Major v. DeFrench

• Decision Date: 04 February 1982
• Docket Number: No. 15096,15096
• Parties: Martha MAJOR v. George DeFRENCH, etc., et al., and City of Morgantown etc.
• Court: West Virginia Supreme Court

Page 688

286 S.E.2d 688

169 W.Va. 241

Martha MAJOR

v.

George DeFRENCH, etc., et al., and City of Morgantown etc.

No. 15096.

Supreme Court of Appeals of West Virginia.

Feb. 4, 1982.

Syllabus by the Court

1. The probationary period of employment mentioned in W.Va.Code § 8-14-11 commences when the probationer actually begins work.

2. Where the probationer is prevented from serving the full probationary period by forces beyond his or her control, the probationary period must be extended to provide the probationer, as well as the employer, the full benefit of the probationary period.

3. A probationary police civil service employee who has not served the full one year probationary term specified in W.Va.Code § 8-11-14 cannot be dismissed without the procedural protections of W.Va.Code § 8-14-20.

4. A police civil service employee who is dismissed at the end of her probationary term is entitled, by virtue of her property and liberty interests in continued employment, to procedural protections designed to insure the rationality of the decision on continued employment.

5. The specific procedural protections accorded to a due process liberty or property interest generally requires consideration of three distinct factors: first, the private interest that will be affected by state action; second, the risk of an erroneous deprivation of the protected interest through the procedures used, and the probable value, if any of additional or substitute procedural safeguards; and third, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

6. A police civil service employee who is dismissed from employment at the end of her probationary term, is entitled to the procedural protections set out in W.Va.Code § 8-14-20.

Franklin Cleckley, Morgantown, for appellant.

Mike Magro, Jr., Morgantown, for appellees.

McGRAW, Justice:

The appellant, Martha Major, appeals from a decision of the Circuit Court of Monongalia County which found that she was lawfully terminated from her position as a police officer for the City of Morgantown at the end of her probationary period, and was therefore not entitled to a written notice of the reasons for termination of her employment, or a hearing in which she could contest her dismissal. The appellant contends the decision of the circuit court is erroneous because, as a matter of law, her employment was not terminated at the end of her probationary period. The appellant further contends that even if she was legally dismissed at the end of her probationary period, due process requires that before her employment can be terminated, she must receive written notice of the grounds for her dismissal, an adversarial hearing, and the right to be represented by counsel. Because we find that the appellant was dismissed without the procedural protections required by law, we reverse the decision of the circuit court.

The appellant first applied for employment as a Morgantown police officer on January 17, 1977; she took the written civil service examination on February 2, 1977. Two weeks later, the city notified her that she had passed the exam with the second highest score. In compliance with department The appellant filed a gender-based complaint with the Civil Rights Division of the U.S. Treasury's Revenue Sharing Funds Department. In early January, 1978, the appellant and the City of Morgantown were informed by the Treasury Department of its determination that the city had refused to hire petitioner on the basis of sex and that she was entitled to immediate hiring and back pay from June 31, 1977. The city insisted that the back pay date be amended to August 11, 1977, the date the appellant's name was removed from the list of eligibles. See W.Va.Code § 8-14-15 (1976 Replacement Vol.).

rules and statutes, the appellant took a physical examination and was personally interviewed by the all-male Morgantown Civil Service Commission. During the month of June 1977, two males were hired as Morgantown police officers. The City of Morgantown has never hired a female police officer.

On February 8, 1978, appellee DeFrench wrote a letter to appellee Bennie F. Palmer instructing him to hire the appellant. On February 16, 1978, the appellant began work as a police officer for the City of Morgantown. On April 18, 1978, the Morgantown City Council authorized back pay from August 11, 1977 through February 15, 1978 in the amount of $2,934.26.

The appellant continued to work for the city from February 16, 1978 until November 15, 1978. She received a letter dated November 14, 1978 terminating her employment with the city because her performance as a probationary officer, in the words of the city, was not "acceptable." She requested and received a hearing before the Police Civil Service Commission on December 15, 1978. At the hearing, the appellant moved that she be reinstated because the city had failed to give her notice of specific charges for her termination. The commission agreed and ordered her reinstated with back pay.

That evening, she received a letter dated December 15, 1978 advising her that she was once again terminated. This time, DeFrench and Palmer listed eight reasons for her termination, including poor uniform discipline; criticizing fellow officers and members of the Sheriff's Department; disregarding orders; assisting persons arrested; and falsification of Federal Aviation Regulation 121.585.

The appellant again requested and received a hearing before the Police Civil Service Commission, held on January 12, 1979 and January 23, 1979. On February 9, 1979, the commission determined that the city had not proved the charges and again ordered the appellant reinstated with full back pay. On February 9, 1979, the appellant, at the request of her attorney, contacted DeFrench about her return to work. DeFrench informed her that he had told Palmer not to rehire her because the city was not satisfied with the commission's decision.

The appellant then received another letter on February 15, 1979, informing her that she was terminated at the end of her probationary period. No further action was taken on this letter, because on February 18, 1979, the appellant filed a writ of mandamus in the Circuit Court of Monongalia County requesting immediate reinstatement with back pay.

On March 26, 1979, pursuant to an oral order of Judge DePond, Martha Major returned to work as a police officer for the City of Morgantown. By order dated March 30, 1979, the court ruled that the city's refusal to reinstate the appellant on February 9 was illegal, and that she was entitled to reinstatement and back pay from December 15, 1978.

Appellant received yet another letter, dated March 30, 1979, advising her that her employment was being terminated at the end of her probationary period, effective March 31, 1979. ¹ On April 13, 1979, the The primary issue presented by this appeal is whether the appellant is entitled to a written statement of the reasons for her dismissal, and the opportunity for a hearing at which her dismissal can be contested. The appellees contend such procedures are not required in this case because the appellant was dismissed at the end of her one year probationary appointment, and neither the constitution nor the applicable statutes require a hearing prior to dismissal of probationary employees. The appellant disputes the appellees' contention that her employment was terminated at the close of her probationary period, and argues that in any event, due process requires that she be afforded the opportunity for a hearing.

appellant instituted a civil action against the City of Morgantown and its officials for wrongfully terminating her employment as a police officer. In her complaint she alleged that the action of city officials terminating her employment was arbitrary, discriminatory, unlawful and a violation of due process. The appellant sought both injunctive relief and damages. The appellees answered, contending the appellant was lawfully dismissed pursuant to W.Va.Code § 8-14-11 (Cum.Supp.1981), and denied liability. The Circuit Court of Monongalia County, after a non-jury trial, entered judgment against the appellant and in favor of the appellees. The appellant appeals from that decision.

I.

The appellees contend the appellant was lawfully dismissed pursuant to the provisions of W.Va.Code § 8-14-11, which provides, in pertinent part:

All original appointments to any positions in a paid police department subject to the civil service provisions of this article shall be for a probationary period of one year: Provided, that at any time during the probationary period the probationer may be discharged for just cause, in the manner provided in section twenty [ § 8-14-20] of this article. If, at the close of this probationary term, the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified, in writing, that he will not receive absolute appointment, whereupon his employment shall cease; otherwise, his retention in the service shall be equivalent to his final appointment.

They argue that the appellant's employment commenced February 16, 1978, and that she was dismissed February 15, 1979 at the end of her probationary period, and therefore no specification of reasons for dismissal, nor a hearing concerning those reasons is necessary. They rely on Fiedler v. Thackston, 126 W.Va. 84, 27 S.E.2d 278 (1943), which held: "A probationer of a police department ... is not entitled to a hearing ... concerning the reasons for not making his appointment absolute at the expiration of the ... probationary period." Syllabus, in part, Fiedler v. Thackston, supra.

The appellant, on the other hand, contends that she was not dismissed at the end of the one year probationary period. She argues that her probationary period should be...