Opinion
4:99CV3315
November 17, 2000.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Following the plaintiff's termination from his position as staff psychiatrist at the Lincoln Regional Center in Lincoln, Nebraska, on December 13, 1995, the plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 alleging that his termination violated his procedural due process rights under the Constitutions of the United States and the State of Nebraska (filing 1). The defendants filed a motion to dismiss, filing 9, which I converted into a motion for summary judgment. Now that the parties have had an opportunity to submit documents and materials permitted under Rule 56 of the Federal Rules of Civil Procedure, I may rule upon the defendants' converted motion. I find that the plaintiff's claim is not completely barred by the doctrine of res judicata, and the issues raised by the plaintiff are not precluded by earlier state personnel board findings. However, because the defendants are entitled to qualified immunity, the defendants' motion for summary judgment must be granted.
I. BACKGROUND
On February 4, 1980, the plaintiff began his employment with the Nebraska Department of Public Institutions [DPI], which has since been renamed the Nebraska Department of Health and Human Services, at a treatment institution for persons with mental illnesses called the Lincoln Regional Center [LRC]. At all material times, defendant Higgins was the Medical Director for DPI, defendant Zinn was the Chief Executive Officer of the LRC, and defendant Rajendran was the LRC Clinical Director. On September 21, 1995, the plaintiff was suspended when three allegations were raised against his job performance. The first allegation focused upon the plaintiff's actions in connection with the escape of a patient, the second involved the plaintiff's objection to the implementation of a particular patient-dangerousness-assessment procedure, and the third alleged a failure to maintain satisfactory working relationships with certain co-workers. On the following day, DPI provided the plaintiff with a written notice of allegations authored by defendant Rajendran. This written notice stated that a meeting "to allow you to present any mitigating information about these allegations, or to present reasons why disciplinary action should not be taken" would be held on September 28, 1995. (Defendants' Evidence Index, Ex. 1, Attachment 2). The written notice also itemized the evidence that DPI had accumulated relative to each allegation, although it appears that the plaintiff was not actually provided with copies of these evidentiary documents prior to the meeting. At this meeting, the plaintiff was questioned at length regarding his explanations for the allegations against him. (Plaintiff's Supp. Index of Evidence, Index #5).
On November 13, 1995, the plaintiff received an amended notice of allegations. This document added new allegations that the plaintiff failed to provide required information to the LRC and that the plaintiff falsified his application for reappointment to the medical staff. Again, evidence supporting these allegations was listed in this notice. A meeting was held on the following day, and there is evidence that the scope of the meeting was largely confined to the two new allegations. (Plaintiff's Supp. Index of Evidence, Index #3).
Finally, the plaintiff received a Personnel Action Notification dated December 12, 1995, from defendant Higgins. The notification advised the plaintiff that findings of support for each of the first three allegations justified his dismissal, although the two more recent allegations were found to be unsubstantiated. The dismissal was determined to be effective as of September 22, when the plaintiff was first placed on investigatory suspension.
The plaintiff appealed both his investigatory suspension and his termination to the Nebraska State Personnel Board. The plaintiff's appeal of his termination was dismissed by the Board as untimely. However, on September 15, 1997, the Board unanimously adopted the hearing officer's recommended decision on the plaintiff's appeal of his suspension. In that decision, the Board identified the four issues before it as (1) whether the investigatory suspension was proper; (2) whether the actions taken by the department were appropriate with respect to the three allegations and the investigatory suspension; (3) whether the department had the power to retroactively terminate Dr. Chung at the conclusion of his investigatory suspension; and (4) whether Dr. Chung was due back pay and benefits for the period of the investigatory suspension. The Board concluded that DPI did not show that Dr. Chung committed the acts alleged by a majority of the evidence, that there was no showing that Dr. Chung violated certain specified sections of the Nebraska Classified System Personnel Rules and Regulations, that there was insufficient evidence to support a finding that DPI acted in good faith and for cause in suspending Dr. Chung for three months, and that the retroactive termination of Dr. Chung was improper. As a result, Dr. Chung's termination date was changed from September 21, 1995, to December 13, 1995, and he was awarded all wages and benefits he would have received during this time period, less earnings from other employment or unemployment compensation.
On January 28, 1998, the plaintiff filed a complaint in the United States District Court for the District of Nebraska naming the Department of Health and Human Services, formerly the Department of Public Institutions, as defendant. See Chung v. Nebraska Department of Health and Human Services, 4:98CV3021. The plaintiff alleged that his termination from the LRC was based on his race or national origin. On January 29, 1999, a jury returned a verdict in favor of the defendant. The present action, which alleges that the plaintiff's termination violated his due process rights, was filed on December 7, 1999.
The defendants' motion for summary judgment raised three issues that were partially addressed in my order dated June 6, 2000 (filing 17). First, the defendants argued that the issues presented in the complaint were decided in this court in the plaintiff's previous federal suit and, therefore, the doctrine of res judicata precludes their relitigation. The doctrine of res judicata bars relitigation of a claim if "(1) the prior judgment was rendered by a court of competent jurisdiction, (2) the prior judgment was a final judgment on the merits, and (3) the same cause of action and the same parties or their privies were involved in both cases." White v. Kelsey, 935 F.2d 968, 969 (8th Cir. 1991) (citing Murphy v. Jones, 877 F.2d 682, 684 (8th Cir. 1989)). In this case, the parties have agreed that the first two elements are satisfied. With respect to the sameness of the cause of action, I found that the two actions involve the same common nucleus of facts and therefore are the same for purposes of res judicata. With respect to the privity of the parties, I found that, to the extent that the plaintiff is suing the defendants in their official capacities, the defendants are in privity with the Nebraska Department of Health and Human Services for purposes of res judicata, but, to the extent that the plaintiff is suing the defendants in their individual capacities, they are not. Although I did not clearly specify this in my prior order, this analysis applies equally to the argument that the State Personnel Board decisions have res judicata effect upon the present action. These findings dispose of the res judicata issue for the purposes of the motion now before me.
In the hearings before the Nebraska State Personnel Board, the named defendant was the Nebraska Department of Public Institutions. The requirement that for a claim to be precluded by the doctrine of res judicata, the same parties or their privies must have been involved in both cases is therefore not met as to the named defendants in their individual capacities.
The second issue raised by the defendants' motion is whether under the doctrine of full faith and credit, the Nebraska State Personnel Board's findings should be given "issue preclusion" effect in this case. Without the record of this state proceeding before me as I wrote my order dated June 6, 2000, I declined to determine whether the decision of the Personnel Board would bar the plaintiff from relitigating the issues or whether the administrative proceeding complied with the requirements of the due process clause. As I have now had an opportunity to review the transcript of the proceedings before the Personnel Board and the Board's unanimous decision, this issue is ripe for resolution.
Finally, the defendants argue that the plaintiff's claim is barred by the doctrine of qualified immunity. To survive the defendants' qualified immunity defense on motion for summary judgment, the plaintiff must allege a violation of a "clearly established" constitutional right, and he must set forth specific facts and evidence creating a genuine issue of fact as to the reasonableness of the government officials' alleged wrongful conduct. Since the defendants did not dispute that the plaintiff was deprived of a constitutionally protected interest when his employment was terminated, I found that the first element of the two-part inquiry was satisfied for purposes of this motion. The question of whether the pretermination procedures provided to the plaintiff were constitutionally sufficient (i.e., the defendants acted reasonably in light of clearly established law) remains to be determined. Although I found that the evidence indicated that the defendants acted reasonably in light of the preexisting law, I decided to allow the plaintiff an opportunity to present evidence that he was not given a meaningful opportunity to respond to the allegations against him.
The issues to be resolved presently are (1) whether the decision of the Personnel Board bars the plaintiff from litigating his claims, and, if so, whether the board proceeding complied with the requirements of the due process clause; and (2) whether the pretermination procedures provided to the plaintiff were constitutionally sufficient. Each of these issues will be addressed in turn.
II. STANDARD OF REVIEW
A motion for summary judgment shall be granted by the court when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57 (citations omitted).
III. ANALYSIS A. Issue Preclusion
The defendants argue that the Nebraska State Personnel Board has already decided the issues in this case and, therefore, the doctrine of "full faith and credit" precludes their relitigation in this court. The plaintiff clearly prevailed in his appeal to the Board, which renders the defendants' argument that the Personnel Board decision should be given preclusive effect in this matter somewhat unusual. At any rate, as I indicated in my prior order, to determine whether the personnel board decision should receive preclusive effect, I must first determine whether that decision would bar the plaintiff from litigating his claims in the state courts of Nebraska. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466 (1982). Second, if so, I must then determine whether the plaintiff had a "full and fair opportunity" to litigate his claim in the state proceeding. See Butler v. City of North Little Rock Arkansas, 980 F.2d 501, 503 (8th Cir. 1992).
The first phase of this inquiry involves the application of state law to determine the preclusive effect of the Board's decision. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). In Nebraska, the following four conditions must be met in order for issue preclusion to apply: (1) the identical issue was decided in a prior action; (2) there was a final judgment on the merits; (3) the party against whom the rule is applied was a party or a privity to the party to the prior action; and (4) there was an opportunity to fully and fairly litigate the issue in the prior action. State v. Young, 3 Neb. App. 539, 544, 530 N.W.2d 269, 273-274 (1995). It appears that a Personnel Board proceeding can qualify as a "prior action" under Nebraska law. Scott v. Mattingly, 241 Neb. 276, 281, 488 N.W.2d 349, 351-52 (1992) ("An unreviewed administrative hearing can preclude later litigation on the same issues."). However, contrary to the defendants' current position, it does not seem that the issues decided in the Board hearing on the plaintiff's suspension were identical to the issues in the present case. Although the relevant issues at the hearing and in the present case arise from a common nucleus of facts, the hearing was focused upon the plaintiff's suspension, and not his termination. The plaintiff's appeal that would have resulted in a determination of whether his termination was proper was dismissed as untimely, and there is evidence that the "suspension" hearing was restricted to the issues surrounding the suspension.See Plaintiff's Supp. Index of Evidence, Index #1 at 76:17 — 78:20. In fact, the plaintiff's motion to have the scope of the hearing expanded to include issues regarding his termination was denied. Id. The following exchange between counsel for DPI and the Hearing Officer is illustrative:
With the exception of a general statement at the beginning of the relevant section of their brief in support of their motion to dismiss, the defendants have not argued that the plaintiff's appeal of his termination has any issue-preclusion effect in this case, and none of the caselaw cited by the defendants would support such an argument. (Br. Supp. Mot. Dismiss. at 8.) Indeed, under the circumstances of the dismissal of the appeal, no substantive facts or issues were decided at this hearing that could possibly have any issue preclusion effect in this case. I have already determined that the appeals to the Nebraska State Personnel Board have only a limited res judicata effect in this case. See supra at I.
Mr. Hove: I'm going to object to this line of questioning because of the relevancy as to the investigatory suspension. It really goes to the termination action, which is not an issue here. And I'd like to make a continuing objection to it and then maybe go ahead and — —
The Hearing Officer: Would you care to explain that a little bit further as to why it doesn't go to the suspension?
Mr. Hove: Because the investigatory suspension, which was given was — it was given in order to investigate what happened. And the — what's being testified to goes to the reasons for the termination. The two separately — the two separate and distinct matters at issue here today is only the placing of Dr. Chung on investigatory suspension and whether or not that was a reasonable thing to do under the circumstances while an investigation was being made into the allegations.
(Plaintiff's Supp. Index of Evidence, Index #1 at 16:11-17:2). While this objection was overruled as to the line of questioning at issue, it is nevertheless interesting in light of the defendants' present position to review their prior arguments that the termination issue is separate and distinct from the suspension issues determined by the board. I find that under Nebraska law, the plaintiff's present claim is not precluded by the appeal of his suspension to the Nebraska State Personnel Board. Therefore, it is unnecessary to determine whether the plaintiff had a "full and fair opportunity" to litigate his claim in the state proceeding. The defendants' motion for summary judgment on the grounds of issue preclusion must be denied.
B. Qualified Immunity
As I noted in my prior order, qualified immunity protects government officials performing discretionary functions from monetary liability under § 1983 so long as the conduct at issue did not violate any clearly established law of which a reasonable person would have been aware. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). I must consider the facts to determine whether the defendants acted reasonably in light of the preexisting law. See,e.g., Hunter v. Bryant, 502 U.S. 224, 228 (1991).
Qualified immunity is not only an immunity from liability for civil damages in section 1983 actions, but also an immunity from a lawsuit itself. To survive the defendant's qualified immunity defense on motion for summary judgment, the plaintiff must set forth specific facts and evidence creating a genuine issue of fact surrounding the reasonableness of the government official's alleged wrongful conduct. Absent such evidence, the government official's defense of qualified immunity is nothing more than a question of law for the court and is properly decided on motion for summary judgment. Claims such as the one before me involve a two-step inquiry, wherein I must first determine whether there was a deprivation of a protected interest and, if so, I must determine whether the procedures attendant upon the deprivation were constitutionally sufficient. Vukadinovich v. Board of School Trustees of Michigan City Area Schools, 978 F.2d 403, 410 (7th Cir. 1992). Apparently, it is undisputed that the plaintiff was deprived of a protected interest when he was terminated from his employment. Thus, my analysis focuses upon the second step of the inquiry.
The plaintiff argues that the pre-termination due process rights were violated by the defendants. It is clear that a pre-termination hearing is required to be held, but this hearing need not be elaborate. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985). "The required scope of th[e] hearing depends on the other pre- and post-termination procedures available to the employee, but where . . . there is the opportunity for full administrative review once a termination decision has been reached, the pre-termination hearing can be somewhat truncated." Schacht v. Wisconsin Dept. of Corrections, 175 F.3d 497, 503 (7th Cir. 1999) (citing Loudermill, 470 U.S. at 545). The pre-termination hearing "need only `be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.'"Id. (quoting Loudermill, 470 U.S. at 545-46). Disclosure of all of the information known to the employer, all of the details of the charges, and the names of an employee's accusers or persons interviewed by the employer is not required. Schleck v. Ramsey County, 939 F.2d 638, 642 (8th Cir. 1991). The essential features of a pre-termination hearing consist simply of notice, an opportunity to respond to the charges, and an explanation of the employer's evidence. Loudermill, 470 U.S. at 546.
In converting the defendants' motion to dismiss into a motion for summary judgment, I granted the plaintiff an opportunity to investigate and present evidence that he was not given a meaningful opportunity to respond to the allegations of wrongdoing against him. In this case, there is no genuine issue as to whether the plaintiff was given notice and a chance to respond to the allegations against him. The evidence before me indicates that the defendants notified the plaintiff, in writing, of the allegations against him. (Plaintiff's Supp. Index of Evidence, Index #6). The evidence also indicates that a hearing was held wherein the plaintiff, who was accompanied by counsel, was given an opportunity to respond to the allegations. (Plaintiff's Supp. Index of Evidence, Index #5). Later, the defendants notified the plaintiff, in writing, of the new allegations. (Plaintiff's Supp. Index of Evidence, Index #8). Again a hearing was held, and the plaintiff and his counsel were given an opportunity to respond to the allegations. (Plaintiff's Supp. Index of Evidence, Index #3). There is also no genuine issue as to whether the plaintiff received an explanation of the defendants' evidence against him. Each time the plaintiff received a notification of charges against him, the specific evidence that the defendants were considering was listed in the notification, and the facts supporting each allegation were described in detail. (Plaintiff's Supp. Index of Evidence, Index #6,8).
The plaintiff argues that during the lengthy period of time between the hearings and his notice of termination, the defendants continued to investigate the allegations against him, and the plaintiff had no opportunity to respond to the allegations after the investigation was completed. Relying heavily on Martin v. Nebraska Department of Public Institutions, 7 Neb. App. 585 (1998), the plaintiff argues that pre-termination procedures are not constitutionally adequate when a discharged employee is not given a chance to respond to the employer's evidence after the conclusion of the investigation. The plaintiff argues that Nebraska substantive law, and Martin in particular, is controlling in this case on the issue of what process is due in a pre-termination hearing. For this proposition, the plaintiff relies on Blankenbaker v. McCook Public Power District, 940 F.2d 384, 385 (8th Cir. 1991). However, Blankenbaker and the case upon which it relies, Bishop v. Wood, 426 U.S. 341, 344 (1976) indicate that state law controls on the issue of whether a plaintiff has a property interest in his employment, not the process that is due in a pre-termination hearing. See Blankenbaker, 940 F.2d at 385;Bishop, 426 U.S. at 344. Contrary to the argument asserted by the plaintiff, the requirements of procedural due process are a matter of federal law, and state law is not controlling on this issue.Vitek v. Jones, 445 U.S. 480, 491 (1980).
Nevertheless, the analysis in Martin is persuasive, and I agree that if an investigation is conducted following the pre-termination hearing, and if evidence learned during the investigation is used as part of the basis for the termination, it cannot be said that the terminated employee received an explanation of the employer's evidence and a meaningful opportunity to respond as required by Loudermill.
In support of his argument that the defendants continued to investigate the allegations after the September 28 hearing, the plaintiff refers me to the following statements made by a Dr. Sookram and Human Resource Director Mulvaney at the conclusion of that hearing:
Dr. Sookram: Anything else? Well, listen, thank you very much. I think we gave Dr. Chung a lot of time because we wanted to understand these issues as comprehensive as we could. I think the next steps with this meeting is that now we need to internally discuss the information we have from all parties and then we need to make a decision and communicate that to Dr. Chung and we will be doing that, now what is the time?
Ms. Mulvaney: We have to conclude the investigation first and then make a decision on this. We would be getting back to Dr. Chung.
(Plaintiff's Supp. Index of Evidence, Index # 5 at 23). Although this excerpt does suggest that the investigation continued following the September 28 hearing, the evidence also shows that the subsequent investigation resulted in new allegations, and a second hearing was held regarding these new allegations wherein the plaintiff received similar notice, opportunity to respond, and explanation of the evidence that he received prior to the September 28 hearing. (Plaintiff's Supp. Index of Evidence, Index #10; Index #6; Index #7; Index #8). Nevertheless, taken in a light most favorable to the plaintiff, the evidence indicates that there is a genuine issue of fact as to whether there was an investigation into the original three allegations following the September 28 hearing.
However, in order for the plaintiff's procedural due process rights to have been violated under the Martin analysis advocated by the plaintiff himself, there must not only be evidence that the investigation occurred following the pre-termination hearing, but also there must be a showing that evidence gathered during the investigation was used as the basis for the termination decision, and that this information was unavailable to the employee at the time of the hearing. Martin, 7 Neb. App. at 592-93.
The plaintiff has not set forth evidence that raises a genuine issue that new information was discovered following either meeting that had not already been explained to him in the written notices he received, or that new evidence obtained following his hearing was used to support the decision to terminate him. Since the plaintiff has not provided any indication that anything other than the original evidence listed in his notification letters was considered in his termination, and since the evidence presented in those notification letters constituted an adequate explanation of the evidence, the plaintiff has failed to set forth any evidence that the defendants did not act reasonably in light of preexisting law.
On a final note, the plaintiff points out that following the appeal of his suspension, the State Personnel Board made several findings of fact and conclusions of law that strongly suggest that the plaintiff's termination was wrongful or in bad faith, and that the plaintiff would have succeeded on the merits of his appeal of his termination had that appeal been allowed. However, whether the defendants acted with bad faith is no longer relevant to the determination of whether the defendants acted reasonably in light of preexisting law, and are thereby entitled to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982). The United States Supreme Court has recognized that "[t]he Due Process Clause `is not a guarantee against incorrect or ill-advised personnel decisions.'" Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992) (quoting Bishop v. Wood, 426 U.S. 341, 350 (1976)). The plaintiff's failure to appeal the merits of his termination was not alleged to be caused by a deprivation of due process rights, but instead resulted from his own unfortunate failure to file a timely appeal.
In light of the forgoing, the defendants are entitled to qualified immunity, and their motion for summary judgment must therefore be granted.
IT IS ORDERED that the defendants converted motion to dismiss, filing 9, is granted on the ground that the defendants are entitled to qualified immunity.
JUDGMENT
In accordance with my Memorandum and Order on Defendants' Motion for Summary Judgment of today,
IT IS ORDERED that judgment is entered for the defendants.