United States Court of Appeals

For the Eighth Circuit

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No. 16-2756

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Marcellino Pena

lllllllllllllllllllll Plaintiff - Appellant

v.

Bob Kindler; Glen Strom; Freeborn County

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

____________

 Submitted: March 7, 2017

 Filed: July 20, 2017

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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.

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MELLOY, Circuit Judge.

Marcellino Pena, a former Freeborn County Assistant Jail Administrator,

appeals the district court’s adverse grant of summary judgment on claims related to 1

his termination. Specifically, he appeals as to a 42 U.S.C. § 1983 procedural due

The Honorable David S. Doty, United States District Judge for the District of 1

Minnesota.
process claim and as to a Minnesota statutory claim arising under the Peace Officer

Discipline Procedures Act, Minnesota Statutes § 626.89 (“PODPA”).2

Regardless of whether Pena held a constitutionally protected interest in his

employment, we conclude the process surrounding his termination satisfied the Due

Process Clause. Further, we conclude Pena was not entitled to the additional

protections of PODPA given his actual duties as Assistant Jail Administrator and

given the fact that Freeborn County (the “County”) neither charged him with the

duties of general law enforcement nor utilized his services for those purposes. We

therefore affirm the judgment of the district court.

I. Background

Long before the events giving rise to the present case occurred, Pena was

employed as a sheriff’s deputy in general law enforcement. Since 2008, however,

he was not employed as a sheriff’s deputy. Rather, he was employed and worked fulltime as Assistant Jail Administrator, a job that did not require a law-enforcement

license, arresting authority, or a weapon and that also did not entail general lawenforcement duties. Pena nevertheless remained licensed by a state law-enforcement

board and was permitted to carry a County-issued firearm. He also remained a sworn

deputy, even though he was not employed as such on either a permanent or “on-call”

basis.

As Assistant Jail Administrator, Pena’s duties included overseeing various

contract services such as food and health services for the prisoners. When asked in

his deposition about his job duties as Assistant Jail Administrator, Pena responded,

PODPA provides enumerated protections such as mandatory disclosures and

2

procedural requirements for hearings related to the discipline of “peace officers” and

“part-time peace officers,” as defined in Minnesota Statutes § 626.84, subdiv. 1.

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“To improve the facility, bring in revenue, cut costs. Just overall improve the facility,

what I could do.” According to Pena, he performed well in this position and achieved

substantial cost savings for the County. Later, he suggested the County become a

service provider to the United States Department of Homeland Security’s Bureau of

Immigration and Customs Enforcement (“ICE”). The County followed his

suggestion, and he eventually became responsible for managing a contract with ICE

to transport and house immigration detainees.

While employed as Assistant Jail Administrator, Pena occasionally assisted in

the transportation of ICE detainees. According to Pena, the contract between the

County and ICE required licensed peace officers to handle transportation of ICE

detainees. In fact, the only function Pena served that arguably required him to

possess a law-enforcement license wasthe transport ofthese administrative detainees.

Pena, however, admits he was not ordered or instructed to assist in ICE detainee

transport. Similarly, the sheriff, Defendant Bob Kindler, denied having instructed

Pena to do so. 

 

During his time as Assistant Jail Administrator, Pena allegedly harassed more

than one female employee. In addition, Pena publicly advocated for a candidate who

lost an election to Sheriff Kindler. Coworkers alleged that Pena advocated for his

preferred candidate while in the workplace. The County’s participation as a service

provider for ICE served as a key issue of disagreement between the candidates.

In June 2012, a supervisor formally reported Pena for harassment of a young

female employee. Sheriff Kindler began an investigation. After several different

witnessesreported other instances of misconduct by Pena, Sheriff Kindler suspended

Pena with pay effective July 21, pending resolution of the investigation. At that time,

Sheriff Kindler informed Pena of the general nature of the complaints. On July 23,

Pena met with Sheriff Kindler, a County administrator, and the County’s human

resources director. Pena was told he was being investigated for sexual harassment

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and was given a general description of the allegations against him. The investigation

continued, and on August 17, Pena received a letter summarizing the allegations. The

letter asked Pena to give a statement on August 23, and informed him he could

arrange to have legal counsel present.

In a letter dated August 22, Pena asked for a 14-day delay to secure counsel;

complained he did not have enough time after receiving the August 17 letter to secure

counsel; demanded access to materials such as interviews and recordings related to

the allegations; and complained he was unable to adequately prepare or defend

himself. He did not invoke PODPA by name. The County denied his request.

 

Pena appeared at the August 23 appointment without counsel and gave a

statement, admitting many of the allegations. Investigators completed their report. 

In a September 4 letter, Sheriff Kindler told Pena there was sufficient evidence to

justify termination, and the County Board of Commissioners (the “Board”) would

consider his termination at a September 18 meeting. In a follow-up letter, Sheriff

Kindler informed Pena he could appear and defend himself at the meeting. Pena did

so. The Board considered the matter in closed session, then returned to open session

and voted to terminate Pena.

Subsequently, on October 18, 2012, Pena for the first time argued he was a

“peace officer” or a “part-time peace officer” entitled to the procedural protections

set forth in PODPA. The County determined Pena, employed as an Assistant Jail

Administrator rather than as a sheriff’s deputy, was not entitled to the procedural

protections of PODPA. 

Pena appealed his termination to the Minnesota Court of Appeals through a

certiorari procedure. The Court of Appeals addressed its own jurisdiction, noting

specifically its inability to reach issues not contained in the record of termination. 

Pena v. Freeborn Cty., No. A12-2007, 2013 WL 3868086, at *2 (Minn. Ct. App. July

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29, 2013). The Court of Appeals concluded the record wasinsufficient to show Pena

was entitled to the protections of PODPA. Id. at *4. The Court of Appeals also held

Pena did not have a property interest in continued employment. Id.

Pena then brought the present suit asserting a state-law claim for damages

under PODPA and several federal statutory and constitutional claims, including a 42

U.S.C. § 1983 claim alleging a due process violation based on a property interest in

his employment. The district court granted summary judgment for the defendants on

all claims. Pena limits his appeal to the PODPA and due process claims.

II. DISCUSSION

We review a grant of summary judgment de novo, viewing the record in the

light most favorable to the non-moving party. Am. Family Ins. v. City of

Minneapolis, 836 F.3d 918, 921 (8th Cir. 2016).

3

 

A. Due Process

We need not determine whether Pena possessed a property right in his

continued employment because the process he actually received before and after his

termination satisfied the Due Process Clause. This conclusion is independent of any

claimed right to specific procedural protections under PODPA because

In the district court, the defendants asserted a res judicata argument, 3

characterizing the Minnesota Court of Appeals certiorari proceeding as precluding

the present action. The district court rejected the argument, finding the record and the

issuesthat could have been raised in the certiorari proceeding too limited to preclude

the current action. The defendants renew this argument on appeal. Given our

resolution of the parties’ arguments on the merits, we do not address the preclusion

argument. See Transcon. Ins. Co. v. W.G. Samuels Co., 370 F.3d 755, 758 (8th Cir.

2004) (“We may affirm a judgment on any ground raised in the district court . . . .”). 

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constitutionally guaranteed procedural protections are not coextensive with statecreated procedural protections. Rather, if a state creates a property interest, the

Constitution alone defines the process that must be provided to protect that interest

pursuant to the Due Process Clause. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 541 (1985). As the Supreme Court stated:

If a clearer holding is needed, we provide it today. The point is

straightforward: the Due Process Clause provides that certain

substantive rights—life, liberty, and property—cannot be deprived

except pursuant to constitutionally adequate procedures. The categories

of substance and procedure are distinct. Were the rule otherwise, the

Clause would be reduced to a mere tautology. “Property” cannot be

defined by the procedures provided for its deprivation anymore than can

life or liberty. . . . In short, once it is determined that the Due Process

Clause applies, “the question remains what process is due.” The answer

to that question is not to be found in the [state] statute.

Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

Here, Pena received notice of the general nature of the grievances against him

on July 21 or 23. He then received a detailed letter on August 17. At that time,

nearly a month had already passed during which he could have secured legal

representation. The August 17 letter provided notice and requested that he appear to

make a statement on August 23. On August 22, he sought and was denied a delay and

access to materials such as recordings and statements. He nevertheless appeared on

August 23 and gave a statement. He then attended the Board’s meeting nearly a

month later where he again had the opportunity to address the claims against him. 

To determine whether the process afforded to protect a property right is

constitutionally sufficient, it is necessary to assess whether the process is

commensurate in scope with the right and the circumstancessurrounding elimination

of the right. See, e.g., Sutton v. Bailey, 702 F.3d 444, 447 (8th Cir. 2012). In the

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employment context, the Eighth Circuit has had ample opportunity to develop a mode

of analysis, resulting in a legal landscape that calls for some type of pre-termination

hearing. See id. That pre-termination hearing, however, may involve less rigor if

there also exists an opportunity for a post-termination hearing:

[T]he Due Process Clause requires a pre-termination hearing in some

form, but if a post-termination hearing is also available, the

pre-termination proceedings “need not be elaborate. . . . The tenured

public employee is entitled to oral or written notice of the charges

against him, an explanation of the employer’s evidence, and an

opportunity to present his side of the story.” [Loudermill, 470 U.S. at

545–46]. The primary purpose of this type of pre-termination hearing

is not to “definitively resolve the propriety of the discharge,” but to

serve as “an initial check against mistaken decisions. . . .” Id. at 545. 

Following Loudermill, we have consistently held that, where posttermination proceedings are available, “informal meetings with

supervisors” may be sufficient pre-termination hearings. Schleck v.

RamseyCnty., 939 F.2d 638, 641 (8thCir.1991), quoting Riggins[ v. Bd

of Regents of the Univ. of Neb.], 790 F.2d [707,] 711 [(8th Cir. 1986)];

accord Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 902–03 (8th

Cir. 2000).

Sutton, 702 F.3d at 447. 

Importantly, the process provided need not be akin to a court trial with the

various protections and access to evidence that such a forum entails. For example,

in Sutton, we held oral notice of an offending social media post coupled with “an

opportunity to present his side of the story” satisfied the Due Process Clause. Id. at

448. Also, although notice is required, there need not “be a delay between the notice

and the opportunity to respond accorded to a public employee.” Id. We therefore

conclude that the months-long pre-termination notice, the repeated opportunities for

Pena to tell his side of the story, the availability of the state’s post-termination

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certiorari-based reviewprocedure, and Pena’s actual utilization ofthese opportunities

easily pass constitutional muster. 

B. Applicability of PODPA

PODPA extends procedural protectionsto “licensed peace officers” and “parttime peace officers” asthose terms are specifically defined by statute. See Minn. Stat.

§ 626.89, subdiv. 1(c) (“‘Officer’ means a licensed peace officer or part-time peace

officer, as defined in section 626.84, subdivision 1, paragraphs (c) and (d), who is

employed by a unit of government.”); see also id. § 626.89, subdivs. 3–17 (listing

protections, creating a cause of action for damages against the governmental entity,

and providing for civilian review of disciplinary actions).4

Minnesota Statutes § 626.84, subdiv. 1, provides: 4

(c) “Peace officer” means:

(1) [A] an employee or an elected or appointed official of a

political subdivision or law enforcement agency [B] who is licensed by

the board, [C] charged with the prevention and detection of crime and

the enforcement of the general criminal laws of the state and [D] who

has the full power of arrest, and shall also include the Minnesota State

Patrol, agents of the Division of Alcohol and Gambling Enforcement,

state conservation officers, Metropolitan Transit police officers,

Department of Corrections Fugitive Apprehension Unit officers, and

Department of Commerce Fraud Bureau Unit officers, and the statewide

coordinator of the Violent Crime Coordinating Council; and

. . .

(d) “Part-time peace officer” means [A] an individual licensed by the

board [B] whose services are utilized by law enforcement agencies no

more than an average of 20 hours per week, not including time spent on

call when no call to active duty is received, calculated on an annual

basis, who has either [C1] full powers of arrest or [C2] authorization to

carry a firearm while on active duty. The term shall apply even though

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Pena argues he is a peace officer or, at the least, a part-time peace officer. 

Focusing first upon the definition of “peace officer,” we conclude Pena meets all

requirements of subdivision (c)(1) other than the requirement we have labeled [C],

i.e., that the person be “charged with the prevention and detection of crime and the

enforcement of the general criminal laws of the state.” Pena was[A] employed by the

County and [B] licensed by the Board. Further, the County does not meaningfully

contest the assertion that Pena [D] possessed the full power of arrest. The fact that

Pena was a sworn deputy appears to speak to this power and may indicate his

availability to be hired for purposes of general criminal law enforcement. His status

as a sworn deputy, however, does not speak to his actual employment status, nor does

it speak to the duties or the specific tasks with which he actually was “charged.”

Pena asserts that he personally assisted in the transport of ICE detainees. He

argues this function demonstrates that he satisfies requirement [C]. In making this

argument, he claims that the ICE contract required a licensed peace officer to

transport detainees. By his reasoning, if the ICE contract required a licensed peace

officer to transport detainees, and if he, in fact, transported detainees, then he must

have been a licensed peace officer.5

the individual receives no compensation for time spent on active duty,

and shall apply irrespective of the title conferred upon the individual by

any law enforcement agency.

Throughout his brief and deposition testimony, Pena uses varying terms to

5

refer to law-enforcement personnel without indicating whether he is referring to the

specific statutory definitions at issue in this case. Not surprisingly, the defendants’

deposition responsesreflect a similar looseness with commonly used everyday words

that happen also to be at the heart of the statutory interpretation question in this case:

officer, peace officer, licensed peace officer, authorized, sworn, etc. This looseness

with language gives rise to three arguments that we must reject. First, Pena refers to

the ICE contract as requiring “licensed peace officers” to transport detainees, but we

see no evidence tending to suggest the ICE contract incorporated the statutory terms

at issue in this case. Second, Pena seems to assert that his state-board licensure

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We see nothing to suggest the ICE contract incorporates Minnesota Statutes

§ 626.84. Moreover, there is no reason to conclude that the simple act of transporting

federal immigration detainees pursuant to a contract between the County and a federal

administrative agency somehow qualifies as “preventi[ng] and detecti[ng] . . . crime

and . . . enforc[ing] . . . the general criminal laws of the state.” Id. § 626.84, subdiv.

1(c)(1) (emphasis added). There is, after all, no reason to presume the immigration

detainees were suspected or had been accused of committing Minnesota offenses.

Further, even if performance under the contract to transport and house federal

administrative detainees could be characterized as “preventi[ng] and detecti[ng] . . .

crime and . . . enforc[ing] . . . the general criminal laws of the state,” Pena admits his

superiors did not instruct him to perform this function. Rather, Sheriff Kindler

testified without rebuttal that he did not instruct Pena to perform this function. The

only reasonable inference supported by the current record, then, is that Pena

unilaterally took upon himself the task of transporting the administrative detainees. 

Given this necessary inference, it does not follow that Pena was “charged with”

transporting the contract detainees, much less “charged with preventi[ng] and

detecti[ng] . . . crime and . . . enforc[ing] . . . the general criminal laws of the state.” 

Id. In reaching this conclusion, we view the term “charged” as unambiguous and as

meaning “hired to,” or, at a minimum, “instructed by superiorsto,” as contrasted with

an employee’s personal election to take on unassigned duties. 

should be deemed conclusive as to the applicability of PODPA. It is not. And third,

Pena points to various statements by Sheriff Kindler and Defendant Strom as

“admissions” that PODPA applies. No reasonable juror could view the defendants’

statements asintended to address conclusively the statutory provisions at issue herein. 

More importantly, however, interpretation of statutory language is a question of law

for the court. See Wilbur v. State Farm Auto. Mut. Ins. Co., 892 N.W.2d 521, 523

(Minn. 2017). To the extent that we use the term “licensed peace officer” to describe

Pena’s characterization of the ICE contract, then, we are merely describing Pena’s

assertions.

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To the extent the term “charged” might be deemed ambiguous, however,

canons of statutory construction compel the same conclusion. See State v. Rick, 835

N.W.2d 478, 482 (Minn. 2013) (“[I]f a statute is susceptible to more than one

reasonable interpretation, then the statute is ambiguous and we may consider the

canons of statutory construction to ascertain its meaning.”). The separately listed

requirements of section 626.84, subdiv. 1(c)(1) must all be met. “Charged,”

therefore, cannot refer simply to a person’s status as being eligible to take an action

by virtue of a license. Any such interpretation would render the term “charged”

surplusage and redundant with the express requirements of [B] licensure and [D]

power of arrest. See In re Reichmann Land & Cattle, LLP, 867 N.W.2d 502, 509

(Minn. 2015) (“[W]e construe words and phrases according to their plain and

ordinary meaning, and we give effect to all of [the statute’s] provisions; no word,

phrase, or sentence should be deemed superfluous, void, or insignificant.” (second

alteration in original) (citations omitted)). Were we to interpret “charged” as argued

by Pena, such that it encompasses voluntary or unilateral acts apart from duties or

tasks imposed by a superior, the term would effectively be read out of the statute. 

Quite simply, the definition does not refer to what a person, in fact, does or is

licensed to do. It refers to what the person is instructed or required to do.

Pena also argues he was, at the least, a “part-time peace officer.” The

definition for “part-time police officer” does not use the term “charged with” or

reference any particular category of duties. Rather, it uses the term “utilized by law

enforcement agencies” and places a cap on the number of hours per week a person

can be “utilized” and still be considered a part-time peace officer. Minn. Stat.

§ 626.84, subdiv. 1(d) (“part-time peace officer” requires that the person’s “services

are utilized by law enforcement agencies no more than an average of 20 hours per

week, not including time spent on call when no call to active duty is received,

calculated on an annual basis”). 

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To the extent the term “utilized” can be interpreted as consistent with the term

“charged” in section 626.84, subdiv. 1(c)(1), Pena’s arguments fail for the reasons

just stated. To the extent the term utilized does not require duties to be assigned by

a superior or relate to the detection, prevention, or enforcement of the general

criminal laws of the state, Pena’s arguments fail for a different reason. Without such

a limitation, all service must be considered, and it is undisputed that he worked on a

full-time basis as Assistant Jail Administrator. Therefore, if the source of Pena’s

duties and the nature of his services as “utilized” by the County are immaterial, his

work in excess of 20 hours per week excludes him from the definition of a part-time

peace officer.

III. Conclusion

Because Pena received constitutionally sufficient process and is not entitled to

the additional procedural protections of PODPA, we affirm the judgment of the

district court.6

______________________________

Pena filed a motion to supplement the record with an attorney affidavit and a

6

deposition exhibit showing he was a sworn deputy. Because the fact he was a sworn

deputy is undisputed and because we acknowledge this fact above, we deny the

motion as moot. 

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