Tanner v. McCall

• Decision Date: 20 October 1977
• Docket Number: No. 77-2-Civ-Oc.,77-2-Civ-Oc.
• Parties: Bobby F. TANNER, Ned A. Knuth, Carol A. Campbell, Tommy Carisle, Joseph E. Davenport, and Francic J. Ugorek, on behalf of themselves and all others similarly situated, Plaintiffs, v. Malcolm McCALL, individually and in his official capacity as Sheriff of Lake County, Florida, Defendant.
• Court: U.S. District Court — Middle District of Florida

441 F. Supp. 503

Bobby F. TANNER, Ned A. Knuth, Carol A. Campbell, Tommy Carisle, Joseph E. Davenport, and Francic J. Ugorek, on behalf of themselves and all others similarly situated, Plaintiffs, v. Malcolm McCALL, individually and in his official capacity as Sheriff of Lake County, Florida, Defendant.

No. 77-2-Civ-Oc.

United States District Court, M. D. Florida, Ocala Division.

October 20, 1977.

COPYRIGHT MATERIAL OMITTED

Ben R. Patterson, Tallahassee, Fla., for plaintiffs.

Jack Skelding, Tallahassee, Fla., C. Welborn Daniel, Clermont, Fla., for defendant.

OPINION

CHARLES R. SCOTT, District Judge.

Plaintiffs have moved for a preliminary injunction and defendant has moved for summary judgment. Plaintiffs are former deputies of the Sheriff of Lake County, Florida, and defendant is the Sheriff. Three issues are presented by these motions: first, whether plaintiffs had a property interest (de facto or de jure) in their employment as Lake County Sheriff's deputies, which they were deprived of without the fundamental due process guaranteed by the Fourteenth Amendment; second, whether plaintiffs' First Amendment freedoms have been infringed by termination from their employment solely because of their political affiliation; and third, whether plaintiffs' liberty interest under the Fourteenth Amendment has been violated by having their reputations as law enforcement officers stigmatized so that they are hindered from finding new law enforcement work.

FACTS

In November, 1976, the incumbent Sheriff of Lake County, Florida ("Sheriff Bliss") was defeated by defendant in an election. At that time, plaintiffs had all been deputies under Sheriff Bliss for several years; and all plaintiffs but one have been in law enforcement work for more than ten years. There is no evidence that plaintiffs were anything other than satisfactory employees. On or about January 4, 1977, after personally interviewing nearly all of the employees of the sheriff's department, defendant terminated plaintiffs' employment, along with about a dozen other employees. All of the plaintiffs supported their then-employer, the incumbent Sheriff Bliss, in the election that he lost to defendant.

LAW

Summary Judgment: Two Criteria

Defendant has moved for summary judgment, to which he is entitled, in part or altogether, only if he meets his burden to show (1) the absence of any genuine issues of material fact on any or all of plaintiffs' claims, and (2) the right to a summary judgment on any or all of those claims under the indisputable dictates of the law. Fed.R.Civ.P. 56; Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1968); Poller v. CBS, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Eberhardy v. GMC, 404 F.Supp. 826, 829 (M.D.Fla. 1975) aff'd sub nom. Van Eberhardy v. GMC, 534 F.2d 1406 (5th Cir. 1976). If, as a matter of federal law, Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969), real, litigable issues exist, the parties must be allowed to try them; and summary judgment would be improper. Insurance Co. of N. Amer. v. Bosworth Constr. Co., 469 F.2d 1266, 1268 (5th Cir. 1972); United States v. Burket, 402 F.2d 426, 430 (5th Cir. 1968). Where, however, as a matter of federal law, some or all issues raised are wells without the water of legal merit, trial of those issues would be wasteful and unnecessary. Tyler v. Vickery, 517 F.2d 1089, 1094-95 (5th Cir. 1975). Summary judgment, then, is expedient and warranted as "a valuable tool in the law's effort to stem the tide of flooding litigation." DeBardeleben v. Cummings, 453 F.2d 320, 326 (5th Cir. 1972).

First Issue: Property Interest

"A terminated or non-renewed public employee is entitled" to the due process safeguards of the Fourteenth Amendment "only if his termination or non-renewal is a deprivation of liberty or property interests." Siler v. Brady Indep. School Dist., 553 F.2d 385, 387 (5th Cir. 1977) citing Board of Regents v. Roth, 408 U.S. 564, 571-72, 92 S.Ct. 2701, 2705-2707, 33 L.Ed.2d 548, 557-58 (1972); Stewart v. Bailey, 556 F.2d 281, 285 (5th Cir. 1977); Thurston v. Dekle, 531 F.2d 1264, 1271 (5th Cir. 1976). In Board of Regents v. Roth, supra, the Supreme Court stated that property interests "may take many forms." 408 U.S. at 576, 92 S.Ct. at 2708, 33 L.Ed.2d at 560. The existence of genuine property interests is not a matter of the effect of federal, constitutional law, however. Id. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.

Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Id.

Recently, the Supreme Court reaffirmed this analysis of `property interest.' Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976);

A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law. Id. at 344, 96 S.Ct. at 2077, 48 L.Ed.2d at 690.

In Bishop v. Wood, a discharged city police officer claimed that he was deprived of a property interest in his job without the procedural safeguards of due process. He argued that a city ordinance allowing dismissal of permanent employees for persistently unsatisfactory performance created an employment tenure; and that such a tenure was a property interest requiring the fundamentals of due process before it could be removed. The ordinance had not been construed by any state courts, and the district judge interpreted it from his many years of experience with legal practice in the state. Id. at 345, 96 S.Ct. at 2078, 48 L.Ed.2d at 690. The ordinance was ambiguous enough to accommodate different interpretations, id., and the Court of Appeals eventually divided evenly over it. Id. at 346, 96 S.Ct. at 2078, 48 L.Ed. at 691. The Supreme Court held that the district court's interpretation was both possible and tenable; that it derived indirect support from a state supreme court decision; and that the Court of Appeals's acceptance of the interpretation foreclosed the high court's independent reassessment of it. Id. at 345-47, 96 S.Ct. at 2078-2079, 48 L.Ed.2d at 690-91.

On the other hand, the Fifth Circuit interpreted a municipal civil service board rule, permitting suspensions and dismissals of an employee for cause only, as creating a legitimate property interest in continued employment that could "not be taken away without due process." Thurston v. Dekle, 531 F.2d at 1272.

A divided panel of the Fifth Circuit, in Stapp v. Avoyelles Parish School Bd., 545 F.2d 527 (5th Cir. 1977) decided that a school board superintendent's letter of intent to a non-tenured, probationary principal created a de facto objective expectations of continued employment, amounting to a protected property interest. Id. at 533-34. That decision is problematic, however, because it constitutes a federal court's ruling that specific individual conduct by the superintendent could create an employment property interest, despite established state law to the contrary. Id. at 535-37 (Jones, J., dissenting).

Siler v. Brady Indep. School Dist., 553 F.2d 385 (5th Cir. 1977), is more closely in line with Bishop v. Wood, supra, and Board of Regents v. Roth, supra (by the Supreme Court), as well as Thurston v. Dekle, supra, (by the Fifth Circuit). The plaintiff in Siler v. Brady Indep. School Dist., supra, had been a school teacher employed by a school district under two successive one-year contracts. During the life of the second contract, the school district was annexed by the defendant school district. A resolution by the board of the defendant school district at approximately the time of the merger declared that (1) the defendant-successor school district would honor the current contracts between the predecessor school district and its teachers, and (2) at expiration of those contracts, the teachers of the predecessor school district would stand on equal footing with, and be treated the same as, the successor school district's own teachers. Throughout that school year, the plaintiff encountered a "continuing series of difficulties with the principal of the school" where the plaintiff taught. Id. at 387. Consequently, the principal did not recommend plaintiff's re-employment; and the board of the defendant school district endorsed non-renewal of plaintiff's contract. The plaintiff was granted an appearance before the board, but the board denied his request for reconsideration and sent him a lengthy list of performance deficiencies.

The district court held that (1) the board's procedures satisfied due process requirements, since (2) the plaintiff did not have a property interest which the Fourteenth Amendment would protect. Searching for a state law origin for the plaintiff's claim of de facto property interest, the Court of Appeals found that Texas law does not recognize a de facto tenure from even a lengthy service of successively renewed, one-year contracts. Id. at 388. The Court of Appeals affirmed the district court's ruling that the plaintiff had no protectable property interest under state law. Id. at 388, 389.

Finally, in Stewart v. Bailey, 556 F.2d 281 (5th Cir. 1977) a college teacher was terminated during the life of his one-year contract. The grounds for his termination were insubordination and wilful disobedience of rules and regulations. The plaintiff alleged that his First Amendment right to freedom of speech was denied, that his property interest under state law was impaired without the protections of Fourteenth Amendment procedural due process, and that his liberty interest was infringed by denigration of his good name, reputation, and integrity. However, before his discharge became effective, the plaintiff submitted a...