Conaway v. Smith, No. 85-2914

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 853 F.2d 789
• Parties: Clyde CONAWAY, Plaintiff-Appellant, v. Edward C. SMITH, Director, Neighborhood Preservation Department of City of Kansas City, Kansas; M. James Medin, City Administrator of the City of Kansas City, Kansas; and the City of Kansas City, Kansas, a municipal corporation, Defendants-Appellees.
• Decision Date: 02 August 1988
• Docket Number: No. 85-2914

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853 F.2d 789 Clyde CONAWAY, Plaintiff-Appellant,
v.
Edward C. SMITH, Director, Neighborhood Preservation
Department of City of Kansas City, Kansas; M. James Medin,
City Administrator of the City of Kansas City, Kansas; and
the City of Kansas City, Kansas, a municipal corporation,
Defendants-Appellees. No. 85-2914. United States Court of Appeals,
Tenth Circuit. Aug. 2, 1988.

Page 790

Gail A. Bruner of Carson & Fields, Kansas City, Kan., for plaintiff-appellant.

Daniel B. Denk of McAnany, Van Cleave & Phillips, Kansas City, Kan., for defendants-appellees.

Before McKAY, ALARCON, ^* and MOORE, Circuit Judges.

PER CURIAM.

Plaintiff-appellant brought this action against defendants-appellees claiming they had violated his First Amendment right to free speech and Fourteenth Amendment right to due process by wrongfully discharging him from public employment. Defendants thereafter filed a motion for summary judgment, which the district court granted. Plaintiff appeals this judgment and argues that genuine issues of material fact exist as to his liberty and property interest due process claims and as to his First Amendment claim.

I. Factual Background

Clyde Conaway, plaintiff, was hired on July 27, 1982, by the City of Kansas City, Kansas, as an electrical inspector in the Building Inspection Division of the Neighborhood Preservation Department. At the time he was hired, no written or oral contract of employment was entered into stating the terms, conditions, or duration of his employment.

According to Conaway's verified complaint, several work-related problems arose during the next two years. First, Conaway and his partner were ordered by their immediate supervisor, Robert Wiggins, to perform certain campaign work for the mayor on city time or for compensatory time off. Second, Conaway claims problems developed because he refused to approve or "release as operational" substandard

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electrical work in certain community development projects, often in opposition to his immediate supervisor's demands. Finally, Conaway alleges that he made public charges against Robert Wiggins and John Mendez, his supervisors, for ordering him to perform electrical work during city time on their homes and the homes of their friends and relatives, sometimes without the proper permits and licenses. ¹

Conaway was suspended for thirty days on March 16, 1984, for the stated reason that he had threatened his immediate supervisor, Robert Wiggins. On April 3, 1984, Conaway was notified by a letter from Ed Smith, Department Director, that he could return to work after his suspension but was subject to a six-month probation period. While on probation, Conaway was warned he would be immediately terminated for any further "serious misconduct."

The events which led up to Conaway's ultimate dismissal began on May 25, 1984. Conaway was instructed to perform an electrical inspection of the Highland Park baseball fields. He discovered several electrical violations which were dangerously exposed to the public and refused to approve the facility as operational. Upon informing his new supervisor, Lyle Fisher, of the violations, Fisher instructed him to release the facility as operational and to perform a follow-up inspection the next week. Conaway released the electrical job to the Board of Power and Light, but also told the company about the existing violations, which they agreed to fix. Upon reinspection on Friday, June 1, 1984, Conaway found that the violations had not been corrected. Returning to the office that Friday afternoon to report the problem, Conaway found Fisher was not available. ² Conaway prepared a written report concerning the violations which also criticized Fisher's release of the facility due to the danger it posed to the public. He submitted this report on Monday morning, June 4, 1984, to Fisher, to Edward Smith, Director of the Neighborhood Preservation Department, and to James Medin, City Administrator.

Thursday, June 7, 1984, Fisher called Conaway into his office and requested him to sign a letter of reprimand for his failure to immediately notify Fisher on June 1st about the Highland Park violations. Conaway claims that the letter also contained allegations that Conaway had lied on a previous occasion when he testified against the City for a coemployee. Conaway refused to sign the letter, tore it into pieces, and left the office. That same day, Fisher wrote a memorandum to Smith, recommending that Conaway be terminated immediately for his failure to follow instructions and for the insubordinate act in tearing up the letter of reprimand. On June 13, 1984, Smith wrote a memorandum to Medin, informing the City Administrator of his decision to terminate Conaway because of Conaway's attitude toward his supervisor and refusal to perform work assignments. The termination was approved by the Medin on June 14, 1984, for the stated reason of insubordination.

After a formal grievance proceeding, the Board of Review affirmed Conaway's discharge, based on his act of insubordination while on probation. In a later hearing, a referee for the State of Kansas Department of Human Resources, Division of Employment, reviewed defendant's denial of Conaway's unemployment benefits. After hearing testimony by Conaway and Fisher, ³ the referee found Conaway's discharge did not demonstrate a breach of duty owed to

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the employer, and further found a lack of any willful intent on the part of Conaway to go against the authority of his supervisors. He, therefore, held that Conaway was eligible for benefits.

Thereafter, Conaway filed a verified complaint claiming the City of Kansas City, Ed Smith, and James Medin had violated his constitutional rights by wrongfully terminating him. One year later, defendants moved for summary judgment on several grounds, including qualified immunity, failure to state a claim, and absence of any material issue of fact regarding the constitutional claims.

In granting defendants' motion for summary judgment, the district court concluded: (1) Conaway had neither a property nor a liberty interest protected by the Fourteenth Amendment which requires a pretermination hearing, and (2) Conaway's First Amendment rights were not violated because his speech was not protected under the First Amendment. Having decided the motion on these grounds, the district court dispensed with any discussion of defendants' other arguments. We affirm in part and reverse in part.

II. Standards of Review

In reviewing the order of summary judgment issued below, this court does not apply the clearly erroneous standard of Fed.R.Civ.P. 52, but instead views the case in the same manner as the trial court. ⁴ Thus we must examine the record to determine whether any genuine issue of material fact pertinent to the ruling remains, and if not, whether the substantive law was correctly applied. Fed.R.Civ.P. 56. Western Casualty & Sur. v. National Union Fire Ins. Co., 677 F.2d 789 (10th Cir.1982).

In responding to defendants' motion for summary judgment, Conaway relied heavily on specific facts he had asserted in his verified complaint to support his First Amendment claim. Although a nonmoving party may not rely merely on the unsupported or conclusory allegations contained in his pleadings, a verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in Rule 56(e). See McElyea v. Babbitt, 833 F.2d 196 (9th Cir.1987); Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc., 831 F.2d 77 (5th Cir.1987); Hooks v. Hooks, 771 F.2d 935 (6th Cir.1985); Lew v. Kona Hospital, 754 F.2d 1420 (9th Cir.1985); Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 154 (5th Cir.1965). Rule 56(e) requires that the affidavit be based on personal knowledge, contain facts which would be admissible at trial, and show that the affiant is competent to testify on the matters stated therein. Conaway's verified complaint as to the factual allegations in support of his free speech claim meets these requirements.

Conaway did not rely solely on the "mere" pleadings to oppose the motion for summary judgment regarding his free speech claim. In addition to the factual allegations stated in his verified complaint, Conaway submitted certain documentary evidence to substantiate his claim. Conaway also identified other documents, photos and evidence to corroborate his rendition of the events which evidence was inexplicably missing from the files of the Building Inspection Division and was therefore unavailable to him. Under these circumstances, we will treat the verified complaint as an affidavit for the purpose of the motion for summary judgment. We note that

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there may be cases where the sole reliance on a verified complaint would be insufficient to meet a nonmoving party's burden under Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), especially when the allegations contained in the pleading are merely conclusory. In this case, however, a full affidavit would serve no better purpose than the sworn, detailed, factual allegations contained in the verified complaint that were based on Conaway's personal knowledge. We see no reason, under these particular circumstances, to demand that Conaway must re-label his verified complaint as an affidavit and submit essentially the same facts to the court.

III. Due Process

Conaway's first claim of error concerns the deprivation of the liberty and property interest without due process. Procedural due process requires a pretermination hearing where liberty or property interests protected by the Fourteenth Amendment are implicated. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 567, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1972). A plaintiff must first establish, however, that there is a protected interest at stake.

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