Jones v. CITY OF EAST POINT, GA.

• Decision Date: 31 March 1992
• Docket Number: Civ. A. No. 1:90-CV-2735-JOF.
• Citation: 795 F. Supp. 408
• Parties: Homer JONES, Plaintiff, v. CITY OF EAST POINT, GEORGIA; Joseph Johnson, Jr., Individually and in his official capacity as City Manager of the City of East Point, Georgia; Leeman Barge, Individually and in his official capacity as a member of the Personnel Board of Appeals of the City of East Point, Georgia; Clyde Kinnett, Individually and in his official capacity as a member of the Personnel Board of Appeals of the City of East Point, Georgia; Arthur Benefield, Individually and as a member of the Personnel Board of Appeals of the City of East Point, Georgia; Olen Gunnin, individually and in his official capacity as a member of the Personnel Board of Appeals of the City of East Point, Georgia; Ann Douglas, individually and as a member of the Personnel Board of Appeals of the City of East Point, Georgia; Defendants.
• Court: U.S. District Court — Northern District of Georgia

795 F. Supp. 408

Homer JONES, Plaintiff, v. CITY OF EAST POINT, GEORGIA; Joseph Johnson, Jr., Individually and in his official capacity as City Manager of the City of East Point, Georgia; Leeman Barge, Individually and in his official capacity as a member of the Personnel Board of Appeals of the City of East Point, Georgia; Clyde Kinnett, Individually and in his official capacity as a member of the Personnel Board of Appeals of the City of East Point, Georgia; Arthur Benefield, Individually and as a member of the Personnel Board of Appeals of the City of East Point, Georgia; Olen Gunnin, individually and in his official capacity as a member of the Personnel Board of Appeals of the City of East Point, Georgia; Ann Douglas, individually and as a member of the Personnel Board of Appeals of the City of East Point, Georgia; Defendants.

Civ. A. No. 1:90-CV-2735-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

March 31, 1992.

Albert B. Wallace, Jonesboro, Ga., for plaintiff.

Beverly Holland Pritchard, Benton J. Mathis, Jr., Drew, Eckl & Farnham, Atlanta, Ga., for defendants.

ORDER

FORRESTER, District Judge.

This matter is before the court on defendants' motion for leave to file a brief in excess of the court's page limitation and defendants' motion for summary judgment. The motion to exceed the page limitation is unopposed and will be granted.

I. MOTION FOR SUMMARY JUDGMENT

Plaintiff brings this action under 42 U.S.C. § 1983 alleging that he was wrongfully terminated from his employment with the City of East Point, Georgia, in violation of his procedural and due process rights guaranteed under the Fourteenth Amendment of the United States Constitution. Plaintiff alleges that he was not given a pre-termination hearing and challenges the validity of the post-termination appeal proceeding that resulted in a decision unfavorable to plaintiff. Defendants move for summary judgment on grounds that the undisputed facts show that plaintiff was given an adequate pre-termination and post-termination hearing and that plaintiff has failed to produce any evidence in support of his substantive due process claims.

A. Findings of Fact

The following facts are undisputed¹, except where noted. At the time of his discharge, plaintiff Homer Jones was the Director of Building and Grounds for the City of East Point, Georgia. He reported directly to defendant Joseph Johnson, Jr., the City Manager of East Point. On January 2, 1990 Mark Warford, a city employee working under plaintiff's supervision, gave an affidavit to Johnson stating that plaintiff had ordered Warford to provide a personal service for East Point City Councilman Cecil Kennedy while Warford was on city time. Warford averred that he had assisted Kennedy in removing old carpet and padding from an apartment owned by Kennedy in College Park, Georgia. The task required approximately one hour.

Johnson avers that he had previously warned plaintiff to avoid the appearance of impropriety by using city employees to perform personal services. He also avers that he made plaintiff aware that doing so was grounds for dismissal. Plaintiff avers that any discussion about using city workers on city time to perform personal services ever occurred prior to January 1990. Further, plaintiff now denies that ordering a subordinate to perform personal services is a disciplinary violation authorizing discharge. However, in his deposition plaintiff admitted that Johnson and the City Attorney had previously warned him about using city employees to perform work for him during their off hours and generally avoiding the appearance of impropriety. He also conceded that it would be improper to direct city employees to perform personal services and non-city work.

Johnson provided a copy of Warford's affidavit to plaintiff on January 2, 1990. Plaintiff says he went to Johnson's office to find out why Warford and another employee had not been suspended when plaintiff had directed that disciplinary action be taken against them. Plaintiff admits that at that time Johnson told him that Warford had accused him of ordering Warford to do work for Councilman Kennedy.

After being given a copy of Warford's affidavit, plaintiff submitted a memorandum to Johnson dated January 3, 1990. He also sent a letter to Johnson requesting that Johnson suspend Mark Warford and another employee. He alleged that Warford had been stealing city property and was involved in drug use. Plaintiff testified that he had requested the employees' suspension prior to learning about Warford's affidavit.

Johnson and plaintiff discussed the allegations of Warford against him on the afternoon of January 4. Plaintiff testified that he met with Johnson in Johnson's office several times that day, including a five-minute meeting at the end of the working day. Johnson called plaintiff at home that evening and informed him that he was placing plaintiff on administrative leave pending the results of an investigation of the allegations in the affidavit.

Plaintiff testified that Johnson told him that the council had ordered Johnson to put him on administrative leave. Plaintiff avers that prior to being terminated, at a time when he was also responsible for licensing and inspection, he had refused to carry out certain requests made by Johnson without a written work order. On one occasion he refused Johnson's request that a stop order issued by plaintiff concerning a private undertaking be lifted and that after the matter was referred to the mayor and the city council, the council affirmed the stop order. Plaintiff also avers that he challenged Councilman Heckstall's right to conduct unlicensed real estate, restaurant, and catering businesses from the councilman's residence. Plaintiff avers that the publicity surrounding his complaint about Councilman Heckstall was one of the real reasons for his termination. Plaintiff further avers that Johnson rejected plaintiff's recommendation that a city employee be fired on grounds that the employee had improperly disposed of building materials acquired through condemnation. Plaintiff states that the employee was discharged only after the city council conducted an investigation upon plaintiff's insistence. Plaintiff states that he had requested outside assistance to investigate the use and possession of illegal drugs by employees under his supervision. Plaintiff states that he requested assistance first in mid-1987, but Johnson took no action until twenty city employees were arrested after plaintiff had been terminated.

On January 5, 1990 Johnson interviewed all of the employees working under plaintiff in the Building and Grounds Department. Johnson's investigation uncovered additional evidence to support the allegations in Warford's affidavit. Plaintiff's employees told Johnson that plaintiff had used city employees on city time to perform personal services for plaintiff on other occasions, that plaintiff verbally abused his employees on a regular basis, and that plaintiff showed favoritism to certain employees. Some employees told Johnson that they would quit if Johnson allowed plaintiff to return to work.

Plaintiff met with Johnson and the East Point City Attorney, Tony Edison, on Monday, January 8, 1990, for approximately one and one-half hours. Plaintiff characterizes this meeting as a "chance encounter" after he ran into Johnson and Eidson in front of a bank in East Point. Plaintiff avers that he came to East Point to help set up for a seminar and to inquire why he was still on administrative leave, not to meet with Johnson and Eidson. At his deposition, plaintiff testified that Johnson and Eidson agreed to meet with him on plaintiff's insistence.

Plaintiff now denies that there was any "proposed termination" discussed during the meeting but avers that he was threatened with the possibility of criminal prosecution if he did not resign. However, in his deposition plaintiff admitted that he understood that Johnson and Eidson were trying to persuade him to resign in lieu of being fired and that Eidson and Johnson had concluded that plaintiff's employment with the city should be terminated. Plaintiff testified, "The main consensus of that meeting was that they were going to conduct an investigation, and I was told by Tony Eidson that I had better resign, because I could not stand the investigation, that they were going to dig up something on me to terminate me."

In his deposition plaintiff admitted that the parties discussed the allegations against him, including those in Warford's affidavit. He was also informed that other allegations had been made by his subordinates during the investigation. Plaintiff admitted that there was a general discussion about the complaints of favoritism by his employees. In his affidavit submitted in opposition to the motion for summary judgment, plaintiff avers that "there were no discussions as to any named employee about discrimination, disfavor, or other preferable treatment shown to any employee. ..." However, at his deposition he admitted that there was discussion concerning at least one incident of alleged racial favoritism. Defendants ask the court to disregard plaintiff's affidavit as a sham affidavit because it directly contradicts his deposition testimony.

Plaintiff has admitted that he was given opportunity to respond to each of the allegations discussed. During the meeting Johnson called Councilman Kennedy and put him on the speaker phone and asked him about the incident alleged in Warford's affidavit. Kennedy denied the incident although Johnson maintains that he had previously admitted it to Johnson.

On January 17, 1990 Johnson sent plaintiff written notice that plaintiff's employment was being terminated "for abusive use of your official position and for conduct unbecoming your position as head of the Buildings and Grounds Department of the City of East Point, in violation of section 4-213 of the Charter of the City of East Point...