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Pena v. Kindler

United States Court of Appeals, Eighth Circuit

July 20, 2017

Marcellino Pena Plaintiff- Appellant
v.
Bob Kindler; Glen Strom; Freeborn County Defendants - Appellees

          Submitted: March 7, 2017

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.

          MELLOY, Circuit Judge.

         Marcellino Pena, a former Freeborn County Assistant Jail Administrator, appeals the district court's[1] adverse grant of summary judgment on claims related to his termination. Specifically, he appeals as to a 42 U.S.C. § 1983 procedural due process claim and as to a Minnesota statutory claim arising under the Peace Officer Discipline Procedures Act, Minnesota Statutes § 626.89 ("PODPA").[2]

         Regardless of whether Pena held a constitutionally protected interest in his employment, we conclude the process surrounding his termination satisfied the Due Process Clause. Further, we conclude Pena was not entitled to the additional protections of PODPA given his actual duties as Assistant Jail Administrator and given the fact that Freeborn County (the "County") neither charged him with the duties of general law enforcement nor utilized his services for those purposes. We therefore affirm the judgment of the district court.

         I. Background

         Long before the events giving rise to the present case occurred, Pena was employed as a sheriff's deputy in general law enforcement. Since 2008, however, he was not employed as a sheriff's deputy. Rather, he was employed and worked fulltime as Assistant Jail Administrator, a job that did not require a law-enforcement license, arresting authority, or a weapon and that also did not entail general law-enforcement duties. Pena nevertheless remained licensed by a state law-enforcement board and was permitted to carry a County-issued firearm. He also remained a sworn deputy, even though he was not employed as such on either a permanent or "on-call" basis.

         As Assistant Jail Administrator, Pena's duties included overseeing various contract services such as food and health services for the prisoners. When asked in his deposition about his job duties as Assistant Jail Administrator, Pena responded, "To improve the facility, bring in revenue, cut costs. Just overall improve the facility, what I could do." According to Pena, he performed well in this position and achieved substantial cost savings for the County. Later, he suggested the County become a service provider to the United States Department of Homeland Security's Bureau of Immigration and Customs Enforcement ("ICE"). The County followed his suggestion, and he eventually became responsible for managing a contract with ICE to transport and house immigration detainees.

         While employed as Assistant Jail Administrator, Pena occasionally assisted in the transportation of ICE detainees. According to Pena, the contract between the County and ICE required licensed peace officers to handle transportation of ICE detainees. In fact, the only function Pena served that arguably required him to possess a law-enforcement license was the transport of these administrative detainees. Pena, however, admits he was not ordered or instructed to assist in ICE detainee transport. Similarly, the sheriff, Defendant Bob Kindler, denied having instructed Pena to do so.

         During his time as Assistant Jail Administrator, Pena allegedly harassed more than one female employee. In addition, Pena publicly advocated for a candidate who lost an election to Sheriff Kindler. Coworkers alleged that Pena advocated for his preferred candidate while in the workplace. The County's participation as a service provider for ICE served as a key issue of disagreement between the candidates.

         In June 2012, a supervisor formally reported Pena for harassment of a young female employee. Sheriff Kindler began an investigation. After several different witnesses reported other instances of misconduct by Pena, Sheriff Kindler suspended Pena with pay effective July 21, pending resolution of the investigation. At that time, Sheriff Kindler informed Pena of the general nature of the complaints. On July 23, Pena met with Sheriff Kindler, a County administrator, and the County's human resources director. Pena was told he was being investigated for sexual harassment and was given a general description of the allegations against him. The investigation continued, and on August 17, Pena received a letter summarizing the allegations. The letter asked Pena to give a statement on August 23, and informed him he could arrange to have legal counsel present.

         In a letter dated August 22, Pena asked for a 14-day delay to secure counsel; complained he did not have enough time after receiving the August 17 letter to secure counsel; demanded access to materials such as interviews and recordings related to the allegations; and complained he was unable to adequately prepare or defend himself. He did not invoke PODPA by name. The County denied his request.

         Pena appeared at the August 23 appointment without counsel and gave a statement, admitting many of the allegations. Investigators completed their report. In a September 4 letter, Sheriff Kindler told Pena there was sufficient evidence to justify termination, and the County Board of Commissioners (the "Board") would consider his termination at a September 18 meeting. In a follow-up letter, Sheriff Kindler informed Pena he could appear and defend himself at the meeting. ...


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