Unpublished Disposition, 899 F.2d 18 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 18 (9th Cir. 1990)

Linda A. FREEMAN; Gerald Port, Plaintiffs-Appellants,v.CITY OF SOUTH LAKE TAHOE, et al., Defendants-Appellees.

No. 88-15829.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 13, 1990.Decided April 5, 1990.

Before BOOCHEVER, WIGGINS and NOONAN, Circuit Judges.


Linda A. Freeman and Gerald Port challenge the district court's grant of summary judgment in favor of the City of South Lake Tahoe (City), Edwin Brauner, Dennis Wardell, and Robert Conen. Freeman and Port worked for the City bus system until the City Counsel voted to abolish it. They claim, pursuant to 42 U.S.C. § 1983 (1982), that the City denied them constitutional due process by failing to provide them with other City jobs after their jobs with the bus system were eliminated.

The district court found that Freeman and Port had a constitutionally protected property interest in other City jobs under the post-layoff procedures and provisions in the City's Personnel Rules and the Memorandum of Understanding between the City and the South Lake Tahoe Employees Association. The court also found, however, that Freeman and Port were accorded sufficient due process with respect to any deprivation of that property interest. ER tab A at 2. Assuming without deciding that Freeman and Port enjoyed a protected property interest, we agree with the district court that they were afforded sufficient due process.1 

While the question of what process is due depends on the factual situation, at a minimum due process requires notice and an opportunity for hearing. See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982). Freeman and Port claim that the City deprived them of their protected property interest without proper notice, without a pre-termination or prompt post-termination hearing, and without access to the material used to determine their qualifications for the positions they sought. Both Freeman and Port, however, were given notice of their right to demote and displace, CR 18 Ex. 3, and the City's initial decision relating to that right, CR 13 Exs. D2 at 12-15 and F at 3; CR 18 Ex. 2. They were also given notice of the hearing they requested to challenge that decision--if not personally, see CR 18 Ex. 2; CR 21 Ex. J at 6-7 and attachments 7-8, then at least through their union representative, CR 21 Ex. J at attachment 8. They therefore received sufficient notice.

Alexander v. City of Menlo Park, 787 F.2d 1371 (9th Cir. 1986), cert. denied, 479 U.S. 1032 (1987), is not to the contrary. In Alexander, the City deprived the plaintiff of due process by failing to notify him of his right to bump into the next less-senior classification below his former classification. Id. at 1375. Here, by contrast, Freeman and Port do not claim that they were not notified of their right to demote and displace. Rather, they claim they were not notified of certain claimed rights under the Personnel Rules--rights which were superseded by the layoff provisions in the Memorandum of Understanding, if they existed at all. See CR 13 Ex. A at title page; CR 13 Ex. B at 18. Alexander does not support Freeman and Port's position.

As for the second constitutional requirement for due process, the grievance procedures set forth in the Memorandum of Understanding between the Employees Association and the City provide an opportunity for a hearing. CR 13 Ex. B at Attachment B. Although these procedures do not provide for a pre-deprivation hearing, they were established with the participation and agreement of the Employees Association, Freeman and Port's legal representative. Thus, we believe that this is a case where "due process may be satisfied by a prompt post-deprivation hearing if that opportunity is afforded prior to the final termination of a property interest and if the length or severity of the deprivation does not itself constitute a serious loss." Kennerly v. United States, 721 F.2d 1252, 1258 (9th Cir. 1983). Here, Conan's decision that Freeman and Port did not have the minimum qualifications to demote and displace was not a final termination of their property interest. Freeman regained her property interest in employment with the City when the Adjustment Board mandated that she be offered the first available opening in the job classifications in which she had expressed an interest. CR 13 Ex. C at 8. Port's property interest was finally terminated but only after the Adjustment Board's post-hearing decision dismissing Port's grievance due to lack of interest. Id.

Nevertheless, Freeman and Port were temporarily deprived of their property interest in employment with the City for a significant period of time. The hearing occurred approximately eight months after their former positions with the City were abolished, and the Adjustment Board did not render a decision until one year after their layoff. See CR 21 Ex. J at 7-8. We recognize that one year of unemployment can be a serious hardship, and that the City demonstrated little sympathy for the plight of Freeman, Port, and their fellow bus drivers. The City's callousness, however, does not rise to the level of a constitutional violation. More importantly for our purposes, the delay in the administrative process was caused largely by the Employees Association and its executive director who represented Freeman and Port. See CR 21 Ex. J at 7 and attachments 7 and 9. Moreover, if Freeman and Port were not satisfied with the pace of the administrative process, they could have appealed to the City Council for relief. See CR 13 Ex. B at Attachment B. Freeman and Port do not dispute that they failed to do so.

Finally, Freeman and Port were not denied a meaningful hearing. If they were deprived of information used to determine their eligibility for demotion and displacement, the City correctly points out that they never requested or attempted to compel production of this information prior to the hearing, as they were authorized to do under the grievance procedure outlined in the Memorandum of Understanding. See CR 13 Ex. B at Attachment B. On the other hand, they were given the opportunity to testify and present evidence before the Board at the hearing. CR 13 Exs. B at Attachment B, C at 1. We conclude, therefore, that Freeman and Port were not denied due process.

The district court properly granted summary judgment in favor of the City on Freeman and Port's section 1983 claims. Because their federal claims fail, the district court also correctly dismissed their pendant state claims. See Jones v. Community Redevelopment Agency, 733 F.2d 646, 651 (9th Cir. 1984). Accordingly, the district court's decision is



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


The City also argues that Freeman and Port are collaterally estopped from asserting their claims before this court. The City raised this argument before the district court, see CR 13 at 24-26, but the district court did not address or rule on the issue. Because we find that Freeman and Port were not denied due process, we similarly find no need to decide this issue