This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Beltrami County, et al.,
Beltrami County District Court
File No. C200000065
Mark W. Gehan, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1379 (for appellant)
Ann R. Goering, Ratwik, Roszak & Maloney, P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondents Beltrami County, et al.)
James R. Andreen, Erstad & Riemer, P.A., 8009 34th Avenue South, 200 Riverview Office Tower, Minneapolis, MN 55425 (for respondent Rongstad)
Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Schumacher, Judge.
Appellant disputes the summary judgment dismissing his claim against respondent Beltrami County and several individual respondents, contending that he was entitled to damages from the county under the Peace Officers Discipline Procedures Act because he was compelled to make a statement without being furnished a summary of allegations. As the trial court concluded, prior notice to appellant was adequate, and he failed to establish a claim under the Act. Further, appellant did not suffer a deprivation of his due process rights that would entitle him to damages. We affirm.
Appellant William Cross was discharged by Beltrami County from his position of deputy sheriff in January of 1998 amidst allegations of sexual harassment and conduct unbecoming an officer. Subsequently, appellant demanded an independent review by Minnesota’s Bureau of Mediation Services, pursuant to Minn. Stat. § 179A.25 (2000). The bureau determined that the sexual harassment allegations were not substantiated but concluded that the allegation that appellant acted in a manner unbecoming a peace officer with supervisory responsibilities was substantiated. The bureau decision ordered the county to reinstate appellant to a non-supervisory deputy position because, although appellant’s position as chief deputy sheriff was an at-will position, the county was estopped from denying appellant’s right to assert the just-cause protection of his former sergeant position; the bureau determined that appellant relied in good faith on the county and its agents and changed his position for the worse because of the county’s conduct.
The Beltrami County board erroneously believed that the bureau decision was not binding and sustained appellant’s termination. In 1999, this court determined that the bureau decision was binding on the county, and appellant was reinstated. See Cross v. County of Beltrami, 606 N.W.2d 732 (Minn. App. 2000). Appellant then filed suit for damages resulting from his termination, alleging violations of the Peace Officer Discipline Procedures Act and infringement of his due process rights and liberty interest in violation of 42 U.S.C. § 1983 (2000). The trial court granted summary judgment in favor of the county and individual respondents, and this appeal followed.
On an appeal from a summary judgment, we ask whether there are any genuine issues of material fact and whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We are to view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Once the moving party has made a prima facie case that entitles it to summary judgment, the burden shifts to the nonmoving party to produce specific facts that raise a genuine issue for trial. Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Minn. R. Civ. P. 56.05. The nonmoving party may not rely upon mere averments in the pleadings or unsupported allegations but must come forward with specific facts to satisfy its burden of production. Musicland Group, Inc. v. Ceridian Corp., 508 N.W.2d 524, 531 (Minn. App. 1993), review denied (Minn. Jan. 27, 1994).
Appellant argues that against the county he has a cause of action because he was not provided a “summary of the allegations” as required by the PODPA. Minn. Stat. § 626.89, subd. 5 (2000). Respondents correctly observe that the Act does not create a cause of action against individuals for violation of its terms but do not dispute the risk of liability to the county.
The PODPA requires the employer, before taking the “formal statement” of an officer under investigation, to give the officer a “summary of the allegations” stated in the written complaint that has been filed. Minn. Stat. § 626.89, subd. 5 (adding that the officer must be given a copy of the signed complaint before an administrative hearing is begun). The statute defines “formal statement” as questioning “in the course of obtaining a recorded, stenographic, or signed statement to be used as evidence in a disciplinary proceeding against the officer.” Id., subd. 1(b) (2000). Appellant was provided a Notice of Formal Statement from the county informing him that his statement would be taken the next day. The memorandum contained the following language:
In accordance with the [PODPA], you are hereby directed to * * * provide a formal statement. This formal statement is being taken in the course of investigating allegations of employee misconduct which have been made against you. * * * The allegations which have been made against you are summarized as follows:
1. Sexually harassing female employees, including physical contact and touching and creating a hostile and intimidating work environment, in violation of the County’s sexual harassment policy.
2. Making intimidating remarks and harassing a male employee of the Sheriff’s Office in violation of Department Policy—Conduct Unbecoming a Peace Officer.
Appellant argues that the memorandum language provides only “mere categories,” without the benefit of a full statement of a complaint. Although the language of the statute does not specify the degree of detail required of a summary, we are satisfied that the statement provided appellant constitutes a summary in the common sense in which that word is employed. See Minn. Stat. § 645.08 (1) (2000) (requiring that words and phrases of a statute be construed according to their common and approved usage). More importantly, appellant has not demonstrated that the summary provided him impaired his ability to make a formal statement or to respond to the charges against him. (In fact, appellant was able to prevail in a contested hearing and was re-instated). Because appellant did not present issues of material fact regarding his PODPA claim, we conclude that summary judgment was appropriate.
Appellant argues that he was denied his due process rights under the Fifth and Fourteenth Amendments to the Constitution pursuant to 42 U.S.C. § 1983.
A public employee with a protected property interest in continued employment receives due process if there is notice and an opportunity to respond to charges of misconduct before [his] termination and if posttermination administrative review procedures are available. The pretermination process need not be elaborate, especially if there are meaningful postdeprivation procedures.
Graning v. Sherburne County, 172 F.3d 611, 616 (8th Cir. 1999) (citing Cleveland Bd. of Educ. vs. Loudermill, 470 U.S. 532, 542-47, 105 S. Ct. 1487, 1493-96 (1985)).
At the time of appellant’s discharge, the county and respondents Lewis, Nelson, and Winger were not aware that appellant had relied detrimentally on Sheriff Rongstad’s assurances that the deputy sheriff rank had been changed to a protected position from an at-will position. Nonetheless, appellant was provided a pretermination hearing when he and his attorney met with the county to provide a formal statement and to discuss charges in November 1997. The question becomes whether this meeting also adequately served as a pretermination hearing under Loudermill.
Appellant argues that he was not provided with the details of the charges against him prior to the meeting and therefore was denied adequate notice under Loudermill. But important precedent establishes that an employee need not be advised of the charges pending against him or her prior to a pretermination hearing. Riggins v. Bd. of Regents, 790 F.2d 707, 711 (8th Cir. 1986). “Loudermill does not imply that there must be a delay between the ‘notice’ and the ‘opportunity to respond’ accorded to a public employee.” Coleman v. Reed, 147 F.3d 751, 754 (8th Cir. 1998) (citing Demming v. Housing & Redevelopment Auth., 66 F.3d 950, 953 (8th Cir. 1995) (rejecting plaintiff’s claim that she was “ambushed” by charges and needed time to prepare an adequate response)). Finally, appellant has not identified “any information [he] would have used in rebuttal had [he] had more notice.” Coleman, 147 F.3d at 754.
Appellant next argues that even at the pretermination meeting, he did not receive adequate notice of the specific accusations against him and therefore was denied due process under Loudermill. Having examined the transcript, we are satisfied that the specific accusations against appellant were revealed in the questioning. The record also reveals that appellant was provided ample opportunity to respond to the charges against him, the second requirement of a Loudermill hearing, an opportunity that arose whether or not appellant chose to state all his responses.
“An assessment of the adequacy of predeprivation procedures depends on the availability of meaningful postdeprivation procedures.” Winegar v. Des Moines Indep. Com. School Dist., 20 F.3d 895, 901 (8th Cir. 1994) (citing Loudermill, 470 U.S. at 546, 105 S. Ct. at 1495). The record demonstrates that appellant was given notice and an opportunity to respond to the charges against him, and after his termination he availed himself of a full adversarial evidentiary hearing and was represented at both hearings by private counsel. Therefore, under Loudermill, appellant’s due process rights were adequately protected. The trial court’s summary judgment for respondents on appellant’s claim of a property due process violation was appropriate.
2. Name-clearing Hearing
Appellant also claims a protected liberty interest in his reputation and integrity and in his position as chief deputy. Appellant alleges that respondents caused to be published, either purposely or negligently, information regarding the nature of the accusations against him. Specifically, following appellant’s dismissal the Bemidji Pioneer published a story, “Sheriff Fires Chief Deputy,” stating the following:
Citing the state’s Data Privacy Act, County officials won’t say what Cross is alleged to have done to cause the dismissal, though a highly placed source confirmed that the case involves alleged sexual improprieties.
Appellant contends that he should have been provided a name-clearing hearing at the conclusion of the county’s investigation, in addition to the hearing that was provided him pursuant to the PODPA. “A public employee has the right to a name-clearing hearing at a meaningful time if his termination is accompanied by publication of stigmatizing reasons for his termination that might impair future employment opportunities.” Schleck v. Ramsey County, 939 F.2d 638, 642 (8th Cir. 1991). But a plaintiff’s pretermination hearing under Loudermill is sufficient to protect his liberty interest as well as his property interest. Id., F.2d at 643. Thus, a separate name-clearing hearing is not required to meet due process requirements where, as with appellant, a pretermination hearing is granted followed by a full evidentiary hearing after the stigmatizing information was published.
In any event, to state a claim under section 1983 for denial of due process based on the loss of a protected liberty interest, the plaintiff must establish three things:
1) the reason for the discharge stigmatized the plaintiff;
2) the administrators made those reasons public; and
3) plaintiff denied the charges for which s/he was terminated.
Coleman, 147 F.3d at 755.
Not every comment that damages a reputation will serve to support a defamation claim. To establish a claim on the basis of a liberty interest in reputation, an employee must show “defamation by a state official, and that the defamation occurred in the course of the termination of employment.” Brekke v. City of Blackduck, 984 F. Supp. 1209, 1232 (D. Minn. 1997) (citations omitted). Appellant, in his deposition, acknowledged that he had no facts supporting a claim that respondents Winger, Nelson, or Lewis released private or confidential information. Appellant stated that he assumed it was one of either Lewis, Nelson, or Rongstad and admitted that he had spoken to no one from the newspaper. Because appellant failed to show that respondents caused the story to be published, he failed to establish a violation of a liberty interest. Merritt v. Reed, 120 F.3d 124,126 (8th Cir. 1997). See Brockell v. Norton, 688 F.2d 588, 592 n.5 (8th Cir. 1982) (publication not attributable to defendants and therefore insufficient to establish liberty interest). Because appellant failed to meet the second element necessary to establish a section 1983 claim, the trial court’s summary judgment against appellant was appropriate.
 The PODPA allows actions for damages and reads in relevant part:
a political subdivision or state agency that violates this section is liable to the officer for actual damages resulting from the violation * * * . The political subdivision or the state is deemed to have waived any immunity to a cause of action brought under this subdivision * * * .
Minn. Stat. § 626.89, subd. 16 (2000).
 “Where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others.” Maytag Co. v. Comm’r of Taxation, 218 Minn. 460, 463, 17 N.W.2d 37, 40 (1944) (citation omitted). Here, the statute clearly states that a political subdivision or state agency * * * is liable to the officer for actual damages.” Minn. Stat. § 626.89, subd. 16.