (1977)). Thus, even if a plaintiff

shows that activity protected by the First Amendment was a

“substantial factor” in her termination, the defendant may

show that some other factor unrelated to the protected activity

was the but-for cause of the termination. Id. Of course,

because the defendant bears the burdens of proof and

persuasion on the third prong, San Filippo, 30 F.3d at 430 n.7,

to prevail at summary judgment on this prong the defendant

must present evidence of such quality that no reasonable juror

could conclude that the protected activity was the but-for

cause of the termination.

13

that evidence supporting professor’s claim that his protected

activities were a “substantial factor” in his termination also

rebutted employer’s claim that the professor would have been

terminated regardless of his protected activities).

We reject the officers’ contention that courts may

never grant summary judgment on either the second or third

steps of this analysis. Although we have often noted that the

first prong of the First Amendment retaliation test presents

questions of law for the court while the second and third

prongs present questions of fact for the jury, e.g., Curinga v.

City of Clairton, 357 F.3d 305, 310 (3d Cir. 2004) (citing

Baldassare, 250 F.3d at 195), only genuine questions of fact

should be determined by the jury. For example, in Ambrose v.

Township of Robinson, Pa., 303 F.3d 488, 496 (3d Cir. 2002),

we held that judgment as a matter of law under Rule 50(b)

should have been granted to the defendant where the plaintiff

failed to present sufficient evidence that his protected activity

was a substantial factor in his suspension. The same principle

applies in the summary judgment context under Rule 56. E.g.,

Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.

1995) (noting District Court concluded that plaintiff made

sufficient showing that speech was substantial factor

motivating termination to submit question to jury).
14

In this case, the officers satisfied their evidentiary

burden on the “substantial factor” prong and sufficiently

rebutted the city’s evidence that they would have been

terminated anyway. The officers’ strongest evidence suggests

that several non-resident employees who did not participate in

the 1997 lawsuit were not terminated despite the city’s

knowledge or unrebutted suspicions that they lived outside the

city. 

The District Court in its opinion gives an example of

such an employee. After holding that the officers could not

substantiate their claim that “similarly situated” employees

were allowed to keep their jobs, the court held that Robert

Murray had successfully done so. Murray alleged that his

neighbor Robert Warner, a firefighter for the city, was not

terminated even though they both lived outside the city. The

court found that whether Warner actually lived outside the

city and whether the city knew of Warner’s possible noncompliance were genuine issues of fact for the jury. The

court then determined, however, that neither Warner nor any

other non-police officer could be “similarly situated” to the

police officer plaintiffs because the language defining “bonafide residence” in the police CBA made the CBA more strict

than the residency ordinance itself. The court also found that

the city terminated the police officers because of their noncompliance with the CBA, not because of their noncompliance with the residency ordinance. We conclude,

however, that the court erred in reaching both conclusions.

First, based on the record on appeal, all city employees

subject to the residency ordinance are “similarly situated” for

purposes of the First Amendment analysis. The ordinance

requires all city employees to establish a “bona-fide

residence” in the city of Scranton, but does not define the

term. The police CBA explicitly defines “bona-fide

residence” to mean “sole legal residence or domicile.” 

However, the police CBA does not purport to alter or

augment the residency ordinance by providing this definition. 

In fact, the police CBA’s definition of “bona-fide residence”

appears to be lifted directly from City of Meadville, Firemen's

Civil Service Commission v. Neff, a Pennsylvania
 In fact, in 1997 the District Court held that “bona fide 12

residence” as used in Scranton’s residency ordinance was

synonymous with “legal domicile,” and we explicitly upheld

this determination when we affirmed that decision in 1999. 

Kreischer v. City of Scranton, No. 98-7439, slip op. at n.2. 

 We further note that even if the police CBA imposed 13

slightly different residency requirements than the ordinance,

the police officers would still be “similarly situated” to other

city employees so long as the core residency requirement was

the same. See Bennun v. Rutgers State Univ., 941 F.2d 154,

178 (3d Cir. 1991) (explaining that “similarly situated” does

not mean “identically situated”).

15

Commonwealth Court decision construing a municipal

residency ordinance. 450 A.2d 1078, 1079-80 n.3 (Pa.

Commw. Ct. 1982) (“Reference to a bona fide residence in a

municipal ordinance establishing a residency requirement for

municipal employees means the sole legal residence or

domicile of the employee.”) (citation omitted, emphasis

added). See also McCarthy v. Phila. Civil Serv. Comm’n, 339

A.2d 634, 636-37 (Pa. Commw. Ct. 1975), aff'd, 424 U.S. 645

(1976) (holding that “bona fide residence” in municipal

residency ordinance means “domicile,” and further explaining

that a person can have more than one residence but only one

domicile). Thus, the residency requirement in the police CBA

is not more strict than the ordinance – it is exactly the same.12

For that reason, the court erred in holding that other city

employees were not similarly situated to the officers simply

because they were not subject to the police CBA.13

Second, the District Court erred by finding that the

officers were terminated because of their failure to comply

with the police CBA rather than their failure to comply with

the ordinance. As just explained, there is no difference

between the residency requirements imposed by the police

CBA and the ordinance. The distinction made by the District

Court could still be relevant, however, to the extent it reflects

the city’s subjective intent. For example, the city might argue

that it only investigated and terminated employees whose

unions had agreed to include the residency ordinance in their
 The firefighters’ CBA also incorporated the residency 14

ordinance.

 The officers have also attempted to swell the ranks of 15

“similarly situated” employees by listing several golf course

employees and temporary summer employees who were not

terminated despite city personnel records showing them to

have non-Scranton addresses. However, neither of these

groups are subject to the residency ordinance, and therefore

16

CBA. This would supply a non-retaliatory explanation for

any evidence that certain non-resident employees were not

terminated if those employees’ unions had not agreed to such

inclusion. 

Under the facts before the court, however, the question

whether the city was willing to enforce the residency

ordinance without the supplemental authority of a collective

bargaining agreement is a genuine factual issue that the

District Court should not have resolved at the summary

judgment stage. In late May 2000, the city sent letters to

eleven police officers and two firefighters threatening

“immediate termination” if the recipients failed to provide

updated documents and affidavits establishing their residency

in the city. These letters referred to both the residency

ordinance and the relevant CBA incorporating that

ordinance. However, the pre-termination letters issued to 14

Hill, Hickey, and Graham cite only the residency ordinance. 

Further, other evidence in the record suggests that the city was

willing to rely solely on the residency ordinance. For

example, in 1987, long before the ordinance had been

incorporated into any CBA, the city controller issued a citywide request for documentation of residency that threatened

termination for non-compliance. 

In addition to Robert Warner, the officers provided

evidence that at least three other city employees – all police

officers who did not sue the city in 1997 – were allowed to

remain employed despite the city’s knowledge or un-rebutted

suspicions that they were not in compliance with the

residency ordinance. In June 2000, Ray Mountford, the lead 15
the officers cannot reasonably argue that any of these

employees are “similarly situated” to them. The golf course is

operated by the Scranton Recreation Authority, an

independent agency not subject to the control of the city of

Scranton. See Smith v. Athens Township Auth., 685 A.2d 651,

656 (Pa. Commw. Ct. 1996) (citation omitted). The

Recreation Authority has the sole authority to hire, fire, and

set conditions of employment for its employees. See 53 Pa.

Cons. Stat. § 5607(d). Further, Scranton employees are only

required to live in the city during “continuous employment by

the city.” Temporary summer employees are by definition not

continuously employed by the city, and therefore they are not

subject to the residency ordinance.

 In sharp contradiction to Mountford’s testimony, James 16

Connors, the mayor of Scranton, testified that the 2000

investigation revealed that both Pettinato and Gillette lived in

Scranton. Connors further testified that the city subsequently

ordered a second investigation of Gillette based on a tip that

he was living outside the city. According to Connors, Gillette

retired during the second investigation. Mountford testified

that he was asked to investigate Gillette a second time in

August 2001, but that his associate had already determined in

2000 that Gillette lived in Jessup, PA. Even if Gillette

ultimately retired under pressure, the fact that the city delayed

17

private investigator working on the residency investigation for

the city, was asked to investigate police officers Donald

Pettinato and Anthony Gillette. Just after the investigation of

Pettinato got underway, however, Mountford was told by the

city that Pettinato lived in Old Forge, Pennsylvania, that he

was not moving back to the city, and that the investigation

should be discontinued. Mountford also testified that his

associate determined based on surveillance and public records

that Gillette lived in Jessup, Pennsylvania. Mountford’s notes

from July 7, 2000, indicate that the city had decided to set

hearings for Pettinato, Gillette, and Paul Graham, one of the

appellants in this case. However, of these three only Graham

was terminated for non-compliance with the residency

ordinance and it appears that no hearings ever took place with

respect to Pettinato and Gillette.16
enforcing the ordinance against him for over a year

nonetheless supports the officers’ position. Also, the only

evidence of Gillette’s forced retirement on this record comes

from Mayor Connors, an interested witness. Therefore, this

factual issue cannot be resolved on summary judgment. See

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,

149-151 (2000) (explaining that when drawing all reasonable

inferences in favor of the non-movant the courts must

disregard evidence the jury is not required to believe,

including testimony of interested witnesses) (citations

omitted).

 Mountford explained that Tobin was “playing a game” 17

by purposefully eluding the investigators. Mountford’s

records indicate that Tobin was observed at three different

Scranton addresses, including the homes of his ex-wife and

daughter, but the investigators could not conclude that Tobin

resided at any of these three addresses.

18

The officers also showed that the city suspected police

officer Patrick Tobin of residing outside the city but may have

called off the investigation without adequately rebutting those

suspicions. In June 2000, the city asked the private

investigators to investigate Tobin, but Mountford and his

associate were never able to determine Tobin’s residence

despite multiple days of surveillance over the course of four

months. City records custodian Conall Kolleen later averred 17

that Tobin now resides at a specific address in Scranton. 

However, the investigators conducted surveillance on this

address – which Mountford identified as Tobin’s ex-wife’s

house – and could not determine whether Tobin resided there. 

For all the above reasons, the District Court’s

conclusion that the plaintiff police officers were “the only

ones that did not come into compliance with the terms of their

CBA” was an improper resolution of a genuine factual

dispute. 

The officers further contend that they were actually in

compliance with the residency ordinance. The officers
 Hill was domiciled with her family in Factoryville, PA, 18

at the time of her hire as a police officer in 1990, and no

reasonable fact-finder could conclude that she changed her

domicile merely by renting an apartment in Scranton and

spending the night there “occasionally.” Hickey claims that

he received an oral waiver of the residency ordinance from

the chief of police in 1995, but the ordinance provides that a

waiver may only be obtained from the mayor, with the advice

and consent of the city council. See Ordinance, § 4. Further,

his attempt to come into compliance with the ordinance by

moving into his house in the city the day before his pretermination hearing on June 8, 2000, is insufficient. The May

26, 2000, threat letter adequately informed Hickey that he had

until June 2, 2000, to come into compliance and supply the

requested proof of compliance to the city.

19

certainly do not need to allege or prove compliance with the

ordinance to prevail on their First Amendment claim. 

Discriminatory enforcement of a statute or ordinance is not

justified simply because the enforcement is otherwise valid. 

See Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411,

424-25 (3d Cir. 2003). Evidence of the officers’ compliance

with the ordinance would nonetheless be powerful evidence

that their termination was pre-textual. On this record, no

reasonable fact-finder could conclude that either Hill or

Hickey came into compliance with the ordinance within the

time provided by the city. 

18

Graham, however, should be permitted to argue his

case for compliance to the jury. As discussed above, a

Scranton employee’s “bona-fide residence” is his domicile. 

In Pennsylvania “[t]he domicile of a person is the place where

he has voluntarily fixed his habitation with a present intention

to make it either his permanent home or his home for the

indefinite future.” In re McKinley's Estate, 461 Pa. 731, 734

(Pa. 1975). “A new domicile can be acquired only by

physical presence at a new residence plus intent to make that

new residence the principal home.” In re Prendergast, 673

A.2d 324, 327-28 (Pa.1996). Graham has established that he

became domiciled in Scranton shortly after he was hired as a

police officer in 1993. It is the city’s burden to demonstrate
1 Graham was divorced from his first wife in 1987. 

19

 Graham explained that after he met his second wife, 20

Jacqueline, but before they were married, he might stay in his

Scranton apartment three nights a week, at his parents’ house

in Clarks Summit once or twice a week, and with Jacqueline

the remainder of the time. It appears Graham was never

20

that Graham changed his domicile to Nicholson,

Pennsylvania, when he re-married in 1998. See In re 19

Prendergrast, 673 A.2d at 327-28 (noting that the burden of

showing changed domicile “rests upon whomever makes the

allegation”). 

The city has introduced more than enough evidence to

meet its burden. First and foremost, the city has shown that

Graham’s second wife and step-children were domiciled in

Nicholson during all times relevant to this dispute. The

location of an individual's family is very strong evidence of

the location of his domicile. Indeed, the Pennsylvania

Supreme Court has defined domicile as “the place at which an

individual has fixed his family home and principal

establishment for an indefinite period of time.” In re

Prendergast, 673 A.2d at 327 (citing In re Dorrance’s Estate,

163 A. 303, 175 (1932)); see also In re Nomination Petitions

of McIntyre, 778 A.2d 746 (Pa. Commw. Ct. 2001). The city

also provided other evidence of changed domicile, including

Mountford’s testimony that Graham’s Scranton apartment

was just a “mail drop” being used by both Graham and Hill in

an attempt to achieve technical compliance with the residency

ordinance despite actually living outside the city.

Nevertheless, Graham has introduced enough evidence

to create a genuine factual dispute on this issue. Graham

testified that he moved into Scranton within six months of

being hired as a police officer in 1993 to come into

compliance with the residency ordinance. He rented various

apartments there until approximately six months after his

termination in October 2000. Graham claims that he and his

new wife lived apart from the time of his marriage until after

his termination because of his job. He explained that he 20
asked about his typical weekly routine after he was married.

 Our conclusion on this issue does not compel a similar 21

result in Hill’s case. Hill was domiciled in Factoryville with

her own family and children when she was hired as a police

officer. Hill is listed with her husband on the deed associated

with that property. When asked if she slept in her Scranton

apartment on a regular basis Hill answered “no.” She

followed by stating that she slept there “occasionally,” but

refused to be more specific. She was equally vague when

asked how often she ate meals there. Further, while Graham

claims that he had a private bedroom in the shared apartment,

Hill claims that she slept on a “sofa couch.”

21

never believed that merely renting an apartment and paying

city taxes was sufficient to comply with the residency

ordinance; rather, he thought he had to stay in his Scranton

apartment “three to five” nights a week. At his pretermination hearing Graham called four witnesses who

attested that they were Graham’s neighbors when he lived in

the Scranton apartment also claimed by Phyllis Hill. Finally,

Graham claims that his wife solely owned the Nicholson

home.

Graham’s account is self-serving and somewhat

unlikely. A person’s intent to change domicile is based on

“the actual state of facts, not what one declares them to be.” 

In re Prendergast, 673 A.2d at 328. However, courts do not

weigh evidence or determine credibility questions at the

summary judgment stage. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000) (citation omitted). 

Viewed in the light most favorable to Graham, a reasonable

fact-finder could conclude that Graham made his home in

Scranton when he moved there after being hired as a police

officer and that he never made Nicholson his principal home

after he re-married because he knew that if he did so he would

be in violation of the residency ordinance.

21

The officers also presented additional evidence of

retaliation. Without the evidence regarding specific

employees described above, we doubt whether this additional
 Roseann Novembrino, the City Controller, testified 22

that she also collected residency information in 1991, but the

city produced no records supporting this claim. The fact that

the officers do not directly challenge Novembrino’s testimony

on this point is irrelevant. As noted above, supra note 16,

when evaluating a summary judgment motion a court should

not consider even uncontradicted testimony of an interested

witness where that testimony supports the movant. See

Reeves, 530 U.S. at 149-151 (citations omitted).

 On the other hand, a reasonable fact-finder might 23

conclude that this argument places the cart before the horse. 

The plaintiffs argued in their 1997 lawsuit that the city

intended to begin enforcing the residency ordinance in earnest

after years of inattention. In fact, the city’s threats of

imminent enforcement were the basis of the 1997 lawsuit. 

Nonetheless, the city did not initiate termination proceedings

against anyone prior to the 1997 lawsuit, and a reasonable

fact-finder could conclude that the city’s vigilance in 2000

was motivated in part by the 1997 suit.

22

evidence would be sufficient to meet the officers’ burden of

rebuttal. However, we need not resolve this question because

the sum of all the evidence supporting the officers is

sufficient to carry their burden.

First, viewed in the light most favorable to the officers,

the residency ordinance had been enforced half-heartedly and

sporadically at best prior to the 2000 residency investigation. 

Since the ordinance’s passage in 1980, the city has attempted

only twice to collect residency information from all

employees – in 1987 and 1997. More important, there is no 22

evidence that prior to June 2000 any employee was

disciplined or terminated for failure to comply with the

ordinance. The city’s sudden vigilance could suggest that the

city was motivated at least in part by the officers’

participation in the 1997 lawsuit. See Holder, 987 F.2d at 197

(noting Holder’s allegation that no other city employee had

been fired for non-compliance with residency ordinance in

ordinance’s fourteen-year existence).23
 The city might also argue that it was most likely that the 24

employees who had brought suit were in violation of the

ordinance. For that reason, the city started with them. This

argument was not, however, made by the city in the District

Court.

23

Next, the officers showed that of the initial list of eight

names sent to the private investigation firm in May 2000,

seven were police officers who sued the city in 1997. The

city could respond that shortly thereafter four more police

officers were added to the list and that three of these four

were not plaintiffs in the 1997 suit. However, the officers’

24

evidence could still reasonably suggest that the city prioritized

and targeted the 1997 plaintiffs, especially considering the

fact that no police officer who did not sue the city in 1997

was ever terminated for non-compliance with the ordinance.

The officers also showed that the 2000 investigation

was not conducted in a systematic fashion. Despite the City

Controller’s attempt to gather residency information from all

city employees in 1997, Mayor Connors was unsure whether

his office used that information to determine which

employees warranted further investigation. Rather, Mayor

Connors and City Attorney James Mulligan testified that the

lists of suspicious employees were generated largely from tips

from the public or from other city employees. Mayor Connors

testified that he was “very satisfied” that the 2000

investigation produced a “complete list” of suspected

violators and explained that the city may have used the results

of the 1997 request to eliminate from suspicion the majority

of city employees. The officers presented evidence, however,

that approximately two hundred employees failed to respond

to the 1997 request for residency documentation – there were

only 445 respondents out of approximately 650 city

employees. The city makes no attempt to either contradict or

explain this shortfall. The city’s failure to conduct a

systematic and thorough investigation of all employees,

especially of those who raised red flags by failing to respond

to the mandatory 1997 request, is consistent with the alleged

retaliatory motive.
 The city’s actions may have been motivated by the 25

plaintiffs’ claims in 1997 that the residency ordinance was not

only unconstitutional but also inconsistent with the police

CBA. The District Court acknowledged this claim but never

addressed it, and we affirmed the District Court’s order

without mentioning the CBA claim. Thus, the city may have

been concerned that the residency ordinance was still

vulnerable to legal challenge, and hence may have sought to

eliminate that vulnerability by incorporating the ordinance

into all of its collective bargaining agreements.

24

Further, the temporal proximity between the officers’

protected activity and their termination supports an inference

of retaliation. The officers lost their case in the District Court

in December 1997, but we did not deny their appeal until June

1999. Hickey and Hill were fired within one year of our

decision, while Graham’s termination followed four months

later. We need not, however, decide whether a one-year gap

is sufficient to support an inference of retaliation. We have

explained that a retaliatory inference based on temporal

proximity is strengthened where “the decisionmaker lacked a

pretext on which to dismiss the plaintiff until shortly before

the time of dismissal.” San Filippo, 30 F.3d at 444. After the

city prevailed in the District Court and before us, it apparently

decided to strengthen its position by incorporating the

residency ordinance into all of its collective bargaining

agreements with the various unions representing city

employees. The police CBA containing the new residency 25

provision was ratified on October 28, 1999, and included a

six-month grace period to run from the date of ratification.

ickey and Hill were investigated in May 2000 and terminated

in early June, just a few weeks after the expiration of this

grace period. Further, although Graham was not terminated

until October 2000, there is evidence that his pre-termination

hearing was originally scheduled for July. Under these

circumstances there is enough evidence to support a slight

inference of retaliation. As in San Fillipo, we need not

determine whether this evidence would be sufficient absent

the additional evidence of retaliation detailed in this opinion. 

32 F.2d at 444.
25

Finally, the officers presented some evidence that

Mayor Connors was particularly concerned with the officers

who sued the city in 1997. Hickey testified that Connors

asked him at his pre-termination hearing why he participated

in the 1997 lawsuit. Further, another police officer testified

that Connors had sought “stronger language” regarding

residency in the police CBA to ensure that the officers would

not be able to further resist the city’s enforcement efforts. 

While these comments are amenable to a non-retaliatory

interpretation, a reasonable fact-finder could also conclude, in

light of all the other evidence discussed above, that Mayor

Connors was unfavorably disposed towards the officers who

participated in the 1997 lawsuit. 

For all the above reasons, we conclude that the police

officers have presented sufficient evidence that the city used

the residency ordinance as a pretext for retaliatory

terminations in violation of the officers’ First Amendment

right to petition the government. 

B. Hickey’s Post-Termination Hearing Delay Claim

As noted in Part II, Hickey argued in opposition to the

city’s motion for summary judgment that the lengthy delay in

providing his post-termination Municipal Service hearing

violated his right to procedural due process. The District

Court treated Hickey’s argument as a constructive motion to

amend his complaint under Federal Rule of Civil Procedure

15(a), which it ultimately denied. We conclude that the

District Court did not abuse its discretion or commit any legal

error in reaching this decision.

First, we reject Hickey’s frivolous argument that his

complaint gave effective notice to the city of his posttermination hearing delay claim. Hickey is correct that notice

pleading requires only “a short and plain statement of the

claim showing that the pleader is entitled to relief,” Fed. R.

Civ. P. 8(a), but Hickey’s complaint falls far short of this low

threshold. Nowhere in the complaint does Hickey even allege
26

that he requested a Municipal Service hearing, much less that

the city failed to timely provide such a hearing. In fact,

Hickey’s complaint does not allege any facts at all relating to

the period after he was terminated in June 2000.

Next, we agree with the District Court that it would

have been futile to allow Hickey to amend his complaint

because his allegations before the District Court did not state

a claim on which he could have obtained relief. While Rule

15(a) provides that leave to amend should be “freely given,” a

district court has discretion to deny a request to amend if it is

apparent from the record that (1) the moving party has

demonstrated undue delay, bad faith or dilatory motives, (2)

the amendment would be futile, or (3) the amendment would

prejudice the other party. See, e.g., Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Foman v.

Davis, 371 U.S. 178, 182 (1962)). Hickey is correct that the

due process clause “requires provision of a [post-termination]

hearing at a meaningful time.” Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 547 (1985). Thus, “there is a point

at which an unjustified delay in completing a post-deprivation

proceeding would become a constitutional violation.” FDIC

v. Mallen, 486 U.S. 230, 242 (1988) (internal citation

omitted). The key point, however, is that the delay must be

“unjustified.” We have held that the “mere allegation of a . . .

twenty-month delay” without supplementary allegations

concerning the cause of the delay does not state a

constitutional claim. Ritter v. Cohen, 797 F.2d 119, 124 (3d

Cir. 1986). Before the District Court, Hickey simply stated in

conclusory fashion that his due process rights had been

violated by “the unwarranted delay of two and [a] half (2 1/2)

years.” Rather than attempt to explain the cause of the delay,

Hickey chose instead to devote the majority of his brief to rearguing the merits of his First Amendment and equal

protection claims. Accordingly, the District Court correctly

followed Ritter and held that granting leave to amend would

be futile. 

Hickey now argues for the first time on appeal that the

city caused the delay in the Municipal Service Commission

proceeding by failing to comply with his legitimate discovery
 We note that the District Court might have also relied 26

on Hickey’s lack of diligence in timely raising his posttermination due process claim. Hickey filed his original

complaint in April 2001, and an amended complaint in

December 2001, approximately one and a half years after he

was terminated in June 2000. Yet Hickey did not mention any

post-termination hearing delay until August 2002, more than

two years after his termination. Hickey never attempted to

explain to the District Court why he waited more than two

years to raise this claim for the first time, nor has he offered

any explanation for this delay on appeal.

 We need not consider the District Court’s alternative 27

conclusion that Hickey’s constructive motion to amend was

made in bad faith.

27

requests. Had this allegation been made in the District Court,

the court might not have held that Hickey’s attempted

amendment was futile. However, the District Court reached

the correct result based on the information provided at the

time by the parties . Accordingly, we conclude that the 26

District Court did not abuse its discretion by denying leave to

amend.27

V. Conclusion

For the foregoing reasons we will vacate the District

Court’s order granting summary judgment to the city on the

officers’ First Amendment claims and remand those claims for

further proceedings. We will affirm the District Court’s orders

in all other respects.