Burgess et al v. Clark County School District et al

Filing 89

ORDER. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that 72 defendant's motion for summary judgment be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that 69 plaintiff's motion for partial summary judgment be, and the same hereby is, DENIED. The clerk is instructed to enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 3/26/2019. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ANTHONY RUSSO,

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Case No. 2:17-CV-805 JCM (VCF)
Plaintiff(s),

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ORDER

v.

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CLARK COUNTY SCHOOL DISTRICT, et al.,

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Defendant(s).

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Presently before the court is plaintiff Anthony Russo’s (“plaintiff”) motion for partial

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summary judgment.1 (ECF No. 69). Defendants Clark County School District (“CCSD”),

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Edward Goldman (“Goldman”), and James Ketsaa (“Ketsaa”) (collectively “defendants”) filed a
response (ECF No. 78), to which plaintiff replied (ECF No. 81).
Also before the court is defendants’ motion for summary judgment. (ECF No. 72).
Plaintiff filed a response (ECF No. 75), to which defendants replied (ECF No. 82).
I.

Facts

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Plaintiff brought the instant civil action under the Due Process Clause of the Fourteenth

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Amendment and 42 U.S.C. § 1983. (ECF No. 49 at 1). Plaintiff seeks damages against

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defendants for allegedly depriving plaintiff of his due process right to a hearing before being

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suspended and terminated. (ECF No. 49 at 5–6).
Plaintiff is employed by defendants as a police officer with CCSD Police Department.

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(ECF No. 69 at 2). Police Officers Association of CCSD (hereafter “POA”) is a bargaining agent
for all regular status employees. (ECF No. 69 at 2). Plaintiff is a regular status employee. (ECF
No. 69 at 2). Under Article 35-1 of the collective bargaining agreement (“CBA”) between POA

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James C. Mahan
U.S. District Judge

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The named plaintiff, Daniel M. Burgess, was terminated from this action on September 25,
2017. (ECF No. 45).

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and CCSD, “a Regular Status Employee may be suspended, demoted or dismissed for just

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cause.” (ECF No. 69 at 2).

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On September 5, 2015, plaintiff was involved in a car accident with a teenaged driver

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while off-duty. (ECF No. 72 at 3). After the collision, plaintiff exited his vehicle, walked over to

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the passenger side of the other vehicle, and began punching the teenaged passenger in the head.
(ECF No. 72 at 4). Bystanders attempted to pull plaintiff off the teenager. Id. Plaintiff then pulled
out his gun. Plaintiff was arrested for suspicion of DUI, possession of a gun under the influence,
drawing a deadly weapon in a threatening manner, two counts of battery, and failure to obey a
traffic signal. (ECF No. 69 at 3).

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On September 9, 2015, plaintiff met with defendant Ketsaa for ten minutes, where he was

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provided oral notice of the charges against him. (No. 72-1 at 55). After the meeting, plaintiff

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received a letter from defendant Ketsaa pursuant to Article 35-7 of the CBA between POA and

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CCSD. (ECF No. 72-1 at 55). The letter informed plaintiff that an administrative investigation

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was being conducted regarding plaintiff’s arrest. (ECF No. 72-1 at 55). The letter provided

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notice to plaintiff that he was indefinitely suspended without pay pending the outcome of the
investigation. (ECF No. 69 at 3).
On September 9, 2015, CCSD also provided plaintiff with a “notification of possible
disciplinary action.” (ECF No. 72-1 at 57). This letter notified plaintiff of an upcoming interview

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in which plaintiff was entitled to have two representatives. The representatives could be lawyers,

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labor union representatives, or other peace officers. (ECF No. 72-1 at 57).

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On September 18, 2015, plaintiff received a letter scheduling an “administrative

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interview” for September 29, 2015. (ECF No. 72-1 at 60). The letter again notified plaintiff of

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the charges against him as well as his entitlement to representation. (ECF No. 72-1 at 60).
An hour-long investigatory interview was conducted on September 29, 2015. (ECF No.

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75-2 at 3–4). Plaintiff’s attorney was present. (ECF No. 75-2 at 3). Plaintiff was provided oral
notice of the charges against him and the evidence then existing against him. (ECF No. 75-2 at
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On November 5, 2015, plaintiff was convicted of DUI and one count of battery. (ECF
No. 72-1 at 112). The remaining charges were dropped. (ECF No. 69 at 3).

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On November 17, 2015, CCSD sent plaintiff a “notice of disciplinary action—

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recommendation for dismissal.” (ECF No. 72-1 at 116). The letter informed plaintiff of

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U.S. District Judge

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defendant’s intent to recommend plaintiff’s termination. (ECF No. 72-1 at 116). The letter then

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outlined what rules CCSD alleged plaintiff violated:
Grounds for these actions and the specific rules violated are CCSD Regulation
4343(I)(A):

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4. Discourteous treatment of the public;
5. Violence or behavior that threatens violence directed at another

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person;

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14. Conviction of a crime involving moral turpitude or immorality;
15. Failure to follow the rules and regulations of the District
(specifically the General Orders of the CCSD Police Department).

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(ECF No. 72-1 at 116). The letter contained a detailed description of the facts upon which these

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grounds were based, including plaintiff’s testimony he provided at his September 29 interview.

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(ECF No. 72-1 at 117). Lastly, the letter notified plaintiff of his right to respond to the
recommendation, including the option of an evidentiary hearing to determine if the facts and
circumstances warranted the recommended disciplinary action. Id.

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On January 7, 2016, the evidentiary hearing was held regarding CCSD’s recommendation

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for plaintiff’s dismissal. (ECF No. 73 at 1). Plaintiff’s attorney, speaking on plaintiff’s behalf,

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explained plaintiff’s position regarding the termination. (ECF No. 73 at 2). The recommendation

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for dismissal was thereafter accepted and plaintiff was dismissed. (ECF No. 69 at 6).

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Meanwhile POA filed a grievance regarding plaintiff’s unpaid suspension. (ECF No. 72

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at 6). On November 20, 2015, CCSD denied the grievance and upheld the unpaid suspension.

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(ECF No. 72 at 7). On November 30, 2015, POA again filed a grievance regarding the unpaid

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suspension and requested arbitration. Id. After the January 7 evidentiary hearing, POA filed a
grievance contesting the dismissal on January 9, 2016. (ECF No. 72 at 8). On January 19, 2016,
CCSD affirmed its decision to dismiss plaintiff. Id.

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After being terminated, plaintiff, through POA, advanced the matter to arbitration for a

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final and binding resolution. (ECF No. 69 at 7). The arbitrator held that CCSD violated the

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collective bargaining agreement by suspending plaintiff without pay because plaintiff’s crimes

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were not crimes of moral turpitude. (ECF No. 72 at 9). The arbitrator also held that CCSD did

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not prove just cause for termination. Id. Arbitration ultimately resulted in plaintiff being

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reinstated with backpay. (ECF No. 69 at 7).

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James C. Mahan
U.S. District Judge

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II.

Legal Standard

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Summary judgment is appropriate when the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no

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genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of

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law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is “to isolate and dispose
of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

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For purposes of summary judgment, disputed factual issues should be construed in favor

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of the non-moving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be

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entitled to a denial of summary judgment, the nonmoving party must “set forth specific facts

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showing that there is a genuine issue for trial.” Id.

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In determining summary judgment, a court applies a burden-shifting analysis. The

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moving party must first satisfy its initial burden. “When the party moving for summary judgment

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would bear the burden of proof at trial, it must come forward with evidence which would entitle

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it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving

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party has the initial burden of establishing the absence of a genuine issue of fact on each issue

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material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480

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(9th Cir. 2000) (citations omitted).

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By contrast, when the nonmoving party bears the burden of proving the claim or defense,

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the moving party can meet its burden in two ways: (1) by presenting evidence to negate an

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essential element of the non-moving party’s case; or (2) by demonstrating that the nonmoving

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party failed to make a showing sufficient to establish an element essential to that party’s case on

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which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If

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the moving party fails to meet its initial burden, summary judgment must be denied and the court

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need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S.

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144, 159–60 (1970).

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If the moving party satisfies its initial burden, the burden then shifts to the opposing party

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to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the

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opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient

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that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’

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differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809

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F.2d 626, 631 (9th Cir. 1987).

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In other words, the nonmoving party cannot avoid summary judgment by relying solely

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on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the

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pleadings and set forth specific facts by producing competent evidence that shows a genuine

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issue for trial. See Celotex, 477 U.S. at 324.

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At summary judgment, a court’s function is not to weigh the evidence and determine the

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truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all

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justifiable inferences are to be drawn in his favor. Id. at 255. But if the evidence of the

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nonmoving party is merely colorable or is not significantly probative, summary judgment may be

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granted. See id. at 249–50.

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III.

Discussion

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The parties have filed cross-motions for summary judgment on all remaining claims. The

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parties dispute whether plaintiff received due process during his suspension and termination,

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whether CCSD’s procedures amount to an unconstitutional custom or practice, and whether

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individual defendants are entitled to qualified immunity. The court presently addresses these

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issues.

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a. Fourteenth Amendment Right to Procedural Due Process
To state a claim for procedural due process, a plaintiff must allege: “(1) a liberty or
property interest protected by the constitution; (2) a deprivation of the interest by the
government; and (3) lack of process.” Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th
Cir. 1993). 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 91985) (quoting Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). However, “due process is not a technical

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U.S. District Judge

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conception with a fixed content unrelated to time, place, and circumstances.” Gilbert v. Homar,

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520 U.S. 924, 930 (1997). Rather, it is “flexible and calls for such procedural protections as the

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particular situation demands.” Id.

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In the present case, plaintiff argues that he was deprived of a property interest without

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due process in two instances: first, his suspension without pay, and second, his termination. The

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court will examine both pre- and post-deprivation procedures to determine if, in total, plaintiff

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received due process.

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The law clearly establishes, and parties do not dispute, that plaintiff has a property

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interest in his paycheck and continued employment. (ECF No. 78 at 10). Moreover, the parties

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do not dispute that plaintiff’s property interest was deprived when defendants suspended plaintiff

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without pay and terminated him. Id. Therefore, the court must now consider whether defendants

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provided plaintiff the process to which he was due.

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“It is well-established that because due process is a flexible concept, ‘[p]recisely what

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procedures the Due Process Clause requires in any given case is a function of

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context.’” Franceschi, 887 F.3d at 935 (quoting Brewster v. Bd. of Educ. of Lynwood Unified

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Sch. Dist., 149 F.3d 971, 983 (9th Cir. 1998)). To determine whether a public employer offered

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an employee adequate protection under the Due Process Clause, courts must weigh three factors.

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First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

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James C. Mahan
U.S. District Judge

1. Pre-deprivation Due Process
Due process requires “an opportunity for some kind of hearing prior to the deprivation of
a significant property interest.” Memphis Light Gast & Water Div. v. Craft, 436 U.S. 1, 29
(1978). The purpose of a pre-termination hearing is to “provide an initial check against mistaken
decisions and a determination of whether there are reasonable grounds to believe that the charges

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against the employee are true and support the proposed action. Loudermill, 470 U.S. at 545–56.

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It need not be elaborate, and it can vary, “depending on the importance of the interests involved

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and the nature of the subsequent proceedings.” Id. At 545. Indeed, “[p]recisely what procedures

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the Due Process Clause requires in any given case is a function of context.” Brewster v. Board of

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Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th Cir. 1998). For example, pre-

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deprivation hearings need not be held before an impartial decisionmaker, so long as the post-

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deprivation hearing is. Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991).

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Applying these principles to the present case, the court concludes that plaintiff’s pre-

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suspension due process rights were satisfied. Due process in the period prior to deprivation

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requires only notice of the charges and an opportunity to respond. Loudermill, 470 U.S. at 542.

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Plaintiff was granted both protections. By plaintiff’s own admissions, plaintiff met with

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defendant Ketsaa for ten minutes before he was suspended without pay. During the meeting,

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plaintiff was informed of the charges against him. Plaintiff did not deny these charges. After the

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meeting, plaintiff received a letter from defendant Ketsaa on September 9, 2015. The letter also

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summarized the charges against plaintiff.

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It is true that plaintiff’s interest in continued employment is substantial and weighs in

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favor of greater procedural safeguards. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

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543 (1985) (“[T]he significance of the private interest in retaining employment cannot be

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gainsaid,” in light of the “severity of depriving a person of the means of livelihood.”). The

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Supreme Court has cautioned, however, that courts must consider the length and finality of the

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deprivation. Gilbert v. Homar, 520 U.S. 924, 932 (1997). For example, where a demoted

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employee ultimately prevails through internal grievance procedures and is awarded reinstatement

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with full back pay, the private interests at stake diminish relative to the other Mathews factors.

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See Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir. 1985) (“[W]e conclude that, on balance,

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the grievance procedure provided adequate due process . . . .”). Here, the court finds that

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although plaintiff’s interest in his paycheck is substantial, this interest alone does not outweigh

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the remaining two Mathews factors, as the court must consider plaintiff’s ultimate reinstatement

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with backpay.

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U.S. District Judge

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Under the second Mathews factor, the court finds that the governmental interests at stake

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are significant. The Supreme Court has recognized that “the State has a significant interest in

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immediately suspending, when felony charges are filed against them, employees who occupy

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positions of great public trust and high public visibility, such as police officers.” Gilbert v.

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Homar, 520 U.S. 924, 932 (1997). The Ninth Circuit has extended this reasoning to the context

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of the public school, where school teachers occupy positions of “great public trust and high

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public visibility.” Mustafa v. Clark Cnty. Sch. Dist., 157 F.3d 1169, 1177 (9th Cir. 1998).

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Although plaintiff did not have felony charges filed against him, plaintiff, as a police officer

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employed by a school district, undoubtedly occupies a position of great public trust and

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visibility. Plaintiff’s status also implicates governmental interests including upholding the

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integrity of the school system as well as that of CCSD Police Department. Accordingly, the

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governmental interests at stake are great and weigh against a finding that more process was

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required.

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As to the third and final Mathews factor, the court finds there was no obvious risk of

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erroneous suspension. Where there is an “important government interest, accompanied by a

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substantial assurance that the deprivation is not baseless or unwarranted,” the state may be

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justified in delaying “the opportunity to be heard until after the initial deprivation.” FDIC v.

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Mallen, 486 U.S. 230, 240 (1988). “[W]hen a state has ‘probable cause to believe’ that a state

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employee’s continuing employment will jeopardize an important governmental interest, there is

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the required assurance that the deprivation is not baseless or unwarranted.” Jones v. City of

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Modesto, 408 F. Supp. 2d. 935, 952 (E.D. Cal. 2005) (quoting Barry v. Barchi, 443. U.S. 55, 65

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(1979)). Moreover, “the Due Process Clause does not require “that all governmental

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decisionmaking comply with standards that assure perfect, error-free determinations.” Yagman v.

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Garcetti, 852 F.3d 859, 866 (9th Cir. 2017) (internal quotations omitted).

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Here, defendants based their decision to suspend plaintiff on the police department’s

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finding of probable cause to arrest plaintiff for six crimes. Moreover, the purpose of a pre-

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deprivation hearing is to determine “whether there are reasonable grounds to believe that the

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charges against the employee are true and support the proposed action.” Loudermill, 470 U.S. at

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545–46. In Mustafa v. Clark Cty. Sch. Dist., 157 F.3d 1169 (9th Cir. 1998), the Ninth Circuit

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upheld the suspension of a public-school teacher without a pre-deprivation hearing based on a

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student’s allegations of open and gross lewdness. While recognizing that the suspension was not

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based on an independent determination of probable cause that a serious crime had been

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committed, the Ninth Circuit recognized that the decision to suspend was not “baseless or

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unwarranted.” Id. The Ninth Circuit found the victim’s police report and subsequent discussion

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about the allegations reasonably supported the suspension. Id.

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While defendants’ decisions to suspend and terminate plaintiff were ultimately found to

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be in error, that error was not obvious at the outset, especially in light of the government’s

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substantial interest in making a quick decision to protect the integrity of CCSD Police

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Department. Moreover, the erroneous deprivation was addressed and resolved in the post-

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deprivation hearing. This is exactly what due process protects.

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Plaintiff argues that defendant Ketsaa’s concession that he did not provide a “hearing”

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prior to suspending plaintiff without pay proves that plaintiff did in fact not receive a hearing.

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However, defendant Ketssa’s understanding of what is or what is not a hearing is not dispositive.

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Whether or not a “hearing” occurred for purposes of pre- and post-deprivation due process is a

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question of law. Mathews, 424 U.S. at 333–36 (“[D]ue process, unlike some legal rules, is not a

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technical conception with a fixed content unrelated to time, place, and circumstances.”) (quoting

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Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)). The facts of what occurred during the

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September 9 meeting are undisputed. It is based on these undisputed facts that the court finds the

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meeting amounted to a “hearing” that satisfied pre-deprivation due process under the

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circumstances.

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Plaintiff also argues that the “notice of disciplinary action – recommendation for

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dismissal and immediate suspension without pay pending recommendation for dismissal” he

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received on November 17, 2015, was in fact a termination, effective immediately. (ECF No. 69

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at 5). Plaintiff argues the January 7 evidentiary hearing was then, in fact, a “(de facto) post-

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termination hearing.” (ECF No. 69 at 6–7). However, the undisputed facts do not support this

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conclusion. In the January 7 hearing, plaintiff’s representative stated that it was a “Skelly

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U.S. District Judge

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Loudermill hearing.” (ECF No. 73 at 1). Plaintiff’s representative continued, “[plaintiff] hasn’t

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been terminated yet. There’s no grievance to file yet.” (ECF No. 73 at 1). Moreover, it is

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undisputed that plaintiff availed himself of the post-termination grievance procedures and was

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reinstated with back pay. (ECF No. 69 at 7).

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Therefore, in applying the balancing test established in Mathews, the court finds that
plaintiff received all the process that was due to him prior to his suspension and termination.

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2. Post-Deprivation Due Process

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The Supreme Court has decided that where there is no practical way to provide a pre-

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deprivation hearing, a post-deprivation hearing provided at a meaningful time and in a

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meaningful manner will suffice to satisfy the requirements of due process. Parratt v. Taylor, 451

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U.S. 527, 538 (1981). The less the pre-deprivation process, the greater the post-deprivation

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process must be. Cassim v. Bowen, 824 F.3d 791, 798 (9th Cir. 1987).

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Moreover, “[a] public employer may meet its obligation to provide due process through

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grievance procedures established in a collective bargaining agreement, provided, of course, those

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procedures satisfy due process.” Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir. 1992).

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Grievance and arbitration procedures are “a universally accepted method of resolving

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employment disputes.” Thus, “the risk of an erroneous determination in the grievance/arbitration

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procedure is not large, and the value of additional or substitute procedures is not great.” Id.

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When a collective bargaining agreement provides for an adequate grievance and arbitration

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procedure, even if the procedure is solely available at the discretion of the union, that is

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sufficient process. Id. At 951.

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As discussed above, plaintiff received adequate pre-deprivation due process. The parties

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do not dispute that the post-deprivation due process was extensive and fair. Ultimately, through

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these procedures, plaintiff was reinstated to his position with backpay. The court holds that the

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post-deprivation procedures satisfied due process.

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b. Remaining issues

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Therefore, because the court finds there was no due process violation, the court must also

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find that the facts do not support plaintiff’s 42 U.S.C. § 1983 claim for an unconstitutional

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U.S. District Judge

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custom, policy, or practice. The court need not also determine whether defendants are protected

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by qualified immunity or whether they are individually liable.

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant’s motion for

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summary judgment (ECF No. 72) be, and the same hereby is, GRANTED, consistent with the

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foregoing.

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IT IS FURTHER ORDERED that plaintiff’s motion for partial summary judgment (ECF
No. 69) be, and the same hereby is, DENIED.

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The clerk is instructed to enter judgment accordingly and close the case.

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DATED March 26, 2019.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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