Patrick v. Miller

• Decision Date: 27 January 1992
• Docket Number: 90-6388,Nos. 90-6359,s. 90-6359
• Citation: 953 F.2d 1240
• Parties: 58 Empl. Prac. Dec. P 41,256 Fred L. PATRICK, Plaintiff-Appellee and Cross-Appellant, v. Eugene MILLER, individually and in his official capacity as City Manager of the City of Norman; John Bloomberg, individually and in his official capacity as Director of Administrative Services, Defendants-Appellants and Cross-Appellees, The City of Norman, a Municipal corporation, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1240

953 F.2d 1240

58 Empl. Prac. Dec. P 41,256

Fred L. PATRICK, Plaintiff-Appellee and Cross-Appellant, v. Eugene MILLER, individually and in his official capacity as City Manager of the City of Norman; John Bloomberg individually and in his official capacity as Director of Administrative Services, Defendants-Appellants and Cross-Appellees The City of Norman, a Municipal corporation, Defendant.

Nos. 90-6359, 90-6388.

United States Court of Appeals Tenth Circuit.

Jan. 27, 1992.

Kenneth L. Buettner (Steven R. Welch, with him on the briefs) of McAfee & Taft P.C., Oklahoma City, Okl., for plaintiff-appellee and cross-appellant.

Jim T. Priest (Debra B. Cannon, with him on the briefs) of McKinney, Stringer & Webster, P.C., Oklahoma City, Okl., for defendants-appellants and cross-appellees.

Before MCKAY, BARRETT and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

After being terminated from his position as Finance Director for the City of Norman, Oklahoma, Plaintiff brought a 42 U.S.C. § 1983 action alleging Defendants' conduct violated his constitutional rights under the First and Fourteenth Amendments. Plaintiff also alleged a violation of his statutory civil rights under 42 U.S.C. § 1981. Defendants moved for summary judgment, claiming protection from suit under the doctrine of qualified immunity. The district court denied Defendants' motion with respect to Plaintiff's § 1983 claim. However, the district court granted Defendants' Motion for Summary Judgment on grounds of qualified immunity with respect to Plaintiff's § 1981 claim. These rulings appear before this court on Defendants' appeal and Plaintiff's cross appeal. We reverse in part and affirm in part.

I. FACTUAL BACKGROUND

The following facts are undisputed. Plaintiff Fred L. Patrick (Patrick) was employed as Finance Director and City Controller by the City of Norman, Oklahoma (City) from February 16, 1988 to August 17, 1988. Patrick's employment with the City was terminated on August 17, 1988 by Defendant Eugene Miller (Miller), the City Manager, and Defendant John Bloomberg (Bloomberg), the Director of Administrative Services (collectively "Defendants"). While under the City's employ, Patrick's responsibilities included serving as Chairman of the City of Norman Retirement Board and supervising the City print shop. Patrick alleges two incidents pertaining to his performance of these responsibilities ultimately resulted in his termination.

On May 18, 1988, Shirley Franklin, a black print shop employee, initiated a racial discrimination complaint against the City of Norman with the Oklahoma Human Rights Commission. Her affidavit submitted May 26, 1988 charged the City with discriminatory treatment on the basis of race, stemming from Defendant Bloomberg's denial of a mileage reimbursement request. The official complaint, signed by Franklin and filed with the Oklahoma Human Rights Commission and the Equal Employment Opportunity Commission on June 10, 1988, was served on the City June 16, 1988. Patrick, as print shop supervisor, was aware of Franklin's actions. In fact, Patrick intended to assist Franklin in preparing her discrimination complaints after he realized City officials would take no corrective action. The City officials were aware of Patrick's involvement because on or about June 16, 1988, Patrick met with City Attorney Jeff Raley to discuss Franklin's request for Patrick's assistance. Raley and Patrick met again on or about June 23, 1988, and decided it would not be in Patrick's best interest to continue to assist Franklin with her complaints.

On June 21, 1988, Patrick, while chairing a meeting of the City of Norman Retirement Board, expressed concern that certain retirement funds were being used to balance the City's fiscal year 1989 budget. As a result, the Retirement Board voted to seek the City Attorney's opinion as to the propriety of such conduct. Patrick's comments at the meeting greatly disturbed Defendant Miller, so much so that he commented to Defendant Bloomberg Patrick should be fired.

Prior to the Franklin and Retirement Board incidents, Patrick's job performance had never been evaluated. However, on or about June 22, 1988, the day after the Retirement Board meeting, Miller and Bloomberg informed Patrick his continued employment with the City was in jeopardy. Defendants documented this unsatisfactory performance evaluation in a letter to Patrick dated June 28, 1988. Notice of termination was subsequently delivered to Patrick on July 15, 1988.

Patrick was afforded a pretermination hearing on August 16, 1988, conducted by George Shirley, City Personnel Director. Shirley affirmed Bloomberg's decision to terminate Patrick, and notified Patrick of his right to appeal the decision to Defendant Miller, the City Manager. Patrick pursued his appeal; however, Miller declined to overrule Patrick's termination. This suit was timely commenced after Patrick received a right to sue letter from the Equal Employment Opportunity Commission, dated March 30, 1990.

II. ANALYSIS

This appeal and cross appeal present a single legal issue: whether Defendants Miller and Bloomberg are qualifiedly immune from Patrick's § 1981 and § 1983 claims.

Because qualified immunity offers protection from suit rather than a mere defense to liability, the benefits to be gained by asserting qualified immunity would be lost if a case were erroneously permitted to go to trial. Consequently, a district court's ruling granting or denying qualified immunity is appealable as a "final decision" under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 526, 530, 105 S.Ct. 2806, 2815, 2817, 86 L.Ed.2d 411 (1985); Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir.1988). On appeal of such a ruling we need only determine whether defendants violated "clearly established statutory or constitutional rights of which a reasonable person would have known" at the time the challenged conduct occurred. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Losavio, 847 F.2d at 645. This is a purely legal question which we review de novo. Mitchell, 472 U.S. at 528-30, 105 S.Ct. at 2816-17; McEvoy v. Shoemaker, 882 F.2d 463, 465 (10th Cir.1989).

In order to preserve the protections afforded government officials by the qualified immunity doctrine, see Harlow, 457 U.S. at 816-18, 102 S.Ct. at 2737-38, our analysis varies somewhat from that typically applied when reviewing a summary judgment disposition on grounds of an affirmative defense. Once a defendant asserts qualified immunity, "[t]he plaintiff carries the burden of convincing the court that the law was clearly established." Losavio, 847 F.2d at 645. More specifically, the plaintiff must "come forward with facts or allegations sufficient to show both that the defendant's alleged conduct violated the law and that that law was clearly established when the alleged violation occurred." Id. at 646. Plaintiff's burden cannot be met merely by identifying in the abstract a clearly established right and then alleging defendant violated that right. Id. at 645. To satisfy his burden, the plaintiff must make a more particularized showing--"[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

Once plaintiff has identified the clearly established law and the conduct that violated the law with sufficient particularity, the defendant then bears the burden as a movant for summary judgment of showing no material issues of fact remain which would defeat the claim of qualified immunity. Losavio, 847 F.2d at 646; Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989). At this point we "consider in the light most favorable to the plaintiff all undisputed facts discernible from the pleadings and other materials submitted to supplement them by the time the motion for summary judgment is made." DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 719 (10th Cir.1988) (footnote omitted). "Our task ... is not to determine liability ... but to determine whether, on the basis of the pretrial record, there exists a conflict sufficiently material to defendants' claim of immunity to require them to stand trial." Id. This approach attempts to "balance the need to preserve an avenue for vindication of constitutional rights with the desire to shield public officials from undue interference in the performance of their duties as a result of baseless claims." Losavio, 847 F.2d at 645.

We now examine the record before us, using the described analysis.

A. § 1983

Patrick asserts distinct violations of his First and Fourteenth Amendment rights actionable under 42 U.S.C. § 1983. ¹ First, he alleges Defendants' conduct deprived him of his property interest in continued employment without due process of law, in violation of the Fourteenth Amendment. Second, Patrick alleges he was terminated in violation of the First Amendment for expressing opposition to discriminatory employment practices based on race and for expressing concerns regarding perceived illegalities in the City's budgeting process. We examine each allegation individually to determine whether Patrick has shown that Defendants' alleged conduct violated the law and that the law was clearly established when the alleged violations occurred.

Due Process

General due process principles are beyond dispute--the Fourteenth Amendment prohibits a state from depriving a person of property without due process of law. Thus, it has long been established that an employer cannot deprive an employee of a legitimate claim of entitlement to continued employment without due process. See Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). The essence of procedural due process is fair play; hence, the fundamental due process requirement "is...