Workman v. Jordan

• Decision Date: 16 August 1994
• Docket Number: Nos. 93-1138,93-1178,s. 93-1138
• Citation: 32 F.3d 475
• Parties: Robert WORKMAN; Judy Workman, Plaintiffs-Appellees and Cross-Appellants, v. Ed JORDAN, Sheriff, in his individual capacity; Ed Jordan, Sheriff, in his official capacity; Rick Dill, Undersheriff, in his individual capacity; Rick Dill, Undersheriff, in his official capacity, Defendants-Appellants and Cross-Appellees, Michael Miller, Captain, in his official capacity; David Worden, in his individual capacity; David Worden, in his official capacity; Weld County by and through the Board of County Commissioners of the County of Weld, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 475

32 F.3d 475

Robert WORKMAN; Judy Workman, Plaintiffs-Appellees and Cross-Appellants, v. Ed JORDAN, Sheriff, in his individual capacity; Ed Jordan Sheriff, in his official capacity; Rick Dill, Undersheriff in his individual capacity; Rick Dill, Undersheriff, in his official capacity, Defendants-Appellants and Cross-Appellees Michael Miller, Captain, in his official capacity; David Worden, in his individual capacity; David Worden, in his official capacity; Weld County by and through the Board of County Commissioners of the County of Weld, Defendants.

Nos. 93-1138, 93-1178.

United States Court of Appeals Tenth Circuit.

Aug. 16, 1994.

Rehearing Denied Oct. 11, 1994.

Richard A. Stubbs (Marc F. Colin with him on the briefs) of Bruno, Bruno & Colin, P.C., Denver, CO, for plaintiffs-appellees and cross-appellants.

Cathy H. Greer of Hall & Evans (Malcolm S. Mead of Hall & Evans; Christina M. Habas of Watson, Nathan & Bremer, P.C.), Denver, CO, for defendants-appellants and cross-appellees.

Before BRORBY and McWILLIAMS, Circuit Judges, and BROWN, ^* District Judge.

BRORBY, Circuit Judge.

The matter presented to this court on appeal is whether Sheriff Ed Jordan and Undersheriff Rick Dill should be granted qualified immunity against claims of due process and First Amendment violations. Sheriff Jordan and Undersheriff Dill appeal the district court's denial of their request for qualified immunity against the due process claims. Robert Workman, the plaintiff, cross-appeals the district court's dismissal of his First Amendment claim. We reverse in part and affirm in part.

BACKGROUND

We assume the following facts as alleged by the plaintiff are true. Robert Workman is a captain at the Weld County, Colorado, Sheriff's Department. In October 1989, Undersheriff Rick Dill served Captain Workman with a "Notice of Internal Investigation" after a female employee mentioned to another captain in the Sheriff's Department that Captain Workman made inappropriate comments to her. This notice advised Captain Workman he was being investigated for an allegation "if substantiated, may constitute sexual harassment." Specific allegations were not included in the notice.

Undersheriff Dill directed an outside investigator, a member of the Greeley Police Department, to gather facts relating to Captain Workman's alleged sexual harassment. The investigator questioned at least two female employees, as well as Captain Workman.

After the investigation produced evidence of harassment, ¹ Sheriff Jordan and Undersheriff Dill notified Captain Workman of a hearing at which he would be required to respond to accusations against him and to the recommendation of his termination. Captain Workman attended the pretermination hearing, which was conducted by Undersheriff Dill and Sheriff Jordan. After reviewing the results of the investigation with Captain Workman, Sheriff Jordan terminated Captain Workman's employment. The Sheriff then sent Captain Workman a letter of termination explaining the reasons for the termination and advising Captain Workman of the available grievance procedure.

Captain Workman appealed his termination through the Weld County grievance procedure and was granted a posttermination The Hearing Officer issued a seven-page "Findings of Fact, Conclusions and Decision." The Hearing Officer concluded "[s]ome of Captain Workman's comments were vulgar, sexist, inconsiderate and inappropriate in the workplace"; however, his "actions did not rise to the level of sexual harassment by any definition available to the Hearing Officer." The Hearing Officer reversed the termination and granted reinstatement with full back pay.

hearing. This hearing was conducted by an impartial Hearing Officer, and Captain Workman was represented by an attorney. The attorney presented evidence on Captain Workman's behalf, made arguments, and examined and cross-examined witnesses.

After Captain Workman returned to work, Undersheriff Dill and Sheriff Jordan placed a letter of reprimand in Captain Workman's personnel file along with a "re-entry plan," the letter of termination, and a poor evaluation. When Captain Workman later applied for a training session with the Federal Bureau of Investigation, he was denied admittance. The Federal Bureau of Investigation, after reading Captain Workman's personnel file, banned him from participating in the educational program.

In November of 1990, Captain Workman sued Weld County, its sheriff, undersheriff, and other county employees for deprivation of constitutional rights pursuant to 42 U.S.C. Sec. 1983. Captain Workman asserted deprivation of property and liberty interests without due process of law and alleged a violation of his First Amendment right to free speech. Captain Workman and his wife also brought state claims against the defendants. Undersheriff Dill and Sheriff Jordan were sued in their individual and official capacities.

Sheriff Jordan and Undersheriff Dill moved to dismiss the federal claims against them on the grounds of qualified immunity. The district court initially reserved ruling on these motions to dismiss. On appeal of the district court's decision to postpone ruling on the motions to dismiss, this court directed the district court to rule on the qualified immunity defenses. Workman v. Jordan, 958 F.2d 332 (10th Cir.1992). On remand, the district court held a hearing to evaluate the motions to dismiss. The district court denied the motions with respect to the due process claims but granted the motion to dismiss Captain Workman's First Amendment claim. ² The district court entered a final judgment on the First Amendment claim pursuant to Fed.R.Civ.P. 54(b).

Sheriff Jordan and Undersheriff Dill appeal the district court's denial of their motions to dismiss. Captain Workman cross-appeals the district court's dismissal of his First Amendment claim against Undersheriff Dill and Sheriff Jordan.

JURISDICTION

This court has jurisdiction pursuant to the collateral order doctrine to review the district court's denial of the qualified immunity motions to dismiss. 28 U.S.C. Sec. 1291; Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir.1988) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985)). The district court entered a final judgment pursuant to Fed.R.Civ.P. 54(b) on Captain Workman's First Amendment claim; therefore, we also have jurisdiction over Captain Workman's cross-appeal. 28 U.S.C. Sec. 1291; see Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 1464, 64 L.Ed.2d 1 (1980) (district court must determine it is dealing with a "final judgment").

We review de novo the district court's denial of qualified immunity. Bella v. Chamberlain, 24 F.3d 1251, 1254 (10th Cir.1994); Powell v. Gallentine, 992 F.2d 1088, 1090 (10th Cir.1993).

QUALIFIED IMMUNITY

Qualified immunity protects public officials from individual liability in a Sec. 1983 action unless the officials violated "clearly Since Sheriff Jordan and Undersheriff Dill have raised the defense of qualified immunity, our analysis will focus on whether Captain Workman has met his burden of showing Sheriff Jordan and Undersheriff Dill violated a clearly established federal right. See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The three federal rights involved in this case are deprivation of a property right without the due process of law, deprivation of a liberty right without the due process of law, and violation of Captain Workman's First Amendment right to free speech. After examining each alleged constitutional violation separately, we conclude Captain Workman has failed to show Sheriff Jordan and Undersheriff Dill violated a clearly established federal constitutional right.

                established ... constitutional rights of which a reasonable person would have known."  Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).  Once a defendant to a Sec. 1983 action raises a qualified immunity defense, the burden shifts to the plaintiff to show both facts and law to establish that the defendant is not entitled to a qualified immunity.  Dixon v. Richer, 922 F.2d 1456, 1460 (10th Cir.1991).  The plaintiff must "come forward with facts or allegations sufficient to show both that the defendant's alleged conduct violated the law and that that law was clearly established when the alleged violation occurred."  Pueblo Neighborhood, 847 F.2d at 646.   If the plaintiff meets this burden, then the normal burden of the movant for a motion to dismiss falls again upon the defendant.  See id
                

A. DEPRIVATION OF A PROPERTY INTEREST

Captain Workman asserts that Sheriff Jordan and Undersheriff Dill deprived him of a property interest without the procedural protections of the Due Process Clause. Captain Workman claims his property interest is his continued employment with the Sheriff's Department. Weld County, Colorado, is a home rule county and the applicable county employee policy provides employment can only be terminated "for cause." Sheriff Jordan and Undersheriff Dill concede that Captain Workman does have a state-defined property interest in continued employment with the Sheriff's Department. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985) (citing Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972)).

Although Captain Workman has a property interest in continued public employment, we fail to find a deprivation of that property interest. Because a procedurally adequate posttermination hearing actually resulted in Captain Workman's reinstatement, together with back pay for the temporary deprivation of his employment, he cannot now state claim under Sec. 1983 for loss of a constitutionally protected property interest in employment. Our decision in Archuleta v. Colorado Dep't of Institutions, 936 F.2d...