Opinion
Civil Action No. 03-1173.
September 16, 2004
MEMORANDUM and ORDER
A former employee of Delaware County `s nursing home, Fair Acres, is suing the county commissioners and an official, alleging they violated her civil rights when they fired her. The defendants ask this court for summary judgment on all three counts of the complaint. For the reasons that follow, we grant the defendants' motion and dismiss the complaint.
FACTS
Christine Bogardus, a licensed practical nurse, was employed off and on and part-time at Fair Acres, the county's nursing home from 1982 until 2000. In 2000 Bogardus increased her schedule to four days a week at which time she received orientation and written materials about Fair Acres's policies on patient care and reporting of abuse. Bogardus also said she understood the disciplinary steps involved in failing to report a witnessed abuse and that such failure is a severe offense. The employee handbook Bogardus received described the available grievance procedures. In March, 2002 Bogardus became a full-time employee at Fair Acres.
Six months later, on October 27, 2002, Bogardus prevented another nurse from administering more of a medication to a resident than the doctor had ordered. Bogardus followed Fair Acres's procedures and properly notified her supervisors about the attempted overdose. The nurse in question was disciplined, but Bogardus expressed "surprise" to her supervisors that the nurse was not discharged.
Bogardus's report was one of four Fair Acres received from employees about the incident.
The nurse was later discharged after stealing Valium from a drug cart.
In November 2002, Fair Acres officials received information that another nurse had abused seven residents. As part of that investigation Bogardus was questioned about the alleged abuse. Bogardus's statements evolved over two days and were contradicted by other witnesses to the events. Bogardus denied she was present during the worst case of abuse alleged. Two aides, who admitted to being present, were disciplined for failing to report the event. Those aides later said Bogardus was present during the abuse and they had deferred to Bogardus regarding reporting the incident. After the aides shifted the blame to Bogardus, the director of nursing reduced the discipline of the aides from written to oral warnings.
On December 4, 2002, the director of nursing and two assistant directors interviewed Bogardus. During that interview, Bogardus was told she was to be discharged for failing to report a witnessed abuse based on the testimony of two aides. Bogardus again denied the charge and the director of nursing said she would re-interview the two aides. The director of nursing suspended Bogardus pending the re-interviews and then, after the re-interviews, discharged Bogardus.
Bogardus appealed her discharge to Leonard J. Maloney, the county Director of Personnel. Maloney interviewed Bogardus and 12Fair Acres' employees and accepted six character witness statements from Bogardus. Maloney upheld the discharge and Bogardus appealed to the county's Board of Personnel Grievances. The board held a hearing on Aril 22, 2003, at which Bogardus appeared, represented by counsel. The hearing was recorded and transcribed. The county presented witnesses, the two aides, and two supervisors, who were cross-examined by Bogardus's counsel. The board affirmed Bogardus's discharge.
The county reported Bogardus's failure to report abuse to the Board of Nursing, the Department of Aging, the Department of State — Bureau of Professional and Occupational Affairs, and to officials at Fair Acres, as required by state law.
In this action, Bogardus avers she is entitled to a "name clearing hearing" under Codd v. Velger, 429 U.S. 624 (1997), and avers her discharge was retaliatory in violation of the First Amendment right of free speech and the Pennsylvania Whistleblower Act, 43 P.S. § 1424. The county officials argue they are entitled to judgment as a matter of law.
DISCUSSION
A motion for summary judgment will only be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. Rule 56(c). In a motion for summary judgment, the moving party bears the burden of proving no genuine issue of material fact is in dispute and the court must review all of the evidence in the record and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986). Once the moving party has carried its initial burden, the nonmoving party must then "come forward with specific facts showing there is a genuine issue for trial." Matsushita 475 U.S. at 587 (citing Fed.R.Civ.P. 56(e)). A motion for summary judgment will not be denied because of the mere existence of some evidence in support of the nonmoving party. The nonmoving party must present sufficient evidence for a jury to reasonably find for them on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Bogardus claims she is entitled to a "name clearing hearing" and that the hearing before the Board of Personnel grievances did not meet that standard because she was not afforded the right of compulsory process.
Due process in the context of state employment requires only "that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). The "root requirement" of due process is "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786 (1971) (emphasis in original). "[S]ome kind of a hearing" must be held prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705 (1972). The minimum procedures include an "opportunity to respond." Barry v. Barchi, 443 U.S. 55, 65, 99 S.Ct. 2642, 2649, 61 L.Ed.2d 365 (1979) (holding no due process violation where horse trainer whose license was suspended had more than one opportunity to present his version).
The Third Circuit has held that pretermination due process is satisfied by "notice and an opportunity to be heard." Homar v. Gilbert, 89 F.3d 1009, 1016 (3d Cir. 1996); see also McDaniels v. Flick, 59 F.3d 446, 456 (3d Cir. 1995). The Supreme Court has held in some situations a postdeprivation hearing will satisfy due process requirements. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 n. 7, 105 S.Ct. 1487, 1494 n. 7 (1985).
In this case, Bogardus received notice and an opportunity to be heard by the director of nursing before her discharge as required by Mullane. Bogardus had an opportunity to present witnesses to Maloney and then again during her more extensive hearing before the Board of Personnel Grievances. Her treatment satisfies the requirements of due process under Loudermill. There is no requirement that a hearing include compulsory process to meet the standards of due process, even in the case of the firing of college professors, for whom tenure may create a greater liberty interest in their jobs. Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1078 (3d Cir. 1990); McDaniels v. Flick, 59 F.3d at 456.
Bogardus argues a name clearing hearing is ineffective if it does not include the right to compulsory process. The right to a name clearing hearing was recognized in the Supreme Court's decisions in Roth and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694 (1972). A government employee who is stigmatized in the course of his discharge may be entitled to such a hearing. Owen v. City of Independence, Mo., 445 U.S. 622, 634, 100 S.Ct. 1398, 1407 (1980).
If the government's stigmatizing comments rise to the level of a due process violation, the principal relief to which an individual is entitled is a hearing to clear his name. Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 884 (1977); Roth, 408 U.S. at 573 n. 12, 92 S.Ct. at 2707 n. 12. If there is no factual dispute that "has some significant bearing on the employee's reputation[,]" then a name-clearing hearing would serve no useful purpose. Codd, 429 U.S. at 627, 97 S.Ct. at 884. In other words, the disputed or false statements must harm the plaintiff. Ersek v. Township of Springfield, 102 F.3d 79, 84 (3d Cir. 1996). In Esrek, a golf professional proved that the township's statement that it had directed an investigation in the golf pro's misdeeds was false, but the Third Circuit held he failed to prove harm that a name-clearing hearing could correct. Ersek, 102 F.3d at 85.
To establish entitlement to a "name-clearing hearing," the aggrieved employee must show: 1) the public employer's reasons for the discharge stigmatized the employee by seriously damaging his standing and association in the community or by foreclosing employment opportunities that may otherwise have been available; 2) the public employer made the reason or reasons public; and, 3) the employee denied the charges that led to the employee's firing. Gibson v. Caruthersville School Dist. No. 8, 336 F.3d 768, 773 (8th Cir. 2003). The requisite stigma has been found when the allegations involve "dishonesty, immorality, criminality, racism, or the like." Waddell v. Forney, 108 F.3d 889, 895 (8th Cir. 1997).
Placing an adverse action in an employee's personnel file only constitutes publication when the governing state law classifies an employee's personnel file as a public record. Cox v. Roskelley, 359 F.3d 1105, 1112 (9th Cir. 2004). In Pennsylvania, personnel files are not subject to disclosure under Pennsylvania's Right to Know Act, 65 P.S. §§ 66.1-66.4. Act of June 21, 1957, P.L. 390, as amended. Bangor Area Educ. Ass'n v. Angle, 720 A.2d 198, 202 (Pa.Commw.Ct. 1998).
The due process rights in a post-termination hearing include "the right to representation by an attorney and the right to cross-examine adverse witnesses." Workman v. Jordan, 32 F.3d 475, 480 (10th Cir. 1994). Limits to discovery do not violate the Due Process Clause. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 520 (10th Cir. 1998). When a discharged employee had an opportunity to explain the allegations in a meeting with her supervisor and with the governing board, she received "more than [was] constitutionally required." Coleman v. Reed, 147 F.3d 751, 755 (8th Cir. 1998). A "name clearing hearing" need not take place before termination or the publication of the damaging information, but the [p]laintiff must have the opportunity "to support his allegations by argument however brief, and, if need be, by proof, however informal." Campbell v. Pierce County, Ga., 741 F.2d 1342, 1345 (11th Cir. 1984) (citations omitted). Compulsory process is not demanded by due process. Medina v. City of Hialeah, 2003 WL 1562281, 5 (S.D.Fla.,2003).
Bogardus's reliance on DeLong v. Hampton, 422 F.2d 21, 25 (3d Cir. 1970), is misplaced because DeLong in fact held the lack of subpoena power did not deny due process. DeLong, 422 F.2d at 25. In the second case Bogardus cites the question of the power to subpoena witnesses was only tangentially related to the holding in the case that the government could not base its case on hearsay. Henley v. U.S., 379 F.Supp. 1044, 1049 (M.D. Pa. 1974). The lack of compulsory process did not deprive Bogardus of an opportunity to clear her name at the Grievances hearing.
Bogardus has not satisfied the requisites for entitlement to a name clearing hearing, nor has she demonstrated a name clearing hearing would differ in any significant respect from the Board of Personnel Grievances hearing. Bogardus offers no evidence the county published the reasons for Bogardus's discharge beyond those with a need to know. In addition Bogardus offers no evidence beyond her unsworn denial that the stated reason for her discharge was untrue. Bogardus's claim also fails on the third prong, in that she has not been stigmatized by her discharge. Bogardus is working in the field of geriatric care and retains her license. Bogardus fails to demonstrate that she is entitled to a "name clearing hearing," that the hearing before the Board of Personnel Grievances did not meet the standard of Roth and Perry, or that she was stigmatized . The defendant county officials, therefore, are entitled to summary judgment on the first count.
Regarding counts two and three, Bogardus offers no evidence beyond mere allegation that her discharge was retaliatory; therefore, we need not consider her last two counts further. Accordingly, we enter the following:
ORDER
And now this 16th day of September, 2004, Defendant's Motion for Summary Judgment (Document 23) is GRANTED and the complaint is dismissed with prejudice, each side to pay its own costs.