for the Ninth Circuit
John Vanderwalker, et al.,
Plaintiffs - Appellants,
v.
King County et al.,
Defendants -
Appellees.
No. 02-36023
91 Fed. Appx. 545
2004
Appeal from the
TROTT, PAEZ, and BERZON, Circuit Judges.
[*545]
MEMORANDUM *
John Vanderwalker appeals the summary
judgment dismissal of his complaint alleging procedural and substantive due
process violations and various state law claims arising out of the manner in
which King County and Sheriff David Reichert [*546] handled his termination. We
affirm. As the parties are familiar with the facts of this case, we recite them
only as necessary to explain our decision.
Vanderwalker contends that dismissal of his procedural due process
claim was improper because a triable issue of fact exists as to whether Sheriff
Reichert predetermined the outcome of Vanderwalker’s Loudermill
hearing. While it is true that a
Loudermill hearing with a predetermined result is constitutionally inadequate,
see Matthews v. Harney County, 819 F.2d 889, 893 (9th Cir. 1987), a public
employee facing termination is not entitled to an unbiased Loudermill
decisionmaker, so long as the decisionmaker at the post-termination hearing is
impartial. See
Only a few of the actions cited by Vanderwalker as circumstantial
evidence that the result of his Loudermill hearing was predetermined are
actually attributable to Reichert. Those actions are: (1) Reichert initiated
the investigation into the pepper spray incident after footage of the incident
was televised; (2) Reichert proceeded to terminate Vanderwalker despite
evidence that the alleged victims of the pepper spray incident lied to television reporters about
some of Vanderwalker’s actions; (3) Reichert did nothing in response to
the fact that Sergeant McSwain breached departmental procedure by releasing
Vanderwalker’s name in connection with the pepper spray incident; (4) roughly
one month prior to the Loudermill
hearing, Reichert initialed the Internal Investigations memorandum
recommending termination; (5) Reichert did not mention the dishonesty charge in
his press release concerning Vanderwalker’s termination even though that charge
was necessary to Reichert’s ultimate decision; and (6) during the Loudermill
hearing, Vanderwalker and his Guild Representative, Deputy Eggert, “were cut
short at times ... which is somewhat unusual for the sheriff.” These facts,
even when viewed in the light most favorable to Vanderwalker, are insufficient
to permit a trier of fact properly to find that Reichert predetermined the
result of the Loudermill hearing.
As a preliminary matter, Sheriff Reichert’s
decision not to give dispositive weight to the fact that the complainants had
lied about some matters was well within his prerogative as a Loudermill
decisionmaker. Thus, his knowledge that the complainants had lied does not
suggest that he predetermined the result of the Loudermill hearing.
Additionally, there is no basis in the
record to think that Reichert could have or should have done anything about the
fact that McSwain released Vanderwalker’s name in connection with the pepper
spray investigation. There is no indication that other officers modified their
statements to inculpate Vanderwalker, and indeed, there is no suggestion that
Reichert relied on the testimony of other officers.
As for the Internal Investigations
memorandum Reichert initialed prior to the Loudermill
hearing, Reichert testified that his signature on the memorandum is
standard procedure – a necessary prerequisite to initiating the Loudermill
process and terminating an employee. There is no contrary indication in the
record, and in fact, because the memorandum appears to serve no other
functional purpose, there is no reason to believe – as Vanderwalker would have
us do – that Reichert initialed the memorandum as an expression of his
preconceived desire to terminate Vanderwalker. [*547]
The remaining facts – Reichert’s initiation of the pepper spray investigation, the failure to mention the
dishonesty charge in the press release, and the opaque accusation that
Vanderwalker and Eggert were “cut short at times” – are simply insufficient to
show predetermination, particularly when Walker explicitly allows for a
Loudermill decisionmaker who is not impartial. The procedural due process claim
cannot survive summary judgment.
We affirm dismissal of the remaining claims for the reasons given by the district court.
* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.