Wheaton v. Webb-Petett

• Decision Date: 01 May 1991
• Docket Number: WEBB-PETET,A,Nos. 89-35470,89-35524,s. 89-35470
• Citation: 931 F.2d 613
• Parties: Larry WHEATON, Plaintiff-Appellant, v. Freddyedministrator, Adult and Family Services Division of the State of Oregon, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 613

931 F.2d 613

Larry WHEATON, Plaintiff-Appellant, v. Freddye WEBB-PETETT, Administrator, Adult and Family Services Division of the State of Oregon Defendant-Appellee.

Nos. 89-35470, 89-35524.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 7, 1991.

Decided May 1, 1991.

Richard C. Busse, Donald B. Potter, Portland, Or., for plaintiff-appellant.

Katherine H. Waldo, Asst. Atty. Gen., Salem, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING, WRIGHT and FARRIS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Larry Wheaton appeals the dismissal on summary judgment of his action challenging his removal from the State of Oregon's management service. We review de novo, viewing the evidence in the light most favorable to Wheaton, to determine whether any factual issue precludes summary judgment and whether the district court correctly applied the substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). We reverse and remand his property interest claim, affirm the dismissals of his liberty interest and first amendment claims and affirm that Webb-Petett is entitled to qualified immunity as to Wheaton's claims for damages.

I BACKGROUND

In 1984, Wheaton became the manager of the Clackamas branch office of Oregon's Adult and Family Services Division (AFSD). AFSD serves a clientele of persons on welfare. Wheaton had by then Ben Talley, the manager for AFSD's Northern Region, was Wheaton's immediate supervisor. On January 14, 1988, Talley told Wheaton to clear his desk and leave that day because he was suspended. When Wheaton asked Talley what would happen after the suspension, Talley said that the head of AFSD, defendant Administrator Freddye Webb-Petett, wanted Wheaton fired. A few days later, Talley told Wheaton that he had been placed on administrative leave. Wheaton understood this to be a suspension with pay until he could be fired.

served the State of Oregon for 20 years in positions of increasing responsibility. As Clackamas Branch Manager, he consistently received the highest performance ratings possible.

By letter of March 4, AFSD personnel specialist Bea Brooks notified Wheaton of his removal from the management service effective March 15 and his restoration to a position in the classified service. The letter described the basis for removal as Wheaton's "aggressive resistance" during December 1987 and January 1988 to a test program known as "NEW JOBS."

The purpose of NEW JOBS was to help clients escape welfare dependency through employment. It was to be implemented on a trial basis in selected AFSD offices, including Wheaton's. Wheaton had accepted the invitation of the legislative taskforce that designed NEW JOBS for Clackamas to serve as a pilot site.

Wheaton planned to contract out NEW JOBS work to existing community organizations. The other six pilot sites planned to implement NEW JOBS using Oregon state employees. Unionized Oregon employees opposed Wheaton's plan to contract out NEW JOBS work.

In detailing the basis for Wheaton's removal, the March 4 letter described several incidents. It referred to remarks by Wheaton during a December 1987 briefing for AFSD managers about NEW JOBS transition training. Reportedly, these remarks were to the effect that Wheaton's employees were not involved in NEW JOBS because of his plan to contract it out, so they would not be attending the NEW JOBS training. A January 5, 1988 meeting was cited, in which Wheaton was said to have made remarks that were "unsupportive" of AFSD's top management and of NEW JOBS. ¹ Also mentioned was a small staff turnout for the Clackamas Branch Transition Training held on January 13, 1988 and Wheaton's "resistant behavior" at that training.

Wheaton sued Webb-Petett under 42 U.S.C. Sec. 1983, charging that her actions deprived him of property and liberty interests without procedural due process. He also asserted that his removal was in retaliation for his constitutionally protected speech. The district court granted Webb-Petett's motion for summary judgment. It found no property, liberty or speech interests of constitutional stature and held that Webb-Petett was entitled to qualified immunity.

II PROCEDURAL DUE PROCESS CLAIMS

"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). To hold Webb-Petett liable under section 1983 on a procedural due process theory, Wheaton must begin by establishing that he had either a property or a liberty interest meriting constitutional protection.

A Property Interest

Constitutionally protected property interests "are created and their dimensions The district court found as a matter of law that Wheaton had no property interest in the Clackamas Branch Manager job. We review de novo a district court's legal rulings, whether these involve federal law or the law of the forum state. Salve Regina College v. Russell, --- U.S. ----, ---- - ----, 111 S.Ct. 1217, 1220-21, 113 L.Ed.2d 190 (1991); In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (de novo review applies to any state law interpretation by a district court, not merely to interpretations in diversity cases). After carefully considering the district court's legal analysis of the property interest issue, we hold it erroneous.

                are defined by existing rules or understandings that stem from an independent source such as state law."    Roth, 408 U.S. at 577, 92 S.Ct. at 2709.    "[Alt]hough state law creates a property interest, not all state-created rights rise to the level of a constitutionally protected interest."    Brady v. Gebbie, 859 F.2d 1543, 1548 n. 3 (9th Cir.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989).  The question whether a state-created right triggers constitutional protections is a question of federal constitutional law.  Id
                

The Oregon management service, which was created in 1981, is a relatively recent refinement of that state's civil service. See Or.Rev.Stat. Sec. 240.212 (1989). Before 1981, Oregon civil servants were assigned to one of three categories: the classified service, the unclassified service or the exempt service. See id. Sec. 240.195.

The management service appears to be a hybrid between Oregon's classified and unclassified services. While neither the management nor the unclassified service is covered by the full panoply of Oregon merit system provisions, Or.Rev.Stat. Sec. 240.240(1) (1989), more features of the merit system apply to the management service than to the unclassified service. Compare id. Sec. 240.240 with id. Sec. 240.250 and id. Sec. 240.570(3)-(5). In a previous examination of the Oregon civil service, we held that a regular employee in the classified service has a property right in continuing this employment but that an unclassified employee does not. Brady v. Gebbie, 859 F.2d 1543, 1548 (9th Cir.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989).

The district court erred by treating Brady as controlling. Whether a member of Oregon's management service has a property interest in continuing that service is distinct from the question presented in Brady: whether an unclassified State Medical Examiner had a property interest. See id. at 1549. The Brady court recognized the distinction and reserved the former question. See id. at 1548 n. 4. ²

We must determine whether Oregon statutes gave Wheaton a property interest in his management service position and, if so, whether this state-created interest sufficed to activate federal constitutional protections. We hold that both questions must be answered in the affirmative.

Under the State Personnel Relations Law, Oregon's management service is more protected than not. Like the state's classified employees, management employees are subject to a trial service period through which they earn job protections. Compare Or.Rev.Stat. Sec. 240.316(1)(a), (c), (2) (1989) with id. Sec. 240.570(3). For classified employees, job protection takes the form of a protection against dismissal "except for cause." ³ See id. Sec. 240.316(2). Management employees are similarly protected. They cannot be removed unless "the employee is unable or unwilling to fully and faithfully perform the duties of Both classified and management employees have rights to appeal disciplinary actions and dismissals to Oregon's Employee Relations Board. Or.Rev.Stat. Secs. 240.560, 240.570(4) (1989). The Board must give the employee a remedy if it "finds that the action complained of was taken by the appointing authority for any political, religious or racial reasons, or because of sex, marital status or age," or if it "finds that the action was not taken in good faith for cause." Id. Sec. 240.560(3)-(4) (emphasis added).

                the position satisfactorily."    Id. Sec. 240.570(3)
                

Wheaton was more than an at-will employee. Good faith was required in Wheaton's removal process.

Wheaton had "a legitimate claim of entitlement," see Roth, 408 U.S. at 577, 92 S.Ct. at 2709, to continue in management employment as long as he remained willing and able "to fully and faithfully perform the duties of the position satisfactorily." See Or.Rev.Stat. Sec. 240.570(3) (1989). While this is a more limited property interest than that possessed by Oregon classified employees, it qualifies for federal constitutional protections. Cf. Maddox v. Clackamas County School Dist. No. 25, 293 Or. 27, 643 P.2d 1253, 1258 (1982) (in banc) (a teacher employed under a one-year contract who could not be dismissed absent good faith had a property interest in serving the full year).

We do not and can not, on this record, determine whether Wheaton received all of the process he was due. " '[T]he root requirement' of the Due Process Clause ...