Hopkins v. Saunders, 98-2803

• Decision Date: 14 September 1999
• Docket Number: No. 98-2803,98-2948,98-2803
• Parties: (8th Cir. 1999) TOMMY D. HOPKINS, PLAINTIFF/APPELLANT, v. JOHN L. SAUNDERS, KYLE VICKERS, CHARLES AUSFAHL, ROY TEMPLE, BETH M. WHEELER, DEFENDANTS/APPELLEES. TOMMY D. HOPKINS, PLAINTIFF/APPELLEE, v. JOHN L. SAUNDERS, KYLE VICKERS, DEFENDANTS/APPELLANTS, CHARLES AUSFAHL, DEFENDANT, ROY TEMPLE, BETH M. WHEELER, DEFENDANTS/APPELLANTS. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 968

199 F.3d 968 (8th Cir. 1999)

TOMMY D. HOPKINS, PLAINTIFF/APPELLANT, v. JOHN L. SAUNDERS, KYLE VICKERS, CHARLES AUSFAHL, ROY TEMPLE, BETH M. WHEELER, DEFENDANTS/APPELLEES.

TOMMY D. HOPKINS, PLAINTIFF/APPELLEE, v. JOHN L. SAUNDERS, KYLE VICKERS, DEFENDANTS/APPELLANTS, CHARLES AUSFAHL, DEFENDANT, ROY TEMPLE, BETH M. WHEELER, DEFENDANTS/APPELLANTS.

No. 98-2803, 98-2948

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 14, 1999

Filed: December 16, 1999

Rehearing and Rehearing En Banc

Denied Jan. 26, 2000

Appeals from the United States No. 98-2948 District Court for the Western District of Missouri. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Wollman, Chief Judge, Heaney and Beam, Circuit Judges.

Wollman, Chief Judge.

Tommy D. Hopkins appeals from the district court's denial of his claim for reinstatement and from the court's failure to rule on his claims that John L. Saunders and other state officials (collectively, the officials) violated his rights under the First Amendment and Title VII of the Civil Rights Act of 1964 (Title VII). 42 U.S.C. §§ 2000e-2000e-17.¹ The officials cross-appeal, contending that the district court erred in finding that Hopkins had a property interest in his job and in awarding Hopkins nominal damages and attorney fees. We affirm in part and reverse in part.

I.

This case comes before us for the second time. We outline only those facts relevant to this appeal, referring the reader to a more complete recitation of the facts found in our first opinion, Hopkins v. Saunders, 93 F.3d 522, 524-25 (8th Cir. 1996) (Hopkins I). On June 10, 1994, Hopkins was dismissed from his position as director of the Division of Grain Inspection and Warehousing (the Division) of the Missouri Department of Agriculture (the Department) without receiving prior notice or a hearing.

Hopkins sought review of his dismissal by filing an appeal with the Agriculture Personnel Review Board (APRB), an entity formed pursuant to a merit system plan adopted by the Department in 1978 (1978 plan). The purpose of this plan and the APRB was to ensure that Division employees were employed on the basis of job qualifications rather than political affiliations. The Department responded to Hopkins' appeal with a letter explaining that the 1978 plan was void and that the APRB no longer existed.

Hopkins then filed an appeal with the Personnel Advisory Board (PAB), an employment termination review board established under Chapter 36 of the Missouri Revised Statutes. Chapter 36 is a state merit system law that was enacted by the Missouri legislature in 1979; the Department formally adopted the PAB's dismissal procedures in 1982. Following a hearing, the PAB found that Missouri Revised Statute section 36.030.1(1) expressly excludes division directors, such as Hopkins, from the PAB's appeal procedures, and, furthermore, that the 1978 plan remained applicable to those employees who were excepted from the PAB's procedures. The PAB therefore dismissed Hopkins' claim, concluding that it lacked jurisdiction to hear his appeal and that the proper forum for such an appeal was the APRB.

Hopkins then brought a 42 U.S.C. § 1983 action in federal district court against Saunders, Director of the Department, and several other state officials, alleging that he was dismissed in violation of his due process rights and in violation of Missouri's whistleblower statute. The officials moved for summary judgment on qualified immunity and Eleventh Amendment immunity grounds. The district court denied the motion, whereupon the officials took an interlocutory appeal to this court on the question of immunity. We reversed, finding that the officials were entitled to both qualified and Eleventh Amendment immunity, and remanded the case to the district court for further proceedings regarding Hopkins' claim for equitable relief. See Hopkins I, 93 F.3d at 527. On remand, the district court found by way of cross motions for summary judgment that Hopkins had a property interest in his position as Division director under the 1978 plan and that he had been dismissed in violation of his procedural due process rights. Following a hearing, the district court also found that Hopkins would have been dismissed from his position even if he had received due process. The court therefore awarded Hopkins nominal damages only, along with attorney fees, and entered a final judgment on all of Hopkins' claims.

II.

Hopkins first argues that the district court denied him the opportunity to pursue claims that he was discharged in violation of the First Amendment and Title VII.² He contends that these claims were sufficiently raised in his second amended complaint but were never properly resolved, inasmuch as we did not dispose of them on immunity grounds in Hopkins I and the district court failed to rule on them on remand. Thus, Hopkins contends that the district court, by entering a final judgment in Hopkins' action against the officials, wrongly foreclosed his ability to pursue these claims and that we should therefore reinstate them.

Our determination whether to reinstate Hopkins' First Amendment and Title VII claims rests upon three key inquiries. First, we must determine whether Hopkins sufficiently raised First Amendment and Title VII claims in his complaint. The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party "fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved." Redland Ins. Co. v. Shelter Gen. Ins. Co., 121 F.3d 443, 446 (8th Cir. 1997) (citing Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 714 (8th Cir. 1979)). "[I]t is the facts well pleaded, not the theory of recovery or legal conclusions," that state a cause of action and put a party on notice. Economy Housing Co. v. Continental Forest Products, Inc., 757 F.2d 200, 203 (8th Cir. 1985) (quoting Moore v. Puget Sound Plywood, Inc., 332 N.W.2d 212, 215 (1983)).

We conclude that Hopkins' second amended complaint, while not a model of clarity, alleged facts sufficient to put the officials on notice of Hopkins' First Amendment and Title VII claims. Hopkins' complaint does not assert First Amendment and Title VII claims in separately numbered counts, as it does his due process and whistleblower claims. It does, however, list the First Amendment as a basis for the district court's jurisdiction and, more importantly, generally alleges in its due process count that Hopkins was dismissed because of statements he made regarding an employee's sexual harassment complaint and the Department's hiring practices. These factual allegations suggest First Amendment and Title VII claims and thus are sufficient, albeit perhaps marginally so, to satisfy the liberal pleading requirements of the federal rules.

Second, we must determine whether Hopkins' First Amendment and Title VII claims were encompassed within our qualified immunity ruling in Hopkins I. Our jurisdiction over an interlocutory appeal challenging a district court's denial of qualified immunity "is limited to the resolution of the issue of qualified immunity." Mettler v. Whitledge, 165 F.3d 1197, 1202 (8th Cir. 1999). Accordingly, we have held that where a district court's summary judgment order addresses qualified immunity only as it relates to some of a plaintiff's claims and not to others, even though all such claims are part of a single action, we have jurisdiction only over those claims to which the district court expressly applied the principle of qualified immunity. See Jones v. Coonce, 7 F.3d 1359, 1365 (8th Cir. 1993).

The district court's summary judgment order considered the officials' qualified immunity only as it related to Hopkins' due process and whistleblower claims. See Hopkins v. Saunders, No. 94-4458, slip op. at 23-27 (W.D.Mo. Jan. 9, 1996). Our jurisdiction in Hopkins I was therefore limited to these claims and did not extend to Hopkins' First Amendment and Title VII claims. As a result, Hopkins I did not dispose of Hopkins' First Amendment and Title VII claims.

Finally, we must decide whether Hopkins waived his right to pursue his First Amendment and Title VII claims. "It is an axiom of trial procedure that counsel must take the initiative in protecting the rights of his clients." McNeely v. United States, 353 F.2d 913, 917 (8th Cir. 1965). "To obtain appellate review of a trial court's acts or omissions a party must have made known to the trial court the action which the party desires the court to take . . . ." Porterco, Inc. v. Igloo Products Corp., 955 F.2d 1164, 1173 (8th Cir. 1992) (citations omitted).

We recently applied these principles in Becker v. University of Nebraska at Omaha, 191 F.3d 904 (8th Cir. 1999). There, Becker asserted in his trial brief to the district court that the defendant university had expressly consented to waive its Eleventh Amendment immunity to Becker's ADEA claim. Id. at 909 n.4. The district court, however, dismissed Becker's ADEA claim on Eleventh Amendment grounds without ever ruling on Becker's waiver argument. Id. at 907, 909 n.4. On appeal, Becker reasserted his waiver argument, but we refused to reach the merits of this issue, finding that Becker had failed to preserve it for appellate review. Id. at 909 n.4. We noted that although Becker had asserted this argument in his trial brief, this alone was insufficient to preserve it for appeal where the district court never ruled on the issue. Id. Rather, we explained that to preserve his waiver argument for appeal Becker "should have called the district court's attention to its failure to decide the waiver issue." Id. Because Becker failed to actively assert this argument to the district court, we refused to consider it on appeal.

As in Becker, Hopkins failed to adequately assert his First Amendment and Title VII claims to the district...