Counselor’s termination after abuse was constitutional

The termination of a child counselor at a city-run juvenile detention center following a physical abuse incident did not violate the counselor’s due process rights because the counselor was given the opportunity to address the allegations against him in a pre-termination disciplinary conference and a post-termination grievance panel.

Background

Beginning in December 2003, Randy L. Hagans was employed by the City of Norfolk Department of Human Services as a child counselor at a city-run juvenile detention center. On Sept. 12, 2005, Hagans was involved in a restraint situation after a 17-year old detainee became agitated when Hagans told him to go to his room following verbal insubordination.

The incident was referred to the Virginia Beach Child Protective Services Office. CPS investigator Meghan Denham investigated the incident and found a level 1 disposition of physical abuse of a child. Hagans was then placed on pre-disciplinary leave.

In November 2015, Denham issued a letter detailing her findings. Hagans appeared with counsel at a pre-disciplinary conference. The city then issued a request for termination which was approved by the director of human resources, Mr. Hawks. Hagans was terminated from employment.

Hagans timely requested a grievance panel hearing. At the hearing, the city introduced Denham’s letter into evidence over Hagans’s objection. Denham was not in attendance and Hagans did not have an opportunity to cross-examine her. The grievance panel upheld the termination.

Hagans filed this lawsuit against the city. The city now moves for summary judgment on Hagan’s sole remaining claim alleging deprivation of property interests.

Analysis

It is undisputed that, as a public employee, Hagans has a constitutionally protected property interest in his continued employment and was deprived on this property right when he was terminated. Nevertheless, it is well settled that a public employee’s due process rights are not violated where the employee is given a pre-termination opportunity to respond and a post-termination administrative remedy. The record is clear that Hagans received this process by attending a pre-disciplinary conference on Nov. 20, 2015, and a post-termination grievance panel in July 2016.

Moreover, the risk of erroneous deprivation was not measurably heightened by the panel’s admission of Denham’s letter. To the extent that he was prevented from directly confronting certain adverse witnesses, Hagans was nevertheless afforded adequate alternative procedures. No lack of notice or opportunity prevented him from impeaching Hawks or the other witnesses who testified, or from introducing criminal transcript testimony by witness N.G., or from procuring testimony from Denham.

Indeed, several witnesses testified at the hearing and were subject to cross-examination, and Hagans was given a full and equal opportunity for presentation of his evidence. His failure to persuade the panel does not violate the due process clause.

To the extent that the admission of Denham’s letter violated city or state rules, such violations are insufficient to trigger a due process violation. While Hagans cites cases holding that Virginia’s grievance procedures are compliant with due process if they are followed, he fails to cite any cases supporting a conclusion that a due process violation automatically occurs upon any deviation from those procedures.

Defendant’s motion for summary judgment granted.

Hagans v. City of Norfolk, Case No. 2:17-cv-654, April 23, 2019. EDVA at Norfolk (Allen). VLW 019-3-211. 10 pp.