Kennard v. Wray

• Decision Date: 24 February 1994
• Docket Number: No. 93-3138,93-3138
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Richard M. KENNARD, Plaintiff-Appellant, v. Jerry WRAY, Director, Ohio Department of Transportation, Individually and In His Official Capacity, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 19

19 F.3d 19

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Richard M. KENNARD, Plaintiff-Appellant, v. Jerry WRAY, Director, Ohio Department of Transportation Individually and In His Official Capacity Defendant-Appellee.

No. 93-3138.

United States Court of Appeals, Sixth Circuit.

Feb. 24, 1994.

Before: MILBURN and BOGGS, Circuit Judges; and MILES, Senior District Judge. ^*

PER CURIAM.

Plaintiff brought this action under 42 U.S.C. Sec. 1983, alleging that his rights to freedom of association and due process of law were violated when he was demoted from his probationary position by defendant. On appeal, the issue is whether the district court's grant of summary judgment to defendant was proper. For the reasons that follow, we affirm.

I.

The Ohio Department of Transportation hired plaintiff Richard Kennard in 1971. On January 13, 1991, Kennard was promoted from his position of Highway Maintenance Superintendent 1 to the position of Highway Maintenance Superintendent 2. Under Ohio law, he was required to serve a 180-day probationary period in the new position. On July 9, 1991, Kennard received a letter from the Director of the Ohio Department of Transportation, defendant Jerry Wray, informing Kennard that he had failed to complete his probation satisfactorily because of "failure to meet the minimum requirements for the satisfactory performance of your duties." J.A. 36. Kennard was demoted to his prior position of Highway Maintenance Superintendent 1.

Kennard appealed this decision to the Ohio State Personnel Board of Review, which had jurisdiction only to determine whether the Department of Transportation had complied with the rules and statutes governing the demotion. The only procedural issue apparently raised was the failure of Wray to give a report to the State Director of Administrative Services explaining why Kennard's probationary performance was unsatisfactory. The Board of Review adopted the administrative law judge's recommendation to dismiss the appeal for failure to state a claim. Kennard then appealed that decision to the Franklin County Common Pleas Court, which affirmed the Board of Review's decision because Kennard failed to state the grounds for appeal as required by Ohio Revised Code Ann. Sec. 119.12.

Kennard then filed this action in Preble County Common Pleas Court against Wray in his official and individual capacities, alleging two claims for relief presumably under 42 U.S.C. Sec. 1983. The action was removed to federal court.

The first claim alleged that Wray, acting under color of state law, failed to follow the procedures required by state law and administrative regulations in making the decision to demote Kennard. The complaint asserted that Kennard maintained a property interest in the position of Highway Maintenance Superintendent 2, and Wray's actions violated his right to procedural due process under the Fourteenth Amendment to the United States Constitution. The second claim for relief alleged that Kennard was a Democrat and Wray was a Republican, and after Kennard was demoted, the Highway Maintenance Superintendent 2 position was filled with a less qualified employee who was a Republican. The complaint asserted that Wray violated Kennard's rights under the Fourteenth and First Amendments to the United States Constitution by demoting Kennard because of his political affiliation. Kennard's complaint asked for reinstatement, damages, attorney fees, costs, and other unspecified relief.

After answering the complaint, defendant Wray, arguing sovereign immunity, moved to dismiss all damage claims against him in his official capacity. Kennard then apparently conceded that the damage claims against Wray in his official capacity were barred but requested that the demand for prospective injunctive and equitable relief against Wray in his official capacity and the claim for damages against Wray in his individual capacity be sustained.

Defendant Wray then moved for summary judgment based on his affidavit, which stated that (1) he did not personally make the decision to demote Kennard, (2) he had delegated signature authority for many lower level personnel decisions, and (3) he did not personally sign the letter ¹ advising Kennard of the demotion. Wray argued that he could not be liable in his individual capacity because he did not cause the alleged harm and that he was entitled to qualified immunity. Wray further argued that Kennard's due process claim was precluded by the previous appeals to the State Personnel Board of Review and the Franklin County Common Pleas Court, and also was not actionable because Kennard had not shown that his state law remedies were inadequate or that he had a protected property interest. Kennard objected to Wray's summary judgment motion and moved for partial summary judgment, arguing that Wray could not delegate his authority over personnel decisions.

The district court granted defendant Wray's motion for summary judgment and denied plaintiff Kennard's motion for partial summary judgment. This timely appeal followed.

II.

This court reviews a grant of summary judgment de novo, using the same test as the trial court. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c). In its review, this court must view all facts and inferences in the light most favorable to the nonmoving party. Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir.1991), cert. denied, 112 S.Ct. 1481 (1992).

The party seeking summary judgment bears the initial burden of showing the district court that there is an absence of a genuine dispute over any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden "may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Id. at 325. In order to defeat the motion for summary judgment after the movant has carried its initial burden, the nonmoving party cannot respond by merely resting on the pleadings, but rather the nonmoving party must present some "specific facts showing that there is a genuine issue for trial." Id. at 324 (quoting Fed.R.Civ.Proc. 56(e)).

Plaintiff's complaint stated claims for deprivation of his Constitutional rights to due process under the Fourteenth Amendment and to freedom of association or political affiliation under the Fourteenth and First Amendments. He sued defendant in his official capacity as Director of the Ohio Department of Transportation and in his individual capacity. Plaintiff prayed for equitable relief as well as money damages.

A.

As to the claims against defendant Wray in his individual capacity, the district court held that Wray was entitled to dismissal because he had delegated his authority over lower-level personnel decisions, such as the decision to demote Kennard, and therefore he did not cause Kennard's alleged harm. ² Along with his motion for summary judgment, defendant Wray filed his own affidavit stating that (1) "[f]or many lower level personnel decisions, [he] ha[d] delegated signature authority"; (2) he "did not personally make the decision finding that [plaintiff] Kennard did not satisfactorily [sic] complete the probation period"; and (3) he "did not personally sign the July 8, 1992, letter to [plaintiff] Kennard." J.A. 35. Wray's lack of involvement in Kennard's demotion shields him from the claims against him in his individual capacity because respondeat superior is not an appropriate basis for liability under Sec. 1983. See Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.) (holding that "[t]here must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it."), cert. denied, 469 U.S. 845 (1984).

Kennard concedes that Wray delegated the signature authority, but argues that this delegation of authority was illegal under state law and therefore void. Whether or not the delegation of authority was legal under state law is irrelevant because the fact remains that defendant Wray did not participate in the decision to demote Kennard, and therefore did not cause the alleged constitutional deprivation. Furthermore, Kennard's contention that Wray's delegation of authority was illegal under state law is not cognizable in this Sec. 1983 action.

B.

The district court held that the damages claims against Wray in his official capacity were barred by sovereign immunity. See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (a suit against a state official in his official capacity is a suit against the state itself); Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989) (neither a state nor its officials sued in their official capacity for money damages is a "person" capable of being sued under 42 U.S.C. Sec. 1983). Plaintiff, properly, does not challenge this conclusion.

C.

The claims for injunctive relief against Wray in his official capacity were not barred by the Eleventh Amendment. See Hafer v. Melo, 112 S.Ct. 358, 364-65 (1991); Will, 491 U.S. at 71 n. 10. However, the district court held that plaintiff was not entitled to injunctive relief for his procedural due process claim because he did not have a protected property interest in his probationary position.

The Due Process Clause of the Fourteenth Amendment prohibits "any State [from] depriv[ing] any person of life, liberty, or property, without due process of law." A person is constitutionally entitled to due process only if the state's actions deprived him of one of the three interests specified: life, liberty, or property. Plaintif...