NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 15

- 3271

____________ EVERETT K. TERRY , Appellant

v. YEADON BOROUGH; MAYOR DOLORES JONES

- BUTLER, IN HER OFFICIAL AND IND IVIDUAL CAPACITY; COUNC IL PRESIDENT ASHER KEMP, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; COUNCILMAN JACK BYRNE, IN HIS OFF ICIAL AND INDIVIDUAL CAPACITY; COUNCILWOMAN FLORENCE MCDONALD, IN HER OFF ICIAL AND INDIVIDUAL CAPACITY; COUNCILMAN JOHN HOLDEN, IN HIS OFF ICIAL AND INDIVIDUAL CAPACITY; COUNCILWOMAN DEBORAH ROBINSON

- HOWELL, IN HER OFFICIAL AND INDIVIDUAL CAPACITY; COUNCILWOMAN DENISE STINSON, IN HER OFFICIAL AND INDIVIDUAL CAPAC ITY; COUNCILWOMAN NELVA WRIGHT, IN HER OFFICIAL AND INDIVIDUAL CAPACITY

____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 12

- cv - 06205 ) District Judge: Honorable Cynthia M. Rufe

____________ Submitted Under Third Circuit L

. A

. R

. 34.1(a) September 20 , 2016 Before: Mc KEE , Chief Judge , HARDIMAN, and RENDELL , Circuit Judges

. (Filed: September 26, 2016 )2 ____________ OPINION *

____________ HARDIMAN, Circuit Judge

. Everett Terry appeals the District Court’s summary judgment in favor of the Borough of Yeadon et al . on his Fo urt eenth Amendment claims . We will affirm.
I Terry was a part

- time police officer for Yeadon from 2002 until 2005, when he was hired as a full

- time officer

. His record of service was by all accounts exemplary and he was held in high esteem by his fellow o fficers and Chief of Police , Donald Molineux

. But two happy events

— his promotion and his wedding

— sowed the seeds of his termination

. Upon being promoted to full

- time status , Terry met with Borough F inance Director Terri Vaughn to complete paperwork. In t he course of completing the forms, Terry reported no spouse , which made sense since he was not legally married. But when Terry designated his companion Margaret Schmidt as the beneficiary of his life insurance policy, Vaughn inquired why he had not listed Margaret as his spouse on his health insurance forms. Terry explained that he was not legally married, though Margaret was

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.3 his wife “as far as [he was] concerned.” 1 App. 988. In response, Vaughn told Terry that he could list Margaret as his spouse on his p aperwork, and he did so

. 2 Five years later, on July 17, 2010, Terry and Margaret formally married. Terry uploaded photographs of the ceremony onto his Facebook page shortly thereafter. The Facebook photos reveal ed the couple’s interracial status: Terry is African

- American and Margaret is Caucasian. Terry alleges he was terminated based on his interracial marriage. Defendants paint a different portrait of the investigation into Terry’s marital sta tus. Yeadon Mayor Delores Jones

- Butler, an African

- American , maintains that her suspicion was triggered because while Terry was u sually a “very open” person, she had no idea that he was to be married until learning of the wedding through hushed office gossip

. App. 674. T his perceived concealment “bothered” Butler a nd sounded her internal alarm

. App. 679

– 80. Butler then asked Chief Molineux whether the ceremony was a marriage or merely a renewal of vows. Upon learning that it was the former , she asked for Terry’s personnel file and di scovered that he had listed Mar garet as his spouse on his health benefits forms

. Further investigation revealed that the Boro ugh had expended approximately $55,000 on health insurance benefits for Margar et based on Terry’s inaccurate designation. Butler

1 The couple had been in a relationship since 1989 an d had lived together since 2002. Margaret was legally married to another ma n during part of her relationship with Terry and finalized her divorce in 2007.
2 Officer Ronald Kent, also newly hired, witnessed the entire exchange while he sat alongside Terry filling out his own paperwork. His testimony supports Terry’s account.4 met with Terry and asked him to r esign and repay the mon ey; Terry offered to repay the
B orough but declined to step down. Butler report ed Terry to the Borough Council and recommended that his employment be terminated

. 3 The Council held a hearing on the matter during an executive session on October 4, 2010, which Terry attended with legal and union representation. Terry explained how he came to list Margaret as his spouse well before they were legally married, hoping the Council would be sympathetic to the fact that he had been honest with the B orough’ s Finance D irector and was simply following her instructions. Following the hearing, Terry received a letter from Butler informing him that he would be suspended from October 15 to October 21 (the date of the next regular meeting of the Counci l), whereupon the Council would vote whether to fire him When October 21 arrived, Terry received a phone call from Chief Molineux informing him that he could return to work the next day. Terry claims the Council voted to retain his employment at the Octo ber 21 session, but the record reflects that the Council instead voted unanimously to “[t]able the issue until the next meeting

. ” 4 App.
1206

. At that meeting, which took place on N ovember 4, the Council voted 4

– 1 t o terminate Terry’s employment.

3 M ayor Butler was responsible for administering the Yeadon Police Department, but was not a member of the Borough C ouncil, which is the final authority on the firing of employ ees, including police officers.

4 Chief Molineux had been informed by the solicito r’s office that Terry’s suspension was lifted

— not that the Council had v oted to let Terry keep his job.5 After exh austing the B orough’s gri evance and arbitration process and receiving a right

- to

- sue letter from the Equal Employment Opportunity Commission, Terry brought this action under 42 U.S.C. § 1983 against Yeadon Borough, Butler, and seven members of the Borough Counci l, alleging violations of his Fourteen th Amendment rights to equal protection and due process of law. The District Court entered summary judgment against Terry and this appeal followed

. 5
II We review Terry’s race discrimination claim under the fami liar burden

- shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802

– 04 (1973): First, the plaintiff must establish a prima facie case of discrimination. If the plaintiff succeeds in establishing a prima facie case, the burden shifts to th e defendant to articulate some legitimate, nondiscriminatory reaso n for the employee’ s rejection. Finally, should the defendant carry this burden, the plaintiff then must have an opportunity to prove by a preponderance of the evidence that the legitimate r easons offered by the defendant were not its true reasons, but we re a pretext for discrimination.
Jon es v. Sch. Dist. of Phila. , 198 F.3d 403, 410 (3d Cir. 1999) (internal quotation marks and citation omitted)

. Because the Defendants proffered a legitimat e reason for Terry’s firing

— his wrongful designation of Margaret as his spouse on his health insurance forms

5 The District Court had jurisdiction under 28 U.S.C. § § 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s su mmary judgment de novo. Heightened Indep. & Progress , Inc. v. Port Auth. of N.Y. & N.J. , 693 F.3d 345, 351 (3d Cir. 2012) (quoting Sulima v. Tobyhanna Army Depot , 602 F.3d 177, 184 (3d Cir. 2010)) ( “S ummary judgment is appropriate if, viewing the record in the light most favorable to the non

- moving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law .” ).6 and the costs incurred by the B orough

— we will skip to the final step. See, e.g. , Jones , 198 F.3d at 410 (“ Our experience is that most cases turn on the third stage, i.e. , can the plaintiff establish pretext. ”).
To sur vive summary judgment at step three, Terry had to “ point to some evidence, direct or circumstantial, from which a factfinder could reasonably eit her (1) disbelieve the employer’ s artic ulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer ’ s action. ” Fuentes v. Perskie , 32 F.3d 759, 764 (3d Cir. 1994)

. We agree with the District Court that he failed to do so. First, Terry failed to present any evidence from which a factfinder might reasonably conclude that the members of the body that actually fired him

— the B orough
C ouncil

— were motivated by racial animus. And although he identifies so me different
treatment of Mayor Jones

- Butler and other members of the Council with respect to their own improper health insurance reimbursements, 6 these officials were elected and not subject to termination, and thus they are not similarly situated to Terr y. See id. at 765 (explaining that a plaintiff may survive summary judgment by showing “ that the employer treated other, similarly situated persons not of his protected class more favorably ” (emphasis added) ). Accordingly, any purported disparate treatment cannot serve as a basis for finding pretext.

6 In 2013, the Pennsylvania State Ethics Commission found that Mayor Jones

Butler and some members of the Council had received improper reimbursements without suffering any adverse employment action.7 Moreover, Terry offered no direct or circumstantial evidence from which an inference of discrimination could be drawn. When asked about the racial animus of the council members who voted to terminate him, Ter ry could not identify any basis for believing that they harbored hostility toward him and voted as they did based on race. As for Mayor Jones

- Butler, Terry’s brief on appeal urges

— without any support

— that the interracial nature of his marriage caused her to investigate. Without explanation, he rejects her testimony that she scrutinized the situation because she was curious as to why Terry would not have been more public with other borough employees and officials about his wedding. And while Terry alleges t hat interracial marriage in the Mayor’s own family provides evidence of discrimination, this could just as easily cut the other way. At the very least, that some of the Mayor’s family members are involved in interracial marriages does not give rise to any inference of discrimination. Nor did the District Court err in rejecting Terry’s due process claim

. “To state a claim under § 1983 for deprivation of procedural due process rights, a plaintiff must allege 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 p rocess of law.’” Hill v. Borough of Kutztown , 455 F.3d 225, 233

– 34 (3d Cir. 2006)

. Here, the pr ocess that was required was a

“ pretermination hearing ” explaining the evidence against Terry and providing him an opportunity to respond

. See Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 542 (1985). Such hearings need only allow for “ a determination of whether there are8 reasonable grounds to believe that the charges against the employee are true and support the proposed action .” Id. at 545

– 46 (citing Bell v. Burson , 402 U.S. 535, 540 (1971))

. Terry received this process at the October 4 C ouncil heari ng. And his contention that additional pr ocess was required because the C ouncil initially decided to retain him and then only later reversed course on November 4 is simply belied by the record. For these reasons, we will affirm the District Court’s judgm ent

.