Tom Xiong v. Jennifer Fischer

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2587
TOM BEU XIONG,
Plaintiff-Appellant,
v.
JENNIFER A. FISCHER, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:13-cv-00418-jdp — James D. Peterson, Judge.
ARGUED DECEMBER 8, 2014 — DECIDED MAY 18, 2015
Before BAUER and HAMILTON, Circuit Judges, and ELLIS,
District Judge.*
BAUER, Circuit Judge. Plaintiff-appellant, Tom Beu Xiong
(“Xiong”), is a former employee of defendant-appellee, Dane
County Department of Human Services (“the Department”),
and former member of the defendant-appellee, Dane County
*
The Honorable Sara L. Ellis, of the United States District Court for the
Northern District of Illinois, sitting by designation.
2 No. 14-2587
Professional Social Workers, Local 2634, AFSCME, AFL-CIO
(“the Union”). Xiong appeals the dismissal of his claims of
breach of duty of fair representation against the Union and
breach of collective bargaining agreement against the
Department, as well as various constitutional claims against
Xiong’s supervisor, Jennifer Fischer (“Fischer”), the Union, and
the Department (collectively “the defendants”). We affirm.
I. BACKGROUND
This case arises out of the defendants’ behavior toward
Xiong before and after he was terminated from his job as a
senior clinical social worker. Xiong began working for the
Department as a social worker in 1990, serving primarily the
elderly and physically disabled individuals. As a member of
the Union, he was covered by a collective bargaining agree-
ment (“CBA”) that provided, among other things, that the
Union would assist and represent employees throughout the
pre-disciplinary, grievance, and termination processes.
In May 2012, Xiong’s supervisor, Fischer, learned that
Xiong had committed significant work rule violations. Notably,
Fischer discovered that Xiong had forged her signature on a
number of documents, called in sick to work after Fischer had
explicitly denied his requests to be excused, failed to meet
deadlines or complete paperwork related to an upcoming
audit, attended divorce proceedings during work time without
authorization, and moved a client from one family home to
another without completing the required paperwork. As a
result, Fischer sent a letter to Xiong on May 22, 2012, indicating
that she had concerns related to his employment and request-
ing his presence at a pre-disciplinary meeting scheduled for
No. 14-2587 3
May 24, 2012. The letter identified six areas of concern and nine
work rules that Fischer believed Xiong had broken. Fischer also
informed Xiong that, due to the nature of the concerns and
potential violations, he would have an opportunity to respond
to the allegations against him and to have a representative
from the Union present at the meeting. Fischer sent copies of
the letter to her supervisors, including Theresa Sanders
(“Sanders”), Fran Genter (“Genter”), and the Director of the
Department, Lynn Green (“Green”), as well as the President of
the Union, Kate Gravel (“Gravel”).
Having taken unauthorized leave on May 22 and 23, Xiong
did not receive Fischer’s letter until he arrived at work on
May 24. However, he discussed the letter’s accusations with
Gravel by phone on May 23 and informed her that he wished
to have a Union representative present at the pre-disciplinary
meeting. On May 24, 2012, Xiong attended the pre-disciplinary
meeting accompanied by his union steward, Sue DeBuhr
(“DeBuhr”), at which Fischer and Sanders laid out their
concerns with Xiong’s behavior. When given the opportunity
to respond, Xiong admitted to each of the allegations against
him. Fischer also discussed Xiong’s recent failure to pass the
2012 Long Term Care Functional Screen Test, passage of which
was required to maintain Xiong’s certification as a social
worker. Xiong had taken the test in March 2012 and received
a failing score of 67 percent. Green had contacted the Wiscon-
sin Department of Health Services (“DHS”) after learning of
Xiong’s failing score and asked DHS to permit Xiong to
complete a plan of correction. DHS denied Green’s request on
May 10, 2012, citing a new policy established by the state that
prohibited individuals who scored less than 70 percent on the
4 No. 14-2587
functional screen test from taking remedial measures. Conse-
quently, by the time of his pre-disciplinary meeting on May 24,
Xiong was no longer certified to perform a substantial part of
his work with the Department.
A week after the meeting, Xiong received a letter, signed by
Fischer, informing him that he had been terminated. It is
undisputed that Fischer did not have the authority under the
Dane County Civil Service Ordinance to make the decision to
fire Xiong. Rather, this power is held by those who are desig-
nated as “appointing authorities” under the ordinance; in this
case, that person was Green. Fischer testified at her deposition
that she personally consulted with three levels of management
prior to delivering Xiong’s termination notice: her direct
supervisor, Sanders; Sanders’ supervisor, Genter; and the
Employee Relations department. She also testified that she
gave Genter the letter and received his approval before the
termination meeting with Xiong. As we will discuss below, it
is not clear at which point Green authorized the decision to
terminate Xiong, but Green was copied on the letter of termina-
tion and Xiong admits that Genter told the Union that the
decision to terminate Xiong was made “far above” him.
Under the terms of the CBA between the Union and Dane
County (“the County”), employees may only be terminated for
good cause. An employee wishing to challenge adverse
employment actions may do so by either following the griev-
ance process outlined in the CBA or using the appeals proce-
dure established by the Dane County Civil Service Ordinance.
Xiong chose to challenge his termination under the CBA, which
sets out a four-step process. At Step 1, the employee and the
Union take up the grievance orally with the employee’s first
No. 14-2587 5
line of supervision. If the parties are unable to come to a
mutually satisfactory decision, the employee or the Union
moves on to the second step of the process. At Step 2, the
employee or the Union presents the grievance in writing to the
department head—in this case, Green. If the matter is not
resolved there, the employee or the Union may advance the
grievance to Step 3, which involves presenting the grievance to
the County Executive or designee. Finally, if the grievance is
not settled at the third step, the Union may take the matter to
arbitration. In order for the Union to pursue this fourth step,
however, members of the Union’s bargaining unit must vote to
do so.
After bypassing the first two steps of the grievance proce-
dure, the Union began Xiong’s appeal at Step 3 of the process.
At a hearing before Travis Myren, the Dane County Chief
Administrative Officer and Director of Administration, the
Union presented arguments in Xiong’s defense and requested
that he be suspended, rather than terminated. Myren, citing
concerns that Xiong was no longer certified to perform his job
duties and finding that his work rule violations represented a
“gross violation of trust,” denied the appeal. Faced with the
decision of whether to pursue arbitration, the Union board met
with Xiong and allowed him to present his side of the griev-
ance once more. Ultimately, the Union board voted unani-
mously not to arbitrate Xiong’s case. After rejecting a severance
and benefits offer by the County in exchange for dropping the
grievance, Xiong filed the underlying action against the Union,
the Department, and Fischer.
At the close of discovery, the parties filed cross motions for
summary judgment. As a preliminary matter, the district court
6 No. 14-2587
noted that Xiong did not follow local court rules. Pursuant to
these rules, if a nonmoving party disputes a fact, the non-
moving party must state its own version of the fact and
support that version with evidence. See Rule II(D), Procedure
to be Followed on Motions for Summary Judgment (W.D.
Wis.). Although Xiong listed the defendants’ facts that he
agreed with, he did not respond to a number of others in
accordance with this local rule. The court found that Xiong’s
non-response to certain proposed findings of fact submitted by
the defendants failed to raise a genuine dispute and accepted
as undisputed all of the defendants’ proposed facts. The
district court granted the defendants’ motions for summary
judgment. This appeal followed.
II. ANALYSIS
Xiong contends that the district court erroneously granted
summary judgment in favor of Fischer, the Department, and
the Union. We review this grant de novo, viewing all evidence
in the light most favorable to the nonmoving party; summary
judgment will be upheld if the record reveals “no genuine
issue of material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby,
477 U.S. 242 (1986).
A. Breach of the Duty of Fair Representation
Xiong alleges that the Union failed to fulfill its duty to fairly
represent him throughout the grievance process when it
bypassed steps 1 and 2 of the grievance process and refused to
take his grievance to arbitration. It is well-established that
labor unions owe a duty of fair representation to their mem-
bers. See Clark v. Hein-Warner Corp., 99 N.W.2d 132, 136–37
No. 14-2587 7
(Wis. 1959) (holding that unions have an implied fiduciary
duty of fair representation); Mahnke v. Wis. Emp’t Relations
Comm., 225 N.W.2d 617 (Wis. 1975) (adopting federal precedent
in analyzing claims for breach of the duty of fair representa-
tion, as articulated in Vaca v. Sipes, 386 U.S. 171, 190 (1967));
Vaca, 386 U.S. at 182 (explaining that the duty of fair represen-
tation serves as a “bulwark to prevent arbitrary union conduct
against individuals stripped of traditional forms of redress”).
However, unions are afforded considerable latitude and a wide
range of reasonableness in deciding whether to pursue a
grievance through arbitration. Mahnke, 225 N.W.2d at 622
(citing Humphrey v. Moore, 375 U.S. 355 (1964)). Accordingly, a
union’s decision to refuse to process or pursue an employee’s
grievance any further breaches its duty of fair representation
“only when a union’s conduct toward a member of the
collective bargaining unit is arbitrary, discriminatory or in bad
faith.” Mahnke, 225 N.W.2d at 622 (quoting Vaca, 386 U.S. at
190).
Xiong’s claim that the Union’s decision to bypass steps 1
and 2 and proceed directly to Step 3 was arbitrary is unpersua-
sive. Whether the Union acted arbitrarily “requires inquiry into
the objective adequacy of union action.” Serv. Emps. Int’l Union
Local No. 150 v. Wis. Emp’t Relations Comm., 791 N.W.2d 662,
668 (Wis. Ct. App. 2010) (citing Trnka v. Local Union No. 688,
United Auto., Aerospace & Agric. Implement Workers, 30 F.3d 60,
63 (7th Cir. 1994)). See also Serv. Emps. Int’l Union, 791 N.W.2d
at 669 (citing Airline Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67
(1991) for the proposition that a “union’s actions are arbitrary
only if, in light of the factual and legal landscape at the time of
the union’s actions, the union’s behavior is so far outside a
8 No. 14-2587
‘wide range of reasonableness’ as to be irrational”). The record
indicates that the Union often proceeded directly to Step 3 in
cases where the first two levels of review had already been
involved in the disciplinary decision. Here, the Union deter-
mined that the best course of action was to bypass steps 1 and
2 because the individuals who would process Xiong’s griev-
ance at each of those respective stages, Fischer and Green, had
already made a final decision regarding Xiong’s termination
and were unlikely to change course on appeal. This conclusion
was informed by the Union’s first-hand knowledge of the
circumstances surrounding Xiong’s termination: not only was
the Union present during Fischer’s pre-disciplinary meeting
with Xiong—where Xiong admitted to the allegations against
him—but the Union was told by Genter, one of Fischer’s
superiors, that the matter was out of his hands and the decision
to terminate Xiong had been made “far above” him. Based on
this information, it was reasonable for the Union to believe that
pursuing steps 1 and 2 would be unproductive, and to appeal
the matter directly to the County’s Director of Administration.
Xiong’s second argument—that the union’s decision not to
advance his grievance to arbitration (Step 4) was arbi-
trary—also fails. A union’s conduct is arbitrary if it ignores a
meritorious grievance or processes a grievance in a perfunctory
manner, but an employee does not have an absolute right to
advance a grievance to arbitration. Vaca, 386 U.S. at 191;
Coleman v. Outboard Marine Co., 285 N.W.2d 631, 635 (Wis.
1979). Here, the Union was in regular contact with Xiong and
represented him at every turn of the termination process. Not
only was the Union well-aware of the charges against Xiong,
the Union also knew that the County had denied Xiong’s
No. 14-2587 9
Step 3 grievance because his conduct amounted to a “gross
violation of trust” and needed to be “treated with the highest
degree of severity.” Moreover, the Union discovered that
Xiong had not passed his functional screen test and that,
according to state policy, Xiong would not be allowed to take
any remedial measures in order to become certified to perform
his work with the Department. Although the Union advocated
for a transfer so that Xiong could continue to work with the
Department in a capacity that did not require functional screen
test certification, the Department denied this request, explain-
ing that Xiong’s conduct was too serious to excuse and he
would have been terminated regardless of his test score.
Regardless, the Union still afforded Xiong a final opportunity
to present his case before the board before deciding not to
pursue arbitration, as well as negotiated a favorable separation
agreement that would help mitigate the loss of his health
insurance. Taken as a whole, the record shows that the Union’s
refusal to arbitrate Xiong’s grievance was reasonable, and
Xiong has failed to adduce any evidence from which a jury
could conclude the Union disregarded his rights or failed to
adequately represent him.
B. Breach of the Dane County Civil Service Ordinance
Xiong alleges that the manner in which he was terminated
violated the Dane County Civil Service Ordinance. Section
18.13 of this ordinance provides that “any appointing authority
may … discharge an employee.” Section 18.04(1) defines an
“appointing authority” as “any county board, commission,
committee, institution, agency, elected official, or department
head that has been granted authority to hire employees in the
county civil service.” It is undisputed by the parties that Green,
10 No. 14-2587
not Fischer, was the proper “appointing authority” with the
power to terminate Xiong. The parties also agree that Fischer,
in consultation with the Employee Relations department and
her supervisors, Sanders and Genter, composed and signed the
letter informing Xiong that he had been terminated. Xiong
contends that, in doing so, Fischer exceeded her authority in
violation of the ordinance.
Xiong fails to adduce sufficient evidence to support this
claim. Xiong focuses much of his argument on whether
“Fischer [has] the authority to signed [sic] a termination letter
after consulting with 3 level [sic] of management above her,
but not the appointing authority, who is Green.” However, the
fact that Fischer signed the termination notice is not sufficient
to sustain a reasonable inference that Xiong’s termination
violated the terms of the Dane County Civil Service Ordinance.
The ordinance states that whenever an appointing authority
“decides to take action” against an employee, written notice
shall either be mailed to the employee’s last known address or
given to the employee within two business days of the action
being taken. As far as what is required of the written notice, the
ordinance only states that the notice shall explain the em-
ployee’s right to appeal and describe the reasons for the action.
Critically, the ordinance does not require the appointing
authority to sign, write, or personally deliver the notice, nor
does it prevent someone other than the appointing authority
from doing so. Accordingly, Xiong has no claim based on the
fact that Fischer relayed the final decision to him in the
termination letter.
The real question is whether or not Green authorized the
decision to terminate Xiong. Once again, Xiong fails to identify
No. 14-2587 11
sufficient facts from the record to support the reasonable
inference that his termination violated the terms of the Dane
County Civil Service Ordinance. Xiong contends that it is
“undisputed that [Fischer] made the decision” because she
used the words “I” and “me” throughout the termination
letter. Specifically, Xiong takes issue with a sentence that reads,
“I have determined that you have violated the following work
rules.” But this evidence does not bear on whether Fischer
made the final decision to terminate Xiong. Fischer never states
in the letter that she decided to terminate Xiong; she writes
only that “[b]ecause you do not have the necessary qualifica-
tions … and because you have violated the above work rules,
you are being terminated effective Friday June 1, 2012.” This
language does not imply that Fischer made the decision to
terminate Xiong; rather, it shows beyond a reasonable dispute
that Fischer’s letter merely relayed the final determination.
Xiong also points to the fact that Fischer never personally
consulted with Green prior to writing the termination letter.
While this detail is not insignificant, it is the role of this court
to examine the record as a whole and determine if it contains
sufficient evidence—as opposed to evidence that is merely
colorable—to raise a genuine issue for trial. See Anderson, 477
U.S. at 249–50 (citations omitted) (“[T]here is no issue for trial
unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. If the evi-
dence is merely colorable … summary judgment may be
granted.”). It is undisputed that Fischer consulted with three
levels of upper management before delivering the notice of
termination to Xiong. It is also clear that Green was copied on
both the May 22 letter, which described the serious allegations
12 No. 14-2587
against Xiong, and the June 1 termination notice. Finally, and
perhaps most importantly, Xiong admits that Genter, who
works directly below Green, told the Union that the decision
to terminate Xiong’s employment was “out of his hands” and
was made “far above” him, suggesting that an individual
higher than Fischer, Sanders, and Genter made the decision.
Based on this record evidence as a whole, even when viewed
in the light most favorable to the plaintiff, Xiong cannot
establish a genuine issue of a material fact with respect to his
claim that his termination violated the terms of the Dane
County Civil Service Ordinance.
C. Due Process Violations
We now turn to Xiong’s constitutional claims against the
Union, Fischer, and the Department, which he brings pursuant
to 42 U.S.C. § 1983. Suits under § 1983 are meant to deter state
actors from using the “color of state law” to deprive individu-
als of rights guaranteed by the Constitution. Fries v. Helsper,
146 F.3d 452, 457 (7th Cir. 1998). Thus, in order to bring a claim
under this section, the plaintiff must show two elements: (1)
the party against whom the claim is brought qualifies as a
“person acting under the color of state law”; and (2) the
conduct alleged amounted to a deprivation of rights, privi-
leges, or immunities under the Constitution or the laws of the
United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981) (over-
ruled in part on other grounds, Daniels v. Williams, 474 U.S. 327
(1986)).
Xiong alleges that the Union violated his Fourteenth
Amendment right to due process when it prohibited him from
arbitrating his grievance. As a general matter, “unions are not
No. 14-2587 13
state actors; they are private actors.” Hallinan v. Fraternal Order
of Police of Chicago Lodge No. 7, 570 F.3d 811, 815 (7th Cir. 2009).
Nevertheless, conduct of private actors may, in some cases,
amount to “state action” where the deprivation is “caused by
the exercise of some right or privilege created by the state … or
by a person for whom the state is responsible” and “the party
charged with the deprivation … may fairly be said to be a state
actor.” Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 937 (1982).
“A private defendant acts ‘under color of’ state law for
purposes of Section 1983 when [it] is a ‘willful participant in
joint action with the State or its agents.’” Malak v. Associated
Physicians, Inc., 784 F.2d 277, 281 (7th Cir. 1986) (quoting Dennis
v. Sparks, 499 U.S. 24, 27 (1980)).
To succeed against the Union, Xiong must allege facts that
show a sufficient nexus between the state and the Union so that
the Union’s alleged infringement of Xiong’s federal rights is
“fairly attributable to the state.” Lugar, 457 U.S. at 937. See also
Hallinan, 570 F.3d at 815–16 (describing the numerous situa-
tions in which the Court has found that private conduct took
on the color of state law); Jackson v. Metro. Edison Co., 419 U.S.
345 (1974). In his complaint, Xiong essentially alleges that the
Union and the County wanted to maintain their collective
bargaining relationship without incurring additional costs, so
they conspired to limit the ability of County employees to
invoke arbitration. However, even putting aside the fact that
the CBA grievance procedure was not mandatory (Xiong could
have elected to pursue a civil service appeal instead), this
argument is not persuasive. It is well established that “a bare
allegation of a conspiracy between private and state entities is
insufficient to bring the private entity within the scope of
14 No. 14-2587
§ 1983.” Messman v. Helmke, 133 F.3d 1042, 1045 (7th Cir. 1998).
Furthermore, although the CBA creates a grievance mechanism
in which the County and the Union agree to participate, this
jointly negotiated procedure is not sufficient on its own to
show a close nexus between the Union and the state. See
Driscoll v. Int’l Union of Operating Eng’rs, Local 139, 484 F.2d
682, 690 (7th Cir. 1973) (“[G]overnmental regulation or
participation in some of the affairs of unions does not conse-
quently make every union activity so imbued with governmen-
tal action that it can be subjected to constitutional restraints.”);
Hallinan, 570 F.3d at 818. As Xiong has not identified any facts
showing that the Union acted under the color of state law
when it refused to arbitrate Xiong’s grievance—such as
evidence that the Union “acted as a state instrumentality,
performed traditionally exclusive sovereign functions, or [was]
compelled or even encouraged by the state” to refuse to
arbitrate Xiong’s claims, Leahy v. Bd. of Trs. of Cmty. Coll. Dist.
No. 508, 912 F.3d 917, 921 (7th Cir. 1990)—Xiong’s § 1983 claim
against the Union must fail.
Xiong’s § 1983 claims against the Department and Fischer
fare no better. As a preliminary point, Xiong brought his § 1983
claims against Fischer in her “official capacity.” Official
capacity suits “generally represent only another way of
pleading an action against an entity of which an officer is an
agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). Since an
official capacity suit against Fischer would be redundant, given
that the Department is a defendant as well, the district court
gave Xiong the benefit of the doubt and construed the com-
plaint as being against Fischer in her individual capacity. Based
on the facts alleged here, we need not discuss the propriety of
No. 14-2587 15
the district court’s decision in that regard because whether or
not Xiong intended to bring his § 1983 claim against Fischer in
her individual capacity does not impact our analysis.
Xiong alleges that Fischer and the Department violated his
right to due process in failing to comply with § 18.13 of the
Dane County Civil Service Ordinance. As previously dis-
cussed, this section relates to termination procedures. To state
a claim for a due process violation, Xiong must first show that
he was deprived of a protected property interest. Wallace v.
Tilley, 41 F.3d 296, 299 (7th Cir. 1994). Once he has done so, the
inquiry turns to whether the deprivation was constitutionally
sufficient. Id. at 299. Here, neither the Department nor Fischer
dispute that Xiong had a protected property interest in his
employment with the Department, so we will focus only on
whether Xiong received adequate due process during the
termination proceedings.
Xiong argues that he did not receive adequate due process
during the pre-termination proceedings with the Department.
Specifically, he contends that he did not receive sufficient
notice of the May 24 pre-disciplinary meeting because he only
received written notice a few hours prior. We find this argu-
ment unpersuasive. A pre-termination proceeding is essentially
“a determination of whether there are reasonable grounds to
believe that the charges against the employee are true and
support the proposed action,” Cleveland Bd. of Educ. v. Loude-
rmill, 470 U.S. 532, 545–46 (1985), and an employer satisfies the
requirements of due process if the employee receives: “(1) oral
or written notice of the charges; (2) an explanation of the
employer’s evidence; and (3) an opportunity to tell his side of
16 No. 14-2587
the story.” Bodenstab v. Cnty. of Cook, 569 F.3d 651, 664 (7th Cir.
2009). The purpose of requiring notice of pre-termination
proceedings is to permit the employee to gather his thoughts
about the allegations against him and formulate a response. See
Staples v. City of Milwaukee, 142 F.3d 383, 386 (7th Cir. 1998).
Here, the record indicates that Xiong was afforded an
opportunity to review the charges against him and formulate
a response. Fischer’s May 22 letter to Xiong, which was sent to
the Union as well, detailed numerous concerns about his job
performance and several potential workplace violations, and
informed him of the upcoming pre-disciplinary meeting on
May 24. While Xiong did not receive this written notice until
several hours before the pre-disciplinary meeting, he received
oral notice of its contents on May 23 through Gravel, who
spoke to Xiong by phone about the allegations surrounding his
workplace conduct. Xiong also had an opportunity to meet
with Gravel and his Union steward on May 24, prior to the pre-
disciplinary meeting, in order to discuss the concerns articu-
lated in Fischer’s letter and formulate a response. Finally,
Fischer again laid out her concerns about Xiong’s work
performance at the May 24 meeting and Xiong, who was given
a chance to respond to the allegations, admitted to the conduct
that led to his termination. Taken as a whole, these facts
indicate that Xiong was afforded adequate due process
throughout the pre-termination phase.
Xiong also argues that he did not receive adequate due
process throughout the post-termination proceedings because
Fischer and the Department bypassed steps 1 and 2 of the
grievance process. However, both the record and the law
prevent Xiong from succeeding on this claim. To begin with,
No. 14-2587 17
Xiong’s claim against the Department is misplaced, as the CBA
between the Union and the County places the onus to initiate
and continue the grievance appeal procedure on the employee
and the Union. The CBA imposes no duty on the Department
to do anything until the employee or the Union make an oral
request to begin the process at Step 1 and a written request to
continue the appeal at Step 2. The record does not contain any
evidence that the Department forced the Union to bypass steps
1 and 2 of the grievance process in Xiong’s case, nor is there
any evidence to support Xiong’s assertion that the Union asked
for steps 1 and 2. Rather, the evidence shows that the Union
deliberately made a choice to bypass steps 1 and 2, believing
that these measures would be counterproductive.
Furthermore, even if the evidence showed that the Union
bypassed steps 1 and 2 of the grievance process at the Depart-
ment’s insistence, Xiong’s due process claim would still fail. To
begin with, failure to comply with state procedures does not
automatically equate to a violation of Xiong’s due process
rights. Mann v. Vogel, 707 F.3d 872, 882 (7th Cir. 2013). While
the requirements of due process vary with the particulars of
the proceeding, it is well-established that the essential require-
ments of due process are notice and an opportunity to be
heard. Loudermill, 470 U.S. at 542. In this case, Xiong was
afforded a hearing in front of Travis Myren, the Dane County
Chief Administrative Officer and Director of Administration,
at which he was represented by the Union and given the
opportunity to present his side of the story. Unlike Fischer and
Green, who would have heard Xiong’s grievance for a second
time at steps 1 and 2, respectively, Myren had not played any
role in the pre-termination proceedings, nor in the initial
18 No. 14-2587
decision to terminate Xiong. By proceeding directly to Step 3,
therefore, Xiong gained the benefit of an impartial decision-
maker in addition to being afforded a full hearing. Such
process more than meets the demands of the Constitution.
Moreover, Xiong’s claim also fails because he cannot show that
the Union breached its duty of fair representation. See Vaca, 386
U.S. at 186 (holding that a “wrongfully discharged employee
may bring an action against his employer in the face of a
defense based upon the failure to exhaust contractual reme-
dies” as long as the employee can “prove that the union
breached its duty of fair representation in its handling of the
employee’s grievance”); Mahnke, 225 N.W.2d at 623.
Because Xiong has not provided any evidence from which
a jury could conclude that his due process claim against the
Department, nor any other due process argument that he
raises, has merit, the decision of the district court is
AFFIRMED.