Pollock v. Baxter Manor Nursing Home, 81-3002.
| Decision Date | 14 April 1982 |
| Docket Number | No. 81-3002.,81-3002. |
| Citation | 536 F. Supp. 673 |
| Parties | Loraine POLLOCK, Plaintiff, v. BAXTER MANOR NURSING HOME, Defendant. |
| Court | U.S. District Court — Western District of Arkansas |
John L. Burnett, Little Rock, Ark., for plaintiff.
G. Ross Smith, Little Rock, Ark., for defendant.
Plaintiff, Loraine Pollock, brought this action on January 6, 1981, alleging that the defendant, Baxter Manor Nursing Home, deprived her of procedural due process of law in discharging her from employment under stigmatizing conditions without according her prior notice or hearing. Plaintiff sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) and (4).
In its answer, defendant denied that any constitutionally protected "liberty" interest was implicated in plaintiff's termination and asserted alternatively that if a "liberty" interest was involved, the defendant sufficiently afforded plaintiff the protections guaranteed by the Fourteenth Amendment.
Plaintiff does not assert that a recognized "property" interest is implicated under the facts of the instant case.
1. Defendant Baxter Manor Nursing Home (hereinafter "Defendant Nursing Home") is a facility owned, operated, and financed by the county government of Baxter County, Arkansas, and is located in Mountain Home, Arkansas.
2. Plaintiff Loraine Pollock (hereinafter "Plaintiff") is a citizen and resident of Baxter County, Arkansas.
3. Plaintiff was hired on September 30, 1976 by Defendant Nursing Home as a Food Service Specialist. Plaintiff's employment was "terminable at will".
4. The employee handbook of Defendant Nursing Home unambiguously lists certain conduct which will lead to dismissal. Among the reasons listed are "clocking someone else in or out of work" and "abuse of time clock."
5. Mr. William Flippo was employed by the Defendant Nursing Home as an administrator whose duties include the hiring and discharge of employees. Review of Mr. Flippo's personnel decisions is provided by the Executive Committee of the Defendant Nursing Home and the Board of Governors.
6. On August 29, 1979, Mr. Flippo was advised by Mr. H. L. Harris that Plaintiff had clocked her daughters (also employees of Defendant Nursing Home) in and out of work the previous day when, in fact, Plaintiff's daughters were absent from work. Mr. Flippo then checked with Mrs. Everly, an employee in the Food Service Department, and found that neither of Plaintiff's daughters were scheduled to work on either August 28, 1979, or August 29, 1979. Mr. Flippo then checked the time cards and found that one of Plaintiff's daughters had been clocked in on August 28, 1979, and the other had been clocked in on August 29, 1979. Mrs. Everly advised that neither of Plaintiff's daughters had been present at work on either day.
7. On August 29, 1979, Mr. Flippo observed Plaintiff near the time clock. Shortly thereafter Mr. Flippo checked the time card of one of Plaintiff's daughters and found that the daughter had "clocked out" at 3:46 p. m. on August 29, 1979.
8. Early on the morning of August 30, 1979, Mr. Flippo re-checked the time cards of Plaintiff's daughters and found that the false entries had been "whited out" and obliterated. Plaintiff admitted that she was responsible for the obliteration but denied making the false entry.
9. On August 30, 1979, Mr. Flippo discharged Plaintiff in a private conference in his office and advised her of the reasons for dismissal. Plaintiff and Mr. Flippo completed a termination interview form which listed Plaintiff as "above average" in work quality and productivity, "average" in attendance and compatability, and "unsatisfactory" in loyalty and honesty.
10. On May 1, 1980, a hearing was held in the office of Defendant Nursing Home's attorney, to consider Plaintiff's claims for hearing and backpay. Members of the Executive Committee were present, along with Plaintiff, her daughters, Plaintiff's attorney, Mr. Flippo, and Mr. Flippo's witnesses. Plaintiff's attorney was permitted to question the witnesses. The Executive Committee, after consideration of the evidence, affirmed Mr. Flippo's decision.
11. On June 23, 1980, Plaintiff's attorney appeared before the Board of Governors to discuss Plaintiff's grievance. The Board of Governors, after discussion in Executive Session, affirmed Mr. Flippo's decision.
12. On September 19, 1980, Plaintiff applied for employment with White River Convalescent Home in Calico Rock, Arkansas, and signed a form designed to be sent to previous employers, authorizing release of information concerning Plaintiff's reasons for leaving the employment of Defendant Nursing Home 13. Mr. Flippo responded, and sent the termination interview form, which states inter alia, that Plaintiff was terminated for "clocking in and out of daughter (sic) time cards when they weren't present at work."
14. On January 6, 1981, Plaintiff filed this Complaint disputing the findings of Mr. Flippo, The Executive Committee and the Board of Governors, asserting that she was deprived of due process of law in connection with her termination.
15. The Court finds that Plaintiff did in fact clock her daughters in and out of work when they were absent and that she tried to conceal that fact. The Court finds that Plaintiff consented to the release of any information concerning her termination by Defendant Nursing Home. The Court finds also that all statements made by Defendant Nursing Home to Plaintiff's prospective employer were true, accurate, and in good faith.
16. The Court finds that any of Plaintiff's losses she may have sustained due to unemployment following her discharge from Defendant Nursing Home are not attributable to any alleged procedural deficiency in Plaintiff's termination. The Court further finds that even had Plaintiff received a full-blown evidentiary judicial trial prior to her discharge, the result would have nonetheless been the same and Plaintiff would have sustained the same alleged losses. None of Plaintiff's alleged losses stem from any procedural defect brought about by Defendant Nursing Home.
It is long settled that the term "liberty" as used in the Fifth and Fourteenth Amendments is not confined to mere freedom from bodily restraint. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1953); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1971); Bd. of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1971). The liberty interest also includes the exercise of fundamental constitutional rights and other forms of freedom of activities. Any governmental restraint of constitutionally recognized "liberty" requires the protection of procedural due process.
Both parties concede that mere termination or dismissal of an employee from governmental employment is not a deprivation of a protected liberty interest. Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1971), at 599, 92 S.Ct. at 2698; Roth, supra, 408 U.S. at p. 576, 92 S.Ct. at p. 2708; Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1975), at 348, 96 S.Ct. at 2079; Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1976).
In order to fall within the prohibitions of the due process clause, the employee must suffer some deprivation of liberty at the hands of the governmental employer other than the loss of employment itself. Roth, supra; Sinderman, supra; Codd v. Velger, supra. The Supreme Court has held that mere injury to reputation alone does not constitute a deprivation of liberty. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405, reh. den., 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976).
Plaintiff, however, contends that she was discharged under circumstances which created a stigma which foreclosed her freedom and ability to seek other employment.
Plaintiff was discharged on August 30, 1979, in the office of Mr. Flippo, an administrator, in a private conference involving Mr. Flippo, Plaintiff, and Mr. McMillan, another administrator. Plaintiff was advised of the reason for the dismissal, the continuing existence of policy prohibiting her conduct, and the nature of the evidence against her. No other persons were present. Plaintiff underwent a termination interview and a termination interview form was completed by Mr. Flippo. The termination interview form included the reason for termination, i.e., "clocking in and out of daughter (sic) time cards when they weren't present at work." The termination form listed Plaintiff as "above average" in "work quality" and "productivity," "average" in "attendance" and "compatability," and "unsatisfactory" in "loyalty" and "honesty." The form further stated that Mr. Flippo would not recommend rehiring. The form was not released to the general public.
In October of 1979, Plaintiff appeared before a hearing officer of the Arkansas Employment Security Division, where she was represented by counsel and presented witnesses in her behalf. Mr. Flippo was also present. In May of 1980, at Plaintiff's request, a conference was held with Plaintiff, her counsel, the Executive Committee of the Baxter Manor Nursing Home, Mr. Flippo, and Plaintiff's daughters. The Executive Committee upheld Mr. Flippo's decision. In June of 1980, Plaintiff's counsel appeared before the Board of Governors of the Nursing Home to state her grievances. Mr. Flippo's actions were upheld here as well.
On September 29, 1980, more than a year after her termination, Defendant Nursing Home responded to a prospective employer's inquiry concerning Plaintiff's employment. Plaintiff expressly consented in writing to the release of all information at Defendant Nursing Home's disposal. Defendant Nursing Home provided the termination interview form to the prospective employer. Of this, Plaintiff complains.
In Board of Regents v. Roth, supra, the Supreme Court suggested that where the...
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