McBride v. City of Roanoke

• Decision Date: 21 December 1994
• Docket Number: Civ. A. No. 93-0349-R.
• Citation: 871 F. Supp. 885
• Parties: Herbert D. McBRIDE, Plaintiff, v. CITY OF ROANOKE REDEVELOPMENT AND HOUSING AUTHORITY and Robert W. Glenn, Jr., individually and in his official capacity as Chairman of the City of Roanoke Redevelopment and Housing Authority, Defendants.
• Court: U.S. District Court — Western District of Virginia

871 F. Supp. 885

Herbert D. McBRIDE, Plaintiff, v. CITY OF ROANOKE REDEVELOPMENT AND HOUSING AUTHORITY and Robert W. Glenn, Jr., individually and in his official capacity as Chairman of the City of Roanoke Redevelopment and Housing Authority, Defendants.

Civ. A. No. 93-0349-R.

United States District Court, W.D. Virginia, Roanoke Division.

December 21, 1994.

COPYRIGHT MATERIAL OMITTED

James B. Thorsen, Thorsen, Page & Merchant, Richmond, VA, for plaintiff.

David A. Clark, Woods, Rogers & Hazlegrove, Roanoke, VA, for defendants.

MEMORANDUM OPINION

TURK, District Judge.

This case is before the court on defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Upon careful consideration of the record, the applicable law, the briefs submitted by the parties, and the arguments presented by counsel at the hearing, the court finds that it must grant the motion for summary judgment.

I. BACKGROUND

Plaintiff McBride's claims against defendants City of Roanoke Redevelopment and Housing Authority ("Authority") and Robert W. Glenn, Jr. ("Glenn") derive from the events leading up to plaintiff's termination as Executive Director of the Authority in May, 1992. McBride's termination followed a twenty-eight year career with the Authority, a subdivision of the Commonwealth of Virginia that provides housing to low income individuals. Plaintiff had served as Executive Director since 1981.

As Executive Director, McBride reported to the Board of Commissioners ("Board"), which bore the ultimate responsibility for running the Authority. In February, 1991, Glenn, a member of the Board since 1988, assumed the position of Chairman of the Board.¹ On March 9, 1992, McBride introduced a resolution approving an amended personnel policy for the authority, effective March 10, 1992. On March 27, 1992, McBride acknowledged receipt of the new personnel manual and signed it. The manual provided, among other things, for at will employment.

Subsequently, on May 2, 1992, a majority of the Board voted to terminate plaintiff's employment. Glenn and Vice-Chairman Crawford met privately with McBride to advise him of the Board's decision and to give him the opportunity to resign with severance pay. After McBride refused the offer, the Board issued a statement in a public session announcing the decision.

Among McBride's claims are that defendants defamed him by way of allegations of fraud and that defendants terminated him in response to quotations attributed to him in the newspaper. It is undisputed that the Board never accused McBride of any improprieties. Indeed, the Board publicly stated that he was not terminated for such reasons. Nevertheless, in 1991 the Board did investigate allegations of fraud. It dismissed the allegations on October 28, 1991.

In 1990, the Board articulated to McBride the importance of public relations to his role as Executive Director and urged him to develop a public relations plan. Subsequently, in October, 1990, an article discussing residents' complaints of conditions in an Authority property appeared in the Roanoke Times. In response to a reporter's question about a woman's concern that the ceiling of her house might fall on her, McBride responded that "the ceiling is only drywall, there is nothing that has any weight to it." On July 14, 1991, a Roanoke Times article on poverty began by quoting McBride:

If you have to be poor, Herb McBride says, Roanoke is a great place. "You can find a job, a place where you will be treated decently. There is excellent public housing and very good social services." McBride has heard that from lots of poor people in the ten years he has run the City's public housing program. "They can always get something to eat," he says. "They can go to the Salvation Army. They can go to the Soup Kitchen. They can go to the dumpsters — you might have to take one-half of the banana and throw it away, but you can eat the other half." Welcome to Roanoke, an All American City.

Plaintiff has sued defendants for (1) deprivation of property and liberty interests without due process of law, (2) breach of contract, (3) defamation, and (4) violation of his First Amendment right to free speech. The court held a hearing on defendants' motion on December 8, 1994; therefore, the matter is now ripe for the court's consideration.

II. ANALYSIS

Jurisdiction of the court is proper pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343. The court exercises supplemental jurisdiction over the state law defamation claim pursuant to 28 U.S.C. § 1367.

Federal Rule of Civil Procedure 56(c) states that summary judgment is proper where "there is no genuine issue as to any material fact." In this case, defendants "bear the initial burden of pointing to the absence of a genuine issue of material fact." Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir.1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)), cert. denied, 502 U.S. 1095, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992). If defendants carry this burden, "the burden then shifts to the nonmoving party to come forward with facts sufficient to create a triable issue of fact." Id. at 718-19 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986)).

A. Due Process and Breach of Contract Claims

McBride argues that his discharge deprived him of protected property and liberty interests in violation of his right to procedural due process under the Fourteenth Amendment. As a threshold matter, plaintiff must establish that he has suffered a "`deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.'" Jenkins v. Weatherholtz, 909 F.2d 105, 107 (4th Cir.1990) (quoting Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972)). The court concludes that McBride's termination deprived him of neither.

1. Property Deprivation and Breach of Contract Claims

In order for plaintiff to possess a property interest in continued employment, "state law rules and understandings must provide a `sufficient expectancy of continued employment.'" Jenkins, 909 F.2d at 107 (citing Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976)). Thus, if, as defendants contend, plaintiff's employment was at will, his termination did not deprive him of a protected property right. See Jenkins, 909 F.2d at 107 (stating that "a local government employee serving `at the will and pleasure' of the government employer has no legitimate expectancy of continued employment and thus has no protectible property interest"); Skeeter v. City of Norfolk, 681 F.Supp. 1149, 1155 (E.D.Va. 1987) (stating that "under Virginia law, `at will' employment creates no property interest"), aff'd, 898 F.2d 147 (4th Cir.1990).

In arguing that plaintiff's relationship with the Authority was one of at will employment, defendants rely chiefly on the personnel policy manual, effective March 10, 1992. The preface to the personnel manual states that the procedures set forth in the manual "do not create any employment contract or term," that "the right of the employee or the Authority to terminate the employment relationship `at will' is recognized and affirmed as a condition of employment," and that the at will employment "does not represent a departure from longstanding Housing Authority policy." In addition, on March 27, 1992 McBride signed an "Employee Certification" with respect to the manual stating, in pertinent part, as follows:

I acknowledge receipt of this Personnel Policy manual and agree that it supersedes and replaces all prior Personnel Policy manuals....

I understand that my employment is mutually terminable at will, with or without notice or stated reason and that these policies do not constitute an employment contract for any specific duration.

McBride argues that the March, 1992 personnel manual was an attempt to supersede the existing practice, custom, or policy of the Authority with respect to the status of its employees. The evidence as to the Authority's policy before the issuance of the March, 1992 manual is conflicting. The court will assume, for the purposes of this motion, that, as McBride contends, the Authority's policy prior to the March, 1992 manual was one of termination only for cause.

McBride's first contention is that the new manual and his acknowledgment thereof were invalid for failure to satisfy the requisites of contract modification. In support of his argument, McBride relies on Thompson v. Kings Entertainment Co., 653 F.Supp. 871, 875 (E.D.Va.1987). In Thompson, the court faced the question whether the issuance of a policy statement providing for at will employment necessarily superseded any existing contract right in employment. 653 F.Supp. at 875. The court held that the terms of the subsequent policy statement would govern only if the elements of contract modification had been met. Id. (denying the defendant's motion for summary judgment on the grounds that it had not established the element of acceptance under the contractual analysis). The court there did not reach the issue of sufficiency of consideration, but it implied in dicta that a valid modification might necessitate some additional benefits. Id. at 875 n. 7.

The Virginia Supreme Court addressed the adequacy of consideration in a case with facts similar to those in the present matter. In Progress Printing Co. v. Nichols, 244 Va. 337, 421 S.E.2d 428, 430 (1992), the court considered whether an acknowledgment form providing for at will employment superseded an employee handbook containing a termination for cause provision. The acknowledgement in Progress Printing stated that "the employment relationship between Progress Printing and the employee is at will and may be terminated by either party at any time." Id. (emphasis original). The court held that the acknowledgment governed the terms of...