Merritt v. Brantley

• Decision Date: 28 May 1996
• Docket Number: Civil Action No. 694-104.
• Citation: 936 F. Supp. 988
• Parties: Billy MERRITT, Plaintiff, v. Kendall BRANTLEY, Individually and as Executive Officer of Toombs County Board of Education, and Toombs County Board of Education and successors in interest, Defendants.
• Court: U.S. District Court — Southern District of Georgia

936 F. Supp. 988

Billy MERRITT, Plaintiff, v. Kendall BRANTLEY, Individually and as Executive Officer of Toombs County Board of Education, and Toombs County Board of Education and successors in interest, Defendants.

Civil Action No. 694-104.

United States District Court, S.D. Georgia, Statesboro Division.

May 28, 1996.

Malcolm Felix Bryant, Jr., Vidalia, GA, for plaintiff.

Percy J. Blount, N. Shannon Gentry, Glover & Blount, P.C., Augusta, GA, for defendants.

ORDER

EDENFIELD, Chief Judge.

Defendants Kendall Brantley and the Toombs County Board of Education (the Board) move this Court for summary judgment against plaintiff Billy Merritt in his 42 U.S.C. § 1983 action against them. Merritt opposes the motion, contending that an issue of fact remains for a jury to resolve.

I. BACKGROUND

While employed by the Board as a teacher at Toombs County High School, Merritt accepted additional employment as a baseball coach for the 1993-94 school year. Complaint ¶¶ 5-6.¹ The coaching contract formed an addendum to Merritt's teaching contract; it provided that it was "separate from the teaching contract assignment and can be eliminated at the discretion of the employer." Defendants' 1/4/95 MSJ Brief Exh. A.

Merritt alleges, and defendants deny, that he and the Board verbally agreed to renew his coaching contract for the 1994-95 year on the same terms and conditions. Complaint ¶ 6; Answer ¶ 6. However, before he finished serving the 1993-94 term, the Board, by way of a 4/13/94 letter from Brantley, terminated him. Complaint ¶ 7; Defendants' 1/4/95 MSJ Brief Exh. C. The letter informed Merritt that

(1) "in general, there was much concern regarding your treatment of baseball team members and those members of the team who felt that they had to leave the team as a result of your use of sarcasm and humiliating demeanor toward them";

(2) "other factors that were taken into consideration ... were your continued use of tobacco products (a violation of board policy JCDAA), and your failure to follow proper accounting procedures that are consistent with school standard D1.2, Fiscal Management."

Defendants' MSJ Brief Exh. 1.

The Board thus terminated him as coach for the 1994-95 school year, and immediately suspended him from further coaching duties during the 1993-94 term, though it continued to pay him for the remainder of that term. Id.; Answer ¶ 7. Brantley's letter expressed his hope that Merritt's "continued employment as a teacher with the Toombs County School System will be productive." Id.

Although Merritt alleges that his subsequent request for a hearing was denied, Complaint ¶ 8, he does attest that he was able to speak before the Board at a 5/6/94 Board meeting, though he was never notified of any subsequent Board action. 1/10/95-filed Aff. ¶¶ 10-11. Defendant Brantley subsequently gave him "an unsatisfactory evaluation on his permanent record for having appeared before the Board...." Id. ¶ 11.

Merritt initially alleged that the defendants violated his due process and equal protection rights by failing to accord him a pre-termination hearing prior to canceling his 1994-95 coaching job. Complaint ¶ 9; 1/23/95 Merritt Brief at 6. They also violated, he maintained, the notice and hearing requirements of O.C.G.A. § 20-2-940. Complaint ¶ 10. Merritt sought $2,500 in contract damages, and $75,000 because defendants defamed him. Complaint Count II ¶¶ 1-8. After defendants raised a liberty interest argument in their summary judgment brief, Merritt amended his Complaint to advance that claim, too.

II. ANALYSIS

A. Plaintiff's § 1983 Claim

To state a § 1983 claim, Merritt must allege that a person, while acting under color of state law, deprived him of a federal or constitutional right. Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir.1995). Exhaustion of unreviewed administrative remedies is not required before bringing a § 1983 claim. Thornquest v. King, 61 F.3d 837, 841 n. 3 (11th Cir.1995); Bussinger v. City of New Smyrna Beach Fla., 50 F.3d 922, 925-26 (11th Cir.1995). And, there appears to be no dispute that Merritt has satisfied the "acting under color of state law" requirement. See Rullan v. McKinley Court Condominium, 899 F.Supp. 857, 859-60 (D.Puerto Rico. 1995).

In Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), the U.S. Supreme Court clarified that, beyond the "incorporationist" due process rights, see id., 494 U.S. at 125, 110 S.Ct. at 983, there are just two kinds of constitutional protection under the Fourteenth Amendment's Due Process Clause: procedural due process and substantive due process. Id. Violation of those protections may support a § 1983 suit. Id.

With respect to his federal claims Merritt initially pleaded nothing more than due process-based, § 1983 causes of action.² More specifically, he alleged procedural and substantive due process violations. That placed the burden upon him to show that he had a constitutionally protectible interest in his employment. Nolin v. Douglas County, 903 F.2d 1546, 1552-1554 (11th Cir.1990) (district court did not err in directing verdict against plaintiff because he failed to prove he had a property interest in his employment under Georgia law, a necessary prerequisite to a finding of procedural and substantive due process violations), overruled on other grounds, McKinney v. Pate, 20 F.3d 1550 (11th Cir.) (en banc), cert. denied, ___ U.S. ___, 115 S.Ct. 898, 130 L.Ed.2d 783 (1994).

An at-will employee typically will not be able to establish a § 1983 claim because there is no property interest to protect. Nichols v. City of Kirksville, 68 F.3d 245, 248 (8th Cir.1995). In contrast, "a public employee who can be terminated only for cause ... may legitimately claim an entitlement to a property interest in continued employment." Nolin, 903 F.2d at 1553; see also Wallace v. Shreve Memorial Library, 79 F.3d 427, 429 (5th Cir.1996) ("A public employee who has a property interest in her job cannot be fired without due process of law"); Harris v. Mississippi Valley State Univ., 899 F.Supp. 1561, 1573-74 (N.D.Miss.1995). That showing is generally made by reference to laws, regulations or personnel policies. Nolin, 903 F.2d at 1553.³

In partially overruling Nolin, the McKinney court made it clear that a public employee like Merritt will show no violation of a substantive due process right because he is complaining only about employment-based rights, while "`substantive due process rights are created only by the Constitution.'" McKinney, 20 F.3d at 1556 (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 515, 88 L.Ed.2d 523 (1985)). Hence, Merritt at most asserts a procedural due process right, id., 20 F.3d at 1556-60, the violation of which is not shown

"unless and until the State fails to provide due process." Zinermon, 494 U.S. at 123, 110 S.Ct. at 983. In other words, the state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise.

McKinney, 20 F.3d at 1557.

The McKinney court held that, even if a county building inspector holding a protectible interest was fired without a proper hearing, he at most raised a procedural due process violation which ultimately failed because of the availability of adequate state remedies that he failed to exploit. 20 F.3d at 1564-65; see also Narey v. Dean, 32 F.3d 1521, 1527-28 (11th Cir.1994) (tenured Georgia state employee's § 1983 claim for pretextual demotion should not have gone to a jury because, in failing to pursue state-court remedies, it could not be said that he was denied procedural due process). "Significantly, McKinney did not even allege in his complaint that the state procedures were inadequate." McKinney, 20 F.3d at 1563 n. 18. The same must be said here of Merritt.

"McKinney thus failed to take advantage of any state remedies, opting instead to pursue his claim in federal court." McKinney, 20 F.3d at 1563. Apparently, so did Merritt. In other words, even assuming arguendo that Merritt held a protectible property interest in his coaching job, a fatal flaw nevertheless exists in Merritt's case. That flaw is not grounded upon any failure to exhaust an available state remedy, but rather upon Merritt's failure to show the absence of an adequate state remedy. That is the essence of a procedural due process claim in this context. McKinney, 20 F.3d at 1564 n. 20; see also Bussinger, 50 F.3d at 925-26; Narey, 32 F.3d at 1527-28.

Thus, assuming that Merritt is suffering a recognizable deprivation arising from the manner in which he was terminated, nevertheless he has failed to plead and prove that the State did not provide him with a postdeprivation remedy. Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995) ("a procedural due process claim will not be stated unless the plaintiff pleads and proves that his available state remedies are inadequate"). Indeed, Merritt himself has referenced a remedy by citing to Georgia's Fair Dismissal Act, O.C.G.A. § 20-2-940, in ¶ 10 of his Complaint, and insisting that it applies. See 1/23/95 Merritt Brief at 7-8.

More importantly, the Georgia Supreme Court, applying Zinermon, McKinney and Narey, held that a discharged employee of the Atlanta Board of Education could "not maintain a claim for damages for a procedural due process deprivation under section 1983 when the state court review of her termination provided an adequate remedy under state law." Atlanta City School District v. Dowling, 266 Ga. 217, 218, 466 S.E.2d 588 (1996). In other words, while it may be true that the defendants sub judice failed to provide Merritt with pre-termination notice as required by O.C.G.A. § 20-2-940(b), Dowling demonstrates that he could have sued the defendants in state court to enforce that right, as well as vindicate the merits of his...