Strickland v. Columbia County Board of Education et al
Filing
86
ORDER granting 21 Motion for Summary Judgment, directing the Clerk to enter judgment in favor of Defendants and close this case. Signed by Judge J. Randal Hall on 03/29/2012. (thb)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
BOBBY STRICKLAND,
Plaintiff,
V.
COLUMBIA COUNTY BOARD OF
EDUCATION; COLUMBIA COUNTY
SCHOOL SYSTEM; DEPARTMENT
OF TRANSPORTATION;
Superintendent of Schools
CHARLES R. NAGLE; DEWAYNE
PORTER, Director of
Transportation; Assistant
Superintendent ROBERT
JARRELL, and CCBOE
Chairman REGINA BUCCAFUSCO;
CCBOE Vice-Chairman MIKE
SLEEPER; CCBOE Member MILDRED
BLACKBURN; CCBOE Member WAYNE
BRIDGES; CCBOE Member ROXANNE
WHITAKER,
Defendants.
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CV 110-114
ORDER
Presently pending before the Court is Defendants' Motion for
Summary Judgment. (Doc. no. 21.) For the reasons set forth
below, Defendants' motion is GRANTED.
1. BACKGROUND
On a motion for summary judgment, the Court must view the
facts in the light most favorable to the non-moving party,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986), and must draw "all justifiable inferences in [its]
favor." United States v. Four Parcels of Real Prop. in Greene and
Tuscaloosa Cntys., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc)
(internal punctuation and citations omitted) . In the present
case, however, most of the operative facts are not in dispute.
In fact, while Plaintiff "disputes" many of the facts set forth in
Defendants' Statement of Undisputed Material Facts and Conclusions
of Law, it appears that Plaintiff is not denying the actual facts
but rather the implication of the facts. In other words,
Plaintiff "disputes" the legal conclusions to be drawn from those
facts as opposed to the accuracy of the facts as stated.
Nevertheless, to the extent that there is a genuine issue of
disputed fact, the Court has construed the facts in Plaintiff's
favor.
A. Factual Background
This case arises from Plaintiff's December 2009 termination
from his position as a bus driver for the Columbia County School
District ("School District") . The School District hired Plaintiff
in 1995 for an indefinite period of time.
40.)
(Strickland Dep. at
During his time as a driver, Plaintiff worked without an
employment contract.
(Id.)
Plaintiff joined the Transport
Workers Locaj. Union No. 279 in December of 2009. (Id. at 36-38.)
2
He joined the union because he believed that the union '[fought]
for what was right for the drivers." (Id. at 29.)'
The incident that ultimately led to Plaintiff's termination
occurred on the morning of December 2, 2009. The details of the
event are largely disputed. At the time, Plaintiff and Ruby
Brown, his bus aide, were travelling on their morning route to
school with students on board.
(Brown Aff. ¶I 7, 8.)
As
Plaintiff's bus approached a railroad crossing, one of the
students on board shouted "Railroad - Quiet, please." (Id. ¶ 9.)
Although this was common behavior, Defendants contend that
Plaintiff became very agitated because of the increased noise.
(Id. ¶ 11.)
Plaintiff shouted at the students, telling them that
talking at a railroad crossing was a federal offense and
threatening to take the students to the police station.
(Id. ¶
13.)
Mrs. Brown assured Plaintiff that the situation was under
control, but Plaintiff continued to yell at the students.
14.)
(Id. ¶
Mrs. Brown claims that she felt the bus swerve and observed
Plaintiff holding a clipboard on the steering wheel in an attempt
to look down at the seating chart. (Id. ¶ 17.) According to Mrs.
Brown, Plaintiff subsequently pulled the bus over and engaged in a
1
Over the course of his employment, Plaintiff was once accused of
(Strickland Dep. at 21inappropriately touching a female student on his bus.
22.) Plaintiff, however, claims that he did not intend to do anything
inappropriate and merely removed a pen from the female student's lap because it
was a safety hazard. (Id.) Plaintiff was not subject to discipline as a result
(Id.)
of these allegations.
3
verbal exchange with student "K.B."
(Id. ¶ 18.)
Mrs. Brown
claims that Plaintiff, at this point in the route, was enraged.
(Id. ¶ 19.)
He was so agitated that it was necessary for her to
stand up and block Plaintiff from physically approaching the
student.
(Id.)
When the bus arrived at the school, Mrs. Brown informed three
students that they should quickly exit to avoid a potential
confrontation with Plaintiff. (Id. ¶ 21.) As the students
proceeded to the front of the bus, Mrs. Brown claims that
Plaintiff stood up, blocked the path of the three students, and
informed them that they were not allowed to leave.
(Id. ¶ 22.)
Mrs. Brown once again instructed the three students to exit the
bus.
(Id. ¶ 23.)
According to Mrs. Brown, Plaintiff pushed one
student in a very forceful manner. (Id. ¶ 25.) The student
stumbled, but did not fall, and Mrs. Brown watched as Plaintiff
pushed another female student down into a seat. (Id. 11 25, 26.)
Mr. Griffin, the school principal, also described the events
that occurred on the morning of December 2, 2009. He was inside
the school when Plaintiff's bus arrived. (Griffin Aff. ¶ 5.) He
claims that four students entered the school in a very agitated
state and informed him that he needed to get out to the bus
"because something bad [was] about to happen." (Id. ¶ 6.) Mr.
Griffin explains that he walked to the bus and, as he approached,
witnessed a female student exit the bus in a very rapid manner.
4
(Id. 191 7, 8.)
She was stumbling, and her body was turned to one
(Id. ¶ 9.)
side.
Mr. Griffin claims that he caught the student
in order to prevent her from failing to the ground. (Id. ¶ 10.)
He asserts that the student was screaming 'You'd better tell that
man to keep his hands off me!" (Id. ¶ 11.) Mr. Griffin escorted
the student into the school and attempted to calm her down.
(Id.
¶ 12.)
According to Mr. Griffin, Plaintiff entered the school
screaming 'I want those kids arrested." (Id. ¶ 17.) Mr. Griffin
recalls that Plaintiff's face was very red and that he appeared to
be out of control.
(Id. ¶I 19, 20.)
Mr. Griffin told Plaintiff
to calm down, informed him that his behavior was inappropriate,
and advised him that it was agitating the students. (Id. ¶ 21.)
An officer of the Grovetown Police Department arrived at the
school, and Mr. Griffin instructed Plaintiff to leave the school
immediately or he would have Plaintiff escorted off the premises.
(Id. ¶91 25, 26.)
Plaintiff, however, disputes the version of events described
by Mrs. Brown and Mr. Griffin. He claims that when his bus
reached the railroad crossing, one female student began screaming
(Strickland Dep. 41.)
at another child to be quiet.
Despite
repeated warnings, the student continued to scream which forced
Plaintiff to stop his bus.
(Id.)
According to Plaintiff, Mrs.
Brown informed him that the female student was yelling at a middle
5
school child who would not be quiet at the railroad crossing.
(Id.)
Plaintiff, satisfied with this explanation, continued with
his route.
(Id.)
After returning to his seat, Plaintiff received a phone call
from the school asking him about the events occurring on his bus.
(Id. at 42.) Because he was stopped at a light, Plaintiff
answered his phone and explained that he was having problems with
the students.
(Id.)
He learned that a male student on the bus
called the transportation department headquarters and told them
that Plaintiff was driving unsafely.
(Id. at 46-49.)
According
to Plaintiff, it is quite common for this student to complain to
the department.
(Id.)
After he hung up the phone, Plaintiff
heard more noise coming from the back of the bus.
(Id. at 43.)
He admits grabbing the seating chart attached to his clipboard in
an effort to learn which student was making all the noise.
(Id.)
Plaintiff further admits that, in an attempt to restore order
on his bus, he threatened to call the police. (Id. at 50.)
Plaintiff also called Mr. Griffin and asked that he meet the bus
when it arrived at the school. (Id.) Plaintiff intended to have
two students suspended for safety violations: the female student
who yelled at the railroad crossing and the young boy who used his
cell phone to call the transportation department. (Id.)
Upon arriving at the school, Plaintiff claims that Mrs. Brown
told two female students and a male student to "rush the door."
(Id. at 52.)
According to Plaintiff, the students opened the
door, causing one of the female students to stumble out of the bus
in a rapid fashion.
(Id. at 53.) Plaintiff denies pushing either
student in any way. (Id. at 54.) Plaintiff followed the students
off the bus and admits asking the principal to have them arrested.
(Id. at 57.)
Dewayne Porter, Transportation Director for the School
District, was notified of the events that transpired on
Plaintiff's bus. (Porter Dep. at 277; Strickland Dep. at 68.)
Porter, Assistant Superintendent Robert Jarrell, and other
representatives of the School District subsequently investigated
the incident.
(Jarrell Dep. at 75-76.)
Nine of the students on
Plaintiff's bus that morning confirmed that they saw Plaintiff
physically push another student down the stairs.
Seventeen
students confirmed that Plaintiff physically pushed a student into
a seat. Ten students confirmed that Plaintiff attempted to read
from his clipboard while the bus was in motion. Nineteen students
indicated that Plaintiff was yelling, screaming, and appeared to
be out of control.
(Jarrell Dep. at 75-76.)
Porter reviewed the students' statements as well as the
statement of Mrs. Brown. (Porter Dep. at 475-76.) The statements
confirmed that Plaintiff acted aggressively towards students and
escalated the confrontation.
(Id.)
7
Porter also reviewed Mr.
Griffin's statement which confirmed that Plaintiff may have pushed
a student out of the bus.
(Id. at 477.)
Porter met with Plaintiff to discuss the matter.
Dep. at 395.)
(Porter
He informed Plaintiff that he would recommend
termination and explained the appeal options.
(Strickland Dep. at
71-75.) Plaintiff subsequently met with Jarrell and presented his
version of events. (Id. at 77.) Jarrell also recommended
termination because he determined that Plaintiff pushed two female
students and lost control of his actions while operating his bus.
(Id. at 75.)
Jarrell noted that, although Plaintiff denied the
allegations, the majority of the students on the bus, along with
the bus aide, corroborated the events.
(Id. at 76.)
By letter,
Jarrell outlined the appeal process available to Plaintiff.
Superintendent Nagle subsequently reviewed the termination
recommendations of both Porter and Jarrell. He also recommended
termination because he determined that Plaintiff aggressively
touched a student out of anger. (Nagle Dep. at 51) Nagle advised
Plaintiff of his right to have the recommendation reviewed by the
Columbia County Board of Education (the "Board") .
(Id. at 42, 51-
52.)
Plaintiff submitted a request to the Board to have the
termination recommendations reviewed. (Id. at 53.) Plaintiff
also requested that the Board conduct a hearing on his appeal.
(Id. at 52.)
Superintendent Nagle presented the Board members
8
with a compilation of documents relating to the termination
recommendations.
(Whitaker Aff. ¶ 6; Bridges Aff. ¶ 6; Blackburn
Aff. ¶ 6; Sleeper Aff. ¶ 6; Buccafusco Aff. ¶ 6.)
Superintendent
Nagle did not in any way limit the materials that Plaintiff
submitted to the Board.
(Nagle Dep. at 53.)
The Board members
reviewed these materials and voted to approve the termination
recommendation.
(Whitaker Aff. 91% 7, 10; Bridges Aff. IT 7, 10;
Blackburn Aff. ¶91 10; Sleeper Aff. IT 7, 10; Buccafusco Aff. 191 7,
10.)
They also voted to consider Plaintiff's appeal without
granting his request for a hearing on the matter. (Id. ¶ 8.)
They felt that a hearing was unnecessary because the information
they received was sufficient to allow them to make a decision
without holding a hearing.
Plaintiff's
employment
inappropriately
touched
(Id.)
because
two
The Board members terminated
they
students
determined
and
acted
that
he
in
an
unprofessional and improper manner in violation of School District
policy.
(Id. ¶ 10.)
B. Procedural History
On July 28, 2010, Plaintiff filed a complaint in the
Superior Court of Columbia County alleging that Defendants
violated his procedural and substantive due process rights by
terminating his employment as a bus driver. (Doc. no. 1, Ex. A.)
Moreover, Plaintiff alleged that the Board breached a 2007
Settlement Agreement by failing to provide him with an appeal
9
hearing prior to his termination. 2 (Id.)
Finally, Plaintiff
alleged that Defendants retaliated against union employees in
violation of the First Amendment. (Id.) Plaintiff sought a writ
of mandamus to remedy the alleged illegal conduct of Defendants.
Defendants subsequently removed this action to federal
(Id.)
court on the basis of federal question jurisdiction.
(Doc. no.
1.)
11. SUMMARY JUDGNT STANDARD
The Court should grant summary judgment only if there is no
genuine issue as to any material fact and . . . the moving party
is entitled to judgment as a matter of law."
56(c) .
Fed. R. Civ. P.
Facts are "material" if they could affect the outcome of
the suit under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the
facts in the light most favorable to the non-moving party,
Matsushita, 475 U.S. at 587, and must draw "all justifiable
inferences in [its] favor."
Four Parcels, 941 F.2d at 1437
(internal punctuation and citations omitted).
The moving party has the initial burden of showing the Court,
by reference to materials on file, the basis for the motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . How to carry
this burden depends on who bears the burden of proof at trial.
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.
2
See infra footnote 10.
10
1993) . When the non-movant has the burden of proof at trial, the
movant may carry the initial burden in one of two ways—by negating
an essential element of the non-movant's case or by showing that
there is no evidence to prove a fact necessary to the non-movant's
case. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08
(11th Cir. 1991) (explaining Adickes v. S.H. Kress & Co., 398 U.S.
144 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).
Before the Court can evaluate the non-movant's response in
opposition, it must first consider whether the movant has met its
initial burden of showing that there are no genuine issues of
material fact and that it is entitled to judgment as a matter of
law.
Jones v. City of Columbus, 120 F.3d 248, 254 (11th Cir.
1997) (per curiam) .
A mere conclusory statement that the non-
movant cannot meet the burden at trial is insufficient.
Clark,
929 F.2d at 608.
If—and only if—the movant carries its initial burden, the
non-movant may avoid summary judgment only by "demonstrate[ing]
that there is indeed a material issue of fact that precludes
summary judgment." Id. When the non-movant bears the burden of
proof at trial, the non-movant must tailor its response to the
method by which the movant carried its initial burden. If the
movant presents evidence affirmatively negating a material fact,
the non-movant "must respond with evidence sufficient to withstand
a directed verdict motion at trial on the material fact sought to
11
be negated." Fitzpatrick, 2 F.3d at 1116. If the movant shows an
absence of evidence on a material fact, the non-movant must either
show that the record contains evidence that was "overlooked or
ignored" by the movant or "come forward with additional evidence
sufficient to withstand a directed verdict motion at trial based
on the alleged evidentiary deficiency." Id. at 1116-17. The
non-movant cannot carry its burden by relying on the pleadings or
by repeating conclusory allegations contained in the complaint.
See Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981)
Rather, the non-movant must respond with affidavits or as
otherwise provided by Federal Rule of Civil Procedure 56.
In this action, the Clerk gave Plaintiff appropriate notice
of the motion for summary judgment and informed him of the
summary judgment rules, the right to file affidavits or other
materials in opposition, and the consequences of default.
no. 22.)
(Doc.
Therefore, the notice requirements of Griffith v.
Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), are
satisfied.
The time for filing materials in opposition has
expired, and the motion is now ripe for consideration.
111. DISCUSSION
A.
Qualified Immunity
The individual Defendants claim that they are entitled to
qualified immunity on Plaintiff's freedom of association, equal
12
protection, and due process claims brought pursuant to 42 U.S.C. §
1983. A government official who is sued under § 1983 may seek
summary judgment on the ground that he is entitled to qualified
immunity.
Holioman ex rel. Holioman v. Harland, 370 F.3d 1252,
1263 (11th Cir. 2004). It is well established that '[q]ua1ified
immunity offers complete protection for government officials sued
in their individual capacities if their conduct 'does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.'" Vinyard v. Wilson, 311 F.3d
1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982))
To be eligible for qualified immunity, the official must
first establish that he was performing a "discretionary function"
at the time the alleged violation of federal law occurred. Crosby
v. Monroe Cnty., 394 F.3d 1328, 1331 (11th Cir. 2004). Once the
official has established that he was engaged in a discretionary
function, the burden shifts to the plaintiff to show that the
official is not entitled to qualified immunity.
Holioman, 370
F.3d at 1264. The Supreme Court has set forth a two part test for
the qualified immunity analysis. "The threshold inquiry a court
must undertake . . . is whether [the] plaintiff's allegations, if
true establish a constitutional violation." Hope v. Pelzer, 536
U.S. 730, 736 (2002) (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)) .
If no constitutional right would have been violated, it
13
is unnecessary to continue the qualified immunity inquiry.
Saucier, 533 U.S. at 201. "If a constitutional right would have
been violated under the plaintiff's version of the facts, 'the
next, sequential step is to ask whether the right was clearly
established.'"
Vinyard, 311 F.3d at 1346 (quoting Saucier, 533
U.S. at 201.)
In this case, Defendants were performing a "discretionary
function" of their positions when they allegedly violated
Plaintiff's constitutional rights, a fact that is not disputed by
either party. The burden therefore shifts to Plaintiff to show a
violation of his constitutional rights.
See Hope, 536 U.S. at
736. As discussed below, Plaintiff cannot establish a
constitutional violation, and therefore, the individual Defendants
are entitled to qualified immunity.3
B. Claims Relating to Termination
1.
Violation of the Right to Free Association
Plaintiff, by way of 42 U.S.C. § 1983, alleges that
Defendants violated his First Amendment right of freedom of
The Court recognizes that it is no longer bound to follow the two-step
Saucier analysis for qualified immunity, but instead has flexibility to decide
which of the two prongs should be addressed first in light of the circumstances
in the particular case at hand. See Pearson v. Callahan, 555 U.S. 223, 224-25
(2009) . Under the facts of this case, it was more appropriate to first address
the existence of a constitutional violation.
Defendants dedicated a significant portion of their brief to the
argument that the lack of a discriminatory animus on behalf of a "final
policymaker" or "final decision maker" precludes recovery against any Defendant
under § 1983. However, because Plaintiff could not establish any claim under §
1983, the Court did not consider the policymaker analysis.
14
association. 5 The First Amendment provides that "Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof, or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble and to petition the Government for a redress of
grievances." U.S. Const. amend. I. Implicit in the right to
engage in these First Amendment activities is a 'corresponding
right to associate with others in pursuit of a wide variety of
political, social, economic, educational, religious, and cultural
ends."
Roberts v. United States Jaycees, 486 U.S. 609, 622
(1984) . To establish a claim under § 1983 for violating First
Amendment rights, a plaintiff must show (1) a violation of a
constitutional right, and (2) that the alleged violation was
committed by a person acting under color of state law. Holmes v.
Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005); Griffin v. City of
Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001)
Public employees, including Plaintiff, are protected by the
right to free association, and the First Amendment prohibits
retaliation based on the expression of that right. Garcetti v.
Ceballos, 547 U.S. 410, 417 (2006) ("The Court has made clear that
public employees do not surrender all of their First Amendment
Although Plaintiff's Complaint alleges a First Amendment violation
generally, it does not appear that Plaintiff is advancing a freedom of speech
claim. Plaintiff asserts that he was terminated because of his participation in
the union, not because of any particular speech associated with his union
affiliation. Thus, his claim arises from an alleged violation of his freedom of
association rights, not his free speech rights.
15
rights by reason of their employment."); Smith v. Arkansas State
Highway Emps., Local 1315, 441 U.S. 463, 465 (1979) ("The public
employee surely can associate and speak freely and petition
openly, and he is protected by the First Amendment from
retaliation for doing so." (citing Pickering v. Bd. of Educ., 391
U.S. 563, 574-75 (1968))). The right to freely associate,
however, is not unqualified. See Garcetti, 547 U.S. at 418 ("When
a citizen enters government service, the citizen by necessity must
accept certain limitations on his or her freedom.")
The framework for striking the appropriate balance between a
public employee's First Amendment rights and the government's
interest in efficiency was established in Pickering v. Board of
Education, 391 U.S. 563 (1968) . First, a plaintiff must prove
that he was engaging in associative activity not in the course of
his employment, but rather as a "citizen." D'Angelo v. Sch. Bd.
of Polk Cnty., 497 F.3d 1203, 1212 (11th Cir. 2007).
Here,
Plaintiff's union membership amounts to associative activity as a
citizen.
See Douglas v. Dekaib Cnty., No. 1:06-cv-484, 2007 WL
4373970, at *3 (citing Fuerst v. Clarke, 454 F.3d 770, 774 (7th
Cir. 2006)) . Once a plaintiff has met his burden on this
threshold legal issue, a court must determine (1) whether an
adverse action occurred, and (2) whether the constitutionally
protected association was a substantial or motivating factor in
the employment decision.
Starling v. Bd. of Cnty. Comm'rs, 602
16
F.3d 1257, 1261 n. 1 (11th Cir. 2010); Hatcher v. Bd. of Pub.
Educ., 809 F. 2d 1546, 1558 (11th Cir. 1987). If the employee can
meet this burden, the burden shifts to the employer to show that
it would have made the same decision, even in the absence of the
protected conduct. Douglas, 2007 WL 4373970, at *3
Based on the evidence presented, there is no need to balance
the Pickering factors because Plaintiff's union activity did not
form the basis of the termination decision. See Douglas v. Dekaib
Cnty., 308 Fed. Appx. 396, 399 n. 1 (11th Cir. 2009) ("Since we
are persuaded the adverse employment actions were not motivated by
protected union activity, we need not perform a Pickering
balancing."); Shahar v. Bowers, 114 F.3d 1097, 1113 (11th Cir.
1997) ("Pickering balancing does not apply where the employee's
constitutionally protected conduct did not motivate the employer's
decision. In such a case, balancing is not necessary; the
employer prevails because the employee has not established the
element of causation.") (Tjoflat, J. specially concurring).
Although Plaintiff was a union member, the record is rife with
evidence that Plaintiff was terminated because he inappropriately
touched two students and acted in an unprofessional manner and
that he would have been terminated even in the absence of
protected union activity.
Before making their termination decisions, Defendants were
presented with numerous statements corroborating the allegations
17
that Plaintiff had pushed two students, read his clipboard while
driving, and threatened to have several students arrested. Of the
approximately twenty students interviewed, nine students described
Plaintiff as having pushed a female student down the stairs of the
bus. Seventeen students said that Plaintiff pushed another female
student into a seat. Nineteen students described Plaintiff as out
of control on the day in question. Ten students indicated that
Plaintiff was reading information on a clipboard while driving,
which caused the bus to swerve.
Porter's interviews of Mrs. Brown and Mr. Griffin were
consistent with the students' statements. Mrs. Brown confirmed
that Plaintiff acted "aggressively towards several of the
students." (Porter. Dep. at 475.) Mrs. Brown also stated that she
felt the bus swerve and observed Plaintiff holding a clipboard on
the steering wheel in an attempt to look at the seating chart
while driving.
(Brown Aff. 'j[ 17.)
Mr. Griffin stated that a
female student exited the bus in a manner indicating that she may
have been pushed. (Griffin Aff. IT 8, 9.) Mr. Griffin explained
that he attempted to calm the students down, but his efforts were
halted when Plaintiff entered the school shouting that the
students should be arrested. (Id. 91 16, 17.) Mr. Griffin
informed Porter that Plaintiff appeared highly agitated and out of
control. (Id. ¶[ 18, 29.) Both Mrs. Brown and Mr. Griffin stated
that they had never seen another school district employee lose
18
control in the same manner as Plaintiff.
(Brown Aff. ¶ 31;
Griffin Aff. ¶ 30.)
Plaintiff contests the veracity of the students' statements
and denies ever pushing students on his bus. Moreover, he asserts
that the stories must be fabrications because it would have been
impossible for him to have opened the door while simultaneously
pushing the female students. However, the Court need not address
the conflicting versions of what occurred on the bus route.
Instead, Defendants need only advance one reason as to why they
were justified in terminating Plaintiff, and here they have
satisfied this requirement.
286
(1977) .
Mt. Healthy v. Doyle, 429 U.S. 274,
The evidence presented to Porter,
Jarrell,
Superintendent Nagle, and the Board members suggested that
Plaintiff lost control and pushed two female students. He also
drove his bus in a reckless manner. This evidence of misconduct
demonstrates that Plaintiff was terminated not because of his
union affiliation, but instead because he engaged in misconduct
that violated a Board policy.
Even if this Court were to balance the Pickering factors,
Plaintiff is unable to demonstrate that his union affiliation
played a substantial part in the termination decision. In order
for Plaintiff to carry his burden on this issue, he must produce
"more than a mere scintilla of evidence that [his union
affiliation] played a substantial part in the decision not to keep
19
him on as an [employee]." Bartes v. School Bd. of Alachua Cnty.,
No. 04-15459, 2005 WL 2764744, at *4 (11th Cir. 2005) .
Here
Plaintiff asserts that Porter
Plaintiff has not met his burden.
was aware of his union membership at the time he recommended
termination. In support of this position, Plaintiff presented
evidence suggesting that he informed Porter of his union
affiliation prior to his termination and that he wore his union
pin during his meeting with Porter.
(Strickland Dep. at 85-86.)
Porter, however, denies any knowledge of Plaintiff's union
affiliation.
(Porter Dep. at 274, 276.)
Although Porter may have been aware of Plaintiff's union
membership, the union activity did not play a substantial part in
the termination recommendation. Porter stated that his
recommendation was based on the students' statements, Mrs. Brown's
statement, and Mr. Griffin's observation of a child failing off
the bus.
He also explained that he would
(Porter Dep. at 287.)
have made the same recommendation even if he was aware of
Plaintiff's union affiliation.
(Id. at 473.) Moreover, Plaintiff
failed to present any evidence that anyone, other than Porter, was
aware of his union membership. Both Jarrell and Superintendent
Nagle stated that they did not consider whether Plaintiff was a
member of the union when making their decisions, and that they
were unaware of his union affiliation.
Dep. at 50-51.)
20
(Jarrell Dep. at 86; Nagle
Additionally, the five Board members all stated that they
based their termination decisions on the compilation of materials
presented to them.
(Whitaker Aff. ¶ 7; Bridges Aff. ¶7; Blackburn
Aff. ¶ 7; Sleeper Aff. ¶ 7; Buccafusco Aff. ¶ 7.) They asserted
that they did not consider union affiliation and would have made
the same decision had they known Plaintiff was a member of the
union.
(Id. ¶ 11.)
According to the Board members, Plaintiff's
conduct constituted appropriate grounds for termination. (Id.)
Plaintiff has offered no evidence, other than conjecture, to rebut
this testimony.
Based upon the foregoing, the evidence establishes that
Plaintiff was terminated because he inappropriately touched two
students and engaged in unprofessional conduct during his route.
Although Plaintiff denies the events as recounted by the students
and school officials, the evidence establishes as a matter of law
that Plaintiff was not terminated for his union activity. There
is no evidence that any Defendant, other than Porter, was aware of
Plaintiff's union affiliation. 6 Moreover, even if Defendants were
6
Plaintiff also argues that a ' s cat's paw theory" of liability should apply
because the School Board approved Porter's termination recommendation without
conducting an independent investigation. The cat's paw theory allows a
plaintiff to establish causation by showing that the decision maker followed a
biased recommendation without independently investigating the complaint against
the employee.
Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir.
1999) . In such a case, the recommender is using the decision maker as a mere
conduit, or "cat's paw," to give effect to the recomrnender's discriminatory
animus. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir.
1998)
Assuming that Porter did make his recommendation based on Plaintiff's
union affiliation, there is no evidence that Jarrell, Superintendent Nagle, and
the Board members acted as "mere conduits" for Porter's discriminatory animus.
21
aware, there is nothing in the record to suggest that Plaintiff's
union activity played a substantial part in the termination
decision. Thus, Defendants' motion for summary judgment on
Plaintiff's freedom of association claim is GRANTED.
2.
Violation of Equal Protection Rights
Plaintiff also asserts that his termination amounted to a
violation of his equal protection rights. Specifically, Plaintiff
claims that the Board upheld the termination recommendation
because of his classification as a union member. The Equal
Protection Clause prohibits a state from denying to "any person
within its jurisdiction the equal protection of the laws." U. S.
Const. amend. XVI, § 1.
The Clause embodies the principle that
Although these individuals considered Porter's recommendation, they made their
employment decisions based on the totality of the circumstances, including an
(Whitaker Aff. ¶ 7; Bridges Aff. 17;
independent review of the record.
Blackburn Aff. ¶ 7; Sleeper Aff. ¶ 7; Buccafusco Aff. ¶ 7.) Without evidence
that the Board members effectuated Porter's recommendation without conducting an
independent review, p laintiff cannot use the cat's paw theory to establish
liability.
Plaintiff did not specifically plead an Equal Protection violation in his
complaint. Instead, the complaint raises a breach of contract claim, a due
process claim, and a First Amendment claim. Under established Eleventh Circuit
precedent, the non-moving party may not assert new claims at the summary
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th
judgment stage.
Cir. 2004) . "At the summary judgment stage, the proper procedure for
plaintiffs to assert a new claim is to amend the complaint in accordance with
Fed. R. Civ. P. 15(a) . A plaintiff may not amend his complaint through argument
in a brief opposing summary judgment." Id. at 1315.
The Court, however, addresses the Equal Protection claim because of its
close connection with Plaintiff's Freedom of Association claim. In his
complaint, Plaintiff alleges that Defendants took "retaliatory actions against"
members of the union. (Doc. no. 1, Ex. A at ¶ 18.) As evidence of retaliation,
Plaintiff alleges that union employees were subject to "selective enforcement of
work rules, selective implementation of disciplinary actions, undue scrutiny
and selective granting of employment benefits." (Id. at ¶ 19.) These
allegations suggest the basis of Plaintiff's retaliation claim was the
differential treatment of union members as compared to non-union members. Thus,
the Court considered both an Equal Protection claim and a First Amendment claim.
22
all similarly situated people should be treated alike.
City of
Cleburn v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To
establish his claim, Plaintiff must show that (1) he was treated
differently from others who were similarly situated on the basis
of his union activities, and (2) Defendants had no rational basis
for the alleged dissimilar treatment.
Smith v. Atlanta Indep.
Sch. Dist., 633 F. Supp. 2d 1364, 1381 (N.D. Ga. 2009) (citing
Cleburn, 473 U. S. at 439-42) . "Different treatment of
dissimilarly situated persons does not violate the equal
protection clause," and courts are obligated to apply the
similarly situated requirements with rigor. Griffin Indus., Inc.
v. Irvin, 496 F.3d 1189, 1207 (11th Cir. 2007) (citing E&T Realty
V.
Strickland, 830 F.2d 1107, 1009 (11th Cir. 1987) (internal
quotations omitted))
The Eleventh Circuit has held that when an employee alleges
discriminatory discipline, to determine whether employees are
similarly situated, "it is necessary to consider whether the
employees are involved in or accused of the same or similar
conduct and are disciplined in different ways." Maniccia v.
Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (internal citations
omitted)
•8
"The most important factors in the disciplinary context
8
The Court is cognizant of the fact that the plaintiff in Maniccia
claimed that her termination violated Title VII and that she did not assert an
Equal Protection claim pursuant to § 1983. Despite the difference in the claim
asserted, the similarly situated standard of Maniccia is applicable in the Equal
Protection context. Other courts have applied a similar analysis when
determining whether employees were similarly situated for Equal Protection
23
are the nature of the offenses committed and the nature of the
punishments imposed." Id. The quantity and quality of the
comparator's misconduct must be nearly identical to prevent courts
from second-guessing employers' reasonable decisions. Id.
Plaintiff identifies non-union employees who he believes
engaged in conduct that was similar to his, but who received less
severe punishments.
He points to two specific individuals: Mr.
Turman and Ms. Johnson.
Mr. Turman was a non-union bus driver
accused of pushing another student.
According to Mr. Turman, a
high school student was cursing and becoming increasingly
disruptive.
(Porter Dep. at 377.) The student refused to let Mr.
Turman pass him, and as a result, Mr. Turman physically moved the
student to the side.
(Id. at 378.)
Porter investigated the
incident, but found the witnesses' accounts of the situation to be
unreliable. (Id.) After interviewing the students, Porter
questioned whether they actually saw anything since they were in
the bottom of the stairwell, and there was a barrier between their
line of sight and the event they described. (Id.) Porter advised
Mr. Turman that touching students in any way can be misinterpreted
and result in disciplinary action, but ultimately decided not to
recommend discipline at that time. (Id. at 333.)
Ms. Johnson was a non-union bus aide accused of abusing a
special needs student on her bus. According to the bus driver on
purposes. See Catlett v. Peters, No. 98-CV-3273, 1999 WL 1269196, at *7_9 (N.D.
111. Dec. 23, 1999); Grady v. City of Orlando, No. 96-CV-1295, 1998 WL 657663,
at *34 (M.D. Fla. June 25, 1998).
24
Ms. Johnson's bus, after the child refused to sit quietly, Ms.
Johnson sat next to him and shoved him hard against the window.
When she could not get the boy under control, Ms. Johnson was
accused of putting him in a headlock. Porter conducted an
investigation and interviewed Mrs. Johnson, as well as the driver
who made the allegations and teachers from the school that she
served.
(Porter Dep. at 308.)
Ms. Johnson denied putting the
student in a headlock. (Id. at 314.) The teachers at the school
stated that when dealing with this particular student, Ms. Johnson
sat close to him to make him feel more comfortable and prohibit
him from harming other children.
They also complimented
(Id.)
Ms. Johnson's ability to handle students with severe behavioral
and emotional issues.
(Id. at 311.)
Porter did not discipline
Ms. Johnson because he did not find any evidence suggesting that
she acted inappropriately.
(Id. at 309.)
Although the individuals identified by Plaintiff were also
accused of inappropriately touching students, their misconduct is
distinguishable from Plaintiff's misconduct in both quantity and
quality. Plaintiff was the only individual accused of reckless
driving. Ten students as well Mrs. Brown corroborated the claim
that Plaintiff read information on a clipboard while driving and
that this conduct caused the bus to swerve.
One of the most
important responsibilities of a bus driver is to maintain the
safety of the students in their care.
25
Plaintiff's alleged
misconduct violates that duty because his reckless driving
jeopardized the safety of every student on his bus.
Additionally, Plaintiff was the only driver alleged to have
lost control of his actions. Not only did Plaintiff shout at
students, but he also threatened to have them arrested.
Superintendent Nagle confirmed that he recommended termination in
large part because the evidence suggested that Plaintiff "put his
hands . . . on students in anger" and that he was "out of
control." (Nagle Dep. at 52.) While the Court does not condone
the alleged actions of Mr. Turman and Ms. Johnson, their
misconduct simply does not rise to the same level as Plaintiff's
misconduct.
Here Plaintiff has not presented a valid comparator as a
matter of law. He did not identify any similarly situated non-union employees who engaged in misconduct nearly identical to his,
but who received less severe disciplinary sanctions. Accordingly,
as Plaintiff failed to present proper comparators, he cannot
establish that his equal protection rights were violated, and
Defendants' motion for summary judgment on the equal protection
claims is GRANTED. See Harien Assocs. V. Inc. Vill. Of Mineola,
273 F.3d 494, 499 n. 2 (2d Cir. 2001) ("[A] court can properly
grant summary judgment where it is clear that no reasonable jury
could find the similarly situated prong met.").
26
C. Claims Relating to Termination Procedures
1. Violation of Settlement Agreement9
Plaintiff asserts that the Board's failure to grant his
request for an appeal hearing amounted to a violation of the 2007
Settlement Agreement ("Settlement Agreement"). The Settlement
Agreement at issue was the result of a prior lawsuit between
members of Plaintiff's union and the School District.'°
Plaintiff's claim that the Board violated the Settlement Agreement
appears to be twofold. First, the Settlement Agreement stated
that School Board counsel would provide an "expanded grievance
policy." Plaintiff, however, argues that the Board restricted the
grievance procedures instead of expanding them. Second, Plaintiff
contends that the-Board's failure to provide him a direct appeal
and a hearing amounted to a violation of the Settlement Agreement.
In order to understand Plaintiff's contentions, it is
necessary to distinguish between the two types of School District
employees: certified personnel and classified at-will personnel.
(Nagle Dep. at 28-29.)
Certified employees include teachers,
Plaintiff's breach of contract claim is pursued only against the Board,
and not against any individual Defendant. (Joint Stipulations ¶ 7.)
In the prior suit, members of the Transport Workers Union of America,
AFL-CIO, and Transport Workers Union Local Union No. 279 filed suit against the
Columbia County School District and the members of the Columbia County Board of
Education in the United States District Court for the Southern District of
Georgia, Augusta Division. The plaintiffs alleged that they were denied the
opportunity to speak about certain matters and that they were discriminated
against based on their union affiliation. In an effort to mutually resolve the
issues without a Court proceeding, the parties agreed to the terms of the
Settlement Agreement.
27
administrators, and certified educators.
advanced degrees
certifications.
111
(Id.)
(Id. at 28.) They hold
education or possess other state
Classified at-will employees are non-
certified staff including custodians, bus drivers, secretaries,
paraprofessionals, and nutrition employees. (Id.) Pursuant to
O.C.G.A. § 20-2-211, all certified professional personnel must be
issued an annual contract. Classified at-will employees, on the
other hand, are not entitled to a contract of employment and are
at-will employees. Plaintiff was a classified at-will employee as
evidenced by the fact that he was hired for an indefinite period
of time and worked without a contract of employment. (Strickland
Dep. at 40.)
The School District maintains separate and distinct policies
and procedures for certified and classified at-will employees.
The policy and procedures applicable to Complaints and Grievances
of
certified employees are coded "GAE." The policy and procedures
applicable to the suspension and termination of
classified at-will
personnel are coded "GCK." For ease of reference, the Court will
refer to the two categories of employees henceforth as either
certified or classified at-will employees, Plaintiff failing into
the latter category.
a. Policy GAE Does not Apply to Plaintiff
Under the terms of the Settlement Agreement, the Board stated
that it would expand the grievance procedures for classified at-
will employees.
The pertinent provision of the Settlement
Agreement is as follows:
In the best interest of all parties and all employees,
School Board Counsel will draft an expanded grievance
policy (GAE-1)" for all classified employees, including
employees of the Transportation Department. Pursuant to
this expanded policy, classified employees with at least
24 months of continuous service with the Board of
Education can appeal to the Board of Education or its
Personnel Committee any recommendation to terminate such
employee(s) before final action to terminate is taken by
continue
The Administration will
the Board.
implementing procedures on due process. The
Administration will prepare procedures to define
process.
(Doc. no. 39 at 9.)
Prior to the Settlement Agreement, Policy GAE (applicable to
certified employees) provided that "when hearing an appeal from a
prior -level,. the local Board of Education shall hear and decide
all appeals de novo." (Hobbs Aff., Ex. A.) In promising to
expand the grievance policy for classified at-will employees, the
Board revised Policy GCK (applicable to classified at-will
employees) to provide: "Upon good cause the Board may grant such
employees the opportunity of an appeal hearing." (Pl.'s Ex. 44.)
Plaintiff's first claim with respect to the Settlement Agreement
is that the Board did not provide an "expanded grievance policy."
Instead, Plaintiff contends that the implementation of the revised
Policy GCK restricted the rights available under Policy GAE
11
The policy that applies to classified at-will employees is actually
policy "GCK." The policy was erroneously identified as "GAE1" in the Settlement
Agreement. "GAE1" applies to certified employees, and "GCK" applies to at-will,
"classified" employees. (Nagel Aff. ¶ 14.)
29
because classified at-will employees are no longer entitled to an
automatic appeal hearing. Stated differently, Plaintiff contends
that the revised version of Policy GCK restricts the appeal rights
available under Policy GAE such that the Board failed to provide
for an "expanded grievance policy" as set forth in the Settlement
Agreement.
At the outset, the Court recognizes that Plaintiff's
contention presupposes that he was subject to Policy GAE. He was
not.
In reviewing Policy GAE, the Court notes that it clearly
applies only to certified personnel.
Not only does Policy GAE
reference "certified" employees, but the purpose of the policy is
to implement the provisions of O.C.G.A. § 20-2-989.5. (Hobbs
Aff., Ex. A.) Subpart (b) of O.C.G.A. § 20-2-989.5 states that it
is the duty of local school administrations to "adopt a complaints
policy for certified personnel." (emphasis added). Second,
"termination, non-renewal, demotion, suspension, or reprimand of
an employee" are specifically excluded from Policy GAE.
Board
policies and procedures relating to termination or suspension of
certified employees carry the descriptive code "GBN." Thus,
Policy GAE does not apply to Plaintiff who is a classified at-will
employee seeking a review of a termination decision.
The only policy that is relevant to Plaintiff is Policy GCK,
which explicitly references classified at-will employees seeking
reviews of termination decisions. Therefore, to the extent that
30
Plaintiff's argument challenges Policy GCK because it restricted
Policy GAE in violation of the Settlement Agreement, that argument
must fail because Policy GAE and the rights attendant to it are
wholly irrelevant to Plaintiff's case.
b. Policy GCK Expanded the Grievance Procedure As
Required by the Settlement Agreement
The Court must next consider whether Policy GCK expanded the
grievance procedures available to classified at-will employees in
accordance with the Settlement Agreement. Based upon a comparison
between the version of Policy GCK in place before the Settlement
Agreement and the version revised after the Settlement Agreement,
it appears that the Board provided an "expanded grievance policy."
Pursuant to the Settlement Agreement, certain classified at-will
employees could appeal a termination recommendation before final
action was taken. Further, the Columbia County School
Administration agreed to implement procedures on due process. The
Board complied with both provisions of the Settlement Agreement.
First, under the revised version of Policy GCK, classified
at-will employees who maintain continuous employment for a minimum
of twenty-four (24) months are afforded the right to have their
termination recommendations reviewed. Unlike the version of
Policy GCK in place before the Settlement Agreement, the revised
version of Policy GCK provides an employee the opportunity to
Second, the School District
apply for an appeal hearing.
implemented new procedures relating to due process, which is
31
called "Procedure
GCK."
Procedure
GCK
describes in detail the
process an employee must follow in order to have a termination
recommendation reviewed by the Board. Procedure
GCK
also
describes the appeal hearing process should the Board decide to
grant a hearing. Therefore, the Board complied with the Settlement
Agreement because it expanded the grievance policy for classified
at-will employees and implemented Procedure
GCK.
C. The Board Complied with the Provisions of
Policy GCK and Procedure GCK
Plaintiff next contends that the Board breached the
Settlement Agreement by denying him the opportunity to appeal
directly to the Board. In order to resolve this issue, the Court
must determine whether the Board complied with the provisions of
Policy GCK
Procedure
and Procedure
GCK,
GCK.
Pursuant to Policy
GCK
and
after a review by the Assistant Superintendent and
Superintendent Nagle, the employee has the right to have the
termination recommendation reviewed by the Board. (Pl.'s Exs. 44,
45.)
Here, Plaintiff sought review of the recommendations to
terminate his employment. Indeed, Plaintiff states that his
attorney filed an appeal with the Board. (Strickland Dep. at 78.)
He wrote a letter to the Board explaining the incident on his bus
and provided his side of the story. (Id. at 79.)
This statement
was submitted to the Board along with other written materials
related to the termination recommendations.
32
(Whitaker Aff. 1 6;
Bridges Aff. ¶ 6; Blackburn Aft. ¶ 6; Sleeper Aff. ¶ 6; Buccafusco
Aff. ¶ 6.)
The Board reviewed those materials and decided to
uphold the termination recommendation. (Id. 1 10.) Therefore,
Plaintiff was provided the opportunity to have his case reviewed
by the Board.
In regard to the argument that Plaintiff was entitled to a
hearing before the Board under the terms of the Settlement
Agreement, this claim must also fail. Plaintiff asserts that he
was under the impression that he would be able to speak to the
Board and present his side of the story. (Strickland Dep. at 79.)
The Board, however, complied with Policy GCK and Procedure GCK
when it determined that an appeal hearing was unnecessary.
Nothing in Policy GCK or Procedure GCK provides for an unqualified
right to a hearing. While Policy GCK and Procedure GCK allow
classified at-will employees a right to appeal a termination
recommendation, the Board reserves the right to determine whether
to conduct hearings on those appeals. (Whitaker Aff. ¶ 16;
Bridges Aff. ¶ 16; Blackburn Aff. ¶ 16; Sleeper Aff. ¶ 16;
Buccafusco Aff. ¶ 16.) Policy GCK states that "upon good cause,
the Board may grant such employees the opportunity of an appeal
hearing." (Doc. no. 64, Ex. 14) (emphasis added).
Moreover, counsel for the Board who negotiated the Settlement
Agreement confirmed that, during the negotiations between the
parties, the union demanded that certain classified at-will
33
employees be granted the right to a hearing before the Board in
connection with all termination recommendations by the School
Superintendent. (Fletcher Aff. ¶ 4.) The Board, however,
rejected this request. (Id. ¶ 5.)
Therefore, under the terms of the final Settlement Agreement,
the Board reserved the right to determine, on a case-by-case
basis, whether to conduct evidentiary hearings on termination
recommendations for classified at-will employees. (Id. ¶ 6.)
Plaintiff applied for a hearing, and the Board considered his
request.
(Whitaker Aff. ¶ 5; Bridges Aff. ¶ 5; Blackburn Aff. ¶
5; Sleeper Aff. ¶ 5; Buccafusco Aff. ¶ 5.) The Board, however,
voted to deny Plaintiff's request because they determined that the
grounds for the termination recommendation were sufficiently
presented to them in written materials, and thus there was no need
for a hearing. (Id. at ¶ 8.) Because Plaintiff was not entitled
to an automatic appeal hearing, the Board did not violate the
Settlement Agreement in failing to grant his request. Thus
Defendants' motion for summary judgment on Plaintiff's breach of
contract claim is GRANTED.
2. 42 U.S.C. § 1983 Denial of Procedural Due Process
Plaintiff next claims that his termination amounted to a
violation of procedural due process, and he seeks relief pursuant
to § 1983. In order to establish a procedural due process
violation under § 1983, a plaintiff must show: "(1) a deprivation
of a constitutionally-protected liberty or property interest; (2)
state action; and (3) constitutionally-inadequate process."
Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). Even if
Plaintiff alleges and satisfies these elements, he cannot state a
federal procedural due process claim if adequate state remedies
are available to him.
McKinney v. Pate, 20 F.3d 1550, 1562-64
(11th Cir. 1994)
The Fourteenth Amendment protects against the government's
deprivation of liberty or property without procedural due process.
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569
(1972).
State law determines whether a public employee has a
property interest in his or her job.
Bishop v. Wood, 426 U.S.
341, 344 (1976); Barnett v. Housing Auth. of Atlanta, 707 F.2d
1571, 1576 (11th Cir. 1983) (overruled on other grounds). A
constitutionally protected property interest is created if there
are "rules of mutually explicit understandings that support [a]
claim of entitlement." Perry v. Sindermann, 408 U.S, 593, 601
(1972). "To obtain a protected property interest in employment, a
person must have more than a mere unilateral expectation of
continued employment; one must have a legitimate claim of
entitlement to continued employment." Warren v. Crawford, 927
F.3d 559, 562 (11th Cir. 1991) . Thus, to evaluate the validity of
Plaintiff's procedural due process claim, the Court must first
35
determine whether he had a protected property interest in his
employment as a bus driver with the School District.
Under Georgia law, in the absence of a controlling contract
between the parties, employment for an indefinite period of time
is terminable at will by either party. Land v. Delta Air Lines,
130 Ga. App. 231 (1973); see also O.C.G.A. § 34-7-1. Moreover, a
public employee generally has no property right in such
employment. Ogletree v. Chester, 682 F.2d 1366, 1369 (11th Cir.
1982) (citing Barnes v. Mendonsa, 110 Ga. App. 464 (1964)).
However, a public employee has a property interest in his job if
his employment allows dismissal only for cause. Warren, 927 F.3d
at 562. An explicit contractual provision, rules, or common
understanding may determine whether an employee is terminable at
will or only for cause. DeClue v. City of Clayton, 246 Ga. App.
487, 489 (2000).
The expectations of the parties involved are
also relevant to this issue.
Maxwell v. Mayor & Aldermen of
Savannah, 226 Ga. App. 705, 707 (1997)
Plaintiff contends that Policy GCK provided him with a
protected property interest. Policy GCK states that the
Superintendent can terminate, pending Board approval, "any
auxiliary employee who fails to comply with employment
expectations and rules, who fails to perform assigned duties, or
for any other good and sufficient cause."
(Pl.'s Ex. 44)
(emphasis added). Plaintiff asserts that, based on this language,
36
he could only be terminated for cause, and thus he had an
expectation of continued employment sufficient to bestow a
protectable property interest.
Policy GCK further provides "nothing in this policy shall
grant the right to continued employment or change the legal status
of at-will employees." (Id.) Procedure GCK contains a similar
disclaimer and states that the procedure is merely designed "to
give auxiliary employees a fair means to have terminations
informally reviewed." (Pl.'s Ex. 45.) Defendants contend that
this disclaimer demonstrates that Plaintiff remained an at-will
employee and that the School District did not intend to expand the
rights of classified at-will employees.
Despite Plaintiff's claim to the contrary, Policy GCK does
not grant him a property interest in continued employment because
the Superintendent has broad discretion to recommend termination.
Although Policy GCK contains "for cause" language, it does not
provide that Plaintiff could only be terminated for cause. Cf.
Glenn v. Newman, 614 F.2d 467, 472 (5th Cir. 1980) (provision that
allowed suspension only "for cause" created a property interest)
•12
Policy GCK states that the Superintendent may terminate, pending
Board approval, "any employee who fails to comply with employment
expectations and rules, who fails to perform assigned duties, or
12
See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.
1981) (holding Fifth Circuit decisions made on or before September 30, 1981, are
binding precedent in Eleventh Circuit).
37
for any other good and sufficient cause." (Pl.'s Ex. 44.) The
Columbia County Auxiliary Employment Handbook provides a list of
ten (10) specific expectations for School District employees.
(Pl.'s Ex. 43.) However, the Handbook also states that the
guidelines are offered to insure that employees understand
expectations for job performance and that they are "not intended
to be all-inclusive" because "other specific expectations exist
for all positions." (Id.) The fact that the Superintendent could
terminate an employee for violating an employment expectation not
expressly listed in the Handbook or in Policy GCK demonstrates
that he could terminate for reasons other than "good cause." See
Warren, 927 F.2d at 563 (finding no property interest because
employees could be dismissed at the discretion of the
administrator); Georgia Ports Auth. v. Rogers, 173 Ga. App. 538,
539 (1985) (finding no property interest when policy manual's list
of reasons for termination indicated that it was not exclusive of
other possible reasons). Thus, despite the "for cause" language,
Policy GCK places no limit on the Superintendent's ability to
determine whether an employee complied with employment
expectations and recommend termination based on that decision.
See Edwards v. Brown, 699 F.2d 1073, 1076-77 (llth Cir. 1983)
(finding no property interest because ordinance placed no limit on
the commissioner's discretion to determine whether an employee had
fulfilled the standards of "good behavior and efficient service").
38
Moreover, even if the "for cause" language limited the
Superintendent's ability to recommend termination, that limitation
applies only to the Superintendent and not to the Board. Both
Eleventh Circuit and Georgia case law recognize that, under
certain circumstances, policies and personnel manuals which
include language that an employee may only be terminated "for
cause" grant the employee a property interest in continued
employment. See Brown v. Ga. Dep't of Revenue, 881 F.2d 1018,
1024-25 (11th Cir. 1989) (finding state granted a property
interest by providing that permanent status employees may not be
fired except
111
accordance with the Personnel Board rules);
Barnett, 707 F.2d at 1576-77 (noting the personnel policy
permitted involuntary discharge only "for cause," which limited
the power of the appointing body to dismiss and created a property
interest in continued employment); Brownlee v. Williams, 233 Ga.
548, 550-51 (1975) (finding statute that stated that the appointing
authority could only dismiss for cause created a property interest
in continued employment); DeClue, 246 Ga. App. at 489-90 (holding
policy that allowed disciplinary action against employees only for
certain specified reasons was evidence that the employee had a
property interest in continued employment).
However, Policy GCK is distinguishable from the policies in
the above-cited cases. In those cases, the employees had property
interests because the "for cause" language curtailed the
39
employer's right to terminate in a substantial way. See Brown,
881 F.2d at 1027 (the for cause language suggested that there was
some substantive limitation on the state's ability to terminate
covered employees); Barnett, 707 F.2d 1576-77 ("We conclude that,
by limiting the power of the appointing body to dismiss an
employee, these regulations confer on [the plaintiff] a valid
property interest in continued employment."); see also Dethrow v.
Parkland Health Hosp. Sys., No. 3:00-cv-2126, 2002 WL 413905, at
*5 (N.D. Tex. March 11, 2002) (finding that in order for an
employment policy to alter the at-will nature of employment, "the
policy must specifically and expressly limit the employer's
ability to terminate the employee" (emphasis added)). Under the
facts of this case, the Board has the authority to terminate, not
the Superintendent. Pursuant to Policy GCK, the Superintendent
can only recommend termination; the recommendation, however, is
subject to Board approval. Moreover, Superintendent Nagle stated
that he does not have unilateral authority to terminate any
employee, and that this authority rests solely with the Board.
(Nagle Dep. at 44.) Thus, unlike the above-cited cases, nothing
in Policy GCK limits the Board's (the employer) right to
terminate. Because the "for cause" language does not apply to the
Board, it does not create a protectable property interest.
Interpreting the "for cause" language as applying only to the
Superintendent's termination authority is consistent with the
disclaimer that the policy was not meant to transform the status
of at-will employees. The disclaimer affirms the Board's intent
that Policy GCK does not alter its legal relationship with
classified at-will employees. Therefore, despite the apparent
contradiction between the "good cause" language and the
disclaimer, the two are reconcilable. The "good cause" language
applies only to the Superintendent, while the disclaimer
demonstrates that the "good cause" language was not meant to
affect the relationship between the Board (the employer) and
classified at-will employees. Therefore, Defendants' motion for
summary judgment on Plaintiff's procedural due process claim is
GRANTED.
3. 42 U.S.C. § 1983 Denial of Substantive Due Process
Plaintiff also asserts that Defendants terminated his
employment in violation of his substantive due process rights.
However, the protection of substantive due process does not apply
in the employment law context. Instead, the substantive due
process protections of the United States Constitution extend only
to certain fundamental rights so "implicit in the concept of
ordered liberty" that "no amount of process can justify [their]
infringement." Gibson v. City of Gadsden, 377 Fed. Appx. 953, 956
(11th Cir. 2010) (quoting McKinney, F.3d at 1556-57); White v.
Hall, 389 Fed. Appx. 956, 959 (11th Cir. 2010) .
"Because
employment rights are state-created rights and are not
41
'fundamental' rights created by the Constitution, they do not
enjoy substantive due process protection." Gibson, 377 Fed. Appx.
at 956. Thus, Defendants' motion for summary judgment on
13
Plaintiff's substantive due process claim is GRANTED.
IV. CONCLUSION
Upon the foregoing, Defendants' Motion for Summary Judgment
(Doc. no. 21) is GRANTED. The Clerk is directed to ENTER
JUDGMENT in favor of Defendants and CLOSE this case.
ORDER ENTERED at Augusta, Georgia this
day of March,
2012.
HO
LE J. RANDAL HALL
UNITEJ STATES DISTRICT JUDGE
RN DISTRICT OF GEORGIA
13
appears from the parties' briefs that Plaintiff also claims that the
denial of a hearing amounted to a violation of his Equal Protection rights.
Because Plaintiff failed to present any evidence of similarly situated non-union
employees who received a hearing, Plaintiff's claim must necessarily fail.
42
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