Farthing v. City of Shawnee, Kan., 93-3346

• Decision Date: 08 November 1994
• Docket Number: No. 93-3346,93-3346
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: James R. FARTHING, Plaintiff-Appellant, v. CITY OF SHAWNEE, KANSAS, Defendant-Appellee.

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39 F.3d 1131

James R. FARTHING, Plaintiff-Appellant, v. CITY OF SHAWNEE, KANSAS, Defendant-Appellee.

No. 93-3346.

United States Court of Appeals,

Tenth Circuit.

Nov. 8, 1994.

Ronald L. Schneider (Jerry K. Levy with him, on the briefs), Lawrence, KS, for plaintiff-appellant.

Michael K. Seck of Fisher, Patterson, Sayler & Smith, Overland Park, KS, for defendant-appellee.

Before BRORBY, SETH and LAY, ^* Circuit Judges.

BRORBY, Circuit Judge.

Plaintiff-appellant James R. Farthing appeals an order of the district court granting defendant-appellee the City of Shawnee's motion for summary judgment. The district court concluded Mr. Farthing did not possess a protected property interest in continued employment with the City and therefore the City's denial of his request for a post-termination hearing did not deprive him of his right to procedural due process. Mr. Farthing subsequently filed a timely notice of appeal, ¹ which properly invoked our

jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

BACKGROUND

The following material facts are undisputed. Mr. Farthing was employed by the City of Shawnee ("the City") as the Fire Chief for approximately eight years until he was terminated by Gary Montague, the city manager, in September of 1990. As the city manager, Mr. Montague was Mr. Farthing's direct supervisor. Under Sec. 2.08.040(3) of the Shawnee Municipal Code ("the Code"), Mr. Montague was empowered to hire and terminate the employment of certain municipal employees, including Mr. Farthing, without approval of the City Council. Under Sec. 2.12.040 of the Code, Mr. Farthing was considered a "classified employee," which meant the terms of his employment were governed by applicable rules and regulations of the City, including its personnel manual.

Mr. Farthing and Mr. Montague had what the district court categorized as a "stormy" relationship from 1988 until his termination in 1990. On September 17, 1990, Mr. Montague gave Mr. Farthing notice he was being terminated. Although Mr. Farthing and Mr. Montague met the day after Mr. Farthing's termination to discuss the terms of severance, it is unclear whether Mr. Montague explained to Mr. Farthing the reason or reasons, if any, for his termination. Mr. Farthing subsequently requested a post-termination hearing, but it was denied. He was, however, afforded a "name clearing hearing" that provided him with an opportunity to respond to certain allegations he felt may have negatively affected his reputation. ²

Mr. Farthing thereafter initiated this suit in federal district court asserting a denial of procedural due process under 42 U.S.C. Sec. 1983 and the Fourteenth Amendment, and a pendent, or supplemental, state law claim for wrongful termination. In granting the City's motion for summary judgment, the district court concluded although this was "a close case," Mr. Farthing failed to establish he had a protected property interest in continued employment with the City as a matter of law, and therefore, he was not entitled to procedural due process upon his termination. The district court also concluded Mr. Farthing could not maintain his wrongful termination claim because he was an at-will employee. On appeal, Mr. Farthing's sole claim is the district court erred in finding he did not have a protected property interest in his continued employment with the City as the Fire Chief. ³

DISCUSSION

We review a district court's order granting a motion for summary judgment de novo, applying the same legal standard utilized by the district court. See Allen v. Minnstar, Inc., 8 F.3d 1470, 1476 (10th Cir.1993); Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Under Fed.R.Civ.P. 56(c), summary judgment is proper only if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates there is no genuine issue as to any material fact and the moving party is entitled to summary judgment as a matter of law. See also Allen, 8 F.3d at 1476. A "material" fact is one This case was brought pursuant to Sec. 1983 and was therefore within the district court's federal question jurisdiction under 28 U.S.C. Sec. 1331; however, the issue of whether Mr. Farthing possessed a protected property interest must be determined by reference to state law. See Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Koopman v. Water Dist. No. 1 of Johnson County, 972 F.2d 1160, 1164 (10th Cir.1992). We review the district court's application and interpretation of state law de novo. See Quinlan v. Koch Oil Co., 25 F.3d 936, 939 (10th Cir.1994) (citing Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991)). With these principles in mind, we now turn to the merits of Mr. Farthing's appeal.

"that might affect the outcome of the suit under the governing law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and a "genuine" issue is one where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

I.

The Due Process clause of the Fourteenth Amendment does not prohibit the government from depriving an individual of "life, liberty, or property"; it protects against governmental deprivations of life, liberty, or property "without due process of law." U.S. Const. amend. XIV; see Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). In determining whether an individual has been deprived of his right to procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) ("[O]nce it is determined that the due process Clause applies, 'the question remains what process is due.' ") (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). In light of this framework, we turn to the threshold issue of whether Mr. Farthing possessed a protected property interest. See Graham v. City of Oklahoma City, 859 F.2d 142, 144 (10th Cir.1988) (per curiam ); accord Conaway v. Smith, 853 F.2d 789, 793 (10th Cir.1988) (per curiam ). The district court concluded Mr. Farthing did not possess a property interest in continued employment with the City. We agree.

The Constitution does not create or define the contours of "liberty" or "property," the "broad and majestic terms" enshrined in the Fourteenth Amendment. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972). Rather, property interests, which are the subject of the present litigation, "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Roth, 408 U.S. at 577, 92 S.Ct. at 2709; see also Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976) ("[Liberty and property] interests attain ... constitutional status by virtue of the fact that they have been initially recognized and protected by state law").

In the context of a public employee like Mr. Farthing, the touchstone is whether, under state law, the employee has "a legitimate claim of entitlement" in continued employment, as opposed to a "unilateral expectation" or "an abstract need or desire" for it. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Koopman, 972 F.2d at 1164. A legitimate claim of entitlement may be grounded in various sources of state law, including "state statutes, local ordinances, established rules, or mutually explicit understandings." Dickeson v. Quarberg, 844 F.2d 1435, 1437 (10th Cir.1988); see also Carnes v. Parker, 922 F.2d 1506, 1509 (10th Cir.1991). We must therefore turn our attention to Kansas law to determine whether Mr. Farthing possessed a protected property interest.

II.

A.

In Pilcher v. Board of County Commissioners, 14 Kan.App.2d 206, 787 P.2d 1204 (1990), the Court of Appeals of Kansas The problem with [appellant's] due process claim is that, as an employee-at-will, she has no vested property interest in her job which is entitled to protection by the Fourteenth Amendment. No property interest in a job exists unless it is created by statute, ordinance, or implied or written contracts. Stoldt v. City of Toronto , 678 P.2d 153 (Kan.1984).

summarized Kansas law regarding the existence vel non of a property interest in public employment as follows:

Pilcher, 787 P.2d at 1208. The "unless" language quoted above makes it apparent that under Kansas law, public employment is presumptively at-will. See Stoldt, 678 P.2d at 160 ("the tenure of any office not provided for in the [state] constitution may be declared by statute, and when not so declared such office shall be held at the pleasure of the appointing authority."); accord Riddle v. City of Ottawa, 12 Kan.App.2d 714, 754 P.2d 465, 468-69 (1988); Elam v. Williams, 753 F.Supp. 1530, 1536 (D.Kan.1990) (interpreting Kansas law), aff'd without opinion, 953 F.2d 1391 (10th Cir.1992). In the absence of any evidence to the contrary, a public employee terminable at-will does not possess a protected property interest under Kansas law for purposes of procedural due process analysis. See Stoldt, 678 P.2d at 160 (finding an at-will municipal employee "has no constitutionally protected property interest in his [employment].").

In those situations, however, where state law restricts a government employer's removal power by requiring some type of "cause" or "fault" before taking any adverse action against the employee, then the Kansas Supreme Court has declared the employee does possess a protected property interest. As a result, the requirements of due process are applicable and the employee must, at a minimum,...