Loraine Pollock v. Baxter Manor Nursing Home

in this proceeding arbitration makes

case a farce. why me to fathom for

It is difficult of this court are fear- majority

union and now decisive a remand so

ful of fairly fully in this case can be

issue arbitrator. impartial

presented POLLOCK, Appellant,

Loraine MANOR NURSING

BAXTER

HOME, Appellee.

No. 82-1584. Appeals, States Court

United

Eighth Circuit. 14, 1983. Jan.

Submitted Harmon, Burnett, Lavey & Little John L. April Decided Rock, Ark., appellant. En Rehearing Rehearing Banc 13, 1983. P.A., Rock, Ark., Smith, Sept. Denied Little G. Ross

appellee. HENLEY, ROSS, Judge,

Before Circuit. Judge, McMILLIAN, Circuit Senior Judge. Circuit PER CURIAM. instituted this action

Loraine Pollock alleg- Nursing Home against Manor Baxter her of ing nursing deprived home that the discharg- law stigmatiz- ing employment under her from according without ing conditions notice home or a protected any constitutionally denied that in Pol- implicated “liberty” alleged, and also lock’s termination alternative, interest was “liberty” if a protec- involved, was afforded by the amend- guaranteed tions fourteenth ment. court, the Honorable H.

The district Waters, Pollock was found that Franklin judgment accordingly McMillian, Judge, filed dissent- entitled Circuit complaint. dismissed her ing opinion. carefully year studied the rec Pollock applied position

We later at a ord, including opinion, privately-owned nursing the district court’s home. arguments the and the of the parties briefs process In the applying of for the new We no to appel to this action. find merit position, she signed an authorization for her accordingly lant’s affirm arguments former employers to release information Judge the basis third solely on of Waters’ about her job performance. pri- The law, of stated: conclusion which vately-owned nursing presented home impli a “liberty” 3. Before interest is to authorization form the county-owned cated, how employee-discharge in cases nursing county-owned home. The nursing ever, publication there must be provided then home information that termination, reasons for the publication had been clocking Pollock “terminated for must at the of govern occur hands daughters her in and out on time clock employer, charges mental must be .they working.” when weren’t Pollock then defamatory, and must be sued county-owned depriving home for false. Buhr v. Buffalo Public School liberty her of due of without law. Dist., (8th Cir.1974); Cato The district court found Pollock had indeed Collins, (8th Cir.1976); 539 F.2d 656 daughter’s clocked her time card fraudu- Codd v. lently. The court concluded that because (1977); Seal v. Pryor, allegations against true, Pollock were F.2d 96 deprived was not of her liberty she interest Home, Pollock v. Baxter Nursing Manor reputation. in appeal her This ensued. (W.D.Ark.1982). We F.Supp. majority’s opinion The holds that before a case, agree that under the facts of this entitled to a prevail Pollock could not because a to refute information interest does not arise unless an employer in published conjunction with her discharge, a false defamatory disseminates state- successfully she must first stig- refute the ment. specifically The district court found matizing I information. cannot agree. the nursing home’s statements to Pol- prospective lock’s employer true and I. The Role of Due Process we do believe finding that such a purpose procedural The fundamental of infringe- error. no suffered due is to in ensure fairness any liberty by nursing ment of government manner which exercises its judgment home. The district court is power. Joint Refugee Anti-Fascist affirmed. McGrath, 123, 161, Committee v. McMILLIAN, Judge, dissenting. Circuit 624, 643, (Frank 95 L.Ed. 817 respectfully I dissent. J., furter, First, concurring). by requiring government to an an individual The facts this case are sim- relatively being to be heard before de ple. county- Pollock once worked for a life, or prived liberty, property, proc due owned home. was fired She promotes appearance ess the form or home allegedly clocking her daughter’s justice. Its salutary effect is to establish time card and out when her daughter the ideal that society ruled law and had not reported day. for work that Pol- caprice of the men and women lock she received exit interview when power. It also respect reinforces for the was fired. Subsequently Pollock and dignity inherent and worth of the individu counsel with met the home’s counsel to dis- Secondly, process protects against cuss al. possible out-of-court settlement incomplete error based inaccurate or falsely Pollock’s claim that she was accused by requiring and should be information reinstated. home’s coun- sel comport regularized procedures refused recommend to the home’s Saphire, Board she subject judicial of Governors that be reinstated. are review. See a Specifying Board affirmed her dismissal. About Due Process Values: Toward a Codd. holding misread the majority have to Procedural Approach Responsive More stig- publicly as I read Codd Protection, 127 U.Pa.L.Rev. has been dismissed short, who matized (1978). In objective the substan- deny or keep only allege falsity need meant individuals. dealings with underlying in its facts and honest tial truth of the historical in order to stigmatizing information public employee Requiring a establish the prove to estab- hearing a right a to before false decision, one To understand the Codd for disincentive great a lished will there is a mark first understand that must termination any conduct the proving depriva ed difference between public difficulties practical The hearings. proving interest and conse liberty tion of a haling govern- the employee encounters damages depriva caused quential bearing the burden ment into court Carey Piphus, tion. In government’s falsity the proving 1053-57, 55 L.Ed.2d gov- If a overwhelming. be charges may held that (1978), Supreme the Court agents, are to be entity, or its ernmental of constitutional damages deprivations for em- when the liable damages, All cannot be inferred. rights barriers, gov- the these surmounts ployee proved damages, nominal must be except posi- the to take entity likely ernmental depriva the fact that the separately from wrong, I am sue “Well, if think you tion: But, token, same has occurred. tion holding it." instead prove me and proposition for the that a Carey also stands stig- hearing whenever damages nominal for plaintiff may recover course of termi- matizes an of it deprivation in and the constitutional govern- nating employment, his or her public employee In the context of a self. have to conduct ment would case, discharged Carey requires a discharge takes the sub- injured employee when the seeking reinstate public employee who is government. suing initiative of stantial that she would backpay prove ment or to the whole be an anathema This would if she had been not have been proc- the due play ideal of fair embodied hearing. Ordinarily, given process pre-termi- fair ess The absence of clauses. stigma require proving that the this would in- important hearings nation when Yet, as Pollock tizing information is false. ap- destroys also terests are at stake brief, proof in her her failure of points out the risk of pearance justice and increases damages has consequential on the matter of recently noted error. As the Tenth.Circuit establishing that her nothing- to do public employ- stigmatized has been breached. right to due to establish a prove falsity ee need not and the nature of the dam deprivation, pro- as we hearing: “Just deprivation, from the must ages that flow as well as guilty vide trials to the criminal and distinct ele separate considered as be innocent, provide opportunities we cause of ments of a fail to those who will rebut serious Tice, Bishop action. prevail.” who will as well as to those Cir.1980). n. 17 357-58 & Draper, 639 F.2d McGhee v. Cir.1981). Codd, for policeman was a plaintiff In who at one time the Penn-Central Railroad the Caselaw Falsity II. for the police officer trainee had been dismissed City of New York. Penn-Central relied court’s decision below The district New York City when the plaintiff Court’s hold principally upon Supreme con- to Penn-Central released information in, interpreta courts’ ing and several lower plaintiff in which cerning an incident of, 429 U.S. Codd appar- head in an put “had a revolver to his curiam). (1977) (per S.Ct. 51 L.Ed.2d attempt.” and the ent suicide I believe that the district court never some factual plaintiff dispute denied between an employ- 883.1 information. After he was truth of this discharged employee er and a which has fired, City sued New York significant bearing some on damages rather than solely backpay ee’s reputation. plead- Nowhere in his 1,n. for a Id. at 625 & ings or elsewhere has respondent affirma- the merits of the assessing 883 & n. 1. tively report asserted that ap- and other con plaintiff’s backpay claim parent attempt suicide was substantially sequential damages alleged caused false. Neither the District Court nor the process, denial of due Appeals any Court of made such finding. said: When we consider the nature of the in- Assuming all of the other elements nec- sought protected, terest to be we believe essary stigmatiza- to make out a claim of the absence of such allegation or Regents tion under Roth [Board v.] finding respondent’s is fatal claim un- L.Ed.2d [408 der the Due Process Clause that he should Wood, Bishop ] [v. given have been a hearing. (1976)], 96 48 L.Ed.2d 684 S.Ct. 429 at 97 at (emphasis U.S. S.Ct. the the Due Process remedy mandated added). Clause of the Fourteenth Amendment is The then Court went on to hold that charge.” “an to refute the opportunity plaintiff because the had not raised an issue U.S., at 573 at “The S.Ct. [92 2707]. about the substantial accuracy stig of the purpose hearing of such notice and is to information, matizing he “made out no person the an claim under the Fourteenth name,” Amendment id., his clear at 573 n. S.Ct. [92 that he was harmed the denial of a hearing at 2707 n. But if the man- 12]. hearing." (em dated Due Id. at- at by the Process Clause is to S.Ct. added).2 purpose, phasis serve useful there must be But plaintiff because the Codd, pursuant released to an ment. See at at S.Ct. signed by plaintiff. Wood, 884; Bishop 341, 347, authorization the 426 U.S. 2074, 2078, (1976). S.Ct. 48 L.Ed.2d 684 But expressing holding, Supreme 2. Before its the interest, property without the the function distinguished right pa- the Court remedies process hearing the due can serve is to vindi enjoy parole rolees right in revocations from the Codd, employee’s reputation. cate the enjoyed by discharged pub- and remedies 883; U.S. at 97 S.Ct. at Graves v. Du employees property rights lic who have no ganne, If the public employment. parole their In the revoca- challenge “does not the substantial process hearing tion situation the due serves question, hearing truth of the material in no two functions. The first is to vindicate the promise achieving would afford a that result parolee’s reputation by determining “whether Codd, for him.” 429 U.S. at at S.Ct. parolee in the fact committed the violation with added). (emphasis charged.” which he is 624, 627, Codd v. if, hand, stigmatized But on the other the 882, 883, public employee challenge does the truth of the (per curiam). The second function is to deter- information, process hearing a due parolee’s legal mine whether the status should promise clearing employ- does hold the (parole revoked) according be altered to the just parolee’s hearing ee’s as a holds guidelines that limit decisionmaker’s discre- name — promise parole out that his will not be tion under the law. “The fact that there was dispute respect revoked even if he did commit a violation. Be- no commission parolee parole necessarily fore a is entitled to a revocation the act would not obviate the need hearing, require parolee prove hearing for we do not on the issue of whether the com- mitigating mission of the act warranted the revocation parole.” that the circumstances of his viola- overwhelming Id. at at 882. tion are S.Ct. so that no rational deci- parole. sionmaker would his revoke Nor process hearing quite role of a due is require stigmatized public employ- pub- we stigmatized should different in situations where a job ee to lic is clear his name before we allow him a from a in which situations, name-clearing hearing. “enough property rights. she has no It should be In such procedural safeguards there are no bridles on the to invoke the administrator’s dis- review, susceptible judicial significant prop- cretion that are Fourteenth Amendment that a erty any, liberty] stake, public employee for if there were interest is at whatever [or property hearing.” Carey would have a interest in his the ultimate outcome of a (citations at 1053 damages consequential prayed hearing,” omitted).4 The Court omitted, Roth delayed footnote not seek “did that it had noted expressly with instructions Supreme Court the case then remanded the burden consider “no occasion of fact determined if the trier that even issues necessary proof pleading suspensions justified, the ad- forum and the federal between as to nominal dam was still entitled where such relief hearing ministrative given he was not because ages 1, 97 at 625 n. sought.” Id. curiam per the Codd n. 1. at 883 court also relied Seal The district address did not opinion, (8th Cir.1982), for the Pryor, proof is of what question or answer discharged public employ- that a proposition proc- to a due right establish required to infor- must show ee deci- subsequent Court’s hearing. The ess But the prevail. in order to mation is false Piphus, 435 U.S. Carey sion in Seal, I authored however, opinion ques- did answer the court, premised upon ruled: specifically the Court tion. There deny did not procedural public employee that the to invoke fact enough “It Amend Fourteenth that led safeguards of truth of the the substantial significant property ment Id. at 99. to his dismissal. out stake, the ultimate whatever is at therefore, me, neither clear to It is ” [3] Be . ... .... come of re precedent own nor our Supreme Court cause the employee to quires sense that it does is “absolute” stig government’s of the falsity prove of claimant’s the merits a upon depend charges before she can establish matizing assertions, of the and because substantive All a reputation. in her liberty interest society pro that organized importance substantial deny need do is plaintiff observed, we be be process due cedural re information truth of due denial of lieve that conjunction by leased actionable for should be nominal process change legal in her status.5 injury. actual with a proof of damages without Sessions, 357, 1042, 1053, (5th 247, 266, 360 n. 6 v. 568 F.2d Piphus, Love U.S. 98 S.Ct. 435 FBI, Shevin, curiam). Cir.1978) (per (1978), citing Accord Painter v. v. Fuentes 252 55 L.Ed.2d 1983, 1997, 255, (11th Cir.1982); 67, 87, Vanelli v. 32 L.Ed.2d 256 92 S.Ct. 694 F.2d 773, Dist., Draper, (1972). Reynolds F.2d 777-78 v. 639 667 F.2d 556 See McGhee School Cir.1981). 639, Cir.1982); Draper, (10th (9th v. 639 F.2d 643 McGhee 639, (10th Cir.1981); of Kendall v. Board 643 87, Shevin, 67, Quoting U.S. 92 v. 407 3. Fuentes Educ., 1, (6th Cir.1980). The law in F.2d 5 627 1997, (1972). 1983, S.Ct. clear, is less but the Fourth and First Circuits analysis employed in those circuits’ recent Carey Piphus context of was 4. v. decided liability support public for nominal dam suspension Al would from school. cases a student’s merely upon allegation falsity suspensions ages though been viewed of student Lopez, property, deprivation 419 hear of Goss v. as a failure to 729, 736, 883, 574, 565, Delancey, ing. 42 725 95 S.Ct. L.Ed.2d F.2d U.S. Ledford v. 612 See implicating Abel, (1975), they Cir.1980); as (4th have also been seen Burt v. 585 F.2d 886-87 reputation. 613, Cir.1978); Rodriguez in the student’s (4th de 616 Quinonez 574-75, Paul v. Perez, (1st 95 at 736. See Id. at S.Ct. 491 & n. 5 Cir. v. 596 F.2d 1155, 1165, Davis, 424 96 S.Ct. U.S. 1979). case, (1976). the Car 47 405 In either L.Ed.2d circuits, Eighth only of the two outside controlling ey opinion in this case. See su Circuit, falsity, require proof for a even that parole discussing pra 2 note damages, Second and nominal are the claim for revocations. Lehman, v. 689 See Smith Seventh Circuits. - denied, Cir.1982), (2d cert. F.2d respect to the district court be- 5. With all due -, 74 L.Ed.2d U.S. low, Appeals majority has of the Courts Walker, (1983); 831- 655 F.2d v. Colaizzi contrary. At least four Courts not held to the Cir.1981). relied (7th case was The Colaizzi Appeals Fifth rule follow the Circuit’s heavily by below. The district court only al- need however, appears holding, cryptic Colaizzi lege right falsity trigger See to a kansas law Legal III. does not protect Status Pollock’s private Thus, employment. no alteration Davis, In Paul v. Court held a previously recognized right, as envi deprivation person’s that the of a interest in Davis, sioned Paul v. has occurred be reputation alone is insufficient “to in- private nursing cause the home refused to voke the procedural guarantees contained Davis, hire her. Paul U.S. at in the Due of the Process Clause Four- 711-12, 96 Of course in cer teenth Amendment.” tain situations the of the nature informa public at 1165. A stigmatized released the government about a something ee must show more —she must former employee, and the manner in which show that some or status “right previously released, it is will work de facto revoca recognized by state was distinctly law al- former, tion of the employee’s right to en tered or Id. The extinguished.”- Fifth Cir- gage profession. See, in his or her chosen requirement cuit has this characterized as Lovett, e.g., United States v. “stigma-plus.” v. & Dennis S S Consolidat- 314, 316, 1073, 1078, 1079, District, ed High Rural School L.Ed. (1946); FTC, Mervin my opinion, F.2d “plus” (D.C.Cir.1978); has demonstrated because the Christhilf v. Annapolis Ass’n, stigma Emergency arose in with her conjunction Hospital termi- nation from government employment. Cir.1974); Walker, Adams Cir.1974). In such concept legal The Paul v. Davis status situations the former should be parameters rather ethereal. The afforded protection. The rec concept were developed by Paul v. Da- case, however-, ord in this does not show a vis majority in its re-synthesis Su- deprivation of this magnitude. govern preme precedent. See 424 U.S. at ment released the prece- 96 S.Ct. at 1160-65. These one potential employer and did so at dents had been to hold thought per- request. Pollock’s change in son’s reputation interest in his or her was a legal Pollock’s status disclosed the record protectable But liberty interest. the Paul is Pollock’s from government termination v. Davis in each majority found case some Davis, employment. See Paul atU.S. legal status effected by 702-06, 709-10, 1161-63, 96 1164- government imposed stigma, such as the 65. The question in case then is this wheth alcohol, to purchase permanent fore- er the stigmatizing pub information was closure from all future conjunction lished in with that,change of ment, loss of exemptions, tax revocation of legal status. v. Dennis S & S Consoli a license, driver’s govern- termination from District, dated Rural High School 577 F.2d ment employment, suspension from 341; City Depart Drummond v. Fulton public school. Id. these examples From Services, ment of Family & Children legal status the First Circuit concluded that 1200, (9th Cir.1977). F.2d 1207-08 “when a state a right holds out to citizens to engage in an on activity equal terms This court on has stated several occasions others, with recognized state status ex- when stigmatizing that reasons for the em- Rudman, ists.” Medina v. 545 F.2d 250 ployee’s discharge incorporated are into a (1st Cir.1976). record which prospec- is made available to

Pollock alleges that she was denied em- employers, actually tive or is disclosed to ployment nursing with a home private be- prospective employers, stigmatized for- cause of the stigmatizing information re- mer employee is entitled to notice and a leased by nursing Mann, county-owned home. See Clark v.

Beyond a tort law for damages, (8th action Ar- Cir.1977); v. Churchwell United prece- Cir.1977)

be at (7th odds with Seventh (discussing earlier Circuit F.2d Lawler, Larry length). dent. See 960 n. Codd at (7th Cir.1978); Educ., v. Board Austin on sub nom. Cir.1976); 1975), grounds rev’d other (8th F.2d States, 545 Cir. F.2d Codd Bailey, Greenhill curiam). Dis (per v. Buffalo Public School 1975); Buhr Cir. have re 38, 509 F.2d home could county-owned nursing No. trict v. Unit by in Churchwell 1974).6 request Our to the for information sponded to this case. terminated, equally applicable with ed had stating States been reasons for surrounding indicating stigmatizing Church- out The circumstances with a provided court Or have present this her dismissal. it could well’s dismissal disclosure of before of actual Pollock with case Churchwell, registered information. information. releasing drugs charged misusing nurse, with county-owned the time the For at lying possibly patients on information, it could not home released The affi- drug her own misuse. up cover charges whether or not know indi- employer prospective of one davit unless it had that determina “true” made “but cates hearing in which after a due tion * * employer her previous from obtained oppor and an Pollock received notice terminat- effect that she had been heard. tunity to be A determination ‘drug alleged nurse for registered ed as a a trier of fact truth of the made on he would have duty” while errors’ publication stigma cannot after ques- can be no There hired Churchwell. county’s hoc post justify used be disclosing such the effect of Sessions, Love v. actions. See jeopar- stigmatized has allegations re Due 360 n. employment continued dized Churchwell’s to base decisions quires As noted profession. medical deprive important individual of may precisely opinion, court this is the district interests information from which held to be intoler- stigma Roth just upon controversy, sides of the not both a hearing. without able of the truth.7 government’s conception 62-63. 545 F.2d at “Secrecy congenial truth-seeking self-righteousness too slender an gives re- authorized the The fact that Pollock better in rightness. assurance of No man- signing a lease of the information arriving strument has been devised for require form does not datory application matter, jeopardy than to person truth As practical different result. against loss notice of the case him sign has no but to serious job applicant choice Joint Anti In con- and an to meet it.” authorization form. application’s McGrath, adhesion, non-drafting party Refugee Fascist Committee tracts of 648-49, to be voluntarily not to have consented held (Frankfurter, J., concurring). Like- all of the terms. bound contract’s L.Ed. circumstances, responsibility wise, Pollock should be held to these Under informa- of the aired the for the dissemination voluntarily signed she should shifted to the tion in her file because not be simply employee. form. Vel- I therefore follow required authorization See former would 334, (2d Cir. v. Unit- Cawley, previous 525 F.2d our decision in Churchwell ger v. say may Reynolds Dist. No. Vanelli v. School 7. This is not that 6. Accord 773, emergency 7, Cir.1982); Swilley prompt (9th situa- take 667 F.2d 776-78 action Alexander, 1018, (5th has stated that un- Cir. tions. The v. F.2d 476, Burke, post-deprivation 1980); 483- certain Ventetuolo v. der circumstances Treusdell, (1st Cir.1979); hearing may required. v. be all is Goss Mazaleski (D.C.Cir.1977). Ample Lopez, 95 S.Ct. F.2d Cf. 419 U.S. Schlesinger, (1975). man v. F.2d 42 L.Ed.2d 725 Cir.1976) (mere placement stigmatizing in kept in a file confidential formation is deprive regulations Air dis Force does not charged liberty). serviceman his (1981), quoting ed and hold that Pollock has been Goss v. Lopez, States at minimum, deprived liberty.8 95 S.Ct. at 738. At “the Due grants aggrieved Process Clause party That Is Due IV. The Process the opportunity present his case and have its fairly judged.” Logan, merits 455 U.S. Í980, Pollock, In May attorney at 1156. daughters present her two at a meet- ing county-owned held at the office of the cases, In employment termination such as nursing home’s Members of the attorney. one, this where stigmatizing information is county-owned home’s Executive termination, the basis for the witness credi- Committee, administrator, the home’s bility is decisive. The decisionmaker cannot several of the home’s witnesses were fairly judge the merits of the case unless present as well. The was called as meeting given the former a chance to conference, however, a settlement and Pol- present his own witnesses and to cross-ex- attorney expressly lock’s stated at the out- amine the employer’s witnesses. See To- set meeting was not to be con- man, Practical Guidelines for Liberty Inter- as the process hearing sidered due Pollock est Hearings Employee Dismissals, Public never re- attorney received. The home’s (1982). 14 Urb.Law. Presentation sponded that he “understood.” Pollock’s and cross-examination of witnesses Pol- attorney also stated he had several witness- lock, therefore, would provided sig- es who would Pollock’s version of support nificant additional procedural safeguard. present facts and that he would these Pollock’s interest in her reputation and con- witnesses at a if the home’s Board tinued employment great, especially be- of Governors would Pollock with cause her perma- termination is final and present one. These witnesses were not Conversely, nent. the county home’s inter- the settlement conference. Relevant docu- est in maintaining competent and honest mentary evidence also was not available at work force is also considerable. bal- On the conference. however, ance, I conclude that Pollock was person deprived process by May, that is due a afforded of liberty depends upon “appropriate settlement conference for three reasons. First, accommodation of the competing parties interests all to the meeting “under- involved,” (1) including: importance stood” that this was not to be Pollock’s interest, private (2) the length or finali- name-clearing hearing. The home’s attor- ty deprivation, (3) of the the likelihood of ney repeatedly purpose stated that his probable error as well as the meeting was to show Pollock what his value, any, if additional safe- any hearing evidence would be at Pollock guards, (4) magnitude gov- instigate chose to in court. He also stated ernmental interest involved. v. Zim- Logan his advice to the Board of Governors would Co., 422, 434-35, merman Brush be that the home not give hear- 1148, 1157-58, Second, 71 L.Ed.2d 265 ing. given Pollock was not a mean- Wood, Bishop litigants.” tion . .. between 426 U.S. at Collins, Cato S.Ct. at 2079. No similar consideration (8th Cir.1976), contrary. present employer are not to the when a former releases infor Bishop Wood, stigmatizing charges prospective employer. mation to a See also publicly discharged Mann, were first aired when the Clark v. Cir. police violating 1977) (stressing sued the chief of derogatory that where reasons Collins, process rights. his incorporated In Cato v. for termination are not into a rec were aired prospective employer, when the em- ord made available to a ployee public hearing solely publicized by demanded and way received a but rather are of a public hearing on the merits of her termination. The held at the behest of the dis Bishop publica- charged employee, v. Wood held that the no due violation has stigma during litiga- occurred). Collins, tion of the the course of Cf. Cato v. F.2d at allegation tion (public public requested could not form hearing the basis for an disclosure at a of violation because it would is not a basis for a penalize “forthright deprivation). and truthful communica- present to or cross-examine ingful chance evidence, including present toor EQUAL

witnesses EMPLOYMENT OPPORTUNI of accused time card she was COMMISSION, Appellant, the actual TY contro- position Pollock’s altering. fraudulently she did not was versy MICHAEL CONSTRUCTION card, but was time daughter’s alter her COMPANY, Appellee. on oth- entries overtime making legitimate Nos. 82-2421. inspec- stated that er cards. She time cards, along with other time those Appeals, States Court United to whom employees testimony Eighth Circuit. her verify would belonged, the time cards 14, 1983. Feb. Submitted Also, key alibi witness account. Decided 1983. May was no opportunity There present. reliability and credibility measure Rehearing Rehearing and En Banc credibility against Pollock’s witnesses Denied June witnesses. reliability the home’s and addition, present the reason Pollock did she had or evidence was that

her witnesses conference the settlement

no notice to be heard on her

was to be Third, before decisionmaker. merits one’s case have the merits of order type of there must be some

judged fairly, was no deci- There

judge or decisionmaker. present at the conference

sionmaker credi- and the witnesses’

weigh the evidence on the or to issue determination

bility Although some members

merits. present, Executive

home’s Committee attorney actually controlled home’s attorney asked

meeting. When Pollock’s the home attorney whether home’s or rein- give either Pollock a

would attorney with backpay,

state the home’s he such

responded that could not make He could ad- Board.

decision Governors, his advice

vise the Board and leave they nothing do

would be

Pollock to her recourse in the courts. all deference

Accordingly, below, court majority the district I

I dissent. would award must reasona- damages of one dollar

nominal fees an incentive attorney’s

ble they when are due.

hearings

Case Details

Case Name: Loraine Pollock v. Baxter Manor Nursing Home

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 13, 1983

Citation: 706 F.2d 236

Docket Number: 82-1584

Court Abbreviation: 8th Cir.