Finally, Defendants argue that assuming that a due process violation occurred on September 9, 1976, because Bagby was afforded an opportunity to meet with Defendant Downs prior to her suspension and discuss the charges with him, due process was satisfied. However, it is clear that in this case at the time of the meeting Mr. Downs had little or no knowledge concerning the charges against Bagby. Her accusers were not present at that meeting and there is no indication that Mr. Downs had received Mr. Brubaker's written report of the September 9, 1976 meeting or any other written charges made by Ms. Bagby's co-workers. In such a situation, Ms. Bagby was not afforded an adequate opportunity to rebut the charges against her because the state official with whom she met had no firsthand knowledge relating to the charges. This was clearly not a meaningful opportunity to be heard.
Once a constitutional violation has been made out, the Court must determine what remedies, if any, are appropriate to redress the deprivation. In this case, the Court submitted four special verdict questions to the advisory jury relating to whether Defendants Downs and Brubaker acted in good faith. After less than 30 minutes of deliberation, the jury concluded that each Defendant entertained a good faith belief that he was entitled to take the actions which he took surrounding Ms. Bagby's suspension and that such a belief was reasonable under the circumstances. The Court has made similar findings of fact. As Ms. Bagby concedes, prior to this Court's holding in Bagby v. Beal, 439 F. Supp. 1257 (M.D.Pa.1977), no Court had ever held that a probationary employee had a property right in continued employment without suspension under Pennsylvania law. Therefore, neither Mr. Downs nor Mr. Brubaker knew or should have known that he was violating a property interest of Ms. Bagby's in suspending her. Contrary to Ms. Bagby's assertion, neither should they have known that they potentially violated her liberty interest by making public pursuant to Pennsylvania law the reasons for her suspension. The decisions of the Supreme Court in the past eight years, including Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976) and Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1970) can hardly be said to be a clear statement of the law relating to a public employee's liberty interest in connection with his reputation and employment. Neither party produced any evidence at the hearing, however, concerning whether Ms. Bagby enjoyed any constitutional rights which were well settled at the time of her suspension. Nevertheless, the Court has determined that both Defendants acted reasonably and in good faith and that because of their status as public officials, they are immune from damages pursuant to the Supreme Court's decisions in Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975) and Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). Therefore, the Court's decision as to relief will be limited to a determination of whether Bagby is entitled to any equitable remedies.
Bagby has requested essentially three types of relief. First, she asserts that she is entitled to her back pay for the period of suspension plus interest calculated from the date of the suspension. Second, she requests that a hearing be held in order to determine whether the charges levied against her form the basis for a proper suspension from duty. Third, she requests the Court to direct that the public record of her suspension and the reasons therefor be impounded pending the completion of administrative proceeding, and, if the proceedings terminate in her favor, be expunged. The Court will deal with these three requested forms of relief Seriatim.
First, the Court is unable to make a determination of whether Bagby is entitled to an award of back pay at this time. At the time Bagby filed this action, an award of back pay against the Pennsylvania Department of Public Welfare would have been barred by the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 669, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974), held that it is the substance of the relief sought and not whether it is termed "equitable" or "legal" that is controlling for Eleventh Amendment purposes and that any award of retroactive relief which would be paid from a state treasury is barred. In Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 41 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975), the Court of Appeals stated that Edelman should be interpreted to preclude an award of back pay against any agency of the Commonwealth of Pennsylvania, although local governmental units could not take advantage of the state's immunity. See Farr v. Chesney, 441 F. Supp. 127 (M.D.Pa.1977). However, subsequent to the hearing held in this case, the Supreme Court of Pennsylvania is said to have abrogated the Commonwealth's sovereign immunity. The Court has not seen a copy of the decision and is unaware of what effect it might have on the outcome of this case. Consequently, it will direct both parties to file a brief on this issue within 15 days of the date of this Opinion.
Bagby's second contention is that she is entitled to a hearing which comports with the due process clause. The holding of such a hearing in order to satisfy due process when a constitutional violation has occurred is clearly an appropriate remedy. See, e.g., Skehan v. Board of Trustees of Bloomsburg State College, 436 F. Supp. 657, 664 (M.D.Pa.1977). Once the Court has decided that a hearing should be held, however, it should then be determined what procedures must be followed at the hearing in order to cure the constitutional violation which occurred in this case.
Defendants contend that the Court's power to fashion relief in this case is limited to directing that a hearing be held which would comport with minimal due process requirements which the Court has found to be absent prior to Bagby's suspension in September of 1976. However, once that constitutional violation has been found to have occurred, the Court is guided by equitable principles in fashioning an appropriate decree. "Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and reconciling public and private needs." Milliken v. Bradley, 433 U.S. 267, 97 S. Ct. 2749, 2761, 53 L. Ed. 2d 745 (1974), Quoting Brown v. Board of Education, 349 U.S. 294, 300, 75 S. Ct. 753, 99 L. Ed. 1083 (1955). Under § 1983, the substantive scope of relief available is a matter relating to the equitable powers of a federal court. The Courts have generally exercised broad remedial powers in such civil rights actions. See Knecht v. Gillman, 488 F.2d 1136, 1140 (8th Cir. 1973). The Court has both the power and the duty to fashion an effective federal remedy where federal law is violated. Johnson v. Capitol City Lodge No. 74, 477 F.2d 601, 603 (4th Cir. 1973). The matter of devising an appropriate remedy for a deprivation of constitutional rights is addressed to the sound discretion of the trial judge. Adams v. Miami Police Benevolent Ass'n, 454 F.2d 1315, 1320 (5th Cir.), Cert. denied, 409 U.S. 843, 93 S. Ct. 42, 34 L. Ed. 2d 82 (1972). Therefore, the Court has the power to direct that a hearing be held which incorporates procedures not originally required by the due process clause in this case as a part of the equitable remedy imposed. Additionally, those procedures which would have afforded Ms. Bagby due process in September of 1976 may not suffice to do so today because, for example, she would no longer be able to obtain review of a pre-suspension hearing under the collective bargaining agreement since she is not a member of a bargaining unit. In fashioning such a decree, the Court in no way implicates that the procedures which it will impose in this case are necessary for pre-suspension hearings of probationary employees. Rather, because of the unusual circumstances in this case, something more than those normal procedures are required in order to redress the constitutional wrong which Ms. Bagby has suffered.
The Court has held that at least 24 hours advance notice of a pre-suspension hearing must be supplied to a probationary employee absent unusual circumstances. No other constitutional violation occurred in this case because a hearing was held, Ms. Bagby was afforded an opportunity to respond to the charge, her accusers were present, and Ms. Bagby could, if she desired, confront and cross-examine those accusers. None of those rights were rendered meaningful in this case, however, because the notice of the meeting was not given sufficiently in advance to enable Ms. Bagby to prepare a defense or to ascertain how her interests might best be served in relation to the confrontation and cross-examination of her accusers. In addition, at the time of the suspension, September 17, 1976, Ms. Bagby had an available avenue of post-suspension appeal, namely her rights under the collective bargaining agreement. This appeal is no longer open to Ms. Bagby because she is not now employed by the Commonwealth of Pennsylvania. Therefore, the hearing which the Court will order must be adequate to give Ms. Bagby not only the rights she would have enjoyed at the initial hearing but also some of the protections which would have been afforded in any post-suspension proceeding. Further, the case is in a vastly different posture than it was prior to September 9, 1976. Ms. Bagby has retained an attorney who is perhaps in a better position to defend her interests than she is. A number of documents, including a written summary of the September 9, 1976 meeting and written charges concerning abuse of patients, are available now which were not in existence at the time of the original meeting. The review of such documents will take time. Finally, there may be other written documents which the Commonwealth intends to rely upon in considering the charges against Ms. Bagby. Those documents should be made available to her and to her attorney for inspection at a time sufficiently prior to the hearing to afford Ms. Bagby a reasonable opportunity to contest the charges if she desires to do so. Finally, on September 9, 1976, due process required no more than that a hearing be held at South Mountain in front of an official who had input into the decision-making process. Mr. Brubaker and Mr. Downs, however, have both been sued in federal court by Ms. Bagby and have been subjected to cross-examination by her attorney in open court. It is possible that they now perceive themselves in an adversary relation to her. Due process also requires that an impartial decisionmaker preside at a hearing. See Mattern v. Mathews, 582 F.2d 248 (3d Cir. 1978). Therefore, someone other than Mr. Downs or Mr. Brubaker must preside at Ms. Bagby's new hearing.
Taking all these factors into account, the Court has determined that as an appropriate equitable remedy a hearing should be held which incorporates the following procedures.
(1) The hearing shall be held within four months of the date of this Order.
(2) Ms. Bagby and her counsel shall be provided with at least 10 days' written notice of the time and place of the holding of the hearing.
(3) The Defendants shall provide to Ms. Bagby and her counsel at least 15 days prior to the hearing copies of any written statements or other documentary evidence upon which they intend to rely at the hearing which are not already in the possession of Ms. Bagby or her counsel as a result of discovery engaged in by counsel prior to the trial of this case or which she has obtained by other means.
(4) The hearing examiner shall be any person employed by the Pennsylvania Department of Welfare who holds the status of personnel director or higher and who generally engages in decisions relating to whether or not to suspend or terminate probationary employees. The hearing examiner shall not be anyone who was a named defendant in this case.
(5) Ms. Bagby shall be given the opportunity to be represented by counsel at the hearing.
(6) The witnesses against Ms. Bagby shall appear at the hearing and shall be subject to cross-examination. All witnesses shall testify under oath.
(7) The hearing examiner shall render a written decision within 10 days of the date of the hearing. A copy of the decision shall be furnished to Ms. Bagby and a copy shall be filed with the Court within 7 days of the date that it is issued.
(8) The hearing may be recorded either by stenographer or non-stenographic means but need not be so recorded. Any party desiring that a transcript be made shall bear the cost of making such a transcript.
The Court will also order that no member of the Pennsylvania Civil Service Commission shall permit any person to examine the record relating to Ms. Bagby's prior suspension until the decision of the hearing examiner is rendered and will retain jurisdiction over this case to enter such further orders as may be appropriate upon application from either party following the filing with the Court of the result of the hearing.
IV. Conclusions of Law.
1. Defendants Downs and Brubaker violated Bagby's right under the due process clause of the Fourteenth Amendment by failing to provide her with adequate notice of her pre-suspension hearing.
2. Defendants Downs and Brubaker are immune from liability for damages because they acted reasonably and with a good faith belief that they were entitled so to act with regard to Ms. Bagby's suspension.
3. None of the other named Defendants violated Bagby's constitutional rights.
4. Ms. Bagby is entitled to a hearing in accordance with the procedures set forth in the opinion and order of the Court.
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