Tubbesing v. Arnold

• Decision Date: 22 August 1984
• Docket Number: No. 83-2125,83-2125
• Parties: Eileen TUBBESING, Respondent, v. John Fox ARNOLD, et al., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 401

742 F.2d 401

Eileen TUBBESING, Respondent, v. John Fox ARNOLD, et al., Appellants.

No. 83-2125.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 12, 1984.

Decided Aug. 22, 1984.

Curtis & Crossen, Kenneth M. Romines, Clayton, Mo., for appellants.

Czech & Hoffman, Clayton, Mo., for respondent.

Before ROSS, JOHN R. GIBSON and BOWMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Eileen Tubbesing brought this action under 42 U.S.C. Sec. 1983 (1982) against the members of the Board of Election Commissioners of St. Louis County, Missouri, alleging that she had a constitutionally protected property interest in her employment with the Board. Tubbesing claimed that she was deprived of this property interest without due process when the Board terminated her. She sought damages of $250,000, attorneys' fees and costs, and reinstatement to her former position. Alleging that the conduct of the Board members was willful and malicious, she also sought punitive damages in the amount of $500,000. The Board members, John Fox Arnold, Al Bauer, Catherine Rea and Ann R. Ruwitch, filed a motion for summary judgment based on qualified immunity. They appeal from the district court's denial of summary judgment under the collateral order doctrine. 98 F.R.D. 555. We reverse and order entry of summary judgment in favor of the Board members on Tubbesing's claims for money damages.

Tubbesing was the Democratic Director of Elections with the St. Louis County

Board of Election Commissioners. ¹ She was terminated by a three-to-one vote of the Board on September 1, 1981. The Board held an executive meeting on Friday, August 28, 1981. At that meeting some of the problems concerning the relationship between the two directors were discussed, including (1) Tubbesing's failure to work cooperatively with the other director; (2) Tubbesing's unprofessional conduct in regard to the automobile furnished to the lead director; ² (3) Tubbesing's preferential treatment of some of the employees under her supervision; and (4) Tubbesing's unresponsiveness to the Board. The Board agreed to inform Tubbesing that they had lost confidence in her as a director and that they were going to seek a new Democratic Director. Arnold, chairman of the Board, told Tubbesing of the Board's decision, and asked her to resign. Tubbesing refused to resign, and on September 1 at a meeting which Tubbesing attended, the Board terminated her. Tubbesing did not request a hearing regarding her termination.

Tubbesing bases her claim of a property interest in her job on the language of the Personnel Policies and Benefits Manual of the St. Louis County Board of Election Commissioners which permits termination only for cause and provides an employee with a right to a pre-termination hearing. She also argues that it had been the custom and practice of the Board not to terminate an employee except for good cause shown and communicated to the employee prior to termination. Tubbesing alleges that she was fired without cause and without a hearing strictly for political reasons.

The Board contends that the Policy Manual does not apply to the job of Director of Elections. It maintains that it relied on the advice of legal counsel to the effect that the person who held the position of Director of Elections served at the pleasure of the Board.

The district court denied summary judgment, finding that factual issues remained to be determined with respect to the merits of Tubbesing's claim as well as the issue of qualified immunity. The Board brought this appeal from the denial of summary judgment on the issue of qualified immunity, and we stayed proceedings pending its determination.

I.

We must first determine whether we have jurisdiction over this interlocutory appeal. The Board contends that the district court's order is appealable under the collateral order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). In Evans v. Dillahunty, 711 F.2d 828 (8th Cir.1983), this Court held that motions for summary judgment that are premised on qualified immunity are immediately appealable if the following criteria are met:

The essential facts are not in dispute * * *; and (2) the determination of whether the government official is entitled to immunity is solely a question of law.

Id. at 830.

Since only money damages were sought in Evans, supra, qualified immunity was a complete defense to the plaintiff's claims and prevented the defendants from being put to trial. In this case, however, Tubbesing is also seeking reinstatement; therefore, the Board members' qualified immunity defense would entitle them to summary judgment only on the damages' claims. The Board would still be required to defend itself in any trial involving Tubbesing's claim for equitable relief. We believe, however, that the policies underlying the qualified immunity doctrine which justify the immediate appealability of a denial of summary judgment based thereon are just as compelling in this case as when only money damages are sought. ³ Contra Bever v. Gilbertson, 724 F.2d 1083 (4th Cir.1984) (Hall, J., dissenting). That the Board will stand trial on the equitable claim does not change the fact that partial summary judgment based on qualified immunity eliminates the risk of personal liability. As the Supreme Court explained in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the threat of personal liability could deter all but the most resolute or irresponsible from discharging their public duties, or even from being willing to serve in public office. 457 U.S. at 813, 102 S.Ct. at 2736. We here deal with a citizen board, whose members serve part time, and these reasons are all the more compelling in such circumstances.

In Harlow the Supreme Court revised the test for qualified immunity, eliminating the subjective aspect so that more claims could be resolved on motions for summary judgment before trial. McSurely v. McClellan, 697 F.2d 309, 316 (D.C.Cir.1982). The objective standard now permits summary judgment for the official if the law was not "clearly established" at the time the challenged action occurred. Withholding appellate review of pretrial denials of qualified immunity would frustrate Harlow's purpose in revising the test. Therefore, as long as the criteria set out in Evans are met, the district court's denial of summary judgment is appealable notwithstanding Tubbesing's claim for equitable relief.

In denying the Board's motion for summary judgment the district court stated that

factual issues clearly remain in dispute regarding whether or not plaintiff had a property interest in continued employment and the right to procedural due process prior to termination. Further factual questions remain as to whether the defendants, even if protected by qualified immunity, acted with malice or recklessness so as to preclude them from such immunity. (citations omitted).

Beyond the conclusion that factual issues "clearly" remain in dispute, the court did not go on to articulate specifically the factual issues that must be determined. ⁴ We have carefully studied the record before the district court and believe that the facts material to the issue of qualified immunity are undisputed and that those undisputed facts demonstrate that as a matter of law, the Board members are entitled to summary judgment on Tubbesing's claims for money damages. We conclude therefore that we have jurisdiction over this appeal.

II.

Government officials are entitled to qualified immunity from suit as long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Davis v. Scherer, --- U.S. ----, ----, 104 S.Ct. 3012, 3018-19, 82 L.Ed.2d 139 (1984) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2739); Green v. White, 693 F.2d 45, 47 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983). The Supreme Court in Davis reiterated that the standard to be used in determining the availability of qualified immunity is solely an objective one:

Whether an official may prevail in his qualified immunity defense depends upon the "objective reasonableness of [his] conduct as measured by reference to clearly established law." No other "circumstances" are relevant to the issue of qualified immunity.

Davis, 104 S.Ct. at 3018-19 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2739) (citations omitted).

Since whether the Board members are entitled to qualified immunity depends only upon the "objective reasonableness" of their conduct, the disputed factual issues concerning malice, to which the district court referred in denying the summary judgment motion, are irrelevant to the determination of qualified immunity. Tubbesing alleged that the conduct of the Board was malicious and that she was fired strictly for political reasons. These allegations, however, when submitted to the test of the Board's motion for summary judgment, are not supported by any evidence. In her own deposition, Tubbesing denies that she was terminated for political reasons, and she was unable to present any evidence supporting her allegations of malice. ⁵ Tubbesing's motion and affidavit in opposition to the Board's motion for summary judgment contains no reference to her allegations of malice or politically motivated firing. These issues are thus not a bar to summary judgment.

The only other factual issue mentioned by the district court is whether Tubbesing had a property interest in continued employment as a director, thus entitling her to certain due process rights. This issue goes to the merits of her claim, but it also defines the narrow issue to which Davis restricts our review. Under Harlow and Davis the threshold question is whether the conduct complained of violated clearly established law. Applying Harlow and Davis to Tubbesing's allegations and the...