Skeets v. Johnson
Decision Date | 27 April 1987 |
Docket Number | No. 85-1761,85-1761 |
Citation | 816 F.2d 1213 |
Parties | , 2 Indiv.Empl.Rts.Cas. 96 Billy Allen SKEETS, Appellee, v. Roy L. JOHNSON, Individually and Chief of Weights Division, Arkansas State Highway and Transportation Department; Henry Gray, Individually and Director of Highways and Transportation of the Arkansas State Highway Commission; George Kell, Individually and Ex-Member of the Arkansas State Highway Commission; David Solomon, Individually and Ex-Member of the Arkansas State Highway Commission; Patsy L. Thomasson, Individually and Ex-Member of the Arkansas State Highway Commission; James A. Branyon, Individually and Ex-Member of the Arkansas State Highway Commission; Festus H. Martin, Jr., Individually and Ex-Member of the Arkansas State Highway Commission; Raymond Pritchett, Individually and a Member of the Arkansas State Highway Commission; Bobby Hopper, Individually and a Member of the State Highway Commission; Ron Harrod, Individually and a Member of the State Highway Commission; and Dalton Farmer, Individually and a Member of Arkansas State Highway Commission, Appellants. |
Court | U.S. Court of Appeals — Eighth Circuit |
Michael S. Moore, Little Rock, Ark., for appellants.
Cliff Jackson, Little Rock, Ark., for appellee.
Before LAY, Chief Judge, and HEANEY, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN and MAGILL, Circuit Judges.
On November 12, 1986, a panel of this court affirmed a summary judgment by the United States District Court for the Eastern District of Arkansas 1 entered in favor of Billy Allen Skeets on his 42 U.S.C. Sec. 1983 (1982) claim that his termination from the Arkansas State Highway and Transportation Department violated his constitutional right to due process. The district court had held that Skeets had been deprived of his property interest in the employment without adequate pretermination procedures and ordered his reinstatement with full backpay. For the following reasons, we reverse.
Skeets' summary judgment motion was submitted to the district court on stipulated facts. On April 10, 1979, Skeets was discharged from his position as Captain and District Supervisor for the Arkansas State Highway and Transportation Department, a position he had held for ten years, for "dereliction of duty." As stated in the stipulation, The reasons for his dismissal were never put in writing and Skeets was given no notice or opportunity for a hearing either before or after his discharge.
The above-referenced grievance procedure is set forth in the Arkansas Highway Department's Personnel Manual and Minute Order No. 75295, dated June 25, 1975. This grievance procedure was in effect at the time of Skeets' discharge. The procedure provides that "[w]hen an employee thinks or feels that any condition affecting his or her employment is unjust, inequitable, a hinderance to the satisfactory operation or creates a problem, the employee shall use the following procedures for the solution of such problems." The grievance is first brought to the employee's supervisor who must "give an impartial hearing, make a thorough investigation and, if possible, make a decision which is mutually agreeable." The employee may then appeal an unsatisfactory decision to the District Engineer or Division Head, who must put the decision in writing. An appeal from that decision may then be made to the department's Employee Representative who must investigate the complaint and report to the Director, whose decision must be given to the employee in writing.
Skeets claims that the department's failure to allow him to utilize this procedure deprived him of a property interest in violation of his constitutional right to due process under the Fourteenth Amendment and 42 U.S.C. Sec. 1983 (1982). The district court agreed, relying upon Wilson v. Robinson, 668 F.2d 380 (8th Cir.1981). 2 In the present case, in affirming the judgment of the district court, our panel agreed that, by reason of the aforesaid language of the Personnel Manual, Skeets was more than an at will employee when he was summarily fired. Skeets v. Johnson, 805 F.2d 767, 770-71 (8th Cir.1986). The panel held that the grievance procedures in this case presented Skeets with a property interest by reason of the required investigation and hearing. Id. at 772. We granted the petition for rehearing en banc. We must respectfully disagree with the result of the panel decision and we now reverse the judgment of the district court.
Skeets did not possess a property interest in his continued employment as evidenced by the parties' stipulation that under Arkansas law, Skeets "was an at-will employee who could be terminated at any time." It is well established that property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); see also Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) ( ); Tautfest v. City of Lincoln, 742 F.2d 477, 480 (8th Cir.1984) ( ). Under Arkansas law, an at will employee is one who can be terminated at any time without cause. The employer's right to so terminate the employee is unconditional and absolute. See, e.g., Newton v. Brown & Root, 280 Ark. 337, 338, 658 S.W.2d 370, 371 (1983); Griffin v. Erickson, 277 Ark. 433, 436, 642 S.W.2d 308, 310 (1982); but see Lucas v. Brown & Root, Inc., 736 F.2d 1202, 1204-05 (8th Cir.1984) ( ). The fact that the employment is public rather than private does not alter the rule. Hogue v. Clinton, 791 F.2d 1318, 1323 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 648, 93 L.Ed.2d 704 (1986); Griffin, 642 S.W.2d at 310; see also Hughes v. Whitmer, 714 F.2d 1407 (8th Cir.1983), cert. denied, 465 U.S. 1023, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984) ( ); Cato v. Collins, 539 F.2d 656 (8th Cir.1976) ( ).
In the joint stipulation, Skeets concedes that he is an employee at will under Arkansas law, but claims a property interest in continued employment by virtue of the department's grievance procedures. Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. In the present case, the state had an absolute, unconditional right to dismiss Skeets without cause because he was an at will employee. Any claim of entitlement to that employment asserted by Skeets, regardless of the source, must be rejected due to his concession that he was an employee at will. This court stands firm in its position that stipulations of fact voluntarily made and fairly entered into are controlling and conclusive and courts are bound to enforce them. E.g., Fenix v. Finch, 436 F.2d 831, 837 (8th Cir.1971); Farmers Co-Operative Elevator Ass'n v. Strand, 382 F.2d 224, 231 (8th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967). Such stipulations can be controverted on appeal only under exceptional circumstances. Kealy v. Harter, 682 F.2d 198, 201 (8th Cir.1982); Fenix, 436 F.2d at 837. Skeets is bound by his stipulation that he was an at will employee.
Notwithstanding this stipulation, Skeets makes clear that he urges recognition of a property interest based solely on the existence of the grievance procedure of the Highway Department. The difficulty we have with this argument is that the grievance procedure relied upon by Skeets as the source of his property interest provides only for post-termination procedures. The grievance procedure at issue has general applicability to "any condition affecting [an employee's] employment" which the employee believes is unjust. Discharge is not mentioned in the procedure, but neither is it excluded. As the panel observed, "the grievance procedures can be construed as being applicable to employment terminations such as at issue." Skeets, 805 F.2d at 773. However, we find that the grievance procedure, as applied to a discharge situation, by the very nature of its language, provides only after-the-fact, post-termination procedural safeguards. The manual assumes "a grievance" will occur before a hearing. In this case, the grievance was the summary discharge. Nothing in the Personnel Manual can be read to require the employer to postpone a termination decision until the employee has exhausted his rights under the grievance procedure. 3
On a number of occasions, the Supreme Court has held that pretermination procedures are essential, except in extraordinary circumstances, to protect property interests under the due process clause. See ...
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