F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 13 1999 TENTH CIRCUIT PATRICK FISHER Clerk
ARTHUR F. HERRERA,
Plaintiff-Appellant,
v. No. 98-2243 (D.C. No. CIV-97-756) CITY OF ALBUQUERQUE; (D. N.M.) LAWRENCE RAEL, Chief Administrative Officer; MARTIN CHAVEZ, Mayor,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, BRISCOE, Circuit Judges, and KIMBALL, District Judge. 1
Plaintiff Arthur Herrera appeals the district court’s grant of summary
judgment to defendant City of Albuquerque in this 42 U.S.C. § 1983 action.
Herrera alleges he did not receive adequate due process in the termination of his
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 1 Honorable Dale A. Kimball, District Judge, of the United States District Court for the District of Utah, sitting by designation. employment. He does not appeal the grant of summary judgment to defendants
Lawrence Rael and Martin Chavez. We affirm.
In 1996, while Herrera was an employee of the City, coworkers reported
that he smelled of alcohol, slurred his speech, and appeared unsteady on his feet
while at work. Herrera refused to take a drug and/or alcohol test without
speaking to an attorney, but declined an offer to call his attorney or to be driven
to his attorney’s office. The City deemed Herrera to have refused the test. At a
pretermination hearing, the City advised Herrera of the specific charges against
him (i.e., suspicion of reporting to work and performing work while under the
influence of alcohol, and refusing to undergo substance abuse testing) and gave
Herrera an opportunity to respond to the charges. The City did not name the
coworkers who made the allegations. Herrera denied the charges. The hearing
officer recommended termination of his employment.
Local 624 of the American Federation of State, County, and Municipal
Employees, AFL-CIO (the Union) and the City had previously entered into a
collective bargaining agreement establishing a grievance procedure for union
members. Herrera was a member of the Union and, at his request, the Union filed
a grievance with the City alleging his termination was without just cause. The
City upheld the termination and the Union did not pursue arbitration. Herrera
filed the present § 1983 action against the City and two city employees. The
-2- district court granted summary judgment to defendants, finding no due process
violation.
We review the district court’s grant of summary judgment de novo. Kidd v.
Taos Ski Valley, Inc. , 88 F.3d 848, 851 (10th Cir. 1996). Summary judgment is
proper when “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view the evidence and
all reasonable inferences derived therefrom in the light most favorable to the
nonmoving party. Kidd , 88 F.3d at 851.
Herrera contends the pretermination hearing violated his procedural due
process rights because (1) the City refused to name the witnesses who observed
Herrera in an apparently alcohol-induced state, and (2) the hearing officer was
allegedly biased and predisposed to recommend Herrera’s discharge. As a
tenured employee, Herrera was entitled to a pretermination hearing. See
Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 542 (1985). Because he
received a pretermination hearing, the issue is whether that hearing satisfied
procedural due process requirements. The purpose of the pretermination hearing
is to serve as “a determination of whether there are reasonable grounds to believe
that the charges against the employee are true and support the proposed action.”
-3- Id. at 545-46. The due process clause does not require an elaborate or formal
pretermination hearing, only that the employee be given notice of the charges and
an opportunity to respond. Id. ; see also Gilbert v. Homar , 520 U.S. 924, 929
(1997) (affirming that pretermination process need only include “notice of the
charges, an explanation of the employer’s evidence, and an opportunity for the
employee to tell his side of the story”) (citing Loudermill , 470 U.S. at 546).
Herrera received an adequate pretermination hearing. He was present at the
hearing, was represented by counsel, received notice of the charges against him,
and was given an opportunity to respond to the charges. The City was not
required to give Herrera the names of the coworkers who made the allegations
against him. See Derstein v. Kansas , 915 F.2d 1410, 1413 (10th Cir. 1990)
(stating fact that employee may not have known about internal investigation in
advance and did not receive more facts or copy of transcript at pretermination
hearing was not significant when employee had been apprised of charges against
him).
Herrera also claims the hearing officer at the pretermination hearing was
biased. Herrera has failed to provide support for this allegation. Further, due
process does not require an impartial hearing officer at the pretermination
hearing, particularly when Herrera had an adequate post-termination remedy
available. See McKinney v. Pate , 20 F.3d 1550, 1562 (11th Cir. 1994).
-4- Herrera also contends procedural due process required that he receive a
post-termination hearing. Herrera did not request a post-termination hearing.
The Union collectively bargained to establish an arbitration procedure to resolve
all workplace grievances. Grievance procedures created by collective bargaining
agreements satisfy an employee’s entitlement to post-termination due process.
See Hennigh v. City of Shawnee , 155 F.3d 1249, 1256 (10th Cir. 1998). Herrera
is free to bring a duty of fair representation claim against the Union if the Union
refused his request to pursue his grievance against the City. See id. at 1256 &
n.2. The City, however, is not responsible for the denial of a post-termination
hearing because such a hearing was not requested.
Herrera next contends his substantive due process rights were violated. To
implicate substantive due process, Herrera must demonstrate the presence of a
liberty or property interest to which the protections of due process attach. See
Curtis v. Oklahoma City Pub. Sch. Bd. of Educ. , 147 F.3d 1200
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 13 1999 TENTH CIRCUIT PATRICK FISHER Clerk
ARTHUR F. HERRERA,
Plaintiff-Appellant,
v. No. 98-2243 (D.C. No. CIV-97-756) CITY OF ALBUQUERQUE; (D. N.M.) LAWRENCE RAEL, Chief Administrative Officer; MARTIN CHAVEZ, Mayor,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, BRISCOE, Circuit Judges, and KIMBALL, District Judge. 1
Plaintiff Arthur Herrera appeals the district court’s grant of summary
judgment to defendant City of Albuquerque in this 42 U.S.C. § 1983 action.
Herrera alleges he did not receive adequate due process in the termination of his
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 1 Honorable Dale A. Kimball, District Judge, of the United States District Court for the District of Utah, sitting by designation. employment. He does not appeal the grant of summary judgment to defendants
Lawrence Rael and Martin Chavez. We affirm.
In 1996, while Herrera was an employee of the City, coworkers reported
that he smelled of alcohol, slurred his speech, and appeared unsteady on his feet
while at work. Herrera refused to take a drug and/or alcohol test without
speaking to an attorney, but declined an offer to call his attorney or to be driven
to his attorney’s office. The City deemed Herrera to have refused the test. At a
pretermination hearing, the City advised Herrera of the specific charges against
him (i.e., suspicion of reporting to work and performing work while under the
influence of alcohol, and refusing to undergo substance abuse testing) and gave
Herrera an opportunity to respond to the charges. The City did not name the
coworkers who made the allegations. Herrera denied the charges. The hearing
officer recommended termination of his employment.
Local 624 of the American Federation of State, County, and Municipal
Employees, AFL-CIO (the Union) and the City had previously entered into a
collective bargaining agreement establishing a grievance procedure for union
members. Herrera was a member of the Union and, at his request, the Union filed
a grievance with the City alleging his termination was without just cause. The
City upheld the termination and the Union did not pursue arbitration. Herrera
filed the present § 1983 action against the City and two city employees. The
-2- district court granted summary judgment to defendants, finding no due process
violation.
We review the district court’s grant of summary judgment de novo. Kidd v.
Taos Ski Valley, Inc. , 88 F.3d 848, 851 (10th Cir. 1996). Summary judgment is
proper when “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view the evidence and
all reasonable inferences derived therefrom in the light most favorable to the
nonmoving party. Kidd , 88 F.3d at 851.
Herrera contends the pretermination hearing violated his procedural due
process rights because (1) the City refused to name the witnesses who observed
Herrera in an apparently alcohol-induced state, and (2) the hearing officer was
allegedly biased and predisposed to recommend Herrera’s discharge. As a
tenured employee, Herrera was entitled to a pretermination hearing. See
Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 542 (1985). Because he
received a pretermination hearing, the issue is whether that hearing satisfied
procedural due process requirements. The purpose of the pretermination hearing
is to serve as “a determination of whether there are reasonable grounds to believe
that the charges against the employee are true and support the proposed action.”
-3- Id. at 545-46. The due process clause does not require an elaborate or formal
pretermination hearing, only that the employee be given notice of the charges and
an opportunity to respond. Id. ; see also Gilbert v. Homar , 520 U.S. 924, 929
(1997) (affirming that pretermination process need only include “notice of the
charges, an explanation of the employer’s evidence, and an opportunity for the
employee to tell his side of the story”) (citing Loudermill , 470 U.S. at 546).
Herrera received an adequate pretermination hearing. He was present at the
hearing, was represented by counsel, received notice of the charges against him,
and was given an opportunity to respond to the charges. The City was not
required to give Herrera the names of the coworkers who made the allegations
against him. See Derstein v. Kansas , 915 F.2d 1410, 1413 (10th Cir. 1990)
(stating fact that employee may not have known about internal investigation in
advance and did not receive more facts or copy of transcript at pretermination
hearing was not significant when employee had been apprised of charges against
him).
Herrera also claims the hearing officer at the pretermination hearing was
biased. Herrera has failed to provide support for this allegation. Further, due
process does not require an impartial hearing officer at the pretermination
hearing, particularly when Herrera had an adequate post-termination remedy
available. See McKinney v. Pate , 20 F.3d 1550, 1562 (11th Cir. 1994).
-4- Herrera also contends procedural due process required that he receive a
post-termination hearing. Herrera did not request a post-termination hearing.
The Union collectively bargained to establish an arbitration procedure to resolve
all workplace grievances. Grievance procedures created by collective bargaining
agreements satisfy an employee’s entitlement to post-termination due process.
See Hennigh v. City of Shawnee , 155 F.3d 1249, 1256 (10th Cir. 1998). Herrera
is free to bring a duty of fair representation claim against the Union if the Union
refused his request to pursue his grievance against the City. See id. at 1256 &
n.2. The City, however, is not responsible for the denial of a post-termination
hearing because such a hearing was not requested.
Herrera next contends his substantive due process rights were violated. To
implicate substantive due process, Herrera must demonstrate the presence of a
liberty or property interest to which the protections of due process attach. See
Curtis v. Oklahoma City Pub. Sch. Bd. of Educ. , 147 F.3d 1200, 1215 (10th Cir.
1998). At present, the question of whether a tenured employee’s property interest
in continued employment is subject to substantive due process protections is
unsettled. See id. at n.17. Even if we assume Herrera had such rights in this
instance, substantive due process requires only that the termination of the interest
not be arbitrary, capricious, or without a rational basis. Id. at 1215. The City
terminated Herrera for refusing a drug test and for appearing to be under the
-5- influence of alcohol while working. The City’s termination of Herrera was not
arbitrary, capricious, or without a rational basis. Herrera’s substantive due
process rights were not violated.
Finally, Herrera asserts a breach of employment contract claim against the
City. Many of his arguments were not raised with the district court and we will
not consider them for the first time on appeal. See Walker v. Mather , 959 F.2d
894, 896 (10th Cir. 1992). In his summary judgment response filed in district
court, Herrera asserted that his employment contract included the City’s Merit
System Ordinance which contained provisions for a post-termination hearing.
The Ordinance expressly stated its grievance procedures were not applicable to an
employee whose union collectively bargained to establish an arbitration procedure
for grievances. The City followed the procedure created by the collective
bargaining agreement and did not breach its employment contract with Herrera.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe Circuit Judge
-6-