Divided Sixth Circuit Partially Upholds §1983 Challenge to Termination of Pickerington City Employee

On Friday, a divided Sixth Circuit Court of Appeals reversed summary judgment in favor of the City of Pickerington on a §1983 claim based on how the pre-termination hearing was conducted by the newly appointed acting City Manager when the plaintiff was not given notice of sexual harassment allegations before the hearing and was not permitted to view any of the pornography evidence (from more than four years earlier) gathered against him.  Lane v. City of Pickerington, No. 13-4073 (6^th Cir. 11-14-14).  The Court also denied immunity to various city officials based on the failure to provide adequate pre-hearing notice or procedural due process during the pre-disciplinary hearing.  However, the Court affirmed dismissal of the remaining claims because the plaintiff could not show that he had been defamed and any delays in the post-termination process (which granted him partial relief in ordering his reinstatement) were attributable to state-court litigation and not the defendants.

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.

Ohio Appeals Court: Arbitrator Exceeded Authority in Ignoring Parties’ Stipulation Removing Legal Issue from Consideration.

Today, the Summit County Court of Appeals vacated an arbitrator’s order reinstating a city health department employee who had been discharged for taking college classes when she was supposed to be on FMLA leave. City of Akron v. Civ. Serv. Personnel Assn., Inc., 2008-Ohio-4331. The court disagreed with the arbitrator’s rationale that the city’s pre-termination notice was constitutionally deficient because its focus seemed to announce a decision already made instead of giving her notice of her opportunity to present exculpatory evidence to preserve her employment. Instead, the court found that the arbitrator exceeded her authority by ignoring the parties' stipulation that the city had honored the employee's Loudermill rights by holding the pretermination hearing when the arbitrator ruled that the city had violated the employee's due process rights through a defective notice of termination.

According to the court’s decision, the employee “sought to attend college courses during regular working hours through the City’s “Academic Flexible Work Schedules” program, [but] withdrew her request to participate in the program . . . when management indicated that staffing shortages necessitated her working all of her regular hours. Instead, [the employee] submitted a request for Family Medical Leave Act (“FMLA”) leave time in order to care for her sick son. Health Department investigators later discovered [the employee] attending a college course during the hours that she had been approved to take her FMLA leave time.” Not surprisingly, “the City subsequently notified [the employee] that she was being recommended for discharge.” According to the City, a pretermination hearing was then held “consistent with Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532. The City further claims that [the employee’s union] sent the City a “Loudermill Response” after the hearing” on October 20, 2006. The union also filed a grievance challenging the employee’s termination. The City says that it considered all of this information and then City “finally notified [the employee] on October 23, 2006 that she was in fact being discharged, effective October 24, 2006.” The union sought arbitration on October 31, 2006.

During the March 2007 arbitration hearing, the parties “entered two stipulations before the arbitrator: (1) that the matter was properly before the arbitrator for resolution, and (2) that [the employee] had been given a Loudermill hearing.” Notwithstanding these stipulations, the arbitrator reinstated the employee in May 2007 because she determined that the City “failed to comply with Loudermill and the due process protections afforded to [the employee] as a civil servant. The arbitrator reasoned that the City’s notice of discharge, issued on October 11, 2006, clearly informed [the employee] that she was “hereby discharged” even though it preceded any response from [the union]. Therefore, the arbitrator determined that the City never gave [the employee] a pretermination opportunity to respond to the charges against her and terminated her without just cause.” When the city filed an appeal to vacate the arbitration decision, the trial court confirmed the arbitration award on the grounds that the parties’ stipulation raised factual matters which could not be reversed on appeal.

On appeal, the city argued that the arbitrator ignored the parties’ stipulation that the city had honored the employee’s Loudermill rights and the Court agreed. “An arbitrator also exceeds her authority, however, when she misinterprets or exceeds the conditions of a stipulation. Moreover, “Loudermill [only] requires a ‘classified civil service employee’ to be given a pretermination disciplinary hearing. . . . [S]uch hearing need not be elaborate, but must afford the employee the opportunity to have an explanation of the employer’s charges and evidence against [her], and an opportunity to present [her] side of the story.” The Court determined that the parties’ Loudermill stipulation removed a legal issue from the arbitrator’s consideration and was not merely a factual stipulation which was beyond the court’s jurisdiction to review on appeal. “By wholly ignoring the stipulation, the arbitrator went beyond the scope of the issue presented to her and exceeded her authority,” which is a matter determined by the contract -- and stipulations – entered into by the parties (i.e., the employer and the union).

Insomniacs can read the decision in full at http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-4331.pdf.

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.