NOT PRECEDENTIAL

UN ITE D STATES COURT OF APPEALS

FO R THE THIRD CIRCUIT

N O . 06-1544

FR E D WAGNER,

Appellant

v. TUS C AR O R A SCHOOL DIST; BOARD OF SCHOOL DIRECTORS OF THE

TU S C A R O R A SCHOOL DISTRICT; ROBERT BEAUMONT; THOMAS

S TAP L E FO R D ; JANE RICE; *JEFFREY SPIDEL; DARLA THARP; KEITH

S M ITH ; MICHAEL RICE

P E R CURIAM Fre d Wagner appeals pro se from the orders of the United States District Court for th e Middle District of Pennsylvania granting summary judgment and granting partial d ismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).

Th e factual and procedural history of this case need not be discussed at length h e re ; it is well-known to the parties, and is set forth in the District Court's opinion g ra nting summary judgment. Wagner filed a complaint under 42U.S.C. § 1983, which w a s amended twice, alleging that the defendants denied him notice and an opportunity to be heard before his termination from employment as band teacher and director for the Tus c a ro ra School District ("District"), in violation of his substantive and procedural due p roc ess rights under the Fourteenth Amendment. Wagner claimed that his summary te rm ina tio n and the publicity surrounding it deprived him of his property right to his job a nd his liberty interest in his reputation. The Second Amended Complaint also included s ta te law claims of civil conspiracy, defamation, tortious interference with contractual re la tio ns , breach of contract, and violation of Pennsylvania's Wage Payment and C o lle c tio n Act ("WPCA"). Wagner sought a transfer and/or promotion, lost wages, and damages.

Th e defendants filed a motion to dismiss pursuant to Federal Rule of Civil P roc ed ure 12(b)(6), to which Wagner responded. The District Court dismissed Wagner's s ubs ta ntive due process and WPCA claims as to all defendants, his procedural due p ro c e ss claim as to all defendants except Superintendent Stapleford, and his defamation c la im except as to defendants Stapleford and Beaumont (Principal of James Buchanan H ig h School).1 The defendants answered the remaining claims in the Second Amended C o m p la int and, once discovery was completed, both the defendants and Wagner moved f o r summary judgment. After reviewing the written materials, including the parties' re sp e c tive statements of undisputed facts, the District Court denied Wagner's motion for s um m a ry judgment and granted the defendants' summary judgment motion as to all o uts ta nd ing claims.

Th e District Court determined that the District did not suspend Wagner without d ue process when they placed him on administrative leave without pay pending a State P o lic e investigation pursuant to an agreement that Wagner proposed and the District ac ce p ted.2 The District Court also held that the August 12 meeting, at which Stapleford info rm ed Wagner generally of the charges against him and offered Wagner a choice of re sig na tio n or suspension and termination proceedings, was sufficient to meet procedural d ue process standards for a pre-suspension hearing. The District Court rejected Wagner's c o nte ntio n that he was terminated at the August 12 meeting, holding that the August 12 m ee ting was not a "de facto termination hearing" requiring due process protections. The D is tric t Court ruled that the District gave Wagner all of the process that he was due under C le ve la nd Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), when it informed him of the ch arg es against him in writing and gave him an opportunity to respond to the District's no tic e of his right to request a hearing in June 2004. The District Court noted that it was o nly after Wagner failed to request a hearing that he was terminated in August 2004. As fo r Wagner's claim that the defendants deprived him of a liberty interest in his reputation w ith o ut due process, the District Court held that Wagner was given the opportunity to h a ve a "name-clearing hearing" when the District gave him the statement of charges a g a ins t him and notice of his right to a hearing in accordance with Loudermill.

As for the state law claims, the District Court held that Wagner failed to show that the defendants conspired to report false allegations of sexual harassment because there w a s no record evidence that the allegations were false. The District Court rejected W a g ne r 's claim that Stapleford and Beaumont defamed him by publishing false informa tio n about the sexual harassment allegations because there was no record e vid e nc e showing that the defendants were responsible for making public the news of W a g ne r's suspension and the District's investigation. The District Court determined that S tap le fo rd discussed the circumstances surrounding Wagner's suspension with parents (o ne of whom happened to be married to a newspaper reporter) of Wagner's students and g a ve comments to a reporter who contacted him to confirm information about the matter.

The District Court held that Wagner's tortious interference claim failed because all of the d e fe nd a nts were parties to the collective bargaining agreement ("CBA") and, therefore, th e y were not "third parties" interfering with that contract. The District Court granted s um ma ry judgment on the breach of contract claim because Wagner failed to pursue the g r ie va nc e procedure provided under the CBA for resolving contract disputes and because th e re was no record evidence that the defendants' conduct rendered the CBA null and vo id . Wagner timely appealed.

W e have jurisdiction pursuant to 28U.S.C. § 1291. We exercise plenary review o ve r the District Court's orders granting summary judgment. See Pub. Interest Research Gr o up of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64 76 (3d Cir. 1990).

Summary judgment shall be granted when "no genuine issue [exists] as to any material fa c t and [when] the moving party is entitled to a judgment as a matter of law." Fed. R.

C iv. P. 56(c). We view the facts in the light most favorable to the nonmoving party and w e draw all inferences in that party's favor. See Reitz v. County of Bucks, 125 F.3d 139, 1 4 3 (3d Cir. 1997). The "nonmoving party cannot rely upon conclusory allegations in its p le a d ing s or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Telephone Co. of Pa., 24 F.3d 508, 511-12 (3d Cir. 1994). Rather, the no nmo ving party "must make a showing sufficient to establish the existence of every e le m e nt essential to his case, based on the affidavits or by the depositions and admissions o n file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992). We will affirm for s ubs ta ntia lly the same reasons set forth by the District Court in its opinion. With respect to the state law civil conspiracy claim, we add only that there is no record evidence of an ag ree ment or understanding among or between any of the defendants to violate Wagner's c ivil rights or to defame him.

W a g ne r argues on appeal that there is a genuine dispute of material fact with re s p e c t to the August 12 meeting. Wagner says that it was a de facto termination hearing.

We disagree. As the District Court correctly concluded, the record evidence indicates that W a g ne r was not terminated until August 2004, after the District gave him a formal s ta te m e nt of charges and notified him of his right to have a hearing at which he could p rese nt his own witnesses and confront his accusers. Based on the contents of Wagner's le tte r requesting unpaid leave and the substance of the secretarial notes of the August 12 m ee ting (the accuracy of which Wagner does not dispute, see Plaintiff's Statement of Und is p ute d Facts at ¶ 11), reasonable jurors could conclude that Wagner was not te rm ina te d on August 12, 2003. Contrary to Wagner's assertions, Stapleford's testimony th a t he told Wagner to resign or be terminated does not conflict materially with the other re c o rd evidence. According to the secretarial notes of the meeting, Stapleford proposed re sig na tio n in lieu of termination proceedings. If Wagner chose not to resign, the District w o uld place him on unpaid administrative leave and proceed with his dismissal at some p o int in the beginning of the new school year. In any event, as Wagner admitted in his statement of facts, Stapleford could not effectively terminate Wagner's employment at the Aug us t 12 meeting because he had no authority to do so. In the absence of any competent e vid e nc e indicating that Wagner was summarily terminated on August 12, the District C o urt properly held that the due process claims with respect to the August 12 meeting la c k e d merit.

Ac c o rd ing ly, we will affirm the judgment of the District Court.

*PER CLERK'S ORDER 5/1/06 O n Appeal From the United States District Court Fo r the Middle District of Pennsylvania (D .C . Civ. No. 04-cv-01133) D is tric t Judge: Honorable Yvette Kane S ubm itte d Under Third Circuit L.A.R. 34.1(a) M a rc h 8, 2007 B e fo re : SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES (File d March 14, 2007 O P IN IO N 1 In his pro se informal brief, Wagner generally refers to the dismissal of all claims but does not raise any specific issue with respect to the claims dismissed under Rule

1 2 (b)(6 ). To the extent that he appeals the Rule 12(b)(6) dismissal, we conclude that the d is m is s a l was proper for the reasons set forth in the District Court's Memorandum O p inio n entered September 22, 2005. See Steamfitters Local Union No. 420 Welfare Fund v. Phillip Morris Inc., et al., 171 F.3d 912, 919 (3d Cir. 1999) (standard of review).

2 The State Police investigation into alleged sexual harassment and other conduct d id not result in criminal charges.