Downing v. LeBritton, 76-1439

• Decision Date: 04 March 1977
• Docket Number: No. 76-1439,76-1439
• Citation: 550 F.2d 689
• Parties: 94 L.R.R.M. (BNA) 2935, 81 Lab.Cas. P 55,030 Francis DOWNING, Plaintiff, Appellant, v. Francis LeBRITTON et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 689

550 F.2d 689

94 L.R.R.M. (BNA) 2935, 81 Lab.Cas. P 55,030

Francis DOWNING, Plaintiff, Appellant, v. Francis LeBRITTON et al., Defendants, Appellees.

No. 76-1439.

United States Court of Appeals, First Circuit.

March 4, 1977.

Michael C. Moyers, Concord, N.H., with whom Cleveland, Waters & Bass, Concord, N.H., was on brief, for appellant.

Andrew D. Dunn, Manchester, N.H., with whom Devine, Millimet, Stahl & Branch Manchester, N.H., was on brief, for appellees.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Appellant, a mentally retarded adult, was hired, with the knowledge of his condition, by the University of New Hampshire as a groundskeeper. After working for several years, he was criticized for his work performance in November of 1975 and terminated in December. ¹ He thereupon, with the help of a fellow employee, invoked the first step of a five stage grievance and post-termination procedure by meeting with his immediate supervisor, a foreman. This not resulting in a favorable resolution, appellant, assisted by another University employee (the president of a chapter of the State Employees' Association of New Hampshire to which appellant belonged) took the second step a meeting with his foreman's supervisor. The third step, a meeting with the University's personnel director, was sought by appellant, who asked to be represented by the local field representative of the State Employees' Association, who was not an employee of the University. ² The personnel director refused to proceed with the hearing, since University regulations provided that an employee could only be represented by a fellow employee. When appellant's attorney asked to appear at this hearing, the personnel director took the same position. Appellant refused to proceed without either the field representative or his attorney. Thus the third step was aborted and the remaining two stages, an appeal to the Appeal Board and a final appeal to the Provost, were never initiated.

Suit was brought in the district court, challenging on due process grounds the University's regulation preventing appellant from having the representative of his choice. The court held, on May 11, 1976, that appellant had a protected property interest and that he was entitled to "choose his own representative without arbitrary restrictions." Shortly thereafter the Supreme Court issued its opinion in Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Defendants filed a motion for reconsideration which the court granted, deeming itself bound by Bishop, since it did not find in the law or University regulations any specific grant of a right to continued employment.

We are not sure that Bishop v. Wood so clearly compels the conclusion that appellant had no interest meriting due process protection. Under current doctrine, the existence or non-existence of such an interest depends on state law. The district court in its brief memorandum rescinding its prior order made no reference to such cases as Blake v. New Hampshire, 115 N.H. 431, 343 A.2d 223 (1975), which recognizes tenure for "good behavior" as a protected interest (citing Justice White's concurring and dissenting opinion in Arnett v. Kennedy, 416 U.S. 134, 181, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974)). The University's Support Staff Handbook not only states that non-probationary employees shall have a right to due process procedures, but adds that "it is expected that employment will be permanent following the probationary period", and that discharge will be for inadequate performance and other listed causes. Whether under the New Hampshire law as applied to these and other regulations appellant has a protectible property interest, we do not decide for, even assuming the existence of such an interest, we cannot on these pleadings and facts find a lack of sufficient due process.

Assuming arguendo that some process is due, we first summarize the process that is presently afforded under the University's procedures as set forth in its Support Staff Handbook. A termination action must be preceded by a supervisor's placing the employee on probationary status for thirty days or longer. But prior to such placement the Personnel Office must be consulted and the supervisor must prepare a Job Performance Rating and discuss problem areas with the employee and send a letter to the employee stating the conditions of probation. If "the normal minimal expectations" of the supervisor are not met, termination follows, with the grievance procedure available to the employee.

The grievance procedure, as we have noted, consists of five steps. The first is an oral discussion with the employee's immediate supervisor. The employee may in this, as in the other steps, have the assistance of any other employee of the University, who has the right to discuss the complaint with other employees in the work area and to participate in the meeting. The supervisor must respond within three work days, the Handbook expressing the hope that most complaints will be resolved at this step. Failing resolution the affected employee may, within three work days of the immediate supervisor's decision, present his complaint orally to the dean, director, or equivalent officer to whom the immediate supervisor reports. An oral discussion is then held among this officer, the immediate supervisor, the employee and his fellow employee representative. Again a decision must be announced within three work days. If the decision is adverse the aggrieved employee may, within five work days, submit in writing, "all the facts pertaining to the grievance" to the Personnel Director. A meeting is then held and, within five work days of the meeting, the Personnel Director must render a decision in writing.

If the decision is again adverse, the employee or his representative may, within ten work days, require the Personnel Director to submit the written statement to the University's Appeal Board and may personally present the case. Decision must follow within five work days. Final appeal may be had directly to the Provost.

We make two additional observations. The first is that the reservoir of fellow employees available to represent an aggrieved employee is several thousand, ranging from immediate co-workers, to other service and support staff, the administration, and the faculty. The second is that the employee and his employee representative may, of course, have the continuing services of counsel in discussing his problem, planning his defense, and preparing his presentation. The only limitation is that a non-employee may not appear at the grievance meeting. As successive steps in the grievance process are taken, there is repeated opportunity to identify weaknesses in the charges made, to correct misunderstandings, and to strengthen the presentation. By the time of the third step, involving the first written presentation of the employee's case, the assistance of counsel in helping frame the presentation would most likely assure as...