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The 14th Amendment's Due Process and Government Employees Who are Discharged
Two recent federal cases — Mitchell v. Fankhauser and Emri v. Evesham Township Board of Education — demonstrate how the clause works .
The 14th Amendment's Due Process Clause is not a recipe book. It does not give detailed, step-by-step instructions for complying with the law. Instead, it is a skeletal statement of fundamental legal values: Government may not deprive any person of life, liberty, or property without due process of law. From these values, courts have developed general rules resolving certain conflicts between government agencies and individuals.
Two recent federal cases - Mitchell v. Fankhauser and Emri v. Evesham Township Board of Education - demonstrate how the clause works in disputes over the discharge of government employees.
The facts in 'Mitchell'
LeCarthy Mitchell was head custodian at Henry Clay High School in Lexington, Ky. Because he had worked for the Fayette County Public Schools for more than four years, Kentucky law prohibited the district from discharging him except for cause. Under Kentucky law, "for cause" includes "incomptence, neglect of duty, insubordination, inefficiency, misconduct, immorality, or other reasonable grounds which are specifically contained in board policy."
On Aug. 15, 2001, while being interviewed by district law enforcement officer J.D. Jones, Mitchell allegedly admitted taking a sewing machine cabinet from the school and putting it in a dumpster. According to Jones' report, the cabinet was not recovered. In a letter written that day after learning of allegations "concerning theft of school property," Superintendent Robin L. Fankhauser suspended Mitchell for 15 days. "The purpose of the suspension with pay is to allow me the opportunity to investigate the facts involved in these allegations," she wrote.
Although evidence showed that Officer Jones tried to deliver the letter that day, it is not clear whether Mitchell ever received it.
On Aug. 20, Fankhauser and other district officials met with Mitchell and told him witnesses (who were not present at the meeting) had alleged that he had helped another custodian steal district property. Mitchell admitted taking one sewing machine cabinet but said he had returned it.
A few days later, Fankhauser wrote Mitchell to say she was firing him because he had been observed in July 2001 "helping another custodian load several ladders, lumber, folding chairs, and sewing machines into his car." Mitchell responded in a letter that denied the allegations "either because they are untrue or because, to the extent any of the charges have a basis in fact, they do not warrant the extreme sanction of termination." Mitchell asked for a chance "to challenge the charges in a due process hearing before a neutral finder of fact."
The district's general counsel denied Mitchell's request, saying the Aug. 20 meeting had served as a due process hearing.
Mitchell sued Fankhauser and the school district in U.S. District Court, contending they had violated his due process right by denying his request for a hearing. The district judge ruled for Fankhauser and the school district without a trial. Mitchell then appealed to the 6th U.S. Circuit Court of Appeals, which unanimously reversed the lower court's ruling.
Two kinds of hearings
The 6th Circuit agreed that the school board had violated Mitchell's right to due process by denying his request for a full-fledged hearing. In his opinion, Judge Ronald Lee Gilman based his analysis on the U.S. Supreme Court's 1985 decision in Cleveland Board of Education v. Loudermill.
The first question in a dispute over employment rights is whether the employee has a property right that merits protection by the Due Protection Clause. The answer in this case was easy: Both sides agreed Mitchell had a property interest in his job.
The next question is whether the school board had violated Mitchell's right to due process by denying his request for a hearing. Judge Gilman explained that under Loudermill, the Due Process Clause gives a discharged employee the right to two different kinds of hearings.
At a minimum, an employee has the right to a full and timely evidentiary hearing - a mini-trial - either before or after termination. The employee has the right to attend the hearing, to be represented by an attorney, to know the evidence against him or her, to challenge that evidence, to call witnesses, and to introduce evidence on the employee's behalf.
But as Gilman explained, the law recognizes that a government agency sometimes must fire an employee before the agency has an opportunity to conduct a full hearing. In such cases, under Loudermill, the agency must give the employee oral or written notice of the allegations, an explanation of the agency's evidence, and an opportunity to present the employee's side of the story in a pre-termination hearing.
The hearing need not be elaborate. A brief meeting, in which a supervisor gives the employee notice of the charges, a summary of the evidence, and a chance to respond, is enough to satisfy the Due Process Clause.
Judge Gilman distinguished between the two kinds of hearings: A pre-termination hearing is an "initial check against mistaken decisions," while a full, evidentiary hearing is designed "to ferret out bias, pretext, deception, and corruption by the employer in discharging the employee."
Quoting from a 1985 decision by the 6th Circuit, Carter v. Western Reserve Psychiatric Habilitation Center, Gilman wrote, "Where, as here, a court has approved an abbreviated pre-termination hearing, due process requires that a discharged employee's post-termination hearing be substantially more 'meaningful.'"
If an agency provides only a brief pre-termination hearing, he continued, the employee still has a due process right to a full post-termination hearing in which the employee has the right to counsel, to know and challenge the agency's evidence, to call witnesses, and to present evidence.
Judge Gilman found that the Aug. 20 meeting was the kind of brief pre-termination hearing contemplated by the Supreme Court in Loudermill. However, that meeting did not satisfy Mitchell's due process right to a full, evidentiary hearing. The board violated Mitchell's due process right by refusing to give him the full, post-termination hearing he had requested.
Gilman emphasized that the Due Process Clause does not always require two hearings. The right to a full, evidentiary hearing is the primary right under the Due Process Clause. The employee also has a due process right to a brief pre-termination hearing if the agency decides to fire the employee before the full hearing.
On the other hand, if the agency gives the employee a full hearing before termination, that hearing, by itself, is enough to satisfy the Due Process Clause. As Gilman observed, "This is not to say that two hearings are always required to satisfy due process. If the pre-termination hearing is more 'meaningful,' as described in Carter, then no post-termination hearing would be necessary."
The facts in 'Emri'
The second case - Emri v. Evesham Township Board of Education - illustrates Gilman's point about the interplay between pre-termination and post-termination hearings.
Barbara Ann Emri was a tenured teacher at Demasi Middle School in Evesham Township, N.J. After receiving numerous complaints about inappropriate behavior by Emri (including allegations of racially derogatory remarks), Superintendent John F. Bigley suspended her with pay on March 17, 2000.
On May 1, 2000, the school board filed tenure dismissal charges against Emri, citing 56 counts of conduct unbecoming a teacher. The board gave Emri written notice of the charges and a copy of verified statements of evidence by administrators and teachers. The notice gave Emri 15 days to file a response and informed her the board would consider the charges at a special meeting on May 30, 2000. Emri wrote to the board denying the charges but refused to submit any evidence on her own behalf.
The board met as scheduled on May 30 and found probable cause to support all 56 charges. Following New Jersey law, the board sent the charges to the commissioner of education and suspended Emri without pay for 120 days. Since Emri's administrative appeal to the commissioner was not completed within 120 days, the board again followed state law by continuing her suspension but reinstating full pay and benefits from the 121st day until the end of the appeal process.
The commissioner referred the case to Administrative Law Judge Beatrice S. Tylutki. The board presented its evidence and withdrew 22 of the charges; Judge Tylutki dismissed 13 additional counts. Emri then presented her evidence, and the hearing ended on Jan. 25, 2002.
On Aug. 30, 2002, Tylutki issued a decision concluding that the board had proved its case on the remaining 21 counts. She recommended these sanctions: forfeiture of the 120 days of pay withheld during Emri's suspension, a one-year suspension without pay, a two-step reduction in salary when she returned, and mandatory attendance at classes for anger management, handling disruptive students, and teaching special education students in inclusion classes.
On Oct. 21, the commissioner affirmed Tylutki's decision but modified the sanctions, imposing a permanent one-step salary reduction, forfeiture of the previously withheld 120 days of pay, and forfeiture of salary for six additional months. Both sides appealed to the State Board of Education. On Dec. 3, 2003, the state board affirmed the commissioner's decision but also required Emri to attend the classes Tylutki recommended.
Emri sued the school board and school officials in state court, contending that they had violated her rights to due process and free speech and that they were liable under New Jersey law for defamation, intentional infliction of emotional distress, invasion of privacy, and other personal injuries. The board and school officials exercised their right to move the case to U.S. District Court. Emri's lawyer did not oppose summary rulings for the defendants on the free speech and tort claims; only the due process claim remained in dispute.
Emri alleged that the defendants violated her due process rights by suspending her without a pre-termination hearing and by taking too long (880 days) to complete the full administrative process.
U.S. District Judge Jerome Simandle easily - and correctly - found that the school board and school officials had not violated Emri's due process right to a pre-termination hearing. As Simandle explained, school officials initially suspended Emri with pay and gave her notice of the charges against her. Emri was only suspended without pay or benefits after the board's May 30, 2000, meeting. Before that meeting, the judge noted, the board had notified Emri about the 56 charges, had given her a copy of the evidence against her, and had given her an opportunity to present evidence in her defense - an opportunity she flatly turned down.
"It was only after consideration of the positions of the parties and the evidence, of which plaintiff provided nothing but her statement that she would litigate the issue and hold her accusers accountable, that the [school board] suspended plaintiff for 120 days," Simandle wrote. "Prior to that date, she was not deprived of any property interest for purposes of the due process clause."
Judge Simandle concluded that the school board had satisfied the Due Process Clause by holding a full hearing during its May 30 meeting before depriving Emri of any property interest in her job.
In other words, as Judge Gilman had explained in Mitchell, the Due Process Clause entitled Emri to only one hearing before local school officials because that hearing - the May 30 meeting - was a full hearing, not just the abbreviated pre-termination hearing allowed by Loudermill.
Note that the appeal to the commissioner of education, the hearing before Tylutki, and the review by the State Board of Education were required by New Jersey law - not by the Due Process Clause.
Mitchell and Emri illustrate the interplay between pre-termination and post-termination hearings under the Due Process Clause. A school district can discharge an employee without first conducting a full hearing, as long as the employee receives an abbreviated hearing before termination and the opportunity for a full hearing afterwards. Alternatively, if a district prefers to conduct a full hearing before termination, that single hearing will satisfy the Due Process Clause.
The requirements of the Due Process Clause for resolving termination disputes are straightforward in theory, but compliance with those requirements can entail a complicated set of proceedings that are tailored to the situation and that honor the Due Process Clause, state law, and local board policy.
Board members should consult with their board attorneys to ensure that local policies comply with both the Due Process Clause and state law. And when school officials decide to fire an employee, they must cooperate with the board attorney at every step.
Benjamin Dowling-Sendor, an authority on school law, is an assistant appellate defender of North Carolina in Durham.