985 F.2d 1502 (11th Cir. 1993), 91-3416, McKinney v. Pate

Docket Nº:91-3416.
Citation:985 F.2d 1502
Party Name:Millard McKINNEY, Plaintiff-Appellant, v. John PATE, individually and in his official capacity as Commissioner of the Osceola County Board of Commissioners, Jack Shannin, individually and in his official capacity as Development Dept. Director of Osceola County, and the Osceola County Board of Commissioners, collectively, Defendants-Appellees.
Case Date:March 17, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1502

985 F.2d 1502 (11th Cir. 1993)

Millard McKINNEY, Plaintiff-Appellant,

v.

John PATE, individually and in his official capacity as

Commissioner of the Osceola County Board of Commissioners,

Jack Shannin, individually and in his official capacity as

Development Dept. Director of Osceola County, and the

Osceola County Board of Commissioners, collectively,

Defendants-Appellees.

No. 91-3416.

United States Court of Appeals, Eleventh Circuit

March 17, 1993

Thomas J. Pilacek, Longwood, FL, for plaintiff-appellant.

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Lewis E. Shelley, Tallahassee, FL, Neal D. Bowen, Kissimmee, FL, for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, and FAY and COX, Circuit Judges.

FAY, Circuit Judge:

Millard McKinney, the former Osceola County Building Official, appeals the district court's order setting aside the jury verdict in his favor because there was substantial evidence to support his claim that the Osceola Board of County Commissioners [hereinafter "the Board"] violated his right to substantive due process by terminating him without cause. In opposition, the Board 1 asserts that the question of whether there is a violation of McKinney's rights under substantive due process is a question of law for the court. It further argues that if the court finds evidence to support a rational basis for the Board's decision to terminate Mr. McKinney, it must enter judgment in favor of the defendant Board, notwithstanding the jury's verdict. We find the district court erred in setting aside the verdict in favor of McKinney. Accordingly, the district court's order is VACATED and the judgment in favor of McKinney is reinstated.

I. Facts

Millard McKinney was hired as the Osceola County Building Official on July 27, 1987. The Building Official is the head of the Building Division, one of three divisions within the Osceola County Development Department. The parties agree that both the Building Division, and the Development Department as a whole, were the target of complaints from the public and that the Board had been investigating ways to improve the public's perception and the performance of these departments. McKinney testified that he was hired with a mandate to address some of the problems the Building Division had experienced, specifically laxity in enforcement of the building codes, and that he successfully brought about needed reforms and improvements.

In the spring of 1988, almost a year after McKinney was hired, at least two "workshops," or public hearings, were held to discuss on-going problems in the Development Department, including the Building Division. McKinney asserts that these problems were "the same as in any Building Division anywhere." Appellant's Brief at 5. The Board, in contrast, asserts that these workshops were held in response to complaints about McKinney and constitute evidence of his poor performance. The undisputed evidence is that, whatever the source of the problems leading to the public hearings, McKinney's performance reviews before and after these hearings were uniformly excellent. Undisputed also is that the Osceola County Policy Manual in effect at the time, and applicable to McKinney, provided that permanent employees such as McKinney could only be terminated for cause and in accordance with the procedures established therein.

Mr. McKinney's direct supervisor was Jack Shannin. Shannin, in turn, reported to Eleanor Anderson, the County Administrator, who reported directly to the Board of County Commissioners. In November of 1988, three new members were elected to that Board. Jack Pate was one of these new commissioners. Shortly after the election, Anderson testified that the new Board met to discuss needed changes in the Building Division, although at trial the Board members denied that any such meeting took place. The upshot of the alleged meeting, as Anderson testified she understood it, was that McKinney was to be terminated. She in turn instructed Jack Shannin, her subordinate, to fire McKinney. Shannin testified that he twice asked for McKinney's resignation in compliance with Anderson's instructions. It is undisputed that the formal requirements or procedures of the policy manual were not followed in connection with this request. Indeed,

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McKinney testified that he was not given any reason for his requested resignation other than that the commissioners wanted it. 2 When McKinney protested that Shannin had no reason to fire him, McKinney testified, that Shannin replied, "I don't have anything. But I'll get something." R3-55-132.

In January of 1989, Shannin and Anderson met with McKinney and gave him a list of the reasons for his proposed termination. Immediately thereafter, on three non-consecutive days, hearings regarding these charges were held before the Board itself, instead of the Personnel Committee as provided for by the county's policies. McKinney presented evidence to refute the charges and challenged the validity of some of the testimony as being unverified or motivated by personal animus. Nevertheless, on February 1, 1989 the Board entered a finding that McKinney's termination was justified on the basis of the evidence it heard. 3 McKinney was terminated and this suit ensued.

The crux of McKinney's argument is that the reasons given for his termination were pretextual, and that the hearing was held in an attempt to disguise the Board's illegitimate motives with an appearance of regularity. McKinney suggests those motives were that some Board members, in particular Mr. Pate, were unhappy with him because he was enforcing the code as required. McKinney claims that Pate had ties to contractors who were unhappy because they wanted special treatment, waivers and exemptions to which they were not entitled.

There is substantial evidence to support this claim. Mr. Pate was formerly employed in the Building Division. Prior to McKinney's arrival, Pate had been rejected for the position ultimately awarded to McKinney. Pate was also employed by a dry wall subcontractor whose work, in the normal course of business, was inspected by McKinney's department. 4 Most significantly, both before and after his election to the Board, Pate approached McKinney regarding projects with code violations, although the nature and extent of his intervention is in dispute. 5 Despite the substantial

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evidence in support of McKinney's claim and the jury verdict in his favor, the district court granted the Board's motion for a judgment notwithstanding the verdict. 6

II. Standard of Review

Motions for judgments notwithstanding the verdict are subject to de novo review. Hessen v. Jaguar Cars, Inc., 915 F.2d 641, 644 (11th Cir.1990). The reviewing court therefore applies the same standard in such cases as the district court is required to apply. Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989).

[W]e consider all the evidence, and the inferences drawn therefrom, in the light most favorable to the nonmoving party. If the facts and inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict, then the motion was properly granted. Conversely, if there is substantial evidence opposed to the motion such that reasonable people, in the exercise of impartial judgment, might reach differing conclusions, then such a motion was due to be denied and the case was properly submitted to the jury.

Id. at 581 (citations omitted). Under this standard "there must be a substantial conflict in the evidence to support a jury question." Id. at 581.

The evidence in this case reflected such a conflict. Indeed, even though the balance of the evidence probably favored McKinney, the conflict in the evidence was sufficient to deny McKinney a directed verdict, had he asked for it. Accordingly, a judgment notwithstanding the verdict in favor of the Board was inappropriate where the jury had resolved the disputed factual issues in McKinney's favor. The Board attempts to avoid this result by arguing that the issue of whether McKinney's rights of substantive due process were violated is to be decided by the judge, and further, that the existence of any evidence to support its termination of McKinney compels the court to rule in its favor. This argument, as will be demonstrated below, is not supported by the law.

III. Substantive Due Process

McKinney asserts that, pursuant to county policy, he could only be discharged for cause, and that instead his discharge was founded on illegitimate motives. This action he claims deprived him of a protected property interest in his job without substantive due process. 7 It is well settled that such claims state "a substantive due process violation--deprivation of a property interest for an improper motive and by means that were pretextual, arbitrary and capricious, and ... without any rational basis." Hearn v. City of Gainesville, 688 F.2d 1328, 1332 (11th Cir.1982). See also Adams v. Sewell, 946 F.2d 757, 766 (11th Cir.1991); Barnett v. Housing Authority of Atlanta, 707 F.2d 1571, 1577 (11th Cir.1983). The distinguishing feature of such claims, in contrast to procedural due process claims, is "that certain governmental conduct would remain unjustified even if it were accompanied by the most stringent of procedural safeguards." Gilmere v. City of Atlanta, 774 F.2d 1495, 1500 (11th Cir.1985) (en banc ), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).

For its argument that this case did not present a jury question, the Board relied on Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1578 n. 15 (11th Cir.1989), reh'g denied, en banc, 893 F.2d 346 (1989). Greenbriar was a zoning case where...

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