Alexander v. City of Menlo Park, s. 84-2150
| Decision Date | 24 June 1986 |
| Docket Number | Nos. 84-2150,84-2189,s. 84-2150 |
| Citation | 787 F.2d 1371 |
| Parties | 41 Fair Empl.Prac.Cas. 1590, 44 Fair Empl.Prac.Cas. 847, 40 Empl. Prac. Dec. P 36,213, 40 Empl. Prac. Dec. P 36,314 Robert P. ALEXANDER, Plaintiff-Appellant, v. CITY OF MENLO PARK; Mike Bedwell, City Manager of City of Menlo Park, Defendants-Appellees. Robert P. ALEXANDER, Plaintiff-Appellee, v. CITY OF MENLO PARK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Louis Highman, San Francisco, Cal., for plaintiff-appellant.
John R. Cosgrove, Jorgenson, Cosgrove, Siegel & McClure, Menlo Park, Cal., for defendants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before BROWNING, Chief Judge, FARRIS and NELSON, Circuit Judges.
Robert Alexander appeals a judgment against him on his Title VII claim and an award of only nominal damages on his section 1983 claim, in a suit against the City of Menlo Park, California. The City appeals the award of attorney's fees to Alexander's counsel. We affirm in part and reverse in part.
Alexander, a black man, served as Youth Services Facility Director for Menlo Park. The City Council voted to abolish the position. Mike Bedwell, City Manager, offered Alexander the choice of being laid off or accepting a probationary promotion to the job of Recreation Supervisor II. Alexander accepted the new job.
During Alexander's probation, he had several confrontations with Mary Leydon, his department head. At the end of the probationary period Leydon found Alexander's performance inadequate and recommended he be terminated. Bedwell terminated Alexander.
Alexander sued, alleging causes of action under 42 U.S.C. Secs. 1981 (1982) and 1983 (1982), and Title VII, 42 U.S.C. Secs. 2000e-2 (1982) and 2000e-3 (1982).
After trial, the district court held Alexander had been denied procedural due process in violation of section 1983. The court ruled that when Alexander was terminated from the probationary position, under City rules he "had a right to be returned to" his earlier job or another at the same level; and, if no such job was available, he "was entitled to bumping rights." The court found Alexander had been wrongfully denied these "bumping rights" as to the jobs of gym director or night clerk. The court computed Alexander's back pay award at the level of these jobs, divided the amount by two "[b]ecause his efforts in mitigation of damages appear to be less than vigorous," subtracted the amount already paid to Alexander as unemployment insurance, and awarded Alexander $11,114.03.
The court rejected Alexander's Title VII claim because he had failed to rebut the City's evidence of nondiscriminatory employment practices and had offered no evidence of retaliatory discharge. The court rejected Alexander's section 1981 claim without discussion.
On Alexander's motion, the court ordered a new trial confined to the issue of damages. After trial, the court reduced the damage award to one dollar on the ground that the City's failure to accord Alexander the right to bump into the gym director or night clerk jobs caused no "compensable injury" because he would not have taken either job. The court awarded Alexander $21,508 in attorney's fees and $744.18 in costs. Both sides appeal.
City Rules provide that a probationary "employee deemed unsatisfactory for [appointment to the permanent] position shall return to prior classification and non-probationary status." Alexander therefore had a right to be returned to a job in the same classification as his prior job. However, as noted, the City Council had abolished the position of Youth Services Facility Director and the City had no other position in that classification.
Alexander contends his former position was not "formally" abolished at the time he should have been returned to it after failing the probationary promotion. The record shows unequivocally, however, that the City Council abolished the position of Youth Services Facilities Director before Alexander accepted the promotion. The Council did not have to do so again.
Since Alexander could not be returned to his original job or one in the same classification, he was entitled under City Rules either to bumping rights or, if he had no bumping rights or chose not to exercise them, to severance pay.
City Rules would permit Alexander "to displace a less senior employee in the same department who occupies a position which the more senior employee is qualified to occupy in the judgment of the department head" unless the department head and City Manager determine that the less senior employee has special skills such that displacement would impede or impair the operation of the department.
The district court found Alexander could not bump into the Recreation Supervisor I position held by Aaron Johnson, because "neither [Leydon nor Bedwell] would have approved [his] displacement of Aaron Johnson or of any employee outside of the ... department."
Although the district court's language did not track City Rules exactly, it is evident the court found that Bedwell and Leydon had determined Alexander was not qualified for the job of Recreation Supervisor I and that Johnson had "special skills" without which the operation of the department would be impaired.
The evidence before the court was sufficient to support such findings. Leydon testified Alexander was not qualified for the Recreation Supervisor I job in part because he did not know how to prepare lesson plans which were an important part of the job. (It was largely because of this inability that she had recommended Alexander be terminated from his probationary position.) She also testified the Recreation Supervisor I job required developing a new program and was more difficult than the Recreation Supervisor II job, which involved working with existing programs. She doubted Alexander's ability to work far from close supervision and assistance and to fit in at Belle Haven, a predominantly black community, because of his view that that community was treated differently from the rest of the city.
In contrast, the only evidence suggesting Alexander was qualified was his past experience and receipt of favorable recommendations as Youth Services Facility Director (offset by Bedwell's testimony that Alexander had not performed well in that position) and his promotion by Bedwell and Leydon to Recreation Supervisor II. Alexander offered only uncorroborated testimony that as Youth Services Facilities Director he successfully developed new programs, and hired and supervised assistants.
Johnson's special skills included a masters degree in Recreation Administration, special talent dealing with children and preparing programs for them, and the "ability to deliver information to the City Council ... regarding the post." Leydon testified she "couldn't have been more pleased" with his work and her testimony suggested replacing him would interfere with the working of the Parks Department. Alexander offered no evidence to the contrary.
The district court held Alexander was wrongfully deprived of his right to bump into the next less-senior classification--specifically, the job of gym director or night clerk.
Alexander had a legitimate claim of entitlement to bumping rights to particular positions under City Rules, and thus a constitutionally protected property interest. See Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972). Under the test established by Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), Alexander was deprived of that property interest without due process. The weight of "the private interest," id., involved was substantial--Alexander's opportunity to continue his employment, maintain his income, and protect his reputation. See, e.g., Jordan v. City of Lake Oswego, 734 F.2d 1374, 1376 (9th Cir.1984). The "risk of an erroneous deprivation," Mathews, 424 U.S. at 335, 96 S.Ct. at 903, was also substantial. Bedwell testified he did not offer Alexander bumping rights as to the jobs of gym director or night clerk because he thought Alexander would feel "demean[ed and] angry." Such subjective assessments of another's potential emotional reactions are often inaccurate. Alexander himself testified that he would have accepted the jobs. The "[g]overnment's interest," Mathews, 424 U.S. at 335, 96 S.Ct. at 903, in the procedure followed was negligible. Neither the financial nor operational cost of affording Alexander the opportunity to take one of the two jobs was significant.
The City argues that Alexander suffered no loss because he would not have accepted either of the two available positions had they been offered. Whether Alexander suffered loss, however, has no bearing on whether he was denied due process. See Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978).
The City's claim that Alexander knew his bumping rights but chose not to exercise them is also unavailing. The record strongly suggests Alexander...
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