                 Filed 3/13/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 77


Aaron L. Cockfield,                                         Plaintiff and Appellant

      v.

City of Fargo,                                             Defendant and Appellee


                                  No. 20180336


      Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven E. McCullough, Judge.

      AFFIRMED.

      Opinion of the Court by Jensen, Justice.

      Leo F. J. Wilking, Fargo, ND, for plaintiff and appellant.

      Howard D. Swanson, Grand Forks, ND, for defendant and appellee.
                            Cockfield v. City of Fargo
                                   No. 20180336


       Jensen, Justice.
[¶1]   Aaron Cockfield appeals from a judgment dismissing his petition for a writ of
mandamus seeking to compel the City of Fargo to reinstate Cockfield as an employee.
Cockfield argues the district court erred in deciding the City did not violate his
constitutional due process rights when it terminated his employment. We affirm.


                                          I
[¶2]   Cockfield was employed by the City’s Solid Waste Department. On July 28,
2017, Cockfield was asked to perform a specific task within the scope of his
employment. Cockfield refused to perform the requested work. Cockfield’s acting
route supervisor, Shawn Eckre, approached Cockfield to talk about the refusal to
perform the requested work. Cockfield was seated when Eckre approached, Cockfield
stood up and pushed Eckre, and the push caused Eckre to fall against a wall.
[¶3]   Terry Ludlum, director of solid waste operations, conducted an investigation
about the incident and obtained written statements from several employees, including
Cockfield. On August 22, 2017, Ludlum, the human resources director, and the route
supervisor met with Cockfield about the July incident. Cockfield was informed that
the meeting was to review his conduct during the July incident, and he was advised
that his conduct violated the City’s policy, including the workplace violence policy.
Cockfield was informed that Ludlum had interviewed city employees and obtained
statements from some employees. During the meeting, Cockfield was not advised
which employees had been interviewed, he was not provided with or shown copies
of the written statements, and he was not informed about the content of the written
statements. Cockfield was given an opportunity to provide an explanation of the
incident. Cockfield did not deny refusing to perform the requested work, and he
                                         1
admitted he had pushed Eckre. At the conclusion of the meeting, Ludlum advised
Cockfield the City was terminating his employment. Cockfield was told the reason
for his termination, and he was provided with written notice of the termination.
[¶4]   Cockfield appealed the termination decision to the Fargo Civil Service
Commission. Prior to the hearing, Cockfield was provided with the City employees’
written statements. He was also provided with copies of the other documents the City
introduced as evidence at the hearing. The Fargo Civil Service Commission upheld
the termination.
[¶5]   Cockfield appealed the determination of the Civil Service Commission to the
Fargo City Commission. Following a hearing, the City Commission upheld the
termination.
[¶6]   Cockfield filed a petition for a writ of mandamus with the district court,
alleging his due process rights had been violated during the termination process. The
petition sought to compel the City to reinstate him as an employee. The district court
dismissed Cockfield’s claims, concluding Cockfield’s due process rights were not
violated. The court determined Cockfield’s pre-termination due process rights were
not violated because he received notice, a hearing, an explanation of the evidence, and
an opportunity to respond. The court also concluded Cockfield’s post-termination due
process rights had been satisfied.


                                           II
[¶7]   Cockfield argues the district court abused its discretion by denying his request
for a writ of mandamus and concluding the City provided him with adequate due
process when his employment was terminated. Cockfield seeks a writ of mandamus
to compel his reinstatement as an employee as a remedy for the alleged due process
violations.
[¶8]   A writ of mandamus may be issued to “compel the performance of an act
which the law specially enjoins as a duty resulting from an office, trust, or station, or
                                           2
to compel the admission of a party to the use and enjoyment of a right or office to
which the party is entitled and from which the party is precluded unlawfully by such
inferior tribunal, corporation, board, or person.” N.D.C.C. § 32-34-01. The district
court has discretion in deciding whether to issue a writ of mandamus, and the court’s
decision will not be overturned on appeal absent an abuse of discretion. Little v. Stark
Cty. Sheriff, 2018 ND 22, ¶¶ 8-9, 906 N.W.2d 333. “A district court abuses its
discretion if it acts in an arbitrary, unreasonable, or capricious manner, or if it
misapplies or misinterprets the law.” Dickinson Educ. Ass’n v. Dickinson Pub. Sch.
Dist., 2014 ND 157, ¶ 9, 849 N.W.2d 615.
[¶9]   Due process claims require a two-step analysis; the plaintiff must show that the
state deprived him of some life, liberty, or property interest and that the state’s
deprivation of that interest was done without due process. Krentz v. Robertson Fire
Prot. Dist., 228 F.3d 897, 902 (8th Cir. 2000); see also Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538 (1985). A public employee may have a property right
in continued employment and may not be discharged from his job without due
process. Riggins v. Bd. of Regents of Univ. of Neb., 790 F.2d 707, 710 (8th Cir.
1986). Cockfield asserts he has a property right in his continued employment through
Chapter 7 of the Fargo Municipal Code (Civil Service), and the City agrees that
Cockfield could not be terminated from his job without due process.
[¶10] Due process in the context of a public employee’s continued employment
requires that the public employee have notice and an opportunity to be heard before
termination of the employment.         Loudermill, 470 U.S. at 542. Due process
requirements are met when the employee is provided with appropriate pre-termination
and post-termination proceedings. Smutka v. City of Hutchinson, 451 F.3d 522, 526
(8th Cir. 2006).


                                           A


                                           3
[¶11] Cockfield argues the district court abused its discretion by concluding he was
provided with adequate pre-termination due process. He contends the City did not
provide adequate due process because he was not given the names of the city
employees who made allegations against him nor was he given the specific nature and
factual basis for their charges. He also claims he was not provided with any
documentary evidence before his employment was terminated and he was not given
an adequate oral explanation of the relevant evidence.
[¶12] The pre-termination hearing does not need to be elaborate, and something less
than a full evidentiary hearing is sufficient prior to termination. Loudermill, 470 U.S.
at 545. The pre-termination hearing serves as an initial check against mistaken
decisions and is a determination whether there are reasonable grounds to believe the
charges are true and support the proposed action. Id. at 545-46. “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.” Id. at 546; see also Berdahl v. N.D. State Pers. Bd., 447 N.W.2d 300, 305
(N.D. 1989). An explanation of the employer’s evidence is sufficient if it permits the
employee to identify the conduct giving rise to the termination and to enable the
employee to respond, but the employer is not required to provide detailed copies of
all evidence to the employee or to disclose every piece of relevant evidence to the
employee prior to termination. See Linton v. Frederick Cty. Bd. of Cty. Comm’rs, 964
F.2d 1436, 1440 (4th Cir. 1992); Leftwich v. Bevilacqua, 635 F. Supp. 238, 241 (W.D.
Va. 1986); see also Berdahl, at 306 (stating employee was not denied due process
when he received pre-termination notice, “a summary of the evidence against him,”
an opportunity to respond, and a full post-termination hearing). The employer is not
required to provide all the details of the charges against the employee. Larson v. City
of Fergus Falls, 229 F.3d 692, 697 (8th Cir. 2000). Due process does not require that
the pre-termination hearing occur before the employer decides to terminate; it only


                                           4
requires an opportunity to be heard prior to the termination of benefits. Sutton v.
Bailey, 702 F.3d 444, 448 (8th Cir. 2012).
[¶13] The parties agree Cockfield met with Ludlum, the human resources director,
and the route supervisor to discuss the July 28, 2017 incident on August 22, 2017.
Cockfield was informed the meeting was about the July 28, 2017 incident. At the
meeting, Cockfield was informed that his refusal to perform work within the scope
of his employment violated city policy 300-005 and that his physical conduct toward
Eckre constituted an assault which violated city policy 400-009. Cockfield was told
Ludlum had interviewed some employees. Cockfield was also given the opportunity
to provide his explanation of the incident and indicated that he disagreed with
Ludlum’s understanding of the incident. Cockfield did not deny refusing to perform
the requested work task and he admitted he pushed Eckre. As part of the August 22,
2017 meeting, Cockfield was informed of the reasons for termination of his
employment and he was provided with written notice of termination.
[¶14] A transcript of the August 22, 2017 meeting was attached to the parties’
stipulated facts. During the meeting, Cockfield was informed Eckre had given a
statement about the incident. He was also told Mark Steffens, who was in the room
at the time of the incident, had given a statement. Cockfield admitted he pushed
Eckre. The termination letter provided to Cockfield at the meeting advised Cockfield
why his employment was terminated, stating:
      Your employment with the City of Fargo is terminated today, August
      22, 2017 because of the incidents that occurred on July 28, 2017. You
      refused a work directive from an acting supervisor without sufficient
      cause. When the acting supervisor inquired why you refused, you
      escalated the situation resulting in an assaultive physical altercation.
      Specifically, you shoved Shawn Eckre. Your conduct violated City of
      Fargo Employment Policy 300-005 Conduct/Ethics by failing to follow
      a work directive and further violated City of Fargo Policy 400-009
      Workplace Violence by engaging in abusive and violent behavior.
      After a full and complete investigation, I find that your conduct violates


                                          5
       such policies. Therefore, your assault of the acting supervisor is
       grounds for immediate termination.
[¶15] Cockfield was given notice of the charges against him, a summary of the
employer’s evidence, and an opportunity to present his side of the story. The district
court’s determination that Cockfield was provided with adequate pre-termination due
process was not arbitrary, unreasonable, or capricious and, the court did not misapply
or misinterpret the law. Therefore, the court did not abuse its discretion in its
determination that Cockfield’s due process rights were not violated by the pre-
termination process.


                                          B
[¶16] Cockfield argues the district court abused its discretion in deciding he was
provided with adequate post-termination due process. He argues he should have been
allowed to subpoena Steffens to appear before the Civil Service Commission, and he
should have been able to cross-examine Eckre and other witnesses, but procedures for
hearings before the Civil Service Commission and the City Commission prohibited
him from issuing subpoenas or cross-examining witnesses. He claims he was not
given actual notice of the reasons for termination, and he was not given a reasonable
opportunity to present testimony in his own defense because he was not allowed to
subpoena or cross-examine witnesses.
[¶17] “The fundamental requirement of due process is the opportunity to be heard
‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S.
319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). The
Eighth Circuit has held due process and a meaningful opportunity to be heard in
public employee termination proceedings requires:
       1) clear and actual notice of the reasons for termination in sufficient
       detail to enable him or her to present evidence relating to them;
       2) notice of both the names of those who have made allegations against
       the [employee] and the specific nature and factual basis for the charges;

                                          6
       3) a reasonable time and opportunity to present testimony in his or her
       own defense; and
       4) a hearing before an impartial board or tribunal.
Riggins, 790 F.2d at 712.
[¶18] The first requirement was satisfied because Cockfield had clear and actual
notice of the reasons for termination in sufficient detail to enable him to present
evidence responsive to the reasons for his termination. The second requirement was
satisfied because he received written notice of his termination specifying the reasons
his employment was being terminated, and he received copies of the witnesses’
statements before the post-termination hearing. The fourth requirement was also
satisfied; Cockfield has not asserted that the Civil Service Commission and the City
Commission were not impartial boards or tribunals.
[¶19] Cockfield argues the third requirement was not satisfied because he was not
provided with a reasonable time and opportunity to present testimony in his own
defense. He claims the hearing procedures are inadequate because they do not allow
the parties or their representatives to cross-examine witnesses and there is not a
process for issuing a subpoena.
[¶20] “[D]ue process is flexible and calls for such procedural protections as the
particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
Federal courts have held the opportunity to cross-examine or confront witnesses is not
always required in post-termination proceedings. Riggins, 790 F.2d at 712; see also
Flath v. Garrison Pub. Sch. Dist. No. 51, 82 F.3d 244, 247 (8th Cir. 1996); Meder v.
City of Oklahoma City, 869 F.2d 553, 554-55 (10th Cir. 1989) (abrogated on other
grounds).
[¶21] In Riggins, 790 F.2d at 711, the employee argued the employer’s grievance
procedure was constitutionally insufficient because it did not provide her with an
opportunity to confront or cross-examine witnesses. The grievance procedure
included three steps, and in the final step a grievance committee composed of

                                          7
members from the three major types of staff considered evidence from both sides. Id.
at 709. The procedure allowed the grievant employee to have a lawyer, to look at all
material in their personnel files, and to present witnesses on their own behalf. Id. The
court held the employee would have received all the process she was due if she had
availed herself of the employer’s grievance procedure. Id. at 712.
[¶22] We agree that post-termination procedure is not inadequate simply because it
does not grant the employee an opportunity to confront or cross-examine witnesses.
In this case, Cockfield appealed Ludlum’s decision to terminate his employment to
the Fargo Civil Service Commission and a hearing was held pursuant to the City of
Fargo Civil Service Commission Disciplinary Action Appeal Hearing Procedures.
Cockfield also appealed the Civil Service Commission’s decision to the Fargo City
Commission, which held a hearing according to the same procedures. Cockfield was
represented by counsel during both hearings. He was allowed to present witnesses to
testify, to question those witnesses, and to submit documentary evidence. He also had
an opportunity to present statements before and after the witnesses testified and were
questioned by the Commissions.         He had multiple hearings before impartial
commissions and had an opportunity to present testimony in his own defense at both
post-termination hearings. Cockfield admitted that he disobeyed a direct order of a
supervisor by refusing to perform requested work and that he pushed Eckre “pretty
hard” and Eckre fell against a wall, but he claimed he acted in self-defense. He was
offered several opportunities to present a defense and to present evidence. Cockfield
received all of the protections listed in Riggins and due process under these
circumstances does not require more.
[¶23] The district court’s determination that Cockfield was provided with adequate
post-termination due process was not arbitrary, unreasonable, or capricious, and the
court did not misapply or misinterpret the law. Therefore, the court did not abuse its
discretion in its determination that Cockfield’s due process rights were not violated
by the post-termination process.
                                           8
                                        III
[¶24] Cockfield’s due process rights were not violated in either the pre-termination
or post- termination proceedings. We affirm the district court’s judgment dismissing
Cockfield’s request for a writ of mandamus.
[¶25] Jon J. Jensen
      Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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