Harry Duchesne v. Wylie L. Williams, Jr., and the City of Inkster, a Municipal Corporation

849 F.2d 1004

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 22, 1988
• Docket: 86-1017
• Status: Published

Opinions

MERRITT, Circuit Judge.

This procedural due process case brought under § 1983, Title 42, U.S.Code (1982), presents this single issue on appeal: Does Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), aff'g, 721 F.2d 550 (6th Cir.1983), require that a discharged municipal employee receive a pretermination hearing before a neutral and impartial decision-maker rather than before the supervisor who fired him? The District Court, and the panel decision of our Court which has now been vacated by the grant of en banc review (see Rule 14, Rules of the Sixth Circuit), held that Loudermill requires a pre-termination hearing before a neutral deci-sionmaker, instead of simply giving the employee the right to respond to his supervisor in order to rebut or explain the reasons given for the discharge. We accept the reasoning of the Fourth and Fifth Circuits in Garraghty v. Jordan, 830 F.2d 1295, 1302 (4th Cir.1987) (“a pre-deprivation proceeding need not be a full evidentiary hearing with witnesses and a neutral decision maker”), and Schaper v. City of Huntsville, 813 F.2d 709, 715 (5th Cir.1987) (same), that a right of reply before the official responsible for the discharge is the entitlement contemplated in Loudermill. We therefore reverse.

Plaintiff worked as Chief Building Inspector for the City of Inkster, Michigan, for more than a year until his termination on November 18, 1983. Defendant Williams, the City Manager, informed plaintiff on September 12, 1983, that his employment would be terminated for several reasons, including the fact that he had engaged in “improper conduct ... before City Council by impugning the integrity of the City Manager, City Council, and other independent contractors.” App. 306. Plaintiff had told Council members the week before that the City Manager had approved of payments for repair work on the city ice arena and that the City should not pay the bill because the work did not conform to specifications. App. 383.

Upon receiving notice of termination, plaintiff’s lawyer wrote the City Council requesting a pretermination due process hearing. The City agreed but initially refused to reinstate him pending the hearing’s outcome. Plaintiff immediately filed a complaint against the City Manager and the City in the District Court alleging federal due process and First Amendment deprivations, and pendent state law claims. The City then agreed to pay plaintiff’s wages and benefits pending the hearing. The City Manager immediately gave plaintiff a written description containing numerous reasons for the discharge. A preter-mination hearing took place on October 6, 17, and November 10, at which plaintiff, as he had requested, was represented by legal counsel, was allowed to present witnesses supporting his theory that the City did not have just cause to terminate him and was allowed to cross-examine the City’s witnesses. App. 12. Over plaintiff’s objection, the City Manager presided over the hearing; he also testified against plaintiff. On November 18, 1983, the City Manager reaffirmed the discharge.

Plaintiff then filed a motion for partial summary judgment in his federal lawsuit arguing that the pretermination hearing he received did not comply with federal procedural due process requirements. Although plaintiff conceded that the City gave him the pretermination hearing he had requested, he argued that since the City Manager was both a witness and the decisionmaker, the hearing did not comply with due process. He explained that the hearing he received was not the “fair and impartial hearing required by the Constitution,” and “defendants clearly violated his rights to due process by not affording him an impartial decisionmaker at his discharge hearing.” App. 304, 362.

The District Court required both parties to submit supplemental briefs in light of the Supreme Court’s then recent pronouncement in Loudermill. The District Court then granted plaintiffs motion and issued an injunction requiring as a matter of federal due process a trial-type preter-mination evidentiary hearing before a neutral decisionmaker. It concluded that under Michigan law, plaintiff had a sufficient “property interest” in his job to trigger the Loudermill due process procedures and that under Loudermill, and previous federal cases, plaintiff was entitled to a preter-mination hearing before a “neutral deci-sionmaker.” This appeal followed. The defendants contend here that the plaintiff had neither a “property interest” in his job, nor — if such a property interest does exist —the right to a hearing before an impartial judge.

We do not reach the “property interest” issue, a complex problem as yet unresolved in Michigan law,¹ for it is clear to us that, assuming such a property interest does exist, the procedures followed at plaintiff's hearing provided all the process that was due under Loudermill. Interpreting Loudermill, the Fourth and Fifth Circuits in Garraghty and Schaper, supra, have recently squarely held that the property interest created in the normal government job covered by a civil service system, which creates a “just cause” requirement for discharge, does not entitle the employee to an impartial judge at the pretermination “right-of-reply” hearing. The right to respond before the official responsible for the discharge is sufficient. We find no Court of Appeals holdings to the contrary. Some District Courts have held otherwise. Rosario Torres v. Hernandez Colon, 672 F.Supp. 639, 652-53 (D.P.R.1987) (neutral decisionmaker required in pretermination hearing); Cook v. Bd. of Educ., 671 F.Supp. 1110, 1116 (S.D.W.Va.1987) (same); Salisbury v. Housing Auth., 615 F.Supp. 1433, 1438-41 (E.D.Ky.1985).

This Court observed in our decision by Judge Timbers in Loudermill that the functions of a full adjudicatory, adversary, post-termination hearing and of a limited “right-of-reply” pretermination hearing are different: “[T]he fact that Ohio provided appellants in this case with full evidentiary hearings [with an impartial judge] after termination does not suggest that no other process was due.” 721 F.2d at 560. The purpose of the later formal hearing is to adjudicate facts and to formulate and decide on the legal principles applicable to the circumstances. The purpose of the preter-mination presentation to the supervisor is different: “[I]f they [the employees] had been afforded some limited right to challenge the impending discharges, the discharge order might well have been rescinded” because they would have had “an opportunity to present their side of the case” at an early stage to the official responsible for the discharge. Id.

The Supreme Court accepted this reasoning in its opinion reviewing Loudermill. The Court said that before termination the employee should receive “notice” and the opportunity to “respond.” The purpose is not to “definitively resolve the propriety of the discharge,” as would be the case at the later formal hearing. 470 U.S. at 545, 105 S.Ct. at 1495. Rather, the hearing’s purpose is limited:

It should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.

Id. at 545-46, 105 S.Ct. at 1495.

The Court narrowed the essential ingredients of this pretermination hearing 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.” Id. at 546, 105 S.Ct. at 1495. The Court also looked to the municipal employer’s interest, emphasizing that “[t]o require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.” Id. (emphasis added). This reading of Loudermill is reinforced by comparing Justice Marshall’s concurring opinion with the majority opinion. The Loudermill majority deliberately chose not to include within its definition of pretermin-ation hearing rights the panoply of trial-type hearing rights advocated by Justice Marshall, which included a full evidentiary, adversary, adjudicatory hearing with an impartial judge. Id. at 548, 105 S.Ct. at 1496 (Marshall, J., concurring in part and concurring in the judgment).

As the Fourth Circuit recognized in Garraghty, 830 F.2d at 1300, this reading of Loudermill is also reinforced by the fact that in Loudermill the Court suggested that its decision was an application of the principle announced in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), a case holding that a public school student must be given a presuspension limited hearing before the “disciplinarian” so that “the disciplinarian may informally discuss the alleged misconduct with the student,” thus affording the student adequate “notice” and “an opportunity to explain his version of the facts.” 419 U.S. at 581-82, 95 S.Ct. at 740 (emphasis added). In Loudermill the Court explained what it meant by giving “some opportunity for the employee to present his side of the case” by engaging in an extended discussion of Goss v. Lopez, a discussion which begins:

Even where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect. See Goss v. Lopez, 419 U.S. at 583-84 [95 S.Ct. at 740-41].

470 U.S. at 543, 105 S.Ct. at 1494 (emphasis added). Note that the Court uses the word “decisionmaker,” which means the official responsible for the discharge. If there were any lingering doubt about the Court’s meaning, it is resolved by the footnote immediately following its citation to Goss v. Lopez. The footnote specifically states that the Court contemplates a limited Lopez -type hearing before the “employer”:

The point is that where there is an entitlement, a prior hearing facilitates the consideration of whether a permissible course of action is also an appropriate one. This is one way in which providing “effective notice and informal hearing permitting the [employee] to give his version of the events will provide a meaningful hedge against erroneous action. At least the [employer] will be alerted to the existence of disputes about facts and arguments about cause and effect.... [H]is discretion will be more informed and we think the risk of error substantially reduced.” Goss v. Lopez, 419 U.S. at 583-84 [95 S.Ct. at 740-41].

470 U.S. at 543-44 n. 8, 105 S.Ct. at 1494 n. 8 (bracketed words and elipsis in original).

The differences in the function and purpose of the pre- and post-termination hearings become clearer when we contemplate the opposing claim of an employee who has not prevailed in a full adjudicatory, trial-type, pretermination hearing. That employee’s claim would be that a formal pre-termination adjudicatory hearing before an impartial judge is not a sufficient due process substitute for the right to correct or modify the mistaken impressions of the supervisor who has threatened his discharge. He would argue along the lines discussed in our opinion in Loudermill and the Supreme Court’s reasoning in Lopez and Loudermill that his supervisor’s more concrete understanding and familiarity with the nature of the employee’s job and conduct, his supervisor’s potential willingness to forgive or give another chance, the informality of the “hearing” before the supervisor, and the lack of adversary formality and contentiousness associated with lawsuits have certain advantages over the formal adjudicatory hearing. Were we to adopt the District Court's rule, we would not be surprised to find an employee, discharged after a formal pretermination hearing, arguing that he has not been allowed to “invoke the discretion” of his employer and that he would have been retained if he could have talked to his supervisor first.

We acknowledge that there may be cases — perhaps this is one of them — in which the supervisory official is so biased that the Loudermill “right-of-reply” process is meaningless. The full, post-termination, adversary, trial-type hearing will serve to ferret out bias, pretext, deception and corruption by the employer in discharging the employee. The adversary processes employed in an adjudicatory, post-termination hearing controlled by an impartial judge lend themselves to proving wrongful conduct by the employer. The limited, “right-of-reply” pretermination hearing, as defined in Loudermill, is designed “to invoke the employer’s discretion,” his sense of fairness and mutual respect, his willingness to reconsider. It is not designed or well-adapted to uncover the employer’s bias or corrupt motivation. For a more extended discussion of this point, see Judge Kiser’s well-considered opinion in Crocker v. Fluvanna County Board of Public Welfare, 676 F.Supp. 711, 715-17 (W.D.Va.1987),² and Professor Davis’ exhaustive discussion of the differences in the purposes of the “Trial-Type Hearing” (Ch. 12) and “Fair Informal Procedure” (Ch. 13) in II K. Davis, Administrative Law Treatise, 405-522 (2d ed. 1979).

For these reasons the judgment of the Court below is reversed, the injunction is vacated and dissolved, and the case is remanded with instructions to dismiss the plaintiff’s Loudermill pretermination claim of deprivation of property without procedural due process, as discussed above, and for further proceedings on other constitutional and pendent state claims.

1 . Plaintiff contends that a series of state laws and local ordinances create a property right in his continued employment. He explains that a City ordinance adopting the Building Officials and Code Administrators International, Inc., Basic Building Code (BOCA Code), and the BOCA Code itself, create a property right in his employment. He also claims a contractual property right in his employment under Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980). Defendants contend that plaintiff has no property right in his job because the City adopted the State Construction Code Act, rather than the BOCA Code, and the City Charter provides that officials in plaintiffs employment class are employees at will. Also, defendants argue that even if the City adopted the BOCA Code, it does not apply to plaintiff.

Without resolving the Toussaint question, the District Court found that the City ordinance and the BOCA Code create a property right in plaintiffs employment, even though the BOCA Code does not explicitly indicate that it controls government employer/employee relations. Hearing Tr., February 17, 1984, 19-20. Under our disposition of this appeal, we need not resolve these complicated state law issues.

2 . Judge Kiser begins his discussion with the following quotation from Justice Powell on the question of an impartial judge at a pretermination hearing:

In most cases, the employee’s supervisor is the official best informed about the "cause" for termination. If disqualification is required on the ground that the response of the supervisor could not be wholly impartial, the removal procedure would become increasingly complex. And, in fact, a “mini trial” would be necessary to educate the impartial deci-sionmaker as to the basis for termination.

Arnett v. Kennedy, 416 U.S. 134, 170 n. 5, 94 S.Ct. 1633, 1652 n. 5, 40 L.Ed.2d 15 (Powell, J., concurring in part and concurring in the result in part), quoted in Crocker, 676 F.Supp. at 716.