Waters v. Buckner, Civ. A. No. 1:87-CV-1015-JOF.

• Decision Date: 27 September 1988
• Docket Number: Civ. A. No. 1:87-CV-1015-JOF.
• Parties: Jimmy L. WATERS, Plaintiff, v. William J. BUCKNER, Eddie McCullum, City of Canton, a Municipal Corporation, Defendants.
• Court: U.S. District Court — Northern District of Georgia

699 F. Supp. 900

Jimmy L. WATERS, Plaintiff, v. William J. BUCKNER, Eddie McCullum, City of Canton, a Municipal Corporation, Defendants.

Civ. A. No. 1:87-CV-1015-JOF.

United States District Court, N.D. Georgia.

September 27, 1988.

H. Michael Bray, Canton, Ga., Clifford H. Hardwick, Roswell, Ga., for plaintiff.

Arthur H. Glaser, Beverly Holland, Pritchard, Drew, Eckl & Farnham, Atlanta, Ga., William Grady Hasty, Jr., Roach, Hasty & Geiger, Canton, Ga., Jon B. McPhail, Sari Bayla Marmur, and McKenzie & McPhail, Atlanta, Ga., for defendants.

ORDER

FORRESTER, District Judge.

This matter is before the court on all parties' motions for summary judgment. This action was brought in May, 1987 by the plaintiff under 42 U.S.C. § 1983. Plaintiff alleges in his complaint that the defendants William Buckner and Eddie McCullum as officers for the City of Canton, conspired to terminate the plaintiff from his position as chief of police for the City of Canton and therefore deprive him of his constitutional rights. Complaint, Count One. Plaintiff has also made general allegations that defendant Buckner gave him an unfavorable personnel review and made certain false accusations and treated him differently than other employees, primarily in retaliation for the plaintiff alleging that Buckner had an improper relationship with a female police officer and that Buckner was involved in the purchase of an automobile from his father-in-law's car dealership which was not fit for use as a police car. Complaint, Counts Two and Three. Plaintiff also alleged in his complaint that he was terminated without an opportunity to respond to the charges raised against him and without a fair and impartial hearing. Id., Count Three. Plaintiff alleged that the city did not give him a hearing as required under city ordinances and deprived him of his due process rights. Complaint, Count Three and Four.

Defendants moved for summary judgment on May 9, 1988, one by defendants McCullum and Buckner, and the other by the City of Canton. In response to both motions for summary judgment, plaintiff filed his own cross motion for summary judgment on June 13, 1988. However, an order entered by this court on April 19, 1988 extended the time to file motions for summary judgment by all parties up until May 9, 1988. Therefore, plaintiff's motion for summary judgment will be DENIED as untimely, and will be treated solely as a response to both motions for summary judgment.

I. STATEMENT OF THE CASE.

Local Rule 220-5(b)(2) provides that any statements of material facts in a moving party's statement which are not specifically controverted by the respondent are deemed to have been admitted.¹ The following facts are derived from the parties' statements and the record on file with the court. Defendant Buckner was the city manager for the City of Canton, Georgia, at all times relevant to this motion. Buckner was the plaintiff's immediate supervisor from October, 1984 to January 2, 1987. Waters Depo., p. 56. Defendant McCullum was Director of Public Safety for the City of Canton, Georgia, beginning January 2, 1987. McCullum Depo., p. 5. McCullum was the plaintiff's supervisor after January 2, 1987. Waters Depo., p. 56. In February of 1987, Buckner prepared an evaluation of the plaintiff which was unfavorable. Waters Depo., Exhibit 2. Buckner prepared the evaluation because he was the plaintiff's supervisor for the evaluated time period.² The plaintiff sought review by the Mayor and City Council of this evaluation on March 5, 1987. Waters Depo., Exhibit 5. On March 10, 1987 McCullum suspended Waters without pay and put him on notice that termination would be proposed. Waters Depo., Exhibit 8. The stated reasons for his suspension and proposed dismissal were that his request for a hearing on his evaluation was a violation of the chain of command, was insubordination and a violation of the personnel rules and regulations. Further reasons from the Canton city ordinances were given for the suspension.³ The plaintiff disputes that these were the real reasons for his suspension and termination, and asserts that the real reason for his termination was his use of the grievance procedures he was entitled to use. He also claims the allegations of certain infractions were false. Plaintiff's Response to Defendant's Motion or Summary Judgment. The plaintiff responded to the March 10th notice on March 12th. McCullum Depo., Exhibit 3, Waters Depo., Exhibit 10. On March 12, 1987, McCullum terminated Waters' employment for the same reasons stated in the March 10th notice of suspension. Waters Depo., Exhibit 9. Plaintiff asserts that only the city manager has the authority to dismiss department heads under ordinance 2-5-114. On April 23, 1987, the Mayor and City Council upheld the termination. Defendants Buckner and McCullum's Statement of Material Facts; Plaintiff's Response to Buckner and McCullum's Statement of Material Facts.

The charter of the City of Canton provides in section 13 that "the Mayor and City Council shall ... elect a Chief of Police." Wehunt Aff., Exhibit B. Plaintiff was elected Chief of Police by the City Council on March 6, 1980. Wehunt Aff., Exhibit A. Section 20 of the city charter provides that "the Mayor and Council may remove any officer or employee of said corporation with or without cause who has been elected or employed by said Mayor and City Council." Wehunt Aff., Exhibit B. The city charter has not been amended to include personnel regulations which were adopted by ordinance on June 3, 1982. Wehunt Aff., p. 2.

II. CONCLUSIONS OF LAW.

A. Summary Judgment Standard.

Courts should grant motions for summary judgment when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant bears the initial burden of asserting the basis for his motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The movant is not required to negate his opponent's claim. Id. Rather, the movant may discharge his burden by merely "showing — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. at 2554. When this burden is met, the non-moving party is then required "to go beyond the pleadings" and present evidence designating "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. at 2553. While all evidence and factual inferences are to be viewed in a light most favorable to the non-moving party, Rollins v. Techsouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact (emphasis in original)." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or is "not significantly probative." Id. at 250, 106 S.Ct. at 2511. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the non-moving party's case. Id. at 248, 106 S.Ct. at 2510. Thus, to survive a motion for summary judgment, the non-moving party must come forward with specific evidence of every element essential to his case so as to create a genuine issue for trial. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; Rollins, 833 F.2d at 1528.

B. Section 1983 and Property Interest.

Title 42, U.S. Code, Section 1983 provides a private cause of action when a person acting under color of law, deprives another of any "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983; Dollar v. Haralson County, 704 F.2d 1540, 1543, cert. denied, 464 U.S. 963, 104 S.Ct. 399, 78 L.Ed.2d 341 (1983). To recover under § 1983, a plaintiff must show that the act complained of deprived him of a right, privilege or immunity secured by the Constitution and the act was done by a person acting under color of law. Id. The essential allegation in plaintiff's complaint is that the three defendants deprived him of his rights to due process for his termination and the events surrounding his termination. The fourteenth amendment prohibits a state from depriving a person of life, liberty, or property without due process of law. A § 1983 action for a wrongful termination necessarily depends on the allegation that the state employer deprived the plaintiff of the property right in his job. The plaintiff must show he had a property right in his job which triggers the right to a due process hearing. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Whether a person had a property right in his job is determined by state law. Id.; Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).

The plaintiff was employed as Chief of Police for the City of Canton. He was elected by the Mayor and City Council under the city charter. The city charter allows the Mayor and Council to terminate someone elected by them with or without cause. Under Georgia law, a person has a property interest in his employment only if he can only be terminated for cause. Barnett v. Housing Authority, 707 F.2d 1571 (11th Cir.1983); see, Brownlee v. Williams, 233 Ga. 548, 212 S.E.2d 359 (1975). See also Ogilbee v. Western District Guidance Center, Inc., 658 F.2d 257 (4th Cir.1981); Perkins v. Board of Directors, 686 F.2d 49 (1st Cir.1982) (at will employee has no property interest in job). Plaintiff has presented no contract or agreement which provided for termination only for cause. Therefore, since he was hired under the authority of the city charter, the plaintiff had no property interest in his job....