Public employee discharge; Pre-deprivation procedural due process; Rights waiver; Morrison v Warren; Qualified immunity; Violation of clearly established law; Cleveland Bd of Educ v Loudermill; Appellate jurisdiction; Interlocutory appeal; “Understanding of Unclassified Appointment” (the MOU); Collective bargaining agreement (CBA)

The court held that defendant-city manager (Long) was not entitled to qualified immunity for plaintiff-former Fire Chief’s (Washington) claim for pre-deprivation violations of his procedural due process rights. Under defendant-Cincinnati’s City Charter, “once a Fire Chief serves six months, he can be terminated only for cause, which means he has a right to a pre-termination hearing under binding—and clearly established—precedent.” Washington had attained for-cause status before he was terminated. But defendants argued that regardless of the Charter provisions, “it could not have been clear that [he] had for-cause protection after he signed” a document referred to as the MOU. On appeal, the court considered “the MOU only in the limited capacity of what a reasonable official in Long’s position would have understood about Washington’s status based on the fact that he signed the MOU.” Under Morrison, it “is clearly established that ‘clear and unmistakable language . . . is necessary to waive procedural due process rights.’” The court concluded that the MOU fell “short of that standard. Like the [CBA] in Morrison, the MOU contains no references to the Fourteenth Amendment or Washington’s due process rights. The MOU likewise makes no mention of the Charter or any rights [he] had under it.” Defendants emphasized the MOU provided “that ‘[t]he position of Fire Chief is an unclassified position’ and unclassified employees ‘serve at the pleasure of the appointing authority and can be dismissed from employment without cause at any time.’” But the court found it “difficult to call this language a ‘clear and unmistakable’ waiver when it contains no express indication that Washington is giving up anything[.]” It concluded that a “reasonable official in Long’s position (a) would have known that Washington, in his position as Fire Chief under the Charter, accrued for-cause protection following his six-month probationary period; and (b) would not have presumed the MOU operated as a waiver of the rights afforded by that status. Long’s failure to provide [him] with any pre-termination process before firing him . . . was a violation of clearly established law” pursuant to Loudermill. Affirmed.