Dorr v. Butte County, 85-2247

• Decision Date: 30 July 1986
• Docket Number: No. 85-2247,85-2247
• Citation: 795 F.2d 875
• Parties: Richard DORR, Plaintiff-Appellant, v. COUNTY OF BUTTE; Butte County Sheriff's Department; Mick Grey, individually and as Deputy Sheriff of Butte County, et al, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 875

795 F.2d 875

Richard DORR, Plaintiff-Appellant, v. COUNTY OF BUTTE; Butte County Sheriff's Department; Mick

Grey, individually and as Deputy Sheriff of Butte

County, et al, Defendants-Appellees.

No. 85-2247.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 1986.

Decided July 30, 1986.

James W. Lewis, Sacramento, Cal., for plaintiff-appellant.

Philip B. Price, Price, Price, Brown & Halsey, Chico, Cal., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before SNEED, FARRIS and FERGUSON, Circuit Judges.

FARRIS, Circuit Judge:

After being discharged from his position as a probationary regular employee with the Butte County Sheriff's Department, Richard Dorr commenced this action alleging, inter alia, that defendants had deprived him of liberty and property without due process of law in violation of 42 U.S.C. Sec. 1983. The district court granted summary judgment in favor of defendants on Dorr's federal claims and dismissed the pendent state claims. Dorr timely appealed the district court's holding that he lacked a protected property interest in his continued employment. This court has jurisdiction under 28 U.S.C. Sec. 1291.

"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). To prevail on the claim that his termination constituted a denial of property without due process of law, Dorr must demonstrate that he had a protected interest in continued employment.

State law defines what is and what is not property: "Property interests ... are not created by the Constitution.... [T]hey are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law...." Id. at 577, 92 S.Ct. at 2709.

Under California law, a "permanent employee," dismissible only for cause, has "a property interest in his continued employment which is protected by due process." Skelly v. State Personnel Board, 15 Cal.3d 194, 207-08, 539 P.2d 774, 783-84, 124 Cal.Rptr. 14, 23-24 (1975). While "a probationary (or nontenured) civil service employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable good cause," Lubey v. City and County of San Francisco, 98 Cal.App.3d 340, 345, 159 Cal.Rptr. 440, 443 (1979); see also Murden v. County of Sacramento, 160 Cal.App.3d 302, 308, 206 Cal.Rptr. 699, 702 (1984); Wilkerson v. City of Placentia, 118 Cal.App.3d 435, 441-42, 173 Cal.Rptr. 294, 298 (1981), an employee who has completed her probationary period ordinarily has a legitimate claim of entitlement to continued public employment. Mendoza v. Regents of the University of California, 78 Cal.App.3d 168, 175, 144 Cal.Rptr. 117, 121 (1978). ¹

Viewing the evidence in the light most favorable to Dorr, we must determine de novo whether the existence of a genuine issue of material fact precluded entry of summary judgment and, if not, whether defendants were entitled to judgment as a matter of law. Canfield v. Sullivan, 774 F.2d 1466, 1467 (9th Cir.1985). "[Q]uestions of state law are reviewable under the same de novo standard as are questions of federal law." In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).

Dorr complains that by granting summary judgment the district court denied him the right to establish, as a factual matter, that what the county termed an unappealable probationary rejection was really disciplinary in nature. Probationary rejection, he argues, may be predicated only upon the appointing authority's opinion that an employee has failed to demonstrate satisfactory performance in his position. Dorr contends that he was discharged not because his superiors were dissatisfied with his job performance, but because he was arrested. This, he insists, constitutes a disciplinary dismissal. He considers the distinction pivotal because disciplinary dismissal (1) is conditioned upon reasonable cause, and (2) is appealable.

The Butte County Merit System and Personnel Rules plainly distinguish between disciplinary dismissal and "probationary rejection." Disciplinary action may be taken only "for reasonable cause" and requires notice and an opportunity to be heard. It is appealable as of right. Even a probationary employee "may appeal disciplinary actions and discriminatory actions." On the other hand, probationary rejection may be based on the appointing authority's subjective evaluation of the employee's performance and is not appealable. ²

In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the Supreme Court made it clear that a substantive property right cannot be delimited by the procedures provided for its determination:

[T]he Due Process Clause provides that certain substantive rights--life, liberty, and property--cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. "Property" cannot be defined by the procedures provided for its deprivation any more than can life or liberty.

Id., 105 S.Ct. at 1493. It follows that a substantive property right cannot exist exclusively by virtue of a procedural right. See also Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983) ("The State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right."); Henderson v. Sotelo, 761 F.2d 1093, 1097 (5th Cir.1985) (while violation of procedures upon which removal of public employee is conditioned might give rise to some non-constitutional cause of action against employer, procedures would not create a property interest which otherwise did not exist); Wells v. Hico Independent School District, 736 F.2d 243, 252-55 (5th Cir.1984) (rejecting claim of terminated elementary school teachers that school's grievance and evaluation procedures gave them an expectation of continued employment), cert. dismissed, --- U.S. ----, 106 S.Ct. 11, 87 L.Ed.2d 672 (1985); Hughes v. Whitmer, 714 F.2d 1407, 1413-14 (8th Cir.1983) (whether transfer of police officer was disciplinary, and thus violated regulations requiring that a hearing be held before disciplinary action was taken, was immaterial to procedural due process claim which turned on existence, vel non, of protected property interest), cert. denied, 465 U.S. 1023, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984); Hayward v. Henderson, 623 F.2d 596, 597 (9th Cir.1980) (quotingMaloney v. Sheehan, 453 F.Supp. 1131, 1141 (D.Conn.1978) ("A guarantee of procedural fairness does not establish a property interest.")). The right of a probationary employee to appeal disciplinary action does not give rise to a protected property interest.

One question remains: Do the Personnel Rules give a probationary employee a reasonable expectation of continued employment by conditioning dismissal on either (1) a subjective finding by the appointing authority that the employee has failed to demonstrate satisfactory performance in his position, or (2) objectively reasonable cause? If they do, Dorr had a property interest in his continued employment: "A law establishes a property interest in employment if it restricts the grounds on which an employee may be discharged.... [I]f discharge can only be for 'just cause,' an employee has a right to continued employment until there is just cause to dismiss him." Hayward v. Henderson, 623 F.2d at 597 (quoting Maloney v. Sheehan, 453 F.Supp. at 1141).

The power of the appointing authority to determine, on a purely subjective basis, whether a probationary employee has performed satisfactorily undercuts any expectation of continued employment that might otherwise arise...