                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3167
                                   ___________

Nathan Smutka,                         *
                                       *
             Appellant,                *
                                       *
       v.                              *
                                       *
City of Hutchinson; Hutchinson         * Appeal from the United States
Utilities Commission, municipal        * District Court for the
corporations; Paul Ackland; Craig      * District of Minnesota.
Lenz; Donald Walser; David             *
Wetterling; Marc Sebora;               *
Patrick Spethman, each in their        *
individual capacity,                   *
                                       *
             Appellees.                *
                                  ___________

                             Submitted: March 16, 2006
                                Filed: June 23, 2006
                                 ___________

Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

      Nathan Smutka sued the City of Hutchinson; the Hutchinson Utilities
Commission (HUC); HUC Commissioners Paul Ackland, Craig Lenz, Donald Walser,
and David Wetterling; City Attorney Marc Sebora; and HUC Business Manager
Patrick Spethman (collectively, the defendants) alleging that the defendants violated
Smutka's procedural-due-process rights when HUC terminated his employment.1 The
District Court2 granted summary judgment to the defendants. Smutka appeals and we
affirm.

                                         I.

      Smutka began working for HUC on April 1, 1969, and worked continuously
for HUC until his employment was terminated on November 4, 2002. The events
surrounding the termination spawned this litigation. At the time of the termination,
Smutka was HUC's Metering Supervisor, his supervisor was Jan Sifferath, and his
second-level supervisor was Spethman. Clarence Kadrmas was HUC's General
Manager. In 2000, Kadrmas hired Spethman as HUC's Business Manager, and
Spethman became Smutka's supervisor. Before that, Smutka reported directly to
Kadrmas. Sifferath was not hired until May 2002, at which time she became
Smutka's immediate supervisor. Smutka always enjoyed a good working relationship
with Kadrmas. The same could not be said about Smutka's working relationship with
Spethman. From the beginning, Smutka and Spethman did not get along.

      In November 2000, shortly after arriving at HUC, Spethman determined that
Smutka had used his work computer to view pornography. When confronted, Smutka
denied the charge. As a result of this incident, Kadrmas instructed Spethman to
suspend Smutka with pay for five days and place him on one year of probation.

      1
       Smutka also alleged violations of his substantive-due-process rights, the
Minnesota Human Rights Act, Minn. Stat. § 363.03 (2002) (subsequently renumbered
under Minn. Stat. ch. 363A), Minnesota's dismissal for age statute, id. § 181.81, and
the Minnesota Public Employee Labor Relations Act, id. § 179A.13. The District
Court granted summary judgment to the defendants on these claims. Smutka does not
appeal that part of the decision.
      2
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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Smutka did not violate other work rules during his probation. Nevertheless,
Spethman disagreed with the discipline for the pornography incident, believing that
Smutka's employment should have been terminated. The relationship between
Spethman and Smutka became even rockier after the pornography incident. Smutka
believed that Spethman wanted, and tried, to terminate Smutka's employment after
this incident and worked to undermine Smutka's workplace status.

       In the fall of 2002, Spethman made a business decision, with Kadrmas's
approval, to limit the number of employees with HUC credit cards to Kadrmas and
the four division heads, including Spethman. On October 22, 2002, Smutka was in
the HUC break room with other employees, including a division head named Don
Nelson. Smutka learned that a subordinate had tried to use Smutka's HUC credit
card, with Smutka's approval, but the card had been declined. Embarrassed because
he was unaware of the card's cancellation, Smutka reacted with a loud and profane
outburst against Spethman, allegedly making the following comments: "That God
damned Patrick. Why the fuck doesn't he tell me these things?"; "Jesus Christ that
God damned Patrick."; "Patrick thinks he's a manager, he's not. He's not even a
human being. He's not God damned God."; "He's not a fucking manager."; "Patrick
is fucking incompetent."; "Patrick should go back to wherever the fuck he came
from."; "Thirty-four years as a loyal employee and this is the fucking way I'm
treated."; and "You might as well give the fucking card back to Patrick." HUC
Hearing Decision at 1 (finding of fact 3). Nelson reported Smutka's conduct to
Sifferath. At a meeting with Sifferath the next day, Smutka said that the credit-card
issue was "the straw that broke the camels [sic] back." E-mail of Oct. 24, 2002, from
Sifferath to Spethman. First-hand accounts placed the length of Smutka's tirade from
forty-five seconds to ten minutes, with Nelson saying the outburst lasted ten minutes.

      Kadrmas and Spethman were out of town when the incident occurred, but both
men were later notified of it. Although the HUC commissioners had delegated
authority for personnel matters to Kadrmas, Spethman took it upon himself to ask

                                         -3-
Sebora to investigate the break-room incident. Sebora assigned the City's Human
Resources Director, Brenda Ewing, to conduct the investigation. Both Sebora and
Ewing met with Smutka on October 24, 2002, informing him of the allegations about
the break-room incident, what his rights were, and that he would be suspended with
pay for five days pending the outcome of the investigation. Smutka responded that
he had been upset when he learned about the declined credit card, but he denied
making all of the statements attributed to him. Over the next few days, both Sebora
and Ewing met with the employees present in the break room at the time of Smutka's
outburst. On October 30, 2002, Sebora and Ewing met with Smutka and his attorney
about the misconduct allegations. When given an opportunity to respond, Smutka
remained mute, but his attorney stated that Smutka was upset about his diminished
job responsibilities, that Smutka denied making all of the profane statements
attributed to him, and that the attorney would submit a written response to the
allegations by November 1, which he did.

       On October 30, the HUC commissioners had a regularly scheduled meeting.
Before the meeting, Sebora told Lenz that Smutka's employment should be
terminated. Spethman met with Lenz and Wetterling before the meeting to discuss
the incident. Spethman told them that he did not believe that Kadrmas would
appropriately discipline Smutka given the lax discipline for the pornography incident.
After the regularly scheduled meeting, the commissioners had a closed-door session
to discuss Smutka's outburst. Although Kadrmas told the commissioners that
Smutka's employment should not be terminated, the commissioners unanimously
voted to terminate Smutka's employment and directed Kadrmas to do so. During their
deliberations concerning the break-room incident, the commissioners discussed the
pornography incident and two of the commissioners stated that Smutka's employment
should have been terminated at that time. Kadrmas never authorized the break-room
investigation; instead, he wanted to perform his own investigation. Because Kadrmas
returned from an out-of-town trip on the day of the commissioners' meeting, he did
not have the chance to perform his own investigation.

                                         -4-
      Sebora and Ewing met with Smutka and his new attorney, Ian Laurie, on
November 4, 2002. Sebora and Ewing delivered a letter signed by Kadrmas
terminating Smutka's employment "for just cause due to misconduct including . . .
[u]sing abusive language or making false or malicious statement[s] concerning any
employee," "conduct unbecoming [an HUC] employee," "[g]ross insubordination,"
and "[v]iolation of a major work rule." Letter of Nov. 4, 2002, from Kadrmas to
Smutka. The letter further stated that the just-cause termination was supported by
Smutka's "statements about and towards Patrick Spethman that are considered
derogatory, abusive, included profanity, and exhibited gross insubordination." Id.
The letter also notified Smutka of his appeal rights. The letter did not mention the
pornography incident or that HUC had ordered Kadrmas to terminate Smutka's
employment.

     On November 6, 2002, Laurie filed a grievance on Smutka's behalf alleging
wrongful termination. HUC held a hearing on November 22, 2002, and gave Sebora
and Laurie opportunities to argue their respective positions. For health reasons,
Smutka did not attend the hearing. HUC upheld the termination.

       On September 11, 2003, Smutka exercised his rights under the Minnesota
Public Employee Labor Relations Act (MPELRA), Minn. Stat. § 179A.25 (2002), and
petitioned the Bureau of Mediation Services (BMS) for independent review of the
termination. In June and July 2004, a BMS hearing officer held a trial-like hearing
over four days and allowed the parties to submit post-hearing briefs. While
concluding that "Mr. Smutka did engage in a profanity-laced diatribe against Mr.
Spethman," Decision and Award at 24, the hearing officer still concluded that just
cause did not support the termination and that HUC did not follow its policies in
terminating Smutka's employment. The hearing officer ordered HUC to make Smutka
whole by restoring his "employment without delay" and by "reimburs[ing] him for all
lost wages and benefits resulting from his wrongful termination." Id. at 38. Smutka's
effective date of reinstatement was December 1, 2004.

                                        -5-
       On October 16, 2003, shortly after Smutka filed his BMS petition, he brought
this lawsuit alleging that he was denied his procedural-due-process rights under the
Fourteenth Amendment. Although Smutka has been restored to his position with full
backpay and benefits, he seeks nominal damages, attorney fees, and damages for
personal injury and distress. The District Court granted summary judgment to the
defendants. On appeal, Smutka contends that HUC violated his pre-termination
procedural-due-process rights because HUC failed to inform him that the
commissioners considered the pornography incident when discussing termination,
HUC informed Smutka that the outburst lasted ten minutes but had not told him that
others had said that the outburst was much shorter, and HUC said that Kadrmas made
the termination decision when in fact the commissioners made the decision. Smutka
also contends that his post-termination hearing before HUC violated his procedural-
due-process rights. Finally, Smutka argues that the BMS hearing does not insulate
HUC from liability for violating Smutka's procedural-due-process rights.

                                          II.

      We review de novo the district court's grant of summary judgment to the
defendants. Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir.), cert. denied, 540
U.S. 823 (2003). Summary judgment is proper only if the evidence, viewed in the
light most favorable to Smutka and giving him the benefit of all reasonable
inferences, shows that there are no genuine issues of material fact and that the
defendants are entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c).

       The United States Constitution states, "No State shall . . . deprive any person
of life, liberty, or property, without due process of law." U.S. Const. amend. XIV,
§ 1. To succeed on his procedural-due-process claim, Smutka must satisfy a two-step
test. Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 902 (8th Cir. 2000). First,
Smutka must show that HUC deprived him of a property interest. Id. It is undisputed
that Smutka had a property interest in his continued employment and that HUC

                                         -6-
deprived Smutka of that interest by terminating his employment. Thus, we proceed
to the second step of the analysis and consider whether Smutka has established that
HUC deprived him of his property without due process. See id.

       Due-process requirements are met when a public employer provides a tenured
public employee with appropriate pre-termination and post-termination proceedings.
Before a public employer may lawfully terminate a public employee's employment,
thereby depriving the employee of a property right to continued employment, the
employer must provide the employee with appropriate notice and an opportunity to
be heard. Id. Not surprisingly, the Supreme Court in Cleveland Board of Education
v. Loudermill recognized that "[d]ismissals for cause will often involve factual
disputes." 470 U.S. 532, 543 (1985). Thus, any pre-termination proceeding does not
need to "definitively resolve the propriety of the discharge" but should simply provide
"an initial check against mistaken decisions—essentially, a determination of whether
there are reasonable grounds to believe that the charges against the employee are true
and support the proposed action." Id. at 545–46. To satisfy minimal due-process
requirements at the pre-termination stage, a public employer must give the public
employee "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. To require
more than this prior to termination would intrude to an unwarranted extent on the
government's interest in quickly removing an unsatisfactory employee." Id. at 546
(citations omitted).

       We conclude that the District Court correctly determined that Smutka's pre-
termination proceedings were constitutionally sufficient. HUC notified Smutka of
the misconduct charge arising out of his profanity-laced tirade against Spethman.
Although the pornography incident was discussed at the commissioners' meeting, it
was not a new charge of misconduct against Smutka. The only misconduct listed in
the termination letter was Smutka's outburst against Spethman. The fact that Sebora,
Spethman, and two commissioners believed that Smutka got off easy on the

                                         -7-
pornography charge does not mean that the pre-termination proceedings violated
Smutka's procedural-due-process rights on the 2002 misconduct charge. Cf. Riggins
v. Bd. of Regents, 790 F.2d 707, 711 (8th Cir. 1986) (holding that a public
employee's procedural-due-process rights were not violated by the state's failure to
give proper notice that prior work history would be considered in termination
decision because employee's work history was "a minor part" in the termination
decision and the employee had received adequate notice that "the ultimate reason for
her discharge was her insubordination").

       We also conclude that HUC adequately explained the evidence surrounding the
break-room incident to Smutka. Although Smutka contends that he did not know that
two employees said the tirade lasted only a minute or so, this contention lacks merit.
Smutka was present, of course, during his outburst and knew enough about the
incident to prepare a response. He did not need to be told how long his tirade lasted
in order to prepare a defense to the charge of misconduct. Moreover, HUC "was not
required to provide [Smutka] with a full [pre-termination] hearing, nor was [HUC]
required to disclose all of the details of the charges." Schleck v. Ramsey County, 939
F.2d 638, 642 (8th Cir. 1991). Smutka also maintains that he had the right to know
that Kadrmas did not decide to terminate Smutka's employment but rather was
instructed to do so by HUC. This contention lacks legal support, and we conclude
that nothing in Loudermill suggests that HUC was required to provide this type of
pre-termination notice to Smutka. Finally, we conclude that Smutka had sufficient
opportunity to respond to the misconduct charge. In fact, he enjoyed two separate
opportunities—one with the assistance of counsel—to present his side of the story.

       Although HUC certainly could have done more in the pre-termination
proceedings, it was not required to do more. Smutka's extensive and comprehensive
post-termination proceedings further compel our conclusion that HUC did not violate
Smutka's procedural-due-process rights. For support, we repeat what we wrote in
Krentz: "Ultimately, our conclusion that [the employee] received adequate

                                         -8-
pretermination process depends heavily upon the fact that robust post-termination
proceedings may cure superficial pretermination proceedings." 228 F.3d at 903.

       Turning to the post-termination proceedings, we note that Smutka essentially
argues that we must consider his pre- and post-termination proceedings as wholly
distinct and separate events when considering the ultimate procedural-due-process
question. We disagree. The Eighth Circuit has "interpreted Loudermill to require
only limited pretermination process, especially if post-termination proceedings are
available and extensive." Id. at 902–03. We have further explained, "[E]xtensive
post-termination proceedings may cure inadequate pretermination proceedings." Id.
at 902. Smutka mistakenly contends that we must review only the HUC
hearing—without reference to the BMS hearing—when determining the adequacy of
his post-termination proceedings. Because that contention is not the law, cf. id. at
903 (recognizing that Missouri law granting an administrative hearing constitutes
post-termination proceedings that satisfy due-process requirements), we ask whether
the BMS hearing violated Smutka's procedural-due-process rights. It cannot be
seriously doubted that the MPELRA's independent review process provided Smutka
with comprehensive post-termination rights. See Minn. Stat. § 179A.25. Under those
post-termination proceedings, Smutka enjoyed a full, trial-like, four-day hearing
before an independent review officer and also had the opportunity to submit post-
hearing briefs. These post-termination proceedings resulted in reinstatement with full
backpay and benefits. Given Smutka's access to extensive post-termination
proceedings, we must sustain the District Court's conclusion that Smutka's
procedural-due-process rights were not violated in this case.

                                         III.

     For the reasons discussed, we affirm the District Court's grant of summary
judgment to the defendants.
                      ______________________________

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