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.