Kohler v. Hirst, Civ. A. No. 78-243-N.

• Decision Date: 05 October 1978
• Docket Number: Civ. A. No. 78-243-N.
• Citation: 460 F. Supp. 412
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Betty KOHLER, Plaintiff, v. Julian HIRST, City Manager for the City of Norfolk, Dean Gross, Director of Norfolk Public Library System, The Members of the Board of Directors of the Norfolk Public Library System, William B. Copeland, Lewis W. Webb, Jr., Webster M. Chandler, Jr., Ira Gould, Mrs. Emmanuel Michaels, Herbert A. Marshall, Charles E. Jenkins, II, Mrs. Robert E. Washington, Mrs. Walter E. Hoffman, Defendants.

460 F. Supp. 412

Betty KOHLER, Plaintiff, v.Julian HIRST, City Manager for the City of Norfolk, Dean Gross, Director of Norfolk Public Library System, The Members of the Board of Directors of the Norfolk Public Library System, William B. Copeland, Lewis W. Webb, Jr., Webster M. Chandler, Jr., Ira Gould, Mrs. Emmanuel Michaels, Herbert A. Marshall, Charles E. Jenkins, II, Mrs. Robert E. Washington, Mrs. Walter E. Hoffman, Defendants.

Civ. A. No. 78-243-N.

United States District Court, E. D. Virginia, Norfolk Division.

October 5, 1978.

COPYRIGHT MATERIAL OMITTED

Sacks & Sacks, Norfolk, Va., for plaintiff.

Harold P. Juren, City Atty., Norfolk, Va., for defendants.

OPINION AND ORDER

CLARKE, District Judge.

This litigation stems from the termination of plaintiff's employment as assistant director of the Norfolk Public Library System on March 15, 1978.Plaintiff instituted action on May 9, 1978, pursuant to 42 U.S.C. § 1983.Jurisdiction was based on 28 U.S.C. §§ 1331,1343(3), and1343(4).Defendants have moved to dismiss the complaints pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.

In her complaint, plaintiff alleges that she was hired on February 5, 1973, as assistant director of the Norfolk Public Library System, an administrative department of the City of Norfolk, Virginia.At the time of her hiring, she alleges, this position was included within the classified service under the Civil Service Commission of the City of Norfolk."As such," her complaint continues, "it was agreed and she was entitled to never be discharged" from her position except for cause and with reasonable and proper notice, the opportunity for a fair and impartial hearing, and the right to be advised of the specific reasons for her discharge.On March 15, 1978, defendantDean Gross, director of the Norfolk Public Library System, and defendantJulian Hirst, City Manager of the City of Norfolk, discharged plaintiff from her employment because "it was in the best interests of the library."At no time has she been given notice, an opportunity for a hearing, or a statement of reasons.

In her complaint, plaintiff named as defendants Gross, Hirst, and the nine members of the Board of the Norfolk Library System.Her first count alleged that she had acquired a property interest by virtue of her employment and her reasonable expectation of continued employment until age sixty-five, and she was therefore deprived of property without due process of law in violation of the Fourteenth Amendment.The second count contends that the termination of her employment was arbitrary and capricious, in contravention of the due process requirements of the Fourteenth Amendment.Finally, plaintiff argues that defendants dismissed her because she had exercised her First Amendment right of freedom of speech.As relief, plaintiff seeks damages, attorney's fees, and injunctive relief.

Defendants have raised five points in moving to dismiss: (1) under state law plaintiff had no right to a statement of reasons or to a hearing in connection with her dismissal; (2)plaintiff's allegation that the defendants engaged in "arbitrary and capricious" action fails to state a claim cognizable by the federal courts; (3) the First Amendment count fails to state a claim upon which relief can be granted; (4) the complaint fails to allege conduct by the defendant board members that would subject them to liability under 42 U.S.C. § 1983;(5)the defendant board members are not "persons" within the meaning of 42 U.S.C. § 1983.The Court will discuss each of these arguments in turn.

Reading the complaint most favorably to the plaintiff, the Court believes that plaintiff Kohler bases her protected "property right" on two sources.On the one hand, she appears to be arguing that the local charter provision guaranteeing her, as a member of the classified service, continued employment absent "cause" for discharge conferred on her a legitimate claim of entitlement which is a constitutionally protected property interest.¹Alternatively, she contends that when she was hired she made a contract of employment with the City, which agreed that she would retain the rights of a classified employee irrespective of subsequent legislative action.This agreement allegedly conferred contract rights, and, consequently, property rights.

Neither of plaintiff's arguments can be treated lightly.Perhaps the charter did confer a property right; in Arnett v. Kennedy,416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15(1974), a majority of the United States Supreme Court ruled that a federal statute guaranteeing a nonprobationary federal civil servant continued employment absent "cause" for discharge conferred a property interest which the Fifth Amendment protects from deprivation without due process of law.And the Court has ruled that a constitutionally protected property interest can be created either by ordinance or by a contract between the state and the individual.Bishop v. Wood,426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684(1976);Perry v. Sindermann,408 U.S. 593, 599-603, 92 S.Ct. 2694, 33 L.Ed.2d 570(1972).The contract may be either express or implied.For example, continuous employment over a long period of time can amount to the equivalent of tenure, a protected property right.Johnson v. Fraley,470 F.2d 179, 181(4th Cir.1972).

Whether a claimant has a sufficient expectation of continued employment to constitute a protected property interest, however, must be decided by reference to state law.E. g., Bishop v. Wood, supra;Goss v. Lopez,419 U.S. 565, 572-73, 95 S.Ct. 729, 42 L.Ed.2d 725(1975);Board of Regents v. Roth,408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548(1972).Clearly, since plaintiff was hired in Virginia by an incorporated city of Virginia, the law of Virginia governs here.

After a thorough study of Virginia law, the Court has decided that exercising jurisdiction in this case would be inadvisable.Abstention is appropriate here for three reasons.First, state law is extremely unsettled as to the issues in this case.Second, determination by state courts of several of the state law issues raised might make adjudication of the federal constitutional issues unnecessary.Third, recent decisions indicate that abstention is especially appropriate when the dispute centers around the employer-employee relationship between a state or locality and a public employee.

The Uncertainty of Virginia Law

Abstention from the exercise of jurisdiction is the exception, not the rule.Colorado River Water Conservation District v. United States,424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483(1976);Zwickler v. Kota,389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444(1967).But "among the cases that call most insistently for abstention are those in which the federal constitutional challenge turns on a state statute, the meaning of which is unclear under state law."Harris County Commissioners Court v. Moore,420 U.S. 77, 84, 95 S.Ct. 870, 875, 43 L.Ed.2d 32(1975).Here, state law is too uncertain for the Court to judge either the worth of plaintiff's claim of a property right or the merits of the various points asserted by defendants.

Unfortunately, Virginia law offers little guidance concerning protected property rights.Virginia makes no distinction between "rights" and "privileges" in determining whether a particular liberty or property interest is protected.Klimko v. Virginia Employment Commission,216 Va. 750, 222 S.E.2d 559, cert. denied,429 U.S. 849, 97 S.Ct. 136, 50 L.Ed.2d 122(1976).Whether a benefit conferred by the state is a property right is not ascertained easily, however.Minority is not a vested property right, nor is a license to operate an automobile.Mack v. Mack,217 Va. 534, 229 S.E.2d 895(1976);Prichard v. Battle,178 Va. 455, 17 S.E.2d 393(1941).Yet a wife's otherwise unprotected right to alimony becomes a property interest when it arises from a property settlement agreement confirmed in a final divorce decree and judicially sanctioned.Shoosmith v. Scott,217 Va. 290, 227 S.E.2d 729(1976).

The state supreme court, however, has rarely discussed whether classified civil service status per se, or a contract conferring the equivalent of such status, constitutes a protected property right.Appointment to elective office confers no property right on the office-holder.Walker v. Massie,202 Va. 886, 121 S.E.2d 448(1961).Furthermore, city charters and ordinances that confer benefits on individual citizens are not "contracts" that the legislature cannot alter.SeeCity of Portsmouth v. Virginia Railway & Power Co.,141 Va. 44, 126 S.E. 366(1925).But in Klimko v. Virginia Employment Commission, supra,the court declared:

Procedural due process has been extended . . . to the right to government employment, Connell v. Higginbotham,403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418(1971);Slochower v. Board of Higher Education,350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692(1956);Wieman v. Updegraff,344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216(1952);but compareArnett v. Kennedy,416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15(1974);

. . . . .

Whether the court meant that government employees as government employees have a constitutionally protected property right which can be removed only by due process is uncertain.The first three cases cited — Connell, Slochower, and Wieman — held only that government employees could not be discharged arbitrarily, without a hearing, merely because they complied or failed to comply with certain statutes.In Arnett, the last case cited, the United States Supreme Court held that although federal law permitted civil servants to be discharged only "for cause," due process did not require a pretermination hearing.Yet a majority of the Justices also held that the statutory guarantee of continued employment absent "cause" for discharge did in fact constitute a property right protected to some extent by the due process clause...