Derstein v. State of Kan., s. 89-3171

Citation915 F.2d 1410
Decision Date28 September 1990
Docket Number89-3198,Nos. 89-3171,s. 89-3171
Parties54 Empl. Prac. Dec. P 40,270 Leslie R. DERSTEIN, Plaintiff, Appellee, Cross-Appellant, v. The STATE OF KANSAS, Marjorie Van Buren, Steven Seyb, Herbert W. Walton, Kay Falley, Jess L. Danner, Defendants, and Page W. Benson, J. Patrick Brazil and John M. Jaworsky, Defendants, Appellants, Cross-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Brian G. Grace, Wichita, Kan., for plaintiff, appellee, cross-appellant.

Carl A. Gallagher, Asst. Atty. Gen. (Robert T. Shephan, Atty. Gen., and Nancy L. Ulrich, Asst. Atty. Gen., with him on the briefs), Topeka, Kan., for defendants, appellants, cross-appellees.

Before TACHA and SETH, Circuit Judges, and KANE, District Judge *.

SETH, Circuit Judge.

Plaintiff, a former court services officer, brought this civil rights action pursuant to 42 U.S.C. Sec. 1983 against three state district court judges alleging he was unlawfully terminated of employment in response to allegations of sexual harassment. The crux of plaintiff's complaint is that the circumstances of his discharge violated his liberty and property interest without due process of law.

After a bench trial, the district court held that the pretermination proceedings violated plaintiff's property interest without due process. See Derstein v. Benson, 714 F.Supp. 481 (D.Kan.). Plaintiff was awarded damages for lost income, mental and emotional distress. In a post-trial order, the court granted plaintiff's request to be reinstated as a state employee for purposes of obtaining seniority for employee benefits. We must conclude that the plaintiff was not denied procedural due process and hence we reverse.

Leslie R. Derstein worked for nine and one-half years as a court services officer prior to his discharge. He had no written contract of employment. As a court services officer, Derstein could only be discharged by the administrative judges with approval of a majority of the other judges in the district. The terms of his employment were governed by the Kansas Court Personnel Handbook which provided that a tenured employee could be immediately terminated, without a hearing, for a "serious and grievous" offense. The term "sexual harassment" was not enumerated in the personnel rules as a "just cause" justifying immediate discharge. The parties agree that at the time of Derstein's discharge he was considered a "tenured" employee.

Numerous intra-office conflicts had surfaced, and the court administrator Steven Seyb was advised that an employee intended to contact an attorney about bringing charges against the state because of Derstein's alleged sexual harassment. As a result Seyb asked the Office of Judicial Administration to investigate the allegations. An investigation was conducted by Marjorie Van Buren, Personnel Officer of the Kansas Judicial Branch. She tape-recorded interviews with court employees and transcribed the tapes. The transcripts revealed numerous allegations made by different employees that Derstein had engaged in physical and verbal sexual harassment, over a period of years.

On May 6, Van Buren met with Seyb and defendant Judges Benson, Brazil and Jaworsky to review the transcripts of the taped interviews. At that time Judge Benson was a state administrative and district court judge while Judges Brazil and Jaworsky were state district court judges. The judges believed the incidents described in the transcripts amounted to sexual harassment, which in their opinion, constituted a "serious and grievous" offense justifying Derstein's immediate discharge. The same day Seyb wrote Derstein a memorandum requesting him to meet in Judge Benson's chambers the next day. He was not informed of the purpose of this meeting. At the meeting Derstein was advised of Van Buren's investigation regarding complaints of his "long-standing" problem of alleged verbal and physical sexual harassment and that an employee sought to bring a sexual harassment suit against the state. Judge Benson told Derstein he would have "ten days in which to resign or be terminated." At this point, Derstein denied any sexual harassment and inquired as to the factual basis for the claim. Derstein was advised that he could take appeal and would be given a hearing at that time. That same day, Derstein retained an attorney and later in the week he unsuccessfully attempted to obtain Van Buren's transcripts. Derstein's attorney made no such attempt at that time. It was not until after this lawsuit was filed (three years later) that he actually received a copy of the transcripts.

At the end of the ten days, Derstein received a termination letter that specified the nature of the charges against him and advised him of his right to appeal. The next day, counsel for Derstein appealed the decision. The appeal board denied Derstein's appeal finding it frivolous. Derstein then filed a "Motion for Hearing" which was also denied.

Derstein originally brought this Sec. 1983 action against the State of Kansas, administrators, the judges on the appeal panel and Judges Benson, Brazil and Jaworsky. He voluntarily dismissed the state and the administrators prior to trial. The district court granted summary judgment in favor only of the judges who composed the appeal panel. However, the court denied the other defendants' motions raising qualified immunity as well as their contention that the plaintiff had no property interest in employment or, alternatively, that Derstein received due process for the deprivation of this interest. After a full hearing on the merits, the court in granting judgment in favor of Derstein rejected for a second time defendants' claims which were raised in their prior motion. See Derstein, 714 F.Supp. at 491-94.

Defendants now appeal the district court's order granting judgment and damages in Derstein's favor. They attack the court's order on the following grounds: (1) that the district court erred in denying their claim for qualified immunity; (2) that Derstein had no protected property interest in employment and alternatively, that he received constitutional procedural due process; (3) that they are entitled to Eleventh Amendment immunity; (4) the court's damage award was not supported by substantial evidence. Further, they urge that it was error for the court to order the reinstatement of Derstein.

Derstein filed a cross-appeal urging that the trial court erred in finding he had no protected liberty interest. By reason of our disposition of Derstein's procedural due process claim, we need not address defendants' remaining contentions of error.

Defendants challenge the district court's holding that Derstein had a property interest in his employment as a court services officer. As a public employee, he was entitled to procedural due process only if he was deprived of a property interest. See Bd. of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. We need not reach this issue, however, because even assuming that Derstein had a property interest in employment we conclude that he received procedural due process prior to termination.

The district court found that defendants' discharge of Derstein violated his due process right to a pretermination hearing defined under Roth or Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494. The court stated that it had "no hesitation in concluding that in this case Derstein received neither notice, nor an explanation of his employer's evidence, nor an opportunity to be heard prior to his discharge." Derstein, 714 F.Supp. at 495. It found that prior to the May 6 meeting, Derstein was not advised of Van Buren's investigation, had "no facts which would indicate that [he] should have known that his termination was imminent," and had no opportunity to "tell his side of the story." Id.

The parties do not contest that Derstein was entitled to "some form of hearing" prior to discharge. See Roth, 408 U.S. 564, 92 S.Ct. 2701. The more difficult questions of how much notice and opportunity...

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