Loudermill

Here is an interesting case from last year on pre-termination procedural due process. Montgomery v. Ardmore, 365 F.3d 926 (10th Cir 2004). The Officer was not given any notice prior to termination, however, he did receive adequate post termination notice and due process. First, the Court held "Post-termination remedies, no matter how elaborate, do not relieve the employer of providing the minimal pre-termination procedural protections noted in Loudermill."

The Court then explained that damages may be available that even if the employer proved that the Officer would have been terminated anyway. "Generally, damages for procedural due process violations may include damages arising out of the termination of employment "if there is a causal connection between the termination and the failure to provide a hearing." Alston v. King, 231 F.3d 383, 386 (7th Cir.2000) (explaining Carey v. Piphus 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). However, if the employer can establish that "the employee would have been terminated even if a proper hearing had been given, the terminated employee cannot receive damages stemming from the termination in an action for a procedural due process violation." Id.; see McClure v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1213 (10th Cir.2000) ("The [defendant] must establish, by a preponderance of the evidence, that it would have reached the same termination decision in any event. Unless the defendant carries that burden, t he plaintiff is entitled to recover damages for the injury caused by the defendant's adverse action."); Dill v. City of Edmond, 155 F.3d 1193, 1209 (10th Cir.1998) (plaintiff entitled to compensatory damages for adverse action when defendant failed to establish adverse action would have occurred even if due process had been provided). However, even if an employer satisfies this burden, "the employee may still obtain damages for emotional distress attributable to the deficiencies in procedure if the employee can convince the trier of fact that the distress is attributable to the denial of procedural due process itself rather than to the justified termination." Alston, 231 F.3d at 386."

This serves as a reminder to look closely at any case where an Officer is terminated without notice and an opportunity to respond, even if a full hearing follows the termination.

Aaron Nisenson
General Counsel
I.U.P.A.