Gregory v. Hunt

• Decision Date: 18 May 1994
• Docket Number: No. 93-5291,93-5291
• Citation: 24 F.3d 781
• Parties: 128 Lab.Cas. P 57,685, 91 Ed. Law Rep. 556 Donald V. GREGORY, Plaintiff-Appellant, v. James C. HUNT; Howard Carmen; Mary Finn; Bettie Puckett; Warren J. Shadko; John Butler, individually and in their official capacities; University of Tennessee, Defendants-Appellees
• Court: U.S. Court of Appeals — Sixth Circuit

Page 781

24 F.3d 781

128 Lab.Cas. P 57,685, 91 Ed. Law Rep. 556

Donald V. GREGORY, Plaintiff-Appellant, v. James C. HUNT; Howard Carmen; Mary Finn; Bettie Puckett;

Warren J. Shadko; John Butler, individually and

in their official capacities;

University of Tennessee,

Defendants-Appellees.

No. 93-5291.

United States Court of Appeals, Sixth Circuit

May 18, 1994.

David M. Sullivan, Memphis, TN (briefed), for plaintiff-appellant.

Ronald C. Leadbetter, Assoc. Gen. Counsel (briefed), Beauchamp E. Brogan (briefed), University of Tennessee Knoxville, TN, for defendants-appellees.

Before: MERRITT, Chief Judge; and GUY and BOGGS, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

Plaintiff, Donald V. Gregory, appeals the district court's grant of summary judgment in favor of six individual defendants, ¹ sued individually and in their official capacities, and the University of Tennessee at Memphis. Pursuant to 42 U.S.C. Secs. 1981, 1983, 1985, and 1986, Tenn.Code Ann. Sec. 4-21-101, et seq., and Tenn.Code Ann. Sec. 47-50-109, Gregory claims that his constitutionally recognized property right in continued employment as a police lieutenant in the Office of Security Affairs at the University of Tennessee was violated when he was discharged. For the following reasons, we affirm.

I.

On June 27, 1983, Gregory was hired by the University of Tennessee as a police officer in the Office of Security Affairs. He was employed without a written contract and for an unspecified period of time. The University policy pertaining to his employment states:

Faculty are employed for a term of one year or other specified period of time subject to renewal in accordance with the policies and procedures set forth in the applicable Faculty Handbook. All other employees are not employed for a specified period of time but, instead, serve on an "at will" basis subject to the policies and procedures set forth in the Personnel Policies and Procedures Manual.

By letter of January 27, 1989, Warren J. Shadko, Assistant Vice Chancellor for Security Affairs, advised Gregory that his employment as a University police officer would be terminated effective that day. There was no notice or pre-termination hearing, and the letter set forth no reason for the termination. That same day, Gregory delivered a written request for a hearing to Mary Finn, Personnel Services Manager/Human Resources. Finn informed Gregory that, because he had been terminated for "inadequate work performance," he was not entitled to a hearing under the written University policies and procedures. Finn further advised Gregory that he could submit a written request for a hearing to Chancellor James C. Hunt. ²

On January 30, 1989, Gregory delivered a letter to Hunt requesting a hearing on his termination. Gregory's counsel later asked Hunt to provide the specific reason(s) for Gregory's termination. Hunt complied with the request. Gregory's attorney then addressed the termination issues in a brief. Hunt subsequently elected to conduct an informal hearing.

The hearing was held May 3, 1989. Hunt allowed Gregory to make a statement. Shadko was also allowed to make a statement. Shadko's statement contained "incidents" not previously cited, and he referred to documents not furnished to Gregory's counsel. Hunt ordered Gregory's attorney not to confer with Gregory during the hearing, but allowed them to confer outside the hearing room. Gregory objected to the introduction of the new material and Hunt's refusal to allow his attorney to confer with or advise him during the course of the hearing. Hunt asked Gregory if he wished to continue the hearing; Gregory replied that he would not participate any further.

Following the conclusion of the hearing, and after reviewing Gregory's record and several "position papers" submitted by Gregory's attorney and Shadko, Hunt advised Gregory, by letter of July 11, 1989, of his decision to affirm the termination. At the same time, Hunt offered Gregory re-employment as an entry-level police officer with longevity credit for his prior service, but Gregory rejected the offer.

Gregory then commenced this action, seeking reinstatement and back pay, as well as compensatory and punitive damages. Under federal and state laws, Gregory claimed that he was deprived of both property and liberty interests in violation of his constitutional right to due process. The district court granted summary judgment for the defendants on the claims brought under Secs. 1981, 1983, 1985 and 1986, and dismissed the state law claims. ³ The court found that Gregory lacked a property interest in continued employment, and that Gregory received a constitutionally sufficient hearing for any charge implicating his liberty interest.

II.

We review a district court's grant of summary judgment under a de novo standard of review. EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). We examine the grant of summary judgment to determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir.1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). Although we must draw all justifiable inferences in favor of the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), that party must show that there exists a disagreement regarding an item of material fact. Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986). The evidence presented must be sufficient to permit the plaintiff to recover if accepted by the jury.

III.

A. Property Interest

The Supreme Court has recognized that an individual may have a "property" interest in public employment. In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the Court stated:

Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

In Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), decided the same day as Roth, the Supreme Court expanded on the "property" interest concept: "A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing." The Supreme Court later stated: "A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law." Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) (footnotes omitted).

The doctrine of employment at-will has long been recognized in Tennessee, with the concomitant right of either party to terminate such a relationship with or without cause. See Chism v. Mid-South Milling Co., 762 S.W.2d 552, 555 (Tenn.1988). Recently, the Supreme Court of Tennessee stated:

The employment at-will doctrine has been a part of Tennessee's common-law legal tapestry for more than a century. The doctrine recognizes the concomitant right of either party to terminate such a relationship with or without cause. On the other hand a contract of employment for a definite term may not be terminated before the end of the term, except for good cause or by mutual agreement, unless the right to do so is reserved in the contract. It is possible that some contractual right might accrue to an employee as the result of an unlawful termination of such a contract. However, without a clear contract under which such rights may vest, employees in this State possess no property right in their employment under the circumstances which we have at hand. We know of no court decision, nor have we been referred to one, which holds that an employee has a contractual right under the employment at-will doctrine.

Bennett v. Steiner-Liff Iron and Metal Co., 826 S.W.2d 119, 121 (Tenn.1992) (citations omitted).

An at-will public employee does not have a property interest in continued employment unless it can be shown that the employee had a reasonable expectation that termination would be only for good cause. See Chilingirian v. Boris, 882 F.2d 200, 203 (6th Cir.1989) ("a public employee does not have a property interest in continued employment when his position is held at the will and pleasure of his superiors and when he has not been promised that he will only be terminated for good cause"); Bleeker v. Dukakis, 665 F.2d 401, 403 (1st Cir.1981) ("This lack of any reasonable expectation of continued employment suffices to establish the lack of 'property' in the constitutional sense, and hence the lack of a viable due process claim.").

Gregory argues that despite Tennessee's strict adherence to the employment at-will doctrine, he had legitimate expectations that he would not be discharged without good cause. He focuses on section 100 of the Personnel Policies and Procedures Manual, which states: "All ... employees ... serve on an 'at will' basis subject to the policies and procedures set forth in the Personnel Policies and Procedures Manual." Gregory maintains that various provisions in the manual and the Employee Handbook create an implied contract whereby he can only be discharged for cause and, thus, he did have a protectible property interest.

Gregory's contention must be reviewed under Tennessee law. Most relevant to our inquiry are those cases that have analyzed what effect an employee handbook has on an employment at-will relationship. Tennessee courts and ...