Boals v. Gray

• Decision Date: 09 December 1985
• Docket Number: 83-3896,Nos. 83-3887,s. 83-3887
• Citation: 775 F.2d 686
• Parties: 120 L.R.R.M. (BNA) 2913, 120 L.R.R.M. (BNA) 3280 Charles L. BOALS, Plaintiff-Appellee, Cross-Appellant, v. Frank H. GRAY, Superintendent, Ohio State Reformatory, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 686

775 F.2d 686

120 L.R.R.M. (BNA) 2913, 120 L.R.R.M. (BNA) 3280

Charles L. BOALS, Plaintiff-Appellee, Cross-Appellant, v. Frank H. GRAY, Superintendent, Ohio State Reformatory,

Defendant-Appellant, Cross-Appellee.

Nos. 83-3887, 83-3896.

United States Court of Appeals, Sixth Circuit.

Argued June 5, 1985.

Decided Oct. 22, 1985.

As Amended Oct. 24, 1985.

Rehearing and Rehearing En Banc Denied Dec. 9, 1985.

John C. Stamatakos, Asst. Atty. Gen., Christine Manuelian, argued, Columbus, Ohio, for defendant-appellant, cross-appellee.

James Melle, argued, Lucas, Prendergast, Albright, Gibson, Newman & Gee, Columbus, Ohio, for plaintiff-appellee, cross-appellant.

Before KENNEDY and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.

CORNELIA G. KENNEDY, Circuit Judge.

Charles L. Boals, plaintiff-appellee and cross-appellant in this case, is a former permanent non-probationary correctional officer of the State of Ohio. Boals commenced this action in 1976, in response to a five-day suspension imposed on him by Frank H. Gray, defendant-appellant and cross-appellee, seeking monetary and injunctive relief under 42 U.S.C. Sec. 1983 and declaratory relief under 28 U.S.C. Secs. 2201 & 2202. Boals contended that his first amendment rights were infringed because he was suspended for union activity; that although under state law he could only be suspended for cause, his suspension was imposed without due process; and that Ohio Rev.Code Ann. Sec. 124.34 (Page 1984), insofar as it authorized short-term suspension of civil servants without due process, was unconstitutional on its face as applied. ¹

Following a non-jury trial, the District Court held that Boals was suspended without due process and in violation of his first amendment rights in retaliation for his union activity, and that Gray acted in bad faith and with malicious and oppressive intent. The Court awarded monetary damages equal to lost wages ($195.53) and ordered that the suspension be expunged from plaintiff's record on the due process claim, $5000 damages on the first amendment claim, and $5000 punitive damages. It dismissed plaintiff's claim seeking declaratory relief respecting the constitutionality of O.R.C. Sec. 124.34 on the ground that since he was no longer employed by the State he lacked standing to seek such relief. The decision of the District Court is reported at 577 F.Supp. 288. Gray appeals the District Court's judgment awarding Boals monetary and injunctive relief, and Boals cross-appeals dismissal of his claim challenging the constitutionality of the Ohio statute. We reverse the District Court on the appeal and affirm on the cross-appeal.

I.

Plaintiff filed his complaint in the District Court on May 20, 1976. In its March 14, 1977 order, the court dismissed plaintiff's state law claim, see note 1 supra, overruled defendant's motions to dismiss plaintiff's first amendment and due process claims and for summary judgment, and granted defendant's motion that the court abstain from considering the constitutionality of O.R.C. Sec. 124.34. The court concluded that Sec. 124.34 "is susceptible of a construction whereby some procedure is mandated under Ohio law to be followed before suspensions of five days or less may be imposed, despite the fact that on its face it does not expressly provide or reject such a procedure," ² and "that the question has not yet been presented to the courts of Ohio." The court ordered that this issue be held in abeyance pending adjudication by the parties in the state courts, providing the plaintiff commenced such an action within 30 days of the court's order.

Thereupon, a state court action seeking a declaratory judgment was commenced by the plaintiff in compliance with the District Court's order. The common pleas court found in favor of defendants, concluding that the interpretation of Sec. 124.34 was governed by Anderson v. Minter, 32 Ohio St.2d 207, 291 N.E.2d 457 (1972), which held pursuant to Sec. 124.34 that a civil servant suspended for five days or less could not have that suspension directly reviewed by the court. This decision failed to address the central question presented--whether or not Ohio law required some sort of procedure in imposing such suspensions.

The Franklin County Court of Appeals affirmed the trial court, although it did appear to acknowledge the right to some form of pre-suspension hearing as a matter of federal, rather than state law. The court then went on to conclude on the basis of the affidavits submitted by the defendants that the procedure followed in imposing plaintiff's suspension satisfied the requirements of Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). ³ The Ohio Supreme Court declined review. Upon being apprised of these results, the District Court resumed consideration of the instant case. ⁴

II.

The defendant concedes that plaintiff had a protected property interest created by O.R.C. Sec. 124.34 not to be suspended from work except for cause. In its March 14, 1977 order, the District Court found that the suspension of a state employee from employment for five days where such suspension may only be imposed for cause is not so minimal a deprivation of a property interest that the protections of the due process clause do not apply. Accord Jackson v. Kurtz, 65 Ohio App.2d 152, 158, 416 N.E.2d 1064 (1979) (citing unreported March 14, 1977 order). ⁵ In its final opinion and order, the court concluded that, inasmuch as plaintiff's short-term suspension was unreviewable under state law, and in consideration of the test formulated by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), for determining the minimal requirements of due process appropriate in specific circumstances (weighing the private interest affected by official action, the risk of error of the challenged procedure and probable value of additional procedural safeguards, and the government interest involved), due process in this instance required: (1) written notice of charges and evidence given a reasonable time in advance of hearing; (2) a pre-suspension hearing before a neutral administrator with right to representation and questioning of witnesses; and (3) a written explanation of the administrator's decision. 577 F.Supp. at 295.

The District Court found the facts leading to plaintiff's suspension to be as follows:

[A]t the time of the events giving rise to this action, the plaintiff had been a civil service employee at the Mansfield, Ohio, Reformatory, for some four years. He had never had any disciplinary charges made against him. The defendant was the Superintendent of the Reformatory. One Captain Hartson was an immediate superior of the plaintiff. The employment relationships between plaintiff and Hartson were cordial. They also were friendly socially.

Very shortly before the events in question, the plaintiff had joined a Union of employees at the Reformatory. He became active in its support, and encouraged other employees to join it.

On April 15, 1976, when plaintiff left work, he found a parking warning ticket on his car, although he had parked his car in that spot before without any problem.

When he came to work the next morning, he took his position in the deputy's office. Captain Hartson came through the door and said, "Charlie Boals, What's happening?" Plaintiff had the parking ticket in his hand. He said, "Does Gray got you handing these out?" Hartson replied, "Yep, sure does." Plaintiff said, "Why don't you take this and tell him to stick it up his ass." Hartson said, "Okay" and took the ticket.

Very shortly after that, plaintiff was told to go to defendant's office. He entered the office. Defendant was standing behind his desk. Hartson and another official, Charles Rowe, were seated behind plaintiff. Defendant asked him if he had seen the parking ticket before, if he had given it to Hartson, and if he had said defendant should stick it up his ass. Plaintiff responded "yes" to all those questions. Defendant immediately told him he had three days off for insubordination. Plaintiff then said, "Wait a minute. If this is the way it's going to be, I want the union representative, a lawyer. I want somebody here with me." Defendant said, "You have got five days off."

Plaintiff then raised a fuss, seeking to get the suspension increased so he could appeal it, but got nowhere.

Id. at 292. Applying its formulation to these facts, the court held that the "procedure" whereby "plaintiff was given 'notice,' a 'hearing' was held, and discipline was meted out all within a matter of minutes," did not satisfy the fundamental requirements of due process. Id. at 295.

Gray argues that the due process requirements specified by the District Court are inconsistent with the Supreme Court's opinion in Goss v. Lopez, supra, which dealt with school suspensions. Boals counters that the consequences of suspension of public employees from work, including injury to personal reputation, effect on future career opportunities, and loss of pay, are more serious than suspensions of students from school, and require greater procedural safeguards. See Muscare v. Quinn, 520 F.2d 1212, 1215 (7th Cir.1975), cert. dismissed, 425 U.S. 560, 96 S.Ct. 1752, 48 L.Ed.2d 165 (1976); Bagby v. Beal, 455 F.Supp. 881, 888 (N.D.Pa.1978). While the argument that the process due public employees should be greater than that due students receiving suspensions of like duration is not without persuasiveness, we do not agree that the due process requirements attendant upon the imposition of short-term unreviewable suspension on non-probationary public employees are as extensive as those prescribed by the District Court. Since, as we explain below, it was neither necessary nor appropriate for the District Court to prescribe broadly applicable due process guidelines in this case, we disapprove the District Court's formulation and decline to substitute one of our own.

The District...