Morrison v. Warren

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Morrison v. Warren, et al. No. 02-3672 ELECTRONIC CITATION: 2004 FED App. 0223P (6th Cir.) File Name: 04a0223p.06 THOMPSON LAW OFFICES, Akron, Ohio, for Appellant. Sandy J. Rubino, SUMMIT COUNTY PROSECUTOR’S OFFICE, Akron, Ohio, for Appellees. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ TIMOTHY MORRISON, X - BOYCE F. MARTIN, JR., Circuit Judge. Timothy Plaintiff-Appellant, Morrison, former Deputy Sheriff of Summit County, appeals - - No. 02-3672 the district court’s grant of summary judgment to Sheriff v. - Richard Warren and Human Relations Officer Yamini > Adkins, both of the Summit County Sheriff’s Office. , Morrison claims that procedures culminating in his discharge RICHARD L. WARREN, et al., - Defendants-Appellees. - from the police force violated his Fourteenth Amendment procedural due process rights. - - I - N Former Deputy Sheriff Morrison was accused of domestic Appeal from the United States District Court abuse by his wife, Jade Morrison, who requested and obtained for the Northern District of Ohio at Akron. a Civil Protection Order against him on May 26, 1998. The No. 00-01341—Dan A. Polster, District Judge. Order, which would become permanent after fourteen days absent any objection, prohibited Morrison from possessing, Argued: January 28, 2004 using, carrying, or obtaining any deadly weapon for up to five years. As a result, Morrison was unable to satisfy his primary Decided and Filed: July 13, 2004 job requirement to carry a gun and was discharged from the force. Before: MARTIN, RYAN, and MOORE, Circuit Judges. Yamini Adkins initiated the discharge process in a May 26 _________________ telephone conversation with Morrison in which she informed him that she was aware of the Civil Protection Order. Later COUNSEL that day, she sent Morrison a letter stating that he would be placed immediately on Administrative Leave, and instructing ARGUED: Dennis R. Thompson, THOMPSON LAW him to report to a pre-discharge hearing the following day. In OFFICES, Akron, Ohio, for Appellant. Susan Baker Ross, an effort to save his job, Morrison filed a motion in state court SUMMIT COUNTY PROSECUTOR’S OFFICE, Akron, to stay and vacate the Civil Protection Order. Ohio, for Appellees. ON BRIEF: Dennis R. Thompson,

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At the May 27 hearing, Adkins explained the consequences pendency of the arbitration, Morrison was charged on July 2, of the Civil Protection Order—i.e., discharge—and notified 1998, with additional acts of domestic violence against Jade Morrison that a pre-discharge conference would be held the Morrison and, pursuant to a plea agreement, pleaded “no following day. Adkins did not supplement her oral statements contest” to a reduced charge of Disorderly Conduct on with written specifications as to the grounds for Morrison’s September 10, 1998. discharge. At the two-day arbitration the following March, the At the pre-discharge conference, which was administered arbitrator framed the issue as follows: by a neutral prosecutor, Morrison was asked to explain the circumstances surrounding the Civil Protection Order. The question to be resolved is whether the Sheriff Morrison presented a copy of his motion to stay and vacate violated the collective bargaining agreement when it the Order and indicated that the magistrate had scheduled a terminated [Morrison], and if so, what should the remedy hearing on the motion for June 3. Morrison then requested to be? postpone the pre-discharge conference until after the magistrate ruled on the motion. His request was denied and The Sheriff’s Office acknowledged that the Civil Protection it was acknowledged that, despite the motion, the Order was Order—the basis for Morrison’s discharge—had been currently in effect. Morrison was then presented with a letter, vacated. Nonetheless, it argued that Morrison’s discharge dated May 28, 1998, from Sheriff Warren, stating: “[i]n view was required under the Office’s “zero-tolerance policy” for of the current Domestic Relations Order, you are removed domestic abuse.1 As evidence, the Sheriff’s Office submitted from your position of Deputy Sheriff.” At the conclusion of Morrison’s July 2 charge and September 10 conviction for the hearing, the prosecutor issued a finding of just cause and Disorderly Conduct. Morrison’s discharge went into effect on May 28. The arbitrator then engaged in a lengthy analysis of whether Morrison challenged his discharge, and a post-discharge the evidence of Morrison’s Disorderly Conduct arbitration was scheduled for March 17 and 18, 1999, conviction—which occurred after his discharge—should be pursuant to the terms of the collective bargaining agreement admitted to justify a second discharge. The arbitrator between the employees’ union and the Summit County concluded that although post-discharge conduct is not Sheriff’s Office. Union members, including Morrison, were ordinarily admissible or relevant in making a just cause subject to the agreement, but only the union could exercise a determination, Morrison’s post-discharge conduct fell into a member’s rights in employment disputes. As a result, the narrow exception recognized in arbitration precedent that union, not Morrison, represented Morrison’s case in his allows the admission of post-discharge conduct that is “part discharge hearings. Also, the union, not Morrison, had of one connected whole.” The arbitrator found that because standing to challenge the prosecutor’s finding of just cause in both the Civil Protection Order and the conduct were rooted state court. The union declined to make that challenge. During the period between the pre-discharge hearing and 1 During the arbitration hearing, the Sheriff introduced testimonial the March 1999 arbitration, the magistrate vacated the Civil evidence that “a criminal charge of domestic violence against [the Protection Order. This did not affect Morrison’s discharge, Sheriff’s Office’s] emp loyees will result in a finding of ‘conduct however, and the arbitration remained scheduled. During the unbecoming’ that will always justify immediate discharge without resort to the progre ssive disciplinary policy. . . .” J.A. at 81.

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in Jade Morrison’s allegations of domestic abuse, he would Morrison then filed an action in federal district court, consider evidence of Morrison’s post-discharge conduct. claiming, among other things, that the Sheriff’s Office violated his procedural due process rights by failing to On July 30, 1999, the arbitrator issued a 43-page decision provide these processes: denying in part and sustaining in part the union’s position. The arbitrator first found that because the Civil Protection (1) adequate notice of the pre-termination hearing of Order had been vacated, the May 28 discharge was invalid. May 28, 1998; However, the arbitrator also found that “the Sheriff is justified in not returning [Morrison] to its employ,” because (2) any notice or pre-termination hearing relating to Morrison’s discharge was justified by his post-discharge discharge based on his post-discharge conduct; and conduct, stating: (3) any review of the arbitrator’s decision relating to his It would be a serious problem for the Sheriff if post-discharge conduct. [Morrison, upon reinstatement while subject to the conviction] were to violate his probation . . . and have to As to the first claim, the district court ruled that Morrison be locked up with some of the criminals he arrested. received sufficient oral notice of the May 28 hearing. With Such a reasonably foreseeable situation is intolerable and regard to second claim, the district court ruled that Morrison supports a finding that just cause exists for . . . failed to “explain how the post deprivation procedures set termination. forth in the collective bargaining agreement” do not satisfy the process requirements vis-a-vis the post-discharge conduct. The arbitrator awarded Morrison back pay from May 28, On the third claim, the district court found that it was not 1998 (the date of his “premature” discharge), to July 2, 1998 permitted to review the substance of the arbitrator’s award (the date upon which the domestic violence charge was filed). and that it was satisfied that the arbitrator “carefully Fashioning a remedy similar to that provided in section 10.4 considered whether Morrison’s post-termination conduct was of the collective bargaining agreement, the arbitrator also properly before him in determining the propriety of decided that Morrison should be treated as if he were on leave Morrison’s discharge, and set forth numerous reasons for its with vacation pay for the period between July 2, 1998, to inclusion.” September 10, 1998 (the date of his conviction). Finally, the arbitrator held that Morrison’s discharge was effective on For the reasons discussed below, we agree that oral notice September 10, 1998. was sufficient. As to Morrison’s other contentions, however, more consideration than the district court provided is due. Morrison, without support from the union, instituted an The district court cut short its due process analysis because it action in state court to appeal the arbitrator’s award. The found that Morrison was requesting substantive review of the state court ruled that Morrison had no standing to bring this arbitrator’s award. We disagree with this finding. Rather claim under the collective bargaining agreement, which gives than seeking substantive review, Morrison is claiming that the exclusive rights to the union to appeal an arbitrator’s award. admission of his post-discharge conduct lacked procedural The state court’s judgment was affirmed on appeal. safeguards—e.g., notice and an opportunity to contest the evidence. Morrison contends that he was not able to argue his case because he was taken by surprise by evidence of a new

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charge; this contention raises at least a colorable claim of award, and whether the arbitrator was corrupt or committed denial of due process. See Carter v. Western Reserve gross procedural improprieties.” Appellee’s Br. at 9 (citing Psychiatric Habilitation Ctr., 767 F.2d 270, 273 (6th Cir. Cuyahoga Cmty. Coll. v. Dist. 925, Serv. Employees Intern. 1985) (grievant’s claim that he was denied the right to argue Union, AFL-CIO, 42 Ohio App.3d 166, 167 (Ohio App. 8th his case before the decision makers raises at least a colorable Dist. 1988)). claim of denial of due process). Because Morrison’s claims implicate fundamental due process issues under the This argument fails for two reasons. First, Morrison is not Fourteenth Amendment, we now consider them. requesting a substantive review of the arbitrator’s award; rather, he asks this Court to consider whether the evidence of II his post-discharge conduct was used in accordance with due process requirements. Due process requires notice of the A. Standard of Review charges and a meaningful opportunity to contest the evidence. See Carter, 767 F.2d at 273 (at a minimum, procedural due We engage in a de novo review of the district court’s grant process requires that the discharged employee be permitted to of summary judgment. Buckner v. City of Highland Park, call witnesses and produce evidence on his own behalf, and 901 F.2d 491, 494 (6th Cir. 1990). Summary judgment is to know and have the opportunity to challenge the evidence proper when the “pleadings, depositions, answers to against him). Thus, if evidence is admitted to support a new interrogatories, and admissions on file, together with the charge for which an employee was given no notice and had no affidavits, if any, show that there is no genuine issue as to any time to prepare, the employee is entitled to assert in federal material fact and that the moving party is entitled to judgment court a claim for violation of due process. Because Morrison as a matter of law.” FED . R. CIV . P. 56(c). This motion for claims that his procedural due process rights were violated summary judgment involves no disputed issue of fact; thus, when, to his surprise, evidence was admitted to support a new we must decide whether, as a matter of law, Morrison was charge—which ultimately was the basis for his afforded due process. In doing so, we view the evidence and discharge—judicial review is appropriate. draw all reasonable inferences in favor of Morrison, as the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, Second, the arbitration clause in the collective bargaining 323-24 (1986); Berlin v. Michigan Bell Tele. Co., 858 F.2d agreement lacks the clear and unmistakable language that is 1154, 1161 (6th Cir. 1988). necessary to waive procedural due process rights, and thus cannot be interpreted to waive Morrison’s ability to assert B. Waiver of Section 1983 Claim those rights. See Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 78-79 (1998) (waiver of union members’ federal Sheriff Warren and Adkins characterize this appeal as statutory rights in a collective bargaining agreement must be Morrison’s attempt to “effect a substantive review of the “clear and unmistakable”); Ciambreillo v. County of Nassau, arbitrator’s [award]” that was waived as a result of the union’s 292 F.3d 307 (2nd Cir. 1991) (binding arbitration clause in decision not to appeal it. Sheriff Warren and Adkins argue collective bargaining agreement did not waive the employee’s that parties who contractually agree to binding arbitration, as Fourteenth Amendment procedural due process right because Morrison has here, waive judicial review except over the it lacked “clear and unmistakable language”). The only determination of “whether there is a rational nexus between reference to waiver in Morrison’s arbitration clause relates to the collective bargaining agreement and the [arbitrator’s]

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the Sheriff’s Office’s disciplinary procedures, not the inability to carry a gun due to the Civil Protection Fourteenth Amendment. The clause states: Order—was sufficient. Failure to elect and pursue one of these three options Procedural due process also requires “an explanation of the [appear at the hearing; appear at the hearing with employer’s evidence and an opportunity for the employee to counsel; or elect in writing to waive the hearing present his side of the story.” Id. at 542. The Sheriff’s Office opportunity] will be deemed a waiver of the employee’s also satisfied this requirement. Adkins explained that the rights to disciplinary hearings. charge was based on the Civil Protection Order; then she scheduled a pre-termination hearing for May 28, at which Thus, neither the arbitration agreement nor any actions or Morrison made an informed presentation. Inasmuch as omissions pursuant to that agreement waives Morrison’s Morrison received notice of the charge against him and was ability to file a Section 1983 procedural due process claim. afforded an opportunity to rebut it, the pre-termination His claims are properly before us. hearing satisfies constitutional requirements. See id. C. Procedural Due Process 2. Post-termination Process To resolve procedural due process issues, we engage in a In Morrison’s post-termination arbitration, the arbitrator two-step analysis. Johnston-Taylor v. Gannon, 907 F.2d held that the Sheriff’s Office prematurely discharged 1577, 1581 (6th Cir. 1990). We initially determine whether a Morrison, but that it was justified “in not returning [Morrison] protected property interest exists and then determine what to its employ” based on his post-discharge domestic violence procedures are required to protect that interest. Id. Because charge and related conviction. The parties give differing Morrison’s property interest in his continued employment is characterizations of the arbitrator’s ruling. While the undisputed, we move to the second step. Sheriff’s Office argues that the arbitrator considered Morrison’s post-discharge conduct only to construct an 1. Pre-termination Process appropriate remedy for the invalid discharge, Morrison contends that the arbitrator, rather than constructing a remedy, The Supreme Court has held that an employee who has a found a distinct justification for a second, valid discharge. protected property interest in continued employment is We agree that Morrison suffered a second discharge. entitled to a pre-termination hearing, but that the pre- However, in this context our characterization of the termination hearing need not be elaborate. Cleveland Bd. of arbitrator’s award is irrelevant. Under either characterization, Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Morrison Morrison held a property interest in his employment from the claims that the Sheriff’s Office violated his procedural due mome nt h i s i n i t i a l di s c h a r ge w a s deemed process right to a meaningful pre-termination hearing by invalid—conceptually, when a discharge is deemed invalid, neglecting to provide written notice of the specific charges the property interest was never lost. Therefore, he deserved against him. Yet the Court determined in Loudermill that all the protections that procedural due process requires for the “[t]he tenured public employee is entitled to oral or written deprivation of a property interest, whether that deprivation is notice of the charges against him.” Id. at 546 (emphasis characterized as a discharge or a failure to reinstate. added). The oral notice provided by Adkins to An essential principle of due process is that a deprivation Morrison—that he would be discharged as a result of his of property “be preceded by notice and opportunity for

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hearing appropriate to the nature of the case.” Mullane v. [Morrison] can hardly argue that he was surprised when Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). he received notice that his former employers intended to Although the formality and procedural requisites for the introduce evidence of the subsequent conviction. hearing can vary, “depending upon the importance of the [Morrison] argues in his brief that evidence of this charge interests at stake and the nature of the subsequent was presented at his post-deprivation hearing—he does proceedings,” Loudermill, 470 U.S. at 545 (quoting Boddie v. not, nor can he allege, that he was not given an Connecticut, 401 U.S. 371, 378 (1971)), the fundamental opportunity to respond to the evidence during the two- requirement of procedural due process is that an individual be day arbitration. given an opportunity to be heard at a meaningful time and in We recognize that abbreviated process may be justified in a meaningful manner, Mathews v. Eldridge, 424 U.S. 319, some circumstances. Whether it is justified here depends on 335 (1976). At the least, this requires notice of the charges our application of the constitutional balancing test set forth in and an opportunity to view and contest the evidence Mathews, 424 U.S. at 335. The four Mathews factors are: (1) supporting them. Loudermill, 470 U.S. at 546. Such notice the private interest affected by the official action; (2) the risk must be reasonably calculated, under the circumstances, to of an erroneous deprivation of such interest through the apprise the interested parties of the pendency of an action and procedures used; (3) the probable value, if any, of additional afford them an opportunity to present their objections. or substitute procedural safeguards; and (4) the government’s Carter, 767 F.2d at 273. interest, including the function involved and the fiscal and Morrison’s arbitration, which amounted to a post- administrative burdens that the additional or substitute deprivation hearing on his first discharge and both the pre- procedural requirement would entail. Id. and post-deprivation hearings for his second discharge, was With regard to the first two factors, Morrison’s property extremely abbreviated in terms of satisfying due process for interest in his continued employment was not subject to any the second discharge. Morrison, anticipating a hearing on his risk of erroneous deprivation through the procedures used. original discharge, instead became aware—only at the His Disorderly Conduct conviction, based on charges of arbitration—that he would be discharged on the basis of the domestic violence, required his discharge under the Sheriff’s domestic violence charge. Under the procedures set forth in Office’s “zero-tolerance policy;” neither reinstatement nor the collective bargaining agreement, and in the absence of the additional recovery was possible. As to the third factor, first, invalid discharge, Morrison would normally get an additional procedural safeguards would provide no value: opportunity, pursuant to the collective bargaining agreement, again, Morrison’s conviction required his discharge, and for pre- and post-discharge hearings on the domestic violence nothing that a second hearing would provide could avoid that charge. Thus, we must determine whether the abbreviated outcome. process that he received satisfies due process requirements. Finally, with regard to the government’s interest, there is an Sheriff Warren contends that it does, arguing that where the undeniable argument in favor of upholding the abbreviated grievant is aware of his post-discharge conduct (and the process. The employee was a Deputy Sheriff charged with consequential charge and conviction), oral notice—even if protecting the citizens of Summit County. The government only provided at the arbitration hearing—of the intent to interest in effective law enforcement is extremely high and submit the domestic violence charge is sufficient to satisfy the need to speedily replace public safety officers who are due process requirements. The Sheriff states: convicted of crimes is obvious. Buckner, 901 F.2d at 497

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(quoting Loudermill, 470 U.S. at 546). The interests in efficiently employing safe and effective public safety officers are not outweighed by Morrison’s futile interest in reinstatement or additional recovery, particularly when he has already been convicted and the conviction requires his discharge. Therefore, the abbreviated process, in our view, constitutes a sufficiently meaningful opportunity to satisfy due process requirements. There remains the question of whether Morrison should have been afforded notice and an opportunity to contest the domestic violence charge at some time prior to the arbitration. We hold that Morrison had plenty of time during the arbitration—two full days, in fact—to know of and rebut the second charge against him. Under the specific facts of this case, we conclude that the arbitration sufficiently incorporated all of the due process safeguards that the Constitution requires, and Morrison suffered no due process violation. III For the foregoing reasons, we AFFIRM the judgment.