Opinion
Case No. 01-4700-CIV-MOORE
March 19, 2002
David J. Joffe. Esq., Charles G. White, Esq., Counsel for Plaintiffs
Lee Kraftchick, Assistant County Attorney
ORDER
THIS CAUSE came before the Court upon Defendant's Motion to Dismiss (filed December 5, 2001).
UPON CONSIDERATION of the motion and the memoranda filed in support and opposition, the Court enters the following Order GRANTING the motion and CLOSING the case.
A. Background Facts
Plaintiffs filed the instant action against Miami-Dade County on November 15, 2001, and simultaneously moved for a preliminary injunction. Plaintiffs are employees of the Miami-Dade County Department of Corrections. Their duties include courtroom security and guard duty at the various correctional facilities in Miami-Dade County. In the past. Plaintiffs have simultaneously worked for the United States Marshal's Service, which hired them on an as-needed basis to perform courtroom security functions at the United States Courthouse in Miami. Some of the plaintiffs have worked for the Marshals Service for as long as twenty years.
In September 2000, the Marshal's Service altered the applications it would give to Plaintiffs. Specifically, the new application required Plaintiffs to apply formally to the Miami-Dade Department of Corrections for permission to obtain "outside employment" with the Marshal's Service. The Department of Corrections then formally approved the reqiests, and Plaintiffs continued to work with the Marshal's Service.
However, in March 2001, the Department of Corrections reclassified Plaintiffs' employment with the Marshal's Service from "outside employment" to "off-duty employment." Plaintiffs' employment with the Department of Corrections is governed by a collective bargaining agreement. which was negotiated by Plaintiffs' union, Police Benevolent Association ("PBA"). on their behalf. This agreement incorporates a County ordinance that distinguishes between "outside employment" and "off-duty employment." Specifically. under County Code Section 2-56.1 et seq., "outside employment" is largely unregulated. except that certain positions are prohibited. For example, `outside employment' as a collector, private investigator, bonds person, and repossessor is prohibited as "outside employment." Therefore, as long as Plaintiffs' employment with the Marshal's Service was classified as "outside employment," it was largely unrestricted.
See Collective Bargaining Agreement, Art. 27. This collective bargaining agreement was attached to Defendant's Motion to Dismiss, not to Plaintiff's Complaint. However, because Plaintiffs reference the agreement in their Complaint, and because it is central to their claims, this Court may consider the agreement without converting the motion to dismiss to a motion for summary judgment. See Brooks v. Blue Cross Blue Shield of Florida, Inc., 116 F.3d 1364, 1368-69 (11th Cir. 1997).
In contrast, "off-duty employment" is tightly regulated. Any person or entity seeking Plaintiffs' services as "off-duty employment" must acquire a permit from the appropriate department — in this case, the Department of Corrections. Compensation for "off-duty employment" is paid by Miami-Dade County, and the permitee then reimburses Miami-Dade County. plus a 35% surcharge to cover the County's other expenses, such as worker's compensation and disability leave benefits. Plaintiffs' collective bargaining agreement expressly prohibits Plaintiffs from receiving compensation from any person other than Miami-Dade County for the performance of any "off-regular-duty" services. See Collective Bargaining Agreement, Art. 27.
Therefore, when Plaintiffs' employment was reclassified as "off-duty employment" in March 2001, Plaintiffs were prohibited from working for the Marshal's Service unless the Marshal's Service acquired the necessary permit from the Department of Corrections. Moreover, when the Marshal's Service needed services, it would have to put in a request with the Department of Corrections, which would then decide which officers to send. The Department of Corrections and Marshal's Service have been unable to agree on a permit, and therefore. Plaintiffs have been unable to work for the Marshal's Service since the reclassification.
Plaintiffs have brought a number of federal constitutional claims and state law claims against Miami-Dade County based on the Department of Correction's reclassification of their employment with the Marshal's Service from "outside employment" to "off-duty employment." Specifically, in their constitutional claims, Plaintiffs allege that the reclassification violated their right to due process (Count I), constituted a taking without just compensation in contravention of the Fifth Amendment (Count II), violated their constitutional right to equal protection (Count IV), and constituted state impairment of contract (Count V). In the state claims, Plaintiffs allege that the reclassification constituted tortious interference with a contractual relationship (Count III) and violated the Department's own internal rules and regulations (Count VI). Defendant Miami-Dade County has moved to dismiss each claim.
B. Motion to Dismiss Standard
A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. See Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984). On a motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff and accept the factual allegations as true. See SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir. 1988), cert. denied sub nom. Peat Marwick Main Co. v. Tew, 486 U.S. 1055 (1988). Consideration of matters beyond the complaint is improper in the context of a motion to dismiss. See Milburn, 734 F.2d at 765 (11th Cir. 1984).
A court should not grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conely v. Gibson, 355 U.S. 41, 45-46 (1957) (citations omitted); see South Florida Water Management Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996). Nonetheless, to withstand a motion to dismiss, it is axiomatic that the complaint must allege facts sufficiently setting forth the essential elements of a cause of action.
C. Plaintiffs' Due Process and Taking Claims (Counts I and II)
Plaintiffs first contend that Miami-Dade County's reclassification of their employment with the Marshal's Service from "outside employment" to "off-duty employment" violated their due process rights (Count I) and constituted a taking without just compensation in violation of the Fifth Amendment (Count II). Plaintiffs do not specify whether the due process rights violated were their procedural or substantive due process rights. Regardless. both the due process claim and takings claim must be dismissed, because Plaintiffs lack any property interest in their continued employment with the Marshal's Service.
In addition, to the extent that Plaintiffs' due process claim is based on a right to procedural due process, Plaintiffs have not properly alleged that they lack an adequate remedy under state law. Therefore, any procedural due process claim must be dismissed on this ground as well. See Lujan v. C G Fire Sprinklers, Inc., 532 U.S. 189, 196 (2001).
It is clearly established that courts analyzing due process claims must first look to state law to determine whether a property interest has been created. See Morley's Auto Body, Inc,. v. Hunter, 70 F.3d 1209, 1213 (11th Cir. 1996). The Supreme Court has explained: "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Furthermore, many courts have considered the specific issue in this case — whether public employees, such as Plaintiffs, have a property interest in outside employment — and have concluded that they do not. See, e.g., McEvoy v. Spencer, 49 F. Supp.2d 224, 227 (S.D.N.Y. 1999) (holding that "plaintiff does not have any interest of constitutional dimension in being a private investigator in his off-duty hours" and therefore dismissing the plaintiff's due process claim); see also Decker v. City of Hampton, Va., 741 F. Supp. 1223 (E.D.Va. 1990); Ammon v. City of Coatesville, 1987 WL 15032, *4 (E.D.Pa.). aff'd 838 F.2d 1205 (3d Cir. 1988) ("It appears that the majority of courts considering the validity of regulations which in someway restrict the outside employment of government employees have upheld the regulations."); Ft. Wayne Patrolmen's Ben. Assoc. v. City of Ft. Wayne, 625 F. Supp. 722 (N.D.Ind. 1986). The Court agrees with the reasoning in these cases, and concludes that a public employee, under these circumstances, has no property interest in off-duty or outside employment.
Plaintiffs concede that a number of courts have held that there is no constitutionally-protected property interest in outside employment, but purport to distinguish these cases on two grounds. First, Plaintiffs contend that they have a property interest in their employment with the Marshal's Service, because such employment was previously permitted as "outside employment" for as long as twenty years. Second, Plaintiffs assert that they have a property interest in their employment with the Marshal's Service by virtue of their employment contracts with the Marshal's Service. However, neither distinction is legally significant.
The fact that Plaintiffs had previously been permitted to work for the Marshal's Service as "outside employment" is legally immaterial. Indeed. in two of the cases cited by Defendant. the plaintiffs had worked in the outside employment positions before that employment was prohibited by the public employer, yet the courts nevertheless held that the plaintiffs' due process rights were not violated by the prohibition. See Ammon, 1987 WL 15032, *4; see also Ft. Wayne Patrolmen's, 625 F. Supp. at 730. If a public employer may prohibit outside employment without infringing on constitutional protections. the employer may certainly also change a past practice of approving outside employment without running afoul of constitutional protections.
This analysis is not altered by the fact that Plaintiffs were parties to employment contracts with the Marshal's Service at the time the reclassification occurred. Notably. the "contract" provides that Plaintiffs "serve at the discretion of the Chief Marshal." and that their service is "ON AN ON-CALL/AS-NEEDED BASIS." It is well-established that a contract of employment that is subject to termination at the discretion of the employer does not create a property interest. See, e.g., Warren v. Crawford, 927 F.2d 559, 562 (11th Cir. 1991) ("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."): see also Ft. Wayne Patrolmen's, 625 F. Supp. at 732 (holding that, where outside employment jobs were "at will" and officers had "no legitimate claim to continued employment" it was "difficult to see how the outside jobs can be a property right"). Because Plaintiffs' "contract" with the Marshal's Service does not give Plaintiffs an entitlement to ongoing employment, the "contract" does not create a property interest in the employment.
See "Statement of Work for Individual Guard Services." This "contract" was attached to Plaintiff's Motion for Temporary Injunction as Exhibit B, and not to the Complaint. However, because Plaintiffs reference the contract in their Complaint, and because it is central to their claims, this Court may consider the contract without converting the motion to dismiss to a motion for summary judgment. See Brooks, 116 F.3d at 1368-69.
Finally, it is also important to note that, by changing the classification to "off-duty employment" from "outside employment," the Department of Corrections has not prohibited Plaintiffs from working at the Marshals' Service. By changing the classification, the Department has simply altered the regulation of that work. Even though this reclassification may preclude Plaintiffs from working for the Marshal's Service as "off-duty employment" if the Marshal's Service does not obtain a permit, Plaintiffs are still not absolutely prohibited from employment with the Marshal's Service. Rather, Plaintiffs would simply have to choose between working for the Department of Corrections and working for the Marshal's Service. Forcing Plaintiffs to make such a choice simply does not deprive them of a constitutionally-protected property interest.
For the foregoing reasons, the Department of Corrections' reclassification of Plaintiffs' employment with the Marshal's Service does not violate Plaintiffs' substantive or procedural clue proccss rights, or cause a taking without just compensation. Therefore, Counts I and II, which raise these claims, must be dismissed. Because it does not appear from Plaintiffs' Complaint or from their response to the Motion to Dismiss that they could state a due process or takings claim even if they amended the Complaint, the dismissal of Counts I and II will be with prejudice.
D. Plaintiffs' Equal Protection Claims
Plaintiffs also contend that the Department's reclassification violates their constitutional right to equal protection of the laws. Specifically. Plaintiffs allege that, in contravention of the collective bargaining agreement, other employees of the Department of Corrections have been permitted to provide "off-regular-duty" services, and have been remunerated by the outside employer rather than by the County. This practice. Plaintiffs contend, constitutes "selective enforcement" of the collective bargaining agreement.
This claim must be dismissed because Plaintiffs have failed to allege. in either their Complaint or their response to the Motion to Dismiss, specific employees that have been treated differently or, more importantly, that this selective enforcement was inspired by improper motives on the part of the Department of Corrections. As argued by Defendants in their Motion to Dismiss, these are necessary elements of an equal protection claim. Specifically, in the employment context, a plaintiff claiming an equal protection violation must allege (1) that other "similarly situated" employees have been treated differently, and (2) that the government's different treatment of the plaintiff is "invidious." or in "bad faith that is, based on constitutionally impermissible considerations, such as race or religion." United States v. Lichenstein, 610 F.2d 1272, 1281 (5th Cir. 1980) (setting forth elements of selective prosecution defense), cited by Bass v. City of Albany, 968 F.2d 1067, 1070 (11th Cir. 1992) ("As with selective prosecution in criminal cases. Bass' termination would violate the equal protection clause of the Fourteenth Amendment if it were based on improper motives.").
In their response, Plaintiffs contend that the equal protection claim should not be dismissed, because they will produce a witness who will testify that, while working for the Department of Corrections, he also worked for outside law enforcement agencies, and that those agencies paid him directly. Plaintiffs contend that this evidence will demonstrate selective enforcement of the collective bargaining agreement, and consequently, establish a violation of their equal protection rights. However, even accepting this as true, this allegation is not sufficient to state an equal protection claim. Notably missing from the Complaint and from Plaintiff's response to the Motion to Dismiss are any allegations that the Department of Corrections knew about this employee's "off-duty employment," or treated him differently as a result of "improper motives." Bass, 968 F.2d at 1070; Lichenstein, 610 F.2d at 1281 ("Though selective prosecution, if based on improper motives, can violate constitutional guarantees of equal protection, selective enforcement in and of itself is not a constitutional violation."); see also Black v. City of Auburn, Ala., 857 F. Supp. 1540, 1548 (M.D.Ala. 1994) (holding that Equal Protection Clause is not violated unless the selective treatment was "based on improper motives, such as bad faith, race, religion, or the exercise of constitutional rights.")
For the foregoing reasons, Plaintiffs' equal protection claim (Count IV) must be dismissed. Because it does not appear from the Complaint or from Plaintiffs' response to the Motion to Dismiss that Plaintiffs would be able to allege facts sufficient to state an equal protection claim even if they amended the Complaint, this dismissal will be with prejudice.
E. Plaintiffs' Claim for State Impairment of Contract
Plaintiffs' final constitutional claim is for state impairment of contract (Count V). Specifically. Plaintiffs allege that, when the Department of Corrections reclassified their employment as "off-duty employment," the Department substantially impaired the contract that existed between Plaintiffs and the Marshal's Service. Therefore, Plaintiffs contend that the reclassification violated the constitutional prohibition on state laws "impairing the Obligation of Contracts." Const., Art. 1 § 10.
This "state impairment" claim is flawed for a number of reasons. Perhaps the most obvious is that the reclassification did not impair any contractual "obligations," as that term has been defined by the Supreme Court. The Supreme Court has held that "the obligation of contract within the meaning of the Constitution is a valid subsisting obligation, not a contingent or speculative one." Ochiltree v. The Railroad Co., 88 U.S. 249, 252 (1874). Another court aptly noted that a "statute cannot unconstitutionally impair an obligation that did not exist at the time of its enactment." Moser v. Aminoil, U.S.A., Inc., 618 F. Supp. 744, 778 (W.D.La. 1985). That court rejected the state impairment claim after finding that the "agreement does not bind either party to perform any services." Id.
In the instant case. the Marshal's Service had no ongoing "obligation" to employ Plaintiffs. As already discussed. Plaintiffs served at the discretion of the Chief Marshal. and were employed only on an "as-needed" basis. If the Marshal's Service stopped asking Plaintiffs' to provide services, Plaintiffs would have no breach of contract action against the Marshal's Service, for they no enforceable right to employment at the Marshal's Service. Because the Marshal's Service had no ongoing contractual obligation to employ Plaintiffs, any state prohibition on such employment would not constitute a state impairment of contractual obligation within the meaning of the constitution. See, e.g., Ft. Wayne Patrolmen's, 625 F. Supp. at 730.
For the foregoing reasons, Plaintiffs' state impairment of contract claim must be dismissed. Because it appears from the Complaint and Plaintiffs' response to the Motion to Dismiss that Plaintiffs would be unable to state a claim for state impairment of contract, even if permitted to amend their Complaint, this dismissal will be with prejudice.
F. State Law Claims
The remaining claims for tortious interference with contractual relations (Count III) and violation of the Department's own internal rules and regulations (Count VI) are state law claims. Because Plaintiffs' federal claims have all been dismissed, this Court will not exercise pendent jurisdiction over the remaining state law claims. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well."). Therefore, these state law claims should be dismissed for lack of jurisdiction.
Notably, Plaintiffs have not identified these claims as any thing other than state law claims, and have not objected to Defendant's characterization of these claims as state law claims. However, even if these claims were subject to federal question jurisdiction due to preemption by federal labor laws, these claims would have to be dismissed. Because Plaintiffs admit that they have not exhausted the mandatory grievance procedure in their collective bargaining agreement. Plaintiffs are precluded from bringing any contract-related claim against their employer unless they also demonstrate that their union breached its duty of their representation, and thereby prejudiced them in the grievance process. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151 162-63 (1983). Plaintiffs, however, have not brought any such claim against their union. Therefore, these claims against the employer would have to be dismissed even if the claims presented a federal question.
F. Conclusion
Accordingly, for the foregoing reasons, it is
ORDERED AND ADJUDGED that Defendant's Motion to Dismiss is GRANTED. This action is DISMISSED with prejudice.
The Clerk of the Court is directed to mark this case CLOSED. Any pending motions not otherwise ruled upon are DENIED as moot.