Moulton v. Vigo County

• Decision Date: 04 August 1998
• Docket Number: No. 97-3938,97-3938
• Citation: 150 F.3d 801
• Parties: 14 IER Cases 269 William MOULTON, Plaintiff-Appellant, v. VIGO COUNTY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 801

150 F.3d 801

14 IER Cases 269

William MOULTON, Plaintiff-Appellant, v. VIGO COUNTY, Defendant-Appellee.

No. 97-3938.

United States Court of Appeals, Seventh Circuit.

Argued May 26, 1998.

Decided Aug. 4, 1998.

Dennis R. Majewski (argued), Terre Haute, IN, for Plaintiff-Appellant.

Donald S. Smith (argued), Bryce H. Bennett, Jr., Riley, Bennett & Egloff, Indianapolis, IN, Robert Wright, Wright, Shagley & Lowery, Terre Haute, IN, for Defendant-Appellee.

Before POSNER, Chief Judge, and BAUER and COFFEY, Circuit Judges.

BAUER, Circuit Judge.

Plaintiff/Appellant William Moulton ("Moulton") was fired from his job at the Vigo County (Indiana) Area Plan Department on August 5, 1992. He then brought suit against Vigo County (the "County") (and several others, who are not parties to this appeal) in the United States District Court for the Southern District of Indiana, alleging, among other things, that his Fourteenth Amendment due process rights had been violated. Moulton's case against the County (the other defendants were voluntarily dismissed by Moulton) went to trial before a jury on October 14, 1997; however, after Moulton had presented his case-in-chief, Magistrate Judge William G. Hussmann, Jr. granted the County's motion for judgment as a matter of law on Moulton's Fourteenth Amendment claim. Subsequently, the jury returned a verdict in favor of the County on Moulton's other claims. Moulton filed a timely notice of appeal, and he presently challenges only the district court's decision to grant the County's motion for judgment as a matter of law. Finding no error by the district court, we affirm.

BACKGROUND

Moulton was employed by the Vigo County Area Plan Department (the "Department"), a division of the government of Vigo County, beginning in March 1987. The Department is overseen by the Vigo County Area Plan Commission (the "Commission"), which is a board appointed by the Vigo County commissioners. The Department, which in part handles zoning matters in the County, is run by an executive director hired by the Commission. During his tenure at the Department Before Price became executive director, Moulton (and two other Department employees, Bernard Frye and James Miller) became personally involved in helping an interracial couple, Franklin and Nellie Christenberry ("the Christenberrys"), obtain a zoning variance for their property. Price also had involvement with the Christenberrys before becoming executive director: as a building inspector for the city of Terre Haute, Price had condemned the Christenberrys' property. Long story short, Price was opposed to the zoning variance after he became executive director, but Moulton and the other employees persisted in helping the Christenberrys in their efforts. The Christenberrys eventually received a zoning variance other than the one they were seeking. In addition, Moulton helped Bernard Frye file a civil rights complaint against the County after Frye's employment was terminated.

Moulton worked under seven different executive directors, his employment ending under the watch of director William Price ("Price"). Prior to Price's tour of duty, which began in February 1992, Moulton had never been disciplined or notified that his work was being performed in an unsatisfactory manner.

While Moulton was assisting Frye and the Christenberrys (and after Price had become executive director), he began to receive written warnings and reprimands from Price about his job performance. The reprimands charged Moulton with everything from stealing traffic-counting devices to failing to communicate with his supervisors. Eventually, in August of 1992, Moulton was terminated from his job at a meeting of the Commission (at which he was not present), and was notified by mail the next day. Moulton was given a post-termination hearing in September of 1992, but apparently never received any decision. In response to these actions, Moulton filed the present suit, charging that his constitutional and civil rights had been violated. On appeal, Moulton only challenges the district court's grant of judgment as a matter of law to the County on his § 1983 claim for a violation of his right to due process before being fired. With this brief background in mind, we turn to Moulton's contentions.

DISCUSSION

I. Free Speech Claim

First, Moulton asserts that the district court erred by not submitting to the jury his claim that the County retaliated against him for exercising his First Amendment rights by helping the Christenberrys and Frye. In his brief, Moulton states that "[h]aving raised a genuine issue as to whether he had been fired on an impermissible basis--exercising his freedom of speech," he was entitled to have his claim go to the jury. Appellant's Brief at 16. The defendant argues that Moulton has waived this issue because he failed to raise it in the district court. It is a well-established rule in this circuit that a party waives the right to argue an issue on appeal if he fails to raise that issue before the district court. Robyns v. Reliance Standard Life Ins. Co., 130 F.3d 1231, 1237 (7th Cir.1997); United States v. Rode Corp., 996 F.2d 174, 179 (7th Cir.1993). In his complaint, Moulton alleged that the County's actions denied his freedom of speech (Moulton App. at A-43). After that point, however, the record contains no evidence that Moulton alerted the district court that he was pursuing a claim based on the violation of his right of free speech. Moulton had plenty of opportunities to alert the district court to his belief that he was retaliated against for exercising his First Amendment rights but failed to do so. He did not mention this theory in the contentions he submitted to the district court prior to trial (Rec.Doc. 43); he did not object to the district court's omission of this theory in its preliminary instructions to the jury on the § 1983 claim (see Trial Transcript, Oct. 14, 1997); and he did not assert this theory in response to the defendant's motion for judgment as a matter of law (see Transcript, Vol. III at 449450). Having failed to raise the issue of his First Amendment rights before the district court, Moulton has waived this theory and cannot assert it on appeal.

II. Due Process Claim

Moulton also argues that the district court erred in granting the defendants' motion for judgment as a matter of law on his claim First, the County argues that Moulton waived this issue on appeal as well, since he failed to raise any of the arguments he presents here before the district court. In response to the County's motion for judgment as a matter of law, Moulton's attorney cited Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973), for the proposition that the employment at will doctrine is inapplicable when an employee is terminated for acting under statutorily protected rights. See Trial Transcript, Vol. III at 449. However, counsel also argued that Moulton had a property interest in his job and mentioned that County policies might be involved. Id. While there was no in-depth presentation of these issues by Moulton's counsel, we find that they were sufficiently presented to the district court. Accordingly, Moulton did not waive his right to appeal his procedural due process claim.

under § 1983 that his due process rights were violated when he was terminated by the County without a pre-termination hearing. We review the denial of such a motion de novo. Collins v. Kibort, 143 F.3d 331, 334-35 (7th Cir.1998) (citing Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 629 (7th Cir.1996)). However, "we limit our inquiry to whether the evidence presented, combined with all the reasonable inferences permissibly drawn therefrom, is sufficient to support the verdict when viewed in the light most favorable to the party against whom the motion is directed." Id. (citing Gagan v. American Cablevision, Inc., 77 F.3d 951, 960 (7th Cir.1996) (other citation omitted)). We reverse the district court's decision to grant the motion only if enough evidence exists to sustain a verdict in favor of the nonmoving party. Button v. Kibby-Brown, 146 F.3d 526, 528-29 (7th Cir.1998) (citations omitted).

When confronted with a due process claim, we must first determine whether the plaintiff possessed a protected life, liberty, or property interest as a matter of substantive law. If the answer to this question is affirmative, we then must decide what process was due before the plaintiff could be deprived of that interest. Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1405 (7th Cir.1994) (citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). Accordingly, to determine whether Moulton alleged a Fourteenth Amendment violation, we must first decide whether he produced evidence showing that he possessed a property interest in his job that is protected by the Constitution. Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 943 (7th Cir.1996).

Whether Moulton had a substantive property interest in his job is a question of state law. Flynn v. Kornwolf, 83 F.3d 924, 926 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 301, 136 L.Ed.2d 219 (1996) (citing Fittshur, 31 F.3d at 1405); see also Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) ("Property interests are created and defined by state law."). Protected property interests can arise from such state law sources as statutes, contracts, legally binding rules and regulations, or the "unwritten common law" of employment. Lawshe v. Simpson, 16 F.3d 1475, 1480 (7th Cir.1994) (citations omitted). Because Moulton was employed in the State of Indiana, Indiana law controls our query. Johnson, 91 F.3d at 943. In its brief, the County argues that Moulton had no protected property interest because he was an employee at will. Under Indiana law, an employee at will has no property interest in further employment. Phegley v....