141 F. 3d 1175 - Fauver v. Josephine County

MEMORANDUM*

Wesley Fauver was terminated from his job as a deputy sheriff because of his improper sexual conduct. He asserts that he was not given a constitutionally sufficient pre-termination hearing. The district court granted summary judgment. He appeals. We affirm.

There is no dispute that Fauver was entitled to a pre-termination hearing that complied with due process under the United States Constitution. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). That is, he had a right to notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. See id. Of course, he was also entitled to have some indication that his job was in jeopardy. See Matthews v. Harney County, Oregon, School Dist. No. 4, 819 F.2d 889, 892 (9th Cir.1987).

On this record, we agree with the district court that Fauver had ample notice and that his lengthy meeting with his employer gave him a full opportunity to say whatever he wanted to say on his own behalf. The fact that the employer had not already formulated a particular form of discipline is of no moment. Indeed, had the employer already made up its mind, we would be called upon to fault that. See Brady v. Gebbie, 859 F.2d 1543, 1554-55 (9th Cir.1988). Fauver knew what he was charged with, knew what the victim asserted, and knew that the charges could lead to termination of his employment. His federal due process rights were not violated.

Because Oregon construes the demands of its constitutional provisions in the employment termination area to be congruent with federal due process demands, his rights under Article I, Section 10 of the Oregon Constitution were not violated either. See Tupper v. Fairview Hosp. & Training Ctr., Mental Health Div., 276 Or. 657, 664 n. 2, 556 P.2d 1340, 1344 n. 2 (1976).

AFFIRMED.