24 F.3d 1349 (11th Cir. 1994), 93-8585, Cummings v. DeKalb County

Docket Nº:93-8585.
Citation:24 F.3d 1349
Party Name:Jack CUMMINGS, Ralph Best, Billy Rodgers, Bruce Henry and Terry M. Walters, Plaintiffs-Appellees, v. DeKALB COUNTY, James Pierce, Cliff Pruett and Richard Conley, Defendants-Appellants.
Case Date:July 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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24 F.3d 1349 (11th Cir. 1994)

Jack CUMMINGS, Ralph Best, Billy Rodgers, Bruce Henry and

Terry M. Walters, Plaintiffs-Appellees,


DeKALB COUNTY, James Pierce, Cliff Pruett and Richard

Conley, Defendants-Appellants.

No. 93-8585.

United States Court of Appeals, Eleventh Circuit

July 5, 1994

Rehearing Denied Aug. 11, 1994.

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[Copyrighted Material Omitted]

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Joan Frances Roach, Robert Harold Walling, Office of DeKalb Cty. Atty., Decatur, GA, Susan Cole Mullis, Jonathan Weintraub, Atlanta, GA, for defendants-appellants.

Ralph S. Goldberg, Atlanta, GA, for plaintiffs-appellees.

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

Before KRAVITCH and CARNES, Circuit Judges, and HAND [*], Senior District Judge.

HAND, Senior District Judge.

In this action, former employees of the DeKalb County Public Works asserted claims under 42 U.S.C. Sec. 1983 for First Amendment (free speech and association) and Fourteenth Amendment (substantive due process and equal protection) violations, as well as state law constitutional claims, arising from their termination pursuant to a reduction-in-force in which the thirty-four positions comprising the Planning & Engineering Division of the Water & Sewer Department were eliminated. These claims were asserted against DeKalb County as well as James Pierce, the former Executive Assistant to the Chief Executive Officer of DeKalb County, Cliff Pruett, the former Associate Director of the Water & Sewer Department, and Richard Conley, the Director of the DeKalb County Merit System and Personnel Administration Department. Pierce, Pruett and Conley were sued in their individual and official capacities.

The district court granted summary judgment in favor of the defendants on plaintiffs' free speech and equal protection claims and in favor of DeKalb County on plaintiffs' state law claims. The district court denied summary judgment to each of the defendants on plaintiffs' freedom of association and substantive due process claims. The district court also denied summary judgment to Pierce, Pruett and Conley on their claims for legislative and qualified immunity and plaintiffs' state law claims. It is from this order that defendants appeal. 1 We reverse the denial of summary judgment for the defendants.


Jack Cummings, Ralph Best, Billy Rodgers, Bruce Henry and Terry Walters, former employees of the DeKalb County Public Works, Water & Sewer Department, Planning & Engineering Division, were terminated in March 1990 when the DeKalb County Board of Commissioners (Board) adopted the 1990 County budget recommended by the then Chief Executive Officer of DeKalb County (CEO), Manuel J. Maloof. The budget contained a proposal to reorganize the Water & Sewer Department by eliminating the 34 positions in the Planning & Engineering Division, transferring certain functions of the Planning & Engineering Division to the Construction & Maintenance Division, and adding 12 new positions to the Construction & Maintenance Division to accommodate the new job duties and responsibilities. The total reduction-in-force therefore consisted of 22 employees. Cliff Pruett, the former Associate Director of the Water & Sewer Department and a named defendant in this action, recommended this overall reorganization of the Water & Sewer Department to Maloof, who is not a party to this suit.

The Board, at its meeting on February 27, 1990, approved the CEO's recommended budget but adopted the recommendation of its own budget review committee that the Planning & Engineering Division not be eliminated pending further study. On March 5, 1990, pursuant to Section 15(a) of the DeKalb Organizational Act, CEO Maloof vetoed the action taken by the Board on February 27, 1990, and thus abolished all Planning & Engineering Division positions by eliminating any funding in the 1990 budget for

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such positions. On March 13, 1990, the Board tried but failed to obtain the necessary two-thirds vote of the Board's total membership to override the CEO's veto. The Board did, however, extend to March 16, 1990, the effective date of termination for the employees whose positions were eliminated under the 1990 budget. The employees affected by this reduction-in-force were notified by Pruett on March 14, 1990, that their employment would be terminated effective March 16, 1990. 2 The termination notice was approved by James Pierce, a named defendant in this action, who was at that time the Executive Assistant to CEO Maloof.

The plaintiffs appealed their terminations and were granted a consolidated hearing on May 17-18, 1990, before the Personnel Review Panel, a body established by the DeKalb County Code to hear disciplinary actions and reduction-in-force appeals brought by permanent merit system employees. The Personnel Review Panel was comprised of three randomly selected county employees, none of whom were employed in the department of the appealing party. Plaintiffs were represented by counsel at this hearing, presented documentary evidence and both called and cross-examined witnesses. On May 21, 1990, the Personnel Review Panel unanimously affirmed plaintiffs' termination and made four specific findings of fact based on the testimony and evidence presented:

(1) [T]here was a decreasing need for planning, design and engineering functions. As a result, there was a shifting of emphasis which led to a reorganization within the Water & Sewer Division;

(2) Review of documents developed by the County Finance Dept. reflected that the elimination of the Planning & Engineering Section would result in greater cost control and a considerable annualized cost savings to the County;

(3) [T]he County Board of Commissioners did not appropriate funds for the continuation of the Planning and Engineering Section of the Water and Sewer Division for the year 1990;

(4) The Personnel Review Panel did not find, through any of the evidence submitted, that discrimination on the basis of age, difference of opinion, or any other non-merit factors were motivating reasons for the action taken against any of the appellants.

Exhibit E to Defendants' Motion for Summary Judgment. Plaintiffs did not appeal the panel's decision to the DeKalb County Superior Court as permitted under the DeKalb County Code. This lawsuit followed.


This appeal presents issues of the individual defendants' entitlement to qualified immunity from plaintiffs' federal claims under 42 U.S.C. Sec. 1983 and to state official immunity from plaintiffs' state law claims, both of which are immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985) (denial of a claim of qualified immunity is immediately appealable); McKinney v. DeKalb County, 997 F.2d 1440, 1442 (11th Cir.1993) (same); and Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir.1992) ("Because sovereign immunity under Georgia law is an immunity from suit ... we have jurisdiction over the district court's order denying summary judgment based on sovereign immunity under Georgia law."). 3

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Despite plaintiffs' contentions to the contrary, we also find it appropriate to exercise our discretionary pendent jurisdiction to review the district court's denial of summary judgment to DeKalb County. Andrews v. Employees' Retirement Plan of First Alabama Bancshares, Inc., 938 F.2d 1245, 1247-48 (11th Cir.1991) ("this court has jurisdiction to review a non-appealable aspect of a district court order when that order is otherwise properly before the court."); Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1509 (11th Cir.1990) (considerations of judicial economy support the exercise of pendent jurisdiction over the sovereign immunity issue); Broughton v. Courtney, 861 F.2d 639, 641 (11th Cir.1988) (issues pendent to the immunity issue may be heard in order to avoid an unnecessary trial).


The issues pertaining to Pierce's, Pruett's and Conley's entitlement to summary judgment based on qualified or official immunity are reviewed de novo. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1556 (11th Cir.1993). Defendants' entitlement to summary judgment on those claims not barred by immunity is also reviewed de novo inasmuch as we "are bound by the same standards that governed the district court on the summary judgment motion below." Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1377 (11th Cir.1994), citing, Early v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir.1990); Lowe v. Aldridge, 958 F.2d 1565, 1569 (11th Cir.1992). See also, Leeks v. Cunningham, 997 F.2d 1330, 1332 (11th Cir.1993) ("In deciding whether the district court erred, our task, as was the trial court's, is to ascertain whether the record reveals that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.").


A. Walters' claim against Conley

The only claim pursued against Richard Conley, the Merit System Director, is a claim that Conley violated Terry M. Walters' "liberty right to seek a voluntary demotion" (Appellees' Brief at 12) by impermissibly conditioning Walters' acceptance of a demotion on Walters' waiver of any right to sue the defendants in connection with his termination. Walters contends that, pursuant to Ordinances 20-123 and 20-127 of the DeKalb County Code, 4 he "sent a letter saying he would accept a demotion (R-2-13, Walters affidavit), although the letter is not in the record, but he wanted to retain all rights of appeal of any kind; either in the Department, the County, and the Georgia and Federal Courts." (Appellees' Brief at 13). Conley responded to Walters' letter by advising him that "[u]sing the statement 'will accept' is not acceptable nomenclature to have a voluntary demotion personnel action effected as such implies that...

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