Rose v. Eastern Neb. Human Serv. Agency

• Decision Date: 24 March 1981
• Docket Number: Civ. No. 78-0-192.
• Parties: Wyatt M. ROSE, Plaintiff, v. EASTERN NEBRASKA HUMAN SERVICES AGENCY et al., Defendants.
• Court: U.S. District Court — District of Nebraska

510 F. Supp. 1343

Wyatt M. ROSE, Plaintiff, v. EASTERN NEBRASKA HUMAN SERVICES AGENCY et al., Defendants.

Civ. No. 78-0-192.

United States District Court, D. Nebraska.

March 24, 1981.

COPYRIGHT MATERIAL OMITTED

Clyde A. Christian, Omaha, Neb., for plaintiff.

Bruce G. Mason, Omaha, Neb., for defendants.

SCHATZ, District Judge.

Plaintiff instituted this action for damages and equitable relief alleging deprivation of his civil rights in violation of 42 U.S.C. §§ 1981, 1983, 1985 and 2000e, et seq., by the Eastern Nebraska Human Services Agency (ENHSA), an agency of local government, and various agents of ENHSA. Plaintiff's second amended complaint alleged five claims for relief:

1) That defendants, acting under color of state law, wrongfully terminated plaintiff's employment with ENHSA on the basis of his race in violation of 42 U.S.C. §§ 1981, 1983, and 2000e, et seq.;

2) That plaintiff was deprived of his rights under the due process and equal protection clauses of the Fourteenth Amendment and his rights under the First Amendment of the United States Constitution by defendants' termination of plaintiff's employment without affording him a hearing and without following ENHSA's personnel procedures;

3) That defendants engaged in a scheme and conspiracy designed to deny plaintiff rights guaranteed under the Constitution and laws of the United States in violation of 42 U.S.C. § 1985(3);

4) That plaintiff's reputation was severely damaged by adverse publicity regarding his integrity and employment record which was communicated to the Nebraska Department of Labor and prospective employers, through efforts of the defendants, in violation of plaintiff's rights under the Fourteenth and First Amendments; and

5) That ENHSA, as an agency of the government, prejudged plaintiff "guilty" on a robbery charge for which he was arrested, without a fair trial, and punished him for a crime he did not commit in violation of his First, Fourth, Sixth, Eighth and Fourteenth Amendment rights.

The Court has jurisdiction of the parties and of the subject matter of this action under 28 U.S.C. §§ 1331 and 1343. This suit was tried to the Court sitting without a jury. This memorandum opinion shall constitute the Court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). For the reasons set forth in this opinion, the Court concludes that plaintiff's complaint must be dismissed on its merits.

I. THE FACTS

The facts are these. The plaintiff, Wyatt M. Rose, is a black male who was employed by the Chemical Dependency Division of the Office of Mental Health, a division of the defendant ENHSA. ENHSA is a local government agency, existing pursuant to the provisions of the Nebraska Interlocal Cooperation Act, Section 23-2201 through 23-2207, Neb.Rev.Stat.1943, and consisting of joint participation by the Nebraska counties of Douglas, Dodge, Washington, Sarpy and Cass. ENHSA's Office of Mental Health is funded through a combination of funds from federal grants, the State of Nebraska, and contributions from the five participating counties. Defendant Shelton Duruisseau is the former Director of ENHSA's Office of Mental Health. Defendant Robert Boffi is the former Director of the Chemical Dependency Division of the Office of Mental Health. Defendant Joseph Yancey is a former supervisor of the Chemical Dependency Division's Cuming Street Half-way House. Defendant Les Tighe is the Personnel Director of ENHSA.¹

Plaintiff was employed by ENHSA's Office of Mental Health as a Client Services Advocate at Central Intake from September 1, 1976, until his voluntary resignation for personal reasons on September 15, 1977. During that period of time, plaintiff was a dependable employee and received excellent appraisals from his supervisors.

On October 4, 1977, plaintiff was reemployed by ENHSA as a Drug Counselor I at the Cuming Street Half-way House, and remained in that position until his discharge on December 6, 1977. Under ENHSA personnel policies, plaintiff was classified as a probationary employee during his October 4—December 6 period of employment.² ENSHA was aware when it hired plaintiff for the first time on September 1, 1976, and when it hired plaintiff the second time in October, 1977, that plaintiff had been previously convicted of at least one felony and had been incarcerated in the Nebraska Penal and Correctional Complex, and also that plaintiff was on a methadone maintenance program for heroin addicts.

On November 4, 1977, defendant Joseph Yancey, a black male, assumed the supervisory duties for the Cuming Street Half-way House, which included supervision of the plaintiff. The half-way house provided a residence and counseling for clients that came from a number of sources, including the criminal justice system in the local area, as well as from contracts with the Bureau of Prisons for federal parolees, and people who were referred in off the street. The Cuming Street Half-way House was staffed twenty-four hours a day by four full-time counselors.

The nature of plaintiff's work as a drug counselor at the half-way house was to develop a treatment plan for individual clients assigned to him, to follow his prescribed objectives and treatments for those clients based on the treatment plans, and to hold two to three counseling sessions per week with his individual clients. In addition, he was to serve as a general custodian for the house's residents while he was on duty.

Rose primarily worked the 11 p. m. to 7 a. m. shift during the month of November, 1977. During that month, Yancey received some complaints from another staff member at the house who worked the shift before Rose about Rose showing up late for his shift. On November 22, 1977, Rose failed to show up at all for his scheduled shift, and Yancey himself covered the shift that evening. From November 4 until November 29, however, Yancey had no discussions with the plaintiff Rose regarding his duties or work performance. On November 30, following a general staff meeting, Yancey discussed with Rose the November 22 incident and the complaints about Rose's tardiness. Plaintiff's last working day with ENHSA was November 30, 1977, although he was scheduled to work December 1, 2 and 5.

Rose was scheduled to report to work at 11 p. m. on the evening of December 1. That afternoon, Yancey received a phone call from an officer of the Omaha Police Department requesting that he check the Cuming Street House's daily log to determine if Rose was at work on a particular day. He informed Yancey that Rose was being questioned in connection with a robbery. When Yancey refused to release that information, Rose came to the phone and told Yancey to give the police officer the information he requested. Rose failed to explain to Yancey his situation or comment on whether he would be able to work his scheduled shift that evening. On leaving the house that evening, Yancey instructed the staff member working the 3 p. m. to 11 p. m. shift to call him if Rose did not appear for work at 11 p. m. At 11:30 p. m., Yancey was informed that Rose had neither called nor appeared for work. The staff member working the 3 p. m. to 11 p. m. shift stayed until 7 a. m. the next morning to cover Rose's shift. On the morning of December 2, a Friday, Yancey initiated termination procedures against Rose for his absences of November 22 and December 1 and his failure to notify his supervisor that he would be unable to work his shift on those days. Yancey submitted the paperwork necessary for Rose's termination, consisting of a completed Personnel Action Form (PAF) and final appraisal, to defendant Robert Boffi, who was both Yancey's supervisor and the Director of the Chemical Dependency Division. Boffi decided to hold up the paperwork for Rose's termination for a few days. That afternoon, Yancey read an article in the evening edition of the December 2, 1977, Omaha World Herald, which stated that Rose had been arrested in connection with an armed robbery. Yancey notified Boffi of that fact.

Rose was scheduled to work on December 2 and 5 but failed to call in or appear to work his shift. On December 5, Boffi called Yancey to inquire whether Rose had called or appeared for work. On learning that Rose had not, Boffi consulted defendant Les Tighe, ENHSA's personnel director, for clarification of ENHSA's policies regarding termination of probationary employees to insure that such policies were being followed with regard to Rose. After Boffi described the situation, without mentioning Rose by name, Tighe informed him that ENHSA's personnel policies³ would permit termination of a probationary employee under the circumstances. Boffi then approved Yancey's recommendation that Rose be terminated and forwarded the paperwork to his own supervisor, defendant Shelton Duruisseau, then the Director of the Office of Mental Health.

On December 6, Duruisseau approved Yancey's decision to terminate Rose, without further independent investigation, based on his view of the propriety of the reasons for the termination contained in the PAF and final appraisal. Rose's termination became effective on December 6. On that same day, Rose called Yancey to inform him that he had been released on bond, and a meeting was set up at the Half-way House. On Rose's arrival at the Half-way House, Yancey and Boffi met with Rose and told him that his employment had been terminated. Since the PAF and final appraisal were still being processed by ENHSA's central office, the reasons for his termination were verbally communicated to him. Rose was also informed that he had five days within which to file a grievance under ENHSA's personnel policies. Rose did not see or sign his PAF or final appraisal due to the unavailability of the paperwork, nor was Rose given one day's notice of his termination. On December 7, an employment requisition was posted for a replacement for Rose. Lawrence McGruder, a black male, was hired as Rose's replacement.

...