Kizer v. Shelby County Gov't

• Decision Date: 17 August 2011
• Docket Number: No. 10–5161.,10–5161.
• Citation: 649 F.3d 462,32 IER Cases 1194
• Parties: Edward KIZER; John Ryan, III; Don Howell, Plaintiffs–Appellants,v.SHELBY COUNTY GOVERNMENT; Shelby County Civil Service Merit Board; Otis Jackson, Individually and in his official capacity; Joe Ford, in his official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

649 F.3d 462

32 IER Cases 1194

Edward KIZER; John Ryan, III; Don Howell, Plaintiffs–Appellants,

v.SHELBY COUNTY GOVERNMENT; Shelby County Civil Service Merit Board; Otis Jackson, Individually and in his official capacity; Joe Ford, in his official capacity, Defendants–Appellees.

No. 10–5161.

United States Court of Appeals, Sixth Circuit.

Argued: June 3, 2011.Decided and Filed: Aug. 17, 2011.

ARGUED: Alan G. Crone, Crone & McEvoy, PLC, Memphis, Tennessee, for Appellants. Charles W. Cavagnaro, Jr., Evans Petree, PC, Memphis, Tennessee, Louis P. Britt III, Ford & Harrison LLP, Memphis, Tennessee, for Appellees. ON BRIEF: Alan G. Crone, Crone & McEvoy, PLC, Memphis, Tennessee, for Appellants. Charles W. Cavagnaro, Jr., Evans Petree, PC, Memphis, Tennessee, Louis P. Britt III, Marcy N. Ingram, Ford & Harrison LLP, Memphis, Tennessee, for Appellees.Before: BOGGS and SILER, Circuit Judges; VAN TATENHOVE, District Judge.^*

OPINION

VAN TATENHOVE, District Judge.

Following their termination from appointed positions within the Shelby County Clerk's Office, Edward A. Kizer, John J. Ryan, III, and Don Howell brought suit under 42 U.S.C. § 1983. They allege that they were terminated without due process of law, in violation of the Fourteenth Amendment. The district court granted summary judgment in favor of the County and its officials, concluding that Kizer, Ryan, and Howell received constitutionally adequate process prior to their termination. On appeal, the three former employees challenge that conclusion. We agree that the County and its officials were entitled to summary judgment, but so hold because the Appellants had no legitimate property right to their positions and therefore nothing for the Due Process Clause to protect.

I.

In 1971, the Tennessee General Assembly enacted Chapter 110 of the Tennessee Private Acts (the “Act”), establishing the Tennessee Civil Service Merit System for employees of Shelby County, Tennessee.¹ The Act established Defendant Shelby County Civil Service Merit Board (the “Board”) as the body charged with determining how each available county job should be classified under the Merit System. If the Board determines that a position is “classified,” the Act requires that civil service protections apply to that position. Shelby County must fill classified positions through open, competitive evaluations after advertising the job openings for thirty days. Classified employees are not terminable at will.

Not all positions within Shelby County Government qualify for protection under the Act. The Board has determined that some positions are “unclassified.” Unclassified positions are commonly known as appointed positions. Shelby County's forty-three elected officials appoint people they choose to fill the unclassified positions. Unclassified positions do not require prior public notice or examination before the appointing officials may fill them. Because unclassified positions do not come within the Act's civil service protections, the employees in those positions are terminable at will. Shelby County employees commonly refer to the termination of an unclassified employee as “disappointment.” If a disappointed employee held a classified position before his or her appointment to an unclassified post, the employee may exercise “bump-back” rights to return to the protected civil service position following the disappointment.

Former Shelby County General Sessions Court Clerk Chris Turner appointed Edward Kizer Administrator of the Clerk's Office on February 1, 2003. The Board categorized Kizer's position as unclassified, and Kizer did not obtain his position as Administrator through the merit selection process. Kizer's job responsibilities included supervising forty-five employees; reviewing reports, including financial reports; and resolving any problems with the Clerk's Office that judges, lawyers, or citizens might have. Kizer was also responsible for the day-to-day operations of the Clerk's Office and held weekly meetings with lower-level managers to ensure that staff productivity met Turner's stated goals.

John J. Ryan, III began working for the Clerk's Office nearly thirty years ago. Although Ryan was initially a classified employee protected by the Act, in 1987 Ryan accepted an appointment to an unclassified position, “Manager B.” Ryan worked as Manager B for approximately twenty-one years because successive Clerks reappointed him. Manager B's primary responsibility was to run the 24–hour division of the criminal section of the Clerk's Office. Ryan supervised three shifts of eight workers each and was on call twenty-four hours a day to address any issues that a supervisor could not handle. Under Turner, Ryan also managed the Clerk's Office collections department. In Ryan's words, his job was to “put out fires” that might arise from disputes involving bail-bonding companies or judges.

Don Howell joined the General Sessions Clerk's Office when Turner appointed him to serve as “Manager A” in September 1996. As with Kizer's and Ryan's positions, the Board categorized Manager A as an unclassified job. Howell replaced the prior Manager A, Camille Hubbard, whom Turner terminated after his election as Clerk. Turner had Howell examine the Clerk's Office fee structure and make recommendations about how the office could become self-sustaining. Howell also made budgetary recommendations and worked with a state committee in Nashville to revive Tennessee's court cost statutes. If Turner had special projects, he often assigned them to Howell.

On August 8, 2008, Defendant Otis Jackson, Jr. defeated incumbent Turner in the general election for Shelby County General Sessions Court Clerk. Four days after his defeat, Turner, following established procedure, contacted Shelby County Human Resources Administrator Mike Lewis. Turner asked Lewis to perform a review of Plaintiffs' jobs and to recommend that the Board change their categorization from unclassified to classified. Lewis asked Timothy Green to review preliminarily the status of Appellants' positions. In performing his review, Green examined only the job descriptions on file with the Clerk's Office. Based on his review of the job descriptions, Green preliminarily recommended, on August 14 or 15, that the Board consider changing Ryan's and Howell's job categorization to classified. Green did not recommend that Kizer's classification change.

Lewis wrote to Turner on August 25, requesting that Turner identify either (1) material changes in Appellants' job responsibilities that would support their reclassification or (2) errors the Board had made in its original categorization of the positions as unclassified. Turner responded by letter two days later. Although he did not answer either of the two questions Lewis posed, Turner did argue that positions in other offices had recently been re-categorized as classified. He also asked why Lewis's review was taking so long.

Before assuming office on September 1, Clerk–Elect Jackson met with Shelby County officials to obtain a list of all unclassified positions. After that meeting, Jackson informed Kizer and Howell by letters dated August 26, that he would not reappoint them to their positions. Kizer and Howell both chose to retire from Shelby County Government and receive the benefits due them for their years of service. After assuming office, Jackson withdrew the pending request to re-categorize Appellants' positions as classified. Jackson then informed Ryan by letter dated September 10, that he would not be reappointed to his position as Manager B. Ryan, exercising his bump-back rights, returned to his prior classified position of Chief Principal Court Clerk. Ryan has since received a promotion through the merit selection system to Community Service Organizer.

Kizer filed suit on August 29, to contest his termination, and Ryan and Howell later joined as Co–Plaintiffs. They alleged that the Appellees deprived them of their jobs without due process of law through a policy of mislabeling positions as unclassified that should have been labeled classified, thereby removing the procedural protections of the Act. The district court partially granted Appellees' Motion to Dismiss, dismissing claims against former Shelby County Mayor A.C. Wharton in his individual capacity. The court also dismissed Appellants' claims based on alleged violations of the Tennessee Constitution and claims for punitive damages against Shelby County, the Board, and Wharton. In a subsequent order, the court denied Appellants' Motion for Class Certification.

The remaining claims at that time were the Appellants' individual claims against Shelby County, the Board, Joe Ford in his official capacity as Shelby County Mayor ², and Jackson in his official capacity as General Sessions Court Clerk for dismissing Kizer, Ryan, and Howell without due process of law. They also sought declaratory and injunctive relief and presented a claim for punitive damages against Jackson in his individual capacity. Both sides filed motions for summary judgment. The district court granted summary judgment in favor of the Appellees on all of the remaining claims. The former employees timely appealed.

II.

A.

The district court granted summary judgment in favor of the Defendants–Appellees, premising its decision on the ground that the former employees were afforded due process prior to their termination. We review that decision de novo. See Grubb & Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd., 401 F.3d 770, 773 (6th Cir.2005). And that standard requires us to ask and answer the same questions considered by the district court: Whether “there is no genuine issue as to any material fact” and whether “the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In addressing these questions, this court must give the Plaintiffs–Appellants, as the nonmoving party here, the benefit of all factual inferences.

B.

On appeal, Kizer, Ryan, and Howell...