      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2    Mitchell v. Fankhauser, et al.              No. 03-5279
   ELECTRONIC CITATION: 2004 FED App. 0225P (6th Cir.)
               File Name: 04a0225p.06                    KAISER, Washington, D.C., for Appellant. Robert L.
                                                         Chenoweth, CHENOWETH LAW OFFICE, Frankfort,
                                                         Kentucky, for Appellees. ON BRIEF: Alice Margaret
UNITED STATES COURT OF APPEALS                           O’Brien, John M. West, BREDHOFF & KAISER,
                                                         Washington, D.C., for Appellant. Robert L. Chenoweth,
             FOR THE SIXTH CIRCUIT                       CHENOWETH LAW OFFICE, Frankfort, Kentucky, for
               _________________                         Appellees.

LE CARTHY MITCHELL ,         X                                               _________________
         Plaintiff-Appellant, -
                              -                                                  OPINION
                              -       No. 03-5279                            _________________
         v.                   -
                               >                            RONALD LEE GILMAN, Circuit Judge. After an
                              ,                          abbreviated pre-termination hearing, LeCarthy Mitchell was
ROBIN FANKHAUSER and THE -
BOARD OF EDUCATION OF                                    fired from his job as a school custodian for allegedly stealing
                              -                          school property. No post-termination hearing was provided
FAYETTE COUNTY,               -                          by the school district. Mitchell filed suit pursuant to 42
KENTUCKY ,                    -                          U.S.C. § 1983, claiming that the school superintendent and
       Defendants-Appellees. -                           the school district violated his constitutional right to
                              -                          procedural due process. The district court granted summary
                              -                          judgment in favor of the defendants. For the reasons set forth
                             N                           below, we REVERSE the judgment of the district court and
                                                         REMAND for further proceedings consistent with this
     Appeal from the United States District Court        opinion.
   for the Eastern District of Kentucky at Lexington.
    No. 02-00070—Joseph M. Hood, District Judge.                             I. BACKGROUND

                Argued: April 29, 2004                   A. Factual history

          Decided and Filed: July 14, 1004                 Mitchell worked for the Fayette County Public School
                                                         (FCPS) District in Lexington, Kentucky from October of
 Before: GUY, GILMAN, and COOK, Circuit Judges.          1993 through August of 2001. His last assignment was as
                                                         head custodian at Henry Clay High School. Mitchell’s status
                 _________________                       as an employee with more than four years of continuous
                                                         service with FCPS entitled him, under Kentucky law, to not
                      COUNSEL                            be discharged except “for cause.” Ky. Rev. Stat. 161.011(5).
                                                         “For cause” includes “incompetency, neglect of duty,
ARGUED:      Alice Margaret O’Brien, BREDHOFF &          insubordination, inefficiency, misconduct, immorality, or

                           1
No. 03-5279               Mitchell v. Fankhauser, et al.       3    4    Mitchell v. Fankhauser, et al.               No. 03-5279

other reasonable grounds which are specifically contained in           Fankhauser notified Mitchell in a letter a few days after the
board policy.” Ky. Rev. Stat. 161.011(7). The statute also          meeting that she was terminating him based upon the fact
provides that “[l]ocal school boards shall develop and provide      that, in July of 2001, he had been “observed helping another
to all classified employees written policies which shall            custodian load several ladders, lumber, folding chairs, and
include . . . [d]iscipline guidelines and procedures that satisfy   sewing machines into his car.” In a letter responding to his
due process requirements.” Ky. Rev. Stat. 161.011(9)(c).            termination, Mitchell denied the allegations against him
                                                                    “either because they are untrue or because, to the extent any
  By letter dated August 15, 2001, FCPS superintendent              of the charges have a basis in fact, they do not warrant the
Dr. Robin L. Fankhauser suspended Mitchell for fifteen days         extreme sanction of termination . . . .” Mitchell also
with pay. Fankhauser explained that her action was “based           requested an opportunity “to challenge the charges in a due
upon the fact that I have received allegations against you          process hearing before a neutral finder of fact . . . .” FCPS’s
concerning theft of school property. The purpose of the             general counsel denied Mitchell’s request, explaining that the
suspension with pay is to allow me the opportunity to               August 20, 2001 meeting served as Mitchell’s due process
investigate the facts involved in these allegations.” A “hand-      hearing: “Dr. Fankhauser listened to all parties at the meeting
delivered” designation is found at the top left-hand corner of      and subsequently made the decision to terminate
the letter, and a form titled “Attempt to Serve” was introduced     Mr. Mitchell[] . . . .”
into evidence, suggesting that FCPS Law Enforcement
Officer JD Jones attempted to deliver the letter at 6:15 p.m.       B. Procedural history
on August 15. Whether Mitchell ever received the letter is
not clear from the record.                                            Mitchell brought suit against Fankhauser and FCPS
                                                                    pursuant to 42 U.S.C. § 1983, alleging that Fankhauser and
   Also introduced into evidence—over Mitchell’s                    the Board violated Mitchell’s right to the due process of law
objection—is a FCPS Law Enforcement “investigative                  by refusing “to provide him with an evidentiary due process
report” dated August 15, 2001, purporting to record an              hearing upon the reasons” for his termination. After
interview between Officer Jones and Mitchell. Mitchell is           Fankhauser and FCPS answered, both sides moved for
alleged to have “admitted taking a sewing-machine cabinet           summary judgment.
from Henry Clay High School to his home in Frankfort,
Kentucky. He stated that he later put the cabinet in the               Fankhauser and FCPS attached to their trial-court brief in
dumpter [sic]. The cabinet has not been recovered.”                 support of summary judgment “seventeen pages detailing the
                                                                    factual allegations against” Mitchell. Mitchell moved to
  On August 20, 2001, Mitchell was called in to meet with           strike these documents on the basis that they were “offered
Fankhauser and various other FCPS officials. Mitchell was           only to influence the Court to make a decision on the
then informed of the allegations that had been made against         underlying facts of the case and ‘are not of record before the
him—by people who were not present at the meeting—to the            Court.’” Denying Mitchell’s motion, the district court
effect that Mitchell had helped another custodian steal school      reasoned that the attachments were “relevant to what if any
property. At the meeting, Mitchell admitted only to having          investigation took place and . . . what pre- or post-termination
taken a sewing-machine cabinet home with him, but then              hearings actually were necessary to satisfy the requirements
returning it to the school.                                         of due process.” The district court denied Mitchell’s motion
                                                                    for summary judgment and granted summary judgment to
No. 03-5279               Mitchell v. Fankhauser, et al.       5    6     Mitchell v. Fankhauser, et al.                No. 03-5279

Fankhauser and FCPS on January 30, 2003. Mitchell filed a           a protected property interest in his employment. The only
timely notice of appeal of the court’s grant of summary             question on appeal, therefore, is whether Mitchell was
judgment to Fankhauser and FCPS.                                    afforded all of the process that he was due.
                       II. ANALYSIS                                    In the context of employment rights, the Supreme Court has
                                                                    explained that “the root requirement of the Due Process
A. Standard of review                                               clause” is “that an individual be given the opportunity for a
                                                                    hearing before he is deprived of any significant property
   We review a district court’s grant of summary judgment de        interest.” Loudermill, 470 U.S. at 542 (quotation marks and
novo. Therma-Scan, Inc. v. Thermoscan, Inc. 295 F.3d 623,           citation omitted) (emphasis in original). Acknowledging “the
629 (6th Cir. 2002). Summary judgment is proper where               severity of depriving a person of the means of livelihood[,]”
there exists no genuine issue of material fact and the moving       the Court has noted that “[w]hile a fired worker may find
party is entitled to judgment as a matter of law. Fed. R. Civ.      employment elsewhere, doing so will take some time and is
P. 56(c). In considering a motion for summary judgment, the         likely to be burdened by the questionable circumstances under
district court must construe all reasonable inferences in favor     which he left his previous job.” Id. at 543.
of the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central              Pre-termination hearings “need not be elaborate.” Id. at
issue is “whether the evidence presents a sufficient                545. “The tenured public employee is entitled to oral or
disagreement to require submission to a jury or whether it is       written notice of the charges against him, an explanation of
so one-sided that one party must prevail as a matter of law.”       the employer’s evidence, and an opportunity to present his
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52               side of the story.” Id. at 546. This “initial check against
(1986).                                                             mistaken decisions” is all that is necessary where an
                                                                    employee is provided with a full post-termination hearing. Id.
B. Due process                                                      at 545; Brickner v. Voinovich, 977 F.2d 235, 237 (6th Cir.
                                                                    1992) (“The Supreme Court has held that, depending on the
   The Due Process Clause of the Fourteenth Amendment to            circumstances, a pre-termination hearing, although necessary,
the United States Constitution “provides that certain               may not need to be elaborate, as long as the plaintiff is
substantive rights—life, liberty, and property—cannot be            entitled to a full hearing with the possibility of judicial review
deprived except pursuant to constitutionally adequate               at the post-termination stage.”). Post-termination hearings, on
procedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S.         the other hand, “serve to ferret out bias, pretext, deception and
532, 541 (1985). This court undertakes a two-step analysis          corruption by the employer in discharging the employee.”
when considering claims for the violation of due process            Duchesne v. Williams, 849 F.2d 1004, 1008 (6th Cir. 1988).
rights. Leary v. Daeschner, 228 F.3d 729, 741-42 (6th Cir.
2000). The first step determines whether the plaintiff has a           This court addressed the interplay between pre- and post-
property interest entitled to due process protection. Id. at 741.   termination procedures in Carter v. Western Reserve
Second, if the plaintiff has such a protected property interest,    Psychiatric Habilitation Center, 767 F.2d 270 (6th Cir. 1985)
“this court must then determine what process is due.” Id. at        (per curiam). In Carter, several public employees brought
742 (quotation marks and citation omitted). In the present          suit under 42 U.S.C. § 1983, alleging violations of their rights
case, Fankhauser and FCPS do not contest that Mitchell had          to the due process of law. One of the defendants, Paul Wade,
No. 03-5279              Mitchell v. Fankhauser, et al.       7   8     Mitchell v. Fankhauser, et al.               No. 03-5279

argued that his constitutional right to due process had been         Despite this intent, we are convinced that the hearing
violated when he was discharged by his employer without           actually provided to Mitchell was not in itself sufficient to
receiving a meaningful pre-termination or post-termination        satisfy the requirements of due process as set forth in Carter.
hearing.    The district court had found that Wade’s              Mitchell, like the employee discharged in Carter, was
pre-termination hearing was constitutionally sufficient           afforded only an abbreviated pre-termination hearing. He is
because Wade had received notice of the charge against him        therefore entitled to a more meaningful post-termination
and was afforded an opportunity to respond. This court held       hearing. This is not to say that two hearings are always
“that the required extent of post-termination procedures is       required to satisfy due process. If the pre-termination hearing
inextricably intertwined with the scope of pre-termination        is more “meaningful,” as described in Carter, then no post-
procedures.” Id. at 273. The district court’s grant of            termination hearing would be necessary. But, as in Carter
summary judgment to the employer on Wade’s claims was             itself, that is not what took place in the case before us.
reversed and remanded for a determination as to whether the
post-termination process was constitutionally sufficient,           We now turn to the district court’s references to Parratt v.
reasoning:                                                        Taylor, 451 U.S. 527 (1981), and Vicory v. Walton, 721 F.2d
                                                                  1062 (6th Cir. 1983), in support of its decision to the contrary.
  Where, as here, a court has approved an abbreviated pre-        The district court, relying upon these two cases, held that
  termination hearing, due process requires that a                Mitchell was “required to show that available state procedures
  discharged employee’s post-termination hearing be               were inadequate to compensate him for the deprivation of his
  substantially more “meaningful.” At a minimum, this             property” in order for him to state a claim under 42 U.S.C.
  requires that the discharged employee be permitted to           § 1983.
  attend the hearing, to have the assistance of counsel, to
  call witnesses and produce evidence on his own behalf,             In Parratt, a Nebraska prisoner sued prison officials under
  and to know and have an opportunity to challenge the            § 1983, alleging that the prison officials deprived him of the
  evidence against him.                                           due process of law by negligently losing his mail-order hobby
                                                                  materials. The Court held that the prisoner had failed to
Id.                                                               allege a due process violation, reasoning that the loss of
                                                                  property “did not occur as a result of some established state
   Mitchell’s case is similar to that of the discharged           procedure” and that the prisoner could seek redress pursuant
employee in Carter. The August 20, 2001 meeting that              to state tort law. Id. at 543. Pre-deprivation due process was
Mitchell had with Fankhauser and the other FCPS officials         not at issue in Parratt because of how the property loss
provided Mitchell with oral notice of the charges against him     occurred. A negligent loss of property “is not a result of some
and an opportunity to present his side of the story, analogous    established state procedure and the State cannot predict
to the “abbreviated pre-termination hearing” provided to the      precisely when the loss will occur.” Id. at 541. The Court
employee in Carter. But Mitchell was not afforded a post-         accordingly noted that “in most cases it is not only
termination hearing; in fact, FCPS has no post-termination        impracticable, but impossible, to provide a meaningful
process. Fankhauser and FCPS explain in their brief that the      hearing before the deprivation.” Id.
FCPS policy “was intended to take care of all the
requirements of due process pre-termination.” (Emphasis             In the subsequent case of Logan v. Zimmerman Brush Co.,
added.)                                                           455 U.S. 422, 435-36 (1982), the Court emphasized that
No. 03-5279               Mitchell v. Fankhauser, et al.     9    10   Mitchell v. Fankhauser, et al.              No. 03-5279

Parratt dealt with a deprivation of property resulting from the      This court decided the case of Carter v. Western Reserve
random, unauthorized act of a state employee, which is            Psychiatric Habilitation, 767 F.2d 270 (6th Cir. 1985), almost
distinct from a deprivation resulting from an established state   two years after Vicory. As previously mentioned, Carter
procedure. See also Hudson v. Palmer, 468 U.S. 517, 532           followed the Supreme Court’s decision in Cleveland Board of
(1984) (“[P]ostdeprivation remedies do not satisfy due            Education v. Loudermill, 470 U.S. 532 (1985), holding that
process where a deprivation of property is caused by conduct      due process required that the public employee be afforded a
pursuant to established state procedure, rather than random       “meaningful” post-termination hearing, having been provided
and unauthorized action.”); Zinermon v. Burch, 494 U.S. 113,      with only an “abbreviated” pre-termination hearing. Carter,
128 (1990) (explaining that “the Parratt rule comes into play”    767 F.2d at 273. Although Carter succeeded Vicory, it did
only in situations where “postdeprivation tort remedies are all   not mention Vicory. We note that this was not illogical given
the process that is due, simply because they are the only         Vicory’s acknowledgment of the “difference between a
remedies that the State could be expected to provide”).           challenge to an established state procedure as lacking in due
                                                                  process . . . and a property damage claim arising out of the
  This court first applied Parratt in Vicory v. Walton, 721       alleged misconduct of state officers.” Vicory, 721 F.2d at
F.2d 1062 (6th Cir. 1983), addressing whether a § 1983            1064. Carter deals with the former, while Vicory deals with
plaintiff alleging the deprivation of property without the due    the latter.
process of law must plead and prove “the inadequacy of state
processes, including state damage remedies to redress the            Watts v. Burkhart, 854 F.2d 839 (6th Cir. 1988), was the
claimed wrong.” Id. at 1063. The plaintiff in Vicory owned        next Sixth Circuit case to address procedural due process in
a mobile-home trailer, which he rented out. After a triple        the context of an employment-related § 1983 claim. In Watts,
homicide occurred in the trailer, law enforcement officials       a doctor brought a § 1983 suit against a state administrative
seized the trailer to investigate the crime. Vicory sued to       body that sought to suspend his license to practice medicine.
recover his trailer under § 1983, alleging that he was deprived   Dismissing the case, the district court reasoned that Parratt
of his property without the due process of law. This court,       foreclosed a § 1983 procedural due process action where the
relying upon Parratt, held that Vicory could not invoke           state courts provide adequate post-deprivation remedies. Id.
§ 1983 without showing that his state-court remedies were         at 841. This court held that “Parratt clearly does not apply
inadequate. Id. at 1064. Specifically, the court noted that       and the district court erred in concluding that it did.” Id. at
Vicory could resort to a forcible entry and detainer suit in      844.     Parratt and Vicory, this court explained, are
Ohio state court. The court noted the important distinction       inapplicable “where a deprivation of property is caused by
that exists between cases such as Parratt and                     conduct pursuant to established state procedure, rather than
Vicory—involving property deprivation claims “arising out of      random and unauthorized conduct.” Id. at 843 (quoting
the alleged misconduct of state officers”—and challenges to       Hudson v. Palmer, 468 U.S. 517, 532 (1984)) (quotation
established state procedures. Id.                                 marks omitted). The state action at issue in Watts was “the
                                                                  state agency’s deliberate decision to obtain either the
   This significant distinction, as stated by the Supreme Court   voluntary surrender of Watts’ DEA authorization or the
in Parratt, Logan, Hudson, and Zinermon, and echoed by this       summary suspension of Watts’ license, which was done under
court in Vicory, has unfortunately not been consistently          established state procedure[.]” Id. This court reasoned that
applied in our circuit’s caselaw. The two parallel but            because the pre-deprivation actions taken in Watts were
contradictory lines of authority are discussed below.
No. 03-5279               Mitchell v. Fankhauser, et al.     11    12   Mitchell v. Fankhauser, et al.               No. 03-5279

pursuant to established state procedures, Parratt did not          inadequacy of post-termination state law remedies in order to
apply.                                                             prevail,” reasoning that where a plaintiff alleges deprivation
                                                                   of due process pursuant to established state procedures, rather
   Despite the Supreme Court’s and this court’s                    than random, unauthorized acts, “it is both practicable and
pronouncements that Parratt applies only to random,                feasible for the state to provide pre-deprivation process to the
unauthorized deprivations of property, this court has              aggrieved party”); Sutton v. Cleveland Bd. of Educ., 958 F.2d
occasionally applied Parratt’s requirement of pleading the         1339, 1349-50 (6th Cir. 1992) (stating broadly that Parratt
inadequacy of state-court remedies more broadly. See               and Vicory require § 1983 plaintiffs claiming procedural due
Jefferson v. Jefferson County Public Sch. Sys., 360 F.3d 583,      process violations to show the inadequacy of state procedures,
588 (6th Cir. 2004) (holding that a teacher who was afforded       but basing its holding that terminated school employees were
a pre-termination hearing and then was suspended from her          entitled to a post-termination hearing on Carter’s mandate
job and allegedly forced to retire could not seek relief under     that where an abbreviated pre-termination hearing is afforded,
§ 1983 for an alleged deprivation of her procedural due            due process requires a more “meaningful” post-termination
process rights “without first pleading and proving the             hearing); Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir.
inadequacy of state or administrative processes and remedies       1991) (“In this Circuit, . . . a § 1983 plaintiff may prevail on
to redress her due process rights” per Parratt); Meyers v. City    a procedural due process claim by either (1) demonstrating
of Cincinnati, 934 F.2d 726, 731 (6th Cir. 1991) (relying          that he is deprived of property as a result of established state
exclusively upon Vicory to hold broadly that in procedural         procedure that itself violates due process rights; or (2) by
due process cases brought pursuant to § 1983, “the plaintiff       proving that the defendants deprived him of property pursuant
must attack the state’s corrective procedure as well as the        to a ‘random and unauthorized act’ and that available state
substantive wrong”); Hawks v. City of Pontiac, 874 F.2d 347,       remedies would not adequately compensate for the loss.
350-51 (6th Cir. 1989) (holding that, under Hudson and             Parratt is applied to those cases falling under the second
Vicory, a plaintiff alleging a due process violation in a § 1983   category.”) (emphasis in original) (citation omitted).
case “has the burden of showing the inadequacy of his
remedies under state law”); Sewell v. Jefferson County Fiscal        We are therefore faced with deciding between multiple
Court, 863 F.2d 461, 468 (6th Cir. 1988) (stating in dicta that    precedents on both sides—those that apply Parratt only to
a plaintiff who brought a § 1983 procedural due process suit,      random, unauthorized deprivations of property and those that
not based upon a random, unauthorized deprivation of               apply Parratt more broadly. Our analysis convinces us that
property, was barred from recovering under § 1983 pursuant         the correct line of authority in the Sixth Circuit is that of
to Parratt and Vicory because she failed to demonstrate that       Watts, Macene, Carter, and Moore. In the present case,
her state-court remedies were inadequate).                         Mitchell was not deprived of his property interest in his job
                                                                   pursuant to a random or unauthorized act. Mitchell, therefore,
   On the other hand, other decisions of this court, in addition   “was required neither to plead nor prove the inadequacy of
to Carter and Watts, have recognized the distinction between       post-termination state-law remedies in order to prevail.”
random, unauthorized acts and established state procedures.        Moore, 134 F.3d at 785. We therefore decline to apply
See Moore v. Bd. of Educ. of Johnson City Schs., 134 F.3d          Parratt and Vicory to the present case.
781, 785 (6th Cir. 1998) (holding that a teacher who brought
a § 1983 suit alleging deprivation of her procedural due
process rights “was required neither to plead nor prove the
No. 03-5279            Mitchell v. Fankhauser, et al.   13

                 III. CONCLUSION
  For all of the reasons set forth above, we REVERSE the
judgment of the district court and REMAND for further
proceedings consistent with this opinion.
