Asbill v. Housing Authority of Choctaw Nation of Oklahoma, 82-1789

• Decision Date: 02 February 1984
• Docket Number: No. 82-1789,82-1789
• Citation: 726 F.2d 1499
• Parties: 115 L.R.R.M. (BNA) 3559, 1 Indiv.Empl.Rts.Cas. 843 Barbara ASBILL, Plaintiff-Appellee, v. HOUSING AUTHORITY OF the CHOCTAW NATION OF OKLAHOMA, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1499

726 F.2d 1499

115 L.R.R.M. (BNA) 3559, 1 Indiv.Empl.Rts.Cas. 843

Barbara ASBILL, Plaintiff-Appellee, v. HOUSING AUTHORITY OF the CHOCTAW NATION OF OKLAHOMA, et al.,

Defendants-Appellants.

No. 82-1789.

United States Court of Appeals, Tenth Circuit.

Feb. 2, 1984.

Joe Stamper of Stamper, Otis & Burrage, Antlers, Okl., for plaintiff-appellee.

Bob Rabon of Kile, Rabon & Pullin, Hugo, Okl., for defendants-appellants.

Before BARRETT and LOGAN, Circuit Judges, and CHILSON, ^* Senior District Judge.

BARRETT, Circuit Judge.

Plaintiff, Barbara Asbill (Asbill), brought this Sec. 1983 civil rights suit against the Housing Authority of the Choctaw Nation of Oklahoma ("the Authority"), various members of the Authority's Board of Commissioners, and the Chief of the Choctaw Nation of Oklahoma. Asbill alleged that the defendants violated her constitutional rights by discharging her from her position as an outreach worker with the Authority.

Specifically, Asbill claimed that she possessed a property interest in her continued employment with the Authority and a liberty interest in her professional reputation. These interests, Asbill averred, were unlawfully taken from her pursuant to procedures which did not comport with due process as guaranteed by the fourteenth amendment. In addition, she claimed the defendants unlawfully discharged her in retaliation for the free exercise of her first amendment rights.

The case was tried to a jury which returned a general verdict in favor of Mrs. Asbill. The defendants appeal from the judgment entered upon the verdict, claiming, inter alia, that there is no basis in law supporting liability and, alternatively, that even if liability were properly found portions of the damages awarded are contrary to law.

BACKGROUND

This case arose out of confusion surrounding the transition of leadership of the Authority in 1978 and 1979. The Authority is an agency of the State of Oklahoma organized and run by and for the benefit of the Choctaw Nation; its purpose is to provide decent housing for low and moderate income Indian families in Southeastern Oklahoma. The Authority is administered Clark David Gardner was Chief of the Choctaw Nation until his death in January of 1978. The Bureau of Indian Affairs then appointed Emory Spears to serve as "coordinator of tribal affairs" until a new Chief could be elected. Before this election took place, however, Spears reappointed three of the Authority's Commissioners whose terms had expired. Spears authority to make these appointments was the issue which sparked the controversy in this case.

by a board of five commissioners appointed by the popularly elected Chief of the Choctaw Nation.

In April of 1978, the Choctaw Nation elected Holis E. Roberts as its new Chief. In February of 1979, Chief Roberts replaced the Spears appointees, believing that the Commissioners could be appointed only by the elected Chief of the Nation. The Executive Director of the Authority, Charles L. McIntyre, disputed Chief Roberts' replacement of the three Commissioners. On February 27, 1979, the "new" board then voted to terminate McIntyre and named Appellant George Thompson as the new Executive Director.

Out of this imbroglio sprang a new one involving Asbill. After the Board terminated McIntyre, it attempted to hold its monthly meeting on March 6, 1979, in the Authority's auditorium. When the members of the "new board" arrived, however, they found the replaced members, including McIntyre, sitting at the meeting table at the front of the auditorium. In addition, the auditorium was full of spectators and Authority employees; the atmosphere was noisy and tension-filled.

In an effort to conduct business, the "new board" set up a table at the back of the auditorium. The new director, Thompson, attempted to convince the crowd that the new board was the proper board and that its authority had been approved by the Department of Housing and Urban Affairs. Thompson stated to the crowd that they should recognize the new board members and himself as officially occupying their respective positions.

Asbill, however, refused to do this. She stated to the crowd that she "still worked for Mr. McIntyre and would remain there until he told her to go." (Tr. 282). When asked to move to the back of the auditorium where the new board was sitting, Asbill refused and remained quietly in her chair at the front of the auditorium.

Thompson testified that at the end of the meeting he immediately prepared Asbill's termination letter, which read in pertinent part as follows:

"In view of the fact you refused to recognize the Board of Commissioners and the Acting Director of the Housing Authority of the Choctaw Nation of Oklahoma, I have no alternative but to advise you, your employment with the Housing Authority is hereby terminated effective March 7, 1979." (Tr. 284).

Thompson also testified that he prepared this letter with no knowledge that after the meeting Asbill joined a picket line outside the building organized to protest the authority of the new board.

On February 20, 1981, Asbill brought this action pursuant to 42 U.S.C. Sec. 1983 (1979) alleging that Thompson "upon the direction and with the approval of the other defendants .... wrongfully .... and without affording her notice or due process, terminated plaintiff's employment" and that the defendants deprived her of "rights, privileges, and immunities secured ... by the constitutional laws of the United States" and that she suffered "stigma to her reputation", depriving her of liberty and property. (Appellants Brief at 4). At trial, Asbill was permitted, over objections, to offer evidence of the denial of her first amendment rights, although such a claim did not appear specifically in the complaint.

BASIS OF THE CLAIM

The Property Interest: In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court discussed the basis for a public employee's claim of a property right in continued employment. That right, held the Court, derives not from an employee's "abstract need or desire" for the employment, but from a "legitimate claim of entitlement to it." Id. at 577, 92 S.Ct. at 2709. The Court explained that legitimate claims of entitlement Asbill contends that the Authority's Grievance Procedure constitutes such an independent source supporting her "legitimate claim of entitlement" to future employment. The Grievance Procedure relied upon by Asbill, although ambiguous, lays out certain procedures to be followed in termination disputes; it can be read to grant a permanent employee the rights to a pre-termination hearing and a two week notice of dismissal. ¹

arose from independent sources such as state law, rules, or understandings that secure benefits to an employee. Id.

By themselves, however, these procedural protections do not support a "legitimate claim of entitlement" to future employment. At best, they merely support a claim of entitlement to the procedural protections themselves. At least five circuits have adopted the view that procedural protections alone do not create a protected property right in future employment; such a right attaches only when there are substantive restrictions on the employer's discretion. ² For example, if a statute, regulation, or policy specifies the grounds on which an employee may be discharged, or restricts the reasons for discharge to "just cause shown," then the employee has a right to continued employment until such grounds or causes are shown. This court has also indicated that a property right to future employment may attach when public employees hold contractual rights to continuing employment under formal tenure grounds, or when the employment is set for a fixed term or commission. Abeyta v. Town of Taos, 499 F.2d 323, 327 (10th Cir.1974).

There is no evidence in the record suggesting any substantive restriction on the Authority's power to discharge Asbill. Her employment must be considered to have been terminable at will. Accordingly, she possessed no property right in continued employment and the trial court erred in submitting this claim to the jury as part of her alleged due process violation. ³

The Liberty Interest: Mrs. Asbill also alleged that her professional reputation was tarnished by the manner in which she was terminated by the Authority. She claimed that Thompson's statements in the letter of dismissal "stigmatized" her, thereby limiting her freedom to pursue future employment. Thus, she concluded, by denying her the opportunity to rebut these statements at a hearing, the Authority deprived her of a liberty interest without due process in violation of the fourteenth amendment.

The Supreme Court, however, has placed several limitations upon a public employee's right to allege a deprivation of liberty under these circumstances. In a series of cases, the Court has held that for an employee to make a successful liberty deprivation claim she must show that her dismissal resulted in the publication ⁴ of information which was false ⁵ and stigmatizing ⁶--information which had the general effect of curtailing her future freedom of choice or action.

We hold that Asbill's claim falls short of meeting these requirements. ⁷ First, Asbill admitted that Thompson's statements as to why she was discharged were true (Tr. 160). Second, it does not appear from the record that Thompson's statements were published outside the state government; such intra-government dissemination, by itself, falls short of the Supreme Court's notion of publication: "to be made public." See Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976). Third, assuming that Thompson's statements were false and published, it is doubtful that these statements were of the magnitude that could be considered "stigmatizing." It may well be true that Asbill has experienced some difficulties in obtaining employment as a result of her discharge; certainly,...