In Cortez-Debonar v. Fretwell, two former firefighter trainees sued the city of Las Vegas after they were terminated from the firefighter academy following allegations of cheating. The district court held that the trainees could pursue both their due process and breach of contract claims.
In 2013, Alexander Cortez-Debonar and Cal Henrie Jr., were completing their training as firefighter recruits at the Las Vegas firefighter academy. As part of their training, the firefighter trainees had to complete a test regarding hazmat procedures. After the test, the city began investigating whether the exam proctor had left the room during the exam and whether the trainees had communicated with each other after the proctor left. It later came out that the trainees had taken the exam as a group, but only at the instruction of the proctor. Following this revelation, the city terminated the entire recruitment class.
The firefighter trainees filed a due-process claim and a breach-of-contract claim. They argued:
that their termination under suspicion of cheating without a prior name-clearing hearing deprived them of a constitutionally protected liberty interest in their names and reputations without due process of law and constituted a breach of the CBA, which required [the city] to ensure that any discharge did not violate state or federal law.
The city argued that the trainees were not entitled to protections under the CBA as probationary employees, and further, they were not entitled to a pre-termination name-clearing hearing at all because they had no property interest as probationary employees. And even if they were entitled to a name-clearing hearing, the post-termination meeting the city conducted was enough.
The district court held that it could not determine on the evidence presented whether the post-termination meeting provided to the trainees by the city qualified as a due process name clearing hearing, so allowed the trainees to move forward on that claim to trial. The district court further denied the city’s argument that the trainees could not bring a breach of contract claim. The CBA stated:
the City has the right to discipline or discharge a[ probationary] employee at any time, as long as the action is consistent with applicable state and federal law. Nothing in this Agreement interferes in any way with the City’s right to discharge or discipline any employee prior to the successful completion of an initial probationary period.
The district court did not believe a plain reading of this section demonstrated that probationary employees were exempt from all of the provisions of the CBA. In light of this reasoning, the district court held that the firefighter trainees could move forward to trial with both claims.
This case involves the right of probationary employees to a pre-termination hearing (often referred to as a Loudermill hearing) or post-termination hearing, raising important constitutional due process issues that could impact your probationary members.
Employees have a due process “property interest” in continued employment with a public agency. However, courts fairly consistently hold that probationary employees do not have constitutionally-protected “property interests” in continued employment because they are essentially at-will and can be terminated with or with cause. They also typically have limited bill of rights protections under their collective bargaining agreements.
Even though there may be no property interest though, probationary employees may have a “liberty interest” in protecting their “good name” or reputation.
The probationary firefighter trainees here were not claiming they were entitled to a pre-termination hearing because they conceded the fact they did not have a property interest in continued employment. Rather, the trainees claimed that they were entitled to a post-termination “name-clearing” hearing, not to challenge their discharge, but to clear their names. A name-clearing hearing was particularly important in this case where the firefighter trainees’ truthfulness and credibility during the testing process was being challenged by the employer.
This case is helpful in explaining the type of due process your probationary members are constitutionally entitled to. Also, when truthfulness issues, or claims that could impact the reputation of your probationary members are raised by the employer, it is particularly important that your probationary members be afforded a hearing to clear their names, as that can have a significant impact on future employment opportunities.