Abell v. Dewey

• Decision Date: 16 February 1993
• Docket Number: No. 92-41,92-41
• Parties: 10 IER Cases 1270 Linda M. ABELL, Appellant (Plaintiff), v. Roger W. DEWEY and the State of Wyoming, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 36

847 P.2d 36

10 IER Cases 1270

Linda M. ABELL, Appellant (Plaintiff), v. Roger W. DEWEY and the State of Wyoming, Appellee (Defendant).

No. 92-41.

Supreme Court of Wyoming.

Feb. 16, 1993.

Rehearing Granted March 16, 1993.

Nicholas Vassallo and Harold F. Buck of Buck Law Offices, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Josephine T. Porter, Sr. Asst. Atty. Gen., Cheyenne, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

GOLDEN, Justice.

Linda Abell appeals the district court's grant of summary judgment for appellee State of Wyoming in a case involving her termination as a probationary employee. We reverse and remand for trial on the question whether reasonable cause existed for termination and whether appellee Roger Dewey's actions violated appellant's rights under 42 U.S.C. § 1983.

ISSUES

Appellant presents the following issues on appeal:

A. Did Linda Abell have an implied contract of employment under the state personnel rules which required "cause" for her termination?

B. Did Linda Abell have a property interest in her employment, protected by 42 U.S.C. Section 1983, which entitled her to due process of law?

C. Were Linda Abell's due process rights violated?

D. Did the State of Wyoming breach its contract of employment with Linda Abell by terminating her without sufficient cause?

The State of Wyoming argues the issues in the following manner:

I. Appellant has no constitutionally protected property interest in continued employment and is thus not entitled to the procedural protection of due process.

II. Appellee Dewey is entitled to qualified immunity for any actions taken in his individual capacity.

III. Appellee Dewey did not violate any rights appellant may have in pre-termination due process.

IV. The district court correctly granted summary judgment on the breach of contract claim as there are no admissible, material facts that dispute the district court's decision that appellant's conviction provided reasonable cause for her termination.

FACTS

Appellant Linda Abell was employed from October 1976 to May 1984 by Natural Gas Processing in Worland as an accountant responsible for all financial records. On October 25, 1984, the district court of Washakie County found Abell guilty of the crime of felony larceny in violation of Wyo.Stat. § 6-3-402(a) (1983) for taking checks worth $193,737.52 from Natural Gas Processing over a five-year period. Abell pled nolo contendere to the charges and was placed on probation for five years.

Abell applied for the position of Natural Resources Production Principal Auditor in the Minerals Audit Division of the Department of Audit for the State of Wyoming on June 20, 1989. The state employment application form specifically asked the applicant to answer yes or no to question # 21: "Have you ever been convicted of an offense in a court of law?" In filling out the In an employment interview with John F. McGrath, Audit Manager, appellant stated that she had left her position with Natural Gas Processing because of "two very personal and painful lawsuits with my employer" and that a civil suit had been settled out of court. Abell did not discuss the criminal law suit with McGrath.

application form, appellant consulted with her counsel as to the appropriate response to this question. Abell testified that her attorney said the answer to the question was no; as that did not make sense to her, she left the answer blank.

Appellant was sent a letter of employment from McGrath on July 10, 1989, and began working for the State of Wyoming on August 1, 1989. Appellant later informed the then Acting Director of Audit, Stan Hunt, that criminal charges had been filed against her by her former employer, and that she was on probation for embezzlement and had pled nolo contendere to the charge. Appellant also stated that she was limited in what she could discuss concerning the criminal charges because of the civil suit that had been filed. Hunt requested that appellant obtain a letter from Probation and Parole about the incident, which Hunt then reviewed and placed in appellant's personnel file. Appellant stated that Hunt requested the letter so if a question ever came up concerning this issue he could say "I [am] aware of it and it is not a problem."

Roger W. Dewey became Director of the Department of Audit on October 15, 1989, a short time after Abell was hired. Dewey stated that by the second week of his employment he was aware of Abell's criminal involvement from her application form containing the unanswered question and a letter in her file from Probation and Parole. Hunt informed Dewey that he did not have a problem with Abell's continuing employment.

On January 8, 1990, at a meeting with Carol Petera, Dewey's personnel manager from the Department of Audit, and Robert Ortega, Director of Probation and Parole, Dewey learned that Abell was a convicted felon. On January 10, Dewey met with Abell, informed her that her situation was becoming a problem and asked for her resignation. Abell did not resign, and Dewey sent her a letter of termination on January 16, 1990, dismissing her as a probationary employee. Dewey noted his reasons for termination as "circumstances involved in your criminal case" and that:

There is reasonable cause to believe that, as a professional person auditing oil and gas companies, your previous record will have an adverse effect on the credibility of the audits performed by this office, and that your continued employment is detrimental to the operation of the agency.

Abell requested a dismissal hearing from the Department of Administration and Information (DAI), formerly known as the Department of Administration and Fiscal Control. On February 6, 1990, DAI denied the hearing request because of her probationary status as an employee at the time of her termination for reasonable cause. In his letter to Abell denying the request, Mike Miller, Personnel Administrator of that department, cited Chapter XI, Section 3(c)(ii) of the State of Wyoming Personnel Rules. Chapter XI, Section 1(a) lists reasons for discipline of an employee.

Dewey admits that Abell's work was good and that "[t]here's never been any question about her ability or the quality of her work." Dewey also stated that "the real issue is whether the person's offense and conviction is going to impair in the State's view or anybody else's view the credibility of the work produced by the person. That's the issue." Dewey stated that even a felony would not be a factor unless it were work related and commented that: "Linda wasn't terminated because of her performance. Linda was terminated because she is a convicted felon."

Abell filed suit on January 14, 1991, claiming breach of contract by the State of Wyoming, violation of due process rights under 42 U.S.C. § 1983 against Roger Dewey for refusing to allow her to present her side of the story prior to termination, and violation of due process rights by the State of Wyoming for failure of the state personnel

rules to require a pre-termination hearing for probationary employees. Appellees answered the complaint on February 6, 1991, and filed a motion for summary judgment on July 26, 1991. Abell filed a motion for partial summary judgment on July 29, 1991. Appellant sought to add Mike Miller as a defendant by motion on August 27, 1991, which was not ruled upon by the court. On January 14, 1992, the district court entered an order granting summary judgment for appellees and denying appellant's motion for partial summary judgment. Abell now appeals this order.

STANDARD OF REVIEW

Once again we repeat our standard of review for summary judgment:

When reviewing the propriety of a summary judgment, this court examines the record from the vantage point most favorable to the party opposing summary judgment to determine whether there exists a genuine issue of material fact to preclude disposition of the case as a matter of law. A genuine issue of material fact exists when a disputed fact, if proved, would have the effect of establishing or refuting an essential element to the cause of action or defense asserted by the parties. If upon such review no genuine issue of material fact is found to exist, we will uphold a summary judgment under any legal theory properly supported by the record.

Ulrich v. United Services Auto. Ass'n, 839 P.2d 942, 945 (Wyo.1992) (quoting Equality Bank of Evansville, Wyoming v. Suomi, 836 P.2d 325, 328 (Wyo.1992)).

DISCUSSION

1. Reasonable cause for discharge

In deciding this case, we find a framework to guide our analysis in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494, (1985). We must first determine whether appellant had "a property right in continued employment." Loudermill, 470 U.S. at 538, 105 S.Ct. at 1491, 84 L.Ed.2d at 501. If a reasonable expectation of continued employment cannot be shown, then there is no "property interest under state law or otherwise." Leonard v. Converse County Sch. Dist. No. 2, 788 P.2d 1119, 1121 (Wyo.1990) (quoting Roberts v. Lincoln County Sch. Dist. No. 1, 676 P.2d 577, 579 (Wyo.1984)). If a property right is found to exist, appellant may not be deprived of that right without due process of law. ¹ Loudermill, 470 U.S. at 538, 105 S.Ct. at 1491, 84 L.Ed.2d at 501; Town of Upton v. Whisler, 824 P.2d 545, 549 (Wyo.1992).

As instructed by Loudermill, we look not to the Constitution to define the existence of a property right, but to "existing rules or understandings that stem from an independent source such as state law" to determine its creation and dimensions. Loudermill, 470 U.S. at 538, 105 S.Ct. at 1491, 84 L.Ed.2d at 501 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972)). With this guideline in mind, we examine the rules before us to determine whether appellant was conferred such a right. We begin by noting rules...