*2 condition flare-ups of his arthritic caused RIPPLE, Circuit Before COFFEY period of usually continued for a they that SKINNER,* Judge. District Judges, and days.3 April, to four three of his ar- off from work because took time COFFEY, Judge. Circuit and medical sought evaluation thritis and indicated, treatment, of from a number complaint a class action filed Jerome Jones Lewis, phy- including Dr. doctors William alleging Fire Chief Ben- that in district court Brazley, sician, Larry an ar- Dr. well as City of acting on behalf of the jamin Perry, allegedly re- submitted specialist, thritic who suspending Indiana, summarily Gary, Perry condition. ports about Jones’s to Chief pre-sus- pay and without firefighters without that Jones does not reflect The record depriving them thus pension hearings, condition. for his arthritic on medication in their property interests their Perry sent Jones July Chief On law due employment without your sick stating “you have exhausted letter Amendment Fourteenth violation of the July year As of the of 1988.4 leave for parties filed cross Both 42 U.S.C. 1988.1 you placed on requesting to be I am judgment. The district summary motions for immediately.” pension City’s motion and denied granted court disability be- pension5 requested a motion, post- finding that Jones’s Local knee and the his arthritic him due cause of hearing had afforded Hearing Board held Pension affirm. law. We process * Skinner, assign to a requested Peny to him 3. Chief Jay States United The Honorable Walter Massachusetts, light duty job informed him that but the Chief Judge District of District positions no such available. there were designation. sitting by enti- Jones was not court held that 1. The district ninety days Firefighters sick leave are allotted a class because the suit as action tled to maintain time, firefighter During year. that each 23(a) which re- satisfy Fed.R.Civ.P. he failed to report weekly required doctor's to submit plaintiff establish that the members quires is continuous. office if the sick leave the Chief's impractical it is numerous that the class are so physician exceeds illness Once documented together. court plaintiffs join individual appear before ninety days, the must easily plaintiffs be potential could found a determination Pension Board for the Local and Jones has not joined this action disability severity or not and whether decision. can return to work. he or she heavy objects record as to what is no indication record is silent There 2. The they disability pension would duty referring applied to when he stated condition, injury in that he had can have incurred aggravated arthritic connoted Rather, disability is duty. his claimed referring to humаn the line only speculate he was per- ladders, equip- aggravated the tasks he was beings, water hoses other job. job, but caused form on ment. September After re ordering matter 1988.6 letter to return to viewing both the records and informing letters submit him that if he failed to forthwith, physician, ted Jones and the Board the work he would be removed from application Board denied Jones’s for a payroll. dis Perry also advised Jones ability pension stating charges Local “[t]he would filed with *3 Board determines (GFCSC) claimant Jerome Fire Civil Service Commission permanently temporarily Jones is un seeking his from dismissal if perform to able suitable and available he immediately failed to return to work. may capable work for which he is or of The letter also informed Jones that after he becoming qualified.” work, Jones returnеd to days he would have fifteen City Gary decision to the appeal Board’s of Public to the PERF affirming Board decision Employees’ Retirement Fund Board the denial disability pension.7 of a (“PERF”) which, 21, 1989, February up timely appeal filed a but he canceled and rely the Local Pension held Board’s decision disability pension rescheduled his hearing be finding on Dr. Bill’s that Jones was “not fore the PERF Board on five different occas impaired meaning impairment within the of ions.8 as used the Police and Fire Pension 6, 1989, On March appeal while Jones’s of Fund.” The PERF Board concluded that the PERF Board’s pending9 decision was
Jones was not disabled
specific
no
made
ALJ,
with the
Perry
Chief
sent Jones a letter
finding other than that.
notifying
because he failed to report
light
decision,
of
28,
the PERF
February
Board’s
for work on
he would be sus-
24, 1989,
February
Perry
pended
Chief
sent
thirty days
pay.10
without
reports
Brazley,
6. Jones submitted
surrounding
from
Dr.
proceedings
Dr.
mation
those
is includ-
Carter,
E.
Walter McDonald and Dr. M.
as well
ed in this
recitation
factual
because once Chief
reports
as
Pathology
from the Methodist Hospital
disabled,
Perry learned that Jones was not
Department,
Hospital Emergency
The Methodist
pension,
he
entitled to
receive a
Department,
report
and a
of a
knee arthro-
left
proceeded
suspend
request
to
him and
gram report from Dr. S.L. Patel. The Local
report
termination based on his failure to
ordered Jones to
Board
submit
an examina-
duty.
surrounding
disability
the facts
both
Bills,
by
independent
Dr.
tion
employed by
R.J.
an
examiner
pension
same,
suspension proceedings
and the
are the
per-
the Local Board
who was
рroceedings
separate
but
two
an evaluation
form
of Jones’s
condition.
arthritic
distinct.
spe-
record does not
The
reflect what
Bills's
Dr.
is,
cialty
any
nor does it
reports
contain the
of
of
upon
10.The
was based
of
violation
hospitals.
these doctors or
We can
assume
rules,
following
regulations
and statutes:
that neither Jones nor the
submitted
them to the court.
(1) Gary
Department Rule 16 which
Fire
states
"any
present
assigned
man not
station at
appeal
7. An
of PERF Board decisions is heard
7:00
per-
a.m. or takes leave of absence without
a State of Indiana ALJ.
(AWOL)
mission is considered
leave;”
absent without
explanation
8. No
for these cancellations can be
(2) Gary City
§
pro-
Ordinance 5882 6 which
12,
July
found in the record.
In a letter dated
removal, discharge, suspension
vides for
or de-
1989,
Feathеringill
sent
Thomas
of the PERF
following
motion
under
circumstances:
Commissioners,
Board
Fire
Feathe-
(2)
carry
...
Willful failure to
out the direct
ringill
attempted
stated that the PERF Board
(3)
superior
lawful orders
aof
officer.
Failure
up hearings
set
disability
to address Jones's
report
at the
time scheduled with-
12,
April
April
April May
claim on
giving
inability
report; provid-
out
ed, however,
notice of
and June
1989. Jones asked the PERF
that such failure to
is not
hearings
to reschedule each of
Board
until he
illness,
caused
sudden
accident or other
finally requested
that his
be held on or
beyond
circumstance
his control that would
July
Featheringill
after
1989.
stated that
(7)
prevent
giving
him from
such notice....
primaty purpose
''[t]he
of this letter is to illus-
repeated
Willful and
violations of the Rules
attempted
that PERF
trate
several times to
Commission;
Regulations adopted by
bring
delay
this situation to a
conclusion.
Provided, however,
repeated
violations
doing
consistently
so has
been associated with
(2)
shall be the conviction of more than two
Jones.”
Mr.
year;
violations in
(3)
one
appealing any
is not
decisions
Bums Indiana
Statutes
48-6210:
Board,
Local Pension
Board or the
PERF
Removal
regarding
disability pension.
Neglect
duly
ALJ
his
The infor-
29, 1989,
pay
and ordered back
as of March
pre-suspension
was not afforded
to that date.12
retroactive
had ten
that he
was advised
but
GFCSC
suspension to the GFCSC.
days
appeal
Meanwhile,
appeal of the
denial
proceeding
disability pension, a
distinct
April
By letter dated
went forward.
appealing,
he is
from the one
the GFCSC
informed
Chief
17, 1989, ALJ heard Jones’s
August
On
days
thirty
as
pay
without
denial of his
appeal
the PERF Board’s
requested that
Fеbruary
reports
submitted
disability pension. Jones
employment because
terminate
GFCSC
Brazley,
as well
Drs. Lewis
from
duty without
from
absence
of his continued
Chermel and Slezas.13
reports from Drs.
April
April 12
permission. On
the decision of the Local
submitted
confirming his
to Jones
Perry
letters
sent
*4
Dr. Ar-
to letters
Board
addition
Pension
notifying Jones
thirty day suspension11 and
to the PERF
Paul Rebel
thur
submitted
report
failure to
of his continual
that because
from Dr. H.O. Dou-
which had letters
Board
instituting proceedings seek-
duty,
for
he was
Martino attached
and Dr. Robert S.
manian
department.
from the fire
ing his dismissal
ALJ,
reviewing the
after
them.14 The
to
duty
to
on off
continued
remain
to the Local
presented
Jones
evidence and records
Perry
Board,
Board,
1989 when Chief
until June
as the PERF
status
Pension
well
letter, advising him that
another
decision
upheld
sent Jones
PERF Board’s
becausе
duty dictated his
report
objective
to
for
evidence that
his failure
has shown no
“Jones
(AWOL)
to
temporarily
without
or
unable
placement
permanently
on absent
leave
City Gary Fire
firefighter.”15
in violation of the
the duties of a
perform
status
Regulations. On
PERF Board that
Department Rules and
to the
ALJ recommended
disability pension.
ap-
Jones
heard Jones’s
be denied
the GFCSC
June
determination,
February,
objected
with-
ALJ’s
and
peal of his
matter
to
sus- PERF
remanded the
back
Jones’s
Board
pay. The GFCSC affirmed
out
accep-
1989 for the
the ALJ
November
delayed the
pension, but
determination
sup-
information in
of further
outcome of
medical
pending the
employment status
tance.
pres-
Although Jones did
port of his claim.
with the ALJ.
disability pension appeal
and submit to further
ent further information
whether
refused to аddress
The GFCSC
evaluation,
in-
disability pension medical examination
to a
not
was entitled
by the
not received
ALJ until
belonged to the
formation was
responsibility
because
review,
for this
proceedings
well after the relevant
After its
the PERF Board.
ALJ and
duty
appeal had concluded.16
status
reinstated Jones
the GFCSC
firefighters.
similarly situated
affecting
same as other
2. Conduct
the effectiveness
pay,
reinstating
with retroactive
Department
leave;
thought
imply
that it
Jones’s
3. Absence without
GFCSC did
improper.
§
suspensions
Code
were
Indiana
18-1-11-3:
Firefighter Disciplinary Removal
duty
Neglect of
1.
See, supra, note 5.
13.
2. Violation of rules
Neglect of orders
3.
14. Id.
4. Absence without leave.
5882(7)
Gary City
pro-
11.
Ordinance
findings of fact
The ALJ made
additional
15.
no
may suspend firefighter
that the fire chief
vides
pending
alleged disabilify except
resрect to
with
Jones's
by
GFCSC within three
confirmation
Jones is a
to state that "Jerome
to confirm
of Jones's
days, the GFCSC failed
currently
now
leave.”
day
suspensions
required three
time
within the
period.
supplemental
was re-
Jones's
information
16.
hearing,
by a
ALJ from the first
different
viewed
Jones because other
12.
GFCSC reinstated
during
Based
on November
appealing
firefighters
denial of disabil-
who were
information,
supplemental
the ALJ or-
ac-
ity pensions
to remain on the
were allowed
supplemental
be sub-
information
pending
dered that
payroll
appeals
while their
were
tive
Rosenberg, the
J.
coordi-
interrup-
mitted to Dr. Gabriel
absence
without
if their
continued
even
Board,
be
nating
PERF
doctor for the
during
appeals
The GFCSC
process.
tion
specialist, and that he be
an E.N.T.
examined
be treated
that Jоnes should
determined
March, 1990,
Perry
April,
good
1989 and
“made
Chief
Between
faith and for
letters,
eight
Additionally,
Perry sent the GFCSC
cause.”
Chief
GFCSC directed
recommending
Jones’s-employment
the termination
with the
report
duty,
employment
April
failure
terminated effective
hold á
requesting
the GFCSC
He
his termination to the
County
regarding
employment
status. While Lake
Circuit Court which in turn
Perry
urging
decision,
the GFCSC to re-
affirmed the GFCSC’s
holding
Chief
status,
employment
requirements
“[a]ll
view Jones’s
he notified
of due
were
fulfilled;
August
findings
letter on
that he
[t]he
administrative
duty by
supported by
evidence;
was ordered to return to active
substantial
[t]he
September
report
terminating
1989.17 Jones failed to
order of the Commission
Plain-
given
Perry
employment
tiffs
good
to work on the
date
Chief
was made in
faith and
thirty days
pay.
without
cause.”
month,
Perry
In each successive
Chief
noti-
Having lost in both the administrative and
ordering him
fied Jones
letter
to return
forums,
state court
Jones turned to the fed-
firefighting duty
day
first
on the
system
eral court
and filed a class action
month. When Jones failed
complaint, on behalf of himself and other
month,
Perry
continued this
each
*5
firefighters
alleged
who he
also
were
sus-
monthly suspension process of Jones without
pended
pre-suspension hearing.
a
without
October, 1989,
March,
pay
through
from
complaint alleged
Perry,
Jones’s
that Chief
Perry
though
1990. Even
Chief
took care to
acting
City
Gary,
on behalf of the
notify
suspensions
successive
Jones
these
summarily suspending firefighters without
letter,
hearing
Jones was afforded no
pre-suspension hearings,
depriving
thus
them
prior
suspensions,
request
nor
did he
property
of their
interests in their continued
one.18
law,
employment
due
without
§
On March
the GFCSC held a
violation of 42 U.S.C.
1983. The court
hearing concerning
suspensions
denying
dur-
issued an order
Jones’s motion for
March,
period
September through
partial summary judgment,
granted
suspensions
City’s
summary judgment, finding
and ruled that all of the
were
motion for
sweat, headaches,
specializing
accompanied by irritabilily,
examined
a doctor
in internal
confusion, hallucinations,
behavior,
orthopedics. Accordingly,
medicine and
Jones
bizarre
Bremer,
ultimately,
examined
Dr. William J.
convulsions and coma. Dorland’s Il-
Lockwood,
1994).
(28th
otolaryngologist,
Dictionary
and Dr. Michael
a
lustrated Medical
ed.
specialist
rheumatology
and internal medicine.
though
Even
was after the GFCSC
any proceeding pertaining
For the first time in
to
suspension,
appeal
ALJ
heard Jones’s
Jones,
reported
diag-
it was
that Dr. Lockwood
also reevаluated Jones’s claim that he was dis-
suffering
nosed Jones as
from diabetes mellitus
found,
again,
abled because of arthritis and
once
May
suspension
a date after Jones’s
disabling
that Jones did not suffer from
arthritis.
Therefore,
hearing before the GFCSC was held.
a
He based his determination on medical
disability pen-
while the ALJ did award Jones a
reported
he
from Dr. Lockwood in which he
sion,
May,
to
on his
retroactive
based
dia-
suffering
found no evidence of Jones
from os-
betes,
pension
granting
is irrelevant to
teoarthritis in
left knee. The ALJ also re-
his
proceedings
at hand because it was done
portion
ceived in
of Dr. Lock-
evidence
held,
suspension hearing
after the
and was
report noting that when he examined
wood's
not based on the arthritic condition that Jones
knee,
prior x-rays
evi-
of Jonеs’s
he found no
justification
returning
not
claims was his
dence that Jones ever suffered from arthritis.
Perry.
work when so ordered
Chief
The ALJ
disability pension
awarded Jones the
based on
August
Perry
17. relied on the ALJ’s
opinion
Dr. Lockwood’s
that "because- of his
Jones was not disabled from
1989 decision that
mellitus,
dependent
insulin
diabetes
... he
authority
alleged
his
condition as
arthritic
activities,
high
not be
risk
should
involved
duty.
order him back to
as, climbing
subjecting
ladders or
himself
periods
potential
of time where he is unable to
City
claimed that Jones
liquids.”
eat or take
The record is silent as to
October,
suspension, neither Jones nor
began
therapy. Hypoglyce-
his
insulin
City
presented
record
the court with
a
is an abnormal-
mia is condition in which there
glucose
requested a
before the
ly
diminished concentration of
blood,
tremulousness,
may lеad to
cold
GFCSC.
B.
had not been afforded
although
hearings,
prompt
he received
pre-suspension
City Gary agrees
The
with Jones’s
not
and thus had
post-suspension review
protected property
that he had a
contention
property
deprived
protected
inter-
been
of a
employment
civil
with
interest
service
process of law.
est without due
Department.
parties
do
Fire
however,
type
agree,
as to the
of due
II. DISCUSSION
process required
protect
interest.
argues
though Gary
that even
Ordi
ap-
with two issues on
presented
areWe
a civil
nance Number 5882 7 allows
service
(1)
peal:
whether
had
employee
pre
to be
without
employment
property interest
in continued
hearing,
suspension
he was
to such
entitled
Department;
with the
hearing, although no ease
cites
law
pre-
without a
whether
support
proposition
pre-suspension
deprived him of that in-
suspension hearing
hearings
always necessary
protect
process of law.
terest without due
property
contends that
interest.
post-suspension hearing provided
for in
A.
sufficiently protected
the Ordinance
right
process.
to due
summary judg
grant of
review a
We
ment de novo. Cincinnati
Insurance
benefit,
“To have a
in a
Service,
Flanders Electric Motor
40 F.3d
person clearly must have more than an
(7th Cir.1994).
Summary judgment
abstract need or desire for it. He must
“
pleadings, deposi
proper
when ‘the
expectation
have more than a unilateral
tions,
interrogatories,
answers to
and admis
must, instead,
legitimate
it. He
have a
file,
affidavits,
together with the
if
sions on
*6
Property
claim or
it....
entitlement to
any,
gеnuine
that
is no
issue as to
show
there
course,
interests of
are not created
the
moving party
fact and that the
material
they
constitution. Rather
created
judgment
is entitled to a
as a matter of
by existing
their dimensions are defined
”
56(c);
(quoting
law.’
Id.
Fed.R.Civ.P.
Cel
understandings
rules or
that stem from an
Catrett,
317, 322,
Corp.
otex
v.
477 U.S.
106
independent source such as state law—
(1986)).
2548, 2552,
265
S.Ct.
91 L.Ed.2d
understandings
rules or
secure certain
justifiable
‘We view the record and all
infer
support
claims of entitle-
benefits
light
ences drawn from it
most favor
ment to those benefits.”
party against
judgment
to the
whom
able
(7th
Glover,
164,
v.
996
167
Mitchell
F.2d
Village
was entered.” Fittshur v.
Meno
Cir.1993)
Roth,
(quoting
Regents
Board
v.
(7th
Falls,
1401,
monee
31 F.3d
1405
Cir.
564, 577,
2701, 2709,
408 U.S.
92 S.Ct.
33
1994) (citing
Liberty Lobby,
v.
Anderson
(1972)).
give
L.Ed.2d 548
“In order to
rise
Inc.,
255,
2505, 2513,
242,
477 U.S.
106 S.Ct.
constitutionally protected property
to a
inter
(1986)).
1441 (1990). Therefore; although generаl process protection at- 100 employee, due taches”). ly any deprivation require protected of a property preceded by interest “be notice and explicitly § 7 Gary City 5882 Ordinance opportunity hearing appropriate employee, such provides that a civil service case,” Loudermill, nature 470 at removed, may not be sus- firefighter, aas omitted), (quotation at 1493 105 S.Ct. “except discharged pended, demoted or exceptional post- there are cases in which Furthermore, Supreme “[t]he cause.”19 deprivation hearings provide sufficient due has held that the interest which Court process Deposit Corp. of law. Federal Ins. v. job property in his public employee has Mallen, 486 U.S. meaning process claus- of the due within 1787-88, 100 impor L.Ed.2d 265 “An the Fifth and Fourteenth Amеndments es of interest, government accompanied by a tant is, job rights in the if if has tenure —that deprivation assurance that substantial misconduct,” Jungels only he can be fired unwarranted, may or in limited baseless (7th Cir.1987) Pierce, 1127, 1130 825 F.2d justify demanding prompt post action cases 538-41, Loudermill, at (citing 470 U.S. poning opportunity be heard until 1491-92), and Ordinance (citations deprivation.” after the initial Id. “only firefighters had tenure provides that omitted). behavior,” meaning they during good only suspended discharged analysis post- could To facilitate the of whether Thus, because Jones could be deprivation hearing provides misconduct. sufficient due cause,” only more law, “for he had process Supreme Court enu- expectation unilateral his continued than a considerations: merated three Department. employment with the Fire First, private interest that will be af- had a action; second, fected the official employment with the deprivation of risk of an erroneous deprived Department of which he could be used, through procedures interests Fittshur, law. with due value, probable any, if of additional or F.3d at 1405. fi- procedural safeguards; and substitute interests,
nally,
includ-
the Government’s
the fiscal and
the function involved and
C.
burdens that the addi-
the administrative
that due
it is determined
“Once
*7
procedural
require-
tional or substitute
question
what
process applies, the
remains
ment would entail.
Brewer,
Morrissey v.
408
process is due.”
Zinermon,
494
ing, writing that it establishes an “absolute hearing regarding February abrogation pretermination hearing.” 1989,suspension and later termination. At disagree interpretation his and state We with hearing, the Commission decided eminently it opinion the makes clear 28, 1989, February suspen- affirm Jones’s endorse an absolute elimina- that we do not sion, employee subject him as an reinstate hearings firefight- pre-suspension tion of appeal to the of his to the PERF outcome ers, rather, hold that this fire- but we Board, pay him and reimburse sufficiently fighter’s property interests were received since March 1989. Another protected by post-suspension hearing. hearing in was held on March Depart- determined that the We which the Commission terminated Jones facing emergency was in fact situa- ment suspensions began and affirmеd his which thus, proper the Chiefs actions were tion and September approximately knowledge of the based on his needs the passed three months between Jones’s first department with the three admin- combined suspension hearing, and and six months dealing and medical evaluations with istrative passed suspensions between his next set of disability. petitioner’s the claimed arthritic hearing. right hold that Jones’s to due we post- process of law was with a analyze the factors listed in Mal- When suspension hearing, inquiry our does not end len, delays it becomes clear the between post-suspension hearing must there. The as- suspensions hearings so were not provided “prompt sure that with a Jones, great, alleged by deprive him as to disposition” proceeding prompt of due of law. It is true that Jones’s Barchi, susрension. Barry v. merits of his job salary insignif- interest in his are not 55, 66, 99 443 U.S. S.Ct. However, balancing rights icant. when it L.Ed.2d 365 While is true that an of the individual and the facts of unjustified delay holding hearing in a could against City Gary’s his case interest in violation, become a constitutional maintaining complement full firefighters, a significance delay of such a cannot be City’s it greater is clear that the is of determining evaluated in a vacuum. In importance private than interests delay justified long affording how stake in this case. decision, post-suspension hearing and it is importance appropriate to examine the Additionally, while Jones’s termination private interest and the harm to this pending, the GFCSC did rein delay; justifica- by interest occasioned backpay, thereby state him with protecting delay tion offered Government private pecuniary interest. This court underlying govern- and its relation to the private held the harm to the inter interests; mental and the likelihood that delay ests caused is minimized may have interim decision been mis- ability pay' of the review board to award back taken. employee and' reinstate to his Mallen, 486 U.S. at at 1788. previous rank if the board deems that employee wrongly deprived has been parties dispute do not the facts about hearings suspen- her interest. Ciechon v. Jones received Chica (7th Cir.1980).22 1055, 1059 judge go, sions. The district stated that: 634 F.2d This up days hearing, upon D’Acquisto Washington, to fifteen without a whether 22. Jones relies suspension. expressed disapproval holding before or after Listenbee was sus- of our thus, Ciechon, pended days proposition delay for ten was not entitled to for the that a even applicable days post- based on the statute. a few between the case, however, Gary suspension hearing process. this Ordinance Number violates due 64 However, (N.D.Ill.1986). specifically grants F.Supp. 5882 7 each fire- in all decided, fighter right investigation, years D’Acquisto to an "held since we have Ciechon, public hearing," in which Commissioners from had no cause to reverse our decision the GFCSC examine the merits of his or her nor do we see We affirm the case. Ciechon, suspension. general principle enunciated
1445 June, proper slight cause was in in 1989 Jones without the GFCSC did indeed what is previous light of his three administrative and awarded it reinstated Jones 29, hearings; provided with suffi- pending the of March 1989 pay as back ciently prompt post-suspension hearings for a appeal of his claim of his outcome propriety deprivation of the PERF Board. evaluate the of disability pension to employment. in his protected his interests delays in evaluate the Because we must Mallen, record, 486 entire the context of the Affirmed. 1788, 242, also must at 108 S.Ct. U.S. in the ample evidence
point out that there RIPPLE, Judge, concurring Circuit in delays that Jones contributed record judgment. hearings. suspensions and his between majority agree panel I -with the that Mr. by letter Perry informed Jones When cognizable property asserted a Jones has being suspended, each letter he was employment in his continued as a interest right appeal informed of his Gary. agree City for the I also days.23 within ten suspensions to the GFCSC recognition of that interest that the City Although the stated requires inquire whether he has been that we October, suspension, 1989 neither procеss that is afforded the court with City presented nor the of the Fourteenth hearing Due Process Clause requesting a any record Amendment. As the court district before GFCSC. noted, unduly burdensome correctly it is note, gov my inquiry As brothers deprived of a require person who is Supreme holding of the Court erned request a property right to Board Education v. Louder Cleveland speed with which Jones’s on the matter. mill, 532, 105 1487, 84 470 S.Ct. L.Ed.2d surely would have been heard appeals could Loudermill, 494 Under one fit to even accelerated had he seen have been process pre- is a required elements of due suspensions.24 of his request a that, although deprivation hearing not neces determining whether The final factor for elaborate, sarily public affords the worker an hearings were suffi- post-suspension opportunity to receive notice of the reasons ciently prompt an examination involves opportunity to action and an for the adverse improp- suspensions were likelihood that his at 1495. As respond. Id. at 105 S.Ct. disability previ- claim was er. Id. note, circumstances my brothers there are rejected by differ- ously three reviewed part action on the which the need for swift reviewing bodies and the nature ent authority governmental who exercise those easy it an one to evaluate. claim made safety security responsibility for the slight. the likelihood of error trun justify elimination or of others can pretermination even the bare-bones City Gary presented evi- cation of sufficient FDIC hearing required Loudermill. See necessary to facts of all relevant dence Mallen, 100 486 U.S. 108 S.Ct. summary judgment:
grant its motion for
Barchi,
(1988); Barry v.
443
making
265
L.Ed.2d
compelling
had a
2649-50,
64-66,
fully U.S.
sure that
its
Love,
(1979); Dixon v.
431 U.S.
safely pro- L.Ed.2d 365
efficiently and
and able to
staffed
1723, 1727-29,
112-15,
safety;
suspending
public
the risk
tect
investigation, whereupon
proceedings
written demand for an
promptness
post-deprivation
must
investiga-
Supreme
analyzed
such
the framework
shall conduct
within
the commission
Mallen,
provided
order
Court
in Mathews
tion.”
proceedings provided the
to determine if
private party
process
of law.
with due
hearing pertained
Board
the PERF
disability pension,
than his sus-
rather
to Jones’s
provides,
relevant
23. Ordinance 5882
termination,
he had a
pension
we note that
removed, suspended, de-
part: “Any person so
delaying
.
dur-
administrative
habit of
(10) days
may,
discharged
within ten
moted
See, supra, note
removal,
proceedings as well.
those
suspension, demo-
from the time of his
disсharge,
the commission
tion or
file with
*11
(1977). Usually
L.Ed.2d 172
the asserted
that Mr. Jones had an opportunity for an
public
substantial
interest is a direct threat
disability
evaluation of his
before he was
safety
security
citizenry
of the
if
suspended. As Justice
concurring
Jackson’s
public employee
permitted
stay
Miller, Co.,
at
opinion
Cloyd
in Woods v.
W.
Nevertheless,
post.
there have been cir-
do not sup the record
ports adequately a need for an absolute abro
gation pretermination hearing, and I
agree ought that we to be cautious before
accepting representation. Although such a position officer in the Stephen ROTH, M.D., N. hardly long Chief can wait for too before Plaintiff-Appellant, replacing firefighter, an AWOL the record hardly supports thе conclusion that he cannot at least make an effort to ensure that the HOSPITAL, LUTHERAN GENERAL Je- opportunity give individual has an him a Kraut, Seymour M.D., Metrick, rome meaningful explanation. Here, my broth M.D., al., Defendants-Appellees. et out, point ers opportunity such an was af forded Mr. Jones. He well knew No. 94-2382. sole issue was physically whether he was United States of Appeals, Court disabled. He was opportunity afforded an Seventh Circuit.
demonstrate that he could not fulfill the duties of a disability at the evalua Argued Jan. tion. It opportunity after that had given him been and he had then refused to Decided June return to the Chief acted. The Supreme that, Court expedi has noted interest,
tious public action is (or
opportunities pretermination other than a
presuspension) hearing can suffice to meet requirements of Loudermill. See Mal
len,
(hold
ing that by grand jury an indictment
sufficient, given necessity quick re official).
moval of a bank
My only my difference with brothers is one emphasis. majority point does out