833 F.2d 1507 (11th Cir. 1987), 86-8477, Everett v. Napper

Docket Nº:86-8477.
Citation:833 F.2d 1507
Party Name:2 Indiv.Empl.Rts.Cas. 1377 Tommy L. EVERETT, Plaintiff-Appellant, v. George NAPPER, City of Atlanta, Julius Derico and Carl B. Lathrop, Defendants- Appellees.
Case Date:December 15, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1507

833 F.2d 1507 (11th Cir. 1987)

2 Indiv.Empl.Rts.Cas. 1377

Tommy L. EVERETT, Plaintiff-Appellant,


George NAPPER, City of Atlanta, Julius Derico and Carl B.

Lathrop, Defendants- Appellees.

No. 86-8477.

United States Court of Appeals, Eleventh Circuit

December 15, 1987

Page 1508

Donald M. Dotson, Atlanta, Ga., for plaintiff-appellant.

George R. Ference, W. Roy Mays III and Marva Jones Brooks, Atlanta, Ga., for defendants-appellees.

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

Before FAY and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit Judge.

FAY, Circuit Judge:

Tommy L. Everett ("Everett") appeals from a decision of the district court awarding summary judgment to the City of Atlanta and several of its officials, 632 F.Supp. 1481. Everett filed this civil rights action pursuant to 42 U.S.C. Sec. 1983 (1982) alleging that defendants dismissed him from his position as a firefighter with the City of Atlanta Bureau of Fire Services in violation of his rights under the fourth and fourteenth amendments. Everett also brought a pendent state law invasion of privacy claim. We find that Everett only produced evidence to establish a prima facie case for his claim of procedural due process. Therefore, we affirm in part, reverse in part, and remand.


Everett was a firefighter for the City of Atlanta Bureau of Fire Services. The Department of Public Safety, Office of Professional Standards, received information from the Narcotics Division of the Dekalb County Police Department about an investigation of one of the firefighters, James Hodges. As part of the drug investigation, the Narcotics Division conducted surveillance on the home of James Hodges, including video tapes, and determined that drug sales were taking place there. The Narcotics Division observed several employees of the Bureau of Fire Services entering and departing from the Hodges residence. Everett was not one of those employees. Based on that information, the Office of Professional Standards initiated an internal administrative investigation to ascertain whether other firefighters were involved in drugs.

Hodges was subsequently interviewed by Sergeant C. Lathrop ("Lathrop") of the Office of Professional Standards. At this interview, Hodges identified a lengthy list of names of fire bureau personnel who had

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purchased drugs from him within the prior three months. Everett was among those names listed. 1

On August 4, 1984, Lathrop called Everett into the Office of Professional Standards for an interview. Lathrop informed Everett that the department was conducting an administrative, not criminal, investigation into drug use and sales within the Department of Public Safety. Lathrop also informed Everett of the memorandum dated August 3, 1984, issued by Commissioner Napper requiring all employees to cooperate in drug testing to determine drug use by firefighter employees. The memorandum stated:

The Office of Professional Standards is presently investigating what is alleged to be widespread use and trafficking of illegal drugs within the Bureau.

Through this memorandum, I am directing all personnel to fully cooperate in this investigation. Cooperation includes, but is not limited to, appearing as directed, giving statements as required, submitting to polygraph examinations if requested and submitting to any drug screening tests deemed appropriate by the Office of Professional Standards.

Failure to comply with any part of this directive will be considered as disobeying a direct order from the Commissioner of Public Safety. Any employee disobeying this order will be immediately suspended and the appropriate charges will be preferred.

Lathrop showed the memorandum to Everett but Everett contends that he was not given the opportunity to read it. As a result of Hodges' statement, Lathrop suspected that Everett was involved in drug use in violation of departmental rules. Lathrop, therefore, ordered Everett to submit to a urinalysis test. Everett refused to submit to the urinalysis test informing Lathrop that he knew Hodges only on a professional level and had never been to his residence. Everett signed a written statement indicating that his refusal to cooperate was based on his "non-involvement pertaining to this particular investigation."

Everett's refusal to cooperate in the investigation, and his failure to comply with Lathrop's direct order resulted in his immediate suspension. When asked to surrender his identification he responded that he could not because it had been misplaced. Thereafter, formal charges were brought against Everett for violating the work rules of the Department of Public Safety. Everett, due to his refusal to obey Lathrop's order to take the urinalysis test, was charged with violating Rule 2.09 which requires that "[e]mployees of the Department shall promptly obey all proper and lawful orders of supervisors and other employees assigned to act in a supervisory capacity." Everett was also charged with violating Rule 1.03 which provides that "[e]mployees of the department shall be truthful, at all times, both in their spoken and written words ..." because he stated that he told Captain Rosemond that he lost his identification, when Captain Rosemond had no recollection of such a statement. The final charge against Everett was for violation of Rule 2.33 which states that, "[e]very employee of the department shall familiarize herself/himself with and conform to rules, regulations, directives and standard operating procedures of the department," due to his refusal to cooperate in the investigation as required by Department of Public Safety General Order No. 83-4. 2

Everett was suspended without pay, effective August 6, 1984, pending an administrative investigation. The department notified Everett that a hearing on the work

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rule violation charges would be held before the disciplinary hearing panel on September 12, 1984. The hearing took place, after having been continued, on October 3, 1984. Everett appeared before the panel with counsel and participated in the hearing by presenting evidence and questioning witnesses.

At the completion of the hearing the panel concluded that Everett had violated the three work rules as charged. Commissioner Napper accepted the panel's recommendation and ordered that Everett be terminated, effective November 1, 1984.

Everett appealed the discharge order to the City of Atlanta Civil Service Board, and received a full hearing on December 13, 1984. Everett appeared with counsel and contested the rule violation charges and the penalty imposed. The Civil Service Board concluded that Everett had violated the work rules as charged and affirmed the decision of dismissal.

Thereafter, Everett filed a civil rights action in federal district court seeking equitable relief and damages. Everett alleged that the discharge order violated his fourth and fourteenth amendment due process and equal protection rights. He also alleged a pendent state claim of invasion of privacy. The district court granted defendants motion for summary judgment on all constitutional claims and declined to assert jurisdiction over the remaining state tort claim. 3


Under Fed.R.Civ.P. 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party is entitled to "judgment as a matter of law" when the nonmoving party fails to make a sufficient showing of an essential element of the case to which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment is the same as the standard for granting a directed verdict. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). We must, therefore, affirm the granting of summary judgment if on any part of the prima facie case there would be insufficient evidence to require submission of the case to a jury. Anderson, 106 S.Ct. at 2512; Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir.1987). The evidence of the non-movant is to be believed, however, and all justifiable inferences are to be drawn in his favor. Anderson, 106 S.Ct. at 2513; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Barnes, 814 F.2d at 609; Borg-Warner Acceptance Corp. v. Davis, 804 F.2d 1580, 1582 (11th Cir.1986). With these principles in mind, we turn to the substantive law governing this case to determine whether the district court's order granting defendant's motion for summary judgment was proper.

To prevail in a civil rights action pursuant to 42 U.S.C. Sec. 1983, Everett must establish that defendants both deprived him of a right secured by the United States Constitution or federal laws and that the action taken by the defendants was under color of state law. 4 Adickes, 398 U.S. at 150, 90 S.Ct. at 1604; Motes v. Myers, 810 F.2d 1055, 1058 (11th Cir.1987); Little v. City of North Miami, 805 F.2d 962, 965

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(11th Cir.1986). In order to overcome the motion for summary judgment filed by the city of Atlanta and the named officials, Everett had to carry the burden of showing that those named officials deprived him of his constitutional rights in issuing the discharge order. The district court determined that Everett failed to establish a prima facie case under 42 U.S.C. Sec. 1983. We hold that Everett did meet this burden but only with respect to his procedural due process claim.

A. Fourth Amendment

Everett argued that the requirement that he undergo a urinalysis violated his fourth amendment right to be free...

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