Post v. Harper, 92-1561

• Decision Date: 08 January 1993
• Docket Number: No. 92-1561,92-1561
• Parties: Eddie POST, Appellant, v. W.R. HARPER, also known as Bud Harper, Individually and in his official capacity as County Judge; Sebastian County, Arkansas, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 491

980 F.2d 491

Eddie POST, Appellant, v. W.R. HARPER, also known as Bud Harper, Individually and in his official capacity as County Judge; Sebastian

County, Arkansas, Appellees.

No. 92-1561.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 15, 1992.

Decided Nov. 19, 1992.

Rehearing Denied Jan. 8, 1993.

Charles Karr, Fort Smith, Ark., argued, for appellant.

Michael R. Rainwater, Little Rock, Ark., argued, for appellees.

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

BOWMAN, Circuit Judge.

Eddie Post brought this civil rights action pursuant to 42 U.S.C. § 1983 (1988) alleging that defendants, Judge W.R. "Bud" Harper and Sebastian County, Arkansas, violated his due process rights, equal protection rights, and first amendment rights. The District Court ¹ granted defendants' motion for summary judgment, and Post appeals. We affirm.

Post was the golf professional and pro shop manager of the Ben Geren Park golf course in Sebastian County, Arkansas for over 18 years. County Judge W.R. "Bud" Harper is the chief executive officer of Sebastian County. The county conducted an investigation into alleged gambling activities at the Park. During the investigation, Post and his attorney met with Judge Harper and his administrative assistant David Hudson. The meeting was recorded and later transcribed.

A few days after this meeting, Judge Harper terminated Post's employment. Three grounds were listed in the notice of termination:

(1) Assisting bookmakers in record keeping for illegal gambling activity at Ben Geren Pro Shop. Posting records to a book and working with known bookies involved in illegal gambling activities at Ben Geren Pro Shop.

(2) Failure to report gambling activities. Condoning the continuance of these activities and assisting in gambling activities at the Pro Shop at Ben Geren Park.

(3) Violation of Code of Ethics by receiving supplies, equipment and merchandise for his own use or benefit.

Joint Appendix at 163. Three other Ben Geren Park employees, Floyd Metts, Charlie Vervack, and Alice Baker were terminated or resigned in the wake of the investigation into the gambling activities.

Post filed a written grievance and requested a hearing before the County Grievance Committee. On January 18, 1991, the Grievance Committee held a hearing. Post was represented by counsel and was able to present evidence, examine and cross-examine witnesses, and testify himself. (Post's testimony alone is over 80 pages long.) The Committee denied Post's grievance.

Post, Baker, and Vervack were charged with Horseracing-Agency service wagering, a Class D felony under Ark.Code Ann. § 5-66-117 (1987), by information filed by the Sebastian County Prosecuting Attorney's office. Baker, Vervack, and Metts were charged with other crimes stemming from the gambling activities and all three entered pleas and received reduced sentences. Post refused to enter a plea, and on March 14, 1991, he was acquitted by a jury.

After Post was acquitted, he wrote to Judge Harper seeking reinstatement and back pay. Judge Harper refused. Post then filed this action in the District Court, and the court granted summary judgment for the defendants.

We review a grant of summary judgment de novo. United States ex rel. Glass v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir.1992). The trial court, and this Court on appeal, apply the same standard: whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

Post argues that neither the pretermination hearing nor the post-termination hearing afforded him procedural due process. There is no dispute that Post was entitled to a due process hearing. The fourteenth amendment guarantees Post that he will not be deprived of liberty or property without due process of law. Post had a property interest in his job because he was a tenured public employee. He also had a liberty interest at risk because he was terminated for alleged gambling activities; thus his "good name, reputation, honor, or integrity is at stake because of what the government is doing to him." Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971). We therefore must determine whether the pretermination and the post-termination hearings afforded Post adequate due process protection.

"The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). Due process does require, however, that certain procedures be met; a plaintiff must receive adequate notice and an opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). A court's function is limited when deciding whether a plaintiff received adequate due process protection. "In short, once it is determined that the Due Process Clause applies, 'the question remains what process is due.' " Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487 1493, 84 L.Ed.2d 494 (1985) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). We review the process afforded to the plaintiff; we do not review the merits of the decision rendered.

The pretermination hearing serves as an "initial check against mistaken decisions--essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Loudermill, 470 U.S. at 545-46, 105 S.Ct. at 1495. Post contends that his due process rights were violated because he did not receive notice that his meeting with Judge Harper was a pretermination hearing. We are not persuaded by this argument. Loudermill does not require the government specifically to tell the employee that the hearing is a "pretermination hearing." Rather, in Loudermill, the Court stated that a "tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." 470 U.S. at 546, 105 S.Ct. at 1495.

Judge Harper started out the meeting by saying the following:

The main thing we wanted to do is to meet with you and ask you some questions about the charges that were filed at the Park.... [T]his is just our first conversation and we are not going to make any decisions one way or another today and I realize where you are in the situation here too.

Joint Appendix at 150. Judge Harper asked Post questions about the gambling activities at the Park and about Post's involvement in those activities. Judge Harper also asked Post about the merchandise he received for being "on staff" with a golf equipment company. Judge Harper made it clear that he was aware of the gambling activities at the park and was aware that Post was somehow connected with those activities. Post could not have failed to know that his job was in jeopardy because of his involvement with the gambling at the Park.

Post had ample opportunity to state his side of the story. He explained the extent of his knowledge of and involvement in the gambling scandal, and he also explained why he had received the merchandise from the golf company. At the end of the meeting, Judge Harper asked Post if there were any further comments he would like to make, and Post replied: "Not particularly. I can't think of anything now. The questions you asked me about the merchandise is the stuff I wanted to clear up today with you anyway so that was basically about it." Joint Appendix at 161. The meeting covered all three of the grounds listed in the notice of termination and was adequate to satisfy due process requirements.

In addition, Post requested and received an extensive post-termination hearing that was the equivalent of a full adversarial evidentiary hearing. He was represented by counsel, introduced evidence, and cross-examined witnesses. Post argues, however, that the way the Grievance Committee was impaneled to review his case violated his due process rights. The Sebastian County Employment Policies & Procedures Manual dictates that members of the committee pool shall be designated by the County Judge and approved by the...