Mitchell v. Fankhauser

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Mitchell v. Fankhauser, et al. No. 03-5279 ELECTRONIC CITATION: 2004 FED App. 0225P (6th Cir.) File Name: 04a0225p.06 KAISER, Washington, D.C., for Appellant. Robert L. Chenoweth, CHENOWETH LAW OFFICE, Frankfort, Kentucky, for Appellees. ON BRIEF: Alice Margaret UNITED STATES COURT OF APPEALS O’Brien, John M. West, BREDHOFF & KAISER, Washington, D.C., for Appellant. Robert L. Chenoweth, FOR THE SIXTH CIRCUIT CHENOWETH LAW OFFICE, Frankfort, Kentucky, for _________________ Appellees.

LE CARTHY MITCHELL , X _________________ Plaintiff-Appellant, - - OPINION - No. 03-5279 _________________ v. - > RONALD LEE GILMAN, Circuit Judge. After an , abbreviated pre-termination hearing, LeCarthy Mitchell was ROBIN FANKHAUSER and THE - BOARD OF EDUCATION OF fired from his job as a school custodian for allegedly stealing - school property. No post-termination hearing was provided FAYETTE COUNTY, - by the school district. Mitchell filed suit pursuant to 42 KENTUCKY , - U.S.C. § 1983, claiming that the school superintendent and Defendants-Appellees. - the school district violated his constitutional right to - procedural due process. The district court granted summary - judgment in favor of the defendants. For the reasons set forth N below, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this Appeal from the United States District Court opinion. for the Eastern District of Kentucky at Lexington. No. 02-00070—Joseph M. Hood, District Judge. I. BACKGROUND

Argued: April 29, 2004 A. Factual history

Decided and Filed: July 14, 1004 Mitchell worked for the Fayette County Public School (FCPS) District in Lexington, Kentucky from October of Before: GUY, GILMAN, and COOK, Circuit Judges. 1993 through August of 2001. His last assignment was as head custodian at Henry Clay High School. Mitchell’s status _________________ as an employee with more than four years of continuous service with FCPS entitled him, under Kentucky law, to not COUNSEL be discharged except “for cause.” Ky. Rev. Stat. 161.011(5). “For cause” includes “incompetency, neglect of duty, ARGUED: Alice Margaret O’Brien, BREDHOFF & insubordination, inefficiency, misconduct, immorality, or

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other reasonable grounds which are specifically contained in Fankhauser notified Mitchell in a letter a few days after the board policy.” Ky. Rev. Stat. 161.011(7). The statute also meeting that she was terminating him based upon the fact provides that “[l]ocal school boards shall develop and provide that, in July of 2001, he had been “observed helping another to all classified employees written policies which shall custodian load several ladders, lumber, folding chairs, and include . . . [d]iscipline guidelines and procedures that satisfy sewing machines into his car.” In a letter responding to his due process requirements.” Ky. Rev. Stat. 161.011(9)(c). termination, Mitchell denied the allegations against him “either because they are untrue or because, to the extent any By letter dated August 15, 2001, FCPS superintendent of the charges have a basis in fact, they do not warrant the Dr. Robin L. Fankhauser suspended Mitchell for fifteen days extreme sanction of termination . . . .” Mitchell also with pay. Fankhauser explained that her action was “based requested an opportunity “to challenge the charges in a due upon the fact that I have received allegations against you process hearing before a neutral finder of fact . . . .” FCPS’s concerning theft of school property. The purpose of the general counsel denied Mitchell’s request, explaining that the suspension with pay is to allow me the opportunity to August 20, 2001 meeting served as Mitchell’s due process investigate the facts involved in these allegations.” A “hand- hearing: “Dr. Fankhauser listened to all parties at the meeting delivered” designation is found at the top left-hand corner of and subsequently made the decision to terminate the letter, and a form titled “Attempt to Serve” was introduced Mr. Mitchell[] . . . .” into evidence, suggesting that FCPS Law Enforcement Officer JD Jones attempted to deliver the letter at 6:15 p.m. B. Procedural history on August 15. Whether Mitchell ever received the letter is not clear from the record. Mitchell brought suit against Fankhauser and FCPS pursuant to 42 U.S.C. § 1983, alleging that Fankhauser and Also introduced into evidence—over Mitchell’s the Board violated Mitchell’s right to the due process of law objection—is a FCPS Law Enforcement “investigative by refusing “to provide him with an evidentiary due process report” dated August 15, 2001, purporting to record an hearing upon the reasons” for his termination. After interview between Officer Jones and Mitchell. Mitchell is Fankhauser and FCPS answered, both sides moved for alleged to have “admitted taking a sewing-machine cabinet summary judgment. from Henry Clay High School to his home in Frankfort, Kentucky. He stated that he later put the cabinet in the Fankhauser and FCPS attached to their trial-court brief in dumpter [sic]. The cabinet has not been recovered.” support of summary judgment “seventeen pages detailing the factual allegations against” Mitchell. Mitchell moved to On August 20, 2001, Mitchell was called in to meet with strike these documents on the basis that they were “offered Fankhauser and various other FCPS officials. Mitchell was only to influence the Court to make a decision on the then informed of the allegations that had been made against underlying facts of the case and ‘are not of record before the him—by people who were not present at the meeting—to the Court.’” Denying Mitchell’s motion, the district court effect that Mitchell had helped another custodian steal school reasoned that the attachments were “relevant to what if any property. At the meeting, Mitchell admitted only to having investigation took place and . . . what pre- or post-termination taken a sewing-machine cabinet home with him, but then hearings actually were necessary to satisfy the requirements returning it to the school. of due process.” The district court denied Mitchell’s motion for summary judgment and granted summary judgment to

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Fankhauser and FCPS on January 30, 2003. Mitchell filed a a protected property interest in his employment. The only timely notice of appeal of the court’s grant of summary question on appeal, therefore, is whether Mitchell was judgment to Fankhauser and FCPS. afforded all of the process that he was due. II. ANALYSIS In the context of employment rights, the Supreme Court has explained that “the root requirement of the Due Process A. Standard of review clause” is “that an individual be given the opportunity for a hearing before he is deprived of any significant property We review a district court’s grant of summary judgment de interest.” Loudermill, 470 U.S. at 542 (quotation marks and novo. Therma-Scan, Inc. v. Thermoscan, Inc. 295 F.3d 623, citation omitted) (emphasis in original). Acknowledging “the 629 (6th Cir. 2002). Summary judgment is proper where severity of depriving a person of the means of livelihood[,]” there exists no genuine issue of material fact and the moving the Court has noted that “[w]hile a fired worker may find party is entitled to judgment as a matter of law. Fed. R. Civ. employment elsewhere, doing so will take some time and is P. 56(c). In considering a motion for summary judgment, the likely to be burdened by the questionable circumstances under district court must construe all reasonable inferences in favor which he left his previous job.” Id. at 543. of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central Pre-termination hearings “need not be elaborate.” Id. at issue is “whether the evidence presents a sufficient 545. “The tenured public employee is entitled to oral or disagreement to require submission to a jury or whether it is written notice of the charges against him, an explanation of so one-sided that one party must prevail as a matter of law.” the employer’s evidence, and an opportunity to present his Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 side of the story.” Id. at 546. This “initial check against (1986). mistaken decisions” is all that is necessary where an employee is provided with a full post-termination hearing. Id. B. Due process at 545; Brickner v. Voinovich, 977 F.2d 235, 237 (6th Cir. 1992) (“The Supreme Court has held that, depending on the The Due Process Clause of the Fourteenth Amendment to circumstances, a pre-termination hearing, although necessary, the United States Constitution “provides that certain may not need to be elaborate, as long as the plaintiff is substantive rights—life, liberty, and property—cannot be entitled to a full hearing with the possibility of judicial review deprived except pursuant to constitutionally adequate at the post-termination stage.”). Post-termination hearings, on procedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. the other hand, “serve to ferret out bias, pretext, deception and 532, 541 (1985). This court undertakes a two-step analysis corruption by the employer in discharging the employee.” when considering claims for the violation of due process Duchesne v. Williams, 849 F.2d 1004, 1008 (6th Cir. 1988). rights. Leary v. Daeschner, 228 F.3d 729, 741-42 (6th Cir. 2000). The first step determines whether the plaintiff has a This court addressed the interplay between pre- and post- property interest entitled to due process protection. Id. at 741. termination procedures in Carter v. Western Reserve Second, if the plaintiff has such a protected property interest, Psychiatric Habilitation Center, 767 F.2d 270 (6th Cir. 1985) “this court must then determine what process is due.” Id. at (per curiam). In Carter, several public employees brought 742 (quotation marks and citation omitted). In the present suit under 42 U.S.C. § 1983, alleging violations of their rights case, Fankhauser and FCPS do not contest that Mitchell had to the due process of law. One of the defendants, Paul Wade,

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argued that his constitutional right to due process had been Despite this intent, we are convinced that the hearing violated when he was discharged by his employer without actually provided to Mitchell was not in itself sufficient to receiving a meaningful pre-termination or post-termination satisfy the requirements of due process as set forth in Carter. hearing. The district court had found that Wade’s Mitchell, like the employee discharged in Carter, was pre-termination hearing was constitutionally sufficient afforded only an abbreviated pre-termination hearing. He is because Wade had received notice of the charge against him therefore entitled to a more meaningful post-termination and was afforded an opportunity to respond. This court held hearing. This is not to say that two hearings are always “that the required extent of post-termination procedures is required to satisfy due process. If the pre-termination hearing inextricably intertwined with the scope of pre-termination is more “meaningful,” as described in Carter, then no post- procedures.” Id. at 273. The district court’s grant of termination hearing would be necessary. But, as in Carter summary judgment to the employer on Wade’s claims was itself, that is not what took place in the case before us. reversed and remanded for a determination as to whether the post-termination process was constitutionally sufficient, We now turn to the district court’s references to Parratt v. reasoning: Taylor, 451 U.S. 527 (1981), and Vicory v. Walton, 721 F.2d 1062 (6th Cir. 1983), in support of its decision to the contrary. Where, as here, a court has approved an abbreviated pre- The district court, relying upon these two cases, held that termination hearing, due process requires that a Mitchell was “required to show that available state procedures discharged employee’s post-termination hearing be were inadequate to compensate him for the deprivation of his substantially more “meaningful.” At a minimum, this property” in order for him to state a claim under 42 U.S.C. requires that the discharged employee be permitted to § 1983. attend the hearing, to have the assistance of counsel, to call witnesses and produce evidence on his own behalf, In Parratt, a Nebraska prisoner sued prison officials under and to know and have an opportunity to challenge the § 1983, alleging that the prison officials deprived him of the evidence against him. due process of law by negligently losing his mail-order hobby materials. The Court held that the prisoner had failed to Id. allege a due process violation, reasoning that the loss of property “did not occur as a result of some established state Mitchell’s case is similar to that of the discharged procedure” and that the prisoner could seek redress pursuant employee in Carter. The August 20, 2001 meeting that to state tort law. Id. at 543. Pre-deprivation due process was Mitchell had with Fankhauser and the other FCPS officials not at issue in Parratt because of how the property loss provided Mitchell with oral notice of the charges against him occurred. A negligent loss of property “is not a result of some and an opportunity to present his side of the story, analogous established state procedure and the State cannot predict to the “abbreviated pre-termination hearing” provided to the precisely when the loss will occur.” Id. at 541. The Court employee in Carter. But Mitchell was not afforded a post- accordingly noted that “in most cases it is not only termination hearing; in fact, FCPS has no post-termination impracticable, but impossible, to provide a meaningful process. Fankhauser and FCPS explain in their brief that the hearing before the deprivation.” Id. FCPS policy “was intended to take care of all the requirements of due process pre-termination.” (Emphasis In the subsequent case of Logan v. Zimmerman Brush Co., added.) 455 U.S. 422, 435-36 (1982), the Court emphasized that

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Parratt dealt with a deprivation of property resulting from the This court decided the case of Carter v. Western Reserve random, unauthorized act of a state employee, which is Psychiatric Habilitation, 767 F.2d 270 (6th Cir. 1985), almost distinct from a deprivation resulting from an established state two years after Vicory. As previously mentioned, Carter procedure. See also Hudson v. Palmer, 468 U.S. 517, 532 followed the Supreme Court’s decision in Cleveland Board of (1984) (“[P]ostdeprivation remedies do not satisfy due Education v. Loudermill, 470 U.S. 532 (1985), holding that process where a deprivation of property is caused by conduct due process required that the public employee be afforded a pursuant to established state procedure, rather than random “meaningful” post-termination hearing, having been provided and unauthorized action.”); Zinermon v. Burch, 494 U.S. 113, with only an “abbreviated” pre-termination hearing. Carter, 128 (1990) (explaining that “the Parratt rule comes into play” 767 F.2d at 273. Although Carter succeeded Vicory, it did only in situations where “postdeprivation tort remedies are all not mention Vicory. We note that this was not illogical given the process that is due, simply because they are the only Vicory’s acknowledgment of the “difference between a remedies that the State could be expected to provide”). challenge to an established state procedure as lacking in due process . . . and a property damage claim arising out of the This court first applied Parratt in Vicory v. Walton, 721 alleged misconduct of state officers.” Vicory, 721 F.2d at F.2d 1062 (6th Cir. 1983), addressing whether a § 1983 1064. Carter deals with the former, while Vicory deals with plaintiff alleging the deprivation of property without the due the latter. process of law must plead and prove “the inadequacy of state processes, including state damage remedies to redress the Watts v. Burkhart, 854 F.2d 839 (6th Cir. 1988), was the claimed wrong.” Id. at 1063. The plaintiff in Vicory owned next Sixth Circuit case to address procedural due process in a mobile-home trailer, which he rented out. After a triple the context of an employment-related § 1983 claim. In Watts, homicide occurred in the trailer, law enforcement officials a doctor brought a § 1983 suit against a state administrative seized the trailer to investigate the crime. Vicory sued to body that sought to suspend his license to practice medicine. recover his trailer under § 1983, alleging that he was deprived Dismissing the case, the district court reasoned that Parratt of his property without the due process of law. This court, foreclosed a § 1983 procedural due process action where the relying upon Parratt, held that Vicory could not invoke state courts provide adequate post-deprivation remedies. Id. § 1983 without showing that his state-court remedies were at 841. This court held that “Parratt clearly does not apply inadequate. Id. at 1064. Specifically, the court noted that and the district court erred in concluding that it did.” Id. at Vicory could resort to a forcible entry and detainer suit in 844. Parratt and Vicory, this court explained, are Ohio state court. The court noted the important distinction inapplicable “where a deprivation of property is caused by that exists between cases such as Parratt and conduct pursuant to established state procedure, rather than Vicory—involving property deprivation claims “arising out of random and unauthorized conduct.” Id. at 843 (quoting the alleged misconduct of state officers”—and challenges to Hudson v. Palmer, 468 U.S. 517, 532 (1984)) (quotation established state procedures. Id. marks omitted). The state action at issue in Watts was “the state agency’s deliberate decision to obtain either the This significant distinction, as stated by the Supreme Court voluntary surrender of Watts’ DEA authorization or the in Parratt, Logan, Hudson, and Zinermon, and echoed by this summary suspension of Watts’ license, which was done under court in Vicory, has unfortunately not been consistently established state procedure[.]” Id. This court reasoned that applied in our circuit’s caselaw. The two parallel but because the pre-deprivation actions taken in Watts were contradictory lines of authority are discussed below.

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pursuant to established state procedures, Parratt did not inadequacy of post-termination state law remedies in order to apply. prevail,” reasoning that where a plaintiff alleges deprivation of due process pursuant to established state procedures, rather Despite the Supreme Court’s and this court’s than random, unauthorized acts, “it is both practicable and pronouncements that Parratt applies only to random, feasible for the state to provide pre-deprivation process to the unauthorized deprivations of property, this court has aggrieved party”); Sutton v. Cleveland Bd. of Educ., 958 F.2d occasionally applied Parratt’s requirement of pleading the 1339, 1349-50 (6th Cir. 1992) (stating broadly that Parratt inadequacy of state-court remedies more broadly. See and Vicory require § 1983 plaintiffs claiming procedural due Jefferson v. Jefferson County Public Sch. Sys., 360 F.3d 583, process violations to show the inadequacy of state procedures, 588 (6th Cir. 2004) (holding that a teacher who was afforded but basing its holding that terminated school employees were a pre-termination hearing and then was suspended from her entitled to a post-termination hearing on Carter’s mandate job and allegedly forced to retire could not seek relief under that where an abbreviated pre-termination hearing is afforded, § 1983 for an alleged deprivation of her procedural due due process requires a more “meaningful” post-termination process rights “without first pleading and proving the hearing); Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. inadequacy of state or administrative processes and remedies 1991) (“In this Circuit, . . . a § 1983 plaintiff may prevail on to redress her due process rights” per Parratt); Meyers v. City a procedural due process claim by either (1) demonstrating of Cincinnati, 934 F.2d 726, 731 (6th Cir. 1991) (relying that he is deprived of property as a result of established state exclusively upon Vicory to hold broadly that in procedural procedure that itself violates due process rights; or (2) by due process cases brought pursuant to § 1983, “the plaintiff proving that the defendants deprived him of property pursuant must attack the state’s corrective procedure as well as the to a ‘random and unauthorized act’ and that available state substantive wrong”); Hawks v. City of Pontiac, 874 F.2d 347, remedies would not adequately compensate for the loss. 350-51 (6th Cir. 1989) (holding that, under Hudson and Parratt is applied to those cases falling under the second Vicory, a plaintiff alleging a due process violation in a § 1983 category.”) (emphasis in original) (citation omitted). case “has the burden of showing the inadequacy of his remedies under state law”); Sewell v. Jefferson County Fiscal We are therefore faced with deciding between multiple Court, 863 F.2d 461, 468 (6th Cir. 1988) (stating in dicta that precedents on both sides—those that apply Parratt only to a plaintiff who brought a § 1983 procedural due process suit, random, unauthorized deprivations of property and those that not based upon a random, unauthorized deprivation of apply Parratt more broadly. Our analysis convinces us that property, was barred from recovering under § 1983 pursuant the correct line of authority in the Sixth Circuit is that of to Parratt and Vicory because she failed to demonstrate that Watts, Macene, Carter, and Moore. In the present case, her state-court remedies were inadequate). Mitchell was not deprived of his property interest in his job pursuant to a random or unauthorized act. Mitchell, therefore, On the other hand, other decisions of this court, in addition “was required neither to plead nor prove the inadequacy of to Carter and Watts, have recognized the distinction between post-termination state-law remedies in order to prevail.” random, unauthorized acts and established state procedures. Moore, 134 F.3d at 785. We therefore decline to apply See Moore v. Bd. of Educ. of Johnson City Schs., 134 F.3d Parratt and Vicory to the present case. 781, 785 (6th Cir. 1998) (holding that a teacher who brought a § 1983 suit alleging deprivation of her procedural due process rights “was required neither to plead nor prove the

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III. CONCLUSION For all of the reasons set forth above, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.