Paschal v. Florida Public Emp. Relations Commission
| Decision Date | 01 February 1982 |
| Docket Number | No. 81-5258,81-5258 |
| Citation | 666 F.2d 1381 |
| Parties | Hardy L. PASCHAL, Plaintiff-Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, et al., Defendants-Appellees. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Hardy L. Paschal, pro se.
Irving Weinsoff, Miami, Fla., for defendants-appellees et al.
Patricia A. Renovitch, Gen. Counsel, Tallahassee, Fla., for Florida Public Emp. Relations Commission.
Susan E. Trench, Asst. County Atty., Miami, Fla., for Metropolitan Dade County.
Appeal from the United States District Court for the Southern District of Florida.
Before GODBOLD, Chief Judge, JOHNSON and ANDERSON, Circuit Judges.
In this case the plaintiff Hardy Paschal claims that he was discharged from his employment with Dade County (Florida) in violation of the United States Constitution. A jury returned a verdict for defendants. We affirm.
Plaintiff was employed for six years as a social worker with the Dade County Welfare Department. In mid 1975 the department director issued "directive # 7" which placed limits on the amount of mileage reimbursement employees could seek. Paschal was then a union steward. A major portion of his and co-workers' duties involved home visits in their own automobiles to welfare recipients. Paschal complained to the department director about the mileage reimbursement limits. When directive # 7 was not rescinded Paschal refused to continue to use his own automobile for work assignments and requested a transfer to an "intake position," one not requiring transportation. This request was refused and Paschal was warned of termination unless he continued to perform his prior assignments. Paschal complained to his union, and an agreement was reached with the department that Paschal would be considered for transfer when an intake position became available.
Paschal continued to use his own automobile in his work for the next two and one-half years. He consistently reported excessive mileage. He was twice given unsatisfactory evaluations and was refused merit raises. In July 1977 Paschal tendered his resignation, citing these difficulties, but when the department agreed to transfer him to a different supervisor and grant him a retroactive pay increase Paschal agreed to stay on.
At the end of 1977 Paschal's automobile was repossessed. He informed his supervisor that he would be unable to continue his present work involving home visits. He was told to obtain another car. When Paschal did not he was given the choice of being terminated or submitting his resignation. February 9, 1978 Paschal opted to resign, and his employment ended March 31. Two months later he was told in writing that he was asked to resign because of his inability to perform his duties and to give any assurance of a probable date for acquiring another automobile.
Proceeding pro se, Paschal brought suit in district court on November 23, 1979 against Dade County, the Florida Public Employees Relations Commission (PERC), and his union, alleging violation of Florida labor law, federal labor law, and his constitutional rights. The complaint was dismissed with leave to amend. With some coaching from the court, Paschal submitted a properly pleaded complaint May 8, 1980 against his union and Dade County, restricted to federal labor law and his constitutional rights. The district court dismissed the labor law count. The constitutional count is set out in the margin. 1
A pretrial conference was held January 30, 1981 at which a trial date was set for the week of February 9. During this conference Paschal for the first time informed the defendants and the court that he intended to pursue a due process theory as well as a first amendment theory. The district judge informed Paschal that his complaint did not set forth a due process count, but told Paschal that he would consider him to have made an oral request for leave to amend and would allow him to file a written motion to amend. The court further explained:
Now, I will tell you what you do, Mr. Paschal. You think about whether or not you want to seek to amend and I am going to check the statute of limitations for you. If the statute of limitations has run, we are going to give you every opportunity to sue the County here.... If the statute of limitation has not run, we are going to try this one (first amendment theory) and get it over with, so let's look into that situation first thing and I am not going to let him bring it if I determine from checking certain matters that he is just wasting his time. But, if he has some legitimate position under the law on it and the statute has run, we are going to let him amend his complaint.
Paschal never filed a written motion to amend, and then on the day of trial the court denied the oral motion without explanation. The jury rejected Paschal's first amendment theory.
Paschal challenges the district court's ruling that his complaint did not set forth a due process theory, the court's denial of leave to amend, and the court's refusal of a judgment notwithstanding the verdict. We affirm.
Under Paschal's due process theory his procedural due process rights were violated because he was forced to resign without being given a hearing or a written statement of reasons. We agree with the district court that this theory is not stated in Paschal's complaint, even under the liberal reading that is given to pro se complaints. Nowhere does Paschal's complaint mention that Paschal was forced to resign without a hearing and a written statement, or allege that he was due this process. Although the fourteenth amendment is mentioned once, this is only in the context of contending that it protects Paschal's duties as a union steward by its incorporation of the first amendment, a substantive due process theory. No mention is made of rights to procedural due process or of the allegation that no pre-resignation hearing was given.
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