In these cases we consider what pretermination process must be accorded a public employee who can be discharged only for cause.
In 1979 the Cleveland Board of Education, hired respondent James Loudermill as a security guard. On his job application, Loudermill stated that he had never been convicted of a felony. Eleven months later, as part of a routine examination of his employment records, the Board discovered that in fact Loudermill had been convicted of grand larceny in 1968. By letter dated November 3, 1980, the Board's Business Manager informed Loudermill that he had been dismissed because of his dishonesty in filling out the employment application. Loudermill was not afforded an opportunity to respond to the charge of dishonesty or to challenge his dismissal. On November 13, the Board adopted a resolution officially approving the discharge.
Under Ohio law, Loudermill was a "classified civil servant." Such employees can be terminated only for cause, and may obtain administrative review if discharged. Pursuant to this provision, Loudermill filed an appeal with the Cleveland Civil Service Commission on November 12. The Commission appointed a referee, who held a hearing on January 29, 1981. Loudermill argued that he had thought that his 1968 larceny conviction was for a misdemeanor rather than a felony. The referee recommended reinstatement. On July 20, 1981, the full Commission heard argument and orally announced that it would uphold the dismissal. Proposed findings of fact and conclusions of law followed on August 10, and Loudermill's attorneys were advised of the result by mail on August 21.
Although the Commission's decision was subject to judicial review in the state courts, Loudermill instead brought the present suit in the Federal District Court for the Northern District of Ohio. The complaint alleged that 124.34 was unconstitutional on its face because it did not provide the employee an opportunity to respond to the charges against him prior to removal. As a result, discharged employees were deprived of liberty and property without due process. The complaint also alleged that the provision was unconstitutional as applied because discharged employees were not given sufficiently prompt postremoval hearings....
The other case before us arises on similar facts and followed a
similar course. Respondent Richard Donnelly was a bus mechanic for the
Parma Board of Education. In August 1977, Donnelly was fired because he
had failed an eye examination. He was offered a chance to retake the
examination but did not do so. Like Loudermill, Donnelly appealed to
the Civil Service Commission. After a year of wrangling about the
timeliness of his appeal, the Commission heard the case. It ordered Donnelly reinstated, though
without backpay. In a complaint essentially identical to
Loudermill's, Donnelly challenged the constitutionality of the
Respondents' federal constitutional claim depends on their having
had a property right in continued employment. Property interests are
not created by the Constitution, "they are created and their dimensions
are defined by existing rules or understandings that stem from an
independent source such as state law . . . ." The Ohio statute
plainly creates such an interest. Respondents were "classified civil
service employees," entitled to retain their positions "during good
behavior and efficient service," who could not be dismissed "except . .
. for . . . misfeasance, malfeasance, or nonfeasance in
office." The statute plainly supports the conclusion, reached by
both lower courts, that respondents possessed property rights in
continued employment. Indeed, this question does not seem to have been
The Parma Board argues, however, that the property right is defined
by, and conditioned on, the legislature's choice of procedures for its
deprivation. The Board stresses that in addition to specifying the
grounds for termination, the statute sets out procedures by which
termination may take place. The procedures were adhered to in
these cases. According to petitioner, "[t]o require additional
procedures would in effect expand the scope of the property interest
This argument, which was accepted by the District Court, has its genesis in the plurality opinion in Arnett v. Kennedy, 416 U.S. 134 (1974). Arnett involved a challenge by a former federal employee to the procedures by which he was dismissed. The plurality reasoned that where the legislation conferring the substantive right also sets out the procedural mechanism for enforcing that right, the two cannot be separated:"[W]here the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet." This view garnered three votes in Arnett, but was specifically rejected by the other six Justices. More recently, however, the Court has clearly rejected it...
In light of these holdings, it is settled that the "bitter with the
sweet" approach misconceives the constitutional guarantee. If a clearer
holding is needed, we provide it today. The point is straightforward:
the Due Process Clause provides that certain substantive rights - life,
liberty, and property - cannot be deprived except pursuant to
constitutionally adequate procedures. The categories of substance and
procedure are distinct. Were the rule otherwise, the Clause would be
reduced to a mere tautology. "Property" cannot be defined by the
procedures provided for its deprivation any more than can life or
liberty. The right to due process "is conferred, not by legislative
grace, but by constitutional guarantee. While the legislature may elect
not to confer a property interest in [public] employment, it may not
constitutionally authorize the deprivation of such an interest, once
conferred, without appropriate procedural safeguards."
In short, once it is determined that the Due Process Clause applies, "the question remains what process is due." The answer to that question is not to be found in the Ohio statute.
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." We have described "the root requirement" of the Due Process Clause as being "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." This principle requires "some kind of a hearing" prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Even decisions finding no constitutional violation in termination procedures have relied on the existence of some pretermination opportunity to respond....
The need for some form of pretermination hearing, recognized in these cases, is evident from a balancing of the competing interests at stake. These are the private interest in retaining employment, the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous termination.
First, the significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood. While a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job.
Second, some opportunity for the employee to present his side of the case is recurringly of obvious value in reaching an accurate decision. Dismissals for cause will often involve factual disputes. Even where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect.
The cases before us illustrate these considerations. Both respondents had plausible arguments to make that might have prevented their discharge. The fact that the Commission saw fit to reinstate Donnelly suggests that an error might have been avoided had he been provided an opportunity to make his case to the Board. As for Loudermill, given the Commission's ruling we cannot say that the discharge was mistaken. Nonetheless, in light of the referee's recommendation, neither can we say that a fully informed decisionmaker might not have exercised its discretion and decided not to dismiss him, notwithstanding its authority to do so. In any event, the termination involved arguable issues, and the right to a hearing does not depend on a demonstration of certain success.
The governmental interest in immediate termination does not outweigh these interests. As we shall explain, affording the employee an opportunity to respond prior to termination would impose neither a significant administrative burden nor intolerable delays. Furthermore, the employer shares the employee's interest in avoiding disruption and erroneous decisions; and until the matter is settled, the employer would continue to receive the benefit of the employee's labors. It is preferable to keep a qualified employee on than to train a new one. A governmental employer also has an interest in keeping citizens usefully employed rather than taking the possibly erroneous and counterproductive step of forcing its employees onto the welfare rolls. Finally, in those situations where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay.
The foregoing considerations indicate that the pretermination "hearing," though necessary, need not be elaborate. We have pointed out that "[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings."
The essential requirements of due process, and all that respondents
seek or the Court of Appeals required, are notice and an opportunity to
respond. The opportunity to present reasons, either in person or in
writing, why proposed action should not be taken is a fundamental due
process requirement. The tenured public employee is entitled to oral or
written notice of the charges against him, an explanation of the
employer's evidence, and an opportunity to present his side of the
story. To require more than this prior to termination would
intrude to an unwarranted extent on the government's interest in
quickly removing an unsatisfactory employee....
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