Tupper v. Fairview Hospital and Training Center, Mental Health Division

• Citation: 276 Or. 657,556 P.2d 1340
• Parties: Phillip TUPPER, Respondent-Cross-Petitioner, v. FAIRVIEW HOSPITAL AND TRAINING CENTER, MENTAL HEALTH DIVISION, et al., Petitioners.
• Decision Date: 18 November 1976
• Court: Supreme Court of Oregon

Page 1340

556 P.2d 1340

276 Or. 657

Phillip TUPPER, Respondent-Cross-Petitioner, v. FAIRVIEW HOSPITAL AND TRAINING CENTER, MENTAL HEALTH DIVISION, et al., Petitioners.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 7, 1976.

Decided Nov. 18, 1976.

W. Michael Gillette, Solicitor General, Salem, argued the cause for petitioners. Also on the briefs were Lee Johnson, Atty. Gen., and John W. Burgess, Asst. Atty. Gen., Salem.

Henry H. Drummonds, of Kulongoski, Heid, Durham & Drummonds, Eugene, argued the cause and filed briefs for respondent/cross-petitioner.

HOWELL, Justice.

This case is before us on review from a decision of the Court of Appeals, 22 Or.App. 523, 540 P.2d 401 (1975) which upheld the action of the Public Employe Relations Board (PERB) in affirming Tupper's dismissal from public employment by Fairview Hospital and Training Center. The Court of Appeals held that the hospital's pretermination proceedings were constitutionally inadequate, but affirmed Tupper's dismissal on the basis of the post-termination hearing conducted by PERB. The Court of Appeals also held that Tupper was entitled to an award of 'lost wages and other benefits' for the time between his dismissal and the post-termination hearing, but refused to grant that relief in this proceeding on the grounds that PERB lacked the legislative authority to make such an award. Both Tupper and Fairview Hospital petitioned this court for review of that decision. We granted these petitions, as well as those in the companion case, Hammer v. Oregon State Penitentiary, 23 Or.App. 743, 543 P.2d 1094 (1975), in order to consider what types of pretermination and post-termination procedures are constitutionally required when a public agency seeks to dismiss a classified employee.

Prior to his dismissal, Tupper had been employed for approximately six years at Fairview Hospital, a state institution for the mentally deficient which is operated by the Mental Health Division of the Department of Human Resources. As a psychiatric aide, Tupper's duties included the supervision and training of the 'residents' living in one of several small, dormitory-like 'cottages.' His responsibilities included preparing and maintaining a 'program book' in which the progress made by his residents in various training programs was recorded. The record indicates that these program records were essential to the successful operation and continued funding of these programs.

On April 22, 1974, Tupper's supervisor discovered that Tupper had lost his program book. Tupper agreed to reassemble these records by May 1. When Tupper failed to complete the work by this deadline, he was given until the 24th of May to finish. However, no further progress was made by that date. After four more weeks of remonstrating, Tupper's supervisor sent him a written warning informing him that if the work was not completed by July 10, 'this will be considered insubordination and disciplinary action will follow.'

When July 10 arrived, Tupper had made additional progress, but some of the records still remained incomplete. On July 15, Tupper was suspended for the day and presented with another memo advising him that 'further disciplinary measures' would be taken unless the records were completed by the following day. On July 17, more progress had been made, but the work remained unfinished. Tupper was again suspended for the day and ordered to complete the job by the 18th. However, Tupper's program book remained unchanged on the 18th.

On July 23, 1974, after reviewing Tupper's situation with his supervisors, the director of the psychiatric aide staff recommended a dismissal. The following day, without first notifying Tupper of the contemplated dismissal and affording him an opportunity to be heard the superintendent of Fairview suspended Tupper without pay and dismissed him effective August 2, 1974. A letter was then sent to Tupper informing him of this action and detailing the facts relied upon in support of the dismissal.

After his dismissal, Tupper sought a hearing before PERB. The hearing was conducted on December 5, 1974, before a hearings examiner. On January 14, 1975, the hearings examiner issued his 'Proposed Findings of Fact, Conclusion of Law, and Order,' which recommended affirming Tupper's dismissal. Tupper then filed his objections to the proposed order, and, on March 21, 1975, the board issued a final order which essentially adopted the proposals of the hearings examiner and upheld the dismissal.

Tupper then sought judicial review of this order in the Court of Appeals. While the Court of Appeals concluded that the hospital violated Tupper's rights to procedural due process by failing to notify him of his proposed dismissal and offering him an opportunity to be heard, the court also determined that the subsequent PERB hearing supplied the due process previously lacking and held that Tupper was entitled only to an award of back wages for the period between the date of his dismissal and the date of the hearing.

In its petition for review of that decision, Fairview contends that a pretermination hearing is not constitutionally required in every case and that the post-termination hearing conducted by PERB, together with the repeated encouragements, conferences, demands, warnings, etc., was sufficient to satisfy due process requirements in the present situation. Tupper's petition essentially takes the position that the Court of Appeals was correct in deciding that the hospital violated his due process rights by dismissing him without notice and without an opportunity to be heard, but he contends that the subsequent PERB hearing was not sufficient to remedy this violation. He argues that the PERB hearing is not a de novo proceeding and that a review hearing which accords weight to a procedurally defective initial decision merely perpetuates the original denial of due process. Tupper also argues that even if the Court of Appeals correctly decided that the post-termination hearing was constitutionally adequate, he is then entitled to an award of back pay not merely from August 2, 1974 to December 5, 1974, the date of the hearing, but to March 21, 1975, the date of the board's final decision. Because of our disposition of this case, we will discuss only the first two of these issues.

The fourteenth amendment to the United States Constitution imposes procedural due process constraints on governmental actions which deprive individuals of significant liberty or property interests. Fairview does not dispute the fact that Tupper had a constitutionally significant 'property interest' in his continued employment, and we find that he clearly did. See ORS 240.560; Papadopoulos v. Bd. of Higher Ed., 14 Or.App. 130, 511 P.2d 854, S.Ct. rev. denied (1973), cert. denied 417 U.S. 919 (1974). See also Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Compare Bishop v. Wood,426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).

Governmental deprivation of such a property interest must be accompanied by at least minimal procedural protections including some form of notice of the contemplated action and some sort of opportunity to be heard if that action is contested. Arnett v. Kennedy, supra. See also Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Wolff v. McDonnell, 418, U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The particular form of the notice and hearing required, however, will vary from case to case depending upon the particular circumstances and interests involved. Mathews v. Eldridge, supra; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Cafeteria & Restaurant Workers Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961.)

In this case, the dispute centers upon what process is due prior to the initial dismissal and pending subsequent review. The determination of this issue requires an analysis of several factors. As most recently stated by the United States Supreme Court:

'* * * identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' Mathews v. Eldridge, supra, 96 S.Ct. at 903.

See also Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1278 (1975).

The factors which must be weighed in this case are similar to those considered by the United States Supreme Court in Arnett v. Kennedy, supra. In Arnett the court sustained the validity of the federal pretermination procedures for dismissing an employee for cause. These procedures included notice of the action contemplated, a copy of the charge, reasonable time for filing a written response and supporting affidavits, and an opportunity for an oral appearance upon request. Then, following the dismissal, a full evidentiary hearing was provided. In upholding this procedural scheme, Justice Powell balanced the interest of the individual employee in continued public employment pending an evidentiary hearing against the government's interest in the expeditious removal of an unsatisfactory employee. ¹ Powell noted that the procedures in Arnett 'minimize(d) the risk of error in the initial removal decision and provide(d) for compensation for the affected employee should that decision eventually prove wrongful.' 416 U.S. at 170, 94 S.Ct. at 1652. He then concluded that a full evidentiary hearing need not be provided...