Alaska Employment Law

A city laid off a permanent employee, and denied the employee’s request for a pre-termination hearing. 

The 9th Circuit quickly held that the city denied the employee his federal Due Process, and then focused on the remedy and the issue of immunity. 

As to remedy, the panel held that when a public employer improperly denies an employee a pre-termination hearing, the court may order the remedial post-termination hearing be held in front of an external hearing officer if the litigation has made it difficult to find an impartial fellow-employee.

It was also not improper for the district court to order that the hearing be held before a neutral third-party. This court has held that for post-termination hearings an impartial decisionmaker is required.  Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991). The district court made a finding that persons working for the City would not be sufficiently neutral in this case after the extensive litigation between the City and [employee] Levine. Because this finding was not clearly erroneous, and an impartial decisionmaker is required, the district court did not err in ordering that a neutral thirdparty preside over the hearing. See id.

The Court also held that the City Manager was protected by qualified immunity for denying the employee the pre-termination hearing, because the employee’s union contract

stated that [the employees were] not entitled to a pretermination hearing if laid off and, thus, a reasonable official in [the City Manager’s] position could have believed that his conduct was lawful.

Levine v. City of Alameda, 2008 WL 2025011 (9th Cir. May 14, 2008)