Ishee v. Moss, WC84-58-LS-G.

• Citation: 668 F. Supp. 554
• Decision Date: 31 August 1987
• Docket Number: No. WC84-58-LS-G.,WC84-58-LS-G.
• Parties: Hollis ISHEE, Plaintiff, v. Robert S. MOSS, Mississippi State Forestry Commission, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

668 F. Supp. 554

Hollis ISHEE, Plaintiff, v. Robert S. MOSS, Mississippi State Forestry Commission, et al., Defendants.

No. WC84-58-LS-G.

United States District Court, N.D. Mississippi, W.D.

August 31, 1987.

J.P. Coleman, Ackerman, Miss., and J. Niles McNeel, Louisville, Miss., for plaintiff.

Edwin Lloyd Pittman, Atty. Gen., and T. Hunt Cole, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for defendants.

OPINION

SENTER, Chief Judge.

This action arose from the allegedly unlawful discharge of plaintiff from his position as a district forester of the State of Mississippi. Plaintiff brought this action in this court alleging violation of various constitutional rights. Presently before the court is defendants' motion for summary judgment. Upon review of the record in this case and being otherwise fully advised, the court is of the opinion that summary judgment is appropriate and the defendants' motion should be sustained. The complaint should accordingly be dismissed with prejudice.

I. FACTS AND BACKGROUND.

Plaintiff Hollis Ishee and defendant Robert S. Moss competed for the appointment to the position of State Forester of the State of Mississippi to which Moss was appointed. Subsequently, Moss accused Ishee of altering state records and perpetrating a fraud on the State Forestry Commission and on the State of Mississippi in regard to the application of chemicals to Ishee's private property. He sought to discharge Ishee from his position as a district forester ostensibly for his participation in the alleged violations. Ishee brought this action claiming both a property interest and a liberty interest in his position as a district forester and alleging that he had been discharged without due process of law. In the alternative, plaintiff claims that he has been denied equal protection of the laws. Complaint, ¶ 7. Plaintiff further sought preliminary injunctive relief, which this court denied in an order issued June 26, 1986.

Defendants argue that plaintiff possessed no property interest in his employment because, pursuant to Miss.Code Ann. § 25-9-107(c)(xv), he reported directly to the head of the agency, i.e., the State Forester, and thus was not covered by the relevant state civil service law. Since plaintiff had no property interest, defendants argue, then the procedural due process claim must fail. Defendants further contend that plaintiff's claim of a liberty interest is without merit because defendants did not make public any charges against plaintiff Ishee in connection with his employment or the termination thereof. Finally, defendants argue that the lack of a hearing regarding Ishee's continued employment was not wholly arbitrary or irrational and, thus, was not a violation of the equal protection of the laws.

II. CONCLUSIONS OF LAW.

Jurisdiction is conferred on this court by 28 U.S.C. § 1331.

The standard for summary judgment is set out in Fed.R.Civ.P. 56. Under subsection (c) of Rule 56, summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The mere existence of a factual dispute does not by itself preclude the granting of summary judgment. The dispute must be genuine,¹ and the facts must be material.² Anderson v. Liberty Lobby, 477 U.S. 242, ___, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202, 213 (1986).

As noted, plaintiff seeks relief on three independent grounds, two of which are encompassed by the liberty and property interests protected by the due process clause of the fourteenth amendment. In order to recover under the fourteenth amendment, a plaintiff must demonstrate that he was deprived of a liberty or property interest and that he was not afforded adequate procedural due process protection prior to or following the deprivation. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972); Kelleher v. Flawn, 761 F.2d 1079, 1086 (5th Cir. 1985).

A. Property Interest

The Supreme Court in Roth refused to base the concept of property on an employee's mere expectation. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it; he must have more than a unilateral expectation of it. He must have a legitimate claim of entitlement to it. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Batterton v. Texas General Land Office, 783 F.2d 1220, 1222 (5th Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 316, 93 L.Ed.2d 289 (1986). A protected property interest in employment exists only where the employee has an express or implied right to continued employment. White v. Mississippi State Oil & Gas Bd., 650 F.2d 540, 541 (5th Cir.1981); McElwee v. Todd, 581 F.2d 1182, 1183 (5th Cir.1978).

Federal constitutional protection may turn on state-created rights. Thus, whether a state employee has been deprived of property without due process depends upon whether he had state-created rights vesting a cognizable property interest in this continued employment. Guillory v. St. Landry Parish Police Jury, 802 F.2d 822, 825 (5th Cir.1986); Batterton, 783 F.2d at 1222; Stern v. Tarrant County Hosp. Dist., 755 F.2d 430, 433 (5th Cir. 1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1957, 90 L.Ed.2d 365 (1986); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 430-31, 102 S.Ct. 1148, 1154-55, 71 L.Ed.2d 265 (1982). In other words, the "property" that is safeguarded by the due process clause may be created by existing rules or understandings that stem from an independent source such as state law— rules or understandings that secure certain benefits and support claims of entitlement to those benefits. Property interests are often expressly created by state statutes or regulations, but they can also arise from written or unwritten state or local government policies or from "mutually explicit understandings" between a government employer and employee. See Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972); Stana v. School Dist. of City of Pittsburg, 775 F.2d 122, 125-26 (3rd Cir.1985); Robinson v. Boyer, 643 F.Supp. 975, 980 (N.D. Miss. 1986) (appeal pending). The Supreme Court of the United States has recently reaffirmed that a plaintiff's property interest must be created, defined, and governed by state law. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491-92, 84 L.Ed.2d 494, 501 (1985); see also Jett v. Dallas Ind. School Dist., 798 F.2d 748, 753 (5th Cir.1986); Irby v. Sullivan, 737 F.2d 1418, 1421 (5th Cir. 1984); accord Dwyer v. Regan, 777 F.2d 825, 829 (2nd Cir.1985); Bailey v. Kirk, 777 F.2d 567, 573 (10th Cir.1985).

In Perry v. Sears Roebuck & Co., 508 So.2d 1086 (1987), the Supreme Court of Mississippi ruled the maintenance of an employment policy guidebook by a private employer did not create a contractual right to continued employment in a covered individual. Moreover, the logic of Conley v. Board of Trustees of Grenada County Hospital, 707 F.2d 175, 179-81 (5th Cir. 1983), is inapplicable here. That case held that where the status of an employee of a local governmental board is not addressed by the Mississippi Code, the adoption of a policy handbook will imply a for cause standard. The Fifth Circuit held that where the legislature has not explicitly addressed the "at-will" or "for cause" status of an employee, the right of the board to choose the standard is implied and the publication of the policy guidebook constituted a choice of a "for cause" standard. This court has previously found in this cause that Hollis Ishee was covered by Miss.Code Ann. § 25-9-107(c)(xv) (Supp.1983) as it existed on the date of his firing. On that date, the statute provided that "administrative officers who report directly to the department, agency institution, board of commissioner administrative head" were excluded from the "for cause" standard of state's system of personnel administration. Ishee's status is therefore explicity addressed by the legislature and is not subject to implication of a "for cause" standard. As Ishee is an employee at-will, he possesses no property interest in his employment and cannot maintain this action on that ground. Summary judgment is therefore granted on this claim.

B. Liberty Interest

Plaintiff also alleges that his reputation could be besmirched by the allegations of fraud and wrongdoing which form the alleged basis for his dismissal. It is settled law, however, that reputation alone is not a constitutionally protected interest, although state law may create a right to damages for defamation.³ Wells v. Hico Independent School Dist., 736 F.2d 243, 256 (5th Cir.1984), cert. dismissed, 473 U.S. 901, 106 S.Ct. 11, 87 L.Ed.2d 672 (1986); White v. Thomas, 660 F.2d 680, 684 (5th Cir.1981), cert. denied 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148 (1982); see also Paul v. Davis, 424 U.S. 693, 709, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976). A constitutionally protected liberty interest is implicated only if an employee is discharged in a manner that creates a false and defamatory impression which stigmatizes and forecloses him from other employment opportunities. White, 660 F.2d at 684; Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977). Moreover, for a charge to be stigmatizing, it must be worse than merely adverse; it must be such as to give rise to a "badge of infamy, public scorn, or the like." Wells, 736 F.2d at 256 n. 16 (and cases cited therein). Finally, the employee must show that the governmental agency has made the stigmatizing charges public in any official or intentional manner, other than in connection with the defense of related legal action. Wells, 736 F.2d at 256; Ortwein v. Mackey, 511 F.2d 696, 699 (5th Cir.1975). In summary, to support a claim of deprivation of a liberty...