Employment — public employment — due process — pre-termination hearing

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U.S. Court of Appeals for the Seventh Circuit

Civil

Employment — public employment — due process — pre-termination hearing

Where a terminated employee alleges that additional grounds for dismissal were added after his pre-termination hearing, the district court erred in granting the employer’s motion to dismiss his complaint alleging lack of due process.

“Turning to Carmody’s second theory on the pre-termination process, the later-added charge for failure to report a security breach, we also agree with Carmody at the pleadings stage that this charge may have been sufficiently distinct from the original charges that he did not receive fair notice before the July 28 meeting that he faced this charge. Relying on a new charge without providing a meaningful opportunity to respond violates due process. See Staples v. City of Milwaukee, 142 F.3d 383, 384, 387 (7th Cir. 1998) (reversing grant of summary judgment for employer because employee was informed of one grievance before a pre-termination meeting but not another and arguably had no meaningful opportunity to respond to new charge); Peery v. Brakke, 826 F.2d 740, 743–44 (8th Cir. 1987) (reversing judgment notwithstanding the verdict for employer because employee had notice of only some charges against him and was not ‘given any opportunity to respond to the new charges before being fired’); see also Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (‘Procedural due process guarantees are not met if the employee has notice only of certain charges or portions of the evidence and the deciding official considers new and material information.’).”

Affirmed in part, and Reversed in part.

13-2302 Carmody v. Board of Trustees of the University of Illinois

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Hamilton, J.