Ross v. Clayton County, Ga.

• Decision Date: 26 April 1999
• Docket Number: No. 98-8763,98-8763
• Citation: 173 F.3d 1305
• Parties: 14 IER Cases 1815, 12 Fla. L. Weekly Fed. C 767 Gary A. ROSS, Plaintiff-Appellant-Cross-Appellee, v. CLAYTON COUNTY, GEORGIA, Department of Corrections, Marshall E. Camp, Warden, et al., Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1305

173 F.3d 1305

14 IER Cases 1815, 12 Fla. L. Weekly Fed. C 767

Gary A. ROSS, Plaintiff-Appellant-Cross-Appellee, v. CLAYTON COUNTY, GEORGIA, Department of Corrections, Marshall

E. Camp, Warden, et al.,

Defendants-Appellees-Cross-Appellants.

No. 98-8763.

United States Court of Appeals, Eleventh Circuit.

April 26, 1999.

Ralph Goldberg, Decatur, GA, for Plaintiff-Appellant-Cross-Appellee.

Don R. Foster, Amy C. Nerenberg, Foster & Foster, PC, Jonesboro, GA, for Defendants-Appellees-Cross-Appellants.

Appeals from the United States District Court for the Northern District of Georgia.

Before ANDERSON and BLACK, Circuit Judges, and STAFFORD ^*, Senior District Judge.

ANDERSON, Circuit Judge:

Plaintiff Gary Ross, a correctional officer with Clayton County, appeals the district court's grant of summary judgment for Clayton County and the grant of summary judgment for the individual defendants in his civil rights action under 42 U.S.C. § 1983 regarding his demotion from the rank of sergeant. Ross makes two constitutional claims: (i) that the demotion violated his procedural due process rights; and (ii) that the demotion violated his First Amendment right of free association because it penalized him for living with an active probationer who happened to be his brother. The district court granted summary judgment to the individual defendants on the basis of qualified immunity, and to Clayton County because none of Ross's constitutional rights were violated. For the reasons that follow, we reject Ross's assertions of error and affirm the district court.

FACTS

In February 1992, Ross was hired by Clayton County as a correctional officer on a 12-month probationary, also known as "working test," basis. In October 1992, Ross's brother Andre moved into his apartment. Andre Ross was on probation for failure to pay child support. A Georgia Department of Corrections regulation, Ga. Comp. R. & Regs. r. 125-2-1-.07(d), ¹ prohibits correctional officers from associating, corresponding, or doing business with active probationers unless they first receive special permission. On December 1, 1992, Andre was accused of abducting a woman and raping her at the apartment he shared with Ross. The police responded to the victim's 911 call by visiting the apartment and allegedly found Ross to be confrontational and belligerent in his interactions with them. Through this incident, Ross's association with Andre, previously unknown to his employer, came to light. ² On December 3 (his first day at work following the December 1 incident), Ross was summoned to meet with Warden Camp and other supervisors. They claim that he was allowed to relate his side of the story at that time. After the meeting, Ross was demoted to a lower-ranking position, to wit, from his previous position of "Sergeant" to "Correctional Officer II" with an approximate loss of $3000 per year in salary. Written notice of the demotion explaining that it was for "conduct unbecoming an officer" was transmitted to Ross on December 4. Supplemental notice citing the Georgia Department of Corrections regulation regarding association with probationers and explaining the reasons for Ross's demotion in further detail was given on December 15, 1992. In February 1993, Ross appealed the demotion to the Clayton County Civil Service Board ("Board"). Although the controlling personnel regulation did not give probationary employees such as Ross a right to appeal such decisions, the Board apparently gave Ross an appeal gratuitously. The Board affirmed Warden Camp's decision to demote Ross.

Ross filed this action on October 15, 1993. The district court initially granted summary judgment on Ross's procedural due process claim and First Amendment claim in 1995. However, Ross appealed to this court and we remanded in an unpublished opinion on September 9, 1997, in order for further analysis to be conducted by the district court on certain issues. On remand, the district court again granted summary judgment for the defendants. It is this most recent summary judgment order that is now before this court. In that order, the district court held that the individual defendants were entitled to qualified immunity on all claims. As for the merits (which had to be reached because Clayton County is a defendant), the court held that Ross had a property interest in his rank, but that he received ample pre-deprivation and post-deprivation process. The district court also held that the Georgia Department of Corrections rule forbidding correctional officers from living with active probationers did not violate the First Amendment.

DISCUSSION

We review the district court's grant of summary judgment de novo, with all facts and reasonable inferences therefrom reviewed in the light most favorable to the nonmoving party, i.e., Ross. Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir.1995). Summary judgment was due to be granted only if the forecast of evidence before the district court showed that there is no genuine issue as to any material fact and that the moving parties, i.e., the defendants, were entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We address the procedural due process and First Amendment issues seriatim.

A. Procedural Due Process

There are two questions in the analysis of a procedural due process claim. Did the plaintiff have a property interest of which he was deprived by state action? If so, did the plaintiff receive sufficient process regarding that deprivation? Under this framework, the first step is to determine whether Ross had a property interest in his rank as a sergeant with Clayton County. A public employee has a property interest in employment if "existing rules or understandings that stem from an independent source such as state law create a legitimate claim of entitlement." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577-78, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). This determination requires examination of relevant state law. Bishop v. Wood, 426 U.S. 341, 344-45, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). Generally, a public employee has a property interest in continued employment if state law or local ordinance in any way "limits the power of the appointing body to dismiss an employee." Barnett v. Housing Auth. of City of Atlanta, 707 F.2d 1571, 1577 (11th Cir.1983), overruled on other grounds by McKinney v. Pate, 20 F.3d 1550, 1558 (11th Cir.1994) (en banc), cert. denied, 513 U.S. 1110, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). ³

Ross was not discharged, only demoted. However, we have held that an employee may have a property interest in his rank in addition to a property interest in continued employment itself. See Winkler v. County of DeKalb, 648 F.2d 411, 414 (5th Cir. Unit B 1981) (finding a protectable interest in rank where state law or regulations "establish[ ] the reasonable expectation that an employee will not be demoted to a position of vastly diminished responsibilities without cause"); ⁴ see also Hennigh v. City of Shawnee, 155 F.3d 1249, 1254 (10th Cir.1998) (finding property interest in rank Ross was only a probationary (also known as "working test") employee. Typically, probationary employees are thought to lack property interests in their employment because they are "at will" employees without a legitimate claim of entitlement to continued employment. See, e.g., Burnley v. Thompson, 524 F.2d 1233, 1240 (5th Cir.1975); Betts v. City of Edgewater, 646 F.Supp. 1427, 1436 (M.D.Fla.1986). However, we cannot rely reflexively on the label "probationary" without looking behind that label to the controlling principles of state law and the substance of the status. Occasionally, employees who are classified as "probationary" may nevertheless enjoy a property interest in their employment under state law. See, e.g., Stapp v. Avoyelles Parish Sch. Bd., 545 F.2d 527, 532 (5th Cir.1977) (high school principal who was hired on a three-year probationary basis, but received letter from superintendent indicating that his work was good and his contract would be renewed on a permanent basis at the expiration of the three-year probationary term, enjoyed property interest in continued employment despite probationary status). Thus, we turn to an examination of the specific regulations of Clayton County pertaining to Ross's employment.

where "the statute or regulation places substantive restrictions on the discretion to demote an employee, such as providing that discipline may only be imposed for cause"); Williams v. Kentucky, 24 F.3d 1526, 1537-38 (6th Cir.) (same), cert. denied, 513 U.S. 947, 115 S.Ct. 358, 130 L.Ed.2d 312 (1994). Thus, although the majority of public employment procedural due process cases deal with situations where the employee was discharged, we proceed with our analysis with the understanding that a property interest in rank is at least theoretically possible and a demotion could trigger procedural due process obligations even though the employee continues to work for the employer.

The following three Clayton County Civil Service Rules are relevant. First, Clayton County Civil Service Rule 9.102 provides that a probationary employee may be terminated without cause and without any right to appeal such termination. Second, Rule 8.301 provides that any employee (no distinction is made between permanent and probationary employees) may be demoted only for cause. ⁵ Third, the second sentence of Clayton County Civil Service Rule 8.303 provides that only permanent, not probationary employees, have the right to appeal a demotion. ⁶ These regulations set up a system where (i) probationary employees can be fired anytime with or without cause, and cannot appeal a termination; but (ii) probationary employees can be demoted only with cause; but (iii) probationary employees cannot appeal a demotion.

Under Barnett, the question is whether these regulations limit the power of the appointing body to demote a probationary employee. Ba...