Pollock v. Baxter Manor Nursing Home, 82-1584

• Decision Date: 13 September 1983
• Docket Number: No. 82-1584,82-1584
• Citation: 716 F.2d 545
• Parties: Loraine POLLOCK, Appellant, v. BAXTER MANOR NURSING HOME, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 545

716 F.2d 545

Loraine POLLOCK, Appellant, v. BAXTER MANOR NURSING HOME, Appellee.

No. 82-1584.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 7, 1983.

Decided Sept. 13, 1983.

John L. Burnett, Lavey & Harmon, Little Rock, Ark., for appellant.

G. Ross Smith, P.A., Little Rock, Ark., for appellee.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

PER CURIAM.

Loraine Pollock instituted this action against Baxter Manor Nursing Home alleging that the nursing home deprived her of procedural due process of law by discharging her from employment under stigmatizing conditions without according her prior notice or a hearing. The nursing home denied that any constitutionally protected "liberty" interest was implicated in Pollock's termination and also alleged, in the alternative, that if a "liberty" interest was involved, Pollock was afforded the protections guaranteed by the fourteenth amendment. The district court, 536 F.Supp. 673, the Honorable H. Franklin Waters, found that Pollock was not entitled to judgment and accordingly dismissed her complaint. We reverse and direct the trial court to award Pollock nominal damages of one dollar. Reasonable attorney fees should be awarded to plaintiff's attorney for his limited success in vindicating his client's right to a due process hearing before the board of directors.

Loraine Pollock was fired by a county-owned nursing home for allegedly clocking her daughters' time cards in and out when her daughters had not reported for work. Pollock received an exit interview when she was terminated. Pollock contacted an attorney, Mr. Crain, who sought to obtain a hearing on the accusations made by the nursing home against Pollock. Crain contacted Mr. Johnson, the attorney for the nursing home, and arranged for a meeting on May 1, 1980, to discuss Pollock's claim for a hearing and back pay. Present at the meeting were Pollock, Crain, Johnson, several nursing home employees, and three members of the board of directors. The meeting was called a settlement conference and Crain expressly stated at the outset that the meeting was not to be considered as the due process hearing that Pollock was requesting. Johnson responded that he "understood." At the conclusion of the meeting, Johnson stated that he would advise the board of directors what had transpired in the meeting but what the board would ultimately decide was "up to them." The board of directors subsequently affirmed Pollock's dismissal without conducting a formal termination hearing.

While Pollock was in the process of applying for a new job, she signed an authorization form which permitted her previous employers to release information about her prior job performance. Upon presentation of this form, the county nursing home disclosed that Pollock was fired for clocking her daughters in and out when they were not working. Pollock then sued the nursing home for depriving her of liberty without due process of law. The district court found that Pollock had fraudulently clocked her daughters' time cards. The court concluded that because the allegations against Pollock were true, she was not deprived of a liberty interest by the defendant in hurting her reputation and her chances for future employment.

On appeal, Pollock's counsel concedes that the district court's finding that the allegations were true is not error. However, we find that Pollock was not afforded procedural due process due to the failure by the nursing home to hold a termination hearing in which Pollock could present witnesses and other relevant evidence. A fundamental purpose of the due process clause is to allow the aggrieved party the opportunity to present his case and have its merits fairly judged. Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265 (1982). Pollock was not given such an opportunity. Thus, the issue becomes whether Pollock is entitled to damages to remedy the lack of due process afforded her by the nursing home.

In Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) the Supreme Court held:

Because the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant's substantive assertions, and because of the importance to organized society that procedural due process be observed, we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury.

435 U.S. at 266, 98 S.Ct. at 1054 (citations omitted, footnote omitted).

It is clear that the Court in Carey determined that a plaintiff is still entitled to nominal damages for a failure to hold a due process hearing even if it is shown that the stigmatizing information is true. In the instant case, the nursing home refused to conduct a due process hearing and thereby violated Pollock's right to procedural due process. We accordingly reverse the district court and order that Pollock be awarded nominal damages of one dollar and reasonable attorney fees. See Hensley v. Eckerhart, --- U.S. ----, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

HENLEY, Senior Circuit Judge, dissenting.

The court's decision that Pollock was not afforded procedural due process in connection with her termination is questionable to say the least.

In May, 1980 a meeting was held in the office of Jimmy Johnson, attorney for the Baxter County Nursing Home. That meeting was held at the request of Mrs. Pollock. It was attended by the Administrator who had discharged Mrs. Pollock, by her two daughters, whose time cards were forged, by witnesses on behalf of the defendant, and by the Executive Committee of the Board of Governors. Both Pollock and the defendant nursing home were represented by counsel.

Mr. Crain, Pollock's then attorney, says the meeting was for the purpose of settling Mrs. Pollock's claim against the hospital and that he made it clear that he did not want the meeting to become the hearing Mrs. Pollock hadn't gotten. Crain had no witnesses other than Mrs. Pollock and her daughters. He testified that Johnson was going to show him the evidence he had. He says he was there to get reinstatement or a hearing and, inferentially at least, contends that he got neither.

Attorney Johnson on the other hand testified that the purpose of the meeting was to hear the facts so the Board could decide whether Mrs. Pollock was properly fired, that the meeting was scheduled so everyone could present the facts.

The discharging officer made a statement supported by witnesses. Mr. Crain actually participated and asked questions of witnesses. At some length he stated Mrs. Pollock's position. Mrs. Pollock herself made a statement attempting to explain what she was doing with the time cards in question and why she was at the time card machine.

At the...