Griffin, Dennis v. Bennett, Odise ( 2006 )


Menu:
  •                              UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued October 4, 2006
    Decided November 7, 2006
    Before
    Hon. JOHN L. COFFEY, Circuit Judge
    Hon. TERENCE T. EVANS, Circuit Judge
    Hon. ANN CLAIRE WILLIAMS, Circuit Judge
    No. 06-1283
    DENNIS GRIFFIN                              Appeal from the United States District
    Plaintiff-Appellant,               Court for the Eastern District of
    Wisconsin
    v.                                    No. 04-C-512
    ODISE BENNETT and JONATHON                  Rudolph T. Randa
    DELAGRAVE,                                  Chief Judge.
    Defendants-Appellees.
    ORDER
    Dennis Griffin, a former employee of the Racine County Juvenile Detention
    Facility, sued both his supervisor and the deputy superintendent of the detention
    center under 
    42 U.S.C. § 1983
    , alleging that his Fourteenth Amendment rights
    were violated and arguing that the defendants terminated him without providing
    notice of the charges and a hearing. The district court granted summary judgment
    for the defendants finding that Griffin was given sufficient notice and a hearing
    before his termination.
    Griffin was hired in 2001 as a “juvenile detention worker.” Detention
    workers are public employees and can be fired only for cause. In January 2004 one
    of Griffin’s co-workers told the deputy superintendent, Jonathon Delagrave, that
    No. 06-1283                                                              Page 2
    Griffin and a juvenile in the center had been using drugs. When Delagrave met
    with the juvenile, K.T., he admitted to having smoked marijuana with Griffin at an
    undisclosed location. Delagrave then contacted Griffin’s supervisor, Odise Bennett,
    and the human resources manager, Marta Kultgen; they decided to order that
    Griffin take a drug test. On January 22, Griffin complied. The test results came
    back positive for marijuana use. Griffin was placed on administrative leave without
    pay, but was not notified of this action. The medical review officer informed Griffin
    on January 23 that his drug test was positive, and that the detention center would
    contact him regarding his future employment status. According to his deposition
    testimony, Griffin was aware that he could be disciplined, or even fired because of
    the positive drug test.
    On January 27, Bennett telephoned Griffin and requested a meeting later
    that morning, stating that Griffin’s “job was on the line.” Before the meeting,
    Griffin conferred privately with three union representatives, all of whom later
    accompanied him to the meeting. Delagrave and Kultgen also attended. Kultgen
    began the meeting by stating that she had received notice of Griffin’s positive test
    result. Kultgen gave Griffin an opportunity to explain the test results, but he
    declined to do so. At the end of the meeting, Griffin was terminated.
    Griffin asked one of the union representatives whether he had any recourse.
    The representative told him that he did not, and that his failing of the drug test was
    a proper ground for termination. Griffin thus decided not to file a grievance
    challenging his discharge, which was an option under the Racine County public
    employees’ collective bargaining agreement. On February 12 Griffin wrote to the
    Racine County Executive regarding an unexplained deduction from his paycheck,
    and his belief that he did not receive a Loudermill hearing. Griffin asserted that
    the grievance procedure did not “supercede [his] rights” under Loudermill.
    In May 2004, Griffin filed suit under 
    42 U.S.C. § 1983
    , alleging that the
    defendants violated his Fourteenth Amendment due process rights by not giving
    him a hearing before terminating his employment. The defendants moved for
    summary judgment, claiming that they gave Griffin an opportunity to challenge or
    explain the positive test result that led to his firing. After hearing testimony and
    reviewing the case, the district court granted summary judgment for the
    defendants, after concluding that Griffin was given a pretermination hearing that
    was “constitutionally sound” and furthermore that he had the opportunity for a
    post-termination hearing.
    Griffin initially argues that Racine County’s pre-termination procedures do
    not satisfy the requirements of Cleveland Bd. of Educ. v. Loudermill, 
    470 U.S. 532
    (1985) and Staples v. City of Milwaukee, 
    142 F.3d 383
     (7th Cir. 1998), because he
    was not given advance written notice of the charges against him. The Court in
    No. 06-1283                                                               Page 3
    Loudermill held that a public employee who can be dismissed only for cause must
    be granted a pre-termination hearing, followed by a more comprehensive post-
    termination hearing. Loudermill, 
    470 U.S. at 545-46
    ; Gilbert v. Homar, 
    520 U.S. 924
    , 929 (1997). In Staples, this court noted that the critical elements identified in
    Loudermill were (1) oral or written notice of the charges, (2) an explanation of the
    employer’s charges, and (3) an opportunity to tell his side of the story. Staples, 
    142 F.3d at 385
    .
    In this case, although he was not given written notice of the charges, Griffin
    well knew that the purpose of the January 27 meeting was to discuss his failed drug
    test. At the meeting, the defendants referred to the drug test and asked Griffin if
    he had an explanation for the positive results; he replied, “no.” Because Griffin was
    given notice and an opportunity to respond to the charges, the pre-termination
    procedures were constitutionally sufficient.
    Griffin cites Wallace v. Tilley, 
    41 F.3d 296
     (7th Cir. 1994), to suggest that due
    process requires actual written (rather than oral) notice. It is true that the
    employee in Wallace received written notice six days before the hearing, and that
    the notice included the date of the hearing at which formal charges would be
    presented. 
    Id.
     at 300 n.5. But, as the law clearly states, written notice of the
    charges is not required; oral notice alone is sufficient. This court has repeatedly
    noted Loudermill’s direction that “[t]he tenured public employee is entitled to oral
    or written notice of the charges against him.” Lavlani v. Cook County, 
    396 F.3d 911
    , 915 (7th Cir. 2005) (quoting Loudermill). To date we have not specified how
    far in advance an employee must receive notice, but have suggested that
    contemporaneous notice may suffice if the employee knew that his job was in
    jeopardy. See Staples, 
    142 F.3d at 387
    . Here, Griffin received oral notice of the
    meeting only one hour before it began, but the notice was sufficient because, by his
    own admission, Griffin was well aware that the meeting was convened to discuss
    his violation of the County’s drug-free policy and how that violation might
    jeopardize his job.
    Griffin further claims that he was “blindsided” at the pre-termination
    hearing by two additional charges contained in his employee disciplinary report: (1)
    that he had used drugs in the workplace, and (2) that he had engaged in
    inappropriate conduct with the juvenile K.T. However, Griffin’s disciplinary report
    contains no reference that a juvenile was involved with Griffin’s drug use.
    Moreover, according to Delagrave’s uncontradicted testimony, Griffin’s positive drug
    test was the only relevant factor in the decision to terminate him. Whether he used
    drugs on the detention center premises or elsewhere was unimportant: Griffin
    failed the drug test. 
    Id.
     Because Griffin had notice of the charge that he had tested
    positive for marijuana use, and an opportunity to respond, he received all the
    process he was due.
    No. 06-1283                                                              Page 4
    Griffin next argues that he was removed from the payroll on January 22,
    which suggests that he was actually terminated on January 22, several days before
    the January 27 meeting. If this assertion were true, the defendants would have
    violated Loudermill by not providing Griffin with a pre-termination hearing. But
    this claim is unsupported by the record. Griffin himself alleged in his complaint
    that he was terminated on January 27, and the defendants agree. Nothing in the
    record indicates that he was removed from the payroll on January 22. Griffin was
    not paid after January 23 because he was placed – without notice – on
    administrative leave. There are few details in the record regarding his suspension,
    but his not being paid after January 23 is consistent with his being placed on
    administrative leave without pay. The district court declined to hear this issue
    because Griffin’s complaint did not allege a lack of due process regarding his
    suspension. He raised this issue for the first time in his brief opposing the motion
    for summary judgment. The court rejected this argument as an inappropriate
    attempt to amend his complaint. See Shanahan v. City of Chi., 
    82 F.3d 776
    , 781
    (7th Cir. 1996). Griffin’s argument is not only inaccurate, but also untimely
    because he did not include it in an amended complaint; thus the claim that he was
    fired on January 22 cannot be accepted.
    Griffin’s final argument is that he did not receive post-termination relief
    because the defendants ignored his February 12 request for a Loudermill hearing.
    Griffin misunderstands Loudermill’s requirements. In Loudermill, the Court noted
    that its holding rested in part on state law provisions providing for a full post-
    termination hearing. 
    470 U.S. at 546
    ; see Head v. Chi. Sch. Reform Bd. of Trs., 
    225 F.3d 794
    , 803 n.8 (7th Cir. 2000) (noting that limited pre-termination procedures
    are permissible only if full post-termination procedures are available). In this case,
    Racine County and Griffin’s union had a grievance procedure in place for employees
    to appeal any disciplinary actions taken against them. Griffin testified that he
    thought he had no grounds to contest his discharge and did not file a grievance,
    based on a conversation with one of the union representatives. But that Griffin on
    his own chose not to avail himself of an existing grievance procedure does not alter
    its availability. Moreover, our precedents do not suggest that public employees are
    entitled to post-termination relief apart from what is provided for in their collective
    bargaining agreements. See, e.g., Wallace, 
    41 F.3d at 302
     (“This Court has
    explicitly recognized that ‘a grievance procedure under a collective bargaining
    agreement can satisfy due process, even when a public employee has been
    discharged.’”) (quoting Buttitta v. City of Chi., 
    9 F.3d 1198
    , 1206 (7th Cir. 1993))
    (quoting Winston v. United States Postal Serv., 
    585 F.2d 198
    , 209-10 (7th Cir. 1978).
    AFFIRMED.