From time to time, a court decision will evaluate whether a public employer’s disciplinary decision making violates the principles of “substantive due process.” A violation of substantive due process occurs when a public employer deprives an employee of employment in a manner which “shocks the conscience of the court.”
Substantive due process lawsuits are rarely successful, particularly given the chariness of courts to get involved in day-to-day disciplinary decisions. A recent case from Tennessee illustrates the high hurdles facing an employee raising a substantive due process claim.
The case involved Jo Dean Nuchols and Blount County Sheriff James Berrong. Nuchols was also a friend of Sheriff Berrong’s wife. Nuchols alleged that she was aware that Berrong was having a sexual relationship with a subordinate female employee of the Sheriff’s Department. During a telephone call on or about May 29, 2002, Berrong’s wife asked Nuchols whether Berrong and the subordinate female employee had traveled out of town together.
Nuchols alleged that the day after the telephone call between Nuchols and Mrs. Berrong, Berrong called Nuchols into his office, in the presence of two other armed officers, and presented her with an audiotape of her conversation with his wife. Berrong then fired Nuchols. When Nuchols asked Berrong what she had done, Berrong said, “You called my wife.” Berrong then allegedly threatened Nuchols that if she told his wife about the audiotape, Berrong would “burn her house down, set her dog on fire, and there wouldn’t be a member of her family left.”
Nuchols sued Berrong and the County, claiming a violation of her substantive due process rights. A federal trial court dismissed the lawsuit, finding that Berrong’s alleged conduct did not “shock the conscience.”
The Court reasoned that “most cases alleging police conduct that shocks the conscience have involved allegations of excessive force or physical brutality. Applying the ‘shock the conscience’ test in an area other than excessive force is problematic. Not only are there fewer instances in the case law, but the ‘shock the conscience’ test is not as uniformly applied to cases where excessive force or physical brutality is not the basis of the claim.
“Nuchols’ complaint may state a cause of action for the state law tort of outrageous conduct, but it does not state a cause of action of constitutional dimension cognizable in federal court. The Court can find no controlling authority where a court has held similar verbal conduct to be unconstitutional under facts not distinguishable in a fair way from the facts presented in the case at hand.”
Nuchols v. Berrong, 2006 WL 2400983 (E.D.Tenn. 2006).
This article appears in the November 2006 issue