Opinion
No. 18-35334
04-22-2019
PAUL CARAWAY, Plaintiff-Appellant, v. TOWN OF COLUMBUS; et al., Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 1:16-cv-00139-TJC MEMORANDUM Appeal from the United States District Court for the District of Montana
Timothy J. Cavan, Magistrate Judge, Presiding Argued and Submitted April 9, 2019 Seattle, Washington Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Plaintiff Paul Caraway, a former sergeant with the Columbus Police Department, appeals the district court's order granting summary judgment to the town, its Mayor, and its former chief of police (collectively, Defendants). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 1. We review de novo the district court's order granting Defendants' motion for summary judgment on Caraway's § 1983 due process claims. See Levine v. City of Alameda, 525 F.3d 903, 905 (9th Cir. 2008). "An essential principle of due process is that a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950)). To meet this requirement, the state must provide pre-termination notice with an explanation of its evidence, and an opportunity for the employee facing discharge to respond, either orally or in writing. See, e.g., Matthews v. Harney Cty. Sch. Dist. No. 4, 819 F.2d 889, 892 (9th Cir. 1987).
The parties are familiar with the facts and arguments on appeal, so we do not recite them here.
"[T]he existence of post-termination procedures is [also] relevant to the necessary scope of pretermination procedures." Loudermill, 470 U.S at 547 n.12. In some cases, "the inadequacy of post-termination process may itself be the source of a distinct due process violation." Clements v. Airport Auth. of Washoe Cty., 69 F.3d 321, 332 (9th Cir. 1995). Ultimately, a reviewing court applies the flexible Mathews v. Eldridge, 424 U.S. 319 (1976), framework to determine how much post-termination process is required in any given case. See Loudermill, 470 U.S. at 543 (analyzing due process requirements in light of Mathews); see also Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir. 1992) (applying Mathews to determine sufficiency of post-deprivation process).
We have also recognized that the termination of a public employee that includes publication of stigmatizing charges triggers due process protections. See Mustafa v. Clark Cty. Sch. Dist., 157 F.3d 1169, 1179 (9th Cir. 1998) (citing Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972)). If an employee's termination implicates this reputational liberty interest, "the employee must be given an opportunity to refute the stigmatizing charge." Id. "Failure to provide a 'name-clearing' hearing in such a circumstance is a violation of the Fourteenth Amendment's due process clause." Cox v. Roskelley, 359 F.3d 1105, 1110 (9th Cir. 2004).
Caraway does not, for constitutional purposes, challenge the sufficiency of Defendants' pre-termination procedures. We conclude that Caraway's statutory right to a post-termination hearing before the Columbus Police Commission—where he could have subpoenaed witnesses and testified publicly—affords adequate post-termination process. See Mont. Code Ann. § 7-32-4164(2) (West 2019). The process provided Caraway with an opportunity to challenge his discharge and to clear his name. Because Caraway has not exercised his statutorily guaranteed post-termination procedure, he cannot now claim a violation of his due process rights, particularly because there is no statute of limitations on his right to seek review with the Police Commission. See Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 969 (9th Cir. 2011). 2. Montana's Wrongful Discharge from Employment Act (WDEA) provides that a discharge "is wrongful" if "the employer violated the express provisions of its own written personnel policy." Mont. Code Ann. § 39-2-904(1)(c) (West 2019). We conclude that Mayor Woltermann's absence from Chief Pronovost's pre-termination interview with Caraway did not violate an express provision of any of the Town of Columbus's written personnel policies. We considered Caraway's additional assertions of policy violations, but conclude that none are "directly linked" with Caraway's termination for purposes of the WDEA. See Williams v. Plum Creek Timber Co., 264 P.3d 1090, 1097 (Mont. 2011).
AFFIRMED.