By Anthony Rice
In Kuhn, the plaintiff Eric Kuhn, a Deputy Sheriff, sued his employer, the county, alleging denial of procedural due process when he was terminated following a false rape allegations. The Sixth Circuit affirmed the judgment of the lower court dismissing Kuhn’s claim. The court found no due process violation occurred because Kuhn had proper notice and opportunity to be heard. Kuhn was given written notice of his impending termination, Kuhn was given a sufficient explanation that he would be terminated, Kuhn had several days in which to respond, and a post-termination hearing process was available to Kuhn.
An investigation into a frivolous rape allegation—that Kuhn raped a suspect while en route to the jail—was made pursuant to county policy. Due to the mishandling of the investigation against him, Kuhn filed a formal complaint against Lt. Anuszkiewicz, the officer in charge of the investigation, for disobeying a direct order to close Kuhn’s investigation in a timely manner. Kuhn then underwent treatment for the stress experienced as a result of the investigation. Two months after Kuhn was informed that the investigation against him had been closed, Kuhn was granted paid leave under the FMLA. After his FMLA leave expired, Kuhn was granted discretionary (unpaid) leave until the investigation of his complaint against Lt. Anuszkiewicz was complete.
In November 2009, Kuhn was informed that the investigation of Lt. Anuszkiewicz was complete and arraignments should be made for him to return to work. Kuhn responded with a doctor’s note stating that he could not return to work until January 3, 2010. Kuhn’s discretionary leave was extended to that date, but Kuhn was cautioned that the extension was “extraordinary” and his employer did “not envision” a further extension. Kuhn nonetheless requested another extension of discretionary leave on December 11, 2009. On December 30, 2009, Kuhn was notified that he would be terminated effective January 4th, 2009.
Kuhn filed suit claiming the county violated his right to due process.
In order to prevail on this claim Mr. Kuhn must first establish that he had a protectable property interest in his position as a law enforcement officer. . . there is no dispute that Mr. Kuhn had a protectable property interest in his job. . . The second step of the analysis is to determine whether Kuhn was ‘afforded the procedures to which government employees with a property interest in their jobs are ordinarily entitled.’ The Supreme Court has explained that the deprivation of a property interest must be preceded by notice and an opportunity to be heard.
The Sixth Circuit held Kuhn was not denied sufficient notice and an opportunity to be heard. First, Kuhn had sufficient notice of his impending termination because, rather than immediately terminating Kuhn’s employment, a written communication informed him that his employment would terminate at the end of his previously approved discretionary leave. Additionally, Kuhn was informed that he had the opportunity to return to work. Second, the county had a valid explanation for the termination based on the fact Kuhn exhausted his leave and his absence was causing a staffing shortage at the Sheriff’s Office. Third, Kuhn had six days to contact his employer before the termination date. Fourth, “Kuhn had the opportunity for post-deprivation process because his union could have pursued arbitration, or he could have pursued his own grievance without intervention from the union.”
