910 F.2d 1349 (6th Cir. 1990), 89-5464, Charles v. Baesler

Docket Nº:Franklin Thomas CHARLES, Plaintiff-Appellant, (89-5464)
Citation:910 F.2d 1349
Case Date:August 14, 1990
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1349

910 F.2d 1349 (6th Cir. 1990)

Franklin Thomas CHARLES, Plaintiff-Appellant, (89-5464)

William C. Jacobs, Attorney-Appellant, (89-5464)


Scotty BAESLER, Mayor, Lexington-Fayette Urban County

Government, and David Cooke, Director of Personnel,

Lexington-Fayette Urban County Government, in their official

capacities and individually; and Lexington-Fayette Urban

County Government, Defendants-Appellees.

Franklin Thomas CHARLES, Plaintiff-Appellant, Cross-Appellee,


Scotty BAESLER, Mayor, Lexington-Fayette Urban County

Government, and David Cooke, Director of Personnel,

Lexington-Fayette Urban County Government, in their official

capacities and individually; and Lexington-Fayette Urban

County Government, Defendants-Appellees, Cross-Appellants. (89-5533)

Nos. 89-5464, 89-5533.

United States Court of Appeals, Sixth Circuit

August 14, 1990

Argued Jan. 29, 1990.

William C. Jacobs (argued), Lexington, Ky., for plaintiff-appellant, cross-appellee.

Page 1350

William C. Jacobs, Lexington, Ky., pro se.

Edward W. Gardner, Theresa L. Holmes (argued), Lexington-Fayette Urban County Government, Dept. of Law, Lexington, Ky., for defendants-appellees, cross-appellants.

Before JONES and RYAN, Circuit Judges, and HILLMAN, Chief District Judge. [*]

HILLMAN, Chief District Judge.

The parties to this 42 U.S.C. Sec. 1983 civil rights action appeal and cross-appeal the adverse portions of the judgment rendered by the United States District Court for the Eastern District of Kentucky. We affirm in part, reverse in part, and remand with instructions.


In the early 1970s Kentucky joined the growing number of states that authorize consolidation of city and county governments into unified local governments. In 1974 the City of Lexington merged with Fayette County to form defendant, appellee, and cross-appellant Lexington-Fayette Urban County Government (the government). That same year, the Kentucky General Assembly adopted a merit system to govern certain personnel matters arising in the new urban county governments. Ky.Rev.Stat. Sec. 67A.200 et seq. (1989). In accordance with this merit system, the Lexington-Fayette Urban County Government entered into an "inviolable contract" with its employees. By the terms of this employment contract, the government obligated itself to operate under sections 67A.230 to 67A.330 of the revised statutes and "all substantial matters" contained in the government's "first ordinance" as defined by statute. Ky.Rev.Stat. Sec. 67A.330 (1989).

In 1980 the government enacted an ordinance, later codified at section 23-20 of its Code of Ordinance, regulating fire department job promotions. In general terms, section 23-20 provided that promotion applicants successfully completing a series of examinations would be placed on the promotion list for the next highest rank in the order determined by their examination performance. The promotion list for each rank remained in effect for two years. Thirty days before the expiration of an existing list, the government would develop a new list reflecting the results of new examinations. When the new list took effect at the end of an existing list's two-year life, applicants placed on the existing list could not carry over their placements from the existing list to the new list.

Section 23-20 placed fire department promotion authority in the government's mayor, subject to legislative approval. When a vacancy occurred at a particular rank, the mayor was required to fill or abolish it within ninety days. Vacancies would be filled sequentially from the promotion list for that particular rank over the two-year life of the list. In other words, if no vacancy were abolished within the ninety days, the promotion applicant placed first on a list would receive promotion to the first vacancy in the next highest rank that occurred within two years of the list's creation. The promotion applicant placed second would receive promotion to the second vacancy, and so on.

Plaintiff, appellant, and cross-appellee Franklin Thomas Charles is a captain in the government's fire department. He successfully completed the relevant fire department promotion examinations conducted by the government in January, 1981, and was placed fifth on the promotion list for the rank of major. Under section 23-20, the major's promotion list containing Charles' name expired in January, 1983. Defendant, appellee, and cross-appellant David Cooke is the government's personnel director. Among his responsibilities is the creation of new fire department promotion lists thirty days before the expiration of existing lists. Cooke mistakenly failed to prepare a new promotion list for the rank of major before the January, 1983 expiration

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of the list containing Charles' name. In fact, Cooke did not schedule new examinations and prepare a new major's promotion list until late 1984 or early 1985.

On May 1, 1984, a vacancy occurred at the major's rank. Section 23-20 consequently required defendant, appellee, and cross-appellant Scotty Baesler, the government's mayor, to fill or abolish the vacancy within ninety days, or by July 30. At the time the May 1 vacancy occurred, Charles topped the expired January, 1981 list for promotion from captain to major. Baesler did not abolish the major's vacancy on or before July 30. He likewise failed to promote Charles.

When it became clear to Charles in the summer of 1984 that the government was not going forward with the promotion process, he filed a grievance. After Charles met with several fire department supervisors and Baesler, the government denied the grievance, explaining that Charles would not be promoted because the promotion list containing his name had expired in January, 1983, and the vacancy at issue was scheduled to be abolished in the near future. The government in fact abolished the vacancy on November 1, 1984.

On November 21, 1984, Charles filed this 42 U.S.C. Sec. 1983 action in the United States District Court for the Eastern District of Kentucky, naming the government, Baesler and Cooke as defendants. Charles contended that the government and its officials violated his federal constitutional rights by failing to promote him from captain to major. He sought declaratory and injunctive relief, back pay, a punitive damages award against Baesler, and an attorney's fee.

Following discovery, the parties submitted cross-motions for summary judgment. On March 1, 1988, the district court entered partial summary judgment for Charles, holding that the government, Baesler and Cooke deprived him of a contractually-based property right to promotion without due process of law. The district court rejected Charles' argument that the failure to promote denied him equal protection, and the court did not address Charles' impairment of contract claim. The court below additionally ruled that qualified immunity protected Baesler and Cooke from individual liability, and that punitive damages against Baesler were not appropriate.

To remedy the due process violation, the district court ordered back pay in the amount of the difference between a captain's and a major's salary between August 1, 1984, the date the court found Charles should have been promoted, and November 1, 1984, the date the government abolished the major's position at issue. The court declined to order the government and officials to promote Charles to major, reasoning that Charles had no entitlement to the position after its November 1, 1984 abolition. On March 14, 1989, the district court denied post-judgment motions, and awarded attorney-appellant William C. Jacobs, Charles' lawyer, a 42 U.S.C. Sec. 1988 attorney's fee reduced to reflect incomplete success on Charles' section 1983 claim.

On April 13, 1989, Charles appealed the adverse portions of the district court's judgment, including the failure to order permanent promotion, the denial of his equal protection claim, the failure to address his impairment of contract claim, and the court's qualified immunity and punitive damages rulings. Jacobs appealed the reduction of his attorney's fee. The government, Baesler and Cooke thereafter cross-appealed, claiming the district court erred by finding a due process violation, and by approving an unsubstantiated hourly rate for purposes of the attorney's fee award.


The primary question presented by this appeal is whether substantive due process bars the government and its officials from breaching a contractual responsibility to promote Charles. We hold that substantive due process does not protect the...

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