According to the
Court’s opinion, the plaintiff alleged that he had been friendly with the
former City Manager, who told him shortly before that manager was fired that he
had been directed to fire him and other employees. The personnel director told them not to worry
about mere rumors. However, on the first
day of the new acting city manager, the plaintiff’s computer was searched for
evidence that he had been unlawfully deleting city documents. No such evidence was found. However, some pornographic images from four
years earlier were found on the hard drive, in violation of City policy. Only one other computer was inspected. The plaintiff was given less than one day’s notice
of a pre-disciplinary hearing – for violating the technology policy -- without
any indication that he could be fired or that he could bring an attorney.
During the hearing,
he was asked about the pornography, but was refused his request to view these
images. He could not remember them, but
speculated that they might have been sent to him in emails or that someone else
could have view the images after he logged in for the day, but while he was out
of the office. A subsequent inspection revealed cookies from pornographic web
sites. The plaintiff was also asked
about sexually inappropriate comments he allegedly made to female co-workers,
but which he did not recall. A few days
later, he was fired.
The plaintiff
appealed to the personnel appeals board, but was told that he was an unclassified
employee. After filing a mandamus
action, which was only upheld on appeal, the Board held a hearing, found he was
a classified employee and reduced his termination to a suspension. That decision remains on appeal in state
court. The City also informed the Bureau
of Unemployment Compensation that he had been terminated for sexual harassment
and violating the City’s technology policy in, among other things, viewing
pornography at work.
On appeal,
the Sixth Circuit majority found that the plaintiff “was denied adequate
pre-deprivation due process.”
Under Loudermill,
a predeprivation hearing must include an explanation of the employer’s
evidence. Lane was denied the opportunity to see the photographs he was accused
of viewing and retaining, depriving him of a “meaningful opportunity to tell
his side of the story.” . . . Additionally, a jury could find that Lane was not
given notice of all the charges against him.
Lane was notified of the charge that he “viewed and retained” offensive
images, but he was not notified of any sexual-harassment or
hostile-work-environment charges, even though Taylor stated in a termination
memorandum to the State of Ohio that Lane “created a hostile working environment
that makes the women feel uneasy when Paul is present,” and stated in a letter
to the Ohio Bureau of Unemployment Compensation that, “in regards to sexual
harassment,” . . . . . The lack of meaningful notice and an opportunity to be
heard is evident given that Taylor based his decision to terminate Lane in part
on Lane’s “failure to present any evidence to the contrary at the
[pre-termination] hearing.”
In light of
the due process violation, the Court denied qualified immunity to the
individual defendants:
Their sole joint
argument is that they infringed no clearly established constitutional right
because no reasonable official would have known that terminating Lane, after notice,
for viewing pornography was impermissible. This argument conflates the clearly established
procedural right at issue with the reason for the termination, and ignores the
patent inadequacy of the notice. Although the Constitution does not require an
“elaborate” predeprivation hearing, it required Defendants to provide Lane a
“meaningful opportunity to tell his side of the story” before he was fired. . . .. A reasonable official would have
known that Lane was entitled to view the evidence against him. Additionally, a
jury could find that Lane was terminated based on allegations not contained in
the notice of the predisciplinary conference; a reasonable official would thus
have known the notice was constitutionally inadequate.
The Court
also remanded the issue of the City’s respondeat superior liability because
the district court did not address it after dismissing the two substantive
claims. “[A]
municipality may be liable for the actions of its employees or agents under §
1983 where the “acts may fairly be said to represent official policy.”
Nonetheless, the
Court rejected the post-termination due process allegations on the grounds that
the delay in reinstating the plaintiff was attributed almost entirely to state
court litigation and not intentional misconduct by the defendants. It also rejected the defamation claims on a
number of grounds, including the reasonable basis for the allegations against
the plaintiff and qualified privilege.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
