No Due Process Requirement For Reprimands

Deborah Upchurch is a supervisor with the City of Orange Township, New Jersey. After an internal affairs investigation, the City issued Upchurch a written reprimand for insubordination. Upchurch challenged the reprimand, alleging it was issued without due process.

An appeals court in New Jersey dismissed Upchurch’s claims. The Court began by citing the Supreme Court’s decision in Cleveland Bd. Of Education v. Loudermill, 470 U.S. 532 (1985) for the proposition that “the Due Process Clause provides that certain substantive rights – life, liberty, and property – cannot be deprived except pursuant to constitutionally adequate procedures.” However, the Court found that the arbitration clause in Upchurch’s labor agreement did not broadly deal with any disciplinary action, but instead only “applies to suspensions of five days or less, which does not include written reprimands.

“Upchurch’s due process rights would be violated if she had no procedural protection from disciplinary action. But due process is flexible and calls for such procedural protections as the particular situation demands. Different safeguards are required for different disciplinary actions. A written reprimand is different from a suspension of five days or less.

“Upchurch was not entitled to formal due process before or after the issuance of the reprimand, even though the labor agreement required just cause whenever any disciplinary action is imposed. A reprimand is not a suspension, with the attendant loss of pay and advancement potential because of the loss of a day of service. A reprimand is nothing more than a warning advising an employee of conduct with which the employer is dissatisfied. That is not the equivalent of a compensable loss. It has no certain consequence to the employee, at the time of the issuance, or in the future.

“The argument that a written reprimand may prevent an officer from getting promoted is too speculative to be equivalent to a suspension, reduction in rank, reduction in pay, or the termination of employment. It is simply notice to an employee of an issue which the employer perceives to be a problem. It gives the employee the opportunity to alter his or her behavior before it is too late.”

Upchurch v. City of Orange Township, 2017 WL 2536361 (N.J. App. 2017).