Lucero v. Hart

Citation915 F.2d 1367
Decision Date03 October 1990
Docket NumberNo. 88-15524,88-15524
Parties54 Fair Empl.Prac.Cas. 75, 54 Empl. Prac. Dec. P 40,315, 1 A.D. Cases 1697 Estella LUCERO, Plaintiff-Appellant, v. Dennis B. HART, Rugh J. Papp, and Susie Mitchell, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Kevin W. Harris, Mastagni, Holstedt & Chiurazzi, Sacramento, Cal., for plaintiff-appellant.

L.B. Elam, County Counsel and John F. Whisenhunt, Deputy County Counsel, County of Sacramento, Sacramento, Cal., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before CHAMBERS, Senior Circuit Judge, POOLE and WIGGINS, Circuit Judges.

POOLE, Circuit Judge:

Appellant Estella Lucero was hired by the County of Sacramento under its Career Opportunities Development Rehabilitation Program. She was subsequently terminated after county officials learned she had been appointed to a permanent position for which she did not meet the minimum qualifications and reasonable efforts to accommodate her failed. Appellant subsequently brought a claim against three of the county officials under 42 U.S.C. Sec. 1983 and the Rehabilitation Act of 1973. The district court granted summary judgment on both claims. Jurisdiction is proper under 28 U.S.C. Sec. 1291. We affirm.

FACTS AND PROCEDURAL HISTORY

On or about November 17, 1986, appellant Estella Lucero was hired as a re-entry worker by the County of Sacramento under the Sacramento County Career Opportunities Development-Rehabilitation Program. Under the program, the county agrees to place clients of the State Department of Rehabilitation in county positions in return for funding from the state for 90% of the cost of such positions. Re-entry workers such as appellant are placed in county positions for a six month training period which may be extended for an additional period of up to three months. At the end of this training period the re-entry worker may be appointed to an entry level position, at the county's option, if the worker meets the minimum qualifications of that position. Upon such appointment, the training period is treated retroactively as the employee's probationary period.

Appellant was assigned to the Department of Social Services as a typist clerk. During the training period appellant received three satisfactory evaluations. The minimum qualifications for a permanent typist clerk position include the ability to type 45 words per minute (wpm). Toward the end of her training period appellant submitted a typing certificate from Sacramento City College certifying that she typed 45/wpm. Effective sometime around May 17, 1987, appellant was appointed to a permanent position as a typist clerk. Appellant contends she had difficulty adjusting to her new position due to harassment from co-workers.

Sometime in June, Susie Mitchell, Chief of Special Employment and Affirmative Action for the County, learned that appellant's typing test had been graded incorrectly and that her corrected score was only 44/wpm, thus making her ineligible for her position. A re-test was arranged for appellant, and transportation to the test site was provided. These events produced an extreme stress reaction in appellant, resulting in a test score of only 19/wpm.

Unsure of what action to take next, Mitchell consulted with Ruth Papp, Personnel Officer for the Sacramento County of Social Services, and Larry Jones of the County Counsel's office. It was agreed that appellant's appointment would be rescinded, she would be re-instated as a re-entry level worker and given time to re-take the typing test. Provided she passed the test, appellant would then be reappointed to her permanent position.

On July 7, 1987, Papp sent a letter to appellant informing her of the decision to rescind her appointment and informing her that she had until July 10 to pass the typing test. Upon learning that appellant was not at work, Papp directed appellant's supervisor to call appellant at home and read her the contents of the letter. The parties dispute whether this call was made on July 7 or July 8. Lucero did not respond to the county, and her employment was terminated on July 10, 1987.

On July 23, 1987, Papp learned for the first time of appellant's emotional handicap. At this point Papp offered to hold appellant's position open for a "reasonable time" to allow her to pass the typing test. Subsequently, a deadline for holding the position open was set at September 12.

Despite repeated efforts by Ms. Papp to elicit a response from appellant or appellant's union representative, Miriam Doonan, no response was forthcoming.

Mitchell first learned of appellant's emotional handicap on July 17. Mitchell was at the meeting on July 23 where Papp offered to hold appellant's position open for a "reasonable time." After July 23 Mitchell made several attempts to place appellant in another clerical position with the county. In an August 13 letter Mitchell requested that appellant contact her by September 15 to arrange to retake the typing test. Appellant did not respond. In a letter dated August 28, Mitchell informed appellant of a clerical position that did not involve typing, and gave appellant the name of an individual to contact in order to arrange an interview. Appellant did not respond. On October 26 Mitchell telephoned appellant at home regarding eight clerical positions that were open with the county. Appellant was not home, so a message was left with an unidentified male. Appellant did not respond.

Throughout July, August, and September, appellant was suffering from severe emotional and physical problems. Her husband had a heart attack on July 5, though there is no contention that Mitchell or Papp were aware of this. Appellant went on foodstamps on September 6. In October appellant was able to obtain a full time job with the state of California. The following month appellant filed a complaint under 42 U.S.C. Sec. 1983 against Papp and Dennis B. Hart, Director of Sacramento County Department of Social Services, alleging a violation of her due process rights for failure to provide pre-disciplinary hearing and post-disciplinary appeal incident to her termination. The county responded by providing appellant back pay from the date of her termination to the first day of her employment with the state. Additionally, appellant was offered reinstatement to her former position. This offer was refused.

In March 1988, the complaint was amended adding Mitchell as a defendant and adding a cause of action under the Rehabilitation Act of 1973. On September 22, 1988, the district court entered summary judgment in favor of defendants. This appeal followed:

DISCUSSION

A grant or denial of summary judgment is a question of law reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

A. Sec. 1983 Claim/Qualified Immunity

Appellant claims an entitlement to a pre-termination administrative hearing as well as a post-termination appeal. Appellant contends that defendants' failure to provide these hearings violated her Fourteenth Amendment due process rights and entitles her to relief under Sec. 1983.

The procedural safeguards of the Fourteenth Amendment protect against the deprivation of interests that an individual has acquired in specific benefits. Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 2708, 33 L.Ed.2d 548. In order to have a property interest in a benefit, a person must have more than a need, desire or expectation of it, they must have a legitimate claim of entitlement to it. Id. at 577, 92 S.Ct. at 2709. A party's expectation of continued employment may be based on rules or understandings. Roth v. Veteran's Admin. of United States, 856 F.2d 1401, 1409. Entitlements based on rules arise from statutes, ordinances, regulations or express or implied contracts, while entitlements based on understandings must be mutually explicit. Id.

There is no dispositive law in California on the issue of whether an individual has an entitlement to a job which was acquired in good faith but pursuant to a mistake. As a result, there can be no entitlement based on a rule, regulation or statute. 1

The issue whether there was an entitlement based on a mutually explicit understanding cannot be resolved on summary judgment at this time. Though such an understanding arguably existed, in reality, Lucero had failed to meet the minimum requirements of her job__the ability to type 45 words per minute (wpm). Since the typing certificate from Sacramento City College submitted by Lucero indicated that she had typed 45/wpm, and neither party knew that the scoring was in error, it is possible that there was a "mutually explicit" understanding that Lucero's employment would continue. Roth, 856 F.2d at 1409. It is doubtful, however, that this mutually explicit understanding continued upon discovery of the error in scoring. As the Ninth Circuit has recognized, whether such an understanding exists will frequently turn on factual questions which cannot be resolved on motion for summary judgment. Id. at 1409. Whether there was an entitlement based on a "mutually explicit" understanding subsequent to the discovery of the error in the scoring of appellant's typing test is a disputed factual issue, and thus, should not be resolved on summary judgment.

We need not resolve the issue whether there was an entitlement, however, in order to affirm the district court. Government officials are immune from liability for civil damages under Sec. 1983 unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396. There is no clearly established law on the issue of whether appellant had a constitutionally protectable property interest in her job. 2 It is of note that Mitchell...

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