Skeets v. Johnson, No. 85-1761

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore McMILLIAN and BOWMAN; HANSON; BOWMAN
Citation805 F.2d 767
Docket NumberNo. 85-1761
Decision Date18 December 1986
PartiesBilly 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 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.

Page 767

805 F.2d 767
55 USLW 2308
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 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.
No. 85-1761.
United States Court of Appeals,
Eighth Circuit.
Submitted March 14, 1986.
Decided Nov. 12, 1986.
Rehearing En Banc Granted Dec. 18, 1986.

Page 769

Bill S. Clark, Little Rock, Ark., for appellants.

Cliff Jackson, Little Rock, Ark., for appellee.

Before McMILLIAN and BOWMAN, Circuit Judges, and HANSON, * Senior District Judge.

HANSON, Senior District Judge.

Before the court is an appeal from the decision of the district court granting Skeets' summary judgment motion, holding that his termination from employment with the Arkansas State Highway and Transportation Department deprived him of due process in violation of 42 U.S.C. Sec. 1983 and reinstating him with full backpay. We affirm the decision of the district court. 1

I. BACKGROUND

Skeets had been an at will employee of the Arkansas State Highway Commission for ten years. On April 10, 1979 he was summarily discharged from his job by appellant Johnson for "dereliction on duty." Although Skeets ceased all official duties on that day, he continued to draw vacation pay until May 18, 1979.

At the time of Skeets' discharge, the Department's employee handbook provided for grievance procedures including an impartial hearing, a thorough investigation, and a final decision in writing from the director. The procedures also provided that the failure of the Department to grant an aggrieved employee the specified rights would advance the grievance to the next step in the process.

Based on stipulated facts, the district court found that Skeets had sufficiently invoked his rights under the procedures when he requested permission from Johnson "to tell his side of the story." The Court also found that Skeets had not been given an impartial hearing or a thorough investigation prior to notification of his termination, nor did Johnson advise Skeets to submit his complaint in writing or offer to assist him in preparing the complaint. The court also found that Johnson's refusal to provide Skeets with an impartial hearing and thorough investigation, as provided in Step 1 of the grievance procedure, automatically advanced the grievance to the next step. As a result, the court concluded that Skeets had a protectable property interest in his continued employment. The court therefore held that, because Skeets sought the equitable remedy of reinstatement with backpay, it was not necessary to inquire into the merits of the underlying dispute, and ordered that Skeets be reinstated with full backpay. 609 F.Supp. 793, 795-98 (E.D.Ark.1985).

II. DISCUSSION

A. Property Interest

Whether Skeets has a protectable property right in his continued employment is initially a matter of state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The Arkansas Highway Commission is authorized "[t]o establish a merit system under

Page 770

the merit council * * *." Ark.Stat. Sec. 76-201.5(i) (1981). The Commission is also empowered "[t]o investigate * * * official conduct of department personnel." Ark.Stat. Sec. 76-201.5(g). In 1981 the Arkansas Legislature established a Merit Board to hear appeals from state agencies with regard to state employee matters. Ark.Stat. Secs. 12-3901 et seq.; but see Patton v. Ragland, 282 Ark. 231, 668 S.W.2d 3 (1984) (Sec. 12-3905(2) an unconstitutional delegation). Specifically excluded from Merit Board review are matters before the Arkansas State Highway Commission and the Arkansas State Highway and Transportation Department. Ark.Stat. Sec. 12-3907. Although Skeets is excluded from Merit Board review, it nonetheless appears that the Legislature intended there to be a mechanism to review Highway Department employee disputes such as his.

Under Arkansas law, in the absence of some alteration of the basic employment relationship, an employee for an indefinite term is subject to dismissal at any time without cause. Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308, 310 (1982); see also Scholtes v. Signal Delivery Service, Inc., 548 F.Supp. 487, 491-94 (W.D.Ark.1982). The Arkansas Supreme Court recently declared that "[w]e have clearly stated that we will reexamine our [employment at will] doctrine when we are presented with a case in which the contract of employment provides for discharge only for cause and the employee is discharged arbitrarily or in bad faith." Gaulden v. Emerson Electric Co., 284 Ark. 149, 680 S.W.2d 92, 94 (1984). Earlier in Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984), the Arkansas Court had considered, but decided the case on other grounds, whether an employee handbook created a contract of employ-giving rise to a cause of action for wrongful discharge. Id. at 899.

An employee handbook can create a property interest if it reflects a de facto policy of established guidelines to be followed prior to dismissal. See Gerrin v. Hickey, 464 F.Supp. 276, 280 (E.D.Ark.1979); see also Perry v. Sindermann, 408 U.S. 593, 602-03, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972).

In this case the Personnel Manual (hereinafter "Manual") was submitted as Exhibit B to the district court with defendants' motion for partial summary judgment, which had asserted Skeets had no property right to continued employment. The district court denied defendants' motion. Skeets now asserts that, although not referred to in the district court's ruling on plaintiff's summary judgment motion, the Manual is part of the record on appeal. We would agree. Because the summary judgment motions of each party deal with the identical issue, whether Skeets had a property interest in continued employment, we can see no prejudice to either party in considering the Manual on appeal. See F.R.App.P. 10(a). The dissent characterizes our consideration of the Manual as raising a new issue on appeal. Although it is certainly true that Skeets only argued below the grievance procedures created his property right, we believe it would be a strained reading to divorce the grievance procedures from the rest of the Manual of which they are a part. On the contrary, we believe the grievance procedures can only be understood in pari materia with the other provisions in the Manual.

On July 20, 1972, the Director of Highways for the Arkansas Highway Commission provided Highway Department employees with the Manual, and enclosed a letter stating:

This manual has been prepared to provide information for supervisors and other employees. It * * * contains information on all personnel policies, procedures, and employment practices. * * *

To the supervisor, it serves as a guide to the proper administration of personnel. To the employee, it is a source of information on employee services and conduct. By reading and referring to this manual, all employees may fully inform themselves on matters affecting them personally.

Id. (emphasis added). Section 106(C) of the Manual goes on to state, with regard to

Page 771

employee conduct, that "[i]t has long been the practice of the Highway Department to counsel with and help any employee whose performance is not satisfactory." Manual at 4. Section 106(C) also lists the grounds for immediate termination of employees whose work is "unsatisfactory." One of the grounds listed is for "[d]ereliction of duty." Id.

The Manual in Sec. 205(10) explains that in filling out Form AH125, the personnel action form, "[a]ll AH125's must have in the 'Remarks' section, a thorough, yet concise, explanation as to the justification for the proposed action." Manual at 33. Section 206(4) explains that in completing Form AH125 for terminating an employee "the reason for separation and the quality of the employee's service, whether satisfactory or unsatisfactory, should be entered in 'Remarks.' " Manual at 38. Upon Skeets' termination, the AH125 "Remarks" portion states as the reason for discharge merely "[d]ereliction of duty."

We believe that it is apparent, by virtue of the statute providing for a merit review mechanism and by the Manual stating reasons for termination and the specific manner in which employees can be terminated, that Skeets was more than an at will employee when he was summarily fired.

Against this background, we must consider Skeets' contention that the grievance procedures provide him with a property right to continued employment. The procedures appear at Sec. 133 of the Manual, as amended by Minute Order on June 25, 1975, and provide a method for employees to grieve working conditions. Step 1 states: "It is the duty of the supervisor to give an impartial hearing [and] make a thorough investigation * * *." The procedures also provide for an impartial hearing and thorough investigation when the employee "take[s] this matter up first with his/her supervisor." The procedures do not specify whether the request for the hearing should be in writing or whether it can be made orally. As a result, it appears to have been reasonable for the district court to conclude that...

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23 practice notes
  • Hubbard v. E.P.A., Nos. 90-5250
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 2, 1992
    ...Veteran's Reemployment Rights Act is equitable), cert. denied, 474 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Skeets v. Johnson, 805 F.2d 767, 774-75 (8th Cir.1986) (awarding equitable back pay for interim between termination in violation of due process and the required hearing), rev'd......
  • Hubbard v. Administrator, E.P.A., Nos. 90-5233
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 27, 1992
    ...Veteran's Reemployment Rights Act is equitable), cert. denied, 474 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Skeets v. Johnson, 805 F.2d 767, 774-75 (8th Cir.1986) (awarding equitable back pay for interim between termination in violation of due process and the required hearing), rev'd......
  • Oldham v. Chandler-Halford, No. C 93-0284.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 21, 1995
    ...Packett v. Stenberg, 969 F.2d 721, 725 (8th Cir.1992) (same); Lohorn v. Michal, 913 F.2d 327, 335 (7th Cir.1990); Skeets v. Johnson, 805 F.2d 767, 777 (8th Cir.1986) (property interests are defined by independent sources such as state law). Oldham appears to assert that the medical restrict......
  • Mummelthie v. City of Mason City, Iowa, No. C 93-3030.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • January 9, 1995
    ...limitations on the employer's ability to terminate an employee."); Lohorn v. Michal, 913 F.2d 327, 335 (7th Cir.1990); Skeets v. Johnson, 805 F.2d 767, 777 (8th Cir.1986) (property interests are defined by independent sources such as state "Agreements implied from `the promisor's words and ......
  • Request a trial to view additional results
23 cases
  • Hubbard v. E.P.A., Nos. 90-5250
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 2, 1992
    ...Veteran's Reemployment Rights Act is equitable), cert. denied, 474 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Skeets v. Johnson, 805 F.2d 767, 774-75 (8th Cir.1986) (awarding equitable back pay for interim between termination in violation of due process and the required hearing), rev'd......
  • Hubbard v. Administrator, E.P.A., Nos. 90-5233
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 27, 1992
    ...Veteran's Reemployment Rights Act is equitable), cert. denied, 474 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Skeets v. Johnson, 805 F.2d 767, 774-75 (8th Cir.1986) (awarding equitable back pay for interim between termination in violation of due process and the required hearing), rev'd......
  • Oldham v. Chandler-Halford, No. C 93-0284.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 21, 1995
    ...Packett v. Stenberg, 969 F.2d 721, 725 (8th Cir.1992) (same); Lohorn v. Michal, 913 F.2d 327, 335 (7th Cir.1990); Skeets v. Johnson, 805 F.2d 767, 777 (8th Cir.1986) (property interests are defined by independent sources such as state law). Oldham appears to assert that the medical restrict......
  • Mummelthie v. City of Mason City, Iowa, No. C 93-3030.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • January 9, 1995
    ...limitations on the employer's ability to terminate an employee."); Lohorn v. Michal, 913 F.2d 327, 335 (7th Cir.1990); Skeets v. Johnson, 805 F.2d 767, 777 (8th Cir.1986) (property interests are defined by independent sources such as state "Agreements implied from `the promisor's words and ......
  • Request a trial to view additional results

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