Discipline for Attitude Does Not Violate Due Process

Public Sector EmployersThe University of South Dakota employed Christopher Keating as a professor. Christina Keller was his supervisor, and their working relationship was not pleasant. Keating filed a grievance against her, and she filed a sexual harassment claim against him. The department head, Timothy Heaton, investigated the grievance, found no merit, and told Keating this. Keating responded by telling Heaton that if Keller’s harassment claim was pursued, it “would make the situation extremely serious.” Later, Keating sent an email to Heaton saying there was “no way” he could trust Heaton “with another problem.” Keating also called Keller “a lying, back-stabbing sneak.”

Keating’s employment contract was not renewed due to the insubordinate statements he made to Heaton and the derogatory assertions he made about Keller. The university found his behavior to be in violation of its civility clause, requiring workers to “treat their colleagues, staff, students and visitors with respect” and “comport themselves” cooperatively at all times, “even when expressing disagreement.”

Keating claimed the university’s refusal to renew his contract was unconstitutional. The lower court found the school’s civility clause was impermissibly vague in violation of the Due Process Clause of the Fourteenth Amendment. The court granted Keating declaratory relief on this claim. The Eighth Circuit reversed the lower court ruling on  the civility clause claim, holding that the clause “was not impermissibly vague as applied to Keating’s specific conduct,” and also found that the text of the policy “articulates a more comprehensive set of expectations that, when taken together, provides employees meaningful notice of the conduct required by the policy.” Keating v. Univ. of S.D. (8th Cir. 2014).

The court went on to define “unconstitutionally vague” as “fail[ing] to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” The court reasoned that although the language in the clause was not specific, an ordinary person could determine that certain behavior would result in disciplinary action.

This is good news for governmental employers who expect employees to meet behavior standards that can vary in different circumstances. It also points out that letting employees know, in general, the type of behavior that is acceptable is imperative.