James LOUDERMILL, Plaintiff-Appellant, v. CLEVELAND BOARD OF EDUCATION, et al., Defendants-Appellees. Richard DONNELLY, Plaintiff-Appellant, v. PARMA BOARD OF EDUCATION, et al., Defendants-Appellees.
Nos. 82-3227, 82-3226
United States Court of Appeals, Sixth Circuit
Argued April 26, 1983. Decided Nov. 17, 1983.
721 F.2d 550
Accordingly, the order of the Board is enforced.
John W. Hickey (Lead Counsel), Robert M. Fertel (argued), Hickey Legal Clinic, Cleveland, Ohio, for plaintiff-appellant in both cases.
William J. Brown, Atty. Gen. of Ohio, Columbus, Ohio, James G. Wyman (argued), D. John Travis, Stuart A. Friedman (argued), James E. Young, Cleveland, for defendants-appellees in No. 82-3227.
John T. Meredith (argued), Squire, Sanders & Dempsey, Stanley Keller, William Scully (argued), Keller & Scully, James E. Young, Stuart A. Friedman, Cleveland, Ohio, for defendants-appellees in No. 82-3226.
Before MERRITT, WELLFORD and TIMBERS,* Circuit Judges.
Appellants James Loudermill and Richard Donnelly, both classified civil service employees under
I.
LOUDERMILL ACTION (No. 82-3227)
Loudermill was employed as a security guard by a private firm that supplied guards to the Cleveland Board of Education. After the private firm declared bankruptcy in 1979, many of the guards, including Loudermill, applied for similar positions with the Board of Education. As part of the application, applicants were asked, “Have you ever been convicted of a crime (felony)?” Loudermill responded “No“. At the end of his application, he signed the following certification:
“I certify that all the statements made by me in this application are true, complete and correct to the best of my knowledge and that I am aware that any false statements will be sufficient cause for dismissal from or refusal of an appointment for any position with the Cleveland Board of Education.”
The Board of Education accepted Loudermill‘s application on September 25, 1979. He commenced work immediately thereafter. As a classified civil service employee under
By a letter dated November 3, 1980, the Business Manager of the Board of Education advised Loudermill that he was being dismissed. The letter explained that the discharge stemmed from his dishonesty in filling out the employment application. He claims that, if he had been afforded an opportunity to respond to the charges before dismissal, he could have presented a meritorious defense to demonstrate his honesty, namely, that, because of the particular circumstances surrounding his 1968 conviction, he believed that he had been adjudged guilty of a misdemeanor rather than a felony.
Loudermill filed a notice of appeal with the Cleveland Civil Service Commission on November 12, 1980. The next day, the Board of Education adopted a resolution officially approving his discharge.
In late January 1981, Loudermill appeared for a hearing before the Cleveland Civil Service Commission. A referee appointed by the Commission, in a report filed April 1, 1981, recommended that Loudermill be reinstated. Without further testimony, the Civil Service Commission rejected the referee‘s recommendation on July 20, 1981, and affirmed Loudermill‘s discharge.
In October 1981, Loudermill commenced the instant action under
The district court dismissed Loudermill‘s action for failure to state a claim upon which relief could be granted. It held that, while Loudermill, under
DONNELLY ACTION (No. 82-3226)
Donnelly was employed as a bus mechanic by the Parma Board of Education. He enjoyed the same status as Loudermill under Ohio law, i.e., he was a classified civil service employee who could be terminated only for cause under
Donnelly filed a notice of appeal with the Parma Civil Service Commission on August 31, 1977. The Commission declined to hold a hearing on the ground that the appeal was untimely, the notice of appeal not having been filed within the ten day period prescribed by
Rather than filing an appeal pursuant to
Without opinion, the Court of Common Pleas dismissed the complaint on February 2, 1979. The Cuyahoga County Court of Appeals affirmed on February 22, 1980, on the ground that Donnelly had failed to file an appeal from the Commission‘s decision in the manner prescribed by
More than a year later, on October 27, 1981, Donnelly commenced the instant action, alleging denial of due process and equal protection guaranteed under the
II.
We turn first to the question whether appellants’ failure to exhaust state judicial remedies requires us to dismiss their procedural due process claims. Neither Loudermill nor Donnelly followed the procedure established under Ohio law for appealing adverse administrative determinations. Pursuant to
Section 119.12 in relevant part provides:
“Any party desiring to appeal shall file a notice of appeal with the agency setting forth the order appealed from and the grounds of his appeal. A copy of such notice of appeal shall also be filed by appellant with the court. Unless otherwise provided by law relating to a particular agency, such notices of appeal shall
be filed within fifteen days after the mailing of the notice of the agency‘s order as provided in this section.”
Instead of filing notices of appeal, Loudermill commenced this action in the federal court; Donnelly sought damages in the state court after the fifteen day period for filing a notice of appeal had expired. Arguably, if appellants had pursued their appeals properly in the state court as provided in
The Supreme Court, however, made it clear long ago that there is no state judicial exhaustion requirement in
In rejecting a more recent argument favoring an exhaustion requirement, the Court in Patsy v. Board of Regents, 457 U.S. 496 (1982), emphasized that “exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to
III.
Although resort to a state judicial forum may not be a prerequisite to a
the state court‘s dismissal of the complaint precludes the instant action under the doctrine of res judicata — sometimes referred to as claim preclusion.
Before we may proceed with the res judicata issue, we must decide whether state or federal law determines the preclusive effect of the prior Ohio court action. We begin by examining the full faith and credit statute,
“. . . .
The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States. . . .
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.”
The statute imposes on us the obligation to give state court judgments the same effect as they have in the state in which they were rendered. If the statute applies to the instant civil rights action, state law would control our resolution of the res judicata question.
The Supreme Court in Allen v. McCurry, supra, held that
In the Title VII setting, the Court recently extended the Allen reasoning to encompass claim preclusion. Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982). Kremer had filed discrimination charges with the E.E.O.C. which referred him to the New York State Division of Human Rights. Upon an adverse determination by the state agency, Kremer petitioned for review in the Appellate Division, First Department, of the New York Supreme Court. That court affirmed the agency‘s determination under an “arbitrary or capricious” standard. The United States Supreme Court ultimately sustained the dismissal of Kremer‘s subsequent Title VII action on res judicata grounds. While the Court recognized that the state court did not give de novo review
Upon holding that Title VII did not repeal or modify
We construe Allen and Kremer to compel application of traditional principles of claim preclusion in the
As in most jurisdictions, the doctrine of res judicata in Ohio bars the relitigation of those claims on which there has been a final judgment on the merits. Norwood v. McDonald, 142 Ohio St. 299, 305, 52 N.E.2d 67, 71 (1943); see Federal Deposit Insurance Corp. v. Eckhardt, 691 F.2d 245, 247 (6th Cir.1982). Ohio rules which determine whether a dismissal should be treated as “on the merits” track the codified Federal Rule.8 Ohio R.Civ.P. 41(b)(4) provides in relevant part that “A dismissal for lack of jurisdiction over the person or subject matter . . . shall operate as a failure otherwise than on the merits.” All other dismissals are to be considered with prejudice, even if the trial court does not so specify. In the instant case, although the state trial court which originally dismissed the action did not articulate the grounds for its decision, the state appellate court based its decision on Donnelly‘s failure to meet the requirements of
“Donnelly failed to seek judicial review of the Commission‘s July 25, 1978 decision. Instead, he instituted an independent proceeding in the Common Pleas Court of Cuyahoga County on October 5, 1978. This action was not permissible.
The first assignment of error is not well taken.
In view of the disposition of the first assignment of error, it is unnecessary to address the remaining assignments of error.”
We now must decide whether Ohio considers dismissal for failure to comply with
To be sure, the Cuyahoga County Court of Appeals dismissed Donnelly‘s action because it was time barred. Yet Ohio, like other jurisdictions, distinguishes between statutes of limitations and provisions for perfecting appeals. While a statute of limitations protects litigants from the possibility of vexatious repetition of suits and hence may be viewed as a defense on the merits, requirements to perfect an appeal reflect institutional limitations on the power of a court. The Court of Common Pleas in Ohio, although a trial court, is a court of limited jurisdiction.
In construing the legislative requirements of
The fact that Ohio considers failure to file a timely notice of appeal to be jurisdictional may also be seen in its Rules of Appellate Procedure. The Court of Common Pleas in this instance is acting as an appellate tribunal,
“Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal.”
Failure to file a timely notice of appeal may affect the jurisdiction of a reviewing court,
In essence, therefore, the Cuyahoga County Court of Appeals held that it did not have jurisdiction to review the Civil Service Commission‘s adjudication. Unlike in Kremer, supra, the reviewing state court here cannot be understood to have approved or affirmed the administrative adjudication. Rather, that adjudication stands unappealed and carries no claim preclusion effect.12 Kremer, supra, 456 U.S. at 477. As the Fourth Circuit recently stated, “The choice of whether to proceed in a state or federal forum, however, necessarily belongs to the plaintiffs and they cannot be deprived of it by a state rule which gives preclusive effect to unappealed state ad-
ministrative decisions. A contrary rule would frequently force plaintiffs to choose between foregoing the opportunity to resolve their problems before state administrative bodies and relinquishing their congressionally mandated access to federal courts.” Moore v. Bonner, 695 F.2d 799, 801 (4th Cir.1982) (unappealed decision of state administrative agency not entitled to “full-faith-and-credit dignity accorded state court decisions“).
The full faith and credit statute requires us to place ourselves in the state court‘s position only to the extent that the prior adjudication was “on the merits“. To bar this action would preclude Donnelly from airing his constitutional claim in any judicial forum.13 We believe that it is this controlling principle that has prompted other federal courts to reach the same result as we do today. Gargiul v. Tompkins, 704 F.2d 661, 667 (2d Cir.1983); Hernandez Jimenez v. Calero Toledo, 576 F.2d 402, 404 (1st Cir.1978); Griffin v. George R. Buck Consulting Actuaries, 551 F.Supp. 1385, 1386 n. 2 (S.D.N.Y.1982).
IV.
We therefore proceed to the merits of the due process claims of both Loudermill and Donnelly. As civil service employees, both enjoyed a cognizable interest in continuing employment absent cause for discharge. The state could abrogate their entitlement only by observing the strictures of due process. Jackson v. Kurtz, 65 Ohio App.2d 152, 157-58, 416 N.E.2d 1064, 1068 (1979). The two employees claim that the process they received was constitutionally infirm.
Loudermill and Donnelly first allege that, without an opportunity to respond to the
Although the Supreme Court has never delineated the situations in which pre-termination hearings are constitutionally required, it has been confronted with such claims on several occasions. We start with the Court‘s seminal opinion in Arnett v. Kennedy, 416 U.S. 134 (1974), which dealt with the extent to which the federal government must provide protection to its civil service employees before discharge. Although no consensus in reasoning emerged, a majority agreed that a public employee was not entitled to a full evidentiary hearing prior to discharge. Appellees in the instant case urge that the analysis in Justice Rehnquist‘s plurality opinion disposes of appellants’ claims here: “where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet.” Id. at 153. Since
The plurality view in Arnett, however, has yet to be enshrined in our law. Rather, federal due process rights, which may not be the same as state procedural guarantees, must be accorded before a state deprives one of a property interest. Indeed, Justice Powell‘s forceful concurrence, which was necessary to reach a majority in Arnett, repudiated the plurality‘s reasoning: “This view misconceives the origin of the right to procedural due process. That right is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in federal employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” Id. at 167 (Powell, J., concurring).
Subsequent Supreme Court cases have followed Justice Powell‘s view. For example, in Vitek v. Jones, 445 U.S. 480 (1980), the Court held that a prison inmate must be afforded notice and an opportunity to be heard before being transferred to a mental hospital. The majority reaffirmed that, once an entitlement has been found, an independent determination of whether federal due process requirements were observed must still be made: “These minimum requirements being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.” Id. at 491; see also Santosky v. Kramer, 455 U.S. 745, 755 (1982). In other words, the fact that Ohio provided appellants in this case with full evidentiary hearings after termination does not suggest that no other process was due. We must determine independently whether the post-termination hearings provided under Ohio‘s statutory scheme satisfied federal due process requirements.
Appellees in the instant case argue that even a cursory comparison with Mathews obviates the need for further analysis. They point out that the Supreme Court in Mathews, after balancing the pertinent factors, held that the government could terminate social security disability payments without first conducting an evidentiary hearing. Appellees urge that termination of disability benefits could cause greater financial harm to the individual than loss of employment, since other avenues of income in the latter situation might exist. We think that appellee‘s massive reliance on Mathews is misplaced. The government in Mathews did afford the individual substantial protections before deciding to terminate disability benefits. It advised the recipient that the benefits might be terminated, summarized the evidence as to why the termination might be effected, and informed the recipient that he or she had a right to respond in writing and submit additional evidence. Id. at 337-38. In upholding the constitutionality of the government‘s procedures, the Court explained that “the ordinary principle, established by our decisions, [is] that something less than an evidentiary hearing is sufficient prior to adverse administrative action.” Id. at 343. Depending upon the situation, the “something less than an evidentiary hearing” may be constitutionally required.15
We start by recognizing that the private interest at stake, public employment, unquestionably is of vital importance to both Loudermill and Donnelly. Employment provides not only financial livelihood, but frequently self-esteem and social status. Dismissal therefore may deprive the employee of needed income, and, in some circumstances, it may rob the employee of a protected liberty interest as well. In the instant cases, both employees allegedly suffered greatly from their terminations. The notice of discharge stigmatized Loudermill as dishonest, and he suffered financially from the dismissal. Even though Donnelly eventually was reinstated, he too, allegedly suffered economic loss, at least in the interim.
Application of the third Mathews factor requires us to inquire into the magnitude of the governmental interest involved. The government has interests in minimizing its administrative burdens and in ensuring effective employee discipline. While a full hearing before termination as sought in Mathews and Arnett might be too time consuming and expensive, an abbreviated opportunity to respond should not lead to excessive delay and its cost should be minimal. Affording that opportunity in the instant cases, therefore, would not have sorely depleted the municipalities’ financial resources, nor have impeded their ability to maintain discipline. In an emergency, of course, a municipality might choose to suspend an employee pending investigation. Even in Loudermill‘s case, however, it never demonstrated that an emergency existed. No emergency was even conceivable with respect to Donnelly.
On balance, therefore, we conclude that the compelling private interest in retained government employment, combined with the substantial safeguard of presenting evidence before dismissal, outweighs the added administrative burdens of the pre-termination process that would have been imposed upon the municipalities.
Our conclusion is bolstered by analogy to Supreme Court decisions that have required pre-termination hearings both before and after Mathews. In Bell v. Burson, 402 U.S. 535, 539-41 (1971), the Court ruled that a state may not suspend a driver‘s license, if protected by entitlement, until some form of hearing is conducted. Similarly, before a school may suspend a student who enjoys an entitlement to continuing schooling, it must provide some form of pre-suspension hearing. Goss v. Lopez, 419 U.S. 565, 574-75 (1975). See also Vitek v. Jones, supra, 445 U.S. at 492-94 (a prisoner must be afforded a hearing before transfer to a mental hospital). We believe that the opportunity to challenge a discharge is at least as critical as the opportunity to challenge the suspension of a driver‘s license or a several day suspension from school. We also find it persuasive in the instant case, as in those referred to above, that the governmental body realistically could have provided some protection for the litigant without unduly adding to its own administrative burdens. In contrast, in those cases in which pre-deprivation hearings were not required, affording process before the deprivation was just not feasible or practical. E.g., Parratt v. Taylor, 451 U.S. 527, 540-42 (1981) (pre-deprivation hearing not realistic when prison guard negligently lost prisoner‘s hobby kit); Ingraham v. Wright, 430 U.S. 651, 678-82 (1977) (same in context of corporal punishment in a school; possibility of subsequent tort suit sufficient).16
V.
We turn finally to appellants’ claims that the delays in post-termination hearings deprived them of due process. Neither employee received a hearing within the thirty day statutory period provided by
The thirty day statutory period here involved does not give rise to a procedural entitlement. In Olim v. Wakinekona, 51 U.S.L.W. 4491 (U.S. April 26, 1983) (No. 81-1581), the Supreme Court rejected a due process claim based in part on the state‘s failure to afford a claimant the procedural protections prescribed by statute: “Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” Id. at 4494. See Bills v. Henderson, 631 F.2d 1287, 1298-99 (6th Cir.1980) (“every deviation from state procedures cannot be viewed as a federal constitutional violation“). Moreover, Ohio courts have ruled that the thirty day period is more of a guide than a strict requirement. E.g., In re Bronkar, 53 Ohio Misc. 13, 17, 372 N.E.2d 1345, 1347 (1977). The statutory period attempts to ensure expedited review, but the state‘s failure to hold hearings within that period in and of itself did not violate appellants’ constitutional rights.
Although violation of the literal terms of the statute does not run afoul of due process, at some point delay in post-termination hearings may constitute a constitutional violation. Due process requires that a hearing be held, not just “in a meaningful manner“, but also at a “meaningful time“. With each passing month, employees may suffer increased financial privation
Unlike in Barry, however, Ohio does provide in
This is not to suggest that abuses in individual cases under
tends vindication of an employee‘s reputation through the hearing procedures provided on appeal, and conclude that at least the delays cited here do not entail [a deprivation of due process].” 416 U.S. at 158. Similarly, in Mathews, supra, the social security claimant argued that the ten or eleven month average delay in post-termination hearings deprived him of due process. The Court rejected that argument, assuming apparently that such a delay, while possibly creating hardships, simply did not rise to a constitutional violation. 424 U.S. at 341-42. While we do not condone the delays in the two cases before us, we hold that neither delay violated due process.
To summarize: we affirm the district court‘s dismissal of that part of appellants’ complaints which alleged that the delays in post-termination hearings violated their due process rights; and we affirm the district court‘s dismissal of Donnelly‘s equal protection claim and its dismissal of both appellants’ claims of violation of their liberty interests. We vacate, however, that part of the district court‘s judgment that dismissed the pre-termination procedural due process claims. Upon remand, appellants may seek to prove that they sustained damages stemming from the state‘s failure to provide any pre-termination due process.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
WELLFORD, Circuit Judge, concurring and dissenting.
I agree with that portion of the opinion holding that appellants’ failure to exhaust state judicial remedies does not require dismissal under the circumstances presented. I also concur in the statement in footnote 5 that Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) “has not precluded the possibility of fashioning future exceptions to the no-exhaustion rule. . . .” See Fair Assessment in Real Estate Association v. McNary, 454
I would hold, however, that Donnelly is precluded from proceeding in this court after his identical claims in the Ohio State Courts were dismissed with prejudice by the Court of Common Pleas, this judgment was affirmed after a timely notice of appeal by the Ohio Court of Appeals, Eighth District, and appellant Donnelly‘s motion for an order directing the court of appeals to certify its record was overruled by the Ohio Supreme Court. Donnelly was afforded an opportunity for further eye testing before his termination, received a full post-termination hearing before the Parma Civil Service Commission, and, as conceded, has been reinstated to his former job. See Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979); Castorr v. Brundage, 674 F.2d 531, 536 (6th Cir.), cert. denied, 459 U.S. 928, 103 S.Ct. 240, 74 L.Ed.2d 189 (1982); Ciechon v. City of Chicago, 634 F.2d 1055 (7th Cir.1980).
Furthermore, I would hold that appellants have been afforded minimal due process requisites under the totality of circumstances in these cases. The property interest which appellants had in their continued state or public employment “was itself conditioned by the procedural limitations which had accompanied the grant of that interest.”1 Arnett v. Kennedy, 416 U.S. 134, 155, 94 S.Ct. 1633, 1644, 40 L.Ed.2d 15 (1974). The procedures afforded Loudermill and Donnelly under the Ohio Civil Service laws, in my view, were substantially equivalent to those afforded the federal employee, Arnett,2 and they afforded reasonable redress if the basis for the purported termination were found to be erroneous. The Ohio Supreme Court‘s determination that the Ohio procedures comport with due process requirements, while not controlling, is significant. See Parfitt v. Columbus Correctional Facility, 62 Ohio St.2d 434, 406 N.E.2d 528 (1980). Other similar state law procedures for termination of public employees have been held to comply with due process requirements. Webb v. Dillon, 593 F.2d 656 (5th Cir.1979), Ciechon v. City of Chicago, supra.
Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), relied upon in the majority opinion, applies to a liberty interest, rather than a property interest. The transfer to a state mental hospital in Vitek took place without any hearing requirement at any time for the prisoner. That such a procedure was held to deprive the prisoner of his liberty interest without due process is not persuasive in the instant situation. Deprivation of a liberty interest and deprivation of a property interest, even of the same person occasioned by the same act, are not the same. See Vanelli v. Reynolds School District No. 7, 667 F.2d 773, 781 (9th Cir.1982).3 Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), involved standard-of-proof procedural requirements to be afforded natural parents of a child before the termination of their parental rights by the state. Something more than a “fair preponderance of the evidence” was required before a parent‘s vital interest in his (or her) child could be cut off. That decision is not, in my view, particularly pertinent to the issues involved sub judice except the holding that minimum requirements of due process are a matter of federal law, a question about which there is no dispute in this case.
Neither does Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), also cited by the majority opinion, mandate a pre-termination hearing. The Court there held:
What the
Id. at 437, 102 S.Ct. at 1159.
In Logan, Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979), are cited for the proposition that,
[a] post-termination hearing [is] permitted where the decision to terminate was based on a reliable pretermination finding (emphasis added).
Logan, 455 U.S. at 436, 102 S.Ct. at 1158.
Under the facts of these cases, I would conclude that as to both appellants there was a “reliable pretermination finding” that cause existed for the termination of Donnelly and Loudermill, and that each was afforded a due process hearing at a “meaningful time and in a meaningful manner.” See Armstrong v. Manzo, supra, and Mathews v. Eldridge, supra.
Accordingly, I would affirm the decision of the district court in both cases.
Notes
Five members of the Court (Justices Rehnquist, Burger, Stewart, Powell and Blackmun) found the post-termination hearing procedure in Arnett to be constitutionally adequate.“The tenure of every officer or employee in the classified service of the state and the counties . . . holding a position under this chapter of the Revised Code, shall be during good behavior and efficient service and no such officer or employee shall be reduced in pay or position, suspended, or removed, except as provided in section 124.32 of the Revised Code, and for incompetency, inefficiency, dishonesty . . . or any other failure of good behavior, or any other acts of misfeasance, malfeasance, or nonfeasance in office. . . .
In any case of reduction, suspension of more than three working days, or removal, the appointing authority shall furnish such employee with a copy of the order of reduction, suspension, or removal, which order shall state the reasons therefor. Such order shall be filed with the director of administrative services and state personnel board of review, or the commission, as may be appropriate. Within ten days following the filing of such order, the employee may file an appeal, in writing, with the state personnel board of review or the commission. In the event such an appeal is filed, the board or commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the board or commission, and it may affirm, disaffirm, or modify the judgment of the appointing authority. In cases of removal or reduction in pay for disciplinary reasons, either the appointing authority or the officers or employee may appeal from the decision of the state personnel board of review or the commission to the court of common pleas of the county in which the employee resides in accordance with the procedure provided by section 119.12 of the Revised Code. . . .”
“18. The Plaintiff was denied due process of law as guaranteed by the
Fourteenth Amendment to the United States Constitution by the Defendants when he was not given any no-
tice of the availability of any administrative procedures or the proper procedures to exercise his rights thereto after he was given notice of his termination of employment with the Defendant Parma City School District. 19. The Plaintiff was denied equal protection of the law as guaranteed by the
Fourteenth Amendment to the United States Constitution by the Defendant Parma City School District when he was terminated from his employment because he could not pass an eye examination while another mechanic who also could not pass an eye examination was not terminated from his employment.20. The Plaintiff was denied due process of law as guaranteed by the
Fourteenth Amendment to the United States Constitution when he was not given an opportunity by the Defendants prior to his termination of employment to state his objections thereto before said termination of employment became effective.21. The Plaintiff was denied due process of law as guaranteed by the
Fourteenth Amendment to the United States Constitution by the Defendants when he was not afforded a full evidentiary hearing prior to his termination of employment with the Defendant Parma City School District.”
“INVOLUNTARY DISMISSAL: EFFECT THEREOF. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. . . .
If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal other than than for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”
416 U.S. at 170 (Powell, J., concurring). Justice Powell recognized that pre-termination procedures could play a critical role in affording litigants due process. He relied in part on his concurrence in Arnett in authoring Mathews. 424 U.S. at 334. Thus, neither Arnett nor Mathews lends support to the district court‘s position in the instant case.“Appellee also argues that the absence of a prior evidentiary hearing increases the possibility of wrongful removal and that delay in conducting a post-termination evidentiary hearing further aggravates his loss. The present statute and regulations, however, already respond to these concerns. The affected employee is provided with 30 days’ advance written notice of the reasons for his proposed discharge and the materials on which the notice is based. He is accorded the right to respond to the charges both orally and in writing, including the submission of affidavits. Upon request, he is entitled to an opportunity to appear personally before the official having the authority to make or recommend the final decision. . . . These procedures minimize the risk of error in the initial removal decision and provide for compensation for the affected employee should that decision eventually prove wrongful.”