Lecarthy Mitchell v. ROBIN FANKHAUSER and THE BOARD OF EDUCATION OF FAYETTE COUNTY, KENTUCKY

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0225P (6th Cir.)
File Name: 04a0225p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LECARTHY MITCHELL,
Plaintiff-Appellant,
v.
ROBIN FANKHAUSER and THE
BOARD OF EDUCATION OF
FAYETTE COUNTY,
KENTUCKY,
Defendants-Appellees.
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No. 03-5279
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 02-00070—Joseph M. Hood, District Judge.
Argued: April 29, 2004
Decided and Filed: July 14, 1004
Before: GUY, GILMAN, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Alice Margaret O’Brien, BREDHOFF &
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KAISER, Washington, D.C., for Appellant. Robert L.
Chenoweth, CHENOWETH LAW OFFICE, Frankfort,
Kentucky, for Appellees. ON BRIEF: Alice Margaret
O’Brien, John M. West, BREDHOFF & KAISER,
Washington, D.C., for Appellant. Robert L. Chenoweth,
CHENOWETH LAW OFFICE, Frankfort, Kentucky, for
Appellees.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. After an
abbreviated pre-termination hearing, LeCarthy Mitchell was
fired from his job as a school custodian for allegedly stealing
school property. No post-termination hearing was provided
by the school district. Mitchell filed suit pursuant to 42
U.S.C. § 1983, claiming that the school superintendent and
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
below, we REVERSE the judgment of the district court and
REMAND for further proceedings consistent with this
opinion.
I. BACKGROUND
A. Factual history
Mitchell worked for the Fayette County Public School
(FCPS) District in Lexington, Kentucky from October of
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
be discharged except “for cause.” Ky. Rev. Stat. 161.011(5).
“For cause” includes “incompetency, neglect of duty,
insubordination, inefficiency, misconduct, immorality, or

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No. 03-5279 Mitchell v. Fankhauser, et al. 3
other reasonable grounds which are specifically contained in
board policy.” Ky. Rev. Stat. 161.011(7). The statute also
provides that “[l]ocal school boards shall develop and provide
to all classified employees written policies which shall
include . . . [d]iscipline guidelines and procedures that satisfy
due process requirements.” Ky. Rev. Stat. 161.011(9)(c).
By letter dated August 15, 2001, FCPS superintendent
Dr. Robin L. Fankhauser suspended Mitchell for fifteen days
with pay. Fankhauser explained that her action was “based
upon the fact that I have received allegations against you
concerning theft of school property. The purpose of the
suspension with pay is to allow me the opportunity to
investigate the facts involved in these allegations.” A “hand-
delivered” designation is found at the top left-hand corner of
the letter, and a form titled “Attempt to Serve” was introduced
into evidence, suggesting that FCPS Law Enforcement
Officer JD Jones attempted to deliver the letter at 6:15 p.m.
on August 15. Whether Mitchell ever received the letter is
not clear from the record.
Also introduced into evidence—over Mitchell’s
objection—is a FCPS Law Enforcement “investigative
report” dated August 15, 2001, purporting to record an
interview between Officer Jones and Mitchell. Mitchell is
alleged to have “admitted taking a sewing-machine cabinet
from Henry Clay High School to his home in Frankfort,
Kentucky. He stated that he later put the cabinet in the
dumpter [sic]. The cabinet has not been recovered.”
On August 20, 2001, Mitchell was called in to meet with
Fankhauser and various other FCPS officials. Mitchell was
then informed of the allegations that had been made against
him—by people who were not present at the meeting—to the
effect that Mitchell had helped another custodian steal school
property. At the meeting, Mitchell admitted only to having
taken a sewing-machine cabinet home with him, but then
returning it to the school.
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Fankhauser notified Mitchell in a letter a few days after the
meeting that she was terminating him based upon the fact
that, in July of 2001, he had been “observed helping another
custodian load several ladders, lumber, folding chairs, and
sewing machines into his car.” In a letter responding to his
termination, Mitchell denied the allegations against him
“either because they are untrue or because, to the extent any
of the charges have a basis in fact, they do not warrant the
extreme sanction of termination . . . .” Mitchell also
requested an opportunity “to challenge the charges in a due
process hearing before a neutral finder of fact . . . .” FCPS’s
general counsel denied Mitchell’s request, explaining that the
August 20, 2001 meeting served as Mitchell’s due process
hearing: “Dr. Fankhauser listened to all parties at the meeting
and subsequently made the decision to terminate
Mr. Mitchell[] . . . .”
B. Procedural history
Mitchell brought suit against Fankhauser and FCPS
pursuant to 42 U.S.C. § 1983, alleging that Fankhauser and
the Board violated Mitchell’s right to the due process of law
by refusing “to provide him with an evidentiary due process
hearing upon the reasons” for his termination. After
Fankhauser and FCPS answered, both sides moved for
summary judgment.
Fankhauser and FCPS attached to their trial-court brief in
support of summary judgment “seventeen pages detailing the
factual allegations against” Mitchell. Mitchell moved to
strike these documents on the basis that they were “offered
only to influence the Court to make a decision on the
underlying facts of the case and ‘are not of record before the
Court.’” Denying Mitchell’s motion, the district court
reasoned that the attachments were “relevant to what if any
investigation took place and . . . what pre- or post-termination
hearings actually were necessary to satisfy the requirements
of due process.” The district court denied Mitchell’s motion
for summary judgment and granted summary judgment to

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No. 03-5279 Mitchell v. Fankhauser, et al. 5
Fankhauser and FCPS on January 30, 2003. Mitchell filed a
timely notice of appeal of the court’s grant of summary
judgment to Fankhauser and FCPS.
II. ANALYSIS
A. Standard of review
We review a district court’s grant of summary judgment de
novo. Therma-Scan, Inc. v. Thermoscan, Inc. 295 F.3d 623,
629 (6th Cir. 2002). Summary judgment is proper where
there exists no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). In considering a motion for summary judgment, the
district court must construe all reasonable inferences in favor
of the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central
issue is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986).
B. Due process
The Due Process Clause of the Fourteenth Amendment to
the United States Constitution “provides that certain
substantive rights—life, liberty, and property—cannot be
deprived except pursuant to constitutionally adequate
procedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 541 (1985). This court undertakes a two-step analysis
when considering claims for the violation of due process
rights. Leary v. Daeschner, 228 F.3d 729, 741-42 (6th Cir.
2000). The first step determines whether the plaintiff has a
property interest entitled to due process protection. Id. at 741.
Second, if the plaintiff has such a protected property interest,
“this court must then determine what process is due.” Id. at
742 (quotation marks and citation omitted). In the present
case, Fankhauser and FCPS do not contest that Mitchell had
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a protected property interest in his employment. The only
question on appeal, therefore, is whether Mitchell was
afforded all of the process that he was due.
In the context of employment rights, the Supreme Court has
explained that “the root requirement of the Due Process
clause” is “that an individual be given the opportunity for a
hearing before he is deprived of any significant property
interest.” Loudermill, 470 U.S. at 542 (quotation marks and
citation omitted) (emphasis in original). Acknowledging “the
severity of depriving a person of the means of livelihood[,]”
the Court has noted that “[w]hile a fired worker may find
employment elsewhere, doing so will take some time and is
likely to be burdened by the questionable circumstances under
which he left his previous job.” Id. at 543.
Pre-termination hearings “need not be elaborate.” Id. at
545. “The tenured public employee is entitled to 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.” Id. at 546. This “initial check against
mistaken decisions” is all that is necessary where an
employee is provided with a full post-termination hearing. Id.
at 545; Brickner v. Voinovich, 977 F.2d 235, 237 (6th Cir.
1992) (“The Supreme Court has held that, depending on the
circumstances, a pre-termination hearing, although necessary,
may not need to be elaborate, as long as the plaintiff is
entitled to a full hearing with the possibility of judicial review
at the post-termination stage.”). Post-termination hearings, on
the other hand, “serve to ferret out bias, pretext, deception and
corruption by the employer in discharging the employee.”
Duchesne v. Williams, 849 F.2d 1004, 1008 (6th Cir. 1988).
This court addressed the interplay between pre- and post-
termination procedures in Carter v. Western Reserve
Psychiatric Habilitation Center, 767 F.2d 270 (6th Cir. 1985)
(per curiam). In Carter, several public employees brought
suit under 42 U.S.C. § 1983, alleging violations of their rights
to the due process of law. One of the defendants, Paul Wade,

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No. 03-5279 Mitchell v. Fankhauser, et al. 7
argued that his constitutional right to due process had been
violated when he was discharged by his employer without
receiving a meaningful pre-termination or post-termination
hearing. The district court had found that Wade’s
pre-termination hearing was constitutionally sufficient
because Wade had received notice of the charge against him
and was afforded an opportunity to respond. This court held
“that the required extent of post-termination procedures is
inextricably intertwined with the scope of pre-termination
procedures.” Id. at 273. The district court’s grant of
summary judgment to the employer on Wade’s claims was
reversed and remanded for a determination as to whether the
post-termination process was constitutionally sufficient,
reasoning:
Where, as here, a court has approved an abbreviated pre-
termination hearing, due process requires that a
discharged employee’s post-termination hearing be
substantially more “meaningful.” At a minimum, this
requires that the discharged employee be permitted to
attend the hearing, to have the assistance of counsel, to
call witnesses and produce evidence on his own behalf,
and to know and have an opportunity to challenge the
evidence against him.
Id.
Mitchell’s case is similar to that of the discharged
employee in Carter. The August 20, 2001 meeting that
Mitchell had with Fankhauser and the other FCPS officials
provided Mitchell with oral notice of the charges against him
and an opportunity to present his side of the story, analogous
to the “abbreviated pre-termination hearing” provided to the
employee in Carter. But Mitchell was not afforded a post-
termination hearing; in fact, FCPS has no post-termination
process. Fankhauser and FCPS explain in their brief that the
FCPS policy “was intended to take care of all the
requirements of due process pre-termination.” (Emphasis
added.)
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Despite this intent, we are convinced that the hearing
actually provided to Mitchell was not in itself sufficient to
satisfy the requirements of due process as set forth in Carter.
Mitchell, like the employee discharged in Carter, was
afforded only an abbreviated pre-termination hearing. He is
therefore entitled to a more meaningful post-termination
hearing. This is not to say that two hearings are always
required to satisfy due process. If the pre-termination hearing
is more “meaningful,” as described in Carter, then no post-
termination hearing would be necessary. But, as in Carter
itself, that is not what took place in the case before us.
We now turn to the district court’s references to Parratt v.
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.
The district court, relying upon these two cases, held that
Mitchell was “required to show that available state procedures
were inadequate to compensate him for the deprivation of his
property” in order for him to state a claim under 42 U.S.C.
§ 1983.
In Parratt, a Nebraska prisoner sued prison officials under
§ 1983, alleging that the prison officials deprived him of the
due process of law by negligently losing his mail-order hobby
materials. The Court held that the prisoner had failed to
allege a due process violation, reasoning that the loss of
property “did not occur as a result of some established state
procedure” and that the prisoner could seek redress pursuant
to state tort law. Id. at 543. Pre-deprivation due process was
not at issue in Parratt because of how the property loss
occurred. A negligent loss of property “is not a result of some
established state procedure and the State cannot predict
precisely when the loss will occur.” Id. at 541. The Court
accordingly noted that “in most cases it is not only
impracticable, but impossible, to provide a meaningful
hearing before the deprivation.” Id.
In the subsequent case of Logan v. Zimmerman Brush Co.,
455 U.S. 422, 435-36 (1982), the Court emphasized that

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No. 03-5279 Mitchell v. Fankhauser, et al. 9
Parratt dealt with a deprivation of property resulting from the
random, unauthorized act of a state employee, which is
distinct from a deprivation resulting from an established state
procedure. See also Hudson v. Palmer, 468 U.S. 517, 532
(1984) (“[P]ostdeprivation remedies do not satisfy due
process where a deprivation of property is caused by conduct
pursuant to established state procedure, rather than random
and unauthorized action.”); Zinermon v. Burch, 494 U.S. 113,
128 (1990) (explaining that “the Parratt rule comes into play”
only in situations where “postdeprivation tort remedies are all
the process that is due, simply because they are the only
remedies that the State could be expected to provide”).
This court first applied Parratt in Vicory v. Walton, 721
F.2d 1062 (6th Cir. 1983), addressing whether a § 1983
plaintiff alleging the deprivation of property without the due
process of law must plead and prove “the inadequacy of state
processes, including state damage remedies to redress the
claimed wrong.” Id. at 1063. The plaintiff in Vicory owned
a mobile-home trailer, which he rented out. After a triple
homicide occurred in the trailer, law enforcement officials
seized the trailer to investigate the crime. Vicory sued to
recover his trailer under § 1983, alleging that he was deprived
of his property without the due process of law. This court,
relying upon Parratt, held that Vicory could not invoke
§ 1983 without showing that his state-court remedies were
inadequate. Id. at 1064. Specifically, the court noted that
Vicory could resort to a forcible entry and detainer suit in
Ohio state court. The court noted the important distinction
that exists between cases such as Parratt and
Vicory—involving property deprivation claims “arising out of
the alleged misconduct of state officers”—and challenges to
established state procedures. Id.
This significant distinction, as stated by the Supreme Court
in Parratt, Logan, Hudson, and Zinermon, and echoed by this
court in Vicory, has unfortunately not been consistently
applied in our circuit’s caselaw. The two parallel but
contradictory lines of authority are discussed below.
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This court decided the case of Carter v. Western Reserve
Psychiatric Habilitation, 767 F.2d 270 (6th Cir. 1985), almost
two years after Vicory. As previously mentioned, Carter
followed the Supreme Court’s decision in Cleveland Board of
Education v. Loudermill, 470 U.S. 532 (1985), holding that
due process required that the public employee be afforded a
“meaningful” post-termination hearing, having been provided
with only an “abbreviated” pre-termination hearing. Carter,
767 F.2d at 273. Although Carter succeeded Vicory, it did
not mention Vicory. We note that this was not illogical given
Vicory’s acknowledgment of the “difference between a
challenge to an established state procedure as lacking in due
process . . . and a property damage claim arising out of the
alleged misconduct of state officers.” Vicory, 721 F.2d at
1064. Carter deals with the former, while Vicory deals with
the latter.
Watts v. Burkhart, 854 F.2d 839 (6th Cir. 1988), was the
next Sixth Circuit case to address procedural due process in
the context of an employment-related § 1983 claim. In Watts,
a doctor brought a § 1983 suit against a state administrative
body that sought to suspend his license to practice medicine.
Dismissing the case, the district court reasoned that Parratt
foreclosed a § 1983 procedural due process action where the
state courts provide adequate post-deprivation remedies. Id.
at 841. This court held that “Parratt clearly does not apply
and the district court erred in concluding that it did.” Id. at
844. Parratt and Vicory, this court explained, are
inapplicable “where a deprivation of property is caused by
conduct pursuant to established state procedure, rather than
random and unauthorized conduct.” Id. at 843 (quoting
Hudson v. Palmer, 468 U.S. 517, 532 (1984)) (quotation
marks omitted). The state action at issue in Watts was “the
state agency’s deliberate decision to obtain either the
voluntary surrender of Watts’ DEA authorization or the
summary suspension of Watts’ license, which was done under
established state procedure[.]” Id. This court reasoned that
because the pre-deprivation actions taken in Watts were

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No. 03-5279 Mitchell v. Fankhauser, et al. 11
pursuant to established state procedures, Parratt did not
apply.
Despite the Supreme Court’s and this court’s
pronouncements that Parratt applies only to random,
unauthorized deprivations of property, this court has
occasionally applied Parratt’s requirement of pleading the
inadequacy of state-court remedies more broadly. See
Jefferson v. Jefferson County Public Sch. Sys., 360 F.3d 583,
588 (6th Cir. 2004) (holding that a teacher who was afforded
a pre-termination hearing and then was suspended from her
job and allegedly forced to retire could not seek relief under
§ 1983 for an alleged deprivation of her procedural due
process rights “without first pleading and proving the
inadequacy of state or administrative processes and remedies
to redress her due process rights” per Parratt); Meyers v. City
of Cincinnati, 934 F.2d 726, 731 (6th Cir. 1991) (relying
exclusively upon Vicory to hold broadly that in procedural
due process cases brought pursuant to § 1983, “the plaintiff
must attack the state’s corrective procedure as well as the
substantive wrong”); Hawks v. City of Pontiac, 874 F.2d 347,
350-51 (6th Cir. 1989) (holding that, under Hudson and
Vicory, a plaintiff alleging a due process violation in a § 1983
case “has the burden of showing the inadequacy of his
remedies under state law”); Sewell v. Jefferson County Fiscal
Court, 863 F.2d 461, 468 (6th Cir. 1988) (stating in dicta that
a plaintiff who brought a § 1983 procedural due process suit,
not based upon a random, unauthorized deprivation of
property, was barred from recovering under § 1983 pursuant
to Parratt and Vicory because she failed to demonstrate that
her state-court remedies were inadequate).
On the other hand, other decisions of this court, in addition
to Carter and Watts, have recognized the distinction between
random, unauthorized acts and established state procedures.
See Moore v. Bd. of Educ. of Johnson City Schs., 134 F.3d
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
12 Mitchell v. Fankhauser, et al. No. 03-5279
inadequacy of post-termination state law remedies in order to
prevail,” reasoning that where a plaintiff alleges deprivation
of due process pursuant to established state procedures, rather
than random, unauthorized acts, “it is both practicable and
feasible for the state to provide pre-deprivation process to the
aggrieved party”); Sutton v. Cleveland Bd. of Educ., 958 F.2d
1339, 1349-50 (6th Cir. 1992) (stating broadly that Parratt
and Vicory require § 1983 plaintiffs claiming procedural due
process violations to show the inadequacy of state procedures,
but basing its holding that terminated school employees were
entitled to a post-termination hearing on Carter’s mandate
that where an abbreviated pre-termination hearing is afforded,
due process requires a more “meaningful” post-termination
hearing); Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir.
1991) (“In this Circuit, . . . a § 1983 plaintiff may prevail on
a procedural due process claim by either (1) demonstrating
that he is deprived of property as a result of established state
procedure that itself violates due process rights; or (2) by
proving that the defendants deprived him of property pursuant
to a ‘random and unauthorized act’ and that available state
remedies would not adequately compensate for the loss.
Parratt is applied to those cases falling under the second
category.”) (emphasis in original) (citation omitted).
We are therefore faced with deciding between multiple
precedents on both sides—those that apply Parratt only to
random, unauthorized deprivations of property and those that
apply Parratt more broadly. Our analysis convinces us that
the correct line of authority in the Sixth Circuit is that of
Watts, Macene, Carter, and Moore. In the present case,
Mitchell was not deprived of his property interest in his job
pursuant to a random or unauthorized act. Mitchell, therefore,
“was required neither to plead nor prove the inadequacy of
post-termination state-law remedies in order to prevail.”
Moore, 134 F.3d at 785. We therefore decline to apply
Parratt and Vicory to the present case.

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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.

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