Hunter v. City of Warner Robins, Ga.

• Decision Date: 04 February 1994
• Docket Number: Civ. A. No. 93-86-2-MAC.
• Citation: 842 F. Supp. 1460
• Parties: Clay HUNTER, Plaintiff, v. CITY OF WARNER ROBINS, GEORGIA, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

842 F. Supp. 1460

Clay HUNTER, Plaintiff, v. CITY OF WARNER ROBINS, GEORGIA, et al., Defendants.

Civ. A. No. 93-86-2-MAC.

United States District Court, M.D. Georgia, Macon Division.

February 4, 1994.

COPYRIGHT MATERIAL OMITTED

Paul L. Cames, Warner Robins, GA, for plaintiff.

J. Lewis Sapp, Karen E. Woods, Atlanta, GA, for defendants.

ORDER

OWENS, Chief Judge.

Before the court is defendants' motion for summary judgment. After careful consideration of the arguments of counsel, the relevant case law, and the record as a whole, the court issues the following order.

FACTS

Plaintiff Clay Hunter is a firefighter/EMT employed by defendant City of Warner Robins, Georgia. In May 1991, various firefighters, including plaintiff, were ranked by an assessment center as candidates for promotion to the position of fire engineer. Plaintiff placed third on this list. Subsequently, the first two firefighters on the list received promotions to the position of fire engineer. In the fall of 1991, a third fire engineer position became available. Plaintiff, now at the top of the assessment list, was the next eligible candidate for promotion.

On October 31, 1991, defendant Larry West, Chief of the Warner Robins City Fire Department, wrote Catherine Silengo, the city personnel director, requesting that plaintiff be promoted to the position of fire engineer, effective November 11, 1991. Chief West, however, did not inform plaintiff that the promotion request had been sent to Silengo.

On November 6, 1991, plaintiff reported late for duty. Because plaintiff had also reported late for duty a month earlier, Assistant Chief Kenneth Fennell wrote Chief West and informed him of the two offenses.¹ Fennell also informed Chief West that plaintiff had not provided a valid excuse for either occurrence. On November 6, 1991, plaintiff received a written reprimand from Chief West. On November 7, 1991, Chief West wrote Catherine Silengo and informed her that plaintiff's assessment grade would be reduced one point for the two tardiness offenses. In accordance with the point reduction, Chief West recommended that another firefighter be promoted to the available fire engineer position, effective November 11, 1991.

Pursuant to the personnel rules of the City of Warner Robins, plaintiff filed a formal grievance with Chief West. Plaintiff asserted in the grievance that Chief West did not have the authority to reduce the assessment grade once the grade had been achieved. On November 20, 1991, Chief West responded to plaintiff's grievance:

You allege that the Fire Department can not "reduce your point total after the point total has been achieved." There is absolutely nothing in the regulations of the Fire Department which would preclude doing this. With regard to your position on the engineer assessment list, you were in a superior position to another employee at the time the list was made on May 10, 1991. However, when your personnel file was reviewed from the date of the assessment up to the date of promotion, it was discovered that you had a letter of reprimand in your personnel file subsequent to the date of the assessment center. When the engineer assessment rating was reviewed, and your personnel file then reviewed, this disciplinary action resulted in your being surpassed on the rating list. There is absolutely nothing that prohibits me from taking into account subsequent disciplinary actions when making a promotion.

After receiving the response from Chief West, plaintiff contacted Catherine Silengo and requested information as to the next step in the grievance procedure. Accordingly, on December 5, 1991, Silengo met with plaintiff and Chief West to discuss the grievance. On December 12, 1991, Silengo wrote plaintiff and informed him of her findings and recommendations. In her findings, Silengo noted:

Mr. Hunter indicates he was unaware of the exact disciplinary procedure regarding tardiness. Although Mr. Hunter knew tardiness to be a serious offense, he was unaware it would effect his standing on the Assessment Center. The Assessment was run in May, 1991, and a ranking list was posted at that time. There were no provisions stated for altering the list once it was posted.

Further, "Chief West indicates a tardiness policy was posted in 1988, but employees were not given copies or requested to sign for copies. He updated this policy in 1989, reducing the penalties and a copy was only given to the Chiefs." However, despite the above findings, Silengo agreed with Chief West's decision not to promote plaintiff. In her recommendations, Silengo wrote:

I concur with Chief West's decision to delay promoting someone due to recent disciplinary actions. Chief West was consistent in following previous procedure within the Fire Department and Police Department. Although the procedure to amend the Assessment lists has been done in both the Police and Fire Departments, this procedure is not in writing.

The letter also informed plaintiff that he could appeal the findings and recommendations to an Administrative Law Judge ("ALJ").

On December 13, 1991, plaintiff informed Silengo that he was appealing her findings and recommendations. On January 15, 1992, a hearing was held before an ALJ. At the hearing, plaintiff, through counsel, testified on his own behalf, presented evidence, and cross-examined all adverse witnesses. On February 7, 1992, the ALJ issued a written order. In the order, the ALJ made the following conclusions:

1. A promotion is not effective until the requisite departmental head advises the employment candidate that he or she has been promoted; therefore Clay Hunter was never promoted.

2. Even though it is widely known in the fire department that tardiness is a serious offense it was not properly conveyed to Clay Hunter that two tardies in one year would warrant written reprimand; consequently, I order that the reprimand be removed from Clay Hunter's personnel file.

...

4. I further order that specific reprimand policy relative to "Lates" be submitted to all fire department employees in writing ... or in the alternative this specific reprimand policy should be rescinded and notice should be given to all fire department employees that reprimand shall be in the discretion of the supervisory personnel within the department.

Plaintiff was also informed that he could request a review of the ALJ's decision by the mayor and city council.

On February 20, 1992, plaintiff, through counsel, appealed the ALJ's decision to the mayor and city council. In his appeal, plaintiff contended that the ALJ was in error in finding that he had not been promoted. Plaintiff asserted that the ALJ also erred by not requiring the fire department to promote plaintiff. On April 20, 1992, the mayor and city council voted in session to uphold the decision of the ALJ.

On March 15, 1993, plaintiff filed suit in this court under 42 U.S.C. § 1983. Plaintiff contends the actions of defendants violated his right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution. Subsequently, defendants filed a motion for summary judgment. Defendants contend: (1) that the findings of fact issued by the ALJ are entitled to preclusive effect; (2) that plaintiff has failed to establish a procedural due process violation; (3) that plaintiff has failed to establish a substantive due process violation; and (4) that defendant West is entitled to qualified immunity.²

DISCUSSION

The plain language of Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The nonmoving party must put forth more than a "mere `scintilla'" of evidence; "there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." United States v. Metropolitan Petroleum co., 743 F.Supp. 820, 823 (S.D.Fla.1990).

I. Issue Preclusion

Defendants' contend that plaintiff may not relitigate any factual issues actually decided in his grievance proceeding before the ALJ. In particular, defendants assert that the ALJ's finding that plaintiff was not promoted is entitled to issue preclusive effect.

"When a state agency `acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." University of Tennessee v. Elliott, 478 U.S. 788, 799, 106 S.Ct. 3220, 3226, 92 L.Ed.2d 635 (1986); see also Gjellum v. City of Birmingham, 829 F.2d 1056, 1070 (11th Cir.1987). Therefore, before a federal court may look to state law to determine if agency factfinding is entitled to preclusive effect, three conditions must be met: "(1) the agency must be performing a judicial function, (2) the parties must have had a adequate opportunity to litigate the issues and (3) the issues must be properly before the agency." Nix v. Hardison, 712 F.Supp. 185, 188 (N.D.Ga.1989). If these factors are met, the court must then look to state law to determine the preclusive effect accorded the agency factfinding. See Elliott, 478 U.S. at 799, 106 S.Ct. at 3226; Gjellum, 829 F.2d at 1070; Nix, 712 F.Supp. at 188. The courts of the State of Georgia give issue preclusive effect to agency factfinding under the traditional guidelines of collateral...