Hargray v. City of Hallandale

• Decision Date: 19 July 1995
• Docket Number: No. 93-5281,93-5281
• Citation: 57 F.3d 1560
• Parties: 10 IER Cases 1409 Vernon E. HARGRAY, Plaintiff-Appellee, v. CITY OF HALLANDALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1560

57 F.3d 1560

10 IER Cases 1409

Vernon E. HARGRAY, Plaintiff-Appellee, v. CITY OF HALLANDALE, Defendant-Appellant.

No. 93-5281.

United States Court of Appeals Eleventh Circuit.

July 19, 1995.

Richard Kane, Hallandale, FL, for appellant.

Robert Elliot Weisberg, Coral Gables, FL, Martha Chapman, Abling & Chapman, P.A., Orlando, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before COX and BLACK, Circuit Judges, and FAY, Senior Circuit Judge.

PER CURIAM:

Appellee Vernon E. Hargray brought this suit under 42 U.S.C. Sec. 1983 against his former employer, Appellant City of Hallandale (City), alleging a violation of his property interest in continued employment with the City. Hargray maintained that he was wrongfully discharged without a pre-termination hearing when he resigned after being given a choice between resigning or facing possible criminal charges. After a non-jury trial, the district court entered judgment in favor of Hargray, and the City appealed. Because we conclude that, under the totality of the circumstances, Hargray's resignation was voluntary, we reverse on the ground that the City did not deprive him of any protected interest in his employment within the meaning of the due process clause.

I. BACKGROUND

The full factual findings of the district court are recounted at Hargray v. City of Hallandale, 830 F.Supp. 1467 (S.D.Fla.1993). The facts relevant to the issue presented in this appeal are as follows. Hargray was employed by the City from 1979 until his resignation in 1990. At the time he resigned, Hargray held the position of Operations Manager in the Department of Public Works (DPW), and reported directly to the Director of the DPW, John Depp. In this position, Hargray was responsible for managing the operations of several divisions within the DPW, including the grounds and maintenance division. Hargray had direct supervisory control over at least four superintendents, who were the heads of the divisions. In total, Hargray was responsible for approximately forty employees who worked within the divisions.

Sometime in 1989, Hargray recommended an acquaintance, Richard McDonald, to the City Manager, R.J. Intindola, for the position of superintendent over grounds and maintenance. Intindola, who had the final policy-making authority for the City with respect to personnel and administration, made the final decision to hire McDonald as a superintendent. As the superintendent of grounds and maintenance, McDonald reported directly to Hargray.

In June 1990, three or four employees of the DPW approached Richard Wroblewski, the City's Personnel Director, with allegations that Hargray and McDonald were misappropriating City property for their personal use. Wroblewski sent the employees to speak with Depp. Within a few days, Wroblewski informed Hargray of the allegations of theft in his department, and Hargray began an investigation to find out who had made these allegations. Hargray also consulted McDonald, and told him that McDonald had been accused of theft. Thereafter, Hargray found out that McDonald had met with Depp concerning the allegations.

On Saturday, August 4, 1990, Hargray went to Sheridan Lumber to pick up some timber for the Hepburn Center--a social services facility that the DPW was renovating. Hargray purchased with City money thirteen 4 X 4 pieces of lumber listed on a purchase order for the Hepburn Center and loaded them onto a City truck which he was driving alone that day. Hargray drove back to the DPW compound and placed the lumber behind the compound. On August 7 or 8, 1990, Hargray took seven of the 4 X 4's home.

On August 8, 1990, City officials, including Depp, received an anonymous letter dated August 5, 1990, accusing Hargray and McDonald of gross misuses of the City's equipment and supplies. ¹ Intindola directed the City police department to conduct an investigation of the allegations contained in the August 5 letter. Lieutenant William Owens and Investigator Tommy Long were primarily responsible for the investigation.

In the course of their investigation, Owens and Long photographed Hargray's house and yard. Four photos, which were introduced into evidence, revealed the following to the police. First, there were two types of plants liriopes and exorias, around the trees and house in Hargray's yard. Some of the plants were planted, and some were still in pots. Both of these plants were the type that the City's grounds and maintenance division used in its landscaping of different areas of the City. Second, there were seven 4 X 4 timbers, some placed into the yard apparently creating a landscaping border, and some stacked against the house. Third, there was evidence of new sodding. Fourth, the lawn looked quite plush, indicating that fertilizer may have been recently laid down. Finally, there was a large City garbage can located in the side yard.

In the next step of their investigation, Owens and Long pulled City purchasing records. They discovered, among other things, a purchasing order signed by both McDonald and Hargray for the 4 X 4's which were photographed in Hargray's yard, and a receipt for the 4 X 4's from Sheridan Lumber. They also discovered a requisition signed by both McDonald and Hargray for $325 worth of repairs to a trailer. This same trailer had been photographed in McDonald's yard, and McDonald later confessed to keeping the trailer for at least a few months prior to the investigation.

By the week of June 15, 1990, Owens and Long began to interview City employees by calling them down one by one to the police station for questioning. In total, twenty-eight City employees were interviewed; McDonald and Hargray were the last two to be interviewed. Many employees made allegations accusing Hargray of misappropriating City property. Summaries of the interviews were compiled into a police report. ²

Specifically, Elfran Gomez stated that he observed Hargray and McDonald dumping personal items at a lake using a City truck on City time. Angus Bryant stated that Hargray had given McDonald permission to use a City truck for personal use at his home. John Deck told police that three months prior to the investigation he observed Hargray pick up a load of top soil from Florida Silica Sand. Deck told police that it was unusual for Hargray, a director of operations, to be personally picking up supplies, especially on a Saturday. Elbridge Dean told police that Hargray had instructed him in May or June 1990 to take approximately 20-30 plants to Hargray's house.

Andrew Smith told police that he observed Hargray and another City employee driving a City truck which contained five yards of muck, which Smith maintained was not used on a City project. Smith stated that the two returned in the truck two hours later and the muck was gone. Jose Garcia stated that on several occasions he observed Hargray and McDonald inside the DPW compound, where supplies were kept, on Saturdays. Finally, James Simmons told police that he observed Hargray and a City employee using a City truck sometime in June. After Hargray returned the truck, Simmons found a receipt inside the truck for fourteen yards of top soil from Florida Silica Sand. Simmons claimed that there was no job needing top soil at the time, and that Hargray and the other employee were the only two employees in the truck that day.

Other employees told police that, although they had not personally observed Hargray stealing City property, they had heard many rumors about his misappropriations and his using City employees to make improvements on his home during City time. Many of these same employees told police that they had personally observed McDonald misappropriating various items of City property, as well as making improvements on his home during City time. McDonald corroborated the substance of the allegations against him in his own interview with the police.

On Monday, August 20, 1990, McDonald resigned and admitted to violating City policy by using City equipment or property for his personal use. On August 23, 1990, the police called McDonald to the station and offered him the option of resolving the criminal investigation against him through administrative rather than criminal channels. The police presented McDonald with a written agreement stating that he would answer all questions honestly in exchange for their not initiating criminal charges against him. McDonald requested to consider the offer overnight so that he could consult an attorney, and the officers allowed him to do so.

McDonald signed the agreement on August 24, and Long and Owens then conducted a two-hour taped interview regarding the allegations made against him. McDonald confessed to ³, and corroborated, many of the allegations made against him by the other employees and by the anonymous letter. He denied that Hargray had any involvement with his theft of City property, but conceded that Hargray knew that McDonald used a City truck and a City trailer for personal purposes. He also conceded that it would have been unusual for Hargray to pick up lumber himself on a Saturday.

During the week of August 15, Hargray was aware that many City employees were being called down to the police station to be interviewed regarding misappropriation of City property. He also was aware that these employees were making serious allegations against him, and he discussed his concerns with his wife. During this time, Depp and Intindola observed that at the budget meetings on Friday, August 17 and Monday, August 20, Hargray, who was usually an active participant in meetings, was "unable to respond" and seemed "preoccupied." After McDonald resigned on August 20, Hargray went into Intindola's office and told him that he knew that McDonald had the trailer and other supplies, but that Hargray had told him to return them. When Intindola asked Hargray how he could have let McDonald have these items, Hargray...