                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53



           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                             Argued October 4, 2006
                            Decided November 7, 2006

                                     Before

                    Hon. JOHN L. COFFEY, Circuit Judge

                    Hon. TERENCE T. EVANS, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06-1283

DENNIS GRIFFIN                              Appeal from the United States District
         Plaintiff-Appellant,               Court for the Eastern District of
                                            Wisconsin

      v.                                    No. 04-C-512

ODISE BENNETT and JONATHON                  Rudolph T. Randa
DELAGRAVE,                                  Chief Judge.
         Defendants-Appellees.

                                   ORDER

       Dennis Griffin, a former employee of the Racine County Juvenile Detention
Facility, sued both his supervisor and the deputy superintendent of the detention
center under 42 U.S.C. § 1983, alleging that his Fourteenth Amendment rights
were violated and arguing that the defendants terminated him without providing
notice of the charges and a hearing. The district court granted summary judgment
for the defendants finding that Griffin was given sufficient notice and a hearing
before his termination.

       Griffin was hired in 2001 as a “juvenile detention worker.” Detention
workers are public employees and can be fired only for cause. In January 2004 one
of Griffin’s co-workers told the deputy superintendent, Jonathon Delagrave, that
No. 06-1283                                                              Page 2
Griffin and a juvenile in the center had been using drugs. When Delagrave met
with the juvenile, K.T., he admitted to having smoked marijuana with Griffin at an
undisclosed location. Delagrave then contacted Griffin’s supervisor, Odise Bennett,
and the human resources manager, Marta Kultgen; they decided to order that
Griffin take a drug test. On January 22, Griffin complied. The test results came
back positive for marijuana use. Griffin was placed on administrative leave without
pay, but was not notified of this action. The medical review officer informed Griffin
on January 23 that his drug test was positive, and that the detention center would
contact him regarding his future employment status. According to his deposition
testimony, Griffin was aware that he could be disciplined, or even fired because of
the positive drug test.

       On January 27, Bennett telephoned Griffin and requested a meeting later
that morning, stating that Griffin’s “job was on the line.” Before the meeting,
Griffin conferred privately with three union representatives, all of whom later
accompanied him to the meeting. Delagrave and Kultgen also attended. Kultgen
began the meeting by stating that she had received notice of Griffin’s positive test
result. Kultgen gave Griffin an opportunity to explain the test results, but he
declined to do so. At the end of the meeting, Griffin was terminated.

       Griffin asked one of the union representatives whether he had any recourse.
The representative told him that he did not, and that his failing of the drug test was
a proper ground for termination. Griffin thus decided not to file a grievance
challenging his discharge, which was an option under the Racine County public
employees’ collective bargaining agreement. On February 12 Griffin wrote to the
Racine County Executive regarding an unexplained deduction from his paycheck,
and his belief that he did not receive a Loudermill hearing. Griffin asserted that
the grievance procedure did not “supercede [his] rights” under Loudermill.

       In May 2004, Griffin filed suit under 42 U.S.C. § 1983, alleging that the
defendants violated his Fourteenth Amendment due process rights by not giving
him a hearing before terminating his employment. The defendants moved for
summary judgment, claiming that they gave Griffin an opportunity to challenge or
explain the positive test result that led to his firing. After hearing testimony and
reviewing the case, the district court granted summary judgment for the
defendants, after concluding that Griffin was given a pretermination hearing that
was “constitutionally sound” and furthermore that he had the opportunity for a
post-termination hearing.

       Griffin initially argues that Racine County’s pre-termination procedures do
not satisfy the requirements of Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532
(1985) and Staples v. City of Milwaukee, 142 F.3d 383 (7th Cir. 1998), because he
was not given advance written notice of the charges against him. The Court in
No. 06-1283                                                               Page 3
Loudermill held that a public employee who can be dismissed only for cause must
be granted a pre-termination hearing, followed by a more comprehensive post-
termination hearing. Loudermill, 470 U.S. at 545-46; Gilbert v. Homar, 520 U.S.
924, 929 (1997). In Staples, this court noted that the critical elements identified in
Loudermill were (1) oral or written notice of the charges, (2) an explanation of the
employer’s charges, and (3) an opportunity to tell his side of the story. Staples, 142
F.3d at 385.

       In this case, although he was not given written notice of the charges, Griffin
well knew that the purpose of the January 27 meeting was to discuss his failed drug
test. At the meeting, the defendants referred to the drug test and asked Griffin if
he had an explanation for the positive results; he replied, “no.” Because Griffin was
given notice and an opportunity to respond to the charges, the pre-termination
procedures were constitutionally sufficient.

       Griffin cites Wallace v. Tilley, 41 F.3d 296 (7th Cir. 1994), to suggest that due
process requires actual written (rather than oral) notice. It is true that the
employee in Wallace received written notice six days before the hearing, and that
the notice included the date of the hearing at which formal charges would be
presented. Id. at 300 n.5. But, as the law clearly states, written notice of the
charges is not required; oral notice alone is sufficient. This court has repeatedly
noted Loudermill’s direction that “[t]he tenured public employee is entitled to oral
or written notice of the charges against him.” Lavlani v. Cook County, 396 F.3d
911, 915 (7th Cir. 2005) (quoting Loudermill). To date we have not specified how
far in advance an employee must receive notice, but have suggested that
contemporaneous notice may suffice if the employee knew that his job was in
jeopardy. See Staples, 142 F.3d at 387. Here, Griffin received oral notice of the
meeting only one hour before it began, but the notice was sufficient because, by his
own admission, Griffin was well aware that the meeting was convened to discuss
his violation of the County’s drug-free policy and how that violation might
jeopardize his job.

       Griffin further claims that he was “blindsided” at the pre-termination
hearing by two additional charges contained in his employee disciplinary report: (1)
that he had used drugs in the workplace, and (2) that he had engaged in
inappropriate conduct with the juvenile K.T. However, Griffin’s disciplinary report
contains no reference that a juvenile was involved with Griffin’s drug use.
Moreover, according to Delagrave’s uncontradicted testimony, Griffin’s positive drug
test was the only relevant factor in the decision to terminate him. Whether he used
drugs on the detention center premises or elsewhere was unimportant: Griffin
failed the drug test. Id. Because Griffin had notice of the charge that he had tested
positive for marijuana use, and an opportunity to respond, he received all the
process he was due.
No. 06-1283                                                              Page 4
       Griffin next argues that he was removed from the payroll on January 22,
which suggests that he was actually terminated on January 22, several days before
the January 27 meeting. If this assertion were true, the defendants would have
violated Loudermill by not providing Griffin with a pre-termination hearing. But
this claim is unsupported by the record. Griffin himself alleged in his complaint
that he was terminated on January 27, and the defendants agree. Nothing in the
record indicates that he was removed from the payroll on January 22. Griffin was
not paid after January 23 because he was placed – without notice – on
administrative leave. There are few details in the record regarding his suspension,
but his not being paid after January 23 is consistent with his being placed on
administrative leave without pay. The district court declined to hear this issue
because Griffin’s complaint did not allege a lack of due process regarding his
suspension. He raised this issue for the first time in his brief opposing the motion
for summary judgment. The court rejected this argument as an inappropriate
attempt to amend his complaint. See Shanahan v. City of Chi., 82 F.3d 776, 781
(7th Cir. 1996). Griffin’s argument is not only inaccurate, but also untimely
because he did not include it in an amended complaint; thus the claim that he was
fired on January 22 cannot be accepted.

       Griffin’s final argument is that he did not receive post-termination relief
because the defendants ignored his February 12 request for a Loudermill hearing.
Griffin misunderstands Loudermill’s requirements. In Loudermill, the Court noted
that its holding rested in part on state law provisions providing for a full post-
termination hearing. 470 U.S. at 546; see Head v. Chi. Sch. Reform Bd. of Trs., 225
F.3d 794, 803 n.8 (7th Cir. 2000) (noting that limited pre-termination procedures
are permissible only if full post-termination procedures are available). In this case,
Racine County and Griffin’s union had a grievance procedure in place for employees
to appeal any disciplinary actions taken against them. Griffin testified that he
thought he had no grounds to contest his discharge and did not file a grievance,
based on a conversation with one of the union representatives. But that Griffin on
his own chose not to avail himself of an existing grievance procedure does not alter
its availability. Moreover, our precedents do not suggest that public employees are
entitled to post-termination relief apart from what is provided for in their collective
bargaining agreements. See, e.g., Wallace, 41 F.3d at 302 (“This Court has
explicitly recognized that ‘a grievance procedure under a collective bargaining
agreement can satisfy due process, even when a public employee has been
discharged.’”) (quoting Buttitta v. City of Chi., 9 F.3d 1198, 1206 (7th Cir. 1993))
(quoting Winston v. United States Postal Serv., 585 F.2d 198, 209-10 (7th Cir. 1978).

                                                                         AFFIRMED.
