Whartenby v. Winns. School District

2001 DNH 160

• Court: District Court, D. New Hampshire
• Decided: August 24, 2001
• Docket: CV-00-021-JD
• Status: Published

Opinion

Whartenby v. Winns. School District CV-00-021-JD 08/24/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jason Whartenby

v. Civil No. 00-21-JD Opinion No. 2001 DNH 160 Winniscruam Regional School District et al.

O R D E R

On March 14, 2001, the court issued an order granting in

part and denying in part the defendants' motion for summary

judgment, and denying the plaintiff's motion for summary

judgment. In that order, the court found that the plaintiff was

given adequate pre-termination process. The plaintiff asks the

court to reconsider that finding.

Also in the March 14 order, the court denied the parties'

motions for summary judgment on the procedural due process claim

because the record did not reveal sufficient evidence about the

plaintiff's access to post-termination process. Both the

plaintiff and the defendants move the court to renew their

motions for summary judgment on the claim.

I. Pre-Termination Process

The plaintiff, Jason Whartenby, moves the court to

reconsider its finding that the meeting between him and School District Superintendent Norman Couture, during which Couture

announced his decision to terminate Whartenby's employment,

afforded Whartenby sufficient pre-termination process.

Whartenby's arguments are similar to those made in his memoranda

that the court considered prior to issuing its order. The court

denies Whartenby's motion for the reasons given in the order

dated March 14, 2001.

II. Post-Termination Process

If an employee with a constitutionally protected property

interest in his employment is not given a full hearing prior to

termination, he must have access to a full hearing after

termination. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 546 (1985); Brasslett v. Cota. 761 F.2d 827, 836 (1st Cir.

1985). In these circumstances, failure to provide sufficient

post-termination process is a violation of the employee's due

process rights under the Fourteenth Amendment. See id.; see also

Calhoun v. Gaines, 982 F.2d 1470, 1476-77 (10th Cir. 1992)

(stating "full-blown, adversarial post-termination hearing" is

required where pre-termination process is "less elaborate");

Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1078 (3d Cir.

1990) (holding suspension absent hearing either before or after

suspension violated due process).

2 Due process may be satisfied by state law that provides for

post-termination process. See Loudermill, 470 U.S. at 1495.

Where grievance procedures are available but the employee fails

to make use of them, the employee may not claim a due process

violation. See, e.g., Henniqh v. City of Shawnee, 155 F.3d 1249,

1256 (10th Cir. 1998) (holding due process satisfied where

plaintiff could have used grievance procedures under collective

bargaining agreement).

In their renewed motion for summary judgment, the defendants

assert that Whartenby could have availed himself of the

opportunity to appeal Couture's decision pursuant to N.H. Rev.

Stat. Ann. ("RSA") 189:31 and 189:32 (1999). RSA 189:31 permits

superintendents to remove school district employees for cause,

and states that the "person so removed shall continue as an

employee of the district unless discharged by the local school

board but may not return to the classroom or undertake to perform

the duties of such person's position unless reinstated by the

superintendent." RSA 18 9:32 permits a person removed by the

superintendent, but not dismissed by the school board, to appeal

to the state board.1

1RSA 189:32 reads: Any person so removed, unless dismissed by the school board, may appeal to the state board. The board shall prescribe the manner in which appeals shall be made.

3 The defendants assert that Whartenby was not dismissed by

the school board, and he does not challenge that fact. He

contends that the appeal procedure provided by RSA 189:32 was not

available to him because Couture not only removed Whartenby from

his duties, he terminated Whartenby's employment. Whartenby also

argues that he was never notified of his ability to seek an

appeal under state law.

Whartenby does not dispute that he did not attempt to seek a

review of Superintendent Couture's decision by the state board,

nor did he ask Couture or any other administrator about the

procedures for filing an appeal. Instead, he consulted an

attorney and filed this lawsuit. Whartenby claims that filing an

appeal would have been fruitless because Couture had already

terminated his employment. However, this is speculation on

Whartenby's part, as he did not seek to appeal Couture's decision

to the state board. RSA 189:32 provides an avenue of grievance

resolution for school district employees who have been removed

from their duties and have not been dismissed by the school

board, and Whartenby fell into this category. Having made no

effort to inquire about possible recourse after his termination.

and when one is made shall investigate the matter in any way it sees fit, and make such orders as justice requires.

4 Whartenby cannot now claim he was denied due process.

The undisputed facts reveal that Whartenby was not denied

access to post-termination process. Accordingly, the court holds

that no procedural due process violation occurred, and the

defendants are entitled to summary judgment on Whartenby's

procedural due process claim.

5 Conclusion

The plaintiff's motion for reconsideration and renewed

motion for summary judgment are denied (document no. 42). The

defendants' renewed motion for summary judgment is granted

(document no. 47).

The plaintiff's claims for breach of contract and for breach

of the covenant of good faith and fair dealing remain pending in

this case. As a number of issues raised in this case have been

resolved by this order and the order dated March 14, 2001, the

parties should engage in good faith efforts to arrive at a

nontrial disposition of the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

August 24, 2001

cc: Richard C. Mooney, Esquire John P. Sherman, Esquire