# James Loudermill v. Cleveland Board of Education, Richard Donnelly v. Parma Board of Education

> Court of Appeals for the Sixth Circuit · November 17, 1983 · 721 F.2d 550

URL: https://www.frixlaw.com/law-library/cases/9471425

## Case

- **Full name:** James LOUDERMILL, Plaintiff-Appellant, v. CLEVELAND BOARD OF EDUCATION, Et Al., Defendants-Appellees; Richard DONNELLY, Plaintiff-Appellant, v. PARMA BOARD OF EDUCATION, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** November 17, 1983
- **Citations:** 721 F.2d 550; 14 Educ. L. Rep. 903
- **Precedential status:** Published
- **Opinion:** Concurring in part by Wellford
- **Judges:** Merritt, Wellford, Timbers
- **Cited by:** 96 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WELLFORD, Circuit Judge,
concurring and dissenting.
I agree with that portion of the opinion holding that appellants’ failure to exhaust state judicial remedies does not require dismissal under the circumstances presented. I also concur in the statement in footnote 5 that Patsy v. Board of Regents, 457 U.S. 496 , 102 S.Ct. 2557 , 73 L.Ed.2d 172 (1982) “has not precluded the possibility of fashioning future exceptions to the no-exhaustion rule.. .. ” See Fair Assessment in Real Estate Association v. McNary, 454 *565 U.S. 100 , 102 S.Ct. 177 , 70 L.Ed.2d 271 (1981); Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981).
I would hold, however, that Donnelly is precluded from proceeding in this court after his identical claims in the Ohio State Courts were dismissed with prejudice by the Court of Common Pleas, this judgment was affirmed after a timely notice of appeal by the Ohio Court of Appeals, Eighth District, and appellant Donnelly’s motion for an order directing the court of appeals to certify its record was overruled by the Ohio Supreme Court. Donnelly was afforded an opportunity for further eye testing before his termination, received a full post-termination hearing before the Parma Civil Service Commission, and, as conceded, has been reinstated to his former job. See Barry v. Barchi, 443 U.S. 55 , 99 S.Ct. 2642 , 61 L.Ed.2d 365 (1979); Castorr v. Brundage, 674 F.2d 531, 536 (6th Cir.), cert. denied, - U.S. -, 103 S.Ct. 240 , 74 L.Ed.2d 189 (1982); Ciechon v. City of Chicago, 634 F.2d 1055 (7th Cir.1980).
Furthermore, I would hold that appellants have been afforded minimal due process requisites under the totality of circumstances in these cases. The property interest which appellants had in their continued state or public employment “was itself conditioned by the procedural limitations which had accompanied the grant of that interest.” 1 Arnett v. Kennedy, 416 U.S. 134, 155 , 94 S.Ct. 1633, 1644 , 40 L.Ed.2d 15 (1974). The procedures afforded Louder-mill and Donnelly under the Ohio Civil Service laws, in my view, were substantially equivalent to those afforded the federal employee, Arnett, 2 and they afforded reasonable redress if the basis for the purported termination were found to be erroneous. The Ohio Supreme' Court’s determination that the Ohio procedures comport with due process requirements, while not controlling, is significant. See Parfitt v. Columbus Correctional Facility, 62 Ohio St.2d 434 , 406 N.E.2d 528 (1980). Other similar state law procedures for termination of public employees have been held to comply with due process requirements. Webb v. Dillon, 593 F.2d 656 (5th Cir.1979), Ciechon v. City of Chicago, supra.
Vitek v. Jones, 445 U.S. 480 , 100 S.Ct. 1254 , 63 L.Ed.2d 552 (1980), relied upon in the majority opinion, applies to a liberty interest, rather than a property interest. The transfer to a state mental hospital in Vitek took place without any hearing requirement at any time for the prisoner. That such a procedure was held to deprive the prisoner of his liberty interest without due process is not persuasive in the instant situation. Deprivation of a liberty interest and deprivation of a property interest, even of the same person occasioned by the same act, are not the same. See Vanelli v. Reynolds School District No. 7, 667 F.2d 773, 781 (9th Cir.1982). 3 Santosky v. Kramer, 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982), involved standard-of-proof procedural requirements to be afforded natural parents of a child before the termination of their parental rights by the state. Something more than a “fair preponderance of the evidence” was required before a parent’s vital interest in his (or her) child could be cut off. That decision is not, in my view, particularly pertinent to the issues involved sub judice except the holding that minimum requirements of due process are a matter of federal law, a question about which there is no dispute in this case.
Neither does Logan v. Zimmerman Brush Co., 455 U.S. 422 , 102 S.Ct. 1148 , 71 L.Ed.2d 265 (1982), also cited by the majority opinion, mandate a pre-termination hearing. The Court there held:
What the Fourteenth Amendment does require, however, “is ‘an opportunity ... *566 granted at a meaningful time and in a meaningful manner,’ Armstrong v. Man-zo, 380 U.S. 545, 552 [ 85 S.Ct. 1187, 1191 , 14 L.Ed.2d 62 ] (1965) (emphasis added), ‘for [a] hearing appropriate to the nature of the case,’ Mullane v. Central Hanover Tr. Co., supra, [ 339 U.S. 306 ] at 313 [ 70 S.Ct. 652 at 656 , 94 L.Ed. 865 ].” Boddie v. Connecticut, 401 U.S. [371] at 378 [ 91 S.Ct. 780 at 786 , 28 L.Ed.2d 113 ].
Id. at 437, 102 S.Ct. at 1159.
In Logan, Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), and Barry v. Barchi, 443 U.S. 55 , 99 S.Ct. 2642 , 61 L.Ed.2d 365 (1979), are cited for the proposition that,
[a] post-termination hearing [is] permitted where the decision to terminate was based on a reliable pretermination finding (emphasis added).
Logan, 455 U.S. at 436 , 102 S.Ct. at 1158 .
Under the facts of these cases, I would conclude that as to both appellants there was a “reliable pretermination finding” that cause existed for the termination of Donnelly and Loudermill, and that each was afforded a due process hearing at a “meaningful time and in a meaningful manner.” See Armstrong v. Manzo, supra, and Mathews v. Eldridge, supra.
Accordingly, I would affirm the decision of the district court in both cases.
. It is acknowledged that this “conditional property interest” rationale did not have the support of a majority of the Court in Arnett .
. Five members of the Court (Justices Rehnquist, Burger, Stewart, Powell and Blackmun) found the post-termination hearing procedure in Arnett to be constitutionally adequate.
. In LoudermiU’s case, after a full hearing his termination was found to be justified. Under the rationale of Vanelli , his damages, if any, should be limited to those which occurred between the time of his termination and the time of the hearing afforded him before the referee of the Civil Service Commission.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471425. Public record. Not legal advice.