       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2     Morrison v. Warren, et al.                   No. 02-3672
    ELECTRONIC CITATION: 2004 FED App. 0223P (6th Cir.)
                File Name: 04a0223p.06                    THOMPSON LAW OFFICES, Akron, Ohio, for Appellant.
                                                          Sandy J. Rubino, SUMMIT COUNTY PROSECUTOR’S
                                                          OFFICE, Akron, Ohio, for Appellees.
UNITED STATES COURT OF APPEALS
                                                                              _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                 OPINION
                                                                              _________________
 TIMOTHY MORRISON,                X
                                   -                        BOYCE F. MARTIN, JR., Circuit Judge. Timothy
          Plaintiff-Appellant,                            Morrison, former Deputy Sheriff of Summit County, appeals
                                   -
                                   -  No. 02-3672         the district court’s grant of summary judgment to Sheriff
           v.                      -                      Richard Warren and Human Relations Officer Yamini
                                    >                     Adkins, both of the Summit County Sheriff’s Office.
                                   ,                      Morrison claims that procedures culminating in his discharge
 RICHARD L. WARREN, et al.,        -
        Defendants-Appellees. -                           from the police force violated his Fourteenth Amendment
                                                          procedural due process rights.
                                   -
                                   -                                                     I
                                   -
                                 N                          Former Deputy Sheriff Morrison was accused of domestic
      Appeal from the United States District Court        abuse by his wife, Jade Morrison, who requested and obtained
       for the Northern District of Ohio at Akron.        a Civil Protection Order against him on May 26, 1998. The
     No. 00-01341—Dan A. Polster, District Judge.         Order, which would become permanent after fourteen days
                                                          absent any objection, prohibited Morrison from possessing,
               Argued: January 28, 2004                   using, carrying, or obtaining any deadly weapon for up to five
                                                          years. As a result, Morrison was unable to satisfy his primary
           Decided and Filed: July 13, 2004               job requirement to carry a gun and was discharged from the
                                                          force.
 Before: MARTIN, RYAN, and MOORE, Circuit Judges.
                                                             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
                       COUNSEL                            that day, she sent Morrison a letter stating that he would be
                                                          placed immediately on Administrative Leave, and instructing
ARGUED: Dennis R. Thompson, THOMPSON LAW                  him to report to a pre-discharge hearing the following day. In
OFFICES, Akron, Ohio, for Appellant. Susan Baker Ross,    an effort to save his job, Morrison filed a motion in state court
SUMMIT COUNTY PROSECUTOR’S OFFICE, Akron,                 to stay and vacate the Civil Protection Order.
Ohio, for Appellees. ON BRIEF: Dennis R. Thompson,

                            1
No. 02-3672                  Morrison v. Warren, et al.      3    4        Morrison v. Warren, et al.                     No. 02-3672

  At the May 27 hearing, Adkins explained the consequences        pendency of the arbitration, Morrison was charged on July 2,
of the Civil Protection Order—i.e., discharge—and notified        1998, with additional acts of domestic violence against Jade
Morrison that a pre-discharge conference would be held the        Morrison and, pursuant to a plea agreement, pleaded “no
following day. Adkins did not supplement her oral statements      contest” to a reduced charge of Disorderly Conduct on
with written specifications as to the grounds for Morrison’s      September 10, 1998.
discharge.
                                                                    At the two-day arbitration the following March, the
   At the pre-discharge conference, which was administered        arbitrator framed the issue as follows:
by a neutral prosecutor, Morrison was asked to explain the
circumstances surrounding the Civil Protection Order.                 The question to be resolved is whether the Sheriff
Morrison presented a copy of his motion to stay and vacate            violated the collective bargaining agreement when it
the Order and indicated that the magistrate had scheduled a           terminated [Morrison], and if so, what should the remedy
hearing on the motion for June 3. Morrison then requested to          be?
postpone the pre-discharge conference until after the
magistrate ruled on the motion. His request was denied and        The Sheriff’s Office acknowledged that the Civil Protection
it was acknowledged that, despite the motion, the Order was       Order—the basis for Morrison’s discharge—had been
currently in effect. Morrison was then presented with a letter,   vacated. Nonetheless, it argued that Morrison’s discharge
dated May 28, 1998, from Sheriff Warren, stating: “[i]n view      was required under the Office’s “zero-tolerance policy” for
of the current Domestic Relations Order, you are removed          domestic abuse.1 As evidence, the Sheriff’s Office submitted
from your position of Deputy Sheriff.” At the conclusion of       Morrison’s July 2 charge and September 10 conviction for
the hearing, the prosecutor issued a finding of just cause and    Disorderly Conduct.
Morrison’s discharge went into effect on May 28.
                                                                     The arbitrator then engaged in a lengthy analysis of whether
   Morrison challenged his discharge, and a post-discharge        the evidence of Morrison’s Disorderly Conduct
arbitration was scheduled for March 17 and 18, 1999,              conviction—which occurred after his discharge—should be
pursuant to the terms of the collective bargaining agreement      admitted to justify a second discharge. The arbitrator
between the employees’ union and the Summit County                concluded that although post-discharge conduct is not
Sheriff’s Office. Union members, including Morrison, were         ordinarily admissible or relevant in making a just cause
subject to the agreement, but only the union could exercise a     determination, Morrison’s post-discharge conduct fell into a
member’s rights in employment disputes. As a result, the          narrow exception recognized in arbitration precedent that
union, not Morrison, represented Morrison’s case in his           allows the admission of post-discharge conduct that is “part
discharge hearings. Also, the union, not Morrison, had            of one connected whole.” The arbitrator found that because
standing to challenge the prosecutor’s finding of just cause in   both the Civil Protection Order and the conduct were rooted
state court. The union declined to make that challenge.
  During the period between the pre-discharge hearing and              1
                                                                        During the arbitration hearing, the Sheriff introduced testimonial
the March 1999 arbitration, the magistrate vacated the Civil      evidence that “a criminal charge of domestic violence against [the
Protection Order. This did not affect Morrison’s discharge,       Sheriff’s Office’s] emp loyees will result in a finding of ‘conduct
however, and the arbitration remained scheduled. During the       unbecoming’ that will always justify immediate discharge without resort
                                                                  to the progre ssive disciplinary policy. . . .” J.A. at 81.
No. 02-3672                   Morrison v. Warren, et al.        5   6      Morrison v. Warren, et al.                  No. 02-3672

in Jade Morrison’s allegations of domestic abuse, he would            Morrison then filed an action in federal district court,
consider evidence of Morrison’s post-discharge conduct.             claiming, among other things, that the Sheriff’s Office
                                                                    violated his procedural due process rights by failing to
  On July 30, 1999, the arbitrator issued a 43-page decision        provide these processes:
denying in part and sustaining in part the union’s position.
The arbitrator first found that because the Civil Protection            (1) adequate notice of the pre-termination hearing of
Order had been vacated, the May 28 discharge was invalid.                   May 28, 1998;
However, the arbitrator also found that “the Sheriff is justified
in not returning [Morrison] to its employ,” because                     (2) any notice or pre-termination hearing relating to
Morrison’s discharge was justified by his post-discharge                    discharge based on his post-discharge conduct; and
conduct, stating:
                                                                        (3) any review of the arbitrator’s decision relating to his
  It would be a serious problem for the Sheriff if                          post-discharge conduct.
  [Morrison, upon reinstatement while subject to the
  conviction] were to violate his probation . . . and have to       As to the first claim, the district court ruled that Morrison
  be locked up with some of the criminals he arrested.              received sufficient oral notice of the May 28 hearing. With
  Such a reasonably foreseeable situation is intolerable and        regard to second claim, the district court ruled that Morrison
  supports a finding that just cause exists for . . .               failed to “explain how the post deprivation procedures set
  termination.                                                      forth in the collective bargaining agreement” do not satisfy
                                                                    the process requirements vis-a-vis the post-discharge conduct.
The arbitrator awarded Morrison back pay from May 28,               On the third claim, the district court found that it was not
1998 (the date of his “premature” discharge), to July 2, 1998       permitted to review the substance of the arbitrator’s award
(the date upon which the domestic violence charge was filed).       and that it was satisfied that the arbitrator “carefully
Fashioning a remedy similar to that provided in section 10.4        considered whether Morrison’s post-termination conduct was
of the collective bargaining agreement, the arbitrator also         properly before him in determining the propriety of
decided that Morrison should be treated as if he were on leave      Morrison’s discharge, and set forth numerous reasons for its
with vacation pay for the period between July 2, 1998, to           inclusion.”
September 10, 1998 (the date of his conviction). Finally, the
arbitrator held that Morrison’s discharge was effective on            For the reasons discussed below, we agree that oral notice
September 10, 1998.                                                 was sufficient. As to Morrison’s other contentions, however,
                                                                    more consideration than the district court provided is due.
  Morrison, without support from the union, instituted an           The district court cut short its due process analysis because it
action in state court to appeal the arbitrator’s award. The         found that Morrison was requesting substantive review of the
state court ruled that Morrison had no standing to bring this       arbitrator’s award. We disagree with this finding. Rather
claim under the collective bargaining agreement, which gives        than seeking substantive review, Morrison is claiming that the
exclusive rights to the union to appeal an arbitrator’s award.      admission of his post-discharge conduct lacked procedural
The state court’s judgment was affirmed on appeal.                  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    8    Morrison v. Warren, et al.                  No. 02-3672

charge; this contention raises at least a colorable claim of        award, and whether the arbitrator was corrupt or committed
denial of due process. See Carter v. Western Reserve                gross procedural improprieties.” Appellee’s Br. at 9 (citing
Psychiatric Habilitation Ctr., 767 F.2d 270, 273 (6th Cir.          Cuyahoga Cmty. Coll. v. Dist. 925, Serv. Employees Intern.
1985) (grievant’s claim that he was denied the right to argue       Union, AFL-CIO, 42 Ohio App.3d 166, 167 (Ohio App. 8th
his case before the decision makers raises at least a colorable     Dist. 1988)).
claim of denial of due process). Because Morrison’s claims
implicate fundamental due process issues under the                    This argument fails for two reasons. First, Morrison is not
Fourteenth Amendment, we now consider them.                         requesting a substantive review of the arbitrator’s award;
                                                                    rather, he asks this Court to consider whether the evidence of
                               II                                   his post-discharge conduct was used in accordance with due
                                                                    process requirements. Due process requires notice of the
                   A. Standard of Review                            charges and a meaningful opportunity to contest the evidence.
                                                                    See Carter, 767 F.2d at 273 (at a minimum, procedural due
  We engage in a de novo review of the district court’s grant       process requires that the discharged employee be permitted to
of summary judgment. Buckner v. City of Highland Park,              call witnesses and produce evidence on his own behalf, and
901 F.2d 491, 494 (6th Cir. 1990). Summary judgment is              to know and have the opportunity to challenge the evidence
proper when the “pleadings, depositions, answers to                 against him). Thus, if evidence is admitted to support a new
interrogatories, and admissions on file, together with the          charge for which an employee was given no notice and had no
affidavits, if any, show that there is no genuine issue as to any   time to prepare, the employee is entitled to assert in federal
material fact and that the moving party is entitled to judgment     court a claim for violation of due process. Because Morrison
as a matter of law.” FED . R. CIV . P. 56(c). This motion for       claims that his procedural due process rights were violated
summary judgment involves no disputed issue of fact; thus,          when, to his surprise, evidence was admitted to support a new
we must decide whether, as a matter of law, Morrison was            charge—which ultimately was the basis for his
afforded due process. In doing so, we view the evidence and         discharge—judicial review is appropriate.
draw all reasonable inferences in favor of Morrison, as the
nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317,           Second, the arbitration clause in the collective bargaining
323-24 (1986); Berlin v. Michigan Bell Tele. Co., 858 F.2d          agreement lacks the clear and unmistakable language that is
1154, 1161 (6th Cir. 1988).                                         necessary to waive procedural due process rights, and thus
                                                                    cannot be interpreted to waive Morrison’s ability to assert
            B. Waiver of Section 1983 Claim                         those rights. See Wright v. Universal Mar. Serv. Corp., 525
                                                                    U.S. 70, 78-79 (1998) (waiver of union members’ federal
  Sheriff Warren and Adkins characterize this appeal as             statutory rights in a collective bargaining agreement must be
Morrison’s attempt to “effect a substantive review of the           “clear and unmistakable”); Ciambreillo v. County of Nassau,
arbitrator’s [award]” that was waived as a result of the union’s    292 F.3d 307 (2nd Cir. 1991) (binding arbitration clause in
decision not to appeal it. Sheriff Warren and Adkins argue          collective bargaining agreement did not waive the employee’s
that parties who contractually agree to binding arbitration, as     Fourteenth Amendment procedural due process right because
Morrison has here, waive judicial review except over the            it lacked “clear and unmistakable language”). The only
determination of “whether there is a rational nexus between         reference to waiver in Morrison’s arbitration clause relates to
the collective bargaining agreement and the [arbitrator’s]
No. 02-3672                 Morrison v. Warren, et al.     9    10   Morrison v. Warren, et al.                   No. 02-3672

the Sheriff’s Office’s disciplinary procedures, not the         inability to carry a gun due to the Civil Protection
Fourteenth Amendment. The clause states:                        Order—was sufficient.
  Failure to elect and pursue one of these three options          Procedural due process also requires “an explanation of the
  [appear at the hearing; appear at the hearing with            employer’s evidence and an opportunity for the employee to
  counsel; or elect in writing to waive the hearing             present his side of the story.” Id. at 542. The Sheriff’s Office
  opportunity] will be deemed a waiver of the employee’s        also satisfied this requirement. Adkins explained that the
  rights to disciplinary hearings.                              charge was based on the Civil Protection Order; then she
                                                                scheduled a pre-termination hearing for May 28, at which
Thus, neither the arbitration agreement nor any actions or      Morrison made an informed presentation. Inasmuch as
omissions pursuant to that agreement waives Morrison’s          Morrison received notice of the charge against him and was
ability to file a Section 1983 procedural due process claim.    afforded an opportunity to rebut it, the pre-termination
His claims are properly before us.                              hearing satisfies constitutional requirements. See id.
               C. Procedural Due Process                              2. Post-termination Process
  To resolve procedural due process issues, we engage in a         In Morrison’s post-termination arbitration, the arbitrator
two-step analysis. Johnston-Taylor v. Gannon, 907 F.2d          held that the Sheriff’s Office prematurely discharged
1577, 1581 (6th Cir. 1990). We initially determine whether a    Morrison, but that it was justified “in not returning [Morrison]
protected property interest exists and then determine what      to its employ” based on his post-discharge domestic violence
procedures are required to protect that interest. Id. Because   charge and related conviction. The parties give differing
Morrison’s property interest in his continued employment is     characterizations of the arbitrator’s ruling. While the
undisputed, we move to the second step.                         Sheriff’s Office argues that the arbitrator considered
                                                                Morrison’s post-discharge conduct only to construct an
    1. Pre-termination Process                                  appropriate remedy for the invalid discharge, Morrison
                                                                contends that the arbitrator, rather than constructing a remedy,
   The Supreme Court has held that an employee who has a        found a distinct justification for a second, valid discharge.
protected property interest in continued employment is          We agree that Morrison suffered a second discharge.
entitled to a pre-termination hearing, but that the pre-        However, in this context our characterization of the
termination hearing need not be elaborate. Cleveland Bd. of     arbitrator’s award is irrelevant. Under either characterization,
Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Morrison         Morrison held a property interest in his employment from the
claims that the Sheriff’s Office violated his procedural due    mome nt h i s i n i t i a l di s c h a r ge w a s deemed
process right to a meaningful pre-termination hearing by        invalid—conceptually, when a discharge is deemed invalid,
neglecting to provide written notice of the specific charges    the property interest was never lost. Therefore, he deserved
against him. Yet the Court determined in Loudermill that        all the protections that procedural due process requires for the
“[t]he tenured public employee is entitled to oral or written   deprivation of a property interest, whether that deprivation is
notice of the charges against him.” Id. at 546 (emphasis        characterized as a discharge or a failure to reinstate.
added).     The oral notice provided by Adkins to                   An essential principle of due process is that a deprivation
Morrison—that he would be discharged as a result of his         of property “be preceded by notice and opportunity for
No. 02-3672                  Morrison v. Warren, et al.     11    12    Morrison v. Warren, et al.                   No. 02-3672

hearing appropriate to the nature of the case.” Mullane v.           [Morrison] can hardly argue that he was surprised when
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).            he received notice that his former employers intended to
Although the formality and procedural requisites for the             introduce evidence of the subsequent conviction.
hearing can vary, “depending upon the importance of the              [Morrison] argues in his brief that evidence of this charge
interests at stake and the nature of the subsequent                  was presented at his post-deprivation hearing—he does
proceedings,” Loudermill, 470 U.S. at 545 (quoting Boddie v.         not, nor can he allege, that he was not given an
Connecticut, 401 U.S. 371, 378 (1971)), the fundamental              opportunity to respond to the evidence during the two-
requirement of procedural due process is that an individual be       day arbitration.
given an opportunity to be heard at a meaningful time and in      We recognize that abbreviated process may be justified in
a meaningful manner, Mathews v. Eldridge, 424 U.S. 319,           some circumstances. Whether it is justified here depends on
335 (1976). At the least, this requires notice of the charges     our application of the constitutional balancing test set forth in
and an opportunity to view and contest the evidence               Mathews, 424 U.S. at 335. The four Mathews factors are: (1)
supporting them. Loudermill, 470 U.S. at 546. Such notice         the private interest affected by the official action; (2) the risk
must be reasonably calculated, under the circumstances, to        of an erroneous deprivation of such interest through the
apprise the interested parties of the pendency of an action and   procedures used; (3) the probable value, if any, of additional
afford them an opportunity to present their objections.           or substitute procedural safeguards; and (4) the government’s
Carter, 767 F.2d at 273.                                          interest, including the function involved and the fiscal and
   Morrison’s arbitration, which amounted to a post-              administrative burdens that the additional or substitute
deprivation hearing on his first discharge and both the pre-      procedural requirement would entail. Id.
and post-deprivation hearings for his second discharge, was          With regard to the first two factors, Morrison’s property
extremely abbreviated in terms of satisfying due process for      interest in his continued employment was not subject to any
the second discharge. Morrison, anticipating a hearing on his     risk of erroneous deprivation through the procedures used.
original discharge, instead became aware—only at the              His Disorderly Conduct conviction, based on charges of
arbitration—that he would be discharged on the basis of the       domestic violence, required his discharge under the Sheriff’s
domestic violence charge. Under the procedures set forth in       Office’s “zero-tolerance policy;” neither reinstatement nor
the collective bargaining agreement, and in the absence of the    additional recovery was possible. As to the third factor,
first, invalid discharge, Morrison would normally get an          additional procedural safeguards would provide no value:
opportunity, pursuant to the collective bargaining agreement,     again, Morrison’s conviction required his discharge, and
for pre- and post-discharge hearings on the domestic violence     nothing that a second hearing would provide could avoid that
charge. Thus, we must determine whether the abbreviated           outcome.
process that he received satisfies due process requirements.
                                                                     Finally, with regard to the government’s interest, there is an
   Sheriff Warren contends that it does, arguing that where the   undeniable argument in favor of upholding the abbreviated
grievant is aware of his post-discharge conduct (and the          process. The employee was a Deputy Sheriff charged with
consequential charge and conviction), oral notice—even if         protecting the citizens of Summit County. The government
only provided at the arbitration hearing—of the intent to         interest in effective law enforcement is extremely high and
submit the domestic violence charge is sufficient to satisfy      the need to speedily replace public safety officers who are
due process requirements. The Sheriff states:                     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.
