Peery v. Brakke

• Citation: 826 F.2d 740
• Decision Date: 12 August 1987
• Docket Number: Nos. 86-5145,86-5162,s. 86-5145
• Parties: C. Ray PEERY, Appellant, v. Verne BRAKKE, as an Administrator of the South Dakota Department of Agriculture and individually, and the South Dakota Department of Agriculture, Appellees. C. Ray PEERY, Appellee, v. Verne BRAKKE, as an Administrator of the South Dakota Department of Agriculture and individually, Appellant, and the South Dakota Department of Agriculture.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 740

826 F.2d 740

C. Ray PEERY, Appellant, v. Verne BRAKKE, as an Administrator of the South Dakota

Department of Agriculture and individually, and

the South Dakota Department of

Agriculture, Appellees.

C. Ray PEERY, Appellee, v. Verne BRAKKE, as an Administrator of the South Dakota

Department of Agriculture and individually,

Appellant, and the South Dakota

Department of Agriculture.

Nos. 86-5145, 86-5162.

United States Court of Appeals,

Eighth Circuit.

Submitted March 12, 1987.

Decided Aug. 12, 1987.

James E. Carlon, Pierre, S.D., for appellant.

Mark W. Barnett, Pierre, S.D., for appellees.

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

McMILLIAN, Circuit Judge.

C. Ray Peery appeals from a final judgment entered in the District Court for the District of South Dakota in favor of the South Dakota Department of Agriculture (the Department) and Verne Brakke. Peery brought this action under 42 U.S.C. Sec. 1983 claiming that the Department, his employer, and Brakke, his immediate supervisor, denied him procedural due process in terminating his employment. The jury returned a verdict for Peery, but the district court granted a motion for judgment notwithstanding the verdict (j.n.o.v.). Peery now appeals and Brakke cross-appeals.

For reversal, Peery claims the district court erred in (1) granting j.n.o.v. on the basis that he had received all the process he was constitutionally due and (2) denying him reinstatement. Brakke cross-appeals, contending the district court should have (1) abstained in deference to a pending state administrative proceeding and appeals therefrom, (2) applied the doctrine of issue preclusion to bar Peery's claim, and (3) granted qualified immunity to the defendants. For the reasons discussed below, we reverse the judgment of the district court. The case is remanded to the district court with directions to reinstate the jury verdict.

I.

Peery was first employed by the Department in October 1974 as Director of the Pesticide Section of the Division of Regulatory Services. Brakke was appointed Director of the Division in October 1981 and became Peery's immediate supervisor.

Peery maintains that he performed his job satisfactorily up to the time he was discharged in January 1984. In April 1982, however, Brakke began sending Peery a series of letters and memos criticizing Peery's job performance and listing areas in which Peery needed improvement. Brakke sent several such memos throughout 1982-83. In July 1983, Brakke sent Peery a letter establishing a "work improvement plan" and notifying him that his performance was unsatisfactory and that he would be subject to discipline, including suspension or dismissal, if his work did not improve within six months. In the letter, Brakke identified many specific problems with Peery's job performance and invited Peery to discuss the problems. In October 1983, Brakke formally evaluated Peery's job performance, giving him an overall performance rating of "standard." ¹ Peery responded by indicating on the evaluation form that he disagreed with the rating. Peery later submitted a written response to the evaluation, disagreeing with two of the specific criticisms Brakke had made. In November 1983, Brakke sent Peery another memo telling him that his work was not acceptable and making specific charges of unsatisfactory performance. Peery responded with a note about one of these charges, but he did not respond to any of the other allegations.

Peery was called into Brakke's office at 3:45 p.m. on January 25, 1984, and told to resign by 5:00 p.m. or be fired. When Peery refused to resign, Brakke handed him a notice of termination. The termination notice reiterated some of the problems listed in Brakke's memos of July and November 1983 and identified certain improvements Peery had made, but also identified many points where performance had not improved to a satisfactory level. The letter then listed seven "incidents" said to indicate that Peery could not satisfactorily perform his job. Peery had been informed of at least one of these seven complaints before the meeting. Brakke did not permit Peery to respond to any of the charges at the meeting.

Brakke denied Peery's departmental appeal on February 7, 1984. Peery then filed an administrative grievance pursuant to the South Dakota Career Service Act, S.D. Codified Laws Ann. Ch. 3-6A. The Career Service Commission of South Dakota (the Commission) denied the grievance in November 1984. The Commission concluded that Peery was terminated for cause and that even though Peery had not received a pretermination hearing, he was not entitled to one under governing law. Peery appealed the Commission's determination in state court.

While his administrative grievance was before the Commission, Peery filed this Sec. 1983 action in federal district court. Before trial, Brakke asked the district court to abstain pending an outcome in the state proceedings, but the district court denied the motion. The case was tried to a jury, which returned a verdict in Peery's favor on the procedural due process claim and awarded damages. In a special interrogatory, however, the jury found that Peery had failed to prove he was terminated without cause. The district court granted Brakke's motion for j.n.o.v. ² on the ground that, as a matter of law, Peery had received all the process he was constitutionally due in his termination. Peery v. Brakke, Civ. No. 84-3081 (D.S.D. Mar. 20, 1986) (Memorandum Opinion).

II.

In determining that Peery had received adequate due process, the district court relied on Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (Loudermill ), where the Supreme Court held that an employee with a property interest in continued public employment may not be terminated without "some form of pretermination hearing." Id. at 542, 105 S.Ct. at 1493. Applying this standard, the district court determined that Brakke's repeated and specific warnings and his invitations to discuss job performance problems with Peery, as well as the trial-type administrative hearing available to Peery after termination, satisfied due process. Memorandum Opinion at 9.

Peery contends the district court erred in concluding that he had received all the process constitutionally due in his termination. There is no real factual dispute between the parties as to the circumstances that led up to Peery's firing. The issue to be decided in this appeal, then, is purely a question of law: under the factual circumstances of this case, did Peery receive adequate procedural due process?

The Supreme Court held in Loudermill that before termination, a tenured public employee ³ is entitled to (1) oral or written notice of the charges against him or her, (2) an explanation of the employer's evidence, and (3) an opportunity to present his or her side of the story. 470 U.S. at 546, 105 S.Ct. at 1495. The purpose of a pretermination hearing, the Court explained, is to be "an initial check against mistaken decisions," not to make a final decision on the merits of the employment dispute. Id. at 545-46, 105 S.Ct. at 1495-96. Thus, if basic aspects of notice and an opportunity to be heard are provided, and a more formal hearing is available to the employee after discharge, the Court stated that pretermination procedures need not be elaborate to satisfy due process. Id. at 545-47, 105 S.Ct. at 1495-96.

This court applied Loudermill in Riggins v. Board of Regents, 790 F.2d 707 (8th Cir.1986), where we considered the claims of a public employee who alleged she had not received procedural due process in her termination. Six days before she was fired, Riggins met with her managing supervisor to discuss an incident of insubordination the previous evening. Riggins received notice of the meeting and knew of its purpose before she attended. At the meeting, the managing supervisor read to her the report prepared by one of her immediate supervisors about the incident and gave her an opportunity to explain her version of events. Id. at 709. After the meeting, the managing supervisor discussed Riggins's explanation with her immediate supervisors. The managing supervisor decided Riggins was lying and fired her. Id. Under these facts, we found that the pretermination meeting, along with the formal grievance procedure available to Riggins after termination, satisfied due process under Loudermill. Id. at 711.

By contrast, Peery received insufficient notice of charges against him and no meaningful opportunity to respond before he was fired. Peery was called into Brakke's office at 3:45 p.m. and told either to resign by 5:00 p.m. or be fired. When he refused to resign, Brakke handed him notice of termination. The termination notice specified seven "incidents" said to indicate Peery's inability to satisfactorily perform his job. Although Peery had been informed of at least one of these charges before the meeting, he had no prior notice of the other "incidents." Nor was he given any opportunity to respond to the new charges before being fired.

Brakke claims that the many critical memos he had sent to Peery in the preceding months gave Peery notice that his job performance was inadequate. Brakke claims further that Peery was repeatedly afforded an opportunity to respond because Brakke invited Peery on many occasions to discuss job performance problems. Peery, with few exceptions, did not do so.

Even if the series of critical memos and letters could be interpreted as general notice to Peery of job performance problems, the termination notice Brakke prepared listed seven specific "incidents" as grounds for discharge. These charges were, in large part, new to Peery and had not appeared in any earlier memo or letter. Further, Peery was given no opportunity to respond to these specific charges before being fired. Where an employee receives notice of charges before termination, but is not given an opportunity...