holding that 9 procedural due process in the employment termination context does not require a 10 neutral and impartial decisionmaker at the pre-termination hearing, but only a right 11 of reply before the official responsible for the discharge
How later courts described this case
- holding that 9 procedural due process in the employment termination context does not require a 10 neutral and impartial decisionmaker at the pre-termination hearing, but only a right 11 of reply before the official responsible for the discharge
- explaining that the Loudermill Court suggested that its decision is an application of principles announced in Goss
- explaining that a defendant could be “so biased that the Loudermill ‘right-of- reply’ process is meaningless”
- “The limited, ‘right-of-reply’ pretermination hearing, as defined in Loudermill, is designed to invoke the employer’s discretion,’ his sense of fairness and mutual respect, his willingness to reconsider.”
Written by the judges who cited it.
The opinion
DAVID A. NELSON, Circuit Judge,
concurring.
I concur in the judgment and in the opinion Judge Merritt has written for the court, but write separately to record my understanding that Michigan law does in fact provide for the sort of “full, post-termination, adversary, trial-type hearing” that, as Judge Merritt has said, would “serve to ferret out bias, pretext, deception and corruption by the employer in discharging the employee.”
In Hawkins v. Common Council of Grand Rapids, 192 Mich. 276 , 158 N.W. 953 (1916), the Michigan courts nullified, on the ground of bias, the removal of an elected city treasurer. More recently it has been held that Michigan courts may enjoin a discharge that would not meet constitutional requirements. State Employees Association v. Department of Mental Health, 421 Mich. 152 , 365 N.W.2d 93, 100 (1984).
The plaintiff in the case at bar had the burden of pleading and proving the inadequacy of his remedies under state law. Wilson v. Beebe, 770 F.2d 578, 583 (6th Cir.1985) (en banc); Vicory v. Walton, 721 F.2d 1062, 1065-66 (6th Cir.1983), cert. denied, 469 U.S. 834 , 105 S.Ct. 125 , 83 L.Ed. 67 (1984). Far from alleging that Michigan law gives him no right to a proper post-termination hearing, the plaintiff specifically pleaded that his interests in his continued employment “are protected under Mich. Const.1963, Art. 1, § 17.” His amended complaint also set forth claims sounding in contract and tort under the common law of Michigan, which claims could likewise be resolved in a post-termination adversary proceeding. Contrary to my original view, 1 therefore, I am persuaded that the plaintiff failed to state a claim for deprivation of property without the process due him under the Federal Constitution.
. Although, as a member of the three-judge panel that heard this appeal originally, I dissented from the conclusion that the plaintiff could recover back pay even if it should ultimately be established that there was good cause for the discharge, I expressed the view that "the procedure followed in the termination of the employment failed to pass constitutional muster." I now find myself in the same boat as that on which Baron Bramwell confessed himself a passenger when he said "[t]he matter does not appear to me now as it appears to have appeared to me then." Andrews v. Styrap, 26 L.T.R. (N.S.) 704, 706 (Ex. 1872).