2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-9-2015

Maurice Parker v. Mark Farley

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2015

This September is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2015 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Maurice Parker v. Mark Farley" (2015). 2015 Decisions. Paper 963.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/963
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1592

___________

MAURICE PARKER; MICAH PARKER,

 Appellants

v.

MARK FARLEY, in his official and individual capacities Delaware State University; 

AMIR MOHAMMADI, in his official and individual capacities Delaware State 

University; DELAWARE STATE UNIVERSITY

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil Action No. 1-10-cv-01004)

District Judge: Honorable Gregory M. Sleet

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 18, 2015

Before: GREENAWAY, JR., SCIRICA and RENDELL, Circuit Judges

(Opinion filed: September 9, 2015)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Maurice and Micah Parker appeal pro se from the District Court’s order granting 

summary judgment to the defendants in a case arising out of their termination from public 

employment. For the following reasons, we will affirm.

I.

The Parkers were employed by Delaware State University (DSU) as Maintenance 

Craftsmen Mechanics and were members of the American Federation of State, County, 

and Municipal Employees’ Local 1267. Their amended complaint alleged that they were 

terminated in October 2007 without due process, in violation of the Fourteenth 

Amendment. Maurice further alleged that he was discriminated against on the basis of 

his race, that DSU unlawfully retaliated against him, and that it maliciously interfered 

with his business relationships after the termination. The Parkers alleged that DSU 

terminated them and charged them with theft for salvaging copper pipe from a university 

building scheduled for demolition, despite the fact that a supervisor had given them 

permission to remove and sell the piping. The state ultimately declined to criminally 

prosecute the Parkers. Maurice and Micah each filed a grievance, pursuant to Local 

1267’s collective bargaining agreement with DSU, resulting in arbitrations upholding the 

termination of their employment. Maurice filed a claim with the EEOC, which 

determined that DSU had discriminated against him, in violation of Title VII of the Civil 

Rights Act of 1964. After a failed conciliation effort, the EEOC issued a right to sue 

letter in September 2010.
3

The Parkers began this action in November 2010. They were initially represented 

by counsel but have proceeded pro se since March 2013. The defendants moved for 

summary judgment in November 2013. The Magistrate Judge issued a report that 

recommended granting summary judgment on the due process and retaliation claims and 

denying summary judgment on the discrimination and tortious interference claims. Both 

parties objected, and the District Court overruled the Parkers’ objections, sustained the 

defendants’ objections, and granted summary judgment. The Parkers appealed. Maurice 

Parker alone signed the opening brief, which contained arguments that related to the 

circumstances of only his claims and, of that subset, addressed only the Title VII 

discrimination and due process claims.1 Micah Parker has not submitted any documents 

on appeal. 

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District 

Court’s grant of summary judgment de novo and view all inferences drawn from the 

underlying facts in the light most favorable to the nonmoving party. Montone v. City of 

Jersey City, 709 F.3d 181, 189 (3d Cir. 2013). Summary judgment is proper only if the 

record “shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We have carefully 

 

1 Maurice Parker also argues that Judge Sleet should have recused himself from 

proceedings in the District Court because he served on a District Court advisory 

committee with the defendants’ counsel. However, mere participation on a committee 

that serves to promote the administration of justice is not grounds for recusal. Plechner v. 
4

reviewed the record and the parties’ arguments on appeal, and we discern no error in the 

District Court’s analysis.

III.

We begin with whether Micah Parker abandoned his appeal by not signing the 

opening brief, or, indeed, submitting any documents on appeal. Although Micah did sign 

the notice of appeal, all appellate submissions have been by Maurice. Moreover, the 

submissions submitted by Maurice do not address the facts or circumstances of Micah’s 

case.2 Accordingly, we must conclude that Micah Parker has abandoned his appeal, and 

we will treat Maurice Parker as the sole appellant. See also 3d Cir. LAR Misc. 107.2(b).

Maurice Parker did not address his claims of retaliation or malicious interference 

with business in his opening brief. “While we read briefs filed by pro se litigants 

liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned[.]” 

Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (internal citation 

omitted); see also United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). 

Accordingly, we will consider only the claims briefed by Maurice.

Parker alleges that he was terminated in violation of his due process rights because 

his pre-termination hearing was held seven days after DSU’s decision to terminate him. 

A party who seeks to establish a procedural due process claim must demonstrate that “(1) 

 

Widener Coll., Inc., 569 F.2d 1250, 1262 (3d Cir. 1977); see also 28 U.S.C. § 455.

2 As a pro se litigant, Maurice Parker may not represent parties other than himself. See

Osei–Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882–83 (3d Cir. 1991); 28 U.S.C. 

§ 1654. 
5

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, 

233-34 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). It is 

undisputed that Parker had a property interest in his continued employment. See Unger 

v. Nat’l Residents Matching Program, 928 F.2d 1392, 1398 (3d Cir. 1991). Therefore, 

before he could be deprived of that interest, he was entitled to “notice and opportunity for 

hearing appropriate to the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 

470 U.S. 532, 542 (1985) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 

306, 313 (1950)). 

We outline briefly the events that led to Parker’s termination. Over a period of 

several days in early October 2007, the Parkers removed and sold copper piping from a 

DSU building slated to be demolished. On October 8, 2007, after Micah Parker was 

apprehended removing a piece of copper from the building, police officers discovered 

receipts, showing Maurice Parker’s name, that documented the sale of copper piping at a 

salvage yard. That same day, the Parkers’ supervisor met with both brothers and placed 

them on paid administrative leave pending an investigation. On October 10, 2007, 

Maurice Parker, represented by a union officer, again met with his supervisor. At the 

close of that meeting, Parker received two letters, one confirming that he had been placed 

on paid administrative leave pending DSU’s investigation for theft, and one indicating 

DSU’s intent to terminate him for theft and misuse of resources. The next day, Parker 
6

returned the money he made from selling the piping and requested a pre-termination 

hearing. On October 16 and 17, 2007, DSU called Parker to inform him that his pretermination hearing would be held on October, 17, 2007 at 4:00 pm.3

 Parker claimed not 

to have received those messages until the late afternoon of October 17, 2007, after the 

time for the hearing had passed, at which time he called DSU to attempt to reschedule the 

hearing. That same day, DSU issued two additional letters, one terminating Parker’s 

employment, and the other granting him the opportunity to reschedule. The hearing was 

eventually held on October 24, 2007. 

As a public employee, Parker was entitled to “a pretermination opportunity to 

respond, coupled with [adequate] post-termination administrative [or judicial] 

procedures.” Loudermill, 470 U.S. at 547-48. At minimum, pre-termination procedures 

must give the employee “oral or written notice of the charges against him.” Id. at 546. 

Pursuant to the collective bargaining agreement with Local 1267, “[w]ritten notice of 

intent to suspend, demote, or discharge an employee must be given to the employee not 

less than three (3) days prior to the proposed action.” Parker acknowledged receiving 

DSU’s letters on October 10, 2007. Parker claimed, and the record supports, that he was 

 

3 Transcripts of the voice messages left by DSU indicate that only one message was left 

for Maurice Parker on October 16, and that message did not indicate that it was timesensitive in any way. Another message, presumably meant for Maurice, was left on 

October 16, 2007, for “Micah Parker.” Two messages left on October 17, 2007, 

contained errors, stating that the hearing was to be held “today, Wednesday the 16th,” 

despite the fact that, in 2007, Wednesday of that week fell on the 17th. In any event, 

Parker claimed not to have received any of the messages until after 4:00 pm on October 

17, 2007.
7

terminated on October 17, 2007. Therefore, he had seven days notice of the charges 

against him and their potential consequences, which constitutes adequate notice both 

under the greater protections of his collective bargaining agreement and as required by 

law. See Morton v. Beyer, 822 F.2d 364, 369 (3d Cir. 1987) (noting that “there need be 

no delay between the time ‘notice’ is given and the time of the hearing.”) (quoting Goss 

v. Lopez, 419 U.S. 565, 582 (1975)).

Parker was also entitled to “a pre-termination opportunity to respond” to DSU’s 

allegations. Loudermill, 470 U.S. at 547-48. Pre-termination procedures may be 

informal and yet still satisfy due process, as long as they give “the employee an 

opportunity to make any plausible arguments that might ... prevent [the] discharge.”

Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d 74, 79 (3d Cir. 1989) (internal 

quotations and citations omitted). At a minimum, pre-termination procedures must give 

the employee “an explanation of the employer’s evidence, and an opportunity to present 

his side of the story.” Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214, 

220 (3d Cir. 2009) (quoting Loudermill, 470 U.S. at 546). 

Parker argued on appeal that, because his formal pre-termination hearing took 

place on October 24, 2007, seven days after he was terminated, DSU failed to provide a 

pre-termination opportunity to respond. However, Parker acknowledged that he met with 

the defendants on two occasions before he received his notice of termination on October

17, 2014, and that he was informed of the charges against him and asked for his version 

of events. Indeed, during the second meeting, on October 10, 2007, Parker was 
8

represented by a union officer. Parker thus was given an adequate pre-termination 

opportunity to respond to DSU’s charges against him. See Tucker, 868 F.2d at 79. And 

certainly when combined with the formal post-termination hearing quickly afforded to 

Parker, this pre-termination opportunity to respond satisfied the dictates of due process.

4

 

See Biliski, 574 F.3d at 224. Accordingly, the District Court was correct to grant 

summary judgment on Parker’s due process claim. See id. at 220. 

We turn now to Parker’s Title VII discrimination claim. Parker has offered no 

direct evidence of discrimination. In an indirect evidence case, we continue to analyze 

claims like Parker’s under the familiar three-step, burden-shifting framework set up by 

the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To 

satisfy the first step and establish a prima facie case of racial discrimination, a plaintiff is 

required to show that he belongs to a protected class, is qualified for his position, suffered 

an adverse employment action, and that the action occurred under circumstances that

suggest unlawful discrimination. See Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 –11 

(3d Cir. 1999). 

It is undisputed that Parker satisfies the first three elements of his prima facie case. 

We therefore focus on the fourth element to determine whether his termination occurred 

under circumstances that give rise to an inference of unlawful discrimination. 

Parker relied on comparator evidence to establish an inference of discrimination, 

arguing that two white employees who engaged in similar conduct were not terminated. 

 

4 Parker does not dispute the adequacy of the post-termination process.
9

To establish that a comparator is truly similarly situated, the claimant must show that he 

and the comparator are similarly situated in all relevant respects. See Holifield v. Reno, 

115 F.3d 1555, 1562 (11th Cir. 1997) (collecting cases). Generally, there are many 

factors that can be relevant to this fact-intensive inquiry. See Sprint/United Mgmt. Co. v. 

Mendelsohn, 552 U.S. 379, 388 (2008). “This determination requires a court to 

undertake a fact-intensive inquiry on a case-by-case basis rather than in a mechanistic 

and inflexible manner.” Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 305 (3d Cir. 

2004). In the context of disciplinary cases or personnel actions, employees can be 

established as similarly situated by “showing that the two employees dealt with the same 

supervisor, were subject to the same standards, and had engaged in similar conduct 

without such differentiating or mitigating circumstances as would distinguish their 

conduct or the employer’s treatment of them.” Radue v. Kimberly-Clark Corp., 219 F.3d 

612, 617-18 (7th Cir. 2000) (citation omitted); see also Johnson v. Kroger Co., 319 F.3d 

858, 867 (6th Cir. 2003) (“In the context of personnel actions, the relevant factors for 

determining whether employees are similarly situated often include the employees’ 

supervisors, the standards that the employees had to meet, and the employees’ conduct.” 

(citation omitted)).

Here, neither the comparators’ conduct nor their supervisors are sufficiently 

similar. Parker alleged that one employee, who is white, was suspended for one day for 

stealing clocks from the university. DSU alleged, and disciplinary records supported, 

that the employee merely brought the clocks to his home to make plexiglass covers for 
10

them, a job the employee contended could be better done with his own equipment. 

Parker claimed that the other comparator, also a white employee, had used DSU vehicles 

to remove topsoil, and had delivered it to a third party for whom he was doing private 

construction work. That employee was suspended for one day. For its part, DSU 

claimed that the employee had simply used its vehicles to deliver soil to a third party. 

The disciplinary report did not state whether the soil was located on DSU property, and it 

charged the employee only with the unauthorized use of DSU vehicles. Even if the 

record supported that the soil was located on DSU property, which it does not, Parker did 

not establish that the soil’s removal would constitute a “theft” of the same nature as the 

cutting, transportation, and sale of highly valuable copper piping. Therefore, Parker’s 

conduct is not sufficiently similar to his proposed comparators’. 

In addition, the comparators were disciplined by supervisors other than Parker’s. 

By itself, this one difference would make it very difficult for Parker to establish any 

inference of discrimination under the McDonnell Douglas test. See Radue, 219 F.3d at 

618. But, as we have noted, there are other significant differences as well. Accordingly, 

the District Court was correct to find that he failed to make out a prima facie case of 

discrimination. See Holifield, 115 F.3d at 1562. 

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.