                                       No. 05-3016
                                 File Name: 05a0799n.06
                                Filed: September 21, 2005

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

KATHLEEN A. WALSH,                                 )
                                                   )
   Plaintiff-Appellee,                             )
                                                   )
       v.                                          )
                                                   )   ON APPEAL FROM THE
CUYAHOGA COUNTY, et al.,                           )   UNITED STATES DISTRICT
                                                   )   COURT FOR THE NORTHERN
   Defendants,                                     )   DISTRICT OF OHIO
                                                   )
and TERRY ALLAN,                                   )
                                                   )
   Defendant-Appellant.                            )



Before:       NELSON and SUTTON, Circuit Judges, and ZATKOFF, District Judge.*


       DAVID A. NELSON, Circuit Judge. This is an appeal from a denial of qualified

immunity. The main question before us is whether the plaintiff was deprived of her civil

service job without due process of law. We conclude that she was not, and we shall therefore

reverse the denial of qualified immunity.




       *
        The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 05-3016
Page 2

                                              I


       The case stems from a meeting held on Friday, October 19, 2001, between Kathleen

Walsh, then a classified civil service secretary employed by the Board of Health of Cuyahoga

County, Ohio, and Terry Allan, then the director of the Board’s community health division.

The subject of the meeting was Ms. Walsh’s job performance. The meeting ended, according

to Ms. Walsh, with Allan instructing her to “clean out [her] desk” and stating that “he would

expect a letter [of resignation] on Monday.” For purposes of this appeal, Mr. Allan accepts

Ms. Walsh’s account as accurate.

       Ms. Walsh did not report to work the following week. (Neither did she submit a letter

of resignation.) On October 25, 2001, Mr. Allan prepared a “request for disciplinary action”

based on the unexcused absence and on Ms. Walsh’s job performance. Under date of

October 26, 2001, the Board notified Ms. Walsh that a “pre-disciplinary conference” would

be held six days later before the Director of Environmental Health. Ms. Walsh did not attend

the pre-disciplinary conference.

       After her failure to appear at the conference, the Board notified Ms. Walsh that she

was “removed” — i.e., discharged — effective November 28, 2001. Ms. Walsh had a

statutory right to appeal the order of removal to the Personnel Board of Review, see Ohio

Rev. Code § 124.34(B), but she took no appeal.

       Instead, Ms. Walsh brought an action for money damages against Cuyahoga County,

the Board, the Health Commissioner, and Mr. Allan. The complaint, filed in federal district
No. 05-3016
Page 3

court, alleged that Ms. Walsh had been discharged without a pre-termination hearing in

violation of her Fourteenth Amendment right to due process of law.

       The defendants moved for summary judgment, with Mr. Allan — who had been sued

in both personal and official capacities — claiming qualified immunity. The district court

denied the defendants’ motion. The court concluded (1) that a reasonable jury could find that

Ms. Walsh had been discharged on October 19, 2001, without benefit of a pre-termination

hearing and (2) that Mr. Allan was not entitled to qualified immunity because Ms. Walsh’s

right to a pre-termination hearing was clearly established by Cleveland Board of Education

v. Loudermill, 470 U.S. 532 (1985). Mr. Allan filed a timely interlocutory appeal.


                                              II


       We must first determine whether we have jurisdiction to hear the appeal. “A

defendant who is denied qualified immunity may file an interlocutory appeal . . . only if that

appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff

constitute a violation of clearly established law.” Berryman v. Rieger, 150 F.3d 561, 563 (6th

Cir. 1998). Where facts are in dispute, therefore, “the defendant must . . . be willing to

concede the most favorable view of the facts to the plaintiff for purposes of the appeal.” Id.

       Although Ms. Walsh contends that Mr. Allan has not conceded her version of the

facts, this contention will not wash. Mr. Allan has acknowledged that for present purposes

this court “must assume that appellee’s allegations of what was stated during the [October
No. 05-3016
Page 4

19] meeting are true.” Appellant’s Br. at 6-7 n.2 (emphasis supplied). Allan’s argument is

that even under Ms. Walsh’s version of the facts, no due process violation occurred. We

have jurisdiction to address that argument in an interlocutory appeal. See Berryman, 150

F.3d at 563, 564.


                                              III


       Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The first step in our analysis must be to determine whether, on the facts alleged, a statutory

or constitutional right has been violated at all. See Sample v. Bailey, 409 F.3d 689, 695 (6th

Cir. 2005).

       The constitutional right at issue here is the Fourteenth Amendment right not to be

deprived of property by the government without due process of law. As a classified civil

servant, Ms. Walsh had a protected property interest in her employment. See Ohio Rev.

Code §§ 124.11(B), 124.34(A); Loudermill, 470 U.S. at 538-39. And for the purposes of this

appeal, we shall assume that Ms. Walsh was deprived of that property interest by Mr. Allan’s
No. 05-3016
Page 5

conduct at the October 19 meeting.1 The question, therefore, is whether Ms. Walsh received

the process she was due. See Mitchell v. Fankhauser, 375 F.3d 477, 480 (6th Cir. 2004).

       What process is due depends upon whether the deprivation of property occurs

pursuant to an “established state procedure” or results from a “random, unauthorized act of

a state employee.” See Mitchell, 375 F.3d at 481-84. If the former, then “it is both

practicable and feasible for the state to provide pre-deprivation process,” and the state must

do so regardless of the adequacy of any post-deprivation remedy. Moore v. Board of

Education of the Johnson City Schools, 134 F.3d 781, 785 (6th Cir.), cert. denied, 525 U.S.

929 (1998) (internal quotation marks omitted); see Logan v. Zimmerman Brush Co., 455 U.S.

422, 436 (1982). If the latter, then “predeprivation procedures are simply impracticable” and

an adequate post-deprivation remedy affords all the process that is due. See Hudson v.

Palmer, 468 U.S. 517, 533 (1984) (internal quotation marks omitted); Macene v. MJW, Inc.,

951 F.2d 700, 706 (6th Cir. 1991).

       It is clear, we think, that Mr. Allan was not acting pursuant to an “established state

procedure” when, as we presume, he told Ms. Walsh to clean out her desk and submit a letter

of resignation. As shown by some of the forms appended to its policies and procedures


       1
        It is unlikely that what transpired at the October 19 meeting, as described by Ms.
Walsh, really deprived Ms. Walsh of her property interest in continued employment. As we
shall see, Allan did not follow the established procedures for removal of a classified civil
servant. In all probability Ms. Walsh remained employed as a matter of law. But a
reasonable trier of fact could find both that Allan intended to fire Ms. Walsh and that she
believed she had been fired. It thus seems appropriate for us to assume that Ms. Walsh was
deprived of her employment as a practical matter.
No. 05-3016
Page 6

manual, the Board’s established disciplinary procedure entailed a written request for

disciplinary action, a pre-disciplinary conference, and (if there was to be a discharge) an

order of removal. Ohio Revised Code § 124.34(B) provides that “the appointing authority

shall serve the employee with a copy of the order of . . . removal, which order shall state the

reasons for the action. The order shall be filed with the director of administrative services

and state personnel board of review . . . .” None of these procedures was followed at or

before the October 19 meeting. Mr. Allan’s putative action must therefore be considered

“unauthorized.”

       Nor did the Board of Health ratify the action which we are assuming Mr. Allan took

at the October 19 meeting. The case at bar is thus clearly distinguishable from Loudermill,

as we see it. There the aggrieved employee received a letter of discharge from the business

manager of the defendant school board after the board learned that the employee had lied

about his criminal record on his job application. Loudermill, 470 U.S. at 535. Any possible

doubt as to whether the board authorized the discharge was resolved when, 10 days later,

“the Board adopted a resolution officially approving the discharge.” Id.

       In the case at bar, by contrast, the Board notified Ms. Walsh one week after her

putative discharge that a “pre-disciplinary” meeting would be held to give her an opportunity

to respond to allegations of “employee misconduct” that included absenting herself from

work on October 22, 23, 24, 25 and 26 without having reported the reason for her absence
No. 05-3016
Page 7

and without having asked for time off. Ms. Walsh was thus left in no doubt that as of

October 26, 2001, she was still an employee as far as the Board was concerned.

       It follows from what we have said that an adequate post-deprivation remedy satisfies

Ms. Walsh’s right to due process of law. See Hudson, 468 U.S. at 533; Macene, 951 F.2d

at 706. Ms. Walsh has not challenged the adequacy of the post-deprivation remedies

afforded her by the Board and by state law — namely, a conference and an opportunity to

appeal the final order of removal. Accordingly, she cannot demonstrate a violation of her

constitutional rights. See Macene, 951 F.2d at 705-06; Vicory v. Walton, 721 F.2d 1062,

1065-66 (6th Cir. 1983), cert. denied, 469 U.S. 834 (1984).

       In the absence of a constitutional violation, Allan is entitled to qualified immunity.

See Sample, 409 F.3d at 695. The denial of qualified immunity is therefore REVERSED,

and the case is remanded for further proceedings consistent with this opinion.
