Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—6th Cir.: Reasonable jury could find pretermination meetings ran afoul procedural due process, (May 1, 2025)

By Robert Margolis, J.D.

In one investigatory meeting the employee did not receive notice of the charges or evidence the employer had against him.

When Oakland County, Michigan notified a former Equalization Department head of its intent to terminate his employment, the pretermination hearing it offered him failed to meet the procedural due process requirements of 42 U.S.C. § 1983, the Sixth Circuit has held, because he was not provided with “the gist” of the charges against him and the county told him the hearing was not the time to “plead his case.” The court reversed summary judgment that a district court had granted to the county on the plaintiff’s procedural due process claim arising out of that hearing, though it affirmed summary judgment on all other claims he asserted—deprivation of post-termination due process, political affiliation retaliation, and age discrimination (Hieber v. Oakland County, No. 24-1345 (6th Cir. Apr. 29, 2025)).

The employee had been hired in 1994 when a Republican was County Executive. In 2019, a Democrat was appointed County Executive. Beginning in 2020, the employee became the subject of several complaints by subordinates in his department. Subordinates charged that the employee showed hostility to an internal DEI survey, interrupted a meeting to criticize a teacher’s request for preferred pronouns in his daughter’s classroom (which an LBGT employee considered an attempt to “harass and intimidate” him), and in various ways created a “toxic, hostile work environment” that included acts of “retaliation” and “intim[id]ation” by the employee.

Investigation. An investigation confirmed many of the charges, with one subordinate (a union chair) saying that the employee threatened to take various actions against the union and union members, and telling the investigators the employee was “mentally unstable,” “easily could be a freaking shooter,” and was “the type that would lose it” and “could shoot.” He said he feared for his safety and the county should increase security. During the investigation, the employee also was interviewed but not told any specific charges against him or informed about all the evidence compiled from other employees. He was placed on administrative leave, and an email was sent to all employees instructing them that the employee was on leave and they should work from home the next two days.

Intent to terminate. The county subsequently notified the employee of its intent to terminate him. Because he was a merit-systems employee, he could only be terminated for cause, and the notice provided two bases for his termination: (1) “[c]onduct or performance on the job which demonstrates a deliberate attempt to cause poor morale or disrespect among County employees by actions or attitude on the job,” and (2) “[t]he willful violation” of the county’s nondiscrimination policy. It concluded that he had created a hostile work environment and engaged in behavior that subordinates described as “intimidating and vengeful.”

Pretermination hearing. The notice also informed the employee of a pretermination hearing, at which he would be given an opportunity to respond to the charges. However, a Human Resources employee told him the hearing was “not the time that [the employee] would plead his case, that would be done afterward” on appeal to the county’s Personnel Appeal Board (PAB). The pretermination hearing was held, and consistent with what HR told him, he did not “plead his case” to tell his side of the story.

Fired. The employee was then terminated, at which time another email was sent to employees, describing safety measures that would be taken and advising them that the employee should not contact staff or come onsite and anyone seeing him do so should call 911. A post-termination hearing at the PAB was scheduled, but the employee later abandoned his appeal before it was completed and filed suit in federal court.

Lawsuit. He sued the county and his supervisor (who had sent the above-described emails) under 42 U.S.C. § 1983 for deprivation of pretermination and post-termination due process, political-affiliation retaliation, age discrimination, and state-law defamation and age discrimination. The district court granted the defendants summary judgment on all claims, leading to the appeal.

Due process. As a government employee, the employee had a due process right to notice and an opportunity to be heard before deprivation of a constitutionally protected right or property interest. As a merit-systems employee, the employee had a property right in his continued employment, so the only issue was whether the employee received inadequate process. The appellate court found that the pretermination hearing was inadequate, while the employee could not sustain his claim about the post-termination hearing because he abandoned that process.

Pretermination hearing. Although a pretermination hearing can be “very limited” when “followed by a more comprehensive post-termination hearing,” Gilbert v. Homar, 520 U.S. 924, 929 (1997), it must include “[1] oral or written notice of the charges, [2] an explanation of the employer’s evidence, and [3] an opportunity for the employee to tell his side of the story.” Gilbert, 520 U.S. at 929. The employee’s pretermination hearing failed these requirements, the appellate court held.

The county contended that a combination of its investigatory interview of the employee before sending him notice of termination, and the pretermination hearing after the notice was given met due process requirements. Turning first to the pre-notice investigatory interview, the county did not tell the employee the specific charges against him, nor explain the evidence the county had. Instead, a transcript of the interview showed that the county provided the employee only with general topics that did not match the charges that were lodged against him and later described in the termination notice. This did not give him “the gist” of the charges against him, as due process requires, according to the court. Nor was the employee given the evidence against him in that interview, as the termination notice identified comments of subordinates that were not discussed during the interview.

The pretermination hearing was deficient for additional reasons. By this time, through the termination notice, the employee had been given notice of the charges against him and the supporting evidence. But because HR told him the hearing was not the place to present his response to the charges, he did not do so. Therefore, a reasonable jury could conclude he was not afforded a meaningful chance to respond.

Post-termination hearing. Summary judgment for the county was affirmed, however, as to the post-termination hearing, because the employee abandoned the process before it was completed. An employee waives a procedural due process claim when he chooses not to participate in post-termination proceedings.

Political affiliation. The court affirmed summary judgment on the employee’s claim that he was terminated in retaliation for his political affiliation. Though the employee had alleged that he was terminated because he was perceived to be part of the prior Republican administration, there was no evidence that the ultimate decision maker or the county leadership “affiliated him” with any political party, said the Sixth Circuit.

Defamation. The employee also had asserted a defamation claim against his supervisor based on the emails sent to the department employees advising them of safety measures to take. But even if suggesting the employee was a safety risk could be deemed defamatory, the supervisor was protected by qualified privilege because he had an interest in protecting the safety of other employees.

Age discrimination. Finally, because the bases given for termination were legitimate, nondiscriminatory reasons, the employee had to show they were pretext in order to survive summary judgment on his age discrimination claims. The court affirmed the lower court’s determination that he had not done so. His attempt to use a comparator to show disparate treatment failed, because the misconduct alleged against him was different.

The case is No. 24-1345.

Judge: Mathis, A.

Attorneys: Kevin J. Kelly (The Mastromarco Firm) for David Hieber. Christopher M. Trebilcock (Clark Hill Law) for Oakland County, Michigan.

Companies: Oakland County, Michigan

Cases: IndividualRights Discharge Retaliation Discrimination AgeDiscrimination PublicEmployees KentuckyNews MichiganNews OhioNews TennesseeNews