CITY OF NORTH POLE, Petitioner, v. Betty ZABEK, Respondent. Betty ZABEK, Appellant and Cross-Appellee, v. CITY OF NORTH POLE, Appellee and Cross-Appellant.
Nos. S-6777, S-6907, S-6927
Supreme Court of Alaska
Feb. 21, 1997
Rehearing Denied April 3, 1997
COMPTON, Chief Justice
Brett M. Wood, Fairbanks, for Respondent, Appellant and Cross-Appellee Betty Zabek.
Joseph W. Sheehan, Fairbanks, for Appellee and Cross-Appellant City of North Pole.
Before COMPTON, C.J., MATTHEWS and EASTAUGH, JJ., RABINOWITZ and SHORTELL, JJ. pro tem.*
OPINION
COMPTON, Chief Justice.
I. INTRODUCTION
The City of North Pole (City) terminated Betty Zabek‘s employment as a police dispatcher without providing a hearing. Zabek appealed this termination to the City‘s personnel review board (PRB), which heard oral argument some months after the termination. The PRB later affirmed Zabek‘s termination.
Zabek appealed to the superior court. The superior court found that Zabek‘s termination violated her right to due process of law, and that the appeal before the PRB did not provide sufficient process to serve as a curative post-termination hearing. It ordered that Zabek receive back pay minus any mitigation, granted in part her request for attorney‘s fees and costs, and remanded her case to the PRB for a post-termination hearing. Although the superior court‘s ruling did not constitute an appealable final judgment, the City nonetheless has “appealed” both the court‘s finding of a due process violation and the award of attorney‘s fees and costs.
Zabek filed a separate action against the City alleging, inter alia, that the City and its employees deprived her of federally protected rights in violation of
We have elected to treat the City‘s attempt to appeal from the superior court‘s due process determination as a petition for review, grant the petition, and affirm in part and reverse in part that decision. We affirm the superior court‘s award of summary judgment to the City on Zabek‘s section 1983 and slander claims, as well as the court‘s reduction in the City‘s attorney‘s fee award.
II. FACTS AND PROCEEDINGS
Zabek was employed as a police dispatcher for the North Pole Police Department (NPPD). As a dispatcher, Zabek was authorized to use the Alaska Public Safety Information Network (APSIN), a confidential computerized database that contains information on criminal and driving records. Zabek concedes that having security clearance to access APSIN was a requirement of her job.
In 1991 an investigation by the Alaska State Troopers (AST) uncovered evidence that Zabek had (1) used APSIN to run a personal search of the license plate numbers of cars parked at a local mayoral candidate‘s headquarters, (2) allowed unauthorized persons physical access to a secure APSIN area, and (3) disseminated information obtained
Zabek filed a grievance under the City‘s employee grievance procedure. A City ordinance establishes a three-step grievance procedure culminating in an appeal to the mayor. At no step in the process is a hearing required, although the mayor does have the discretion to hold a hearing at step three.
After the three-step grievance procedure was exhausted, Zabek appealed the outcome to the PRB, the City‘s personnel review board made up of the city council.
Zabek appealed the decision of the PRB to the superior court. The superior court ruled that Zabek had been denied a pretermination hearing in violation of her due process rights, and that the process she received after her termination did not remedy this deficiency. It remanded the case to the PRB for an adequate post-termination hearing and an award of back pay, minus any mitigation.
Prior to the superior court‘s decision regarding Zabek‘s due process claim, she brought a separate action in the superior court against the City, Lamm, and unknown defendants alleging various tortious acts, including slander. Zabek‘s complaint in this separate action was amended to include a claim that the City had deprived her of federally-protected rights in violation of
The superior court granted the City‘s motion for summary judgment. It ruled that Zabek‘s section 1983 claim was barred by collateral estoppel. It also ruled that Zabek‘s failure to identify any employees of the City who had disseminated slanderous information about her undermined any basis upon which the City could be held vicariously liable for slander. The superior court awarded attorney‘s fees to the City only for those fees accrued in defending against Zabek‘s state law claims.
Despite the fact that the superior court did not enter final judgment as to Zabek‘s due process claim in her administrative appeal, the City has attempted to appeal the superior court‘s decision, as well as the court‘s award of attorney‘s fees incurred in defending this claim. Zabek appeals the superior court‘s rejection of her separate section 1983 and slander claims, arguing that her section 1983 claim was not barred by collateral estoppel and that the summary judgment on her slander claim was error. The City cross-appeals, arguing that the superior court erred in awarding attorney‘s fees for only those fees accrued in defending against Zabek‘s state law claims.
We have elected to treat the City‘s attempt to appeal the due process decision as a petition for review, which we grant and consolidate with the appeal and cross-appeal of the superior court‘s judgment on the separate section 1983 and slander claims.
III. DISCUSSION
A. Appealability of the Superior Court‘s Decision
“[A] decision of a superior court, acting as an intermediate appellate court, which reverses the judgment of the court below or the decision of an administrative agency and remands for further proceedings, is a non-final order of the superior court.” City and Borough of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979). We lack appellate jurisdiction when a superior court has not issued a final judgment. See
Although the City erred in trying to bring this action as an appeal from a final judgment, we may choose instead to treat this “appeal” as a petition for review, pursuant to
All of these considerations that led us to treat the improperly brought appeals in Thibodeau, Wade, and Muller as petitions for review are present in this case. The City presents us with a constitutional question of some importance, both parties face the hardship of continued appeals, rehearings, and delay,2 and we believe our resolution of this due process dispute can effectively dispose of the remaining issues before the superior court. Therefore, we choose to treat this appeal as a petition for review, which we grant.
While we conclude that the facts of this case warrant treating this improperly brought appeal as a petition for review, situations like this are rare. We grant petitions for review only when certain conditions are met. See
B. Due Process
1. The City violated Zabek‘s due process right to a pre-termination hearing.
The
“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.‘” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). “Like the federal constitution, the Alaska constitution affords pretermination due process protection to public employees who may only be terminated for just cause.” Storrs, 721 P.2d at 1150. “At a minimum, the employee must receive oral or written notice of the proposed discharge, an explanation of the employer‘s evidence, and an opportunity to present his position.” Id. at 1149.
The right to a pre-termination hearing deserves particular consideration in this case. The Supreme Court has “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.‘” Loudermill, 470 U.S. at 542 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)) (emphasis in original). “This principle requires ‘some kind of a hearing’ prior to the discharge of an employee who has a constitutionally protected property interest in his employment.” Loudermill, 470 U.S. at 542 (quoting Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972)). We have “consistently held that due process of law guaranteed by the United States and Alaska Constitutions requires a pre-termination hearing.” Odum v. University of Alaska, Anchorage, 845 P.2d 432, 434 (Alaska 1993) (citing Storrs, 721 P.2d at 1149-50; Kenai Peninsula Borough Bd. of Educ. v. Brown, 691 P.2d 1034, 1037 (Alaska 1984); McMillan v. Anchorage Community Hosp., 646 P.2d 857, 864 (Alaska 1982); University of Alaska v. Chauvin, 521 P.2d 1234, 1238 (Alaska 1974); Nichols v. Eckert, 504 P.2d 1359, 1366 (Alaska 1973) (Erwin, J., concurring)).
The City failed to provide Zabek with the opportunity to be heard prior to her termination. Zabek was in Florida, on an extended leave, at the time the termination decision was made. Chief Lamm‘s letter informing Zabek of her termination was dated October 18, 1991; it simply informed Zabek that her termination would become effective on November 1. The Due Process Clauses require more pre-termination process than this.
The City argues that because Zabek neither contested the fact that APSIN clearance was a requirement of her job nor the fact that her clearance had been revoked, no hearing was required; there were no dispositive facts left to be determined through the adversarial process. “While this case apparently presents no factual issues, it is not
The City also argues that it did not need to offer Zabek a pre-termination hearing because she was on extended leave; because “Ms. Zabek was out of the state for twenty days after her APSIN [sic] clearance was revoked[,][t]here was no opportunity for a pre-termination hearing.” The City was not confronted with a situation so urgent that Zabek had to be terminated within those twenty days. See Breeden v. City of Nome, 628 P.2d 924, 927 (Alaska 1981) (twenty-four hour notice period “a time period not justified by the urgency of the city‘s interests involved“). We see no reason why the City could not have scheduled a pretermination hearing and invited Zabek to return for it.
The superior court correctly determined that Zabek had a due process right to a pre-termination hearing, and that her summary termination violated this right.
2. Zabek‘s appeal before the PRB on February 22, 1992 served as a curative post-termination hearing.
A failure to provide sufficient pre-termination process may be corrected by a curative post-termination hearing in which due process is provided. The evidence presented in such a post-termination hearing may be sufficient to justify a suspension or termination after such a hearing, even if it would have been insufficient to justify a summary suspension or termination. See Brown, 691 P.2d at 1039; McMillan, 646 P.2d at 866-67.6
“A full judicial hearing is not necessary, but a hearing that allows the administrative authority to examine both sides of the controversy will protect the interests and rights of all who are involved.” Nichols, 504 P.2d at 1365. Zabek was provided with an adversarial proceeding. She had the benefit of counsel at the proceeding. Finally, she was allowed to frame the issues that would be explored at this proceeding.
The procedures adopted for the hearing before the PRB did not provide for the calling of witnesses, but only for a half hour of oral argument by each side. The PRB did allow for some supplementation of the record after oral argument, which allowed Zabek to submit some witness testimony through affidavits. However, Zabek did not have the benefit of this testimony at the actual oral hearing before the PRB.
In Nichols, we found the charge of teacher incompetency sufficiently serious to warrant the heightened procedural protection that the right to call witnesses brings. Id. This case is distinguishable. Unlike the termination of the teachers in Nichols, Zabek‘s termination was not based on serious charges that would call her very character or capacity for employment into question, charges such as incompetency, misconduct, or dishonesty. Instead, her termination was based solely on the revocation of her APSIN clearance. This revocation was a decision made by the CTA, not the City; the City did not base its termination on the merits of the CTA decision to revoke Zabek‘s APSIN clearance, but only on the fact of the revocation itself. Had the City based its termi-
We therefore conclude that the superior court erred in determining that the February 1992 hearing before the PRB failed to provide sufficient due process to serve as a curative post-termination hearing, and we reverse this part of its decision.
3. Zabek was entitled to an award of back pay without adjustment for mitigation.
The superior court ruled that Zabek was entitled to back pay minus mitigation from the date of her wrongful termination through the date she receives the curative post-termination hearing that the court ordered. As discussed above, we have concluded that the February 1992 appeal before the PRB had already served as a curative post-termination hearing by the 1994 date of this ruling. See section III.2., supra.
The PRB did not issue a valid termination decision at the time of the February 1992 hearing, however. Instead, it waited until April 6 to issue its decision affirming Zabek‘s termination. April 6 is therefore the date that Zabek‘s termination became legally effective, since it was only then that Zabek was notified of her termination after the provision of adequate due process. Zabek‘s back pay award must therefore be measured from November 1, 1991, the date of her unconstitutional summary termination, through April 6, 1992. See Brown, 691 P.2d at 1038-39; McMillan, 646 P.2d at 867.7
We affirmed the district‘s termination of Degnan, observing:
The legal validity of Degnan‘s contract, and hence the extent to which he was entitled to procedural protection upon its termination, was dependent upon (1) whether his sister was on the board at the time of his hiring, and (2) whether written approval of his contract was obtained from the commissioner. Because we conclude that Degnan was afforded ample notice and opportunity to be heard, at least as to these threshold questions, prior to his termination, we find no violation of Degnan‘s due process rights.
Id. at 149 (footnote omitted). We went on to explain:
While a contract which is void for illegality does not itself convey a constitutionally protected property interest, an erroneous assumption of illegality by a government agency could result in the denial of pretermination rights to persons possessing a valid contract. In light of the risk of such deprivations, we think that due process requires at least minimal notice and opportunity to be heard as to the basic facts underlying the alleged illegality.
Id. at 149 n. 6. (emphasis added).
Degnan does not stand for the proposition that a public employer may never terminate an employee on the basis of underlying determinations made by another agency without first correcting for the other agency‘s failure to provide minimal due process in making those determinations. Instead, Degnan merely stands for the proposition that an underlying determination that would deny the very existence of a constitutionally-protected property interest cannot form the basis of a subsequent termination without the provision of the due process to which such an interest would give rise, unless adequate process is first provided as to that underlying determination itself.
Zabek‘s termination does not present us with the situation presented in Degnan. The determination made by the CTA did not affect the process due Zabek, for it did not render her contract void ab initio, thereby denying the existence of her property interest in continued employment. The CTA never determined that Zabek‘s contract was illegal, nor did it make any determinations that rendered her contract illegal. Zabek still possessed a valid contract after losing her APSIN clearance. While she could no longer perform her duties under this contract after losing her clearance, her contract remained valid, and the City was required to provide her with adequate due process before it could terminate her employment. The City therefore owed Zabek no due process whatsoever as to the underlying determinations that led to the revocation of her APSIN clearance, despite the fact that the CTA, unlike the commissioner in Degnan, had failed to provide even minimal due process in making its determinations.
4. The award of attorney‘s fees to Zabek must be remanded for reconsideration.
Because of our decision regarding Zabek‘s due process claim, we remand for a reconsideration of the attorney‘s fee award and a redetermination of prevailing party status.
C. Zabek‘s Section 1983 Claim
Zabek‘s section 1983 claim is based on her allegations that the City deprived her of federally-protected due process rights.8 Because we hold that the February 1992 PRB hearing provided sufficient due process to serve as a curative post-termination hearing, we need not reach the merits of Zabek‘s appeal of the superior court‘s judgment on her separate section 1983 claim. The due process violation was corrected by the February hearing before the PRB, leaving Zabek‘s subsequent section 1983 claim without an underlying deprivation of constitutional right upon which to be based.9 The superior court‘s summary judgment on Zabek‘s section 1983 claim is rendered correct by virtue of our decision on the due process claim.
D. Zabek‘s Slander Claim
The superior court granted the City‘s motion for summary judgment on Zabek‘s separate slander claim, observing that there is no “basis for holding the City liable based on the actions of unidentified employees when [its] liability is purely vicarious, as respondeat superior is.”10
For vicarious liability to attach, some sort of underlying liability must be established for which the employer can be held liable. State v. Will, 807 P.2d 467, 471 (Alaska 1991) (state cannot be vicariously liable for negligence through trooper when trooper himself not negligent); Bevins v. Ballard, 655 P.2d 757, 760 n. 2 (Alaska 1982) (broker not vicariously liable for acts of employee when trial court found in favor of employee).
Zabek never alleged any facts that could establish this sort of underlying liability because she never presented any evidence which, if taken to be true, would identify a particular employee of the City as the source of slanderous statements against her. Zabek had stipulated to a dismissal of all claims against Lamm, the one employee of the City she had named as a defendant in her action. For over nine months, she had been unable to identify any other individual employees who might arguably be liable for slander themselves. Because she could not point to
however, the interim decision only called for supplementation of the record. Because it gave no indication of how the PRB would decide Zabek‘s appeal, Zabek is entitled to back pay through the date of the PRB‘s April 6 decision.
E. The Reduction of the City‘s Attorney‘s Fee Award
Alaska courts do not award attorney‘s fees against section 1983 plaintiffs for that portion of the prevailing party‘s attorney‘s fees incurred defending against the section 1983 action, unless the 1983 action was “frivolous, unreasonable or without foundation.” Lyman v. State, 824 P.2d 703, 707 (Alaska 1992). The City argues that it deserved a full twenty percent award of its total attorney‘s fees, pursuant to
While the superior court‘s judgment against Zabek on her section 1983 claim is rendered correct by virtue of our decision on the due process issue, we do not consider this claim so groundless as to be “frivolous, unreasonable, or without foundation.” Zabek‘s claim that the City never provided a curative post-termination hearing lacked merit, but it was not so implausible that Zabek should have known that a section 1983 claim based on it would have lacked any reasonable basis.11 We therefore hold that the superior court correctly refused to award those attorney‘s fees accrued in defending against Zabek‘s section 1983 claim.
IV. CONCLUSION
We AFFIRM the superior court‘s ruling in the administrative appeal that Zabek was entitled to back pay for the period from her November termination through her proper termination after a curative post-termination hearing before the PRB, but REVERSE its ruling that the February PRB hearing failed to provide sufficient due process to serve as a curative post-termination hearing. We VACATE the award of attorney‘s fees based on Zabek‘s due process claim. We REMAND for a determination of back pay to which Zabek is entitled, and a redetermination of prevailing party status and attorney‘s fees in the due process action. Back pay is to be awarded without any reduction for mitigation. We AFFIRM the superior court‘s award of summary judgment for the City on Zabek‘s separate section 1983 and slander claims, as well as its refusal to award the City attorney‘s fees accrued in defending against Zabek‘s 1983 claim.
FABE and BRYNER, JJ., not participating.
SHORTELL, Justice pro tem., with whom RABINOWITZ, Justice, joins, dissenting in part.
Because I believe the majority opinion erroneously holds that Zabek‘s February 22, 1992 hearing served to “cure” the City‘s violation of her due process rights, I dissent from the court‘s decision to deny Zabek a remedy beyond the date of that determination.
I also believe the majority‘s facile treatment of Zabek‘s
I. DUE PROCESS
All of the members of the court agree that the City violated Zabek‘s due process right to a pre-termination hearing, and there can be little dispute on this issue, as both the facts of her initial termination and the law regarding this claim are clear. However, there are two aspects to the due process analysis in this case. The majority correctly analyzes step one but stumbles on step two.
The majority holds that the City complied with due process at its February 22 hearing even though it denied Zabek the opportunity to confront and cross-examine witnesses or present testimony of her own. It concludes that a hearing procedure which allowed Zabek one-half hour to argue her position, but
The majority cites four Alaska cases to bolster its analysis. However, none of these cases is persuasive support for the conclusion that Zabek received due process of law. In fact, Alaska law strongly supports the opposite result.
Only Degnan v. Bering Strait School District, 753 P.2d 146 (Alaska 1988), recognized by the majority as “similar in some respects” to Zabek‘s case (Op. at 1298-99 n. 6) allows a result comparable to the court‘s holding in Zabek‘s case. But Degnan is legally and factually distinguishable.¹
The other three Alaska cases cited by the majority are Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973); Kenai Peninsula Borough Board of Education v. Brown, 691 P.2d 1034 (Alaska 1984); and McMillan v. Anchorage Community Hospital, 646 P.2d 857 (Alaska 1982). None of these cases support the conclusion that Zabek should receive less due process protection than any other governmental employee fired for misconduct.
In Nichols, 504 P.2d at 1365, the court said: “Where the nature and consequences of the charge are serious, ... the right to present witnesses on one‘s behalf is manifest....” Nichols, a teacher terminated for incompetency, was held to have the right to present her defense “by testimony and other evidence.” Id. Zabek, a police dispatcher terminated for misconduct, is inexplicably found not to be entitled to this adversarial right.
The majority distinguishes Nichols by saying that “Zabek‘s termination was not based on serious charges that would call her very character or capacity for employment into question, charges such as incompetency, misconduct, or dishonesty.” Op. at 1298. This conclusion mischaracterizes the charges that resulted in Zabek‘s termination. Zabek lost her job because of charges of misconduct against her. The consequences of those charges were undeniably serious. And although the majority says “her termination was based solely on the revocation of her APSIN clearance,” this characterization is incorrect.
Zabek‘s termination letter summarized the charges against her. It said:
Your actions on August 30, 1991, which led to a subsequent investigation of your conduct by the Alaska State Troopers, were improper, unacceptable, and in violation of the North Pole Police Department Rules and Regulations. Since you are presently out of state, the issue of department disciplinary action relating to your misconduct cannot be appropriately addressed and at this point would perhaps be academic.
The same termination letter refers to another letter, written one day previously, in which the Alaska State Troopers revoked Zabek‘s APSIN clearance. That revocation letter specified in detail the “misconduct” the City chief of police referred to in the letter which terminated Zabek‘s employment. The same allegations of misconduct were repeated by the chief in a letter to Zabek‘s lawyer. The allegations were publicized in a number of newspaper articles that became
The majority uncritically accepts the City‘s self-serving characterization of this aspect of Zabek‘s firing. It mischaracterizes the record by oversimplifying, treating the termination as a simple credentials issue in spite of the fact that the circumstances clearly indicate that it involved very serious misconduct charges.
After the majority opinion erroneously minimizes the seriousness and consequences of the charges against Zabek, it goes on to deprive Zabek of due process rights recognized by previous Alaska cases. These cases, cited by the majority but not extensively discussed, require more due process protection than Zabek has been given.
In Kenai Peninsula Borough Board of Education v. Brown, 691 P.2d 1034, 1038 (Alaska 1984), a teacher received a post-termination hearing at which he could have presented evidence and cross-examined witnesses. He waived the right to do so. In McMillan v. Anchorage Community Hospital, 646 P.2d 857, 859 (Alaska 1982), an anesthesiologist who lost his staff privileges at a hospital received a post-suspension evidentiary hearing that included two days of live testimony. The court held the hearing met due process requirements. “The facts adduced at the second hearing, and the procedural due process afforded McMillan at that hearing ... were sufficient to support a post-hearing suspension.... McMillan was given ample opportunity to confront witnesses against him and to present evidence in his own behalf.” McMillan, 646 P.2d at 866-67. In Nichols v. Eckert, 504 P.2d 1359, 1361 (Alaska 1973), non-tenured teachers dismissed for incompetence were given a post-dismissal hearing at which they were denied the right to call witnesses. The court held, “we conclude that [the teachers] must be given the opportunity to present their own defense by testimony and other evidence.” Nichols, 504 P.2d at 1365.
In all three of these cases the court held or implied the right to present testimony and cross-examine to be a requirement of due process in circumstances virtually identical to Zabek‘s. The majority cites no Alaska cases which allow denial of these rights on the theory of the majority opinion, which is that the scope of due process protection for terminated governmental employees is defined by the label the terminating authority attaches to the termination. Similarly, no Alaska case has held that the due process rights of such employees are so limited as to require only a post-termination hearing at which the right to present testimonial evidence is denied, the right to confront and cross-examine is denied, and the evidentiary record is supplemented after the hearing by affidavits only.
The majority also glosses over a number of important issues raised by Zabek throughout the proceedings below. Zabek argued that she should have been allowed to present evidence in support of her contentions that her behavior was not illegal. Her other contentions were that the City had tolerated similar behavior on a number of occasions, and that the City should have interceded on her behalf with AST as it had done successfully on behalf of another employee whose APSIN privileges had been suspended. Zabek also implicitly argued that the City‘s overly simplistic reliance on the APSIN privilege revocation as its sole reason for Zabek‘s termination was a pretext or sham intended to avoid difficult political and legal issues.
The majority says, “because the City‘s decision to terminate Zabek was based solely on her loss of APSIN clearance, however, the post-hearing supplementation of the record with witness affidavits provided Zabek with all the process due to her.” Op. at 1299. The record does not adequately support the “because” part of this proposition. At the very least the available evidence creates a substantial factual dispute which required an
The record also shows that Zabek‘s termination procedure fell far short of complying with due process. The City personnel review board affirmed Zabek‘s termination without discussing many of the issues raised by her arguments. It made no findings, and simply concluded that Zabek‘s termination was “lawful.” Zabek was not allowed to present evidence before the Board and confront and cross-examine witnesses against her. The administrative record does not show that her defenses were given meaningful consideration.³
The question of what process was due Zabek is affected by a line of cases starting with Board of Regents v. Roth, 408 U.S. 564 (1972). In Roth, the court said that dismissal of a government employee accompanied by a “charge against him that might seriously damage his standing and associations in his community” would trigger the due process right to a hearing at which the employee could refute the charges and publicly clear his name. Roth, 408 U.S. at 573. In subsequent cases, the court extended this principle to require such a name-clearing hearing even if the accusations did not “cause” the employment termination, if the accusations received extensive publicity and “occurred in the course of termination of employment.” Owen v. City of Independence, Mo., 445 U.S. 622, 633 n. 13 (1980).
Cross-examination and the presentation of evidence are important due process elements of such hearings. See Adams v. Sewell, 946 F.2d 757, 765 (11th Cir. 1991) (emphasizing importance of cross-examination in due process analysis of post-termination proceedings); Campbell v. Pierce County, Ga., 741 F.2d 1342, 1345 (11th Cir. 1984) (“While the features of such a hearing itself have been prescribed with considerable flexibility, courts have required that the claimant have notice of the charges which have been raised against him, and an opportunity to refute, by cross-examination or independent evidence, the allegations which gave rise to the reputational injury.“).
With regard to the majority‘s conclusion that the February 22 hearing “cured” the City‘s due process problems, there is persuasive case law authority to the contrary. For example, in Adams, the court affirmed a
The County contends that its three-step grievance process, which culminated in the Step III hearing, satisfied Adams‘s right to post-termination due process of law. The Step III hearing before the County‘s Grievance Adjustment Board (the “Board“) allegedly provided Adams with an opportunity to present his case and cross-examine the witnesses against him in an impartial forum. This court has emphasized the importance of cross-examination in due process analysis; post-termination proceedings have been held inadequate because a terminated employee “had no opportunity to confront and cross-examine his accuser in the presence of the decision maker.” Kelly [v. Smith], 764 F.2d [1412,] 1415 [(11th Cir. 1985)].
....
Although the Step III proceeding included the procedural formalities of an evidentiary hearing, at trial Adams contested the adequacy and fairness of the hearing, as well as the impartiality of the presiding Board, and introduced evidence to support his allegations. These claimed deficiencies in the post-termination process are important because, as noted above, Adams alleged significant procedural flaws in the County‘s pre-termination process. Under these circumstances, the pre-termination problems were not “cured” by the post-termination hearing, and reasonable jurors could find that the pre- and post-termination procedures provided by the County were inadequate. Accordingly, we deny the County‘s appeal of the jury verdict for
Adams on his procedural due process claim.
Adams, 946 F.2d at 765-66. Adams was denied due process because his post-termination hearing had “significant procedural flaws.” In comparison, Zabek‘s hearing procedure was flawed in even more significant ways. We should not “cure” the City‘s due process problems under these circumstances.
II. ZABEK‘S SECTION 1983 CLAIM
In one paragraph, without citation of any authority, the majority extinguishes Zabek‘s
First, the majority holds that due process was violated by the initial summary firing. How can one say then, as the majority does, that Zabek‘s subsequent
We should also recognize that Zabek has claimed both procedural and substantive due process violations in her
Substantive due process claims are properly part of
Finally, the question of damages has not been explored in any great depth here or at the trial court level, so the record does not clearly disclose what specific damages are being sought. The amended complaint asks for “lost employment, emotional distress, and damage to [Zabek‘s] reputation” and for punitive damages and attorney‘s fees.
The majority does not address the question of what damages Zabek has claimed pursuant to
III. COLLATERAL ESTOPPEL
In ruling that Zabek‘s
It‘s my judgment that Count I is barred by collateral estoppel, that branch being specifically res judicata. The claims that are being brought forward here are the factual claims that have been and are being litigated on the administrative side and Ms. Zabek chose to pursue those administrative remedies. Had she completely foregone her administrative rights, clearly she could have brought this action. However, having once brought the administrative action, she is subject to State procedural requirements such as collateral estoppel, as the Court determined in Diedrich v. City of Ketchikan. These facts are inherently bound up in—the facts here on the 1983 claims are inherently bound up in the decisions that are being made in the administrative process. It‘s also clear, given the broad grant in the North Pole Code Of Ordinances, that Zabek could have pursued the 1983 action there. I conclude that res judicata precludes its submission here, given the decision that she made and I rely on Diedrich, as I said, and Eilrich v. Remas, 839 F.2d 630, the Ninth Circuit case from 1988.
This basis for dismissal is erroneous also. First, Zabek has established a violation of due process in the failure of the City to provide a pre-termination hearing. She cannot be collaterally estopped from asserting a claim she has prevailed on. Nor can she be precluded from asserting in a
In Eilrich, the federal appellate court, applying California law, invoked collateral estoppel doctrine to bar
In Diedrich, we applied the Eilrich reasoning to preclude Diedrich from litigating
As Eilrich makes clear, however, issue preclusion arising out of administrative proceedings is only justified if the administrative agency is acting in a “judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate.” Eilrich, 839 F.2d at 633. Also, the issue necessarily decided at the administrative proceeding must be “identical to the one sought to be relitigated” in the
Zabek‘s administrative proceedings did not encompass or resolve most of the issues she tried to raise, she was kept from litigating those issues by the administrative tribunal‘s limitation of evidence and issues, and she received almost no adversarial rights. Thus the issues litigated at the administrative level were not identical to Zabek‘s
The majority opinion makes the following laudable statement in support of its decision to validate Zabek‘s claim of constitutional violation:
Indeed, one of the reasons a pre-termination hearing is required is to give the employee the opportunity to present in her defense facts which, if developed, might weigh against her termination. Even if it appears almost certain that the employee will be unable to do so, due process requires that she be given the opportunity to try.
Op. at 1298.
Unfortunately, this reasoning is used only to provide a pyrrhic solution for Zabek. Followed to its logical conclusion, it would allow her to press for more complete relief. Used in a selective way, it simply results in a convenient but inappropriate end to all of Zabek‘s claims. Her remaining due process and
Notes
(1) Postponement of review until appeal may be taken from a final judgment will result in injustice because of impairment of a legal right, or because of unnecessary delay, expense, hardship or other related factors; or
(2) The order or decision involves an important question of law on which there is substantial ground for difference of opinion, and an immediate review of the order or decision may materially advance the ultimate termination of the litigation, or may advance an important public interest which might be compromised if the petition is not granted; or
(3) The trial court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative tribunal, as to call for the appellate court‘s power of supervision and review; or
(4) The issue is one which might otherwise evade review, and an immediate decision by the appellate court is needed for the guidance of the lower courts or is otherwise in the public interest.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress.