Due Process Requires Hearing Before Suspension Without Pay

Michael Schmidt was hired in November 2002 by the Department of General Services of the Commonwealth of Pennsylvania to serve as a patrol officer with the Capitol Police. The Department investigated Schmidt on charges that he failed to report to his assigned post, had disobeyed work orders, and had shown disrespect and insubordination to his supervisor. Within three days of the precipitating incident, the Department suspended Schmidt without pay. When the Department later fired him, Schmidt brought a lawsuit in federal court.

One of the central issues in Schmidt’s lawsuit became whether the principles of due process required that he be given a hearing before he was suspended. The Third Circuit Court of Appeals answered the question in the affirmative.

The Court found that “under Pennsylvania law, a policeman’s property interest in his job is protected from either termination or suspension, and due process therefore entitles him to a pre-suspension or pre-termination hearing – albeit a brief and informal one. We note that providing an opportunity to be heard prior to suspension without pay would not impose a significant administrative or fiscal burden on the Commonwealth of Pennsylvania. Ordinarily, a pre-deprivation hearing need not be elaborate. Where adequate post-deprivation procedures are available, an employee is entitled only to notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. The hearing can be informal and need not definitively resolve the propriety of the deprivation. It should be an initial check against mistaken decisions – essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.

“An employee is generally not entitled to notice of the reasons for his discharge in advance of a pre-deprivation hearing, or to present his case to an impartial decision-maker at such a hearing, We therefore conclude that, absent extraordinary circumstances, due process requires notice and a hearing prior to suspension without pay, even where union grievance procedures, after the fact, fully compensate erroneously suspended employees.

“The Commonwealth contends that our prior decisions hold that adequate post-deprivation grievance procedures render a pre-deprivation hearing unnecessary. We disagree. These cases stand for the proposition that certain defects in post-deprivation union grievance procedures do not violate due process because state law already provides remedies for such defects. Specifically, where a due process claim is raised against a public employer, and grievance and arbitration procedures are in place, those procedures satisfy due process requirements even if the hearing conducted by the Employer was inherently biased.”

Schmidt’s victory was a Pyrrhic one, however. The Court went on to rule that since his right to a pre-suspension hearing was not “clearly established” (until Schmidt’s case, that is), he effectively had no remedy for the violation of his due process rights. And, perhaps more importantly, the Court found that the Commonwealth did follow correct due process procedures before it terminated Schmidt.

Schmidt v. Creedon, 2011 WL 1134259 (3d Cir. 2011).

This article appears in the May 2011 issue.