Jenkins v. Weatherholtz, 89-1809

• Citation: 909 F.2d 105
• Decision Date: 23 July 1990
• Docket Number: No. 89-1809,89-1809
• Parties: Donald R. JENKINS, Plaintiff-Appellant, v. Glenn M. WEATHERHOLTZ; William G. O'Brien, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 105

909 F.2d 105

Donald R. JENKINS, Plaintiff-Appellant, v. Glenn M. WEATHERHOLTZ; William G. O'Brien, Defendants-Appellees.

No. 89-1809.

United States Court of Appeals Fourth Circuit.

Argued April 5, 1990.

Decided July 23, 1990.

Daniel Jay Neher, Harrisonburg, Va., for plaintiff-appellant.

J. Ross Newell, III, Timberlake, Smith, Thomas & Moses, Staunton, Virginia, for defendants-appellees.

Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and GARBIS, United States District Judge for the District of Maryland, sitting by designation.

PHILLIPS, Circuit Judge:

Donald R. Jenkins, a former deputy sheriff in Rockingham County, Virginia, brought this action against the sheriff and county administrator after he was dismissed from the sheriff's department. Jenkins alleged that he was deprived of a property interest in continued employment without due process of law. The district court ruled that Jenkins did not have a protectible property interest in continued employment and granted the defendants' motion for summary judgment. We affirm.

I

Jenkins was a deputy with the Rockingham County Sheriff's Department for fourteen years until he was dismissed in August 1987. ¹ He received no formal written notice of reasons for his dismissal and no hearing was held. Jenkins sought to grieve his dismissal pursuant to Rockingham County's Personnel Rules and Regulations ("Employees Handbook"), which provided specific grievance procedures for county employees. ² As required by Va.Code Ann. Sec. 15.1-7.1 (1989), the county's grievance procedure was patterned after the procedure applicable to state employees under Va.Code Ann. Sec. 2.1-114.5:1. ³ The Employees Handbook appeared to give sheriff's deputies the option of utilizing either the grievance procedures detailed in the Handbook or the statutory procedures provided for other law enforcement officers. ⁴ When Jenkins attempted to invoke the grievance procedures, Sheriff Glenn Weatherholtz responded that the grievance procedures in the Employees Handbook and Sec. 2.1-114.5:1 were inapplicable to deputy sheriffs. Similarly, Rockingham County Administrator William O'Brien confirmed that the procedures in Va.Code Ann. Sec. 2.1-114.5:1 were inapplicable and that the "Law-Enforcement Officers' Procedural Guarantees" in Va.Code Ann. Secs. 2.1-116.1 to -116.9 were inapplicable. ⁵

Jenkins filed this action alleging a 42 U.S.C. Sec. 1983 claim for deprivation of constitutional due process rights along with pendent state law claims for breach of employment contract and implied covenant of good faith and fair dealing. He alleged that Sheriff Weatherholtz had adopted the Employees Handbook and thus created a legitimate expectation among his employees that their employment would be subject to its terms. The defendants answered, asserting that the complaint failed to state a claim for deprivation of a protectible interest. The defendants then moved for summary judgment, arguing simply that as a matter of law, a deputy sheriff like Jenkins had no constitutionally protectible property interest in continued employment. ⁶ After a hearing, the district court granted the defendants' motion. 719 F.Supp. 468 (W.D.Va.1989). The court followed established district court precedent in this circuit in holding that a Virginia deputy sheriff does not have a constitutionally protectible property interest in continued employment.

This appeal followed. Jenkins concedes that the law of Virginia does not itself vest in him a legitimate expectation of continued employment as a deputy sheriff. But he contends that Sheriff Weatherholtz's adoption of the Employees Handbook gave rise to a constitutionally protectible interest. And he further contends that the Virginia Supreme Court in Angle v. Overton, 235 Va. 103, 365 S.E.2d 758 (1988), acknowledged limitations on the discretion of county sheriffs consistent with the recognition of such an interest. After reviewing the relevant statutory provisions and case law, we address each of these contentions.

II

A

In Virginia, a sheriff is an independent constitutional officer whose duties and authority are defined by statute. Va. Const. art. VII, Sec. 4; see Hilton v. Amburgey, 198 Va. 727, 96 S.E.2d 151, 152 (1957); see also Whited v. Fields, 581 F.Supp. 1444, 1453 (W.D.Va.1984). State law makes clear that sheriff's deputies are at will employees serving at the discretion of their sheriffs. The Virginia Code makes deputies employees of the sheriff, not employees of the local governing body, and provides that they "may be removed from office by [their] principal," the sheriff. See Va.Code Ann. Sec. 15.1-48 (1989).

The principles generally applicable when a discharged state or local government employee claims deprivation of a protectible property interest in continued employment are well established. "The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). Property interests in continued employment 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." Id. at 577, 92 S.Ct. at 2709. To support such a claim to benefits and therefore create a protected property interest, state law rules and understandings must provide a "sufficient expectancy of continued employment." See Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). A local government employee serving "at the will and pleasure" of the government employer has no legitimate expectancy of continued employment and thus has no protectible property interest. See id. at 345 & n. 8, 96 S.Ct. at 2078 & n. 8.

District courts in this circuit have consistently held that sheriff's deputies in Virginia do not have a protectible property interest in continued employment because state law makes them at will employees serving at the discretion of their sheriffs. Because deputy sheriffs in Virginia have no protectible property interests as a matter of state law, they are not entitled to any federal due process protection. See Pierson v. Gondles, 693 F.Supp. 408, 415 (E.D.Va.1988); United States v. Gregory, 582 F.Supp. 1319, 1321 (W.D.Va.1984), vacated and remanded on other grounds, No. 84-1613 (4th Cir. Oct. 1, 1985); Whited v. Fields, 581 F.Supp. at 1453; Hutto v. Waters, 552 F.Supp. 266, 269 (E.D.Va.1982); Sherman v. City of Richmond, 543 F.Supp. 447, 449-50 (E.D.Va.1982); Hopkins v. Dolinger, 453 F.Supp. 59, 63 (W.D Va.1978). The deputy sheriff in Hutto in fact alleged that procedural rules and regulations adopted by the local sheriff's department gave rise to an expectancy of continued employment. ⁷ The court held, however, that the sheriff's department's policies and procedures were "insufficient to negate the fact that a deputy sheriff holds his position at the will of the sheriff and can be dismissed without any constitutionally mandated procedural protections." 552 F.Supp. at 269-70. ⁸

B

Jenkins mounts a two-pronged argument against this case law. He alleges, and the defendants have chosen not to dispute the fact, ⁹ that Sheriff Weatherholtz did adopt the Employees Handbook and made its provisions applicable to his deputies. He argues that the Employees Handbook creates a legitimate claim to entitlement, at least to the extent that it provides guarantees against arbitrary adverse employment action. See Himmelbrand v. Harrison, 484 F.Supp. 803, 808 (W.D.Va.1980). In support, he relies on Detweiler v. Virginia Dep't of Rehabilitative Servs., 705 F.2d 557 (4th Cir.1983). In Detweiler, this court held that nonprobationary Virginia state employees have a protectible property interest in continued employment based on Va.Code Ann. Sec. 2.1-114.5:1 and the rules promulgated pursuant to it. Jenkins contends that the grievance procedures in the Employees Handbook, which are patterned after the procedures in Sec. 2.1-114.5:1, similarly create a sufficient expectancy of continued employment to give Rockingham County deputy sheriffs a protectible property interest. ¹⁰

Jenkins also contends that the Virginia Supreme Court's decision in Angle v. Overton, 235 Va. 103, 365 S.E.2d 758 (1988), demonstrates that a sheriff's authority to take adverse employment action against a deputy is not unfettered. In the Angle case, Franklin County, Virginia, had adopted an ordinance, pursuant to Va.Code Ann. Sec. 15.1-7.1, implementing grievance procedures that, like the procedures in the Employees Handbook, were modeled on the state procedures in Sec. 2.1-114.5:1. Angle grieved his demotion by the Franklin County Sheriff, and a hearing panel authorized under the statute and county procedure to render a "final and binding" decision concluded that Angle should be reinstated at his former rank. The sheriff did not reinstate Angle; Angle then petitioned for a mandamus writ to compel the sheriff to implement the panel's decision. The supreme court reversed the state trial court and held that the panel's decision was "binding" on the sheriff. The language used by the panel was mandatory, and the court reasoned that if the sheriff were free to accept or reject the panel's decision, then the statutory mandate that the panel's decision be binding would be rendered impotent. 365 S.E.2d at 759-60.

Here, as in Angle, the Employees Handbook provides for submission of a grievance to an impartial hearing panel with the authority to render a "final and binding" decision as the ultimate step in the grievance process. See Employees Handbook, Sec. 11.1(e), J.A. at 30 ("Step IV"). According to Jenkins, Angle undercuts facile reliance on a deputy's statutory at will employment status to find no protectible property interest where a sheriff...