United States Court of Appeals
For the First Circuit
No. 07-1652
ANDREW CHMIELINSKI,
Plaintiff, Appellant,
v.
COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE COMMISSIONER OF
PROBATION; COMMONWEALTH OF MASSACHUSETTS TRIAL COURT; JOHN J.
O'BRIEN, Individually; ANTHONY R. SICUSO, Individually,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Lipez, and Howard,
Circuit Judges.
Mitchell J. Notis for appellant.
Sarah M. Joss, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief for appellee.
January 22, 2008
LYNCH, Circuit Judge. Andrew Chmielinski, the Chief
Probation Officer of the Milford, Massachusetts, District Court,
was fired by the Commissioner of Probation after a hearing on
charges he had abused his office. That termination was upheld on
administrative appeal to the Chief Justice for Administration and
Management ("CJAM") of the Commonwealth of Massachusetts Trial
Court and then to the Trial Court's Advisory Committee on Personnel
Standards.
Chmielinski filed a civil rights action in federal
district court alleging that his procedural due process rights had
been violated. The district court dismissed the action for failure
to state a claim. We affirm the dismissal, although our take on
the case is different. We focus on whether the initial hearing,
which did not involve full trial rights, violated due process
guarantees and conclude it did not.
I.
Because this appeal comes to us on a motion to dismiss,
we accept all well-pleaded factual allegations in the complaint as
true and view all reasonable inferences in the plaintiff's favor.
Rucker v. Lee Holding Co., 471 F.3d 6, 8 (1st Cir. 2006).
Chmielinski started working as a temporary Probation
Officer for the Commonwealth of Massachusetts Trial Court in 1976.
He became a permanent Probation Officer in 1979 and worked in the
Dorchester District Court until 1996. In 1996, he was promoted to
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be the Chief Probation Officer in the Milford District Court and
continued in that role until his discharge on February 20, 2004.
A. Pre-termination Proceedings
On April 15, 2003, Chmielinski learned that his
supervisors had complaints regarding his work performance, but he
did not become aware of the specific nature of the complaints. The
same day, he received a letter from defendant Anthony J. Sicuso,
the Deputy Commissioner/Legal Counsel of the Office of the
Commissioner of Probation, stating that allegations of misconduct
had been made against Chmielinski.1 At a meeting between
Chmielinski and Sicuso on May 13, 2003, Sicuso reiterated that
allegations had been made, but refused to provide any specifics to
Chmielinski or his counsel.
On May 16, 2003, Sicuso provided Chmielinski with a
letter stating that he had been placed on involuntary paid
administrative leave effective immediately. This letter still did
not describe what the allegations were, but it informed Chmielinski
that while the allegations had not been proved, Sicuso believed
1
Unfortunately, the defendants in their motion to dismiss
failed to provide copies of the documents referred to in the
complaint, which would have provided more context. In reviewing a
Rule 12(b)(6) motion, we may consider "documents the authenticity
of which are not disputed by the parties; . . . documents central
to plaintiffs' claim; [and] documents sufficiently referred to in
the complaint." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993);
see also Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17
(1st Cir. 1998) (considering document attached to defendant's
motion to dismiss).
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they were "plausible." The letter also set out "directives" with
which Chmielinski was ordered to comply on penalty of further
disciplinary action, including that he not appear at the premises
of the Milford District Court, not contact any employees or former
employees of the Milford District Court, and that he "[r]efrain
from all conflict, intimidating/retaliatory behavior and from any
behavior which creates the appearance of conflict, of intimidation
or retaliation." From the prohibitions in this letter,
Chmielinski received some warning of the nature and sources of the
claims against him.
During May and June 2003, a representative of the Trial
Court/Commissioner of Probation investigated the allegations of
misconduct against Chmielinski, which led to a report drafted by
Regional Supervisor Elizabeth Slaney, at Sicuso's direction. This
report contained "embedded hearsay." The complaint alleges the
investigation was improper.
After the report was completed, the Trial
Court/Commissioner of Probation, by letter dated September 4, 2003,
charged Chmielinski with multiple acts of misconduct: (1) that
Chmielinski had shoplifted on September 12, 2002; (2) that he
improperly obtained a "blue light permit" and mounted the light in
his personal vehicle; (3) that he made improper disclosures of
court records; (4) that activities undertaken by Chmielinski
relating to a speeding ticket of his brother created the appearance
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of impropriety; (5) that he carried a firearm while on duty
approximately four years earlier; and (6) that he was involved in
improper interactions with other employees.
A two-day hearing on the allegations was conducted on
January 12, 2004, and January 21, 2004, four months after the
charges were made. Defendant John J. O'Brien, the Commissioner of
Probation, presided over the hearing. At this hearing, Chmielinski
and his counsel presented evidence on Chmielinski's own behalf and
had the opportunity to question the evidence against him. The
complaint alleges this was the only hearing which took place before
his termination, and his only opportunity to "present evidence on
his behalf or to question, other than through oral argument or
written argument, the evidence, conclusions or findings" against
him.2
On February 20, 2004, O'Brien issued his decision on the
charges made against Chmielinski. While he found in favor of
Chmielinski on some of the charges, he found against him on others,
and ordered Chmielinski be terminated effective immediately.
B. Chmielinski's Post-termination Appeals
On March 1, 2004, Chmielinski appealed O'Brien's decision
to the CJAM pursuant to Massachusetts state law and the Trial
Court's human resources policy. See Mass. Gen. Laws ch. 211B,
2
Chmielinski alleges that at the end of the hearing it was
agreed that Chmielinski's counsel would be allowed to submit a
written summary of the evidence and a closing argument after
receiving the transcripts of the hearing.
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§ 9(xxviii) ("[T]he chief justice for administration and management
shall review all appointments and dismissals governed by
[applicable personnel] standards . . . for noncompliance with such
standards and shall rescind any such appointment or dismissal that
does not comply with said standards."); Policies and Procedures
Manual of the Human Resources Department of the Administrative
Office of the Trial Court § 16.600 [hereinafter Trial Court
Policies and Procedures] ("Disciplinary Process For Complaints
Against Probation Officers").
In his written appeal, Chmielinski alleged that the
decision was arbitrary and capricious, and that the process
violated his rights. He asserted that the failure to hold an
evidentiary hearing on appeal was itself a violation of his rights.
As to his termination hearing, he argued that his rights were
violated on multiple grounds: there was no pre-hearing discovery;
witnesses were not sworn; witnesses were not sequestered; various
categories of evidence were improperly admitted; Sicuso's letter
prohibiting contact with any coworkers resulted in preventing
Chmielinski from conducting an investigation and preparing a
defense; leading questions were asked of witnesses; certain of his
evidence was ignored by O'Brien; the result of his hearing was
predetermined; O'Brien lunched with counsel for the Trial
Court/Office of the Commissioner on one of the hearing days, which
was indicative of bias; and, O'Brien issued his decision only one
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day after Chmielinski's counsel received a copy of the transcript
of the hearing preventing counsel from making a written submission
after the hearing. On August 19, 2004, the CJAM denied the appeal
and upheld the termination decision.
Chmielinski then exercised his statutory right to appeal
further the termination decision to the Trial Court's Advisory
Committee on Personnel Standards. Mass. Gen. Laws ch. 211B, § 8
("[If an] employee has served three full years in [an] [applicable]
position, . . . he shall have the right to appear personally before
the committee before said committee reaches its decision as to
whether or not to affirm his removal."). Oral argument was held
before the Advisory Committee on November 19, 2004, at which
Chmielinski presented again his allegations of procedural
inadequacies.
The Advisory Committee affirmed Chmielinski's termination
and informed the CJAM by letter dated November 23, 2004.
Chmielinski, through his counsel, was made aware of the Advisory
Committee's affirmance by a letter dated November 29, 2004.
C. Federal Lawsuit
On July 6, 2005, Chmielinski brought suit under 42 U.S.C.
§ 1983 in federal district court against the Office of the
Commissioner of Probation, the Trial Court, and O'Brien and Sicuso
in their individual capacities, alleging that Chmielinski's
termination violated his right to procedural due process. He
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sought compensatory and punitive damages from the individual
defendants and reinstatement to his former position plus
compensatory and punitive damages from the Commonwealth defendants.
The defendants filed a joint motion to dismiss for lack
of subject matter jurisdiction and failure to state a claim upon
which relief can be granted. The motion to dismiss was referred to
a magistrate judge, who recommended that the suit be dismissed
because Chmielinski, even on the most favorable reading of the
complaint, had received constitutionally adequate process.3 The
district court accepted and adopted the magistrate's recommendation
granting the defendants' motion to dismiss.
II.
Chmielinski appeals the district court's dismissal of his
damages claims against the individual defendants, Sicuso and
O'Brien; he does not appeal the dismissal of his claims against the
3
The magistrate judge rejected the defendants'
jurisdictional arguments: that the Trial Court's termination
decision was a state court judgment and barred from review by the
Rooker-Feldman doctrine and that the plaintiff had not exhausted
his administrative remedies. The magistrate did find that Eleventh
Amendment immunity barred the claims against the Commonwealth
agencies.
The magistrate also rejected Sicuso's and O'Brien's
contentions that they were entitled to quasi-judicial immunity, but
nonetheless found that the plaintiff had failed to state a due
process claim. The magistrate determined that Chmielinski's
allegations fell within the ambit of the Parratt-Hudson doctrine,
which provides that when a deprivation of a property interest
occurs due to random and unauthorized conduct, a court must examine
only the adequacy of the post-deprivation remedies. Here, the
magistrate found adequate the appeals process that Chmielinski
received after his termination.
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Commonwealth agencies. Our review of the district court's granting
of the motion to dismiss is de novo. Rodríguez-Ortiz v. Margo
Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007). In order to survive
a motion to dismiss, the complaint must allege "a plausible
entitlement to relief." Id. (quoting Bell Atl. Corp. v. Twombly,
127 S. Ct. 1955, 1967 (2007)) (internal quotation marks omitted).
A. Jurisdiction and Immunity
The defendants made a jurisdictional argument, which was
correctly rejected by the district court. The defendants'
jurisdictional argument was that the district court lacked subject
matter jurisdiction because the Trial Court's termination decision
was a decision of a Massachusetts court and thus is reviewable only
by the Massachusetts Supreme Judicial Court.
In terminating Chmielinski's employment, the Trial Court
was acting as an employer, not as a judicial body. Chmielinski was
an employee of the Trial Court, not a litigant, and at no time was
his employment an issue in an action pending before the Trial
Court. The Trial Court's decision to terminate Chmielinski was the
result of an administrative proceeding held in its capacity as an
employer, and was not the "final judgment[] of a state court in [a]
judicial proceeding[]." D.C. Court of Appeals v. Feldman, 460 U.S.
462, 482 (1983). Therefore, the Rooker-Feldman doctrine, which
bars lower federal courts from reviewing the decisions of state
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courts, does not apply to the state court's decision. See id.;
Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923).
Defendants' argument that jurisdiction was inappropriate
because the plaintiff had not exhausted his administrative remedies
in the sense of pursuing a further appeal in the state court system
has no merit. The Supreme Court has made clear that exhaustion of
state administrative remedies is not a prerequisite to filing an
action under 42 U.S.C. § 1983. Patsy v. Bd. of Regents, 457 U.S.
496, 516 (1982); see also Borges Colón v. Román-Abreu, 438 F.3d 1,
19 (1st Cir. 2006) (citing Baez-Cruz v. Municipality of Comerio,
140 F.3d 24, 30 (1st Cir. 1998)).4
B. Due Process
It is agreed that state law gave Chmielinski, a twenty-
five-year employee of the probation office with certain statutory
protections, a protected property interest in his continued
employment. See Bd. of Regents v. Roth, 408 U.S. 564, 576-78
(1972). He could not be discharged without due process, including
a hearing before his termination. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538–42 (1985).
4
The plaintiff's claims against the Commonwealth agencies
were dismissed. The Eleventh Amendment renders states immune from
suits in federal court by private citizens. See Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 54 (1996); Edelman v. Jordan, 415
U.S. 651, 662-64 (1974). This situation would not preclude
prospective injunctive relief against O'Brien and Sicuso if in fact
plaintiff's due process rights were violated. Ex parte Young, 209
U.S. 123, 155-56 (1908). Here, the plaintiff did not seek
prospective injunctive relief against the individual defendants.
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1. Inapplicability of the Parratt-Hudson Doctrine
The Parratt-Hudson doctrine exists to protect states from
needlessly defending the adequacy of state law process when the
alleged due process violation results from a deviation from that
process. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding
that when alleged due process violations stem from "random and
unauthorized conduct," review is limited solely to the adequacy of
the post-deprivation remedies); Parratt v. Taylor, 451 U.S. 527
(1981), overruled on other grounds by Daniels v. Williams, 474 U.S.
327, 330-31 (1986). In instances of "random and unauthorized
conduct" by state officials, "additional pre-deprivation safeguards
would have little value in preventing an erroneous deprivation of
the protected [property] interest." Mard v. Town of Amherst, 350
F.3d 184, 193 (1st Cir. 2003). Thus, "[w]hen a deprivation of a
property interest is occasioned by random and unauthorized conduct
by state officials, . . . the [Supreme] Court has repeatedly
emphasized that the due process inquiry is limited to the issue of
the adequacy of postdeprivation remedies provided by the state."
O’Neill v. Baker, 210 F.3d 41, 50 (1st Cir. 2000) (quoting Lowe v.
Scott, 959 F.2d 323, 340 (1st Cir. 1992)) (alteration in original).
Before invoking the Parratt-Hudson doctrine, however,
courts must give a hard look at allegations that conduct is "random
and unauthorized." See Zinermon v. Burch, 494 U.S. 113, 138 (1990)
(finding that conduct could not be said to be "unauthorized" when
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state had delegated broad discretion to state officials); O'Neill,
210 F.3d at 50 ("Zinermon [requires] that 'courts scrutinize
carefully the assertion . . . that [state officials'] conduct is
"random and unauthorized . . . ."'" (quoting Lowe, 959 F.2d at
341)).
Chmielinski's allegations all concern his January 2004
termination hearing, a hearing that was conducted in accordance
with a state-law statutory and regulatory scheme. Massachusetts
General Laws, chapter 276, section 98 grants the Commissioner of
Probation "executive control and supervision over the probation
service," under the approval and direction of the CJAM. The Trial
Court has promulgated regulations pursuant to that statute which
allow the Commissioner of Probation to initiate and impose
discipline (including discharge) on probation officers, Trial Court
Policies and Procedures § 16.600, and require that an informal
hearing be held before discipline be imposed, id. § 16.300(B).
Neither the statute nor the regulations set out any procedural
requirements, providing only that the hearing be "informal." Thus,
the hearing that Chmielinski received cannot be characterized as a
deviation from the state law; it was not random and unauthorized.
2. Adequacy of the Termination Hearing
Instead, this case is governed by the initial question of
whether the termination hearing violated due process. See, e.g.,
Marrero-Gutierrez v. Molina, 491 F.3d 1, 8-9 (1st Cir. 2007);
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Cepero-Rivera v. Fagundo, 414 F.3d 124, 134-35 (1st Cir. 2005);
Mard, 350 F.3d at 189-93; O'Neill, 210 F.3d at 48-50. The Supreme
Court made clear in Loudermill that when an employee is entitled to
some process after termination, the purpose of the termination
hearing is solely to serve as "an initial check against mistaken
decisions -- essentially, a determination of whether there are
reasonable grounds to believe that the charges against the employee
are true and support the proposed action." 470 U.S. at 545-46. It
"need not be elaborate" as long as an employee receives (1) "oral
or written notice of the charges against him," (2) "an explanation
of the employer's evidence," and (3) "an opportunity to present his
side of the story." Id.
Chmielinski does not contest that he received adequate
notice here or that he was given an explanation of the employer's
case. He was first made aware that there were allegations against
him a full nine months before the hearing, and he was given the
specific details of the allegations four months before the hearing
took place. See Cepero-Rivera, 414 F.3d at 134 (finding less than
three weeks' notice of hearing sufficient); Torres-Rosado v.
Rotger-Sabat, 335 F.3d 1, 10 (1st Cir. 2003) (finding two-and-a-
half months' notice sufficient); O'Neill, 210 F.3d at 45, 48-49
(finding notice of hearing given only six days before hearing
sufficient when employee had understood nature of allegations
against her for the prior three months). Chmielinski was aware
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that the hearing concerned discipline, as he had been suspended,
and he appeared at the hearing with counsel and presented evidence
on his own behalf. See Torres-Rosado, 335 F.3d at 10 (finding that
"far more than the minimum elements" of due process were met when
plaintiff was accompanied by counsel at hearing, testified, and had
opportunity to present evidence).
Rather, Chmielinski's allegations of procedural due
process all concern the adequacy of the hearing he was provided.
The standard the defendant must meet here is not high: the U.S.
Constitution requires only "some pretermination opportunity to
respond." Loudermill, 470 U.S. at 542.
Most of Chmielinski's allegations are a call to transpose
the procedural protections of a court of law into his termination
hearing: his desire for pre-hearing discovery, his request that
the witnesses be sworn and sequestered, and his assertion of
various improprieties in the admission and consideration of
evidence. These are easily dismissed. The termination hearing is
not a court of law, and the same level of process is not required.5
The U.S. Constitution requires only that Chmielinski was provided
notice and a meaningful opportunity to respond, a requirement that
was clearly met on the facts of this case. "[T]he Constitution
5
"An agency's failure to follow its own rules may be
significant in administrative law, but the federal Due Process
Clause does not incorporate the particular procedural structures
enacted by state or local governments; these claims should be
pursued, if at all, under [state] law." Torres-Rosado, 334 F.3d at
10 (citing O'Neill, 210 F.3d at 49 n.9).
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requires only an initial check against erroneous decisions, not
that the state follow best practices." O'Neill, 210 F.3d at 49
n.10.
Chmielinski argues he had no meaningful opportunity to
respond because he was not provided pre-hearing discovery. So long
as he had adequate notice, the state was not required to give him
pre-hearing discovery. His real claim is that his employer
deprived him of the opportunity to do his own investigation to
bolster his defense. He argues the letter he received from Sicuso
ordering him to stay away from the Milford District Court and to
refrain from contacting court employees precluded his attorney from
contacting people.
There are several responses. The first is that each of
the allegations involved Chmielinski's own conduct, known to him.
From this he could testify and assemble a defense. Second, nothing
on the face of the letter prevented Chmielinski's counsel from
contacting witnesses. If Chmielinski had some doubt about the
scope of the prohibition, he should have, but did not, seek
clarification before the hearing.
Regardless, Chmielinski makes an argument that he was
unable to respond meaningfully to the charges against him, citing
language from a Massachusetts Supreme Judicial Court opinion, In re
Tobin, 628 N.E.2d 1268, 1271 (Mass. 1994): "There is authority for
the proposition that an administrative agency must grant discovery
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to a party in a contested case regardless of whether the enabling
statute or agency rules provide for it, if refusal to grant
discovery would so prejudice the party as to amount to a denial of
due process." Tobin recognizes, however, that it is an unusual
case in which due process concerns are raised, as parties "are not
entitled to pretrial discovery as a constitutional right." Id.;
see also P.S.C. Res., Inc. v. NLRB, 576 F.2d 380, 387 (1st Cir.
1978) ("Although [barring pre-hearing discovery in] a particular
unusual situation might result in gross injustice and call for some
modification, the instant case is surely not such a situation.");
Kelly v. U.S. EPA, 203 F.3d 519, 523 (7th Cir. 2000); Alexander v.
Pathfinder, Inc., 189 F.3d 735, 741 (8th Cir. 1999). Whatever
impediment was placed on Chmielinski's ability to investigate, it
was outweighed by the defendants' interests in protecting those who
complained, and it certainly did not violate due process.
Chmielinski makes a separate set of claims that the
outcome of the hearing was predetermined and the hearing officer
was biased. In this sense, he says, his opportunity to be heard
was not meaningful. We first look at the nature of the bias
allegations. He argues there was bias when O'Brien issued his
decision only one day after Chmielinski's counsel received the
transcripts of the termination hearing, contrary to an agreement
made with O'Brien at the hearing that the plaintiff would be
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allowed to make a written submission after receiving the
transcripts. This does not show bias.
The most troubling of Chmielinski's allegations raising
questions of the appearance of bias involves O'Brien, the hearing
officer, having lunch with the opposing attorney in the very
proceedings against Chmielinski on one of the hearing days. The
state maintains that even if O'Brien was biased, Chmielinski had no
state-law right to an unbiased hearing officer, nor a federal
right. It is true that pertinent regulations do not say that the
hearing officer needs to be unbiased.
We do not think the issue of bias can be addressed with
an abstract broad statement that the due process standard of
Loudermill either always or never requires that the hearing officer
be unbiased.6 There is, to start, a distinction between
6
If there were a requirement of an unbiased decisionmaker
under state law, the plaintiff would have an argument that
O'Brien's purported bias was a random and unauthorized act. See
Cronin v. Town of Amesbury, 81 F.3d 257, 260 n.2 (1st Cir. 1996).
In that instance, the adequacy of the post-termination procedures
become relevant. See, e.g., McKinney v. Pate, 20 F.3d 1550, 1562
(11th Cir. 1994) (en banc) ("[D]ue process [does not] require the
state to provide an impartial decisionmaker at the pre-termination
hearing. The state is obligated only to make available 'the means
by which [the employee] can receive redress for the deprivations.'"
(quoting Schaper v. City of Huntsville, 813 F.2d 709, 715-16 (5th
Cir. 1987) (second alteration in original) (internal quotation
marks omitted)); see also McDaniels v. Flick, 59 F.3d 446, 460 (3d
Cir. 1995) ("We also find most persuasive the application of
Parratt v. Taylor to claims that pretermination decisionmakers were
not impartial."). Here, those post-termination procedures were
obviously adequate. Plaintiff could and did complain about
O'Brien's supposed bias in his administrative appeal. He makes no
claim that his post-termination decisionmakers were biased. For
these reasons as well as the reasons in the text, Chmielinski's
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impartiality and degrees of bias. We have held that there is no
requirement that the hearing officer be impartial; indeed, the
terminating employer may preside. Acosta-Sepulveda v.
Hernandez-Purcell, 889 F.2d 9, 12 (1st Cir. 1989). We have also
held that there need not be a formal hearing at all.
Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 44 (1st Cir. 1988).
But that impartiality is not demanded does not itself determine
whether bias can be so severe as to interfere with due process at
the hearing itself.
A key concern in Loudermill was that the employee have an
opportunity to present his side of things to correct errors of fact
on which the termination decision is based. See Loudermill, 470
U.S. at 545-46. In theory at least, a decisionmaker could be so
utterly biased as to deprive an employee of even that error-
correction ability. But there is no allegation of that in this
case, even if we were to infer from Chmielinski's allegations that
O'Brien had some bias. Chmielinski's complaint does not allege
anywhere that any alleged bias on O'Brien's part deprived him of
the opportunity to put his version of the facts before the
decisionmaker, or that there was any error of primary facts in the
grounds used for termination that could be explained only by bias.
Chmielinski may disagree with the exercise of judgment which led to
claim fails in any event.
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the imposed penalty of termination of his employment, but that does
not state a due process concern arising out of the hearing itself.
III.
Because the plaintiff failed to state a claim upon which
relief could be granted, the district court appropriately granted
the motion to dismiss.
Affirmed.
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