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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0223P (6th Cir.)

File Name: 04a0223p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

TIMOTHY MORRISON,

Plaintiff-Appellant,

v.

RICHARD L. WARREN, et al.,

Defendants-Appellees.

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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 

Before: MARTIN, RYAN, and MOORE, Circuit Judges.

_________________

COUNSEL

ARGUED: Dennis R. Thompson, THOMPSON LAW

OFFICES, Akron, Ohio, for Appellant. Susan Baker Ross,

SUMMIT COUNTY PROSECUTOR’S OFFICE, Akron,

Ohio, for Appellees. ON BRIEF: Dennis R. Thompson,

2 Morrison v. Warren, et al. No. 02-3672

THOMPSON LAW OFFICES, Akron, Ohio, for Appellant.

Sandy J. Rubino, SUMMIT COUNTY PROSECUTOR’S

OFFICE, Akron, Ohio, for Appellees.

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. Timothy

Morrison, former Deputy Sheriff of Summit County, appeals

the district court’s grant of summary judgment to Sheriff

Richard Warren and Human Relations Officer Yamini

Adkins, both of the Summit County Sheriff’s Office.

Morrison claims that procedures culminating in his discharge

from the police force violated his Fourteenth Amendment

procedural due process rights. 

I

Former Deputy Sheriff Morrison was accused of domestic

abuse by his wife, Jade Morrison, who requested and obtained

a Civil Protection Order against him on May 26, 1998. The

Order, which would become permanent after fourteen days

absent any objection, prohibited Morrison from possessing,

using, carrying, or obtaining any deadly weapon for up to five

years. As a result, Morrison was unable to satisfy his primary

job requirement to carry a gun and was discharged from the

force. 

Yamini Adkins initiated the discharge process in a May 26

telephone conversation with Morrison in which she informed

him that she was aware of the Civil Protection Order. Later

that day, she sent Morrison a letter stating that he would be

placed immediately on Administrative Leave, and instructing

him to report to a pre-discharge hearing the following day. In

an effort to save his job, Morrison filed a motion in state court

to stay and vacate the Civil Protection Order. 
No. 02-3672 Morrison v. Warren, et al. 3

At the May 27 hearing, Adkins explained the consequences

of the Civil Protection Order—i.e., discharge—and notified

Morrison that a pre-discharge conference would be held the

following day. Adkins did not supplement her oral statements

with written specifications as to the grounds for Morrison’s

discharge. 

At the pre-discharge conference, which was administered

by a neutral prosecutor, Morrison was asked to explain the

circumstances surrounding the Civil Protection Order.

Morrison presented a copy of his motion to stay and vacate

the Order and indicated that the magistrate had scheduled a

hearing on the motion for June 3. Morrison then requested to

postpone the pre-discharge conference until after the

magistrate ruled on the motion. His request was denied and

it was acknowledged that, despite the motion, the Order was

currently in effect. Morrison was then presented with a letter,

dated May 28, 1998, from Sheriff Warren, stating: “[i]n view

of the current Domestic Relations Order, you are removed

from your position of Deputy Sheriff.” At the conclusion of

the hearing, the prosecutor issued a finding of just cause and

Morrison’s discharge went into effect on May 28. 

Morrison challenged his discharge, and a post-discharge

arbitration was scheduled for March 17 and 18, 1999,

pursuant to the terms of the collective bargaining agreement

between the employees’ union and the Summit County

Sheriff’s Office. Union members, including Morrison, were

subject to the agreement, but only the union could exercise a

member’s rights in employment disputes. As a result, the

union, not Morrison, represented Morrison’s case in his

discharge hearings. Also, the union, not Morrison, had

standing to challenge the prosecutor’s finding of just cause in

state court. The union declined to make that challenge. 

During the period between the pre-discharge hearing and

the March 1999 arbitration, the magistrate vacated the Civil

Protection Order. This did not affect Morrison’s discharge,

however, and the arbitration remained scheduled. During the

4 Morrison v. Warren, et al. No. 02-3672

1

During the arbitration hearing, the Sheriff introduced testimonial

evidence that “a criminal charge of domestic violence against [the

Sheriff’s Office’s] employees will result in a finding of ‘conduct

unbecoming’ that will always justify immediate discharge without resort

to the progressive disciplinary policy. . . .” J.A. at 81. 

pendency of the arbitration, Morrison was charged on July 2,

1998, with additional acts of domestic violence against Jade

Morrison and, pursuant to a plea agreement, pleaded “no

contest” to a reduced charge of Disorderly Conduct on

September 10, 1998.

At the two-day arbitration the following March, the

arbitrator framed the issue as follows:

The question to be resolved is whether the Sheriff

violated the collective bargaining agreement when it

terminated [Morrison], and if so, what should the remedy

be?

The Sheriff’s Office acknowledged that the Civil Protection

Order—the basis for Morrison’s discharge—had been

vacated. Nonetheless, it argued that Morrison’s discharge

was required under the Office’s “zero-tolerance policy” for

domestic abuse.1 As evidence, the Sheriff’s Office submitted

Morrison’s July 2 charge and September 10 conviction for

Disorderly Conduct. 

The arbitrator then engaged in a lengthy analysis of whether

the evidence of Morrison’s Disorderly Conduct

conviction—which occurred after his discharge—should be

admitted to justify a second discharge. The arbitrator

concluded that although post-discharge conduct is not

ordinarily admissible or relevant in making a just cause

determination, Morrison’s post-discharge conduct fell into a

narrow exception recognized in arbitration precedent that

allows the admission of post-discharge conduct that is “part

of one connected whole.” The arbitrator found that because

both the Civil Protection Order and the conduct were rooted
No. 02-3672 Morrison v. Warren, et al. 5

in Jade Morrison’s allegations of domestic abuse, he would

consider evidence of Morrison’s post-discharge conduct. 

On July 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 invalid.

However, the arbitrator also found that “the Sheriff is justified

in not returning [Morrison] to its employ,” because

Morrison’s discharge was justified by his post-discharge

conduct, stating:

It would be a serious problem for the Sheriff if

[Morrison, upon reinstatement while subject to the

conviction] were to violate his probation . . . and have to

be locked up with some of the criminals he arrested.

Such a reasonably foreseeable situation is intolerable and

supports a finding that just cause exists for . . .

termination.

The arbitrator awarded Morrison back pay from May 28,

1998 (the date of his “premature” discharge), to July 2, 1998

(the date upon which the domestic violence charge was filed).

Fashioning a remedy similar to that provided in section 10.4

of the collective bargaining agreement, the arbitrator also

decided that Morrison 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 that Morrison’s discharge was effective on

September 10, 1998. 

Morrison, without support from the union, instituted an

action in state court to appeal the arbitrator’s award. The

state court ruled that Morrison had no standing to bring this

claim under the collective bargaining agreement, which gives

exclusive rights to the union to appeal an arbitrator’s award.

The state court’s judgment was affirmed on appeal. 

6 Morrison v. Warren, et al. No. 02-3672

Morrison then filed an action in federal district court,

claiming, among other things, that the Sheriff’s Office

violated his procedural due process rights by failing to

provide these processes:

(1) adequate notice of the pre-termination hearing of

May 28, 1998;

(2) any notice or pre-termination hearing relating to

discharge based on his post-discharge conduct; and

(3) any review of the arbitrator’s decision relating to his

post-discharge conduct.

As to the first claim, the district court ruled that Morrison

received sufficient oral notice of the May 28 hearing. With

regard to second claim, the district court ruled that Morrison

failed to “explain how the post deprivation procedures set

forth in the collective bargaining agreement” do not satisfy

the processrequirementsvis-a-vis the post-discharge conduct.

On the third claim, the district court found that it was not

permitted to review the substance of the arbitrator’s award

and that it was satisfied that the arbitrator “carefully

considered whether Morrison’s post-termination conduct was

properly before him in determining the propriety of

Morrison’s discharge, and set forth numerous reasons for its

inclusion.” 

For the reasons discussed below, we agree that oral notice

was sufficient. As to Morrison’s other contentions, however,

more consideration than the district court provided is due.

The district court cut short its due process analysis because it

found that Morrison was requesting substantive review of the

arbitrator’s award. We disagree with this finding. Rather

than seeking substantive review, Morrison is claiming that the

admission of his post-discharge conduct lacked procedural

safeguards—e.g., notice and an opportunity to contest the

evidence. Morrison contends that he was not able to argue his

case because he was taken by surprise by evidence of a new
No. 02-3672 Morrison v. Warren, et al. 7

charge; this contention raises at least a colorable claim of

denial of due process. See Carter v. Western Reserve

Psychiatric Habilitation Ctr., 767 F.2d 270, 273 (6th Cir.

1985) (grievant’s claim that he was denied the right to argue

his case before the decision makers raises at least a colorable

claim of denial of due process). Because 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 judgment. Buckner v. City of Highland Park,

901 F.2d 491, 494 (6th Cir. 1990). Summary judgment is

proper when the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, 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.” FED. R. CIV. P. 56(c). This motion for

summary judgment involves no disputed issue of fact; thus,

we must decide whether, as a matter of law, Morrison was

afforded due process. In doing so, we view the evidence and

draw all reasonable inferences in favor of Morrison, as the

nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317,

323-24 (1986); Berlin v. Michigan Bell Tele. Co., 858 F.2d

1154, 1161 (6th Cir. 1988). 

B. Waiver of Section 1983 Claim 

Sheriff Warren and Adkins characterize this appeal as

Morrison’s attempt to “effect a substantive review of the

arbitrator’s [award]” that was waived as a result of the union’s

decision not to appeal it. Sheriff Warren and Adkins argue

that parties who contractually agree to binding arbitration, as

Morrison has here, waive judicial review except over the

determination of “whether there is a rational nexus between

the collective bargaining agreement and the [arbitrator’s]

8 Morrison v. Warren, et al. No. 02-3672

award, and whether the arbitrator was corrupt or committed

gross procedural improprieties.” Appellee’s Br. at 9 (citing

Cuyahoga Cmty. Coll. v. Dist. 925, Serv. Employees Intern.

Union, AFL-CIO, 42 Ohio App.3d 166, 167 (Ohio App. 8th

Dist. 1988)). 

This argument fails for two reasons. First, Morrison is not

requesting a substantive review of the arbitrator’s award;

rather, he asks this Court to consider whether the evidence of

his post-discharge conduct was used in accordance with due

process requirements. Due process requires notice of the

charges and a meaningful opportunity to contest the evidence.

See Carter, 767 F.2d at 273 (at a minimum, procedural due

process requires that the discharged employee be permitted to

call witnesses and produce evidence on his own behalf, and

to know and have the opportunity to challenge the evidence

against him). Thus, if evidence is admitted to support a new

charge for which an employee was given no notice and had no

time to prepare, the employee is entitled to assert in federal

court a claim for violation of due process. Because Morrison

claims that his procedural due process rights were violated

when, to his surprise, evidence was admitted to support a new

charge—which ultimately was the basis for his

discharge—judicial review is appropriate. 

Second, the arbitration clause in the collective bargaining

agreement lacks the clear and unmistakable language that is

necessary to waive procedural due process rights, and thus

cannot be 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’ federal

statutory rights in a collective bargaining agreement must be

“clear and unmistakable”); Ciambreillo v. County of Nassau,

292 F.3d 307 (2nd Cir. 1991) (binding arbitration clause in

collective bargaining agreement did not waive the employee’s

Fourteenth Amendment procedural due process right because

it lacked “clear and unmistakable language”). The only

reference to waiver in Morrison’s arbitration clause relates to
No. 02-3672 Morrison v. Warren, et al. 9

the Sheriff’s Office’s disciplinary procedures, not the

Fourteenth Amendment. The clause states: 

Failure to elect and pursue one of these three options

[appear at the hearing; appear at the hearing with

counsel; or elect in writing to waive the hearing

opportunity] will be deemed a waiver of the employee’s

rights to disciplinary hearings.

Thus, neither the arbitration agreement nor any actions or

omissions pursuant to that agreement waives Morrison’s

ability to file a Section 1983 procedural due process claim.

His claims are properly before us. 

C. Procedural Due Process

To resolve procedural due process issues, we engage in a

two-step analysis. Johnston-Taylor v. Gannon, 907 F.2d

1577, 1581 (6th Cir. 1990). We initially determine whether a

protected property interest exists and then determine what

procedures are required to protect that interest. Id. Because

Morrison’s property interest in his continued employment is

undisputed, we move to the second step. 

1. Pre-termination Process 

The Supreme Court has held that an employee who has a

protected property interest in continued employment is

entitled to a pre-termination hearing, but that the pretermination hearing need not be elaborate. Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Morrison

claims that the Sheriff’s Office violated his procedural due

process right to a meaningful pre-termination hearing by

neglecting to provide written notice of the specific charges

against him. Yet the Court determined in Loudermill that

“[t]he tenured public employee is entitled to oral or written

notice of the charges against him.” Id. at 546 (emphasis

added). The oral notice provided by Adkins to

Morrison—that he would be discharged as a result of his

10 Morrison v. Warren, et al. No. 02-3672

inability to carry a gun due to the Civil Protection

Order—was sufficient. 

Procedural due process also requires “an explanation of the

employer’s evidence and an opportunity for the employee to

present his side of the story.” Id. at 542. The Sheriff’s Office

also satisfied this requirement. Adkins explained that the

charge was based on the Civil Protection Order; then she

scheduled a pre-termination hearing for May 28, at which

Morrison made an informed presentation. Inasmuch as

Morrison received notice of the charge against him and was

afforded an opportunity to rebut it, the pre-termination

hearing satisfies constitutional requirements. See id. 

2. Post-termination Process

In Morrison’s post-termination arbitration, the arbitrator

held that the Sheriff’s Office prematurely discharged

Morrison, but that it was justified “in not returning [Morrison]

to its employ” based on his post-discharge domestic violence

charge and related conviction. The parties give differing

characterizations of the arbitrator’s ruling. While the

Sheriff’s Office argues that the arbitrator considered

Morrison’s post-discharge conduct only to construct an

appropriate remedy for the invalid discharge, Morrison

contends that the arbitrator, rather than constructing a remedy,

found a distinct justification for a second, valid discharge.

We agree that Morrison suffered a second discharge.

However, in this context our characterization of the

arbitrator’s award is irrelevant. Under either characterization,

Morrison held a property interest in his employment from the

moment his initial discharge was deemed

invalid—conceptually, when a discharge is deemed invalid,

the property interest was never lost. Therefore, he deserved

all the protections that procedural due process requires for the

deprivation of a property interest, whether that deprivation is

characterized as a discharge or a failure to reinstate. 

 An essential principle of due process is that a deprivation

of property “be preceded by notice and opportunity for
No. 02-3672 Morrison v. Warren, et al. 11

hearing appropriate to the nature of the case.” Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

Although the formality and procedural requisites for the

hearing can vary, “depending upon the importance of the

interests at stake and the nature of the subsequent

proceedings,” Loudermill, 470 U.S. at 545 (quoting Boddie v.

Connecticut, 401 U.S. 371, 378 (1971)), the fundamental

requirement of procedural due process is that an individual be

given an opportunity to be heard at a meaningful time and in

a meaningful manner, Mathews v. Eldridge, 424 U.S. 319,

335 (1976). At the least, this requires notice of the charges

and an opportunity to view and contest the evidence

supporting them. Loudermill, 470 U.S. at 546. Such notice

must be reasonably calculated, under the circumstances, to

apprise the interested parties of the pendency of an action and

afford them an opportunity to present their objections.

Carter, 767 F.2d at 273.

Morrison’s arbitration, which amounted to a postdeprivation hearing on his first discharge and both the preand post-deprivation hearings for his second discharge, was

extremely abbreviated in terms of satisfying due process for

the second discharge. Morrison, anticipating a hearing on his

original discharge, instead became aware—only at the

arbitration—that he would be discharged on the basis of the

domestic violence charge. Under the procedures set forth in

the collective bargaining agreement, and in the absence of the

first, invalid discharge, Morrison would normally get an

opportunity, pursuant to the collective bargaining agreement,

for pre- and post-discharge hearings on the domestic violence

charge. Thus, we must determine whether the abbreviated

process that he received satisfies due process requirements. 

Sheriff Warren contends that it does, arguing that where the

grievant is aware of his post-discharge conduct (and the

consequential charge and conviction), oral notice—even if

only provided at the arbitration hearing—of the intent to

submit the domestic violence charge is sufficient to satisfy

due process requirements. The Sheriff states:

12 Morrison v. Warren, et al. No. 02-3672

[Morrison] can hardly argue that he was surprised when

he received notice that his former employers intended to

introduce evidence of the subsequent conviction.

[Morrison] argues in his brief that evidence of this charge

was presented at his post-deprivation hearing—he does

not, nor can he allege, that he was not given an

opportunity to respond to the evidence during the twoday arbitration.

We recognize that abbreviated process may be justified in

some circumstances. Whether it is justified here depends on

our application of the constitutional balancing test set forth in

Mathews, 424 U.S. at 335. The four Mathews factors are: (1)

the private interest affected by the official action; (2) the risk

of an erroneous deprivation of such interest through the

procedures used; (3) the probable value, if any, of additional

or substitute procedural safeguards; and (4) the government’s

interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute

procedural requirement would entail. Id.

With regard to the first two factors, Morrison’s property

interest in his continued employment was not subject to any

risk of erroneous deprivation through the procedures used.

His Disorderly Conduct conviction, based on charges of

domestic violence, required his discharge under the Sheriff’s

Office’s “zero-tolerance policy;” neither reinstatement nor

additional recovery was possible. As to the third factor,

additional procedural safeguards would provide no value:

again, Morrison’s conviction required his discharge, and

nothing that a second hearing would provide could avoid that

outcome. 

Finally, with regard to the government’s interest, there is an

undeniable argument in favor of upholding the abbreviated

process. The employee was a Deputy Sheriff charged with

protecting the citizens of Summit County. The government

interest in effective law enforcement is extremely high and

the need to speedily replace public safety officers who are

convicted of crimes is obvious. Buckner, 901 F.2d at 497
No. 02-3672 Morrison v. Warren, et al. 13

(quoting Loudermill, 470 U.S. at 546). The interests in

efficiently employing safe and effective public safety officers

are not outweighed by Morrison’s futile interest in

reinstatement or additional recovery, particularly when he has

already been convicted and the conviction requires his

discharge. Therefore, the abbreviated process, in our view,

constitutes a sufficiently meaningful opportunity to satisfy

due process requirements.

There remains the question of whether Morrison should

have been afforded notice and an opportunity to contest the

domestic violence charge at some time prior to the arbitration.

We hold that Morrison had plenty of time during the

arbitration—two full days, in fact—to know of and rebut the

second charge against him. Under the specific facts of this

case, we conclude that the arbitration sufficiently

incorporated all of the due process safeguards that the

Constitution requires, and Morrison suffered no due process

violation.

III

For the foregoing reasons, we AFFIRM the judgment.