Opinion
Case No. 1:99-CV-319
May 12, 2000
ORDER
In accordance with the opinion entered this date, IT IS HEREBY ORDERED that the Plaintiff's motion for partial summary judgment (Docket #24) is GRANTED.
IT IS FURTHER ORDERED that JUDGMENT is entered in favor of the Plaintiff as to Count II.
OPINION
The Plaintiff, Donna M. Clark ("Clark"), was terminated by the Defendant, St. Joseph Public School District, from her position as a school bus driver for insubordinate conduct. She commenced this action alleging breach of her employment contract (Count I of the Second Amended Complaint) and denial of procedural due process pursuant to 42 U.S.C. § 1983 (Count II). Before this Court is the Plaintiff's motion for summary judgment as to Count II. For the reasons stated herein, the motion is granted.
The Plaintiff brings Count II under both the state and federal constitutions. Michigan's guarantees of due process are construed no more broadly than the federal guarantees. Gazette v. City of Pontiac, 212 Mich. App. 162, 173 (1995). Plaintiff offers no separate analysis of her state constitutional claim. Accordingly, the Court utilizes the framework for due process analysis under the Fourteenth Amendment.
I
Clark had been employed as a school bus driver for the St. Joseph Public School District for the past eighteen years. Her employment contract provided that she could be terminated only for cause:
Second Amended Compl. ¶ 5.
Article VI Section 1: Correct Discipline
The District recognizes the requirements of due process and further shall maintain a policy of progressive discipline consistent with the alleged offenses committed and shall not discipline unreasonably.Section 2: Discharge Procedure
The District agrees that employees shall not be suspended or discharged without cause from and after the date of this agreement.
On April 6, 1998, Clark attended a staff meeting conducted by the district's transportation director, Kathy Soper. During the meeting, Clark repeatedly questioned a directive of Soper's.
Considering her conduct disruptive, Soper asked Clark to leave the room. As Clark proceeded to the door, a physical confrontation between the two women resulted. That afternoon, Soper notified Clark that she wished to see her in her office. Clark went, accompanied by her union representative, Ms. Brenneke. Clark was informed that she had disrupted the staff meeting and that she was going to incur disciplinary action for her behavior. She received a written "Employee Disciplinary Report" advising that the matter was being referred to the Business Manager, Mr. Watson. Watson conducted an investigation which included interviews with the Plaintiff and Brenneke as well as several other attendees of the meeting. On April 13, 1998, Watson met with Clark and asked her "to tell him the story of what happened. He said he was investigating it." Clark told him her version of the events. According to Clark, Soper had put her hands on her shoulders.
Clark Dep. at 45-46.
Watson interviewed Soper, Dave Radtke, Jim Grandy, Rose Riggins, and Christina Lewellen.
Clark Dep. at 54.
Clark Dep. at 54.
Clark repeatedly asked that Soper apologize to her and requested that Soper be disciplined. Clark told Watson that if Soper did not apologize, she would take "further action." Clark asked Watson if he was going to speak with all the drivers that were at the meeting and he said no. Watson informed Clark that, depending on the result of his investigation, she might be terminated for insubordination based on her conduct at the meeting. Watson advised her that he would contact her once he completed his investigation.
Clark Dep. at 57-58.
Clark Dep. at 54-55.
Clark Dep. at 59.
Clark Dep. at 58.
In a letter dated May 1, 1998, that stated "Subject: Discipline Meeting," Watson advised Clark that he had completed his investigation and that based upon his investigation, disciplinary action was necessary. The letter scheduled a meeting and informed Clark that she could bring a union representative. In the May 11, 1998, meeting attended by Watson, Clark, and her union representative, Watson gave Clark a copy of an "Employee Disciplinary Report," that stated that she had interrupted Soper by questioning several procedures during a staff meeting and had disrupted the meeting. Clark had continued to ask questions after being told to stop. According to the report, Clark, while walking toward the door, turned around and walked back toward Soper, who raised her hand to protect herself. The report further stated that based on Clark's actions, her statements on April 13, 1998, and the information developed from interviews of five other drivers who had been at the meeting, Clark's behavior was found to be insubordinate and unacceptable. The report stated that Clark "had a repeated history of this type of insubordinate behavior and lack of self control" and listed dates of previous incidents. The report concluded that because of her insubordinate conduct in the meeting, in the April 13 interview and in previous incidents, Clark was being discharged effective immediately for insubordination.
That day, Clark filed a grievance, alleging that Article VI, sections I and II had been violated. Clark stated that had Watson "thoroughly investigated this matter, I am certain you would have discovered the majority of people present at this meeting would have told you the truth." The grievance was assigned to Assistant Superintendent Char Wenham. Wenham interviewed Clark with Brenneke present. At that interview, Clark requested that specific eyewitnesses be interviewed. Wenham interviewed Janet Schrubba, not one of the witnesses Clark had requested, and could not remember if she had interviewed anyone else. Wenham stated that she did not interview a certain person Clark had requested because she was friends with Clark and Wenham thought she would not be objective. Wenham denied the grievance. This action followed.
Wenham Dep. at 13.
On September 13, 1999, this Court denied the Defendant's motion for summary judgment as to Plaintiff's procedural due process claim because the Court was unable to ascertain from the complaint and the Plaintiff's brief in opposition the precise procedural due process right that she allegedly had been denied.
Clark's present summary judgment motion now appears to allege that her due process rights were violated because there was no post-termination opportunity for her to present witnesses on her behalf.
II
Procedural due process issues require a two-step analysis. The Court must determine first whether there was a protected liberty or property interest and second, what procedures are required to protect that interest. The Defendant does not dispute that Clark, as a state employee who could only be terminated for just cause, had a legitimate expectation of continued employment and, therefore, a protected property interest.
The Sixth Circuit in Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1348 (6th Cir. 1992) stated that:
Once it is determined that the due process clause applies, we are then faced with the question of what process is due, [Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)], and, particularly, whether a federal cause of action is the appropriate remedy for plaintiffs' deprivation.
The Sixth Circuit, relying on Parratt v. Taylor, 451 U.S. 527 (1981), requires that in a procedural due process case under § 1983, "the plaintiff must attack the state's corrective procedure as well as the substantive wrong" and carries the burden of pleading and proving the inadequacy of state processes. Sutton, 958 F.2d at 1348.
The Plaintiff asserts that the post-termination procedure afforded her, namely a meeting with Wenham, was inadequate. Clark asserts that she should have had an opportunity to present evidence on her behalf, namely eyewitness accounts of the meeting, and relies uponCarter v. Western Reserve Psychiatric Habilitation Center, 767 F.2d 270, 273 (6th Cir. 1985), as authority for this proposition.
The Defendant responds that Carter does not govern the case presented because Clark's pre-termination proceedings afforded her all the process to which she was entitled and therefore the Court need not examine any post-termination proceedings.
The severity of depriving a person of the means of livelihood is well recognized. In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), the Supreme Court considered what process was due prior to deprivation of a property interest. The Court concluded that a pre-termination "hearing" need not be elaborate and functioned as an initial check against mistaken decisions.
Specifically, the Court held that:
[t]he essential requirements of due process . . . are notice and an opportunity to respond. The [employee] is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.470 U.S. at 546.
The Defendant argues, and the Plaintiff does not dispute, that Clark was afforded with pre-termination "notice and an opportunity to respond" as required by Loudermill. She was advised of the evidence and given an opportunity to present her side of the story. The Defendant, relying on Loudermill, suggests that this was all the process to which she was entitled. The Defendant, however, misconstrues Loudermill. The Court did not determine that mere pre-termination "notice and an opportunity to respond" was all the process due an employee. The Court expressly rested its holding on the availability of a full post-termination hearing.Id. at 546 ("Our holding rests in part on the provisions in Ohio law for a full post-termination hearing."). Subsequent Supreme Court cases have reaffirmed this interpretation. See, e.g.,Gilbert v. Homar, 520 U.S. 924, 929 (1997) (describing decision in Loudermill as holding "that a public employee dismissable only for cause was entitled to a very limited hearing prior to his termination, to be followed by a more comprehensive post-termination hearing"); Brock v. Roadway Exp. Inc., 481 U.S. 252, 261-62 (1987) ("the Court [inLoudermill] upheld procedures affording less than a full evidentiary hearing if some kind of a hearing ensuring an effective initial check against mistaken decisions is provided before the deprivation occurs, and a prompt opportunity for complete administrative and judicial review is available") (internal quotation marks omitted). Courts of Appeal also evidence this understanding of Loudermill. See Garraghty v. Com. of Va., Dept. of Corrections, 52 F.3d 1274, 1283 (4th Cir. 1995) (Loudermill and its progeny have upheld pre-termination of notice and opportunity to respond where employee was later afforded a full post-termination hearing); Winegar v. Des Moines Indep. Com. School Dist., 20 F.3d 895, 901 (8th Cir., 1994) ("an assessment of the adequacy of pre-deprivation procedures depends on the availability of meaningful post-deprivation procedures); Langley v. Adams Co., Colo., 987 F.2d 1473, 1480-81 (10th Cir. 1993) (affirming denial of qualified immunity to officer who terminated plaintiff and officer who affirmed termination because no opportunity for post-termination hearing that included right to confront and examine witnesses); Browning v. City of Odessa, Tex. 990 F.2d 842, 844-45 (5th Cir. 1993) (pre-termination procedures that complied with the due process requirements set forth in Loudermill were sufficient because a full evidentiary post-termination hearing was available); and Sutton, 958 F.2d at 1349 (due process standards enunciated for pre-termination hearings in Loudermill were based in part on the scope of the post-termination process provided by state law of a full administrative hearing and judicial review when discharged for disciplinary reasons).
The Sixth Circuit in Carter specifically recognized that "it is clear that the required extent of post-termination procedures is inextricably intertwined with the scope of pre-termination procedures." 767 F.2d at 273. The hearing required by the due process clause may be a pre-termination hearing, a pre-deprivation abbreviated opportunity to respond with a prompt post-deprivation hearing, or solely a prompt post-deprivation hearing. Chernin v. Welchans, 844 F.2d 322, 326 (6th Cir. 1988). Clark's pre-termination proceedings provided the bare requirements ofLoudermill. In light of the foregoing case law, the Court finds unpersuasive the Defendant's contention that the Court need not examine the post-termination proceedings because Clark's pre-termination proceedings were adequate.
Although the Sixth Circuit in Carter declined to establish a format for post-termination hearings, it concluded that "where, as here, a court has approved an abbreviated pre-termination hearing, due process requires that a discharged employee's post-termination hearing be substantially more `meaningful.'" Id. at 273. "The severity of depriving a person of the means of livelihood requires that such person have at least one opportunity for a full hearing, which includes the right to "call witnesses and produce evidence in his own behalf," and to "challenge the factual basis for the state's action." Id. See also Sutton, 958 F.2d at 1350 (citingCarter); Winegar, 20 F.3d at 901 (reversed summary judgment in favor of defendant where the post-deprivation encounters with the school district were meetings rather than hearings and the plaintiff was not given an opportunity to present witnesses on his behalf); Garraghty, 52 F.3d at 1284 (post-termination hearing included right to confront and examine witnesses). These cases make it clear that a public employee who has a constitutionally protected property interest in his continued employment facing a termination for cause has a due process right to challenge the factual basis for the termination at some point in the termination process.
The Defendant maintains that Clark's post-termination remedies were adequate. Specifically, the Defendants contends that "[a] hearing was held, her Union representative was present, Ms. Clark was allowed to speak and an independent investigation was conducted."
Def's Resp. to Pl's Mtn for SJ at 5. The Court notes that the Defendant's brief is both untimely and, at a total of six pages, with only one case citation, abbreviated to the point of being cursory.
Clark, however, was not afforded an opportunity to have her witnesses heard. The Court is unable to distinguish Carter from the case presented and accordingly, based on the language of that case, concludes that the failure to provide Clark with an opportunity to present evidence on her behalf deprived her of procedural due process. Accordingly, the Court grants the Plaintiff's motion for summary judgment as to Count II.
This holding, however, in no way intimates that Clark is entitled to the relief she seeks of reinstatement and compensatory damages. Federal law defines the proper remedy for a procedural due process violation. In Carey v. Piphus, 435 U.S. 247 (1978), the Supreme Court held that the remedy for a procedural due process violation is defined by the extent of the injury that resulted from the denial of constitutionally required process.Carey involved the measure of damages due to two students suspended from school without the benefit of pre-suspension procedures. The Court concluded that if on remand the district court would find that the suspensions were justified, then the students would not be able to recover damages for the procedural deprivations. Id. at 260. Similarly, reinstatement is proper only where an employee would not have been dismissed if his procedural due process rights had been observed. See Brewer v. Chauvin, 938 F.2d 860, 864 (8th Cir. 1991). Where an employee would have been discharged even if he had received due process, i.e. was discharged for cause, his sole injury is the lack of process and only nominal damages are proper.
An order and judgment consistent with this opinion will be entered.
Date: May 12, 2000