White v. Mississippi State Oil and Gas Bd.

Decision Date29 May 1981
Docket NumberNo. 79-3836,79-3836
Citation650 F.2d 540
Parties115 L.R.R.M. (BNA) 4903, 26 Fair Empl.Prac.Cas. 908, 26 Empl. Prac. Dec. P 31,984, 8 Fed. R. Evid. Serv. 1100 Joe Davis WHITE, Plaintiff-Appellant, v. MISSISSIPPI STATE OIL AND GAS BOARD, et al., Defendants-Appellees. . Unit A
CourtU.S. Court of Appeals — Fifth Circuit

Cupit & Maxey, John L. Maxey, II, Jackson, Miss., for plaintiff-appellant.

William A. Allain, Atty. Gen., Hubbard T. Saunders, IV, Asst. Atty. Gen., Jackson, Miss., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GEE, TATE and WILLIAMS, Circuit Judges.

GEE, Circuit Judge:

Clyde R. Davis is the supervisor and administrator of the Mississippi State Oil and Gas Board ("Board"), which was created by state law to oversee production of Mississippi's oil and gas resources. Davis, with the Board's concurrence, hired Joe Davis White for an Engineer II position in December of 1976, when White was 52 years old. In August of 1978, the Board formally voted to terminate White effective September 15; White was not provided a pretermination hearing. White sued the Board, its five individual members, and Davis, alleging that he had been terminated because of his age and that his fourteenth amendment right to procedural due process had been violated. After trial on the merits, the lower court dismissed plaintiff's claims with prejudice, and he appeals.

Procedural Due Process Claim

White claims that his employment status was a property interest protected by the due process clause of the fourteenth amendment. A protected property interest in employment exists only where the employee has an express or implied right to continued employment. McElwee v. Todd, 581 F.2d 1182, 1183 (5th Cir. 1978). The source of such a right can be a state statute, a local ordinance, or an express or implied contract; whatever the source, it is clear that no such property interest is created by the Constitution, Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Rather, "the sufficiency of the claim of entitlement must be decided by reference to state law." Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). Accordingly, the due process question in this case is whether, under Mississippi law, White had the requisite express or implied right to continued public employment. White argues the existence of such a claim of entitlement can be derived from the controlling Mississippi statutes or implied from his oral employment contract with the Board.

If, under Mississippi law, White's employment could be terminated only for cause, he had a protected property interest in his employment; however, if he could be terminated at will, he did not. Thompson v. Bass, 616 F.2d 1259, 1265 (5th Cir. 1980). By statute in Mississippi, "(u)nless otherwise expressly fixed or provided by law, the heads of the departments hereinabove enumerated (the supervisor of the Oil and Gas Board is included) shall each select and appoint his or their respective subordinates, and may at any time remove a subordinate and appoint his successor." Miss.Code Ann. § 25-3-47. A specific statute in the oil and gas title provides that the supervisor, with the concurrence of the Board, shall employ all necessary personnel; the statute is silent on the question of firing Board employees. Id. § 53-1-9. Without reference to section 25-3-47, the trial judge found that section 53-1-9 contained an implied right of dismissal and held that since it "does not place any limitations on the power of the Supervisor and the Board to dismiss employees, (they) have an 'uncontrolled discretion' in the matter of discharging employees "

The Board argues that, under section 25-3-47, the Board's supervisor could have fired White "at any time" "unless otherwise expressly fixed or provided by law." As section 53-1-9 modifies section 25-3-47 only to the extent of providing that the supervisor must have the concurrence of the Board to hire employees, the Board argues that the removal provision of section 25-3-47 remains applicable as is, or is impliedly modified to require the Board's concurrence to the supervisor's decision to terminate an employee. In other words, since section 53-1-9 does not mention the termination of employees, section 25-3-47 governs the issue; thus, the Board argues, White could be terminated at any time and thus did not have a property interest in his employment.

White responds, first, that section 25-3-47 is simply not applicable because the subject of employees of the Board is dealt with in a specific statute, section 53-1-9. He then argues that legislative silence on the question of termination in section 53-1-9 does not imply that employees may be terminated in the uncontrolled discretion of the Board. Rather, relying on In re Bishop, 211 Miss. 518, 52 So.2d 18 (1951), White argues that, under section 53-1-9, the Board is not the appointing authority (but only ratifies the supervisor's appointments), that the Board is detached from the day-to-day activities of its employees, and thus that it cannot fire an employee without providing him a hearing. In the alternative, White argues that even if section 25-3-47 would otherwise be applicable to the termination of a Board employee, it authorizes the supervisor only, and not the Board, to dismiss an employee at any time. Again relying on In re Bishop, supra, White argues that since the Board lacks appointing authority, it cannot dismiss without providing a hearing.

There are several weaknesses in this argument. First, as discussed, it seems that section 25-3-47 should govern the removal issue, since no other statute expressly provides otherwise. Second, In re Bishop, supra, involved the dismissal of a deputy where the applicable statute provided the sheriff could appoint deputies and remove them at pleasure, while the circuit court could not appoint deputies and could remove them "whenever in its opinion the public interest will be subserved thereby." The Mississippi Supreme Court found the quoted language, in the context of the rest of the statute, necessarily implied that the circuit judge could remove a deputy sheriff only for cause. In doing so, the court relied on the difference in the removal power provided for the sheriff (at pleasure) and the circuit court, as well as the fact that "the power of removal at pleasure is much greater in the appointing agency then in the removing agency not having the power of appointment." 52 So.2d at 20. Here, in contrast to Bishop, there is no similar distinction in the statutes between the appointing and removing powers of the supervisor and the Board; the supervisor, in fact, is empowered by statute to enforce the provisions of the oil and gas title "under the direction of the board" and to enforce "all rules, regulations and orders promulgated by the board." Section 53-1-7. The final difficulty with White's statutory construction argument relying on the separation of the supervisor and the Board is that it was not raised prior to this appeal.

White also argues that regardless of whether statutory law provided him with a property interest in his employment, his employment contract provided him a right to continued employment. Though he concedes that no express agreement was made as to the duration of his employment, he contends it was mutually understood that he was hired as a permanent employee. While the district court found that the Board hired White as a temporary employee, the permanent-temporary distinction is not controlling on this point because in Mississippi an agreement for "permanent" employment is terminable at the will of either party. Sartin v. City of Columbus, 421...

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