Wallace v. Shreve Memorial Library

• Decision Date: 20 March 1996
• Docket Number: No. 95-30223,95-30223
• Citation: 79 F.3d 427
• Parties: Mariette WALLACE, Plaintiff-Appellant, v. SHREVE MEMORIAL LIBRARY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 427

79 F.3d 427

Mariette WALLACE, Plaintiff-Appellant, v. SHREVE MEMORIAL LIBRARY, et al., Defendants-Appellees.

No. 95-30223.

United States Court of Appeals Fifth Circuit.

March 20, 1996.

John Charles Milkovich, Shreveport, LA, for plaintiff-appellant.

Lawrence W. Pettiette, Jr., Blanchard, Walker, O'Quin & Roberts, Shreveport, LA, for Shreve Memorial Library.

Brian E. Crawford, Susan Nunez Belsom, Crawford and Anzelmo, Monroe, LA, Bruce Jones Brumfield, Jr., Monroe, LA, for Shreve Mem. Library and Colon.

Thomas G. Zentner, Jr., Theus, Grisham, Davis & Leigh, Monroe, LA, for Shreve Mem. Library and Commerce & Industry Ins. Co.

Sidney Earl Cook, Jr., Shreveport, LA, for Auto. Ins. Co. of Hartford Connecticut.

David Edmond Marquette, O'Neal Walsh, O'Neal Walsh & Associates, Baton Rouge, LA, for American Mfrs. Mut. Ins. Co.

Appeal from the United States District Court For the Western District of Louisiana.

Before GARWOOD, EMILIO M. GARZA and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Plaintiff Mariette Wallace was fired from her library assistant job with Shreve Memorial Library in September 1992. Wallace sued the library, claiming that it violated her Fourteenth Amendment Due Process rights by firing her without a hearing. Wallace claims that under Louisiana law she had a protectable property interest in her job in two ways: (1) the library's employment manual modified her at will employment status, thus providing that she would only be fired for cause and (2) she is a permanent classified employee under the Louisiana civil service system. We find that the employment manual did not create a protectable property interest. However, we believe that there are no clear controlling precedents under Louisiana law upon which we can properly decide whether Wallace was a permanent classified civil service employee. Therefore, we certify this question to the Louisiana Supreme Court.

BACKGROUND

Wallace worked as a library assistant for Shreve Memorial Library in Shreveport, Louisiana, beginning in May 1981. In October 1990, she was terminated because of tardiness. However, in February 1991, she was reinstated on the condition that she complete her portion of the allotted duties, handle reference patrons in a more professional manner and refrain from interfering with personnel matters. In September 1992, Wallace was fired for failing to maintain a satisfactory attitude with the other staff at the library, not consistently completing her share of the duties and refusing to accept criticism from her supervisor and amend her behavior.

Wallace attempted to contest her dismissal. However, the library did not provide an administrative hearing. Wallace filed suit in Louisiana state district court, alleging intentional infliction of emotional distress, violation of her Fourteenth Amendment due process rights and violation of her First Amendment free speech rights. The library removed the case to federal court and moved for summary judgment. The district court, in August 1994, granted partial summary judgment in favor of the library, dismissing Wallace's First Amendment claims and her Fourteenth Amendment liberty interest claims. In February 1995, the district court amended its order, also dismissing her Fourteenth Amendment property interest claims and remanding the state law claims back to state court. Wallace appeals the dismissal of her Fourteenth Amendment property interest claims. Wallace does not brief her First Amendment free speech claims or her Fourteenth Amendment liberty interest claims. Therefore, those claims are waived on appeal. Randall v. Chevron U.S.A., Inc., 13 F.3d 888, 910 (5th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 5, 129 L.Ed.2d 906 (1994).

DISCUSSION

The only issue before us is whether Wallace was entitled to due process before she was fired. ¹ The library does not claim that it afforded her due process; instead, it argues that she was not entitled to due process. A public employee who has a property interest in her job cannot be fired without due process of law. Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Whether one has a property interest in her job is determined by state law, in this case, Louisiana law. Bishop v. Wood, 426 U.S. 341, 347, 96 S.Ct. 2074, 2078-79, 48 L.Ed.2d 684 (1976).

Under Louisiana law, there are two ways through which Wallace can have a property interest in her job: (1) if the library contracted with Wallace to fire her only for cause or (2) if she is a permanent classified employee under the Louisiana civil service system. Wallace claims that she has a property interest in her job in both ways, while the library argues that she does not have a property interest in her job under either theory.

Legitimate Expectation of Continued Employment

Under Louisiana law, a person employed for an indefinite period is an employee at will. Gilbert v. Tulane University, 909 F.2d 124, 125 (5th Cir.1990); LA.CIV.CODE ANN. art. 1778. Even a person with permanent employment is employed for an indefinite time and thus terminable at will. O'Neal v. Chris Steak House, Inc., 525 So.2d 325 (La.Ct.App.1988). "An at-will employee is free to quit at any time without liability to his or her employer and may be terminated at any time, for any reason or for no reason at all, provided the termination does not violate any statutory or constitutional provision." Gilbert, 909 F.2d at 125; LA.CIV.CODE ANN. art. 2747. ² Any ambiguity should be construed in favor of employment at will. ³ Thorne v. Monroe City School Bd., 542 So.2d 490, 492 (La.1989).

In order for Wallace to prove that she has a property interest in her job, she (1) There are no Louisiana cases holding that employee manuals, policies, or grievances procedures confer any contractual rights upon employees or create any exceptions to the "employment at will" doctrine.

                must establish that she is not an employee at will.   She can do this by showing that she has a contract for a definite term or that the library contracted with her to fire her only for cause.  Leger v. Tyson Foods, Inc., 670 So.2d 397, 401-02 (La.Ct.App.1996).   Wallace does not claim to have a contract for a definite term;  therefore, she must show that she and the library contracted for a firing only for cause provision.   Wallace argues that the library's employment manual created a contract which provided that she would only be fired for cause.   Unfortunately for Wallace, Louisiana courts have not been inclined to find contracts in employment manuals. 4  In Mix v. University of New Orleans, 609 So.2d 958 (La.Ct.App.1992), the court examined in detail many Louisiana cases and reached the following conclusions
                

(2) Several Louisiana cases have held that employee manuals as well as company policies and procedures do not confer contractual rights upon employees nor create any exceptions to the "employment at will" doctrine. Wall v. Tulane University, 499 So.2d 375 (La.Ct.App.1986); Williams v. Delta Haven, Inc., 416 So.2d 637 (La.Ct.App.) (1982); Aldahir v. Mobil Exploration & Prod. Southeast, Inc., 420 So.2d 714 (La.Ct.App.1982; Gilbert v. Tulane University, 909 F.2d 124 (5th Cir.1990).

Mix, 609 So.2d at 964.

Louisiana courts analyze employment manuals to determine if they meet the requirements of a contract. Courts have found that employment manuals are not agreements between two parties. Keller, 597 So.2d at 1116; Thebner v. Xerox Corp., 480 So.2d 454, 457 (La.Ct.App.1985). A recent case distinguishes manuals from contracts: "the manual's policies were not a bargained for condition of his employment.... The manual was merely a unilateral expression of company policies and procedures. Any benefits conferred by the manual were merely gratuitous and were not binding on [the company]." Leger v. Tyson Foods, Inc., 670 So.2d 397, 401-02 (La.Ct.App.1996).

The manual in this case is similar to those in many of the above cases: it merely says that an employee will be fired for certain enumerated bad acts, including "[a]ny other just cause as defined by the Library Board of Control." ⁵ There is no evidence that the employment manual was part of a bargained for exchange between the library and Wallace. Leger, at 401-02. Instead, the employment manual was merely a unilateral statement by the library of what actions it considered unacceptable, the commission of On the other hand, the library's employment manual did not have a disclaimer saying that it was not a contract. If there were such a disclaimer, our job of course would be easier. However, Louisiana courts have found employment manuals not to be contracts even without disclaimers (and we have found no cases where the absence of a disclaimer made the manual a contract). Keller v. Sisters of Charity, 597 So.2d 1113, 1116 (La.Ct.App.1992).

                which would result in dismissal.   The manual does not meet the requirements of a contract under Louisiana law
                

Louisiana courts are quite reluctant to find that employment manuals create contractual rights. The courts have not expressed a per se rule against employment manuals being contracts; they instead prefer to analyze the manuals on a case by case basis. Nonetheless, like the Mix court, we can find no case in which a Louisiana court has found an employment manual to create a contract. After reviewing the cases, we hold that a Louisiana court would find this manual, even absent a disclaimer, insufficient to create contractual rights and modify the at will employment arrangement. Thus, Wallace had no protectable property interest in her job because of the employment manual.

Permanent Classified Civil Service Status

In Louisiana, a permanent classified civil service employee has a protected property interest in her job. Bell v. Dept. of Health and Human Resources, 483 So.2d 945, 949-50 (La.), cert. denied, 479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986). Under the Louisiana Constitution, classified...