Timothy Morrison v. Richard L. Warren

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

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

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No. 02-3672 Morrison v. Warren, et al. 5
in Jade Morrison’s allegations of domestic abuse, he would
consider evidence of Morrison’s post-discharge conduct.
On July 30, 1999, the arbitrator issued a 43-page decision
denying in part and sustaining in part the union’s position.
The arbitrator first found that because the Civil Protection
Order had been vacated, the May 28 discharge was invalid.
However, the arbitrator also found that “the Sheriff is justified
in not returning [Morrison] to its employ,” because
Morrison’s discharge was justified by his post-discharge
conduct, stating:
It would be a serious problem for the Sheriff if
[Morrison, upon reinstatement while subject to the
conviction] were to violate his probation . . . and have to
be locked up with some of the criminals he arrested.
Such a reasonably foreseeable situation is intolerable and
supports a finding that just cause exists for . . .
termination.
The arbitrator awarded Morrison back pay from May 28,
1998 (the date of his “premature” discharge), to July 2, 1998
(the date upon which the domestic violence charge was filed).
Fashioning a remedy similar to that provided in section 10.4
of the collective bargaining agreement, the arbitrator also
decided that Morrison should be treated as if he were on leave
with vacation pay for the period between July 2, 1998, to
September 10, 1998 (the date of his conviction). Finally, the
arbitrator held that Morrison’s discharge was effective on
September 10, 1998.
Morrison, without support from the union, instituted an
action in state court to appeal the arbitrator’s award. The
state court ruled that Morrison had no standing to bring this
claim under the collective bargaining agreement, which gives
exclusive rights to the union to appeal an arbitrator’s award.
The state court’s judgment was affirmed on appeal.
6 Morrison v. Warren, et al. No. 02-3672
Morrison then filed an action in federal district court,
claiming, among other things, that the Sheriff’s Office
violated his procedural due process rights by failing to
provide these processes:
(1) adequate notice of the pre-termination hearing of
May 28, 1998;
(2) any notice or pre-termination hearing relating to
discharge based on his post-discharge conduct; and
(3) any review of the arbitrator’s decision relating to his
post-discharge conduct.
As to the first claim, the district court ruled that Morrison
received sufficient oral notice of the May 28 hearing. With
regard to second claim, the district court ruled that Morrison
failed to “explain how the post deprivation procedures set
forth in the collective bargaining agreement” do not satisfy
the process requirements vis-a-vis the post-discharge conduct.
On the third claim, the district court found that it was not
permitted to review the substance of the arbitrator’s award
and that it was satisfied that the arbitrator “carefully
considered whether Morrison’s post-termination conduct was
properly before him in determining the propriety of
Morrison’s discharge, and set forth numerous reasons for its
inclusion.”
For the reasons discussed below, we agree that oral notice
was sufficient. As to Morrison’s other contentions, however,
more consideration than the district court provided is due.
The district court cut short its due process analysis because it
found that Morrison was requesting substantive review of the
arbitrator’s award. We disagree with this finding. Rather
than seeking substantive review, Morrison is claiming that the
admission of his post-discharge conduct lacked procedural
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

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No. 02-3672 Morrison v. Warren, et al. 7
charge; this contention raises at least a colorable claim of
denial of due process. See Carter v. Western Reserve
Psychiatric Habilitation Ctr., 767 F.2d 270, 273 (6th Cir.
1985) (grievant’s claim that he was denied the right to argue
his case before the decision makers raises at least a colorable
claim of denial of due process). Because Morrison’s claims
implicate fundamental due process issues under the
Fourteenth Amendment, we now consider them.
II
A. Standard of Review
We engage in a de novo review of the district court’s grant
of summary judgment. Buckner v. City of Highland Park,
901 F.2d 491, 494 (6th Cir. 1990). Summary judgment is
proper when the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c). This motion for
summary judgment involves no disputed issue of fact; thus,
we must decide whether, as a matter of law, Morrison was
afforded due process. In doing so, we view the evidence and
draw all reasonable inferences in favor of Morrison, as the
nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986); Berlin v. Michigan Bell Tele. Co., 858 F.2d
1154, 1161 (6th Cir. 1988).
B. Waiver of Section 1983 Claim
Sheriff Warren and Adkins characterize this appeal as
Morrison’s attempt to “effect a substantive review of the
arbitrator’s [award]” that was waived as a result of the union’s
decision not to appeal it. Sheriff Warren and Adkins argue
that parties who contractually agree to binding arbitration, as
Morrison has here, waive judicial review except over the
determination of “whether there is a rational nexus between
the collective bargaining agreement and the [arbitrator’s]
8 Morrison v. Warren, et al. No. 02-3672
award, and whether the arbitrator was corrupt or committed
gross procedural improprieties.” Appellee’s Br. at 9 (citing
Cuyahoga Cmty. Coll. v. Dist. 925, Serv. Employees Intern.
Union, AFL-CIO, 42 Ohio App.3d 166, 167 (Ohio App. 8th
Dist. 1988)).
This argument fails for two reasons. First, Morrison is not
requesting a substantive review of the arbitrator’s award;
rather, he asks this Court to consider whether the evidence of
his post-discharge conduct was used in accordance with due
process requirements. Due process requires notice of the
charges and a meaningful opportunity to contest the evidence.
See Carter, 767 F.2d at 273 (at a minimum, procedural due
process requires that the discharged employee be permitted to
call witnesses and produce evidence on his own behalf, and
to know and have the opportunity to challenge the evidence
against him). Thus, if evidence is admitted to support a new
charge for which an employee was given no notice and had no
time to prepare, the employee is entitled to assert in federal
court a claim for violation of due process. Because Morrison
claims that his procedural due process rights were violated
when, to his surprise, evidence was admitted to support a new
charge—which ultimately was the basis for his
discharge—judicial review is appropriate.
Second, the arbitration clause in the collective bargaining
agreement lacks the clear and unmistakable language that is
necessary to waive procedural due process rights, and thus
cannot be interpreted to waive Morrison’s ability to assert
those rights. See Wright v. Universal Mar. Serv. Corp., 525
U.S. 70, 78-79 (1998) (waiver of union members’ federal
statutory rights in a collective bargaining agreement must be
“clear and unmistakable”); Ciambreillo v. County of Nassau,
292 F.3d 307 (2nd Cir. 1991) (binding arbitration clause in
collective bargaining agreement did not waive the employee’s
Fourteenth Amendment procedural due process right because
it lacked “clear and unmistakable language”). The only
reference to waiver in Morrison’s arbitration clause relates to

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No. 02-3672 Morrison v. Warren, et al. 9
the Sheriff’s Office’s disciplinary procedures, not the
Fourteenth Amendment. The clause states:
Failure to elect and pursue one of these three options
[appear at the hearing; appear at the hearing with
counsel; or elect in writing to waive the hearing
opportunity] will be deemed a waiver of the employee’s
rights to disciplinary hearings.
Thus, neither the arbitration agreement nor any actions or
omissions pursuant to that agreement waives Morrison’s
ability to file a Section 1983 procedural due process claim.
His claims are properly before us.
C. Procedural Due Process
To resolve procedural due process issues, we engage in a
two-step analysis. Johnston-Taylor v. Gannon, 907 F.2d
1577, 1581 (6th Cir. 1990). We initially determine whether a
protected property interest exists and then determine what
procedures are required to protect that interest. Id. Because
Morrison’s property interest in his continued employment is
undisputed, we move to the second step.
1. Pre-termination Process
The Supreme Court has held that an employee who has a
protected property interest in continued employment is
entitled to a pre-termination hearing, but that the pre-
termination hearing need not be elaborate. Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Morrison
claims that the Sheriff’s Office violated his procedural due
process right to a meaningful pre-termination hearing by
neglecting to provide written notice of the specific charges
against him. Yet the Court determined in Loudermill that
“[t]he tenured public employee is entitled to oral or written
notice of the charges against him.” Id. at 546 (emphasis
added). The oral notice provided by Adkins to
Morrison—that he would be discharged as a result of his
10 Morrison v. Warren, et al. No. 02-3672
inability to carry a gun due to the Civil Protection
Order—was sufficient.
Procedural due process also requires “an explanation of the
employer’s evidence and an opportunity for the employee to
present his side of the story.” Id. at 542. The Sheriff’s Office
also satisfied this requirement. Adkins explained that the
charge was based on the Civil Protection Order; then she
scheduled a pre-termination hearing for May 28, at which
Morrison made an informed presentation. Inasmuch as
Morrison received notice of the charge against him and was
afforded an opportunity to rebut it, the pre-termination
hearing satisfies constitutional requirements. See id.
2. Post-termination Process
In Morrison’s post-termination arbitration, the arbitrator
held that the Sheriff’s Office prematurely discharged
Morrison, but that it was justified “in not returning [Morrison]
to its employ” based on his post-discharge domestic violence
charge and related conviction. The parties give differing
characterizations of the arbitrator’s ruling. While the
Sheriff’s Office argues that the arbitrator considered
Morrison’s post-discharge conduct only to construct an
appropriate remedy for the invalid discharge, Morrison
contends that the arbitrator, rather than constructing a remedy,
found a distinct justification for a second, valid discharge.
We agree that Morrison suffered a second discharge.
However, in this context our characterization of the
arbitrator’s award is irrelevant. Under either characterization,
Morrison held a property interest in his employment from the
moment h i s i n i t i a l di s c h a r ge w a s deemed
invalid—conceptually, when a discharge is deemed invalid,
the property interest was never lost. Therefore, he deserved
all the protections that procedural due process requires for the
deprivation of a property interest, whether that deprivation is
characterized as a discharge or a failure to reinstate.
An essential principle of due process is that a deprivation
of property “be preceded by notice and opportunity for

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No. 02-3672 Morrison v. Warren, et al. 11
hearing appropriate to the nature of the case.” Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
Although the formality and procedural requisites for the
hearing can vary, “depending upon the importance of the
interests at stake and the nature of the subsequent
proceedings,” Loudermill, 470 U.S. at 545 (quoting Boddie v.
Connecticut, 401 U.S. 371, 378 (1971)), the fundamental
requirement of procedural due process is that an individual be
given an opportunity to be heard at a meaningful time and in
a meaningful manner, Mathews v. Eldridge, 424 U.S. 319,
335 (1976). At the least, this requires notice of the charges
and an opportunity to view and contest the evidence
supporting them. Loudermill, 470 U.S. at 546. Such notice
must be reasonably calculated, under the circumstances, to
apprise the interested parties of the pendency of an action and
afford them an opportunity to present their objections.
Carter, 767 F.2d at 273.
Morrison’s arbitration, which amounted to a post-
deprivation hearing on his first discharge and both the pre-
and post-deprivation hearings for his second discharge, was
extremely abbreviated in terms of satisfying due process for
the second discharge. Morrison, anticipating a hearing on his
original discharge, instead became aware—only at the
arbitration—that he would be discharged on the basis of the
domestic violence charge. Under the procedures set forth in
the collective bargaining agreement, and in the absence of the
first, invalid discharge, Morrison would normally get an
opportunity, pursuant to the collective bargaining agreement,
for pre- and post-discharge hearings on the domestic violence
charge. Thus, we must determine whether the abbreviated
process that he received satisfies due process requirements.
Sheriff Warren contends that it does, arguing that where the
grievant is aware of his post-discharge conduct (and the
consequential charge and conviction), oral notice—even if
only provided at the arbitration hearing—of the intent to
submit the domestic violence charge is sufficient to satisfy
due process requirements. The Sheriff states:
12 Morrison v. Warren, et al. No. 02-3672
[Morrison] can hardly argue that he was surprised when
he received notice that his former employers intended to
introduce evidence of the subsequent conviction.
[Morrison] argues in his brief that evidence of this charge
was presented at his post-deprivation hearing—he does
not, nor can he allege, that he was not given an
opportunity to respond to the evidence during the two-
day arbitration.
We recognize that abbreviated process may be justified in
some circumstances. Whether it is justified here depends on
our application of the constitutional balancing test set forth in
Mathews, 424 U.S. at 335. The four Mathews factors are: (1)
the private interest affected by the official action; (2) the risk
of an erroneous deprivation of such interest through the
procedures used; (3) the probable value, if any, of additional
or substitute procedural safeguards; and (4) the government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail. Id.
With regard to the first two factors, Morrison’s property
interest in his continued employment was not subject to any
risk of erroneous deprivation through the procedures used.
His Disorderly Conduct conviction, based on charges of
domestic violence, required his discharge under the Sheriff’s
Office’s “zero-tolerance policy;” neither reinstatement nor
additional recovery was possible. As to the third factor,
additional procedural safeguards would provide no value:
again, Morrison’s conviction required his discharge, and
nothing that a second hearing would provide could avoid that
outcome.
Finally, with regard to the government’s interest, there is an
undeniable argument in favor of upholding the abbreviated
process. The employee was a Deputy Sheriff charged with
protecting the citizens of Summit County. The government
interest in effective law enforcement is extremely high and
the need to speedily replace public safety officers who are
convicted of crimes is obvious. Buckner, 901 F.2d at 497

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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.

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