Powell v. Mikulecky

• Decision Date: 15 December 1989
• Docket Number: No. 88-1907,88-1907
• Citation: 891 F.2d 1454
• Parties: William C. POWELL, Plaintiff/Appellee, v. Thomas J. MIKULECKY, George Oates, Ruth Stephens and Wendall Gilliam, Defendants/Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1454

891 F.2d 1454

William C. POWELL, Plaintiff/Appellee, v. Thomas J. MIKULECKY, George Oates, Ruth Stephens and Wendall Gilliam, Defendants/Appellants.

No. 88-1907.

United States Court of Appeals Tenth Circuit.

Dec. 15, 1989.

Jon B. Comstock of Rosenstein, Fist & Ringold, Tulsa, Okl. (Jerry A. Richardson, with him on the brief) for defendants/appellants.

M. Claire McNearney, of Chapell, Wilkinson, Riggs & Abney, Tulsa, Okl., (Bill M. Shaw was on the brief) for plaintiff/appellee.

Before HOLLOWAY Chief Judge, and HENLEY ^* and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff was discharged from his position as a full-time fire fighter. He then brought suit alleging, among other things, that defendants violated his right not to be deprived of his property interest in employment without due process because they did not accord him the pretermination hearing he believed he was entitled to under Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494

                (1985).   Defendants moved for summary judgment, claiming that they were protected from suit by qualified immunity.   The district court denied that motion and defendants appealed.   Because we believe defendants' actions were shielded by qualified immunity, and that they are entitled to summary judgment on that issue, we reverse
                

BACKGROUND

The following facts are not controverted. Plaintiff William C. Powell was employed as a regular full-time fire fighter for the City of Bartlesville, Oklahoma. He was also an active member of Local 2721 of the International Association of Fire Fighters ("the Union"). Upon returning from vacation in June 1986, defendant George Oates, the Bartlesville Fire Chief, was informed that Powell and other members of the Union had met with Bill Eden, the Fire Chief of Ramona, Oklahoma, and with Harold C. Young, the Assistant Fire Chief of Ochelata, Oklahoma. Oates contacted Eden and Young to discuss those meetings, and was told that Powell had requested that they keep the Ramona and Ochelata Fire Departments from responding to any calls for mutual aid from the City of Bartlesville until all off-duty Bartlesville firemen are first called back to work for overtime wages. Oates considered Powell's conduct an improper attempt to interfere with the City of Bartlesville's authority to establish a mutual aid policy, endangering the safety of the citizens of Bartlesville.

Oates advised defendant Mikulecky, the Bartlesville City Manager, and defendant Ruth Stephens, the Personnel Director for the City of Bartlesville, of his investigation into Powell's conduct and recommended that Powell be terminated. ¹ Oates then conferred with Steve Andrew, Bartlesville's labor attorney, to determine whether there was "just cause" to terminate Powell and to determine the proper procedure to follow. After conferring with Andrew, Oates obtained conditional authorization from Mikulecky to discharge Powell if Powell admitted discussing mutual aid to the City of Bartlesville with Eden and Young. Dist.Ct.Op. at 2-3.

On June 24, 1986, Oates conferred with Powell following a negotiation session between representatives of the City of Bartlesville and the Union. Oates asked Powell if he had met with the fire chiefs of Ramona and Ochelata while Oates was on vacation. Powell said "yes." Oates asked Powell if Powell and others had asked them not to sign a mutual aid agreement. Powell responded: "in the form that we had heard it would be, yes." R.Doc. 48 at 8 (exhibit G. at 17) (Defendants' brief in support of their motion for summary judgment); R.Doc. 61 at 5 (Plaintiff's response to defendants' motion for summary judgment). At that point, Oates informed Powell that he was discharged, effective immediately. R.Doc. 48 at 9 (Defendants' brief in support of their motion for summary judgment); R.Doc. 61 at 5 (Plaintiff's response). ² Oates asked Powell if anyone else was involved. Powell responded that he was not going to say anything else until he spoke with his attorney. Appellee's Br. at 11.

Pursuant to a collective bargaining agreement between the City of Bartlesville and the Union, the Union filed a grievance on behalf of Powell on June 25, 1986. After defendants Oates and Mikulecky denied According to the terms of the collective bargaining agreement, once a neutral arbitrator is selected, a hearing has to be called within ten days of the arbitrator's appointment. Both the Union and the Employer must receive written notice of the time and place of the hearing at least seven days in advance. Although the hearing is to be informal, all relevant documentary evidence may be received into evidence. Additionally, the arbitrator has the power to compel the attendance of witnesses or the production of any other relevant evidence.

Powell's grievance, the matter was submitted to arbitration.

On November 10, 1986, after conducting a hearing in the manner described above, the arbitrator sustained Powell's grievance, finding that Powell had been dismissed without "just cause" as required under his employment contract. R.Doc. 11 (exhibit A at 9-10). The arbitrator ordered that Powell be reinstated to his former position with full back pay and benefits. The City complied with that order. R.Doc. 11, 17.

Powell then brought this action under 42 U.S.C. § 1983. Powell alleged that defendants, all employees of the City of Bartlesville acting under color of state law and within the scope of their employment, deprived him of property and liberty without due process of law and violated his First Amendment rights of freedom of speech and freedom of association. The district court granted defendants' motions for summary judgment on Powell's First Amendment claims and his claim of deprivation of a liberty interest. However, the district court refused to grant summary judgment on Powell's claim of deprivation of a property interest without due process and defendants' qualified immunity defense to that claim. Defendants now appeal the district court's order denying their motion for summary judgment on the ground of qualified immunity.

DISCUSSION

1. Appealability of Denial of Motion for Summary Judgment Based on Qualified Immunity

Although an order denying summary judgment is not generally appealable as a final judgment, the Supreme Court has explained that the entitlement provided to the government by qualified immunity "is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.... Accordingly, we hold that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 12 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 526, 530, 105 S.Ct. 2806, 2815, 2817, 86 L.Ed.2d 411 (1985) (emphasis in original); see also Eastwood v. Dept. of Corrections of the State of Oklahoma, 846 F.2d 627, 629 (10th Cir.1988). Thus, we proceed to decide whether defendants' motion was properly denied.

2. Summary Judgment Standards and Procedures When Qualified Immunity is Raised as a Defense

"In an attempt 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, the Court [has] adopted an objective test to determine whether the doctrine of qualified immunity applies." Pueblo Neighborhood Health Centers, Inc., v. Losavio, 847 F.2d 642, 645 (10th Cir.1988). The test for qualified immunity is whether defendants violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). "If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful." Id. The qualified immunity defense "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).

Because of the important values protected by qualified immunity, the procedures to be followed when this particular affirmative defense is raised differ from those applicable to most other affirmative defenses. Once a defendant raises the defense of qualified immunity as a defense to an action, "[t]he plaintiff carries the burden of convincing the court that the law was clearly established." Pueblo Neighborhood, 847 F.2d at 645. ³ The plaintiff must "come forward with facts or allegations sufficient to show both that the defendant's alleged conduct violated the law and that the law was clearly established when the alleged violation occurred." Id. at 646. Only after plaintiff has shown a violation of a clearly established right does the defendant assume the normal burden of a movant for summary judgment of establishing that no material facts remain in dispute that would defeat her or his claim of qualified immunity. See id. Thus, unless and until the plaintiff is able to make the required showing that defendant's conduct violated a "clearly established" right, the government official is properly spared the burden and expense of proceeding any further.

The "plaintiff must do more than identify in the abstract a clearly established right and allege that the defendant has violated it." Pueblo Neighborhood, 847 F.2d at 645. The Supreme Court has cautioned that the test for qualified immunity should not be applied in such a general way as to render the qualified immunity defense unavailable as a practical matter. "The contours of the right [that has allegedly been violated] must be...