Peterson v. Atlanta Housing Authority

• Decision Date: 20 August 1993
• Docket Number: No. 92-8318,92-8318
• Citation: 998 F.2d 904
• Parties: Shirley P. PETERSON, Plaintiff-Appellant, v. The ATLANTA HOUSING AUTHORITY, Jane Fortson, in her capacity as Chairman of the Board of Commissioners of the Housing Authority of the City of Atlanta, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 904

998 F.2d 904

26 Fed.R.Serv.3d 1040

Shirley P. PETERSON, Plaintiff-Appellant, v. The ATLANTA HOUSING AUTHORITY, Jane Fortson, in her capacity as Chairman of the Board of Commissioners of the Housing Authority of the City of Atlanta, et al., Defendants-Appellees.

No. 92-8318.

United States Court of Appeals Eleventh Circuit.

Aug. 20, 1993.

Susan B. Ellis, Office of Susan B. Ellis, Decatur, GA, for plaintiff-appellant.

Benjamin W. Spaulding, Jr., Atlanta, GA, for defendant-appellee Bettye Davis.

Adam J. Conti, Mack & Bernstein, Atlanta, GA, for all other defendants-appellees.

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

Before FAY and DUBINA, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

FAY, Circuit Judge:

Shirley Peterson, a former employee of the Atlanta Housing Authority ("AHA"), appeals several rulings of the district court as erroneous in her suit against AHA challenging her termination from her job as a violation of her rights to substantive and procedural due process, a violation of her First Amendment rights, a state breach of contract, and an unlawful conspiracy in violation of 42 U.S.C. § 1983. The district court dismissed Peterson's claims as to substantive and procedural due process insofar as they relied on a claimed liberty interest, finding that Peterson's complaint failed to state a claim under the relevant law. At the same time, it also dismissed Peterson's state law breach of contract claim. Those rulings we AFFIRM. However, in a later order on cross motions for summary judgment, the district court granted summary judgment in favor of the appellee, AHA, on all of Peterson's remaining claims. In so doing, the district court relied heavily on this Court's opinion in Warren v. Crawford, 927 F.2d 559 (11th Cir.1991), holding that the reasoning in Warren dictated a finding that Peterson did not have a property interest in her job. Because we find that Warren does not apply, we REVERSE as to all of Peterson's claims which are based on a property interest and hold she had a protectable property interest in her job. Finally, because we find that the speech in question here can be "fairly characterized as constituting speech on a matter of public concern ..." Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986), we also REVERSE the district court's summary judgment on the First Amendment issue.

I. BACKGROUND Facts

Shirley Peterson was hired by the Atlanta Housing Authority on April 10, 1972 and became a permanent employee on October 2, 1972. For the next seventeen years her employment record reflected a steady climb up the ladder at AHA in terms of promotions, pay increases and increased responsibility ¹ until February of 1989 when she was transferred to a newly created, unbudgeted, temporary position entitled "Area II Auditor (Acting)." One month later this position was abolished in a system-wide reorganization of AHA. At that time some 100 employees were notified that their positions would be abolished under the reorganization and that "[t]he Personnel Policies governing a reduction in force will be in effect." R3-26 (Exhibit F) at 1. However, they were simultaneously notified that, in contrast to an earlier "reduction in force," ² most of the abolished positions had new analogues under the planned reorganization for which the affected employees were invited to apply. Indeed, the plan called for the creation of 125 ³ new positions, leaving open the possibility that no one would actually be terminated as a result of this reorganization.

In fact, all but five of the employees affected by the reorganization were rehired. ⁴ However, the employees who were rehired first had to apply for the open positions in the new structure and go through some sort of interview process. ⁵ Shirley Peterson applied for eight of the new positions created by the plan, including the manager position at the Gilbert Gardens complex which she had held prior to her reassignment to the temporary auditor position. Given AHA policies, she had good reason to be optimistic about her chances of being chosen for some position. The AHA personnel policy governing reductions in force reads "A regular full-time employee affected by a reduction-in-force shall be transferred to a vacant position in another position classification based on qualifications, experience and past performance." R3-27 (Deposition of C. Geeter) Exhibit 4 (AHA Personnel Policy Manual) at 59, Policy No. 7-3, Sec. 5 (emphasis added). ⁶ See also Deposition of Geeter at 143 (employees were informed "that they could refer to [the] personnel policy for information regarding the reduction in force."). Nevertheless, in a letter dated April 28, 1989, Peterson was informed that she had not been selected for any of the positions for which she had applied. Thereafter she was notified that she was being terminated due to a reduction in force effective May 1, 1989.

This letter did not invite Ms. Peterson to apply for any open positions and did not reveal to her that several positions, including the analogue to her former position at Gilbert Gardens (for which she had applied), in fact remained unfilled. The evidence reflects this omission was contrary to the practice followed with other employees. See R3-27 (Deposition of Geeter) at 180-81. The record also shows that the manager position at Gilbert Gardens remained open after the reorganization, notwithstanding the representation made to employees that an effort would be made to fill the vacancies generated by the reorganization from "within our ranks." R3-26 (Exhibit G) at 1.

AHA does not now assert that Peterson was unqualified for any of the open positions, nor is there any indication in her record of poor performance which would have disqualified her for consideration under this section. Instead, AHA merely asserts that the panel responsible for interviewing candidates was "unimpressed by Peterson's presentation," ⁷ Appellees' Brief at 14, although she was apparently not asked any questions nor told that she was expected to make a "presentation." No one else involved with the process appears to remember anything about Peterson's "interview" or why she was not chosen to fill any of the vacancies for which she applied. Given the failure to ask questions, the interviewers' sketchy recall, the absence of negative information in Ms. Peterson's personnel record and the length of her experience with AHA, it's difficult to judge the true meaning of this exercise.

According to Peterson, the explanation for all of the foregoing anomalies is that certain persons within AHA, particularly Deputy Director Bettye Davis, were already determined to terminate her. She alleges that both her transfer to an unbudgeted, temporary position, and her later termination under the guise of a reduction in force, occurred because of her attempt to call attention to maintenance problems within her projects and her refusal to "pre-lease" units in the project she managed. For some time Peterson had been informing her supervisor, Yolanda Jackson, of problems she was experiencing in maintenance due to the number of vacancies in her budgeted maintenance slots. According to Peterson, the chronic under-staffing of her maintenance crew meant that she was unable to keep abreast of maintenance at Gilbert Gardens. On several occasions she had asked, through Jackson, to meet with officials higher up in the chain of command to discuss these problems. This situation was brought to a head when Jackson asked Peterson to pre-lease units in the project.

"Pre-leasing" apparently involved Peterson having to list as "available for occupancy" units which did not meet either HUD requirements in terms of habitability or the same requirements contained in the lease agreements which would be signed by the tenants. ⁸ Her supervisor's position on the request to pre-lease some units was that the affected units would be ready by the time the tenant actually moved in because of the new maintenance "team" concept which Jackson was attempting to use to get units ready for occupancy. ⁹ Peterson's response was that, based on her experience with the maintenance teams' work and because of the inadequacy of her own maintenance staff, she had no reason to believe that these units would actually be ready for occupancy when required. When she was directed by Jackson to pre-lease units which did not meet HUD standards, Peterson refused unless Jackson could assure her in writing that the pre-leasing practice was acceptable to HUD. The next day Peterson was transferred by Jackson to the temporary auditor position. Jackson testified that she did not consider Peterson's transfer to be disciplinary in nature but rather was made because she "thought a change would be good," suggesting that Peterson was "burned out." R4-33 (Deposition of Jackson) at 98.

Peterson viewed the transfer as a demotion even though it was not officially so designated, and even though she received no reduction in pay, because it involved a substantial diminution in authority and was a position that was essentially created for her transfer. Therefore, she filed a grievance protesting her transfer. A hearing was held on March 1, 1989. However, before a decision was rendered, AHA's Board of Directors authorized the aforementioned reorganization. Apparently, the responsible persons at AHA felt that the reorganization mooted Peterson's grievance because no decision was ever rendered on it and the events described above in connection with the reorganization took place, ending in Peterson's termination.

Peterson alleges that her termination was also, in part, in retaliation for her having filed the grievance and that both prior to and throughout the grievance proceeding defendant Bettye Davis expressed hostility towards her. Peterson asserts that she was never really considered for any of the vacant positions created by the reorganization because the...