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### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
T IMOTHY M ORRI SON ,

Plaintiff- Appellant

,

v.

R ICHA RD L. W ARREN , et al., Defenda nts-Appe llees. X - - - -
> , - - - - - N No. 02-3672

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 00-01341—Dan A. Polster, District Judge.

Argued: January

28, 2004 Decided and Filed: July 13, 2004

Befor e: MARTI

N, RYAN, a

nd MOORE, C ircuit Judg es.

_________________ COUNSEL

ARGUED: Dennis R. T homp s on, THOMPSON LAW OFFI CES, Akron , Ohio, for Appellan t. Susan B aker Ros s, SU MM IT COUNTY PROSECUTOR’S OFFICE, Akron, Ohio, for App ellees. ON BRI EF: Dennis R. Thompson, 2 Morrison v . War ren, et al

. No. 02-3672

THOMPSON LAW OF FICE S, Akron, Ohio, for A ppellant

. Sandy J. Rubino, SUMM IT COUNTY PROSECUTOR’S OFFI CE, Akron , Ohio, for Appelle es.

_________________ OPINION

_________________ BO YCE F. MARTIN, JR., Circuit Judge. Ti moth y Morrison, former D eputy

Sheriff of Summit Cou

nty , appea

ls the distric t court ’s grant of summary judgment to Sheriff Richard Warren andHuman Relations Officer Yamini Adkins, both of the

Summit County

Sh eri ff’s Office. Morrisonclaims tha

t proced ures cul minating in his disch arge fromt he po lice force violated his Fourteenth Amendment procedural due process rights.

I

Former Deputy Sheriff Morrison

was acc used of domestic abuseby h

is wife, Jade Morrison, who requested and obtained
a Civil Prote ctio n O rder against him on May 26, 1998. The Order, wh ic h w ou ld be co me pe rm an en t a ft er fo ur te en da ys absent any objection, prohibited Morr ison fro m po ssess ing, usin g, carry

ing, or obtaining any

deadly we apon for

up to five ye ars. As a resu

lt, Morris on was una

ble to satisfy

his primary jo b requirement to carry

a gun and was discharge d from the force.
Yamini Adkins initiated the discharge process in a May 26 telephone convers ation with Morrison inwhich she informed him th a t she was aware of the Civil Protection Order. L ater that day , she sent

Morrison a letter stating th at he would be placed immediately on Administrative L eave, and instructing him to report to a pr e-d is cha rge hea rin g th e fo ll owi ng d ay. In
aneffort t o save his job, Morrison filed a motion in state court to stay and vaca

te the Civil Protection Order.No. 02-3672 Morrison v . War ren, et al

. 3

At the May 27 hear

ing, Adkins explained the consequences of the Civil Protection Order—i.e., discharge—and notified Morrisonthat a pre-discharge conference would be held the following day. Adkins did not supplement her oral statemen

ts
w it h written specifications as to the grounds for Morrison’s discharge.

At the pre- dischar

ge con ferenc e, which

was adm inistered by a neutral prosecutor, Morrison was aske d to e xp lain the circumstances surrounding the Civil Protection O rd er. Morrisonpre sen ted a copy of his motion to

stay and vac ate the Order a

nd in d icated that the magistrate had scheduled a hearing on the motion for June 3. Morrison then request ed to postpone the pre-discharge c on ference until after the magistr ate ruled on t

he motion. His reque st

was denied and it was acknowledged that, despite the motion, the Order was curren tly ineffec t. Morrison was then presented with a letter, dated May 28, 1998, from Sheriff Warren, stati ng: “[i]n view of the current Domestic Relations Order, y ou are removed from your position of Deputy Sheriff.” At the conclusion of the hearing, the prosecutor issued a finding of just ca use and Morrison’s discharge went into effec t on May 28.

Morr ison challenged his discharge, a nd a post-discharg e arbitration

was sche duled for

March 17 and 18, 1999, pursuant to the terms

of the collective bargaining a greement between the emplo ye es’ union

and the Su

mmit County Sheriff’s Office. Union

members, including Morrison, were subject to the agreement, but

only the union could exercise a member’s rights in em

ploymen t disputes. As a result, the union, not Morrison, represented Morrison’s ca se in his disch arge hearings. Also, the union, not Mo rrison, had standing to challe

nge the prosecu tor’s fin ding of j ust

cause in state court. The union declined to make that challenge

. During the period between the pre-discharg e h eari ng and the March 19 99 arbitr

ation , the magistrate v acated the Civil Pr otecti onOrder. This did not affect Morrison’s discharg e, however, and the arbitration remained scheduled. During the 4 Morrison v . War ren, et al

. No. 02-3672

1 D urin g the ar

bitr ation hearin g, the Sheri ff introduced test imonial evidence tha t “a crimi nal charge of domestic violence agai nst [the Sher iff’s Office ’s] emp loye es will resul t in

a fi nding of

‘conduct unbecoming’ that

will always just ify i mmediate discharge without resort to the p rogre ssive d isciplina ry po licy. . . .” J.A. at 8 1. pendency of the arbitration, Morrison was cha rged o n July

2, 1998, with additional acts of domestic violence against Jade Morrisonand, pursuant to a plea agreeme nt, pleade d “no contest” to a reduced charge

of Disorderly Conduct o n September 10, 1998.

At the two-d ay a rbitration the following March, the arbitra tor framed the iss

ue as fol lows:
The questi on to be resolved is whether the Sheriff violated the collective bargainin g agr eement w

hen it terminated

[Morr ison], and if so, what should the remedy be?
The Sheriff

’s Offic e ackno wledge d that the Civil Prote ctio n Order—the basis for

Mo rri son’s discharge—had been vacated. N oneth eless , it ar gued th at Mor rison ’s dis charge
was required under the Office’s “zer o-tolerance policy

” for domestic abuse. 1 As evidence, the Sheriff’s Office submitted Morrison’s July 2 ch arge and September 10 conviction for Disorderly Conduct.
The arbitrator

then eng aged in

a lengthy analysis of whethe

r the e vidence of Morrison’s Disorderly Conduc t conviction—whichoccurred after his discharg e—should be admitted to jus ti fy a sec ond discharge. The arbitrator
co ncluded

that although post-discharge conduct is no t ordinar ily admissible

or rele vant in mak ing a jus t cause determination, Morrison’s post-disc harge conduct f

ell into a narrow exception recognized in arbitration preceden t t hat allow s the a dmission of post-discharge conduct that is “part of one connected whole.” The arbitrator found tha tbecause both the Civil Protection Order and the conduct were rootedNo. 02-3672 Morrison v . War ren, et al

. 5

in Jade Morrison’s allegations of domestic abuse, he woul d consider evidence of Morrison’s post-discharg e conduct.

OnJuly 30, 1999, the arbitrator issued a 43-page decision denying in part and sustaining in part the union’s position. The arbitrator first found that because the Civil Protection Order had been vacated, the May 28 discharge was i nvalid. However, the arbitrator also found that “the Sheriff is justified innot retur

ning [Mor

riso n] to its employ,” because Morrison’s dischar

ge was justified by h is p ost -disc harge condu ct, st ating:

It would be a serious problem for the Sher iff if [Mo rrison, upon rein statemen t while sub

ject to th e conviction] were to violate his probation . . . and ha

ve to be locked up with some of the criminals he arrested. Such a reasonably

foreseeable situation

is intolerable and supportsa finding that just cause exists for

. . . termination.
The arbitra

tor awar ded Mo r rison back pay

from May 28, 1998 (the date of his “premature” discharg e), to July 2, 1998 (the date upon which the domestic violence charge was filed)

. Fashioninga remedy

similar to that provided in

section 10.4 of the col le ctive ba

rgaini ng ag reemen t, the ar bitrator also decided that Morr ison should

be treated as if he were on leave with vacation pay

for the period between July 2, 1998, to September

10, 1998 (the date of his conviction). Finally , the arbitrator held t hat Morrison’s discharge was eff ective on September 10, 1998. Morrison, withou t sup port from the union, instituted an actionin state court to ap peal the arbitrator’s award. The state court ru

led that Morrison ha

d no standi

ng to bri ng this claim under the collective bargaining agr eement, which

gives exclusive rights to the union to appeal an arbitrator’s award. The state court’s judgment was affirmed on a ppeal. 6 Morrison v . War ren, et al

. No. 02-3672

Morrisonthen filed an action in fede ral dis trict cou rt, claim ing, among other things, that the Sheriff’s Offic e violated his pr ocedur al due pr

ocess ri ghts by

failing to provide t hese pro cesses: (1) adequa

te noti c e of the pre-termination hearing of May 28, 1998; (2) any notice o rpre-te

rmination hearing relating to disch arge based on

his post-disc

harge conduct; and (3) any review of the arbitrator’s decision relating to his post-disc harge conduct.

As to t he first c laim, the d istrict c ourt rule d that Mor riso n received sufficient oral notice of the May 28 hear ing. Wi th regard to second claim, the district court ruled that Morrison failed to “explain how the post deprivation proc edures set forth in the col lective b argai

ning ag reemen t” do not s atisfy the proc ess require

ments vis-a -vis the p ost-discharge c onduct. Onthe third cl aim, the district court found that it was not permitted to revie w the subs tance of

the arbi tr ato r’s award and that it wa s satisfie d that th e ar bitrator “care fully considered

w heth er Morrison’s post-termination conduct was properl y befor e him in determining the propriety of Morrison’s discharge, and set forth numerous re asons for its inclusion.”
For the reasons discussed below, we agree that oral notice
was sufficie

nt. As to Morrison’s other contentions, however,
m o re consideration than the district court provided is due. The district court cut

short its due proc ess anal ysi s becaus e it found that Morrison was requesting substantive review of the arbitra to r’ s award. We disagree with this finding. Rather thanseeking substantive re view, Morrison is claiming that the admission of his po s t-discharge conduct lacked pr ocedural safegu ards— e.g., notice and an opportunity to conte st the evidence. Morrison contends that he was notable to a rgue h is
casebec ause h e was taken by surprise by evide

nce of a newNo. 02-3672 Morrison v . War ren, et al

. 7

charge; this cont ention raises at least a colorable claim of denial of due process. See Carter v. Western Reser ve Psychiat ric Habilitatio n Ct

r. , 76 7 F.2d 270, 273 (6th Cir. 1985) ( grieva

nt’s clai m that he w as denie d the rig ht to argue his casebefore the decision makers r aises at l east a c olorable claim of denial of

due proc ess). B ecause

Morrison ’s claims implicate fundamental due process issues under the Fourteenth Amendment, we now consider them.

II

A. Standard of Review

We engage in a de novo review of the district court’s grant of summary jud

gment. Buckne

r v. City of

Highland P

ark , 901 F .2d 491, 494 ( 6th Cir. 199 0). Summar y ju dgment i s proper when the “pleadings, depositions, answer s t o in terrog atories, and admissions on file, together with the affida vits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” F ED

. R. C IV

. P. 56(c) . This motion for summary judgmen t involves no dispute d issue of

fact; thu s, we must decide whether, as a matter of law, Mor ri son was afforded due process. In doing

so, we view the evidence and drawall r eason able inferences in favor of Morrison, a s the nonmoving party. See Celo tex Corp. v. Catrett , 477 U.S. 317, 323-24 (1986); Berlin v. MichiganBell Te le. Co. , 858 F.2d 1154, 1161 (6th Cir. 1988).

B. Wa iver o f Sec tion 1983 C laim
Sh eri ff Warren and Adkins characterize this appeal as Morriso n’ s attempt to “effect a substantive review of the arbitrator’s [award]” that

was waiv ed as a r

esult of the union’s decisionnot to appe al it. Sher iff Warr en and Ad

kins a r gue that parties w ho contra ctually agree to binding

arbitration, as Morrisonhas here, waive judicial review e xcept over the determination

of “whether there is a rational nexus between the collective bar gaining agree ment and t

he [arbitr ator’s] 8 Morrison v . War ren, et al

. No. 02-3672

award, and whether the arbitrator was corr upt or co mmit ted gross procedural improprieties.” Appellee’s B r. at 9 (citing Cuyahoga Cmty. Coll. v. Dist. 925, Serv. Employees Intern. Union, AFL-CIO , 4 2 Ohio App .3d 166, 16 7 (Ohio Ap p. 8th Dist. 1988)).
This argume

nt fails for

two reasons. First, Morrison is not requestinga substantive review of the arbitrator’s awa rd; rather, he asks this Courtto consider whether the evidence of his post-d ischarg e conduct was used in accor dance w ithdue process requirements. Due process requires notice of the charges and

a meaningful opportunity to contest the evidence. See Carter, 767 F. 2d a t 273 (at a minimum, procedural due process requires that

the dischar

ged emp loy ee be pe

rmitted to callwit nesses and produce evidence on his own behalf , and to know and have the opportunity to challenge t

he e vidence agains thim). Thus , if evide nce is admitted to support a new charge for which an employ ee was given

no notice and had no time to prepare, the employ ee is entitled to assert in federal court a claim for violation of

due process. Because Morrison claims that his procedural due proce ss ri ghts were violated when, to his surpr

ise, evid ence wa s admitted

to support a new charge—which

u ltimately

was the basis for hi s discharge—judicial review is appropria te.
Se cond, the arbitration clause in the collective barg aining agreement

lacks the clear a nd unmista

kablelangu age tha

t is necessary to waive p

rocedur al d ue p rocess rights, and thus cannot b e interpreted to waive Morrison’s ability to assert those rights. See Wright v. Universal Mar. Serv. Corp. , 525 U.S. 70, 78-79 (1998) (waiver of union members ’ fe deral statutory rights in a

collecti ve barg aining a

greement must

be “clear and unmistakable”); Ciambreillo v. County of Nassau , 292 F.3d 307 (

2nd Cir. 19 91) (bind

ing arb itration c lause in collective barga ining agreement did not waive the employ ee’s Fourtee nth Amendmen

t proced ural due process right be cause it lacked “clear and unmistakable lang uage”). The only reference to waiver in Morrison’s arbitra tion clau se rela

tes toNo. 02-3672 Morrison v . War ren, et al

. 9

the She ri ff’s Office’s disciplinary procedures, not the Fourtee nth Amend

ment. The

clause s tates:

F ailure to elect a

nd pursue

one of the se three

opti on s [appear at the he aring; appear at the he aring w

ith counsel; or elect in writing to waive t he hearing op po rt un it y] will be deemed a waiver of the employee’ s rights to disciplina

ry hearing s. Thus, neither the a rbitration agreement nor any actions or omissions pursuant

to that ag

reemen t waives M o rris on’s ability to file a Section 1 983 pr ocedura l due proc ess claim

. His claims are properly

before us.

C. Pro cedural D ue Proc ess
To resolve procedural due process issues, we en gage in a two-step analysis. Johnston-Tay lor v. Gannon , 907 F.2d 1577, 1581 (6th Cir. 1990) . We initially determine whether a protected pr op er ty i nte rest exists and then determine what procedures are required to prote ct that interest. Id

. Becau se Morrison’s property

interest in his continued employment is undisputed, we move to the second step.

1. Pre-te rmination P

rocess
The Supreme Court

has held that an e mploy ee who ha s a protected property intere st in continued employ ment is entitl edto a pre-termination hearing, but that the pretermination hearing need not be elabora te. Cleveland Bd. of Educ. v. Louder

mill , 470 U.S. 532, 542 (1985). Morrison claims that the Sheriff’s Office violated his procedural due process right to a

meani ngful pre-termination hearing by neglecting

to provide written notice of the spe ci fic charges agains thim. Yet th e Court determ ined in Loudermil

l that “[t]he tenured public employe e is entitled to oral or wri tten
no tice o f the charges ag ainst him.” Id . at 546 (e mphasis added). The or al notice pr ovided by

Adkins to Morrison—that

he would b e discha

rged a s a resul

t of his 10 Morrison v . War ren, et al

. No. 02-3672

inability to carry

a gun due to the Civil Pro te ction Order—was sufficient.
Procedural due process

also requires “an explanation of the employer’s

evidence and an opportunity for the employ ee to present his side of

the story.” Id . at 542. The Sheriff’s Office also satisfied this requirement. Adkins explained that the charg e wa s based on the Civil Protection Order; then she scheduled a pre-termination hearing for Ma y 28, at whic h Morriso n made an informed presentation. Ina smuch as Morris on rece ived notice of the charge against him and was afforded an oppor

tunity to rebut it, the pre-termination hearing satisfie s constitut

ional re quireme

nts. See id.

2. Post-te

rmination P

rocess InMorrison’s post-termination arbitration, the arbitrator held that the Sheriff’s Office prematurely discharged Morrison, but that it was justified “in not re turn ing [Morrison] to its employ” based

on his post-discharge domestic violence charge and related

convi ction. The parties give differing chara cteri zations of the arbitrator’s ruling. While the Sheriff’s Office argues that the arbitrator considere d Morrison’ s po st-discharge conduct only to construct an ap pr opriate

remedy f

or the invalid discharge, Morrison contends that the arbitrator, rather than constructing a r em ed y, found a distinct justification for a second, va li d discharge. We agree that Morrison suf fered a second discharg e. However, in this context our charact erizat ion of the arbitrator’s award is irrelevant. Under either c haracterization, Morrisonheld

a proper ty in terest in his employment from the
m oment his initial d ischarg e was d eeme d in va li d— co nc ep tu al ly, when a d i scharge is deemed invalid, the propert

y in terest was never lost. Therefore, he deser ved all the protections that proceduraldue process requires for the deprivation

of a prop erty

interest , whethe

r that de privation is characterized as a discharg e or a failure to reinstate. An essential principle of due process is that a deprivation of property “

be preceded by

no tice and opportunity forNo. 02-3672 Morrison v . War ren, et al

. 11

hearing appropriate to the nature of th e case.” Mullane v. Cent. Hanover Bank &

Trust Co. , 339 U.S. 306, 313 (1950). Alth ough the formal it y a nd procedural requisites for the hearing can vary , “depending upon t he importance of the interest s at stake and the nature of thes ubsequent proceedings,” Loudermil

l , 470 U.S. at 545 (quoting Boddie v. Connecticut , 401 U.S. 371, 378 (1971)), the fundamental requirement

of proce dural due

process is that an individual be given anopportuni

ty to be hear d at a meaning ful time a

nd in
a meaningful manner, Mathews v. Eldr idge , 424 U.S. 319, 335 (1976). At the least, this requires notice of the ch arg es and an opportunity to view and co nte st the evidence supporting them. Loudermil l , 470 U.S. at 546. Such notice must be reasonably

calculated, under

the circumst

ances, t o apprise the interested parties of

the pendency

of an action and afford them an opportunity to present their obje ctions. Carter , 767 F.2d at 273. Morrison’s arbitration, which amounted to a postdeprivation

hear ing o n his first discharge and both the preand post-deprivation hearings for his second disch arge , was extremely abbrevi ated in te

rms of sat i sfy ing due process for the second discharge. Morrison, anticipating a hearing on his original discharge, instead became a ware—only a

t the arbitration—that

he would be discharged o n th e basis of the domestic violence charge. Under the procedu res set f orth in the collective bargaining ag reement, and in the absence of the first, invalid disch arge, Morrison would normally g et an op po rt un it y, pursuant

to the col lective b argai

ning ag reemen t, for pre- and post-discharge hearing s on the domestic violence charge. Thus, we m

ust deter mine whet

her th e ab breviated process that he received satisfies due proc ess requirements. Sheriff Warren contends that

it does, arguing that where the gri evant is aware of his post-discharge conduc t (and th e consequential ch arge and conviction), oral notic e—even if onl y provi ded at the

arbitra tion hear ing—of t he intent to submit the do mesti c viol ence ch arge is su fficient to satisfy due proc ess requ

irements . The Sher

iff state s: 12 Morrison v . War ren, et al

. No. 02-3672

[Morrison] can hardly

argue that hewas surprised when he receiv ed notice

that his former e

mploy ers inten ded to introduce ev idence of the subsequent conviction. [Morrison] argues in his brief that evidence of

this charge
was presented at his post-dep ri vation hearing—he does not, nor can he allege, that he was not given an opportuni ty to respond to the ev idence during the twoday arbitra

tion. We recogniz e that ab

breviat ed proce ss may

be justifi ed in
some circumst

ances. Whether it

is justified here depends on
our application of the constitutional balanci ng test set forth in Mathews, 424 U.S. at

335. The four Mathews factors are: (1) the private

interest affec ted by

the offic ial action; (2) the risk of an erroneous de

privation of such in

terest th rough t he procedures used; (3) the probable value, if an y, of additional
or substitute procedural safeguards; and (4) the government’s interest , including

the function involv ed and the fisc a l and adm i nistrative burdens t hat the a

dditional or substitut

e procedural requirement would entail. Id

. Withregard to the fi rst tw o factors, Morrison’s prope rty interest in h is continued employment was not subject to any risk of erroneous deprivation through the proce dure s us ed. His Disorderly Condu ct conviction, based on charges of domestic violence, required his discharge unde r the Sheriff’s Off ice ’s “zero-tolerance policy ;” neither reinstatement nor additional recove

ry was possib le. As to th e thir d f actor, ad diti onal procedural safeguar ds would provide no value: again, Morrison’s conviction required his disch a rge, and nothing that a second

hearing would provide could avoid that outcome. Fi na ll y, with reg ard to the government’s interest, there is an undeniab le argume

nt in fav or of upholding the abbreviated process

. The employee

was a Depu

ty Sheriff cha

rged w ith protectingthe citizens of Summit County. The governm ent interest in ef fe ct iv e l aw en fo rc em en t i s e xt re me ly high and the need to sp eedily

replac e publi c safety office rs who are convicted of crim es is obvious. Buckner , 901 F.2d at 497No. 02-3672 Morrison v . War ren, et al

. 13

(quoting Loudermil

l , 470 U.S. at 546). T he i nterests in efficie ntly employing saf

e and effective public safety officers
are not outwe ighed b y Morrison’s futile in

te rest in reinstatement

or additiona l recove ry , partic ularly when he has
a lr eady been co nvicted a

nd the con

viction re quires hi s discharge. Therefore, the abbreviated pr o cess , in our view, constitutes a sufficiently mea ningful opportunity to satisfy due proc ess requ

irements

. There remains the question of whether Morrison shoul d have been af

forded n otice an d an oppor

tunit y to c ontest the domestic violence charge at

some time prior to the arbitration. We hold that Morrison h ad pl enty of time during the arbitration—two full day

s, in fact—

to know of and rebut the
s econd charge aga

inst him. Under the specific fact s of thi s case, we conc lude that the arbi

tration sufficien

tly incorporated

all of the du e process safeguards that the Constitution requires, and Morrison suffered no due process violation. III For the f orego ing rea sons, we A

FFI RM the judg

ment.