Malcak v. Westchester Park Dist.

• Decision Date: 08 April 1985
• Docket Number: No. 84-1070,84-1070
• Citation: 754 F.2d 239
• Parties: Anthony MALCAK, Plaintiff-Appellee, v. The WESTCHESTER PARK DISTRICT, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 239

754 F.2d 239

Anthony MALCAK, Plaintiff-Appellee, v. The WESTCHESTER PARK DISTRICT, Defendants-Appellants.

No. 84-1070.

United States Court of Appeals Seventh Circuit.

Argued Sept. 21, 1984.

Decided Feb. 7, 1985.

Rehearing Denied April 8, 1985.

Patrick T. Murphy, Chicago, Ill., for defendants-appellants.

Richard T. Sikes, Chicago, Ill., for plaintiff-appellee.

Before COFFEY and FLAUM, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

COFFEY, Circuit Judge.

The defendant appeals a jury verdict finding that the plaintiff was denied due process when he was fired from his position as a public employee without a hearing. Two issues are raised on appeal: (1) whether our opinion in Vail v. Bd. of Ed. of Paris Union Sch. Dist. No. 95, 706 F.2d 1435 (7th Cir.1983) aff'd per curiam, --- U.S. ----, 104 S.Ct. 2144, 80 L.Ed.2d 377 (1984), held that the question of whether a public employee has a property interest in continued employment is always a factual issue; (2) whether the district court erred in denying the defendant's motion for a directed verdict. We reverse.

I.

The plaintiff, Anthony Malcak, was hired in 1972 as Superintendent ¹ of Parks and Recreation for the Westchester Park District, an Illinois municipal corporation ("District"). According to the Operating Policy Statement Manual of the Westchester Park District ("Manual"), "[t]he position of Superintendent of Parks and Recreation is an appointed one.... The appointment is for an indefinite period and by mutual agreement with either party serving proper notice of 60 days upon termination of employment." In May, 1981, after determining the annual budget for the District, the Board of Commissioners ("Board"), contrary to their past practice, decided not to grant Malcak a raise in salary as they had in the past. The Board informed Malcak that they would review his salary in six months. On June 30, 1981 Malcak was terminated and given a sixty-day separation payment.

In November, 1981, the plaintiff filed suit against four individual commissioners of the Westchester Park District and against the District alleging that the defendants violated both the United States Constitution and 42 U.S.C. Sec. 1983 in terminating him for political reasons. On June 8, 1983, the plaintiff amended his complaint and added a second count alleging that his termination without notice or hearing violated his constitutional and statutory rights to due process.

The defendants filed a motion for summary judgment as to both counts, which was subsequently denied. In discussing the plaintiff's claim of entitlement to a hearing, the district court held that, "Vail v. Board of Education of Paris Union School District No. 95, 706 F.2d 1435 (7th Cir.1983) again makes plain the 'property interest' necessary for a Sec. 1983 and Fourteenth Amendment due process claim, posed in a public employment situation like that alleged by Malcak, is a factual issue. Thus, the claim cannot be disposed of by a pleading motion. It must ... be resolved at trial."

At the trial, during the plaintiff's presentation of evidence, the four Commissioners testified that they had terminated Malcak because they were dissatisfied with his work, primarily in the maintenance of the parks. After deciding to dismiss Malcak at the June 24, 1981 meeting, the Commissioners directed the President of the Board, Thomas Stanger, to confer with the Board's attorney, Edward Matuga, concerning the proper method of terminating Malcak. Matuga advised Stanger that the Board was required only to follow the Manual's directive that Malcak be given 60 days notice of a termination of employment. Matuga further advised Stanger that the Board could satisfy the 60-day notice requirement by paying Malcak for an additional 60 days. The Board followed this advice, terminating Malcak as of the end of June, 1981. Malcak was given 60 days' pay in lieu of 60 days' notice. The Commissioners further testified that the attorney, secretary and treasurer of the Park District were appointed to their positions on an annual basis; there was no similar provision for the annual appointment of the Supervisor. Rather, the Supervisor's position was governed by the Manual provision of "appointment ... for an indefinite period and by mutual agreement with either party serving proper notice of 60 days upon termination of employment."

The plaintiff testified that, after his first year of employment, his salary was automatically included in the annual budget of the Park District. The only discussion of his status at the budget hearings concerned the amount of his salary increase. Malcak, however, acknowledged that only the attorney, secretary and treasurer of the Park District were hired for one-year periods. Malcak also agreed that there were no entries in the minutes of the Board meetings stating that he was hired for a one-year term of office. Malcak further asserted that several commissioners individually had given him verbal assurances about his performance and continuing employment by the Park District. Malcak testified that, because of these assurances, "my understanding was that as long as I continued doing a good job, there would be no fear of losing it." Malcak's attention was directed to the following provision of the Manual specifying the powers of the Board:

"While discharging their responsibilities through official actions of the Board as a whole, Board members may be considered to be state officers with the Park District jurisdiction over the execution of the state's Park and Recreation laws. In the discharge of their duties, Park Board members act as a committee of the whole and not as individuals. An individual Board member has no legal or moral right to speak for the Park/Recreation Board, unless specifically authorized to do so by action of the Board."

After he was confronted with this rule of the Park District, the plaintiff conceded that he was aware of the Manual provision and agreed that the individual Board members did not have the authority to give him job assurances unless they had been specifically authorized by the Board to make the assurances. While on the stand, Malcak further admitted that the minutes failed to reflect that the Board gave anyone the power to give him job assurances. Further, he also agreed that the full Board had never assured him that he would not lose his job as long as his work was satisfactory. Finally, Malcak stated that it was his understanding that the Manual provision governing his position provided that he could not be terminated unless both he and the Commissioners mutually agreed to the termination.

The defendants moved for a directed verdict at the end of the plaintiff's case. The district court granted the defendant's motion for a directed verdict as to the first count, the political firing count, noting that the plaintiff had failed to produce any evidence to substantiate his claim. The district court expressed some puzzlement with our opinion in Vail, specifically questioning whether the existence of a property right was a legal or factual issue. After considering the motion overnight, the district court held that the ambiguous language of the Manual provision governing Malcak's position coupled with the verbal assurances presented "an issue of fact ... as to whether he had a property interest under state law which he is entitled to have protected by the Due Process Clause. That seems to be the teaching of Vail."

The jury found that the plaintiff had a property interest in his job and was entitled to damages of $30,000. The district court awarded attorneys' fees in the amount of $14,036.05. After inviting the plaintiff to file a motion for reinstatement, the court also ordered reinstatement. The District ² moved for a judgment notwithstanding the verdict and for a new trial. In denying the motion, the district judge held that, "the evidence was sufficient to go to the jury on what the Court of Appeals has characterized in Vail as a fact issue of whether Mr. Malcak had a property interest in his job which was protectable--protected by the Due Process Clause of the Fourteenth Amendment."

II.

In Bd. of Regents v. Roth, 408 U.S. 564, 576-79, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972), the Supreme Court held that the Fourteenth Amendment's procedural protection of property safeguards property interests in specific benefits such as an interest in continuing employment. In a companion case, the Supreme Court explained that, "[a] person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). To determine whether a protectable property interest exists, the court must turn to state law.

"Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."

Roth, 408 U.S. at 577, 92 S.Ct. at 2709.

The Court held in Perry that a contract does not have to be written to receive constitutional protection. Perry, 408 U.S. at 601-02, 92 S.Ct. at 2699-2700. An implied contract may receive constitutional protection if state law recognizes its validity. See, id. When faced with claims of entitlement to continued employment based on implied contracts, federal courts have employed both contract and agency principles to determine whether a property interest exists. See, e.g. Hadley v. County of DuPage, 715 F.2d 1238, 1244 (7th Cir.1983) (Longevity in employment did not create a property interest because there was no mutually explicit understanding between the parties as to continued...