Maxwell v. Mayor & Aldermen of the City of Savannah

• Decision Date: 05 June 1997
• Docket Number: Nos. A97A0316,A97A0317,s. A97A0316
• Citation: 487 S.E.2d 478,226 Ga.App. 705
• Court: Georgia Court of Appeals
• Parties: , 97 FCDR 2195 MAXWELL v. MAYOR & ALDERMEN OF THE CITY OF SAVANNAH et al. GELLATLY v. MAXWELL.

Page 478

487 S.E.2d 478

226 Ga.App. 705, 97 FCDR 2195

MAXWELL v. MAYOR & ALDERMEN OF THE CITY OF SAVANNAH et al.

GELLATLY v. MAXWELL.

Nos. A97A0316, A97A0317.

Court of Appeals of Georgia.

June 5, 1997.

Novit, Scarminach & Williams, Dale E. Akins, Billy E. Moore, Hilton Head Island, SC, for appellant Maxwell.

Oliver, Maner & Gray, Patrick T. O'Connor, David S. Gruskin, Savannah, for appellant Gellatly.

Wiseman, Blackburn & Futrell, James B. Blackburn, Abda L. Quillian, Savannah, for appellees Mayor & Aldermen of the City of Savannah.

RUFFIN, Judge.

James Maxwell, a former police officer for the City of Savannah ("the City"), sued, among others, the Mayor and Aldermen as the City's governing body, and the City's Chief of Police, David Gellatly. In his complaint, Maxwell alleged, inter alia, that the defendants wrongfully terminated him from his employment as a police officer and that Gellatly defamed him in connection with the termination. Maxwell alleged that these actions constituted violations of his due process rights to property and liberty under 42 USC § 1983 and state law. These appeals follow the trial court's order disposing of the defendants' motion for summary judgment. In Case No. A97A0316, Maxwell appeals the trial court's grant of summary judgment against him on his § 1983 claims, and in Case No. A97A0317, Gellatly appeals the trial court's denial of his motion on Maxwell's defamation claim. For reasons which follow, we affirm in part and reverse in part the trial court's judgment in Case No. A97A0316, and we affirm the trial court in Case No. A97A0317.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." (Emphasis in original.) Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

Viewed in a light most favorable to Maxwell, as the respondent to the defendants' motion, the record shows that in 1992 Maxwell was the subject of a federal investigation involving illegal drug activity. Maxwell was subsequently charged in a criminal indictment with conspiracy to possess with intent to distribute and conspiracy to distribute a controlled substance. Following Maxwell's arrest, Gellatly immediately terminated his employment with the police department.

The termination notice, which Gellatly issued to Maxwell on May 22, 1992, provided that "[e]ffective 5-26-92, your employment with the City of Savannah is terminated for ... '[c]onduct unbecoming of an officer.' " The notice further provided that "[w]ithin 24 hours following suspension prior to dismissal, you may respond in a written appeal to the superior of the supervisor who initiated the termination action if you feel the action is unjustified." Finally, the notice informed Maxwell that he had a right to initiate an appeal to the Civil Service Board by filing a notice of appeal within ten days from his receipt of the termination notice. Despite these appeal provisions, and others contained in an employee handbook and the department's Standard Operating Procedures, Maxwell did not appeal his termination. A subsequent trial on the charges against Maxwell resulted in a mistrial, and the indictment was eventually dismissed with prejudice.

In the instant complaint, Maxwell alleged that his termination was in violation of the City's employee handbook and Standard Operating Procedures which were provided to him during his employment. A page from the employee handbook attached to Maxwell's affidavit provides that "[t]he Rules and Regulations provide that department heads may take certain disciplinary action against employees whose conduct or performance is not satisfactory. This action may take the form of a reprimand, demotion, suspension, or dismissal for good cause...." The Standard Operating Procedures attached to Maxwell's affidavit provide that "[f]inal departmental disciplinary authority and responsibility rests with the Chief of Police. For disciplinary purposes, the Chief of Police has authority to ... dismiss the employee from the Department, subject to review by the City Manager." Maxwell contends that because he could be terminated only "for cause," he had a protected property interest in continued employment which could not be terminated without due process. In granting the defendants summary judgment, the trial court found that because "[t]here is no statement in any of the documents produced that an employee of the police department may only be fired 'for cause[,]' " they did "not confer upon [Maxwell] a legitimate claim of entitlement to continued employment with the police department." (Emphasis in original.)

Case No. A97A0316

1. Maxwell asserts that the trial court erred in granting summary judgment on his § 1983 property claim because he had a property interest in continued employment and because it is an "essential principal of due process that such a property right shall not be impinged without affording notice and appropriate hearing prior to discharge." Although we agree with Maxwell that the trial court erred in concluding that he did not have a protected property interest in continued employment, we nevertheless affirm the decision because Police Chief Gellatly is entitled to qualified immunity against this claim and there is no evidence establishing the City's liability.

42 USC § 1983 provides a cause of action to an individual who has been deprived of a property right by a government official without due process. See 42 USC § 1983; Atlanta City School Dist. v. Dowling, 266 Ga. 217, 218, 466 S.E.2d 588 (1996). "Under Georgia law a public employee has a property interest in her job whenever she may only be dismissed for cause. This interest is not dependent upon the presence of the specific words 'for cause,' as long as whatever provisions apply are meant to be analogous to allowing termination only for cause. The relevant inquiry is into the expectations of the parties involved." (Citations and punctuation omitted.) Peterson v. Atlanta Housing Auth., 998 F.2d 904, 914 (11th Cir.1993).

The defendants in this case have presented no evidence showing that Maxwell was an employee at will. Rather, the only evidence cited shows that Maxwell may be dismissed for "good cause." The trial court's reliance on the fact that the handbook did not state that Maxwell "may only be fired 'for cause' " ignores the rule that on summary judgment the evidence is to be construed in a light most favorable to the nonmoving party. See Lau's Corp., supra. Viewing the handbook provision in this light and in the absence of evidence to the contrary, we find that Maxwell could be dismissed only for cause. Accordingly, contrary to the trial court's order, we find that Maxwell did have a property interest sufficient to support a claim under 42 USC § 1983. See Peterson, supra.

Despite this finding, however, we conclude that Gellatly was immune from the § 1983 claim in this case. Gellatly's qualified immunity defense is governed by federal law. Forney v. Purvis, 190 Ga.App. 192, 195 (2), 378 S.E.2d 470 (1989). Citing federal law, this Court has recognized that "[g]overnment officials performing discretionary functions are granted a qualified immunity shielding them from imposition of personal liability pursuant to 42 USC § 1983 insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (Citations and punctuation omitted.) Thomas v. Holt, 221 Ga.App. 345, 347-348(1), 471 S.E.2d 300 (1996). " 'Unless a government agent's act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit. (Cit.) ... For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant's place, that "what he is doing" violates federal law. (Cit.)' [Cit.]" Id. at 348, 471 S.E.2d 300.

Under a two-part analysis applied by the Eleventh Circuit, a defendant public official asserting immunity must show that " 'he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.' ... Once the defendant public official satisfies his burden[,] ... the burden shifts to the plaintiff to show lack of good faith on the defendant's part. The burden is met by proof demonstrating that the defendant public official's actions 'violated clearly established constitutional laws.' [Cit.]" Stough v. Gallagher, 967 F.2d 1523, 1526 (11th Cir.1992).

It is clear in this case that Gellatly was acting within the scope of his discretionary authority when he dismissed Maxwell. Gellatly's burden was met "by showing objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and...