Paul Caraway v. Town of Columbus;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL CARAWAY,
Plaintiff-Appellant,
v.
TOWN OF COLUMBUS; et al.,
Defendants-Appellees.
No. 18-35334
D.C. No. 1:16-cv-00139-TJC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Timothy J. Cavan, Magistrate Judge, Presiding
Argued and Submitted April 9, 2019
Seattle, Washington
Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.
Plaintiff Paul Caraway, a former sergeant with the Columbus Police
Department, appeals the district court’s order granting summary judgment to the
town, its Mayor, and its former chief of police (collectively, Defendants). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
FILED
APR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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1. We review de novo the district court’s order granting Defendants’ motion for
summary judgment on Caraway’s § 1983 due process claims.1 See Levine v. City
of Alameda, 525 F.3d 903, 905 (9th Cir. 2008). “An essential principle of due
process is that a deprivation of life, liberty, or property ‘be preceded by notice and
opportunity for hearing appropriate to the nature of the case.’” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 313 (1950)). To meet this requirement, the state
must provide pre-termination notice with an explanation of its evidence, and an
opportunity for the employee facing discharge to respond, either orally or in
writing. See, e.g., Matthews v. Harney Cty. Sch. Dist. No. 4, 819 F.2d 889, 892
(9th Cir. 1987).
“[T]he existence of post-termination procedures is [also] relevant to the
necessary scope of pretermination procedures.” Loudermill, 470 U.S at 547 n.12.
In some cases, “the inadequacy of post-termination process may itself be the
source of a distinct due process violation.” Clements v. Airport Auth. of Washoe
Cty., 69 F.3d 321, 332 (9th Cir. 1995). Ultimately, a reviewing court applies the
flexible Mathews v. Eldridge, 424 U.S. 319 (1976), framework to determine how
1 The parties are familiar with the facts and arguments on appeal, so we
do not recite them here.
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much post-termination process is required in any given case. See Loudermill, 470
U.S. at 543 (analyzing due process requirements in light of Mathews); see also
Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir. 1992) (applying Mathews to
determine sufficiency of post-deprivation process).
We have also recognized that the termination of a public employee that
includes publication of stigmatizing charges triggers due process protections. See
Mustafa v. Clark Cty. Sch. Dist., 157 F.3d 1169, 1179 (9th Cir. 1998) (citing Bd. of
Regents v. Roth, 408 U.S. 564, 573 (1972)). If an employee’s termination
implicates this reputational liberty interest, “the employee must be given an
opportunity to refute the stigmatizing charge.” Id. “Failure to provide a
‘name-clearing’ hearing in such a circumstance is a violation of the Fourteenth
Amendment’s due process clause.” Cox v. Roskelley, 359 F.3d 1105, 1110 (9th
Cir. 2004).
Caraway does not, for constitutional purposes, challenge the sufficiency of
Defendants’ pre-termination procedures. We conclude that Caraway’s statutory
right to a post-termination hearing before the Columbus Police
Commission—where he could have subpoenaed witnesses and testified
publicly—affords adequate post-termination process. See Mont. Code Ann. § 7-
32-4164(2) (West 2019). The process provided Caraway with an opportunity to
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challenge his discharge and to clear his name. Because Caraway has not exercised
his statutorily guaranteed post-termination procedure, he cannot now claim a
violation of his due process rights, particularly because there is no statute of
limitations on his right to seek review with the Police Commission. See Walls v.
Cent. Contra Costa Transit Auth., 653 F.3d 963, 969 (9th Cir. 2011).
2. Montana’s Wrongful Discharge from Employment Act (WDEA) provides
that a discharge “is wrongful” if “the employer violated the express provisions of
its own written personnel policy.” Mont. Code Ann. § 39-2-904(1)(c) (West
2019). We conclude that Mayor Woltermann’s absence from Chief Pronovost’s
pre-termination interview with Caraway did not violate an express provision of any
of the Town of Columbus’s written personnel policies. We considered Caraway’s
additional assertions of policy violations, but conclude that none are “directly
linked” with Caraway’s termination for purposes of the WDEA. See Williams v.
Plum Creek Timber Co., 264 P.3d 1090, 1097 (Mont. 2011).
AFFIRMED.
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