Schultz v. Baumgart

• Decision Date: 02 July 1984
• Docket Number: No. 83-2260,83-2260
• Citation: 738 F.2d 231
• Parties: Milan SCHULTZ, Plaintiff-Appellant, v. Fred BAUMGART, Chief, Waukesha Fire Department, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 231

738 F.2d 231

Milan SCHULTZ, Plaintiff-Appellant, v. Fred BAUMGART, Chief, Waukesha Fire Department, et al.,

Defendants-Appellees.

No. 83-2260.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 7, 1984.

Decided July 2, 1984.

Willis B. Swartwout, III, Swartwout & Eichfield, New Berlin, Wis., for plaintiff-appellant.

Michael E. Husmann, Michael, Best & Friedrich, Milwaukee, Wis., for defendants-appellants.

Before CUDAHY and FLAUM, Circuit Judges, and BARTELS, Senior District Judge. ^*

CUDAHY, Circuit Judge.

This appeal arises from an action brought by a former Wisconsin fire fighter who claims he was discharged in violation of his due process rights. The appeal presents several issues involving the application of the due process clause and 42 U.S.C. Sec. 1983 to public employees. The district court granted summary judgment in favor of all defendants. We affirm in part, reverse in part, and remand for further proceedings.

I

Plaintiff-appellant Milan Schultz was a fire fighter in Waukesha, Wisconsin, for more than twenty years. On September 25, 1979, the Waukesha Fire Chief, defendant-appellee Fred Baumgart, placed Schultz on paid sick leave after Schultz was hospitalized with chest pains. For several months, Baumgart received a series of brief notes from Schultz's doctor saying that Schultz was unable to return to work. Then, on March 7, 1980, Baumgart sent Schultz a letter which said in full: "This letter is to inform you that effective Monday, March 10, 1980, you will be on vacation. On completion of your vacation, you will return to work, or your employment will be terminated." Schultz did not return to work. He was entitled to two months of vacation, and he continued to receive pay through May 6, 1980. Since then he has received no paychecks and has not returned to work.

Plaintiff's status after May 6, 1980, is disputed. According to plaintiff, he was fired effective May 6, 1980. According to defendant Baumgart, plaintiff remained on the department roster in a "no pay" status until some time in July, when his employment was terminated. According to Baumgart, Schultz was not fired but voluntarily resigned by failing to return to work as Baumgart demanded in his letter of March 7th. Because the case is before us on appeal from summary judgment, we shall view the disputed facts in the light most favorable to plaintiff and determine whether they are material. Therefore, we shall assume for purposes of this appeal that Schultz was fired effective May 6, 1980. ¹

The normal procedure for dismissing a Wisconsin fire fighter is set out in Wis.Stat. Sec. 62.13(5). The fire chief may file written "charges" against a subordinate with the local board of police and fire commissioners, Sec. 62.13(5)(b), and pending disposition of the charges, the chief may suspend the subordinate with pay, Sec. 62.13(5)(b) and (h). ² After the chief files charges and notifies the person charged, the board holds a hearing within the next thirty days. The hearing is public, and the person charged has the right to counsel and the power to compel witnesses to attend. Sec. 62.13(5)(d). If the board finds that the charges are sustained, it may take disciplinary action, including dismissal, Sec. 62.13(5)(e), and its actions are subject to expedited judicial review, Sec. 62.13(5)(i). In this case, Chief Baumgart has never filed charges against Schultz with the board, nor has the board held any hearing regarding the termination of Schultz's employment.

Plaintiff filed this action in the district court on September 4, 1980, against Baumgart, the City of Waukesha, the city Police and Fire Commission (including the individual members), the city attorney and the city comptroller. Plaintiff alleged that the defendants had terminated his employment in violation of his federal due process rights, and he asserted claims for damages and equitable relief under 42 U.S.C. Sec. 1983, 42 U.S.C. Sec. 1985, and directly under the fourth, fifth and fourteenth amendments of the Constitution. In an order on April 26, 1982, the district court dismissed all claims except those under 42 U.S.C. Sec. 1983, and it dismissed claims for damages against all defendants except Baumgart. The court concluded that the city and the commission could not be held liable because the complaint did not allege that any unconstitutional actions were taken pursuant to a city policy or custom. See Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). The district court also concluded that the plaintiff had not alleged the direct participation of any individual defendant except Baumgart. At the same time, because it was not clear whether Schultz resigned or was fired, the district court denied summary judgment on the damages claim against Baumgart and on the claim for reinstatement against Baumgart and the other individual defendants.

Defendants asked the district court to reconsider its decision on the remaining claims. On June 3, 1983, the district court granted summary judgment for defendants on the remaining claims and dismissed the complaint. In its order, the district court noted that there was a factual dispute as to whether plaintiff resigned voluntarily or was instead fired. However, the district court concluded that, even if the plaintiff had been fired, his due process rights had not been violated for two reasons. First, under section 62.13(5) and the collective bargaining agreement for Waukesha fire fighters, an employee may be fired without formal charges and a hearing unless the employee invokes the preliminary stages of the union grievance procedure. Second, although Baumgart never filed charges with the board, Schultz himself had notice of the chief's intended actions and could have requested a hearing before the board. The district court concluded that the availability of these procedures adequately protected plaintiff's rights and held that his failure to invoke either process barred his claims under section 1983.

On appeal, plaintiff challenges the dismissal of all of his claims brought under section 1983. We reverse the dismissal of his damages claim against defendant Baumgart and his claim for reinstatement. We affirm the dismissal of the remaining claims.

II

The general framework for federal due process claims by public employees who lose their jobs is well established, though not uncontroversial. See, e.g., Vail v. Board of Education, 706 F.2d 1435 (7th Cir.1983), affirmed by equally divided court, Board of Education v. Vail, --- U.S. ----, 104 S.Ct. 2144, 80 L.Ed.2d 377 (1984). In order to sustain a claim for violation of federal due process rights, the discharged employee must first establish that he or she had a property interest in continued employment. To determine whether such a property interest exists, we must turn to state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Board of Regents v. Roth, 408 U.S. 564, 577-78, 92 S.Ct. 2701, 2709-10, 33 L.Ed.2d 548 (1972).

Under Wisconsin law, it is clear that Schultz, as a permanent employee, had an enforceable right to be dismissed only for cause. In Busche v. Bosman, 474 F.Supp. 484 (E.D.Wis.1979), aff'd, Busche v. Burkee, 649 F.2d 509 (7th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981), the district court held (and this court assumed) that a Wisconsin police officer had a property interest in his continued employment under Wis.Stat. Sec. 62.13(5), and the same statute applies to Wisconsin fire fighters. Wisconsin court decisions involving police officers and fire fighters demonstrate that Wisconsin law gives those employees more than merely procedural protections. Cf. Bishop v. Wood, supra, 426 U.S. at 345, 96 S.Ct. at 2077 (procedural rights created no property right where police officer could be fired for any reason). Section 62.13(5) establishes an elaborate mechanism for dismissal of these public employees, and the first step involves the filing of "charges" with the local board of police and fire commissioners. The board's decisions are subject to judicial review, and its decisions must include detailed factual findings about the "wrongful acts" which justify dismissal. Edmonds v. Board of Fire & Police Commissioners, 66 Wis.2d 337, 345, 224 N.W.2d 575 (1975). Further, there must be in the board's record adequate evidence of wrongful conduct to show that the board's decision was reasonable based on the evidence. State ex rel. Smits v. City of De Pere, 104 Wis.2d 26, 31, 310 N.W.2d 607 (1981); Edmonds, supra, 66 Wis.2d at 349, 224 N.W.2d 575. See Oddsen v. Board of Fire & Police Commissioners, 108 Wis.2d 143, 321 N.W.2d 161 (1982) (dismissals not supported by evidence after exclusion of coerced confessions). ³

In light of the statute and these decisions, it should be obvious that Schultz had far more than a unilateral expectation of continued employment. He had a legitimate claim of entitlement, based on "mutually explicit understandings," to be dismissed only on charges that could be sustained by evidence. See Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); Vail v. Board of Education, supra, 706 F.2d at 1443-44 (Eschbach, J., concurring). He was certainly not subject to dismissal at the will and the pleasure of the city. Cf. Bishop v. Wood, supra, 426 U.S. at 347, 96 S.Ct. at 2079. Schultz therefore had a property interest in his job and could be dismissed only in accordance with federal due process standards. Cf. Amendola v. Schliewe, 732 F.2d 79 (7th Cir.1984) (county assessor did not have tenured employment under Wisconsin law).

After establishing the existence of a property right, the discharged employee must demonstrate that he or she was discharged without the procedural protections accorded by the due process clause. The precise scope of those protections in the context of public employment is far from clear, but...