A common misperception is that if an employee has access to a meaningful post-discipline appeal, the employer need not grant the employee a pre-disciplinary hearing. As the Village of Minerva Park, Ohio recently discovered in federal court litigation, the Supreme Court’s decision in Loudermill v. Cleveland Board of Education requires pre-disciplinary hearings in all cases where an employee has a property right to the job, even if a post-disciplinary appeal system exists.

The case involved Jason Gross, a police officer for the Village. On July 18, 2011, the Village’s Mayor concluded that Gross “had misrepresented Department policy to other organizations,” and terminated Gross based upon a recommendation from the Police Chief. The Mayor did not offer Gross a pre-disciplinary hearing, and his termination letter was the first notice he received of the charges against him.

Gross hired an attorney and gave notice of his intention to appeal his termination. A lawyer for the Village responded by announcing that Gross would be placed on paid administrative leave with pay and benefits dating back to his termination date, pending the appeal. This letter spawned a series of communications between the two lawyers regarding whether the termination by the Mayor was indeed a termination or merely a “proposed termination” or “recommendation to terminate.” With neither side agreeing on the appropriate nomenclature, the appeal Gross sought went forward, with hearings before the Village Council see here.

The Council reduced Gross’s termination to a three-week suspension. Gross then sued the City in federal court. After the lawsuit was filed, the Chief sent Gross a memorandum informing him that he was being placed on “paid administrative leave pending an investigation of his recent conduct which may result in disciplinary action.” This was followed days later by a 12-page letter from the Chief alleging a “continued pattern of incompetence, neglect of duty and failure to obey orders” and recommending that the Mayor terminate Gross’s employment with the Police Department.

Gross’s lawyer requested a “pre-disciplinary hearing and copies of several documents in order to prepare. The Village responded the next morning with the requested documents and a letter from its lawyer opining that the Mayor was not required by law to grant Gross a pre-disciplinary hearing but offering a meeting with the Mayor at 6:15 p.m. that day or any time between 7:30 a.m. and 10:00 a.m. the next day.” Gross’s counsel responded by stating that neither he nor Gross were available during the offered times and that, in any case, such short notice would not give him time to review materials in preparation for the meeting. The Mayor again issued a letter (substantially identical to that issued previously) terminating Gross’ employment. Gross did not appeal this action to the Village Council but instead pursued the litigation in federal court.

The Court found that “on July 18, 2011, Jason Gross was fired. That he was retroactively placed on administrative leave, or that his appeal was ultimately successful, does not alter the fact that on July 18, 2011, he was fired. Thus, the question now is: Did he receive the process that was due to him before being firing?

“Gross was entitled to some kind of hearing prior to being fired. Indeed, the Supreme Court in Loudermill described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’ Dismissals for cause will often involve factual disputes. 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 decision maker is likely to be before the termination takes effect. In other words, it is too late to present one’s side of the story once the decision maker has already announced a decision. Thus, if the constitutional guarantee of due process is to be respected, a person must have an opportunity to present his side of the story before a decision is rendered.

“Not only does Loudermill provide the law in this matter, it also provides an edifying factual example. In Loudermill, one of the plaintiffs was Richard Donnelly, a bus mechanic. He alleged in his complaint that he was fired, without any pre-discipline hearing, after failing an eye exam, but was reinstated following an appeal. Because Donnelly alleged that he had no chance to tell his side of the story prior to the firing, the U.S. Supreme Court found that although Donnelly had a full chance to appeal the termination and although he was ultimately successful (and thus, in some sense, not fired at all) Donnelly had stated a claim for violation of his due process rights.

“In this case, it is apparent that, with respect to the July 18, 2011 firing, Gross was not afforded any opportunity to tell his side of the story before the Mayor announced the termination. Indeed, the Village has admitted as much and the Mayor expressly explained, twice, that she did not provide any such opportunity to Gross because she believed he was not entitled to it.

“Gross had a property right in his employment. He was fired from that employment without any sort of opportunity to have a pre-disciplinary hearing with the decision maker prior to the rendering of that decision. Thus, Gross has shown that he is entitled to summary judgment on the issue of liability against the Mayor with respect to that claim.”

Gross v. Village of Minerva Park Village Council, 2014 WL 467337 (S.D. Ohio 2014).

The above article has appeared in a previous issue of Public Safety Labor News and has been reprinted courtesy of Labor Relations Information System. These articles are for informational purposes only.

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