Allen v. City of Pocahontas, Ark.
| Decision Date | 15 August 2003 |
| Docket Number | No. 02-1990.,02-1990. |
| Citation | 340 F.3d 551 |
| Parties | Judy ALLEN, Plaintiff/Appellant, v. CITY OF POCAHONTAS, ARKANSAS; Pocahontas Housing Authority; James Black, individually and in his official capacity as a member of Pocahontas Housing Authority Board of Commissioners; Mike Dunn, individually and in his official capacity as a member of Pocahontas Housing Authority Board of Commissioners; Max Oakley, individually and in his official capacity as a member of Pocahontas Housing Authority Board of Commissioners; Hite Tiner, individually and in his official capacity as a member of Pocahontas Housing Authority Board of Commissioners; S.L. Tyer, individually and in his official capacity as a member of Pocahontas Housing Authority Board of Commissioners; Carolyn Loggains, Director of Pocahontas Housing Authority, individually and in her official capacity, Defendants/Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Larry J. Steele, argued, Walnut Ridge, AR, for appellant.
Matthew K. Wren, argued, Little Rock, AR, for appellee.
Before McMILLIAN, MELLOY, Circuit Judges, and FRANK,1 District Judge.
Appellant Judy Allen appeals the District Court's2 order granting summary judgment to Pocahontas Housing Authority, James Black, Mike Dunn, Max Oakley, Hite Tiner, S.L. Tyer, and Carolyn Loggains.3 For the reasons set forth below, we affirm.
Appellant Judy Allen ("Allen") began working as a maintenance person for the Pocahontas Housing Authority in March of 1980.
Carolyn Loggains ("Loggains"), another employee of the Pocahontas Housing Authority (the "Housing Authority"), was promoted to executive director of that organization in or around 1991. Although Loggains and Allen had previously enjoyed an amicable relationship, their relationship soured after Loggains's promotion. In or around 1993 or 1994, Allen was subpoenaed to testify against Loggains in a lawsuit involving allegations of fraud and wrongful eviction of a Housing Authority tenant. In the wake of that incident, the relationship between Allen and Loggains deteriorated even farther. By February of 1997, Loggains and Allen were speaking to one another only when absolutely necessary.
On or about February 5, 1997, Loggains terminated Allen.
On March 7, 1997, Allen received a letter, dated March 5, from the Housing Authority Board of Commissioners ("the Board") stating that, although the Board believed the termination was appropriate, they were reinstating Allen with back pay and benefits because they believed that the personnel policies governing the termination were outdated and in need of revision. The letter further advised Allen to report to work on March 12, 1997.
On March 11, 1997, Allen circulated a petition among the Housing Authority tenants. The petition stated: "We the tenants of the Pocahontas Housing Authority, without prejudice or a biased opinion, feel the Executive Director (Carolyn Loggains) of the Housing Authority, does, with malice, treat the tenants with a disrespectful and demeaning attitude."
One of the tenants, Clark Evans, attempted to take the petition to the Housing Authority office, but asserted that Allen stopped him. Evans called the police. According to the police report, Evans complained that Allen
On March 12, 1997, the day she was to return to work, Allen called in sick. She continued to call in sick until March 24, 1997.
On March 25, 1997, the Housing Authority gave Allen a copy of its revised personnel policy, and Allen signed a statement indicating that she had received, read, understood, and agreed to the revised policy.
On March 26, 1997, Loggains sent Allen a letter accusing her of making obscene gestures and mouthing an obscenity, both directed at Loggains. Allen requested and was afforded a grievance hearing regarding the letter. Following the grievance hearing on April 4, 1997, the Housing Authority informed Allen that the March 26, 1997, letter would be placed in Allen's personnel file.
On or about April 25, 1997, Loggains resigned from the Housing Authority.
On April 28, 1997, Clark Evans again contacted the police about Allen. According to the police report, Evans complained that Allen
ha[d] been harrassing [sic] him. He said that Allen who works at Manor Apts is mad at him because he took a petition from her and gave it to the management. Mr. Evans said that Allen has swerved at him w/ her vehicle and keeps harrassing [sic] him. Evans states it has been ongoing.
On May 21, 1997, S.L. Tyer, Acting Executive Director of the Housing Authority, notified Allen that she was being terminated for insubordination and tenant complaints. Allen requested and received a grievance hearing regarding her termination.
Allen brought suit on February 1, 1999, alleging violations of her First Amendment right to free speech, her Fourteenth Amendment right to due process, 42 U.S.C. §§ 1983 and 1985, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Civil Rights Act of 1991, and Title VII (gender discrimination).
We review de novo a grant of summary judgment, applying the same standard as the district court and viewing the record in the light most favorable to the nonmoving party. Barrera v. Con Agra, Inc., 244 F.3d 663, 665 (8th Cir.2001). Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
Allen asserts that she had a property interest in her position with the Housing Authority and was thus entitled to procedural due process prior to termination. She further alleges that the termination implicated a constitutionally protected liberty interest.
Whether an employee's interest in her job rises to the level of a constitutionally protected property right is a question of state law. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Arkansas law recognizes two exceptions to the at-will employment doctrine: (1) where a personnel manual specifies that termination will only be for cause and (2) where the employment agreement itself specifies that termination will only be for cause. See Rogerson v. Hot Springs Advertising and Promotion Comm'n, 237 F.3d 929, 930 (8th Cir.2001); Gladden v. Ark. Children's Hosp., 292 Ark. 130, 728 S.W.2d 501, 505 (Ark.1987).
Allen suggests that the practice and procedures in place at the time of Allen's first termination-which is not a part of the record before the Court, except as described in the testimony of former Board chairman Elwood Smith-specified that employees were entitled to certain pre-termination notice and procedures. While that might have been true at the time of Allen's initial termination, the employee manual in place at the time of her second termination provided only for a post-termination grievance procedure, which is insufficient to create a constitutionally protected property interest. See Skeets v. Johnson, 816 F.2d 1213, 1215 (8th Cir.1987).
Moreover, the only evidence in the record that the "policy" in place at the time of the first termination provided for any sort of pre-termination process is the testimony of former Board Chair Elwood Smith that "you can't fire an employee until you have 20 days notice or something to that effect." (Joint Appendix at 105.) "Grievance procedures that do not establish any grounds upon which termination must be based do not in themselves create a property interest in employment." Hogue v. Clinton, 791 F.2d 1318, 1324 (8th Cir.1986) (citations omitted). Indeed, where the procedures "place no significant substantive restrictions on the decision-making," the procedures themselves will not create a property interest in the employment. Id.
Allen urges the Court to recognize another exception to the at-will employment doctrine, one for terminations in violation of public policy. Specifically, Allen asserts that she was terminated because she testified against Loggains in 1993 or 1994 and that, as a result, her termination violated Arkansas law. Again, the Court need not address the outstanding legal question of whether the public policy exception to Arkansas's at-will employment doctrine creates a "property interest" that is protected by the Fourteenth Amendment's guarantee of due process. Here, the record contains absolutely no evidence that Allen was terminated because of her 1994 testimony against Loggains. The mere fact of protected conduct is not sufficient to give rise to an inference of causation, and the extraordinary length of time between the testimony and Allen's termination would belie any attempt to infer causation. Moreover, Allen's second termination came after Loggains herself had left the Housing Authority, and there is no evidence that any of the decision-makers involved in the second termination were even aware of Allen's prior testimony.
The Court turns next to Allen's assertion that she was deprived of a liberty interest without due process. "An employee's liberty interest is implicated where the employer levels accusations at the employee that are so damaging as to make it difficult or impossible for the employee to escape the stigma of those charges." Shands v. City of Kennett, 993 F.2d 1337, 1347 (8th Cir.1993). In addition to demonstrating that the proffered reasons for discharge were stigmatizing, an employee asserting violation of a liberty interest must further show that his employer made those reasons public. See Payne v. Ballard, 761 F.2d 491, 493 (8th Cir.1985...
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