Cotton v. Jackson, No. 99-10096

• Decision Date: 07 July 2000
• Docket Number: No. 99-10096
• Citation: 216 F.3d 1328
• Parties: (11th Cir. 2000) Richard H. COTTON, Plaintiff-Appellee, v. Edward D. JACKSON, Jr., in his Personal and in his Official Capacity as President of South Georgia College, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1328

216 F.3d 1328 (11th Cir. 2000)

Richard H. COTTON, Plaintiff-Appellee, v. Edward D. JACKSON, Jr., in his Personal and in his Official Capacity as President of South Georgia College, Defendant-Appellant.

No. 99-10096.

United States Court of Appeals Eleventh Circuit.

July 7, 2000.

Appeal from the United States District Court for the Southern District of Georgia.

(No. 98-00001-CV-5), William T. Moore, Jr., Judge.

Before EDMONDSON and MARCUS, Circuit Judges, and STROM^*, District Judge.

PER CURIAM:

Defendant, Dr. Edward D. Jackson, Jr., appeals from the district court's denial of his motion for summary judgment on the basis of qualified immunity on Plaintiff's procedural due process claim against Jackson. Because we conclude that Plaintiff has failed to state a procedural due process claim, we reverse.

BACKGROUND

Plaintiff, Dr. Richard Cotton, was employed as the Director of Continuing Education for South Georgia College (SGC). In June 1997, two employees of SGC filed complaints with the EEOC and the Georgia Commission on Equal Opportunity charging that their supervisor, Cotton, had sexually harassed them. The President of SGC, Defendant Jackson, received the charges on 9 June 1997. The next day, Defendant Jackson notified Plaintiff of the charges, suspended him with pay, and told him to stay off campus until the matter was resolved. Plaintiff was told that he could file a response to the charges.

The SGC Director of Personnel/Affirmative Action Officer, Paula Dell-Beasley, conducted an investigation into the complaints. Dell-Beasley also received sworn responses from Cotton about the claims. Cotton alleges that he also told Dell- Beasley he wished to submit additional affidavits. But, before receiving the additional affidavits from Cotton, Dell-Beasley submitted her findings to President Jackson. Dell-Beasley reported that Cotton had violated the sexual harassment policies of SGC and of the Board of Regents. Also, she said that Cotton had created a hostile work environment.

On 16 July 1997, President Jackson sent a letter to Cotton informing him that his employment would be terminated effective 31 July 1997 and that the terms of his suspension with pay would continue through that date. Upon receiving the termination letter, Cotton requested a hearing. President Jackson told Cotton that he would hold no hearing, but that Cotton could request that the Board of Regents exercise their discretion to review the decision. Cotton requested a discretionary review from the Board, which was denied. Cotton pursued no other remedies before instituting this case in federal court.

In addition, in response to the Equal Employment Opportunity Commission's and the Georgia Commission on Equal Opportunity's requests for the College's position on the sexual harassment complaints, President Jackson submitted, on 17 July 1997, four letters stating that "Dr. Cotton's actions in creating a hostile work environment are his own personal actions in direct violation of College policy and beyond the boundaries of his job responsibilities. South Georgia does not condone Dr. Cotton's behavior." These documents were also allegedly placed in Dr. Cotton's personnel file.

Cotton sued Jackson and members of the Board of Regents of the University System of Georgia, in their individual and official capacities. His complaint asserted claims under state and federal law. Both parties moved for summary judgment, and the district court granted Defendants' motion on all claims except one: Plaintiff's section 1983 procedural due process claim that Defendants had deprived him of his liberty interest in his reputation without the opportunity for a name-clearing hearing. This interlocutory appeal concerns only the denial of summary judgment on qualified immunity grounds for Defendant Jackson.

DISCUSSION

We review the denial of summary judgment on qualified immunity grounds de novo and conduct a two-step inquiry. First, we ask whether the violation of a constitutional or statutory right was even alleged. Second, if a violation were alleged, we ask whether that right was clearly established at the time of the alleged violation. See Hartley v. Parnell, 193 F.3d 1263, 1268 (11th Cir.1999) (quoting Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 1697, 143 L.Ed.2d 818 (1999)).

Plaintiff claims that Defendant Jackson effectively ruined his reputation by labeling him as a sexual harasser and by terminating his employment without giving him an opportunity to be heard. We have said that-although damage to reputation, standing alone, does not provide a basis for an action under 42 U.S.C. § 1983-when reputational damage is sustained in connection with a termination of employment, it may give rise to a procedural due process claim for deprivation of liberty which is actionable under section 1983. See Campbell v. Pierce County, Ga., 741 F.2d 1342, 1344 (11th Cir.1984) (citations omitted). To recover, a plaintiff must satisfy a six-factor test and show that "(1) a false statement, (2) of a stigmatizing nature, (3) attending a governmental employee's discharge, (4)[was] made public, (5) by the governmental employer, (6) without a meaningful opportunity for an employee name clearing hearing." Warren v. Crawford, 927 F.2d 559, 565 (11th Cir.1991) (quoting Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1042-43 (11th Cir.1989)). The hearing can be held either before or after the termination or publication. See Harrison v. Wille, 132 F.3d 679, 683 n. 9 (11th Cir.1998).

In this case, we conclude that because adequate state remedies were available to provide Plaintiff with the opportunity for a name clearing hearing, he has failed to state a procedural due process claim. In McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir.1994)(en banc), we said that "only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise."¹ It is the state's failure to provide adequate procedures to remedy the otherwise procedurally flawed deprivation of a protected interest that gives rise to a federal procedural due process claim. See id.; see also Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir.1999); Harris v. Board of Educ., 105 F.3d 591, 596 (11th Cir.1997). This rule (that a section 1983 claim is not stated unless inadequate state procedures exist to remedy an alleged procedural deprivation) recognizes that the state must have the opportunity to "remedy the procedural failings of its subdivisions and agencies in the appropriate fora-agencies, review boards, and state courts" before being subjected to a claim alleging a procedural due process violation. See McKinney, 20 F.3d at 1560; see also Horton v. Board of County Comm'rs, 202 F.3d 1297, 1300 (11th Cir.2000).²

Assuming a plaintiff has shown a deprivation of some right protected by the due process clause, we-when determining if a plaintiff has stated a valid procedural due process claim-look to whether the available state procedures were adequate to correct the alleged procedural deficiencies. See McKinney, 20 F.3d at 1563; see also Bell v. City of Demopolis, Alabama, 86 F.3d 191, 192 (11th Cir.1996); Narey v. Dean, 32 F.3d 1521, 1527-28 (11th Cir.1994). If adequate state remedies were available but the plaintiff failed to take advantage of them, the plaintiff cannot rely on that failure to claim that the state deprived him of procedural due process. See McKinney, 20 F.3d at 1565 ("The fact that [McKinney] failed to avail himself of the full procedures provided by state law ... does not constitute a sign of their inadequacy."); Bell, 86 F.3d at 192; Narey, 32 F.3d at 1528. And, to be adequate, the state procedure need not provide all the relief available under section 1983. See McKinney, 20 F.3d at 1564. Instead, the state procedure must be able to correct whatever deficiencies exist and to provide plaintiff with whatever process is due.

As applied to this case, our inquiry concerns whether adequate procedures were available to Plaintiff to protect his right not to be deprived of his liberty interest in his reputation by state action without the opportunity for a name-clearing hearing. The parties dispute whether, under Georgia law, adequate remedies were available. We think that there were.

Defendant initially contends that certiorari to the state courts was available to Plaintiff and that this process was an adequate state remedy. We agree with Defendant that certiorari is generally an adequate state remedy. See Narey, 32 F.3d at 1527 (review by Georgia courts of state agency's employment decisions is an adequate remedy); see also Bell, 86 F.3d at 192 (certiorari is adequate remedy under Alabama law); McKinney, 20 F.3d at 1563 (same under Florida law). But we disagree with Defendant that this remedy was available to Plaintiff.

Under Georgia law, certiorari only lies to correct the errors committed "by any inferior judicatory or any person exercising judicial powers." O.C.G.A. § 5-4- 1(a). To determine if certiorari lies we must decide whether Defendant Jackson's or the Board's acts were judicial or quasi-judicial or whether they were administrative or legislative. See Mack II v. City of Atlanta, 227 Ga.App. 305, 489 S.E.2d 357, 359 (1997).

The basic distinction, under Georgia law, between an administrative and a judicial act by officers other than judges is that:

[A] quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by the action taken.... [T]he test is whether the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.

Id. at 359 (quoting South View Cemetery Ass'n v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945) (citations omitted))....