Lawshe v. Simpson, 93-1182

• Decision Date: 18 February 1994
• Docket Number: No. 93-1182,93-1182
• Citation: 16 F.3d 1475
• Parties: John LAWSHE, Plaintiff-Appellant, v. Steve SIMPSON, Individually and as President of the Board of Directors of the Gary Health Department; the Gary Health Department; and the City of Gary, Indiana, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1475

16 F.3d 1475

John LAWSHE, Plaintiff-Appellant, v. Steve SIMPSON, Individually and as President of the Board of Directors of the Gary Health Department; the Gary Health Department; and the City of Gary, Indiana, Defendants-Appellees.

No. 93-1182.

United States Court of Appeals Seventh Circuit.

Argued Nov. 3, 1993.

Decided Feb. 18, 1994.

James B. Meyer (argued), King & Meyer, Gary, IN, for plaintiff-appellant.

Cora M. Vaughn, Reginald W. Marcus (argued), Vaughn & Associates, Gilbert King, Jr., Corp. Counsel, Gary, IN, for defendants-appellees.

Before POSNER, Chief Judge, COFFEY, Circuit Judge, and ZAGEL, District Judge. ^*

ZAGEL, District Judge.

In 1988, Dr. Steve Simpson, President of the Gary Health Department Board, notified John Lawshe that the department's reorganization plans included vacating Lawshe's position and seeking applications from qualified candidates. Simpson told Lawshe that he could keep the job only by re-applying. Lawshe declined, and, on October 17, 1988, received notice that his employment with GHD would end on the last day of that month.

Lawshe had no written contract with GHD, but the department had adopted the City of Gary Personnel Manual as its own personnel policy. Also, Lawshe gave deposition testimony that GHD's custom and practice was not to fire employees without cause and some sort of hearing or consultation. During his deposition, Lawshe testified that he could not "recall any public situation where you're fired without cause." He also stated that in his case, "the general procedures for laying someone off or firing someone was [sic] not adhered to." When asked what those general procedures were, Lawshe answered, "Well, generally, you were called in--in the case of the staff, you were called in by the Health Officer for some infraction of the rules to explain to you what you had not done or what you had done or something. There was some kind of consultation that went on between that employee and the Health Commissioners."

Lawshe filed this suit in federal court on October 30, 1990, alleging that GHD terminated his public employment without due process, in violation of the Fourteenth Amendment. Finding Lawshe's claim without foundation in fact or law, the district court entered summary judgment in GHD's favor, and, pursuant to Federal Rule of Civil Procedure 11 and 42 U.S.C. Sec. 1988, ordered Lawshe to pay his adversary's legal fees and costs. In disposing of Lawshe's subsequent Motion for Reconsideration and Rehearing, the court affirmed its earlier ruling and added that the applicable statute of limitations bars his claim. Lawshe appeals. ¹

We review a grant of summary judgment de novo and uphold the district court's judgment if we find no disputed issues of material fact and conclude that the defendants must prevail as a matter of law. Sherman v. Four County Counseling Center, 987 F.2d 397, 400 (7th Cir.1993). We must review the record and draw all inferences in the light most favorable to the non-movant, but a scintilla of evidence in support of the non-movant's position is insufficient to successfully oppose summary judgment; there must be evidence on which a jury could reasonably find for the plaintiff. Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir.1991). Our review of a district court's interpretation of state law is "in the fullest sense de novo." Trustees of First Union Real Estate Equity and Mortgage Investments v. Mandell, 987 F.2d 1286 (7th Cir.1993), citing Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). We may affirm summary judgment on any issue that the non-moving party has had an opportunity to contest in the trial court. Box v. A & P Tea Company, 772 F.2d 1372, 1376 (7th Cir.1985).

The district judge found, and Lawshe does not contest, that the statute of limitations applicable to his claim runs for two years. Lawshe filed suit on October 30, 1990. This was too late, ruled the district judge, because the two-year limitation period ran from October 17, 1988, the date Lawshe received notice that his employment with GHD would terminate on the last day of that month. Lawshe says the limitations period did not commence until October 31, 1988, the last day of his employment.

State law determines the appropriate limitations period for Sec. 1983 actions, but federal law determines when a federal cause of action accrues, and thus when the limitations period begins. Section 1983 claims accrue when the plaintiff knows or should know that his or her constitutional rights have been violated. Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir.1993). Our task, therefore, is to identify the constitutional violation and locate it in time. Id.

The result might turn on a rather nice semantic distinction. Is the Fourteenth Amendment violation alleged here "deprivation of public employment without due process" or "denial of pretermination due process?" The former locution suggests that the cause of action accrues after employment is lost--one has not been deprived of employment without due process until one has been deprived of employment. Such reasoning seems to underlie the Fifth Circuit's conclusion that, despite notice of termination, a Sec. 1983 plaintiff's injury was not "complete" until "her employment period terminated and she ceased to perform paid services." Rubin v. O'Koren, 621 F.2d 114, 116 (5th Cir.1980).

The alternate construction--"denial of pretermination due process"--leads elsewhere. In Hoesterey v. City of Cathedral City, 945 F.2d 317, 320 (9th Cir.1991), the Ninth Circuit said that "the failure to provide the requisite procedure rather than the actual decision to terminate" constitutes the Fourteenth Amendment violation. Thus, the limitations period starts with clear notice of a final decision to terminate without further process. Id. "In the absence of such unequivocal notice, it would only be on the last day of employment that [the employee] could become aware that the decision was final and that no further process could be forthcoming prior to termination." Id. Indeed, the court found that Hoesterey had not received unequivocal notice prior to his last day of employment, and therefore his cause of action accrued when he was out of his job.

The Ninth Circuit stood on Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1982) (per curiam), a case decided after Rubin v. O'Koren. The Supreme Court held that the statute of limitations on a claim of politically motivated termination runs from the date plaintiffs received notice that a final decision to terminate had been made. The Court simply extended its Title VII rule, see Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), to a First Amendment case arising under Sec. 1983. In analyzing the question of when the cause of action accrues, the Court said,

[T]he proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful. The fact of termination is not itself an illegal act.... In Ricks, the alleged illegal act was racial discrimination in the tenure decision. Here, respondents allege that the decision to terminate was made solely for political reasons, violative of First Amendment rights.... [M]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.... The fact that [employees] were afforded reasonable notice cannot extend the period within which suit must be filed.

Id., 454 U.S. at 8, 102 S.Ct. at 29 (emphasis in original).

Thus, the Supreme Court identified the First Amendment violation as the improperly motivated decision to terminate, rather than termination on impermissible grounds. ² In reading Chardon, the Ninth Circuit apparently reasoned that if a First Amendment cause of action could accrue before actual discharge, then so could a procedural due process claim.

But the Ninth Circuit failed to measure its analysis against the Fourteenth Amendment text: "... nor shall any State deprive any person of life, liberty, or property, without due process of law." By holding that the alleged constitutional violation in a procedural due process case lies in the denial of pre-deprivation due process rather than in the deprivation of "life, liberty, or property, without due process," we would re-write the Fourteenth Amendment. Chardon does not warrant this.

In Chardon, non-tenured administrators alleged that they had been terminated for political reasons, in violation of their First Amendment rights. The Court held that the alleged decision to terminate for political reasons constituted the First Amendment violation rather than the termination itself. 454 U.S. at 8, 102 S.Ct. at 29. The Court mentioned neither the Fourteenth Amendment nor property rights because Chardon was not a Fourteenth Amendment case. ³

But consider how Chardon would affect a substantive due process claim against a state official who allegedly violated an employee's right to free speech by firing him. Such an action would be possible because the First Amendment has been incorporated into the Fourteenth Amendment as a liberty interest. Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138 (1925) ("freedom of speech ... [is] among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the states"). After Chardon, we would have to say that this liberty interest would be violated by the impermissibly motivated decision to terminate rather than the termination itself. Such a ruling would be in perfect harmony with the Fourteenth Amendment as written. Nothing in the Fourteenth Amendment tells us, in such a case, whether the impermissibly motivated decision to terminate or the termination itself constitutes deprivation of the right to free speech. Our ruling, following Chardon, would simply define the act...