By Anthony Rice
In City of Memphis v. Lesley, the court held that failing to provide an officer with a statement of charges against her, violated her due process right where her probationary period was over, despite having been out of the academy for less than a year.
This case was decided on appeal from a Memphis Civil Service Commission ruling that Officer Lesley was still within her one-year probationary period of employment, and thus not entitled to a civil service hearing, when she was terminated. Officer Lesley appealed this decision to a chancery court, which reversed the Commission’s decision. The chancery court found that although she was terminated within a year of graduating from the academy, it had been over one year since she was hired. Thus, the chancery court found that Lesley was not a probationary employee and was entitled to full due process including a statement of charges, a Loudermill hearing and a full Civil Service Hearing following the termination of her employment.
The City made no attempt to appeal this decision. Instead, upon return to the Civil Service Commission, the City tried to re-argue the issue of whether Officer Lesley was a probationary employee to the Commission. The Commission found that the City could not re-litigate the issue of whether Officer Lesley was a probationary employee because that issue was resolved in the first chancery court proceeding.
The City then appealed and the Tennesee Court of Appeals agreed with the earlier rulings:
The Court hereby holds that Lesley’s one year probationary period commenced on the day she began her full-time employment with the City of Memphis on May 26, 2008. As such, she completed her probationary period on or about May 27, 2009. Therefore, according to Article 34, Sec. 240-248 of the Memphis City Charter, Lesley was entitled to procedural due process including a statement of charges, a Loudermill hearing and a full Civil Service Hearing. . .
Unfortunately for the City’s appeal, it admitted Officer Lesley was not provided with a statement of the charges against her, nor was she provided with a hearing.
“Two of the essential requirements of due process are pre-deprivation notice and an opportunity to be heard.” “These minimal requirements are constitutionally essential.” It is a “long-standing rule that an employee who has a constitutionally protected property interest in her employment is entitled by the Due Process Clause of the federal constitution to `some kind of a hearing’ before her discharge.” The hearing “need not be elaborate,” but it is “necessary.” “The gravity of depriving a person of his employment mandates a pre-termination hearing to provide the employee an opportunity to respond to the charges against him.” Accordingly, “[n]otice and opportunity for a hearing appropriate to the nature of the case must precede the deprivation of life, liberty or property.”
Editor’s Note (Jim Cline): While some might consider this result harsh, it is not unexpected. Departments are not allowed to create their own rules about probation. Terms of the CBA and civil rules establish probation periods, not employer subjective understandings about when the probation period started. Once the probation period expires, the terms of civil service or a CBA requiring just cause as the standard for discharge immediately apply.
