Walker v. Elbert, 94-6395

• Decision Date: 31 January 1996
• Docket Number: No. 94-6395,94-6395
• Citation: 75 F.3d 592
• Parties: 106 Ed. Law Rep. 1043 Todd WALKER, Plaintiff-Appellant, v. Arthur ELBERT, Jerry Farley, Don Flegal, Earl Whitman, Royce Clark, Caralyn Bullock, and Pat McAlister, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 592

75 F.3d 592

106 Ed. Law Rep. 1043

Todd WALKER, Plaintiff-Appellant, v. Arthur ELBERT, Jerry Farley, Don Flegal, Earl Whitman, Royce Clark, Caralyn Bullock, and Pat McAlister Defendants-Appellees.

No. 94-6395.

United States Court of Appeals Tenth Circuit.

Jan. 31, 1996.

Steven Langer, Norman, Oklahoma, for Plaintiff-Appellant Todd Walker.

Fred A. Gipson, (Lisa Millington, and Jill Bush Raines with him on the brief), Norman, Oklahoma, for Defendants-Appellees.

Before KELLY, Circuit Judge, SETH, Senior Circuit Judge, and BROWN, Senior District Judge. ^*

WESLEY E. BROWN, Senior District Judge.

When plaintiff-appellant was terminated from his job as a delivery person in the purchasing department of the University of Oklahoma, he filed this action claiming, among other things, that the defendants, individually and/or as officials of the university, deprived him of property without due process of law in violation of the Fourteenth Amendment, and that a dress code adopted by the university violated his First Amendment right to free speech. In addition to these claims under 42 U.S.C. § 1983, plaintiff also alleged state law claims for wrongful discharge. ¹

The district court granted summary judgment in favor of defendants on all claims except for plaintiff's First Amendment "dress code" allegation, which was submitted to a jury. Although the university "dress code" violated plaintiff's First Amendment rights, the jury found that defendant Clark was entitled to qualified immunity.

In this appeal, plaintiff contends that the district court abused its discretion in denying his motion to amend the complaint, that the court improperly submitted the issue of qualified immunity to the jury, and erred in granting summary judgment to defendants on all other claims.

The district court granted summary judgment on the majority of plaintiff's claims upon these undisputed facts:

Plaintiff Todd Walker was employed by the University of Oklahoma as a delivery person in the storeroom of the purchasing department from September 4, 1984 to April 1, 1992. He had no written contract of employment.

The board of regents of the university is an "at will" employer. The university handbook contains a disclaimer stating that nothing therein should be interpreted to create any express or implied contract right.

The handbook sets out a "Positive Discipline Procedure" involving three steps of discipline: first, an oral reminder from a supervisor; second, a written reminder if there has been no correction; and third, a disciplinary leave with or without pay for up to five days. Discharge is not considered a final step in the procedure, since that step is taken only when the foregoing steps have been used and failed. Discharge is also appropriate if the employee commits a major offense which involves willful misconduct, dishonesty, or threatens the safety of the university.

The university also has a grievance process available to employees who seek to resolve employment conflicts. This process includes procedural safeguards such as a right to assistance, to call witnesses, and to an impartial hearing before a grievance committee. The committee hears the matter and makes a non-binding recommendation which is then reviewed by a vice president or provost and finally by the president of the university.

Plaintiff's termination was preceded by several attempts to discipline him. He was given an oral reminder by his supervisor, defendant Caralyn Bullock, on April 10, 1991, regarding his refusal to follow instructions and his insubordinate work attitude. A written reminder was sent on June 7, 1991, concerning plaintiff's continuing insubordination, and a meeting was held on June 13, 1991, regarding plaintiff's poor attitude while working under Bullock's supervision. Present at this meeting were plaintiff, Bullock and Bullock's supervisors, defendants Clark and Whitman. Plaintiff was placed on a one-day decision making leave on June 14, 1991; and, upon his return to work, he agreed that in the future there would be no absences from work without authorization; that he would give full attention to the supervisor providing instructions or seeking information; that he would follow all instructions; and that he would refrain from demonstrating disdain and insubordination toward supervision.

Plaintiff filed grievances over his treatment and working conditions numerous times over the course of a year--on May 22, May 31, June 10, June 28, 1991, and on February 11 and February 21, 1992.

The defendant Clark instituted a dress code for all personnel in the operations department on August 13, 1991. Employees were not permitted to display slogans, political signs or statements, or obscene statements or pictures on their clothing. ²

As a result of unsatisfactory performance reviews and several informal discussions with his supervisors, plaintiff was finally terminated on April 1, 1992. Plaintiff was not terminated because of any violation of the university dress code. Plaintiff instituted a grievance procedure on April 10, 1992, at which time he was suspended without pay. On June 10, 1992, a grievance committee heard the grievance; and, on June 17, the committee recommended that plaintiff be reinstated with full back pay and that Bullock and plaintiff undertake counseling sessions to improve their working relationship.

Pursuant to grievance procedures, the recommendation was reviewed by defendant Elbert, then vice president of administrative affairs. Elbert requested additional information from defendant Don Flegal, director of personnel, who recommended that Elbert not follow the committee recommendation. On September 3, 1992, Elbert notified plaintiff that he was upholding the original termination decision, and Elbert's action was affirmed by the president of the university, Richard Van Horn, on September 21, 1992.

Although plaintiff had been injured on the job in October, 1988, he did not file a claim for benefits under worker's compensation until after his termination.

After plaintiff was terminated, defendant Bullock completed a personnel form indicating that he would not be eligible for rehire; this form, approved by Whitman and Elbert, was filed in plaintiff's personnel folder.

In his complaint, plaintiff alleged that defendants were responsible for his termination in violation of a property right to job security; that defendants, through the dress code, deprived him of his right to freedom of expression; and that they deprived him of a liberty interest in obtaining other employment by stigmatizing and blacklisting him from further employment opportunities. In addition, plaintiff claimed that defendants breached an implied duty to provide a fair hearing and review and that he was terminated in retaliation for filing a worker's compensation claim.

After our review of the record, we conclude that the trial court properly sustained defendants' motions for summary judgment upon all but one of plaintiff's claims and properly entered judgment for defendant Clark on the dress code issue. ³

In the first instance, there was an absence of evidence that plaintiff possessed any property interest in his continued employment by the university. As noted by the trial court, a tenured public employee may acquire a property interest in continued employment, but this interest must be created by an independent source such as state law, whereby the public employee has a " 'legitimate claim of entitlement' to--not merely a 'unilateral expectation' of--continued employment." Carnes v. Parker, 922 F.2d 1506, 1510 (10th Cir.1991), applying Oklahoma law. In Carnes, the plaintiff, who was employed by a public hospital as a "permanent" radiology technician, had a dispute with her supervisor and was terminated for insubordination and failure to appear for work. The hospital personnel manual established formal three-level post-termination grievance procedures to implement a "Fair Treatment Policy" designed to resolve employment problems.

In ruling that Carnes was only entitled to the grievance procedures contained in the employees' handbook, and was not entitled to continued employment, this circuit reviewed the applicable Oklahoma employment law in this manner:

Carnes' federal constitutional claim depends on her having a property right in continued employment. Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972). If she in fact has such a right, then the government cannot deprive her of continued employment without procedural due process....

Property interests are not created by the due process clause of the Constitution ... Rather, they are created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract....

* * * * * *

A public employee has a property interest in continued employment if under state law that employee has a "legitimate claim of entitlement" to--not merely a "unilateral expectation" of--continued employment ... To ascertain whether Carnes is entitled to procedural due process we must determine whether the Oklahoma Supreme Court would find Carnes could rely on the policies and procedures contained in her employer's personnel manual to create a legitimate claim of entitlement to continued employment.

Initially we note Oklahoma recognizes the employment at-will doctrine. In the absence of an implied or express agreement between the employer and its employees, the employer may terminate an employee at any time with or without cause ... The Oklahoma Supreme Court has refused to recognize an implied covenant of good faith and fair dealing in employment at-will contracts.... (922 F.2d at 1509-1510)

In the Carnes case, this court, in recognizing that the language of an employer's personnel manual may alter the employment at-will relationship, found that Carnes was entitled to the grievance procedures outlined in the personnel...