Kern v. Clark County

MEMORANDUM *** Dennis Kern (“Kern”) appeals from the district court’s grant of summary judgment in favor of Kern’s employer, Clark County (“County”), and his supervisor, Bruce Fox (“Fox”), on Kern’s 42 U.S.C. § 1983 action following his termination, restoration with demotion, and discipline for insubordinate conduct and exposing workers to hazardous chemicals. We have jurisdiction under 28 U.S.C. § 1291 , and we review the district court’s grant of summary judgment de novo. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 602 (9th Cir.2004). Kern does not dispute that he received an evidentiary hearing, a disciplinary hearing, and a “Step 1” hearing required by a collective bargaining agreement (“CBA”) before he was terminated. Kern also does not dispute that he received two post-termination hearings (“Step 2” and “Step 3” under the CBA) that resulted in his reinstatement with a demotion. Kern received notice of the hearings, a chance to respond, and an opportunity to confront the evidence. Moreover, Kern does not dispute that he received union representation. Therefore, Kern “received all the process that was due him.” Foss v. Nat'l Marine Fisheries Serv., 161 F.3d 584 , 588 (9th Cir.1998). This court has not yet decided whether “substantive due process protects the right to a particular public employment position.” Engquist v. Or. Dep’t of Agric., 478 F.3d 985 , 996-97 (9th Cir.2007). Until a specific substantive due process right is recognized or clearly established in this circuit, officials are entitled to qualified immunity from such claims alleging a violation of such a right as a matter of law. Lum v. Jensen, 876 F.2d 1385, 1387-89 (9th Cir.1989). We need not decide this issue here, however, because even if such a claim existed, Kern has produced no evidence that either Fox’s or the County’s actions were arbitrary or unreasonable. *623 Lebbos v. Judges of the Superior Court, 888 F.2d 810, 818 (9th Cir.1989). Fox is entitled to qualified immunity because no constitutional violation occurred. Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 943 (9th Cir.2004). The County prevails on the municipal liability claim because Kern did not establish that a policy or custom caused a violation of his constitutional rights. City of Canton v. Harris, 489 U.S. 378, 385-91 , 109 S.Ct. 1197 , 103 L.Ed.2d 412 (1989); Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.