Marcellino Pena v. Bob Kindler

United States Court of Appeals
For the Eighth Circuit
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No. 16-2756
___________________________
Marcellino Pena
lllllllllllllllllllll Plaintiff - Appellant
v.
Bob Kindler; Glen Strom; Freeborn County
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: March 7, 2017
Filed: July 20, 2017
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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Marcellino Pena, a former Freeborn County Assistant Jail Administrator,
appeals the district court’s1 adverse grant of summary judgment on claims related to
his termination. Specifically, he appeals as to a 42 U.S.C. § 1983 procedural due
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
process claim and as to a Minnesota statutory claim arising under the Peace Officer
Discipline Procedures Act, Minnesota Statutes § 626.89 (“PODPA”).2
Regardless of whether Pena held a constitutionally protected interest in his
employment, we conclude the process surrounding his termination satisfied the Due
Process Clause. Further, we conclude Pena was not entitled to the additional
protections of PODPA given his actual duties as Assistant Jail Administrator and
given the fact that Freeborn County (the “County”) neither charged him with the
duties of general law enforcement nor utilized his services for those purposes. We
therefore affirm the judgment of the district court.
I. Background
Long before the events giving rise to the present case occurred, Pena was
employed as a sheriff’s deputy in general law enforcement. Since 2008, however,
he was not employed as a sheriff’s deputy. Rather, he was employed and worked full-
time as Assistant Jail Administrator, a job that did not require a law-enforcement
license, arresting authority, or a weapon and that also did not entail general law-
enforcement duties. Pena nevertheless remained licensed by a state law-enforcement
board and was permitted to carry a County-issued firearm. He also remained a sworn
deputy, even though he was not employed as such on either a permanent or “on-call”
basis.
As Assistant Jail Administrator, Pena’s duties included overseeing various
contract services such as food and health services for the prisoners. When asked in
his deposition about his job duties as Assistant Jail Administrator, Pena responded,
2
PODPA provides enumerated protections such as mandatory disclosures and
procedural requirements for hearings related to the discipline of “peace officers” and
“part-time peace officers,” as defined in Minnesota Statutes § 626.84, subdiv. 1.
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“To improve the facility, bring in revenue, cut costs. Just overall improve the facility,
what I could do.” According to Pena, he performed well in this position and achieved
substantial cost savings for the County. Later, he suggested the County become a
service provider to the United States Department of Homeland Security’s Bureau of
Immigration and Customs Enforcement (“ICE”). The County followed his
suggestion, and he eventually became responsible for managing a contract with ICE
to transport and house immigration detainees.
While employed as Assistant Jail Administrator, Pena occasionally assisted in
the transportation of ICE detainees. According to Pena, the contract between the
County and ICE required licensed peace officers to handle transportation of ICE
detainees. In fact, the only function Pena served that arguably required him to
possess a law-enforcement license was the transport of these administrative detainees.
Pena, however, admits he was not ordered or instructed to assist in ICE detainee
transport. Similarly, the sheriff, Defendant Bob Kindler, denied having instructed
Pena to do so.
During his time as Assistant Jail Administrator, Pena allegedly harassed more
than one female employee. In addition, Pena publicly advocated for a candidate who
lost an election to Sheriff Kindler. Coworkers alleged that Pena advocated for his
preferred candidate while in the workplace. The County’s participation as a service
provider for ICE served as a key issue of disagreement between the candidates.
In June 2012, a supervisor formally reported Pena for harassment of a young
female employee. Sheriff Kindler began an investigation. After several different
witnesses reported other instances of misconduct by Pena, Sheriff Kindler suspended
Pena with pay effective July 21, pending resolution of the investigation. At that time,
Sheriff Kindler informed Pena of the general nature of the complaints. On July 23,
Pena met with Sheriff Kindler, a County administrator, and the County’s human
resources director. Pena was told he was being investigated for sexual harassment
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and was given a general description of the allegations against him. The investigation
continued, and on August 17, Pena received a letter summarizing the allegations. The
letter asked Pena to give a statement on August 23, and informed him he could
arrange to have legal counsel present.
In a letter dated August 22, Pena asked for a 14-day delay to secure counsel;
complained he did not have enough time after receiving the August 17 letter to secure
counsel; demanded access to materials such as interviews and recordings related to
the allegations; and complained he was unable to adequately prepare or defend
himself. He did not invoke PODPA by name. The County denied his request.
Pena appeared at the August 23 appointment without counsel and gave a
statement, admitting many of the allegations. Investigators completed their report.
In a September 4 letter, Sheriff Kindler told Pena there was sufficient evidence to
justify termination, and the County Board of Commissioners (the “Board”) would
consider his termination at a September 18 meeting. In a follow-up letter, Sheriff
Kindler informed Pena he could appear and defend himself at the meeting. Pena did
so. The Board considered the matter in closed session, then returned to open session
and voted to terminate Pena.
Subsequently, on October 18, 2012, Pena for the first time argued he was a
“peace officer” or a “part-time peace officer” entitled to the procedural protections
set forth in PODPA. The County determined Pena, employed as an Assistant Jail
Administrator rather than as a sheriff’s deputy, was not entitled to the procedural
protections of PODPA.
Pena appealed his termination to the Minnesota Court of Appeals through a
certiorari procedure. The Court of Appeals addressed its own jurisdiction, noting
specifically its inability to reach issues not contained in the record of termination.
Pena v. Freeborn Cty., No. A12-2007, 2013 WL 3868086, at *2 (Minn. Ct. App. July
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29, 2013). The Court of Appeals concluded the record was insufficient to show Pena
was entitled to the protections of PODPA. Id. at *4. The Court of Appeals also held
Pena did not have a property interest in continued employment. Id.
Pena then brought the present suit asserting a state-law claim for damages
under PODPA and several federal statutory and constitutional claims, including a 42
U.S.C. § 1983 claim alleging a due process violation based on a property interest in
his employment. The district court granted summary judgment for the defendants on
all claims. Pena limits his appeal to the PODPA and due process claims.
II. DISCUSSION
We review a grant of summary judgment de novo, viewing the record in the
light most favorable to the non-moving party. Am. Family Ins. v. City of
Minneapolis, 836 F.3d 918, 921 (8th Cir. 2016).3
A. Due Process
We need not determine whether Pena possessed a property right in his
continued employment because the process he actually received before and after his
termination satisfied the Due Process Clause. This conclusion is independent of any
claimed right to specific procedural protections under PODPA because
3
In the district court, the defendants asserted a res judicata argument,
characterizing the Minnesota Court of Appeals certiorari proceeding as precluding
the present action. The district court rejected the argument, finding the record and the
issues that could have been raised in the certiorari proceeding too limited to preclude
the current action. The defendants renew this argument on appeal. Given our
resolution of the parties’ arguments on the merits, we do not address the preclusion
argument. See Transcon. Ins. Co. v. W.G. Samuels Co., 370 F.3d 755, 758 (8th Cir.
2004) (“We may affirm a judgment on any ground raised in the district court . . . .”).
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constitutionally guaranteed procedural protections are not coextensive with state-
created procedural protections. Rather, if a state creates a property interest, the
Constitution alone defines the process that must be provided to protect that interest
pursuant to the Due Process Clause. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 541 (1985). As the Supreme Court stated:
If a clearer holding is needed, we provide it today. The point is
straightforward: the Due Process Clause provides that certain
substantive rights—life, liberty, and property—cannot be deprived
except pursuant to constitutionally adequate procedures. The categories
of substance and procedure are distinct. Were the rule otherwise, the
Clause would be reduced to a mere tautology. “Property” cannot be
defined by the procedures provided for its deprivation any more than can
life or liberty. . . . In short, once it is determined that the Due Process
Clause applies, “the question remains what process is due.” The answer
to that question is not to be found in the [state] statute.
Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
Here, Pena received notice of the general nature of the grievances against him
on July 21 or 23. He then received a detailed letter on August 17. At that time,
nearly a month had already passed during which he could have secured legal
representation. The August 17 letter provided notice and requested that he appear to
make a statement on August 23. On August 22, he sought and was denied a delay and
access to materials such as recordings and statements. He nevertheless appeared on
August 23 and gave a statement. He then attended the Board’s meeting nearly a
month later where he again had the opportunity to address the claims against him.
To determine whether the process afforded to protect a property right is
constitutionally sufficient, it is necessary to assess whether the process is
commensurate in scope with the right and the circumstances surrounding elimination
of the right. See, e.g., Sutton v. Bailey, 702 F.3d 444, 447 (8th Cir. 2012). In the
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employment context, the Eighth Circuit has had ample opportunity to develop a mode
of analysis, resulting in a legal landscape that calls for some type of pre-termination
hearing. See id. That pre-termination hearing, however, may involve less rigor if
there also exists an opportunity for a post-termination hearing:
[T]he Due Process Clause requires a pre-termination hearing in some
form, but if a post-termination hearing is also available, the
pre-termination proceedings “need not be elaborate. . . . The tenured
public employee is entitled to oral or written notice of the charges
against him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story.” [Loudermill, 470 U.S. at
545–46]. The primary purpose of this type of pre-termination hearing
is not to “definitively resolve the propriety of the discharge,” but to
serve as “an initial check against mistaken decisions. . . .” Id. at 545.
Following Loudermill, we have consistently held that, where post-
termination proceedings are available, “informal meetings with
supervisors” may be sufficient pre-termination hearings. Schleck v.
Ramsey Cnty., 939 F.2d 638, 641 (8th Cir.1991), quoting Riggins[ v. Bd
of Regents of the Univ. of Neb.], 790 F.2d [707,] 711 [(8th Cir. 1986)];
accord Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 902–03 (8th
Cir. 2000).
Sutton, 702 F.3d at 447.
Importantly, the process provided need not be akin to a court trial with the
various protections and access to evidence that such a forum entails. For example,
in Sutton, we held oral notice of an offending social media post coupled with “an
opportunity to present his side of the story” satisfied the Due Process Clause. Id. at
448. Also, although notice is required, there need not “be a delay between the notice
and the opportunity to respond accorded to a public employee.” Id. We therefore
conclude that the months-long pre-termination notice, the repeated opportunities for
Pena to tell his side of the story, the availability of the state’s post-termination
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certiorari-based review procedure, and Pena’s actual utilization of these opportunities
easily pass constitutional muster.
B. Applicability of PODPA
PODPA extends procedural protections to “licensed peace officers” and “part-
time peace officers” as those terms are specifically defined by statute. See Minn. Stat.
§ 626.89, subdiv. 1(c) (“‘Officer’ means a licensed peace officer or part-time peace
officer, as defined in section 626.84, subdivision 1, paragraphs (c) and (d), who is
employed by a unit of government.”); see also id. § 626.89, subdivs. 3–17 (listing
protections, creating a cause of action for damages against the governmental entity,
and providing for civilian review of disciplinary actions).4
4
Minnesota Statutes § 626.84, subdiv. 1, provides:
(c) “Peace officer” means:
(1) [A] an employee or an elected or appointed official of a
political subdivision or law enforcement agency [B] who is licensed by
the board, [C] charged with the prevention and detection of crime and
the enforcement of the general criminal laws of the state and [D] who
has the full power of arrest, and shall also include the Minnesota State
Patrol, agents of the Division of Alcohol and Gambling Enforcement,
state conservation officers, Metropolitan Transit police officers,
Department of Corrections Fugitive Apprehension Unit officers, and
Department of Commerce Fraud Bureau Unit officers, and the statewide
coordinator of the Violent Crime Coordinating Council; and
...
(d) “Part-time peace officer” means [A] an individual licensed by the
board [B] whose services are utilized by law enforcement agencies no
more than an average of 20 hours per week, not including time spent on
call when no call to active duty is received, calculated on an annual
basis, who has either [C1] full powers of arrest or [C2] authorization to
carry a firearm while on active duty. The term shall apply even though
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Pena argues he is a peace officer or, at the least, a part-time peace officer.
Focusing first upon the definition of “peace officer,” we conclude Pena meets all
requirements of subdivision (c)(1) other than the requirement we have labeled [C],
i.e., that the person be “charged with the prevention and detection of crime and the
enforcement of the general criminal laws of the state.” Pena was [A] employed by the
County and [B] licensed by the Board. Further, the County does not meaningfully
contest the assertion that Pena [D] possessed the full power of arrest. The fact that
Pena was a sworn deputy appears to speak to this power and may indicate his
availability to be hired for purposes of general criminal law enforcement. His status
as a sworn deputy, however, does not speak to his actual employment status, nor does
it speak to the duties or the specific tasks with which he actually was “charged.”
Pena asserts that he personally assisted in the transport of ICE detainees. He
argues this function demonstrates that he satisfies requirement [C]. In making this
argument, he claims that the ICE contract required a licensed peace officer to
transport detainees. By his reasoning, if the ICE contract required a licensed peace
officer to transport detainees, and if he, in fact, transported detainees, then he must
have been a licensed peace officer.5
the individual receives no compensation for time spent on active duty,
and shall apply irrespective of the title conferred upon the individual by
any law enforcement agency.
5
Throughout his brief and deposition testimony, Pena uses varying terms to
refer to law-enforcement personnel without indicating whether he is referring to the
specific statutory definitions at issue in this case. Not surprisingly, the defendants’
deposition responses reflect a similar looseness with commonly used everyday words
that happen also to be at the heart of the statutory interpretation question in this case:
officer, peace officer, licensed peace officer, authorized, sworn, etc. This looseness
with language gives rise to three arguments that we must reject. First, Pena refers to
the ICE contract as requiring “licensed peace officers” to transport detainees, but we
see no evidence tending to suggest the ICE contract incorporated the statutory terms
at issue in this case. Second, Pena seems to assert that his state-board licensure
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We see nothing to suggest the ICE contract incorporates Minnesota Statutes
§ 626.84. Moreover, there is no reason to conclude that the simple act of transporting
federal immigration detainees pursuant to a contract between the County and a federal
administrative agency somehow qualifies as “preventi[ng] and detecti[ng] . . . crime
and . . . enforc[ing] . . . the general criminal laws of the state.” Id. § 626.84, subdiv.
1(c)(1) (emphasis added). There is, after all, no reason to presume the immigration
detainees were suspected or had been accused of committing Minnesota offenses.
Further, even if performance under the contract to transport and house federal
administrative detainees could be characterized as “preventi[ng] and detecti[ng] . . .
crime and . . . enforc[ing] . . . the general criminal laws of the state,” Pena admits his
superiors did not instruct him to perform this function. Rather, Sheriff Kindler
testified without rebuttal that he did not instruct Pena to perform this function. The
only reasonable inference supported by the current record, then, is that Pena
unilaterally took upon himself the task of transporting the administrative detainees.
Given this necessary inference, it does not follow that Pena was “charged with”
transporting the contract detainees, much less “charged with preventi[ng] and
detecti[ng] . . . crime and . . . enforc[ing] . . . the general criminal laws of the state.”
Id. In reaching this conclusion, we view the term “charged” as unambiguous and as
meaning “hired to,” or, at a minimum, “instructed by superiors to,” as contrasted with
an employee’s personal election to take on unassigned duties.
should be deemed conclusive as to the applicability of PODPA. It is not. And third,
Pena points to various statements by Sheriff Kindler and Defendant Strom as
“admissions” that PODPA applies. No reasonable juror could view the defendants’
statements as intended to address conclusively the statutory provisions at issue herein.
More importantly, however, interpretation of statutory language is a question of law
for the court. See Wilbur v. State Farm Auto. Mut. Ins. Co., 892 N.W.2d 521, 523
(Minn. 2017). To the extent that we use the term “licensed peace officer” to describe
Pena’s characterization of the ICE contract, then, we are merely describing Pena’s
assertions.
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To the extent the term “charged” might be deemed ambiguous, however,
canons of statutory construction compel the same conclusion. See State v. Rick, 835
N.W.2d 478, 482 (Minn. 2013) (“[I]f a statute is susceptible to more than one
reasonable interpretation, then the statute is ambiguous and we may consider the
canons of statutory construction to ascertain its meaning.”). The separately listed
requirements of section 626.84, subdiv. 1(c)(1) must all be met. “Charged,”
therefore, cannot refer simply to a person’s status as being eligible to take an action
by virtue of a license. Any such interpretation would render the term “charged”
surplusage and redundant with the express requirements of [B] licensure and [D]
power of arrest. See In re Reichmann Land & Cattle, LLP, 867 N.W.2d 502, 509
(Minn. 2015) (“[W]e construe words and phrases according to their plain and
ordinary meaning, and we give effect to all of [the statute’s] provisions; no word,
phrase, or sentence should be deemed superfluous, void, or insignificant.” (second
alteration in original) (citations omitted)). Were we to interpret “charged” as argued
by Pena, such that it encompasses voluntary or unilateral acts apart from duties or
tasks imposed by a superior, the term would effectively be read out of the statute.
Quite simply, the definition does not refer to what a person, in fact, does or is
licensed to do. It refers to what the person is instructed or required to do.
Pena also argues he was, at the least, a “part-time peace officer.” The
definition for “part-time police officer” does not use the term “charged with” or
reference any particular category of duties. Rather, it uses the term “utilized by law
enforcement agencies” and places a cap on the number of hours per week a person
can be “utilized” and still be considered a part-time peace officer. Minn. Stat.
§ 626.84, subdiv. 1(d) (“part-time peace officer” requires that the person’s “services
are utilized by law enforcement agencies no more than an average of 20 hours per
week, not including time spent on call when no call to active duty is received,
calculated on an annual basis”).
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To the extent the term “utilized” can be interpreted as consistent with the term
“charged” in section 626.84, subdiv. 1(c)(1), Pena’s arguments fail for the reasons
just stated. To the extent the term utilized does not require duties to be assigned by
a superior or relate to the detection, prevention, or enforcement of the general
criminal laws of the state, Pena’s arguments fail for a different reason. Without such
a limitation, all service must be considered, and it is undisputed that he worked on a
full-time basis as Assistant Jail Administrator. Therefore, if the source of Pena’s
duties and the nature of his services as “utilized” by the County are immaterial, his
work in excess of 20 hours per week excludes him from the definition of a part-time
peace officer.
III. Conclusion
Because Pena received constitutionally sufficient process and is not entitled to
the additional procedural protections of PODPA, we affirm the judgment of the
district court.6
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6
Pena filed a motion to supplement the record with an attorney affidavit and a
deposition exhibit showing he was a sworn deputy. Because the fact he was a sworn
deputy is undisputed and because we acknowledge this fact above, we deny the
motion as moot.
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