Francis L. Ruppert (argued), Clayton, Mo., on brief, for appellant.

Karen Iverson, Asst. Atty. Gen., Jefferson City, Mo., argued; Atty. Gen. John C. Danforth (effective Dec. 27th, John D. Ashcroft, Atty. Gen.), and J. Paul Allred, Asst. Atty. Gen., Jefferson City, Mo., on brief, for appellees.

Before BRIGHT and WEBSTER, Circuit Judges, and TALBOT SMITH,* Senior District Judge.

TALBOT SMITH, Senior District Judge.

The appellant before us (hereafter "plaintiff"), discharged from his employment by the State of Missouri, asserted in the District Court that he had been deprived of liberty and property without due process under the Fifth and Fourteenth Amendments. The assertions are made because of the manner in which he was discharged from his employment.1 Upon cross-motions for summary judgment, the District Court held for the defendants. We reverse and remand.

The plaintiff was a nonprobationary employee of the State of Missouri. He had been hired in December of 1968, had served his probationary period, had received thereafter regular promotions, and had ultimately become a Workshop Director at the St. Louis State Hospital Complex. His performance of his duties had been rated consistently satisfactory until May 1, 1975, the date of his eleventh and final service report. In this report, his performance was rated as unsatisfactory. On June 17, he was given a seven page letter from Dr. Gannon, the Superintendent of the St. Louis State Hospital Complex, informing him that he was suspended without pay from such date through June 24, "at which time you are dismissed from employment." The suspension and discharge letter charged plaintiff with discrimination between employees in applying work standards, of harshness to some and leniency to others, of having abused and threatened subordinates, of falsifying his own work records on 37 specific occasions, of failure to comply with Department of Mental Health Operating Regulations, of failure to meet specified deadlines in submitting reports, and, finally, of incompetence in the management of the workshop under his direct charge, all in specific detail.

The letter also told plaintiff that "(y)ou are advised that you may appeal your dismissal to the Missouri Advisory Board providing such appeal is made in writing within 30 days of the effective date of dismissal." No such appeal was perfected, with the result that the Board, set up by the State to entertain discharge appeals as part of a comprehensive administrative process, has never considered the case.2 The Board has authority, we note, in a proper case, to order reinstatement of an employee with back pay.3 This action was brought directly in the District Court; plaintiff praying for a mandatory injunction ordering his reinstatement. The District Court, as we have noted, upon cross-motions for summary judgment, entered judgment for the defendants. The plaintiff prosecutes this appeal. He denies the specific charges made4 and in view of the fact that summary judgment was granted for the defendants, we must accept his version of the facts, Fed.R.Civ.P. 56(c); Arnett v. Kennedy, 416 U.S. 134, 139-140, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974) (plurality opinion).

The plaintiff presents for review two issues. The first is that he has been deprived of liberty and property without due process, relying on the Fourteenth Amendment to the Constitution of the United States.5

There is no doubt that procedural due process, whatever its dimensions, is due an employee who demonstrates either a liberty or a property interest in the constitutional sense.6 Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 599, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); Buhr v. Buffalo Public School District No. 38, 509 F.2d 1196, 1199 (8th Cir. 1974). Plaintiff claims both interests. We will first examine the asserted property interest.

With respect to property interest, it is plaintiff's claim that he holds " * * * contractual rights to continuing State employment under formal tenure programs7 as well as * * * having a cognizable property interest in continued employment on the basis of a de facto tenure program fostered by the State and relied upon * * *." Such property interest, if present, being the creation of the state and not the federal government, Bishop v. Wood, 426 U.S. 341, 343-345, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976); Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S. Ct. 2701, we look to the statutes of the the state for its creation and extent. The applicable statutes relative to the issues before us will be found in the margin.8

The plaintiff, as a "regular employee"9 of the State was subject to dismissal only "for cause."10 If dismissed he is entitled to a post-termination11 evidentiary hearing before the Missouri Personnel Advisory Board.12 After the hearing, the Board will either approve or disapprove the employee's dismissal.13 If the Board disapproves the dismissal it shall "(o)rder the reinstatement of the employee to his former position and the payment to the employee of part or all of such salary as has been lost by reason of such dismissal."14

We are cited to no controlling opinion of the Supreme Court of Missouri ruling upon the herein-cited statutes with respect to the nature of the property rights, if any, created thereby and our own independent research discloses none.15 We find no ambiguity in the Missouri statutes.16 A "regular employee" may be dismissed only for cause shown.17 We are of the opinion that under the applicable statutes and regulations, cited supra, the plaintiff had a property interest entitling him to procedural due process.

At this point the question presented is what process is "due." See Greenhill v. Bailey, 519 F.2d 5, 9 (8th Cir. 1975). No fixed "rules" are applicable. Due process has a flexibility determined by time, place, and circumstances. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).

We are not without guidance in this area, both in this circuit and in the Supreme Court. As we held in Wilderman v. Nelson, 467 F.2d 1173, 1175 (8th Cir. 1972), "The Fourteenth Amendment * * * compels a pretermination hearing for state employees holding contractual rights to continuing state employment under formal tenure programs * * *." As for the scope and content of the pretermination hearing, the Supreme Court, while noting that "due process tolerates variances in the form of a hearing 'appropriate to the nature of the case,' " states that "the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect."18 "There are," the Court concedes, " 'extraordinary situations' that justify postponing notice and opportunity for a hearing,"19 but the facts in the case before us disclose nothing of an extraordinary situation. Plaintiff's performance of his duties had been under investigation for a substantial period of time and no emergency is before us.

The case of Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974) has been argued to us at length. Although unable to agree on an opinion, it was the holding of the Court that the trial-type evidentiary hearing demanded by the nonprobationary federal employee, there before the Court, was not required under the Fifth Amendment. But the Lloyd-La Follette Act20 under consideration in Arnett, unlike the Missouri statute, did provide for an opportunity to file a written answer to the charges made. The Arnett Court, however, did not purport to mandate any procedure as essential to the meeting of minimal pretermination due process requirements. What it passed on were existing rules, not the formulation of new ones. The decision thus did not indicate what the result would have been had there been no pretermination safeguards whatever.21 That is our problem.

The several opinions of the Court in Arnett have been paralleled in severality by the various circuits in determining the parameters of pretermination due process, all relying on Arnett. But since Arnett did not purport to decide this issue, we think that dissection of these cases would be fruitless. Each court relies upon its own interpretation of Arnett. Guidance, however, may be found in a post-Arnett case, Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976), wherein it was held that:

(I)dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.22

We are thus remitted to the balancing process. The interests of the government in responsible and efficient operation of its processes are clear. The retention of an inefficient or insubordinate employee is harmful not only to the expeditious administration of policy, but is also detrimental to employee morale. On the other hand, we are dealing with the employee's livelihood. Elimination from the payroll may well inflict extreme hardship, possibly, as here, forcing the former employee to reliance upon public aid.23 Moreover, beyond that, is the factor of human fallibility. Mistake and misinformation are not unknown. Decision makers in discharge cases, as pointed out in Goss v. Lopez, 419 U.S. 565, 580, 95 S. Ct. 729, 739, 42 L. Ed. 2d 725 (1975),

frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost * * *.

We read the disparate opinions in Arnett to agree substantially that the possibility of unjustifiable discharge is to be minimized in any dismissal process. But at no stage in Missouri's pretermination procedure is there an opportunity for the employee to respond to the charges made to the official responsible for making the termination decision. Here we find a significant omission from the procedures passed upon in Arnett where the Court rejected the need for an evidentiary trial-type hearing. The regulations ruled upon in Arnett provided that "the employee shall have an opportunity to appear before the official vested with authority to make the removal decision in order to answer the charges made against him."24

The need at this stage of proposed dismissal is to minimize the employee's risk of wrongful termination, not a decision on the merits. That will come later, before the Advisory Board, with the full panoply of adversary confrontation. It is squarely at this point that plaintiff makes a formidable assertion, namely that he has a right to have his say before he is fired, particularly since in this situation the "issues of credibility and veracity * * * play a significant role"25 in the decision reached.

We thus balance the chance of error, mistake, or bias, resulting in the disastrous termination of employment, against the expense, the delay, and the administrative burden of trial with counsel, testimonial presentations, and the right of cross-examination. It is not without significance in this regard that the Court in Mathews v. Eldridge, supra, 424 U.S. at 333-34, 96 S. Ct. at 902, noted that "(i)n only one case, Goldberg v. Kelly, 397 U.S. 254, at 266-271 (90 S. Ct. 1011, 1019-1022, 25 L. Ed. 2d 287) (1970), has the Court held that a hearing closely approximating a judicial trial is necessary," and continuing, "More recently, in Arnett v. Kennedy, supra, we sustained the validity of procedures by which a federal employee could be dismissed for cause. They included notice of the action sought, a copy of the charge, reasonable time for filing a written response, and an opportunity for an oral appearance. Following dismissal, an evidentiary hearing was provided." (Emphasis ours.)

The result of the balancing process is our holding that procedural due process requires that the employee before us must be given an opportunity, prior to suspension and discharge, to make a rebuttal to the charges made against him.26 This, as he argues in his brief, is the minimum which should have been afforded him. Beyond that we do not go. Upon the facts presented we see no substantial or persuasive reason to depart from "the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action."27 We so hold.28

Under the view we have taken of the case we do not reach plaintiff's arguments with respect to the asserted deprivation of "liberty" protected by the Fourteenth Amendment.

The remaining problem concerns the matter of remedy. The case is remanded to the District Court for further proceedings. Kennedy on this record did not receive a due process hearing before the administrative officer who made the termination decision. The District Court's order should be tailored to rectifying this defect in procedure. Cf. Churchwell v. United States, 545 F.2d 59, No. 76-1674 (8th Cir., 1976). The District Court is directed to fashion an appropriate order which will provide for appellant's reinstatement to his former position, or, if that is unavailable, to a similar or comparable position unless within 30 days of the entry of such order the State of Missouri acting through appellees affords appellant Kennedy an appropriate due process hearing concerning his dismissal before his administrative superior, followed by a right of administrative appeal (see note 8) by Kennedy should he feel aggrieved by the final action of his administrative superior.29

Reversed and remanded for further proceedings consistent herewith.