Eddings v. City of Hot Springs, Ark., 02-1895.

• Decision Date: 12 March 2003
• Docket Number: No. 02-1895.,02-1895.
• Citation: 323 F.3d 596
• Parties: Jeff EDDINGS; Susan Eddings, Plaintiffs-Appellants, v. CITY OF HOT SPRINGS, ARKANSAS; Kent Meyers, City Manager, In His Official and Individual Capacity; Debbie Maxwell, In Her Official and Individual Capacity; Gary Ashcraft, Individually and as Chief of the Hot Springs Police Department; Hot Springs Police Department; Steve Hill, Individually and In His Official Capacity; Willie McCoy, In His Official and Individual Capacity; Mike Ingram, In His Official and Individual Capacity; Alan Story, In His Official and Individual Capacity; Bill Gaut, In His Official and Individual Capacity; Walt Everton, In His Official and Individual Capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

323 F.3d 596

Jeff EDDINGS; Susan Eddings, Plaintiffs-Appellants, v. CITY OF HOT SPRINGS, ARKANSAS; Kent Meyers, City Manager, In His Official and Individual Capacity; Debbie Maxwell, In Her Official and Individual Capacity; Gary Ashcraft, Individually and as Chief of the Hot Springs Police Department; Hot Springs Police Department; Steve Hill, Individually and In His Official Capacity; Willie McCoy, In His Official and Individual Capacity; Mike Ingram, In His Official and Individual Capacity; Alan Story, In His Official and Individual Capacity; Bill Gaut, In His Official and Individual Capacity; Walt Everton, In His Official and Individual Capacity, Defendants-Appellees.

No. 02-1895.

United States Court of Appeals, Eighth Circuit.

Submitted: November 6, 2002.

Filed: March 12, 2003.

Travis J. Morrissey, argued, Hot Springs, AR (Q. Byrum Hurst, Jr., on the brief), for appellant.

Jeannette Denham, argued, North Little Rock, AR, for appellee.

Before MCMILLIAN, MURPHY, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Mr. Jeff Eddings, a former Hot Springs, Arkansas police officer, and his wife, Mrs. Susan Eddings, an exotic dancer, appeal the district court's¹ adverse grant of summary judgment on their 42 U.S.C. § 1983 claims. The Eddings' claims were based on events surrounding the termination of Mr. Eddings from his position as a Hot Springs police officer. He alleged substantive and procedural due process and equal protection violations under the Fifth and Fourteenth Amendments to the United States Constitution. He also articulated defamation and other state tort claims based on alleged public statements by the defendants.

Mrs. Eddings alleged violation of her First Amendment rights based on the defendants' conduct, which she believed to have been motivated by a desire to chill her exotic dancing. Together, the Eddings alleged conspiracy claims under 42 U.S.C. § 1985 based on the belief that defendants had conspired to interfere with Mrs. Eddings' exotic dancing by (1) visiting retribution upon Mr. Eddings employment, and (2) directly acting to hinder Mrs. Eddings' ability to earn income as a dancer. We affirm the district court's grant of summary judgment.²

I

The City of Hot Springs hired Mr. Eddings as a police officer in March of 1997. He completed his training and graduated from probationary status in March of 1998. The terms of his employment were set forth in an employee handbook, the Hot Springs Police Department Policy and Procedures Manual (the "Manual"). The Manual provided a review procedure for use by employees following their receipt of adverse employment decisions. The Manual did not state that employees could only be terminated for cause.

In August of 1999, Mrs. Eddings began working as an exotic dancer at a nightclub in Hot Springs, the "Playmates Club". Mrs. Eddings testified in her deposition that her husband's co-workers, Hot Springs police officers, would frequent the club and stand by the door while she performed. She stated that police presence at the club and customer knowledge of her marriage to a police officer chilled her ability to sell dances and drinks, thereby reducing her income. She also stated that police officers occasionally would follow her as she traveled home from work. Mrs. Eddings eventually quit her job at the Playmates Club and began commuting to Memphis, Tennessee, where she resumed work as an exotic dancer.

On April 5, 2001, the Hot Springs Police Department Internal Affairs Board ("IAB")³ began an investigation regarding Mr. Eddings at the request of Police Chief Gary Ashcraft. The investigation followed Mr. Eddings' admission to a supervisor that he had used a gaming device in a Hot Springs nightclub. The IAB concluded that Mr. Eddings had engaged in an illegal gambling activity in violation of A.C.A. § 5-66-106 and in violation of multiple written policies of the Hot Springs Police Department. The IAB concluded that the gambling activity involved not only the use of a gaming device, but the receipt of a cash prize from a bartender at the nightclub. This activity occurred during a time when the Hot Springs Police Department was actively investigating the use of gaming devices at nightclubs throughout Hot Springs. The IAB recommended to Chief Ashcraft that Mr. Eddings' employment be terminated. On May 15, 2001, Chief Ashcraft met with Mr. Eddings and presented him with a written notice of termination. In addition to citation of the gambling incident, Mr. Eddings' written notice of termination cited dishonesty in his dealings with the IAB based on the results of a polygraph test administered during the investigation.

Although not referenced in the written notice as a basis for termination, Mr. Eddings had been the subject of an earlier IAB investigation. This earlier IAB investigation was based on allegations that he had informed Hot Springs nightclubs of impending raids. During his deposition in the present case, Mr. Eddings admitted that, on one occasion, after he received a tip from a fellow officer suggesting that a task force might raid Hot Springs nightclubs, he advised his wife to stay home from work. On that night, Mrs. Eddings stayed home from work, the Playmates Club was raided, and other dancers were arrested. These other dancers were released without being charged.

Following termination, Mr. Eddings appealed his termination to the Civil Service Commission. Before the Civil Service Commission, he was afforded the opportunity to present witnesses, and his attorneys were permitted the opportunity to cross examine witnesses. The Civil Service Commission upheld Mr. Eddings' termination. Mr. Eddings did not appeal the Civil Service Commission's decision in the Arkansas circuit court as permitted under A.C.A. § 14-51-308(e)(1)(A).

Mr. and Mrs. Eddings brought numerous claims under 42 U.S.C. § 1983 based on alleged violations of their constitutional rights. However, the only § 1983 claims advanced in their appeal brief are Fourteenth Amendment due process claims that alleged a protected property interest and liberty interest in Mr. Eddings' employment and reputation, respectively, and a First Amendment claim that alleged interference with Mrs. Eddings' free expression. We deem their remaining § 1983 claims as well as their conspiracy claims under § 1985 to be waived. See Note 2, supra. We address the appealed federal claims in turn below.

The Eddings' also raised numerous claims under Arkansas law. After granting the defendants' motion for summary judgment on the federal claims, the district court declined to retain jurisdiction over the state law claims. See 28 U.S.C. § 1367(c)(3). Finding no abuse of discretion in the district court's election to decline the retention of jurisdiction, we need not address any of the state law claims.

II.

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the district court's grant of summary judgment de novo viewing the record in a light most favorable to the non-moving party and giving the non-moving party the benefit of all reasonable inferences supported by the record. ACT, Inc., v. Sylvan Learning Sys., Inc., 296 F.3d 657, 661-62 (8th Cir.2002) (standard of review).

III.

Mr. Eddings alleged that he enjoyed a protected property interest in continued employment and a protected liberty interest in his good name and reputation. He further alleged that the defendants were state actors who violated his Fourteenth Amendment procedural due process rights by depriving him of these protected interests without a pre-termination hearing or a name-clearing hearing. The district court determined that Mr. Eddings had no protected interest in continued employment and that he failed to identify evidence of defamation or damage to his reputation. We agree.

To determine whether an employee enjoys a protected property interest in continued employment, we look to state law. Bishop v. Wood, 426 U.S. 341, 344-45, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Thompson v. Adams, 268 F.3d 609, 611 (8th Cir.2001). In Arkansas, employment is "at-will" unless the employment is for a fixed term or unless an employee handbook contains "an express provision against termination except for cause ...." Gladden v. Arkansas Children's Hospital, 292 Ark. 130, 728 S.W.2d 501, 505 (1987) (emphasis in original). Mr. Eddings' employment was not for a fixed term, and the Hot Springs Police Department Policy and Procedures Manual contained no cause requirement for termination.

The Manual did provide, "an absolute right to due process prior to the imposition of a disciplinary action." However, such a provision is not sufficient to change the at-will status of an employee under Arkansas law. Applying Arkansas law, we have repeatedly held that a handbook which provides a review procedure does not give rise to an expectation of continued employment, but rather only supports an expectation of a right to participate in the review procedure. Thompson, 268 F.3d at 612-13 (8th Cir.2001); Hogue v. Clinton, 791 F.2d 1318, 1324-25 (8th Cir.1986) (stating that a handbook that provides for a review procedure, "creates only an expectancy of review, not of continued employment; the procedures outlined place no significant substantive restrictions on the decision-making.... We do not see, then how [the employee] could have harbored anything more than a unilateral expectation of continued employment, insufficient to entitle him to due process protection.") (citation omitted). Because Mr. Eddings was an employee at will, he enjoyed no protected interest in continued employment and summary judgment was appropriate as to his deprivation of property interest procedural due process claim.

Mr. Eddings did enjoy...