The May 27, 2008, Issue of the IMLA News, put out by the International Municipal Lawyers Association, has several articles of interest for municipalities. One case, decided earlier this month by the 9th Circuit, clearly shows that there remains a broad requirement for pre-termination hearings.
In the case of Levine v. City of Alameda, the property manager for the City of Alameda was informed that he was being laid off. Levine asked the City Manager for a pre-termination hearing as he felt his layoff was a pretext. Flint forwarded Levine's request to the head of HR and asked that 'Levine’s due process rights be respected.'
HR subsequently responded to Levine stating that he was not entitled to a pre-termination hearing under his union contract because he was being laid off and not discharged for cause. However, HR offered to meet with Levine to discuss layoff procedures and retirement benefits, and Levine did end up having a short meeting with HR.
After the layoff, Levine brought a Section 1983 action, claiming the City violated his due process rights under the Fourteenth Amendment. The district court ruled for Levine and held that his procedural due process rights were violated as, despite the express language of the union contract, he was entitled to a full evidentiary hearing before a neutral third-party. This was only a pyrrhic victory, however, as the trial court found that all of the defendants were immune from liability.
On appeal, the Ninth Circuit affirmed stating that Levine was a civil servant who had a property interest in continued employment and was entitled to have a hearing before his layoff. Again the union contract's express terms were ignored and Levine was found to be entitled to more than a brief meeting to discuss benefits. What the Ninth Circuit required was for the City to 'give Levine a meaningful opportunity to respond to the layoff decision.' As with the trial court, Levine's victory was in name only as the Ninth Circuit agreed that all of the defendants were immune from liability.
This case illustrates that, regardless of union contracts or city policies, it is important to give eligible employee a 'meaningful opportunity' to respond to the reasons for his/her termination. For more information see: