SUTTON v. CLEVELAND BD. OF EDUC.

RALPH B. GUY, Jr., Circuit Judge.

Plaintiffs, Francine Sutton, Helen Ellis, and Gus Swanson, commenced this action pursuant to 42 U.S.C. § 1983, alleging deprivation of property without due process in violation of the Fourteenth Amendment of the United States Constitution. Plaintiffs claimed that the Cleveland Board of Education (Board) terminated their employment in violation of state law. Plaintiffs also claimed denial of procedural due process on the basis that they were not provided a full evidentiary hearing either prior to or subsequent to their terminations, and denial of substantive due process on the ground that the disciplinary action taken against them arbitrarily and unreasonably deprived them of employment, wages, and other benefits.

Upon cross-motions for summary judgment, the district court held that plaintiffs' grievances were governed by applicable state law and that they were not required to exhaust their union remedies. The district court further held that the Board terminated plaintiffs' employment in violation of state law and granted plaintiffs, who had been reinstated by the Board, damages for back pay and benefits for the periods of time they were not permitted to work. However, the district court rejected plaintiffs' constitutional due process claims and, therefore, refused to grant their request for compensatory damages and attorney fees.

Defendants argue on appeal that (1) the collective bargaining agreement, not state law, governs plaintiffs' terminations; (2) the grievance and arbitration procedures contained in the agreement provide the exclusive means for challenging those terminations; and (3) those procedures comply with constitutional requirements for due process. Plaintiffs appeal the district court's order dismissing their due process claims and denying them compensatory damages and attorney fees.

For the reasons set forth below, we affirm in part and reverse and remand in part.

I.

The facts are undisputed. As school bus drivers employed by the Board, plaintiffs were "classified civil service employee[s]," Ohio Rev.Code Ann. § 124.11, entitled to retain their positions "during good behavior and efficient service." Ohio Rev.Code Ann. § 124.34.1 Section 124.34 also sets forth the procedure employers must follow for initiating a discharge and entitles employees to a full administrative hearing and judicial review after discharge.2 The Board does not dispute that it did not follow the procedure set forth in section 124.34 when terminating plaintiffs.

As members of the International Brotherhood of Teamsters, Truck Driver's Union, Local 407 (Union), plaintiffs' employment was also covered by a collective bargaining agreement negotiated between the Union and the Board. Article VI of the agreement (Management Rights) provides that the Board has the right to "[s]uspend, discipline, demote, or discharge for just cause, or lay off, transfer, assign, schedule, promote or retain employees." Article XIII (Discipline), provides in pertinent part:

Article XII of the agreement establishes a four-step grievance procedure wherein "grievance" is defined as "any matter concerning the interpretation, application or violation of this Agreement, between the Board and the Union." Step three of the grievance procedure provides:

The fourth and final step of the grievance procedure is arbitration designed to resolve any controversy left unresolved due to a split panel at step three in the process, and provides that "[t]he decision and award of the arbitrator shall be final and binding upon the Board, the Union, and the employees affected by the decision and award."

When plaintiffs first applied to the Board for employment, they noted on their applications that they were convicted felons or had felony charges pending against them.3 Nevertheless, the Board offered them employment, which they accepted. In August 1985, the Board's Chief of Transportation, M. Bob Hamed, became aware of plaintiffs' criminal records. As a consequence, the Board placed each plaintiff on administrative leave and pre-termination hearings were scheduled. Subsequent to these hearings, at which plaintiffs were represented by the Union, plaintiffs were placed on "involuntary administrative leave" for the 1985-86 school year and told they would be reinstated if and when their criminal records were expunged.

The Union then filed a class grievance on behalf of plaintiffs and other similarly situated employees, and the grievance proceeded through steps one and two of the procedure established by the collective bargaining agreement. At step three in the process, the six-member panel never rendered a decision on the merits of plaintiffs' grievance. Rather, the panel deliberation ended when a settlement was reached, resulting in the reinstatement of some of the affected employees.

The settlement, set forth in a December 1985 letter signed by representatives of both the Board and the Union, states that the Union and the Board "agree to reinstate, with no back pay, those drivers who were placed on administrative leave and who did not falsify their employment applications." The letter further states that all reinstated bus drivers must attempt to have their felony convictions expunged when it becomes possible to do so. The letter contains two lists of employees, those to be reinstated and those not to be reinstated. The letter lists plaintiff Helen Ellis among those drivers to be reinstated, but Sutton and Swanson do not appear on either list. Although the letter is silent on the matter, the parties represent to the court that the Board and Union also agreed that any employees dissatisfied with the terms of the settlement would not be bound by it and that the Union retained the right to proceed to arbitration on behalf of any employees not consenting to the settlement.

Plaintiffs did not agree to the settlement but were, nevertheless, reinstated. Plaintiff Ellis was reinstated in November 1985, after having her felony conviction expunged, and plaintiffs Sutton and Swanson were reinstated sometime in January 1986 without expungement of their criminal records. Although the Board and Union initiated the process for having an arbitrator decide the merits of plaintiffs' grievances, plaintiffs' counsel notified both the Board and the Union that plaintiffs did not consent to the arbitration.

Plaintiffs thereafter filed the instant action under 42 U.S.C. § 1983, challenging the validity of their discharges on both procedural and substantive grounds. Plaintiffs claimed that "involuntary administrative leave" is not a valid means for suspension of Ohio public employees and that, because the Board failed to follow procedures for termination of public employees pursuant to Ohio Revised Code § 124.34, plaintiffs were denied meaningful use of established state adjudicatory procedures.4

The Board moved for summary judgment on the basis that plaintiffs' exclusive remedy for grievances were the grievance and arbitration procedures outlined in the collective bargaining agreement, that those procedures satisfy the requirements of the due process clause, and that plaintiffs' failure to exhaust that remedy precludes them from seeking redress in court. Arguing that a bargained for agreement that defines the terms and conditions of employment should control all labor disputes between union employees and a public employer, defendant relied upon Chapter 4117 of the Ohio Revised Code, which states in pertinent part:

Ohio Rev.Code § 4117.08. Section 4117.10 of the Code provides:

(Emphasis added). The Board argued that plaintiffs could not assert a cause of action under 42 U.S.C. § 1983 for denial of due process without pleading and proving the inadequacy of state remedies.

In response to defendants' motion for summary judgment, the district court initially ruled that the plaintiffs' suspensions were matters governed by the collective bargaining agreement:

The district court further held that by enacting section 4117.10 the Ohio legislature withdrew the protections of section 124.34 from employees covered by bargaining agreements that provide for binding arbitration. However, upon examining step three in the four-step grievance procedure provided by the agreement, the district court found that the agreement's provision for arbitration was defective, as it did not provide for final and binding arbitration in all instances:

Accordingly, the district court held that the Board was subject to review under applicable state laws and that section 124.34 provided plaintiffs with rights and protections that could be vindicated without going through the grievance procedure.

In response to the argument that plaintiffs had failed to exhaust or prove the inadequacy of state remedies, the court found that, "[b]y not following the procedures laid out in § 124.34, the Board itself made it impossible for plaintiffs to appeal their suspensions to the civil service commission or the state personnel board of review, and these boards in fact refused to hear an appeal." Noting that plaintiffs had unsuccessfully petitioned the Ohio Supreme Court for a writ of mandamus compelling the board or commission to hear plaintiffs' appeals, the district court held that plaintiffs had done all that they could do to exhaust their administrative and judicial remedies on the state level.5 Accordingly, the district court entered an order denying defendants' motion for summary judgment.

Thereafter, the Board moved for reconsideration, and plaintiffs filed a motion for summary judgment. In response, the district court (1) held that plaintiffs' pre-termination hearings comported with constitutional standards for due process; (2) affirmed its prior ruling that the collective bargaining agreement's post-termination grievance procedure was facially defective and that plaintiffs need not follow it; and (3) held that the Board violated state law and breached the collective bargaining agreement by terminating plaintiffs' employment without complying with section 124.34. Accordingly, the district court denied plaintiffs' summary judgment as to their due process claim and granted summary judgment on their "breach of contract claim."

The district court subsequently awarded plaintiffs back pay and benefits for the periods of time they were not permitted to work, but denied plaintiffs' request for compensatory damages under 42 U.S.C. § 1983 and attorney fees under 42 U.S.C. § 1988, on the basis that plaintiffs had not prevailed on their constitutional due process claims.

Plaintiffs then filed a motion to alter or amend the district court judgment, pursuant to Federal Rule of Civil Procedure 59(e). Plaintiffs argued that the court had only decided the pre-deprivation aspect of their due process claim, and had failed to address either the post-deprivation aspect of their procedural due process claim or their substantive due process claim. Plaintiffs further argued that the district court's findings — that the agreement's post-termination grievance procedure was facially defective and that the Board's failure to follow section 124.34 procedures denied plaintiffs their administrative remedies — were tantamount to a finding that plaintiffs were denied their post-deprivation due process. The district court denied plaintiffs' Rule 59(e) motion.

II.

We first address the district court's holding that plaintiffs' employment relationship with the Board was subject to review under state law and that section 124.34 provided plaintiffs with rights and protections that could be vindicated without going through the grievance procedure. Our review is de novo because this holding involved a determination of law. Salve Regina College v. Russell, ___ U.S. ___, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir.1989).

We conclude, as the district court did, that because the collective bargaining agreement failed to meet the requirements of section 4117.10, the agreement did not supersede applicable state law and the grievance and arbitration procedures in the agreement were not plaintiffs' exclusive means of redress. The plain language of the statute indicates that the grievance procedures of a collective bargaining agreement supersede the statutory administrative and judicial review "[i]f the agreement provides for final and binding arbitration of grievances." Defendant does not dispute the district court finding that the grievance procedures at issue do not provide for binding and final arbitration in all instances. Indeed, under step three of the grievance procedure, if the panel votes against the employees, or if it takes no vote at all, employees are not entitled to final and binding arbitration.

Defendant responds to this fact by arguing that, in this case, the Board and the Union agreed that the Union could proceed to arbitration on behalf of plaintiffs, even though the predicate for proceeding to arbitration under the agreement — an equally divided vote of the panel — never occurred. Defendant would have us find that the requirement expressed in step three for proceeding to arbitration is irrelevant, so that we could find that the collective bargaining agreement imposes on the parties an unexpressed duty to arbitrate. In essence, defendant asks us to rewrite the collective bargaining agreement. Not only would this violate the rule that arbitrability must be determined on the basis of the contract entered into by the parties, Local 390 v. Kroger Co., 927 F.2d 275, 279 (6th Cir.1991), but also the exclusivity of the grievance procedures and the application of state remedies would turn on the unpredictable ad hoc agreements that could vary with every grievance. We do not believe that these ad hoc agreements are the type of "agreement" contemplated by the Ohio legislature in section 4117.10(A). If the Union and the Board wish to avoid an employment relationship governed by a dual system of rules, terms, and conditions, then they can agree to provide employees the right to final and binding arbitration of grievances under Ohio law.6

We find unpersuasive defendants' reliance upon this circuit's unpublished decision in White v. Cleveland Board of Education, No. 87-4019 (6th Cir. Nov. 3, 1988) [861 F.2d 722 (table)]. In White, a case involving the same grievance procedures at issue here, this court faced the argument that state laws controlling discipline applied because the grievance procedures provided for arbitration in only a few situations. Citing the district court judgment in Sutton that is now before us, we distinguished White from Sutton because the grievance panel in White was equally divided at step three of the procedure, thereby entitling plaintiffs to submit their grievance to an arbitrator. Id., slip op. at 6-7 [861 F.2d 722 (table)]. Consequently, under the terms of the collective bargaining agreement, the plaintiffs in White were entitled to proceed to final and binding arbitration, and we held that the plaintiffs there could not avail themselves of state civil service remedies. We declined to expressly adopt or overrule the holding of the district court in Sutton on the basis that it was not applicable to the circumstances presented in White. Therefore, White is not dispositive because we did not squarely face the question presented here.7

Our holding affirming the district court comports with the strict construction accorded section 4117.10(A) by Ohio courts. The Supreme Court of Ohio has recognized that section 4117.10(A) "was designed to free public employees from conflicting laws which may act to interfere with the newly established right to collectively bargain." State, ex rel. Dispatch Printing Co. v. Wells, 18 Ohio St.3d 382, 384, 481 N.E.2d 632, 634 (1985). If the collective bargaining agreement fails to specifically take away protections and benefits provided by Ohio law, employees retain their entitlement to them. State, ex rel. Clark v. Greater Cleveland Regional Transit Auth., 48 Ohio St.3d 19, 23, 548 N.E.2d 940, 943 (1990).

Although the parties cite no Ohio cases construing the language at issue here ("If the agreement provides for a final and binding arbitration"), cases construing other language in section 4117.10(A) ("where an agreement makes no specification about a matter") have interpreted the language in a manner that places upon the parties to a collective bargaining agreement the burden of clearly indicating an intent to preclude the application of the protections and benefits of civil service statutes. The Ohio Supreme Court has held that the collective bargaining agreement must "specifically address the matter" at issue and that there must be a "clear conflict" between the contract and the relevant statutory provision for the court to conclude that the parties to the agreement intended it to encompass the issue in controversy and eliminate application of state and local law. Id., 48 Ohio St.3d 19, 22-24, 548 N.E.2d 940, 943-44; Bashford v. City of Portsmouth, 52 Ohio St.3d 195, 200-01, 556 N.E.2d 477, 482 (1990). The mere listing in an agreement of a subject recognized by Ohio law is not enough under section 4117.10(A) to exclude the matter from applicable state law. See State, ex rel. Bardo v. Lyndhurst, 37 Ohio St.3d 106, 113, 524 N.E.2d 447, 454 (1988) ("Since the agreement contains no detailed discussion of these matters, we believe that the intent of the agreement is that existing procedures and policies as to those matters will remain intact and unaltered." (Emphasis supplied)).

Finally, we reject defendants' argument that plaintiffs were required to exhaust the grievance and arbitration procedures contained in the collective bargaining agreement before pursuing their administrative or judicial remedies. Defendants cite Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965), which states:

(Emphasis in original). First, our response is that, under the express terms of step three in the grievance procedure, plaintiffs pursued the process as far as the agreement required or allowed. Second, as is evident from the quoted passage, the rule applies in cases governed by federal labor law, not state law.

Plaintiffs assert that their discharge violated section 124.34 because they were not discharged for a reason listed in that section and because they were denied the process guaranteed them by that section. Further, the apparent reason for plaintiffs' discharges — their prior felony convictions — raises the question whether the discharge of plaintiffs Sutton and Swanson violated section 124-3-04 of the Ohio Administrative Code, which governs discipline based upon a criminal conviction. Thus, because plaintiffs are asserting statutory rights that are independent of their contractual rights and are beyond the scope of the arbitrators' general authority, plaintiffs may assert those statutory rights independent of the arbitration process.8 McDonald v. West Branch, 466 U.S. 284, 288-92, 104 S.Ct. 1799, 1802-04, 80 L.Ed.2d 302 (1984) (employee's use of arbitration procedures did not bar subsequent action under 42 U.S.C. § 1983); Alexander v. Gardner-Denver Co., 415 U.S. 36, 52-55, 94 S.Ct. 1011, 1021-23, 39 L.Ed.2d 147 (1974) (contractual rights and statutory rights under Title VII "have legally independent origins"); Youghiogheny & Ohio Coal Co. v. Oszust, 23 Ohio St.3d 39, 41, 491 N.E.2d 298, 299 (1986). But cf. Hammontree v. NLRB, 925 F.2d 1486, 1496-98 (D.C.Cir.1991) (en banc) (stating that even though arbitration award does not preclude subsequent statutory claim, a claim arising under both the National Labor Relations Act and a collective bargaining agreement are not independent; therefore, exhaustion of arbitration remedies is required prior to asserting statutory claim).

Accordingly, we affirm the district court's holding that the Board was subject to all applicable state laws and that section 124.34 provided plaintiffs with rights and protections that need not be pursued via the grievance procedures of their collective bargaining contract in order to be vindicated.

III.

We now turn to that portion of the district court order denying summary judgment to plaintiffs on their due process claim and granting them summary judgment on their breach of contract claim. Since the district court's judgment on the contract claim is based upon the finding that plaintiffs were discharged without the process guaranteed by section 124.34, the court never decided the question whether plaintiffs were discharged for cause or the question whether the discharge of plaintiffs Sutton and Swanson violated section 124-3-04 of the Ohio Administrative Code. We believe that this finding addresses the issue of due process and does not support a judgment that plaintiffs suffered a breach of contract. We therefore reverse the district court's judgment granting plaintiffs relief for breach of contract.9 For the reasons that follow, we also reverse the district court's judgment denying plaintiffs relief on their procedural due process claim, and remand plaintiffs' procedural due process claim for further consideration consistent with this opinion.

Section 1983 authorizes "any citizen of the United States or other person within the jurisdiction thereof" to pursue "an action at law [or] a suit in equity" against "[e]very person who, under color of" state law, causes "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws[.]" See 42 U.S.C. § 1983. Although "§ 1983 by itself does not protect anyone against anything[,]" Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508 (1979), the statute "provides a remedy for deprivations of rights secured by the Constitution and laws of the United States...." Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 102 S.Ct. 2744, 2747, 73 L.Ed.2d 482 (1982). Here, plaintiffs rely on the Fourteenth Amendment, which forbids state actors to "deprive any person of life, liberty, or property, without due process of law[.]" See U.S. Const. amend. XIV, § 1.

Although property interests are not created by the Constitution but are created and defined by "existing rules or understandings that stem from an independent source such as state law," Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the Supreme Court has held repeatedly that the property interest in a person's means of livelihood is one of the most significant that an individual can possess. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543, 105 S.Ct. 1487, 1494, 84 L.Ed.2d 494 (1985). Indeed, when examining the same Ohio statute at issue in the instant case, particularly sections 124.11 and 124.34 of the Ohio Revised Code, the Court held in Loudermill that Ohio's classified civil servants possessed property interests in continued employment not subject to state deprivation except pursuant to constitutionally adequate procedures. Loudermill, 470 U.S. at 538, 105 S.Ct. at 1491; see also Lee v. Western Reserve Psychiatric Habilitation Ctr., 747 F.2d 1062, 1067 (6th Cir.1984).

Once it is determined that the due process clause applies, we are then faced with the question of what process is due, id., 470 U.S. at 541, 105 S.Ct. at 1492, and, particularly, whether a federal cause of action is the appropriate remedy for plaintiffs' deprivation. Ramsey v. Board of Educ. of Whitley County, 844 F.2d 1268, 1272 (6th Cir.1988). In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court held that in order to state a claim for relief in federal court under section 1983 a plaintiff must show that available state procedures were inadequate to compensate for the deprivation of property. Under the authority of Parratt, this court held that, in a procedural due process case under section 1983, "the plaintiff must attack the state's corrective procedure as well as the substantive wrong" and carries the burden of pleading and proving the inadequacy of state processes. Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir.1983), cert. denied, 469 U.S. 834, 105 S.Ct. 125, 83 L.Ed.2d 67 (1984).

Plaintiffs do not challenge the district court's conclusion that their pre-termination hearings comported with the due process requirements of "notice and an opportunity to respond." See Loudermill, 470 U.S. at 546, 105 S.Ct. at 1495. However, the due process standards enunciated for pre-termination hearings in Loudermill were based in part on the scope of the post-termination process provided by section 124.34, which entitles Ohio civil servants to a full administrative hearing and judicial review when discharged for disciplinary reasons. Id. at 547-48, 105 S.Ct. at 1496. "[I]t is clear that the required extent of post-termination procedures is inextricably intertwined with the scope of pre-termination procedures." Carter v. Western Reserve Psychiatric Habilitation, 767 F.2d 270, 273 (6th Cir.1985). Consequently, plaintiffs argue that, even though they may have received a pre-termination opportunity to respond, the district court's factual findings that plaintiffs were denied their administrative and judicial remedies due to the Board's failure to comply with section 124.34 support the conclusion that there had been a denial of post-suspension due process. Although these post-termination procedures, when coupled with a pre-termination opportunity to respond, have been held to provide all the process that is due, Loudermill, 470 U.S. at 547-48, 105 S.Ct. at 1496, this does not mean "that abuses in individual cases under § 124.34 may not occur." Loudermill v. Cleveland Bd. of Educ., 721 F.2d 550, 564 (6th Cir.1983), aff'd, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

Although the plaintiffs do not contend that the state's corrective procedure is per se deficient, they do allege, and defendant does not dispute, that plaintiffs were denied the opportunity to pursue their state remedies due to defendants' failure to comply with Ohio statutory provisions governing the disciplinary discharge of government employees. While the record does not indicate the extent to which plaintiffs followed the procedures established under sections 124.34 and 119.12 for appealing terminations, defendant does not dispute plaintiffs' allegation that they were precluded from obtaining the review guaranteed by that law because defendant denominated their discharges as "involuntary administrative leaves" and otherwise did not comply with the discharge procedure of section 124.34. Further, defendant does not challenge on appeal the district court finding that, "[b]y not following the procedures laid out in § 124.34, the Board itself made it impossible for plaintiffs to appeal their suspensions to the civil service commission or the state personnel board of review."

While the reasons underlying the refusal by the civil service commission and the state personnel board to address plaintiffs' appeals are not apparent, it is apparent that the disposition of plaintiffs' claims did not occur at a post-termination hearing on the merits. When state remedies for redress have been denied, the remedies cannot be said to be adequate. The Due Process Clause of the Fourteenth Amendment prevents states from "denying potential litigants use of established adjudicatory procedures, when such an action would be `the equivalent of denying them an opportunity to be heard upon their claimed right[s].'" Logan v. Zimmerman Brush Co., 455 U.S. 422, 429-30, 102 S.Ct. 1148, 1154-55, 71 L.Ed.2d 265 (1982) (quoting Boddie v. Connecticut, 401 U.S. 371, 380, 91 S.Ct. 780, 787, 28 L.Ed.2d 113 (1971)).

Carter, 767 F.2d at 273 (citations omitted).

Therefore, plaintiffs are entitled to the administrative and judicial review guaranteed them by Ohio civil service law and the Fourteenth Amendment to the United States Constitution. Because the adjudication process denied to plaintiffs comports with the constitutional requirements for due process, because the state of the record in this case does not allow us to determine the substantive merits of plaintiffs' suspensions, and because the reasons for discharge concern matters of state law that can be adequately addressed by state bodies, we remand this matter for resolution pursuant to the remedies provided by section 124.34. The district court is therefore instructed to enter an order requiring the Board to comply with the requirements of section 124.34 and any other civil service law applicable to employment termination that is necessary to allow plaintiffs to pursue their administrative and judicial remedies.10

IV.

Plaintiffs argue that the "unlawful, unreasonable and arbitrary suspensions by the Board," deprived them of their substantive due process right to employment. We have recognized that the Fourteenth Amendment has a substantive due process component that "protects specific fundamental rights of individual freedom and liberty from deprivation at the hands of arbitrary and capricious government action." Gutzwiller v. Fenik, 860 F.2d 1317, 1328 (6th Cir.1988). Nevertheless, we conclude that plaintiffs' state-created right to tenured employment lacks substantive due process protection.

Although this court has not specifically addressed the question whether an interest in tenured employment rises to the level of a "fundamental" interest protected by substantive due process, we have recently addressed the scope of substantive due process when answering the question whether a public employee could assert a substantive due process right to promotion.

Charles v. Baesler, 910 F.2d 1349, 1353 (6th Cir.1990) (citations omitted).

Although Baesler did not conclude that all state-created contract rights lack substantive due process protection, and specifically left unanswered the question whether substantive due process may protect a contract right to keep a tenured job, id. at 1355 (citing Ramsey, 844 F.2d at 1274-75, and Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 197-98, 99 S.Ct. 1062, 1063-64, 59 L.Ed.2d 248 (1979)), we are persuaded by the reasoning of Baesler that plaintiffs' statutory right to be discharged only for cause is not a fundamental interest protected by substantive due process.

Here, as in Baesler, we find persuasive Justice Powell's concurrence in Regents of University of Michigan v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 515, 88 L.Ed.2d 523 (1985):

Absent the infringement of some "fundamental" right, it would appear that the termination of public employment does not constitute a denial of substantive due process. See McMaster v. Cabinet For Human Resources, 824 F.2d 518, 523 (6th Cir.1987) (Nelson, J. concurring). Since the legal basis relied upon for plaintiffs' terminations is not clearly developed in the record, and since plaintiffs may have adequate state remedy on remand that will compensate them for any interference with their right to tenured employment, see Baesler, 910 F.2d at 1355, we conclude that plaintiffs do not have a cognizable substantive due process claim. But cf. Moore v. Warwick Pub. Sch. Dist. No. 29, 794 F.2d 322, 329 (8th Cir.1986) (recognizing a substantive due process right to be free from arbitrary and capricious state action resulting in employment termination). Insofar as the district court judgment can be read as dismissing plaintiffs' substantive due process claim, that judgment is affirmed.

V.

In addition to an award for loss of back pay and benefits, plaintiffs sought compensation for mental anguish, humiliation, and emotional distress allegedly caused by their employment terminations. Plaintiffs also requested attorney fees pursuant to 42 U.S.C. § 1988, which reads as follows:

The district court denied compensatory damages and attorney fees on the basis that plaintiffs had not prevailed on their constitutional due process claim. Plaintiffs appeal the denial of compensatory damages and attorney fees.

Because we find that the district court erred by granting judgment in favor of defendant on plaintiffs' procedural due process claim and remand this case for entry of an order requiring defendant to provide plaintiffs with the process they were unlawfully denied, the district court's basis for denying compensatory damages and attorney fees is no longer sound. Therefore, we must determine whether plaintiffs are prevailing parties entitled to attorney fees. In addition, we must determine whether plaintiffs are entitled to compensation for injuries caused by the denial of procedural due process.

Although mental and emotional distress caused by the denial of procedural due process may be compensable under section 1983, damages should not be presumed to flow from every deprivation of due process. Carey v. Piphus, 435 U.S. 247, 262-63, 98 S.Ct. 1042, 1051-52, 55 L.Ed.2d 252 (1978). Moreover, where a deprivation is justified but the procedures are deficient, the distress a person feels may be attributable to the justified deprivation rather than to deficiencies in procedure. Id. at 263, 98 S.Ct. at 1052. Consequently, a plaintiff is required "to convince the trier of fact that he actually suffered distress because of the denial of procedural due process itself." Id. However, the disposition below did not require the district court to decide the issue of damages. Further, because the presentation of evidence showing damages was delayed pending the district court's decision on the merits of plaintiffs' due process claim, the record has not been sufficiently developed to support a finding that plaintiffs' mental and emotional distress actually was caused by the denial of due process itself. Because of the posture of the litigation on this issue, we find it necessary to remand the question whether plaintiffs' alleged injuries are compensable.

Nevertheless, "[e]ven if [plaintiffs'] suspensions were justified, and even if they did not suffer any other actual injury, the fact remains that they were deprived of their right to procedural due process." Id. at 266, 98 S.Ct. at 1053. The denial of procedural due process is actionable for nominal damages without proof of actual injury. Id. Therefore, if on remand the district court determines that the state adjudicatory procedures establish that plaintiffs' discharges were justified, plaintiffs will nevertheless be entitled to recover nominal damages.

Under section 1988, prevailing parties in civil litigation brought pursuant to certain civil rights legislation may recover reasonable attorney fees. The Supreme Court recently defined the test to be applied for determining whether a civil rights plaintiff is entitled to a recovery of attorney fees:

Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-93, 109 S.Ct. 1486, 1492-93, 103 L.Ed.2d 866 (1989) (citations omitted).

We conclude that plaintiffs are entitled to an award of attorney fees under section 1988. Although plaintiffs have not yet prevailed on the merits of their substantive assertion (that they were discharged without cause in violation of state civil service employment law), they have established that they were terminated from employment without procedural due process, and the Board will now be required to permit plaintiffs the right to proceed with their statutory post-deprivation remedies. They have thus prevailed upon a claim which established a right "secured by the constitution." 42 U.S.C. § 1983. By its express terms, section 1988 authorizes an award to the prevailing party "[i]n any action ... to enforce a provision" of section 1983.

The case is remanded for a determination of the appropriate amount of attorney fees.

VI.

In summary, we AFFIRM the judgment that the Board was subject to all applicable state laws and that section 124.34 provided plaintiffs with rights and protections that need not be pursued through the grievance procedure in order to be vindicated. We REVERSE the district court's finding of a breach of contract and VACATE the judgment awarding plaintiffs back pay and benefits. We REVERSE the district court's denial of relief on plaintiffs' procedural due process claim, and REMAND plaintiffs' due process claim for entry of an order requiring the Board to comply with the section 124.34 process so that plaintiffs may receive post-termination review of their discharges. The district court's denial of relief on plaintiffs' substantive due process claim is AFFIRMED. Finally, we REMAND for further consideration consistent with this opinion the issues of compensatory damages and attorney fees.

AFFIRMED in part; REVERSED and REMANDED in part.

BOGGS, Circuit Judge, concurring in part and dissenting in part.

I agree with much of what is said in the court's opinion, but I believe that the court has made a fundamental error in interpreting Ohio Revised Code § 4117.10. That section explicitly says that when a public employer and a union enter into an agreement that "provides for final and binding arbitration of grievances," then the contracted-for grievance procedure controls rather than statutory provisions of the state Personnel Board of Review and Civil Service Commission.

The reason for such a provision is quite obvious. Special provisions for the determination of grievances have long been justified in public employment because such workers are frequently forbidden to organize and thus forbidden to use the provisions for the protection of workers that are often available through union contracts. Where such contracts are available, it is sensible that they should be used, and this statute embodies that understanding. The grievance procedure employed here is a quite conventional one, leading through various stages to final and binding arbitration. The court has, however, fastened on what occurs at step three of the process. If earlier attempts at resolution have failed, the grievance is submitted to a board composed of equal numbers of union and management representatives. It is only if this board is equally divided that the grievance will proceed to final and binding arbitration.

It is clear to me that this step does not deprive the entire process of its character as one "leading to final and binding arbitration." At each step in a grievance procedure, there is a possibility that one side or the other will give in or modify its position to the extent that a resolution can be reached. If this were not so, all of the steps before final arbitration would simply be a sham that must be played out before the ultimate decision. The fact that in this procedure one step is composed of multiple persons representing each interest should make no difference. At the earlier steps in this proceeding, and in every step of any proceeding, the contest will go forward toward final and binding arbitration only if each side sticks to its guns and makes no concessions. That is all that has happened here. Each side has agreed to put its interests in the hands of a multi-member grievance commission to which it has appointed half the members. I see no way that this process would ever have been thought, by either of the parties to the contracts, as not being one that leads to final and binding arbitration.

Controversies over the meaning of "final and binding arbitration" generally concern whether the ultimate result of the process is definitive and enforceable. See General Drivers, Warehousemen, and Helpers, Local Union No. 89 v. Riss and Co., 372 U.S. 517, 519-20, 83 S.Ct. 789, 791, 9 L.Ed.2d 918 (1963). As the Supreme Court notes there, "if the award ... is the parties' chosen instrument for the definitive settlement of grievances ... it is enforceable [as final and binding]." Id. at 519, 83 S.Ct. at 791. There is no doubt that the arbitration process in this case is the parties' chosen instrument, and is enforceable. See also Rowan v. Sober, Inc., 69 Lab.Cas. (CCH) ¶ 13,164, 1972 WL 921 (E.D.Mich.1972); 88 LRRM 2997, 76 Lab.Cas. (CCH) ¶ 10,724, 1975 WL 1033 (1975) (Keith, D.J.).

I would thus hold that the district court erred in not dismissing the suit as barred by Section 4117.10 and the failure of plaintiffs to proceed under the contract. This would render unnecessary discussion of many of the remaining claims. Assuming, however, that Ohio Revised Code § 124.34 does apply in this case, I have no quarrel with the determination of those claims.