Fired Columbus cop loses federal appeal in wrongful termination suit

Paul Caraway files request for hearing before the Police Commission to be reinstated, then retire
By: 
MIkaela Koski
Thursday, May 16, 2019

A Columbus police officer who was fired in 2015 has lost a federal appeal of his wrongful termination lawsuit against the city.

The Ninth Circuit Court of Appeals recently upheld the decision of Federal District Judge Timothy Cavan to grant summary judgement in favor of the City of Columbus in a lawsuit initiated by former Columbus police officer Paul Caraway following his termination from the force stemming from sexual assault allegations.

The denial of Caraway’s appeal effectively puts an end to the years-long lawsuit.

At issue in the case was whether or not Caraway received proper due process following his termination in November 2015.

In the Ninth Circuit’s opinion, the justices note that to meet the requirement of proper due process, there are certain steps the state must take before and after termination to allow an employee the opportunity to receive an explanation of the evidence against him or her and to respond to the allegations and refute any “stigmatizing charges.”

“We conclude that Caraway’s statutory right to a post-termination hearing before the Columbus Police Commission – where he could have subpoenaed witnesses and testified publicly – affords adequate post-termination process,” the justices wrote in the opinion.

The court document goes on to explain, “The process provided Caraway with an opportunity to challenge his discharge and to clear his name. Because Caraway has not exercised his statutorily guaranteed post-termination procedure, he cannot now claim a violation of his due process rights, particularly because there is no statute of limitations on his right to seek review with the Police Commission.”

As for Caraway’s claim that the city wrongfully discharged him, the court found that the mayor’s absence from a pre-termination interview with the police chief and Caraway “did not violate an express provision of any of the Town of Columbus’s written personnel policies.”

In order for Caraway’s discharge to be wrongful, his employer would have had to have violated “the express provisions of its own written personnel policy,” according to Montana Code.

Caraway accused the city of committing additional policy violations, but the Ninth Circuit found that “none are ‘directly linked’ with Caraway’s termination for purposes of the WDEA (Montana’s Wrongful Discharge from Employment Act).”

STILL FIGHTING

Caraway has submitted a Petition for Panel Rehearing and/or Reconsideration with the Ninth Circuit, asking the court to “reconsider its decision as it pertains to the summary dismissal of Caraway’s wrongful discharge claim, and thereby reverse the district court on that issue.”

The specific issue in question is whether the city violated its written personnel manual when going through the pre-termination suspension process.

Tuesday, Caraway’s lawyer Michael San Souci, out of Bozeman, issued a press release to the News and the Billings Gazette detailing a request made on behalf of Caraway for a public hearing in front of the Columbus Police Commission.

“Most importantly, this proceeding will afford Caraway an opportunity and forum, in the face of those serious accusations leveled against him, to clear his name with members of the public concerning his version of issues and events which, unfortunately, have been overlooked or otherwise unreported – as well as challenging the validity of the disciplinary action, itself,” San Souci explains in the release.

In the letter sent to the police commission, as well as to the city, the mayor, and the city’s attorneys last Friday, a formal request for a hearing in front of the commission was lodged.

It is requested that the police commission schedule an evidentiary hearing within the next 60 days, “and, in order to sufficiently address the reputational harm sustained by (Caraway), that the hearing, itself, be adequately publicized to alert members of the public who have read or heard the challenged accusations so that (Caraway) can endeavor to publicly refute the same.”

In addition to the evidentiary hearing, San Souci requests that the commission overrule the termination decision and officially reinstate Caraway into the sergeant position he held prior to the July 2015 accusations. This would come with the understanding that Caraway would then voluntarily resign that position.

Caraway is also seeking an award of “an appropriate amount” of back pay.

THE LAWSUIT

The suit, filed by Caraway in September 2016 against the city, mayor, and police chief, alleged that Caraway was not given the opportunity to participate in a formal hearing following his termination during which he could have contested the actions taken against him and cleared his name.

In being denied this hearing, Caraway argued that his procedural due process rights were intentionally infringed upon and he suffered a loss in employment, wages, and harm to his professional and personal reputation, among other things.

In March 2018, Judge Cavan ruled in favor of the City of Columbus, the mayor, and the police chief. Cavan found that the city adequately provided Caraway with written notice of the allegations and evidence against him before his termination. Following Caraway’s termination, Cavan determined there was an immediately accessible police commission hearing process available to Caraway in which he chose not to participate.

The judge’s order also granted qualified immunity to the mayor and police chief, protecting them from personal civil liability because they were acting within the capacity of their official position. Cavan also determined the city did not violate its written personnel policy.

THE TERMINATION

In July 2015, Caraway was accused of sexual harassment and assault by a female dispatcher.

Caraway was put on administrative leave, and at the request of the police chief, a three-month long investigation by the Montana Department of Justice Division of Criminal Investigation (DCI) immediately followed the accusation.

The DCI investigation found that inappropriate actions may have taken place between the dispatcher and Caraway. However, no charges were filed due to credibility issues surrounding both the dispatcher and Caraway.

The city conducted its own, independent investigation following the completion of the DCI investigation, and the results of the city’s investigation were the grounds of Caraway’s termination in the fall of 2015.

In the original federal case, Judge Cavan found that the city adequately provided Caraway with written notice of the allegations and evidence against him before his termination. Following Caraway’s termination, Cavan determined there was an immediately accessible police commission hearing process available to Caraway in which he chose not to participate.

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