Miller v. Lovell, 93-1305

• Decision Date: 07 January 1994
• Docket Number: No. 93-1305,93-1305
• Citation: 14 F.3d 20
• Parties: Tom MILLER, Appellant, v. Jean LOVELL; Mark Martin; E. Benjamin Nelson; Donald Stenberg; Ronald H. Tussing; Harold W. Clarke; Phyllis Anstine; Jack D. Campbell; Tim Dempsey; Pitmon Foxall, Sr.; Martin Gutschenritter; Darrell Johnson; Gary E. Lacey; David J. Lanphier; Kathy Moore; John P. Murphy; Vernon H. Pearson; James L. Riskowski; William G. White, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 20

14 F.3d 20

Tom MILLER, Appellant, v. Jean LOVELL; Mark Martin; E. Benjamin Nelson; Donald Stenberg; Ronald H. Tussing; Harold W. Clarke; Phyllis Anstine; Jack D. Campbell; Tim Dempsey; Pitmon Foxall Sr.; Martin Gutschenritter; Darrell Johnson; Gary E Lacey; David J. Lanphier; Kathy Moore; John P. Murphy Vernon H. Pearson; James L. Riskowski; William G. White, Appellees.

No. 93-1305.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 12, 1993.

Decided Jan. 7, 1994.

Sharon M. Lindgren, Lincoln, NE, argued, for appellant.

James C. Zalewski, Lincoln, NE, argued, for all appellees.

Thomas O. Mumgaard, Omaha, NE, argued, for Pitman Foxall. Wendy E. Hahn and Paul C. Pennington, Omaha, NE, on the brief.

Before FAGG and WOLLMAN, Circuit Judges, and WRIGHT, ^* District Judge.

PER CURIAM.

Tom Miller, the Director of the Law Enforcement Training Center in Grand Island, Nebraska, brought this civil rights action under 42 U.S.C. Secs. 1983 and 1988 against the members of the Nebraska Commission on Law Enforcement and Criminal Justice, and Jean Lovell, the Executive Director (collectively the commission). Miller claimed the commission violated his Fourteenth Amendment right to procedural due process by disciplining him without giving him notice and an opportunity to be heard. Miller based his entitlement to procedural due process on a property interest in his employment. Commission members Foxall, Clarke, and Nelson filed motions to dismiss. The remaining commission members filed a motion for summary judgment, and Miller filed a motion for partial summary judgment. The summary judgment motions focused on whether Miller had a property interest in his job entitling him to due process.

The district court granted the motions to dismiss Foxall, Clarke, and Nelson, and Miller does not appeal these dismissals. The district court also granted the remaining commission members' motion for summary judgment, and denied Miller's motion for partial summary judgment. The district court did not decide whether Miller was entitled to procedural due process, but instead, stated that assuming Miller's entitlement, Miller received due process. Miller appeals the grant of summary judgment to the commission.

To comply with procedural due process, an employer must give a public employee verbal or written notice of the charges against the employee, an explanation of the employer's evidence, and an opportunity to respond before terminating the employee. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). Procedural due process requirements only apply, however, to the deprivation of interests encompassed by the Fourteenth Amendment's protection of property and liberty. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). The Fourteenth Amendment's Due Process Clause does not convert the federal courts into arbitral forums for review of commonplace personnel decisions that public agencies routinely make. Wargat v. Long, 590 F.Supp. 1213, 1214 (D.Conn.1984).

In this case, it is undisputed that the only action taken against Miller was the issuance of a letter directing him to follow a particular employee's job description in determining her work assignments, to schedule staff meetings to allow her attendance, and to try to improve his working relationships with employees. Miller was not punished in any way; he did not lose pay, benefits, job status, or tenure. Nor does Miller suggest his good name, reputation, honor, or integrity is at stake. See Roth, 408 U.S. at 573, 92 S.Ct. at 2707. W...