Drake v. Scott, 86-1353

• Decision Date: 09 July 1987
• Docket Number: No. 86-1353,86-1353
• Citation: 823 F.2d 239
• Parties: 108 Lab.Cas. P 55,848, 2 Indiv.Empl.Rts.Cas. 559 Don G. DRAKE, Appellee, v. Ray SCOTT, Director of Arkansas Dept. of Human Services; Dr. Curtis Ivery, Commissioner of Social Services; and Roy Kindle, Director of Pulaski County Social Services, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 239

823 F.2d 239

108 Lab.Cas. P 55,848, 2 Indiv.Empl.Rts.Cas. 559

Don G. DRAKE, Appellee, v. Ray SCOTT, Director of Arkansas Dept. of Human Services Dr. Curtis Ivery, Commissioner of Social Services and Roy Kindle, Director of Pulaski County Social Services, Appellants.

No. 86-1353.

United States Court of Appeals Eighth Circuit.

Submitted May 15, 1987.

Decided July 9, 1987.

Tim Humphries, Asst. Atty. Gen., Little Rock, Ark., for appellants.

John Wesley Hall, Jr., Little Rock, Ark., for appellee.

Before ARNOLD, Circuit Judge, BRIGHT, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

ARNOLD, Circuit Judge.

This case is again before us, on petitions for rehearing filed by both sides.

Our previous opinion, 812 F.2d 395 (8th Cir.1987), held: (1) the District Court correctly denied the defendant employer's motion for summary judgment on the plaintiff employee's claim that he was discharged on account of the exercise of First Amendment rights; and (2) the District Court incorrectly denied defendants' motion for summary judgment on plaintiffs' claim that his discharge deprived him of property (his job) without (procedural) due process of law.

The appellants' (defendants') petition for rehearing, contesting our holding on the First Amendment claim, is denied. This issue was sufficiently discussed in our previous opinion. The appellee's (plaintiff's) petition for rehearing, contesting our holding on the procedural-due-process claim, is granted. On reconsideration, however, we adhere to the result previously reached, that plaintiff had no federal constitutional right of property in his job. ¹

Our previous rejection of the plaintiff's procedural-due-process claim was based on Hogue v. Clinton, 791 F.2d 1318 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 648, 93 L.Ed.2d 704 (1986). At that time, we read Hogue to hold that under Arkansas law ² "all employment contracts with no fixed term [a category that includes the present plaintiff's situation] are terminable at will, even if there is a provision in the employment contract that an employee will not be discharged except for good cause." Drake v. Scott, 812 F.2d at 400 (emphasis in original). Under this reading of Hogue, it was unnecessary for us to interpret the particular regulation relied on by plaintiff, AR 703.6, or to decide whether the regulation was invalid as contrary to statute, Ark.Stat.Ann. Sec. 5-912i(A) (Supp.1985). It did not matter whether the regulation guaranteed that plaintiff would not be discharged except for good cause. All that mattered was that the contract of employment contained no fixed term of months or years.

As plaintiff points out, this reading of Arkansas law is no longer tenable. The Supreme Court of Arkansas has now reexamined the employment-at-will doctrine and announced a clear rule: if the contract of employment (which may be embodied in a personnel manual, or, as here, in a regulation) "contains an express provision against termination except for cause [an employee] may not be arbitrarily discharged in violation of such a provision." Gladden v. Arkansas Children's Hosp., 292 Ark. 130, 136, 728 S.W.2d 501, 505 (1987) (emphasis in original). "[W]e reject as outmoded and untenable the premise announced in St. Louis Iron Mt. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897), that the at will rule applies even where the employment agreement contains a provision that the employee will not be discharged except for cause, unless it is for a definite term." 292 Ark. at 136, 728 S.W.2d at 505. ³

Accordingly, the mere fact that the plaintiff was not employed for a fixed term can no longer be treated as dispositive of his claim that he had a property right in his job. Under Gladden, which was handed down after our previous opinion in this case and (of course) after Hogue as well, ⁴ the analysis must be pursued to a more refined level. We must ask whether the regulation relied on by the plaintiff Drake expressly provides that there will be no termination except for cause.

For convenience, we again quote AR 703.6 of the Arkansas Department of Human Services:

The tenure of every permanent employee is based on satisfactory performance of duties. Permanent appointment does not guarantee a right to the position regardless of performance level; satisfactory performance is a condition of continued employment in any position. An employee is subject to discharge, suspension, demotion, or other disciplinary action for any of the following causes: insubordination, incompetence, unrehabilitated narcotics addiction, dishonesty, unrehabilitated alcoholism, conduct which adversely affects the employee's performance for the Division, conduct unbecoming a public employee, and misconduct. This provision, however, shall not be interpreted to prevent the separation of an employee because of lack of funds or curtailment of work.

A good argument can be made that this provision, by implication, assures employees that they will not be fired...