Opinion
8:00CV94
January 2001
MEMORANDUM ORDER AND JUDGMENT
Before me are 1) the motion for summary judgment of defendants Anderson, Huffman, and Storm on the basis of absolute and qualified immunity (Filing No. 22); and 2) the motion for summary judgment filed by the defendants Village of Decatur ("Village"), Lance Andersen, Sharon Huffman and Howard Storm (Filing No. 23). In their motions, the defendants seek summary judgment on all counts of the plaintiffs' complaint. The parties have submitted briefs and indexes of evidence for my consideration in compliance with NELR 7.1(a) and (b). I have reviewed the record, the parties' briefs, the indexes of evidence, and the applicable law, and after oral argument, I conclude that the defendants' motions for summary judgment are granted in part and denied in part.
BACKGROUND
On February 11, 1999, the Board of Trustees of the Village of Decatur ("Board") declined to reappoint plaintiff Peggy Davis ("Davis") as Village Clerk and plaintiff Pamela Nelsen ("Nelsen") as Deputy Village Clerk. Davis was first appointed to the position of Village Clerk on May 22, 1978, and Nelsen's employment as Deputy Village Clerk started on January 1, 1979. The plaintiffs were in their respective positions continually until the Board declined to reappoint them on February 11, 1999. Their duties included the management and supervision of the office of Village Clerk for the Village of Decatur.
The defendant Village of Decatur is a political subdivision. The plaintiffs also sued defendants Lance Anderson, Sharon Huffman, and Howard Storm in their individual capacities as members of the Board during the events giving rise to this action.
In December of 1989, the Board adopted a Personnel Policies and Procedures Manual ("Manual"). This Manual set forth provisions relating to discipline for certain conduct. The Manual also included a procedure for employees to follow if they were dissatisfied with any action by the Village. The Board rescinded the Manual on January 26, 1999, by a unanimous vote.
The Board appointed plaintiffs to their respective positions annually by a formal resolution. The first formal appointment of the plaintiffs occurred in December 1995, but the procedure for appointment was inconsistent over the last five years until the Board declined to reappoint plaintiffs in February 1999. Generally, the procedure entailed the adoption of a motion listing all the annual appointments. This list always included the Village Clerk and the Deputy Village Clerk. In accordance with the procedures set forth in the Manual, plaintiffs filed a request for a hearing after the Board declined to reappoint them. The Board denied their request.
Defendants filed two separate motions in this case. The first motion by defendants Anderson, Huffman, and Storm filed in their individual capacities asserts that they are entitled to absolute immunity and qualified immunity from the claims against them. The second is a motion for summary judgment in which the defendants argue that no genuine issue of material fact exists and that the plaintiffs had no reasonable expectation of continued employment and therefore no property right subject to due process protection. The plaintiffs' position is that they did in fact have an expectation of continued employment protected under the Fourteenth Amendment and that the defendants' actions are not privileged. The parties agree that the plaintiffs were not reappointed and that they were not given a pre- or post-termination hearing.
SUMMARY JUDGMENT STANDARD
Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Harder v. Acands, 179 F.3d 609, 612 (8th Cir. 1999). "In making this determination, the function of the court is not to weigh evidence and make credibility determinations, or to attempt to determine the truth of the matter, but is, rather, solely, to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see Hedges v. Poletis, 177 F.3d 1071, 1074 (8th Cir. 1999). The court must "look to the substantive law to determine whether an element is essential to a case, and `[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Dulany v. Carhahan, 132 F.3d 1234, 1237 (8th Cir. 1998) (quoting Anderson, 477 U.S. at 248). One of the principal purposes of the summary judgment rule is the isolation and disposition of factually unsupported claims or defenses; hence, summary judgment is available for that purpose. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion. See Tenbarge v. Ames Taping Tool Systems, Inc., 128 F.3d 656, 657 (8th Cir. 1997); see also, Celotex, 477 U.S. at 325 (the movant must show "that there is an absence of evidence to support the nonmoving party's case"). Accordingly, a party moving for summary judgment must "set forth in the brief in support of the motion for summary judgment a separate statement of each material fact as to which the moving party contends there is no genuine issue. . . ." NELR 56.1(a).
In the face of a properly supported motion, "[t]he burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial." Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 1997) (quoting Fed.R.Civ.P. 56(e)). A nonmoving party may not rest upon the mere allegations or denials of its pleadings, but rather, must set forth specific facts, supported by affidavits or other proper evidence, showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Liberty Mut. Ins. Co. v. FAG Bearings Corp., 153 F.3d 919, 922 (8th Cir. 1998). In this respect, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts; [it] must show there is sufficient evidence to support a jury verdict in [its] favor." Chism v. W.R. Grace Co., 158 F.3d 988, 990 (8th Cir. 1998). Accordingly, the nonmoving party must "set forth in its opposing brief a separate statement of each material fact as to which it is contended there exists a genuine issue to be tried and as to each shall identify the specific document or discovery response or deposition testimony (by page and line) which it is claimed establishes the issue." NELR 56.1(b).
DISCUSSION IMMUNITY Absolute Immunity
An act is protected by absolute immunity if it constitutes a legitimate legislative activity. See Bogan v. Scott-Harris, 140 L.Ed.2d 79, 88-89 (1998). In Bogan, the United States Supreme Court determined that actions of a city's mayor and city council vice president in enacting an ordinance which eliminated the city administrator's position was protected by absolute immunity. Id. The intent and motives of the legislators were held to be irrelevant. Id.
An act is legislative if the legislative body was engaged in the process of adopting prospective, legislative type rules. See Kamplain v. Curry County Board of Commissioners, 159 F.3d 1248 (10th Cir. 1998). Immunity is lost if an official adopts a means beyond his or her authority to violate constitutional rights. See Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980). The critical inquiry is to determine "what capacity the defendants were acting in at the time of the allegedly unconstitutional or unlawful conduct." Brown v. Griesenauer, 970 F.2d 431, 436 (8th Cir. 1992). Legislative activity "looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power." Id. at 437.
The defendants argue that the act of rescinding the Manual was a legitimate legislative activity. The plaintiffs' response focuses on the Board members' actions in declining to reappoint them to their respective positions. More specifically, the plaintiffs argue that the Board went beyond their legislative authority when they rescinded the Manual and refused to reappoint them to their respective positions because their actions violated their constitutional rights.
I find that the defendants' rescission of the Manual was a legitimate legislative act. Rescinding policies and procedures for supervisors and employees qualifies as activity adopting prospective legislation. See Kamplain, 159 F.3d at 1248. Moreover, defendants acted in their capacities as legislators. They took action on the Manual during a scheduled Board meeting with a quorum of members present. Accordingly, the defendants Lance Anderson, Sharon Huffman and Howard Storm are granted absolute immunity for the individual vote each took to rescind the Manual.
Qualified Immunity
I will not make any findings concerning qualified immunity. The defendants are protected by the doctrine of absolute immunity rendering the issue of qualified immunity moot.
II. PROTECTABLE PROPERTY INTEREST IN CONTINUED EMPLOYMENT CLAIM AGAINST THE VILLAGE OF DECATUR AS A POLITICAL SUBDIVISION
Establishing the deprivation of due process first requires the establishment of a protectable property interest. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538 (1985). Unilateral expectations in continued employment do "not create an entitlement that the due process clause protects." Nebraska Public Employees Local Union 251 v. Otoe County, 595 N.W.2d 237, 249 (Neb. 1999). In Nebraska, "when employment is not for a definite term, and there are no contractual or statutory restrictions upon the right of discharge, an employer may lawfully discharge an employee whenever and for whatever cause it chooses without incurring liability." Id. ( citing Blair v. Physicians Mut. Ins., 496 N.W.2d 483, 486 (Neb. 1993)). In Cleveland the court stated that "property interests are . . . created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Cleveland, 470 U.S. at 538.
Nebraska Law
State law authorizes villages to appoint certain positions. See Neb. Rev. Stat. § 17-208 (Reissue 1999). Section 17-208 reads in part as follows:
Appointive officers; board of health; members; duties.
The village board of trustees may appoint a village clerk, treasurer, attorney, overseer of the streets, and marshal. . . . It shall also appoint a board of health consisting of three members: The chairmen of the village board, who shall be chairman, the marshal, who shall be secretary and quarantine officer, and one other member. The third member shall be a physician when a physician is residing permanently in the village, or such other person as the village board may select. . . . The appointees shall hold office for one year, unless sooner removed by the president of the board, with the advice and consent of the trustees.
Neb. Rev. Stat. § 17-208 (Reissue 1999). The relevant Decatur Municipal Code provides:
The Village Board of Trustees may appoint a village clerk, village treasurer, village attorney, village police officer, village fire chief, water and sewer commissioner, street commissioner, electric superintendent and a building inspector. It shall also appoint whatever other officials of the Village which it deems necessary, which officers shall serve at the pleasure of the Village Board.
Decatur Municipal Ord. § 1-201 (this section of the Code changed in part in January 1999). Under Nebraska law appointments made in accordance with Section 17-208 automatically terminate within one year unless the individual is removed prior to the one-year term. See Suverkrubbe v. Village of Fort Calhoun et al., 256 N.W. 47, 48-49 (Neb. 1934).
The defendants argue that the plaintiffs did not have a protectable property interest in continued employment beyond the one-year term of the appointments. The defendants contend that the language of both the statute and the ordinance establish that the appointment of Village Clerk, plaintiff Davis, was for a term of one year. Further, the defendants argue that plaintiff Nelsen was an at-will employee up until 1995, when she became an employee for a term of one year, subject to reappointment.
The plaintiffs respond that they were not hired on a one-year basis because the Board had no reappointment procedure for the first seventeen years of Davis's term and sixteen years of Nelsen's term. Specifically, the plaintiffs argue that because the Board members were not aware of the statutory terms governing the appointment process, the members are now precluded from relying on it to justify their actions.
The term of employment for Village Clerk Davis was for one year. See Neb. Rev. Stat. § 17-208 (Reissue 1999). The fact that the Board did not conduct annual appointment hearings prior to 1995 is irrelevant. The statute establishes the term of the appointment. The statute's intent is not nullified by the Board's failure to follow its requirements. Moreover, the formal appointment of Davis to her respective position beginning in January of 1995 is evidence that her term expired, automatically, at the end of each annual term. See Suverkrubbe, 127 N.W.2d at 48-49.
Furthermore, I find that Nelsen's employment was not for a statutory term of one year. Section 17-208 does not specify the term for deputy positions and therefore does not apply to her position as Deputy Village Clerk. Finally, the inclusion of her name on the appointments list does not in itself make her position subject to annual appointment. Therefore, Nelsen continued to be an at-will employee after the Board included her position on the annual appointment list.
Personnel Manual
Language in employee manuals can alter an at-will employee's status. See Hamersky v. Nicholson Supply Co., 517 N.W.2d 382 (Neb. 1994). According to Nebraska law, if an employee handbook contains an offer, definite in form, it can alter an at-will employee's status. See Stratton v. Chevrolet Motor Division, General Motors Corporation, 428 N.W.2d 910 (Neb. 1988) (citing Johnston v. Panhandle Coop. Assoc., 408 N.W.2d 261 (Neb. 1987) ( "[T]he language of an employee handbook must constitute an offer definite in form which is communicated to the employee, and which offer is accepted and consideration furnished for its enforceability." Id.)) Further, an employee manual that mandates a right to a hearing when misconduct occurs, coupled with other restrictions, can create a discharge-for-cause relationship. See Ashby v. Civil Service Com'n, 492 N.W.2d 849 (Neb. 1992); Hopkins v. Saunders, 199 F.3d 968 (8th Cir. 2000); Pace v. Moriarty, 83 F.3d 261 (8th Cir. 1996).
To determine whether a manual rises to the level of an enforceable property interest, courts focus on the definiteness of the language in the manual. See, Johnston, 408 N.W.2d at 265; Blankenbaker v. McCook Public Power District, 940 F.2d 384 (8th Cir. 1991). Whether an enforceable property interest does in fact exist consistently depends on the presence of a "discharge-for-cause" relationship between the employer and employee. See Blankenbaker, 940 F.2d at 387 (citations omitted). The establishment of a "discharge-for-cause" relationship can require more than the presence of the phrase within the manual. See Johnston, 408 N.W.2d at 261. Additional factors such as the frequency of the phrase throughout the manual, the right to a pre- or post-hearing and the presence of explanatory language of the "discharge-for-cause" terms can establish a "discharge-for-cause" relationship. See Id. at 386.
Finally, according to the Eighth Circuit, a procedural right such as a grievance hearing in itself "cannot create an independent substantive property right to continued employment when none otherwise existed." Buzek v. County of Saunders, 972 F.2d 992 (8th Cir. 1992). There, the court noted that the employee was at-will and that the procedural grievance hearing coupled with other factors may be evidence of a "discharge-for-cause" relationship. See id.; see also Pace v. Moriarty, 83 F.2d 261, 263 (8th Cir. 1996) (statutory right to receive review procedures does not itself create property interest); Stow v. Cochran, 819 F.2d 864 (8th Cir. 1987).
Defendants argue that as a matter of law the substantive restrictions and the grievance procedure are not enough to create a "discharge-for-cause" relationship. Plaintiffs respond that the Manual did in fact create a protectable property interest in continued employment. Plaintiffs argue that the grievance procedure, coupled with the list of reasons for disciplinary action, created a "discharge-for-cause" employment relationship.
I find that the Manual did not create a protectable property interest in continued employment for Davis. The Manual states in the section on "Applicability" that "the personnel policies and procedures shall apply to all employees except . . . appointed members. . . ." (Filing No. 25, Ex. C, Manual at 3). Therefore, as a matter of law the Manual excluded Davis.
As to plaintiff Nelsen, the Manual arguably created a protectable property interest in continued employment. A "discharge-for-cause" relationship existed between the Village and Nelsen. The Manual provides under the section "Probationary Period" that the employee is allowed an appeal if his or her term of probation, ninety (90) days, is over. (Filing No. 25, Ex. C, Manual at 5). The Manual, further, includes the phrase "employees terminated for cause" under the "Compensation" section. (Filing No. 25, Ex. C, Manual at 6). Furthermore, the list of actions that can lead to disciplinary action may not be exhaustive, but it is further defined under the section titled "Discipline and Employee Conduct." (Filing No. 25, Ex. C, Manual at 11). Under this section the Manual provides "dismissal is appropriate for serious infractions and for repeated violations of personnel policies. Serious infractions include, but are not limited to. . . ." This language establishes a "discharge-for-cause" relationship between the Village and Nelsen. Finally, even though a procedural hearing such as a grievance hearing cannot in and of itself create an entitlement to employment, it does support a finding of a "discharge-for-cause" relationship. See Blankenbaker, 940 F.2d at 386.
Accordingly, as a matter of law, the Manual did not establish a protectable property interest in continued employment for plaintiff Peggy Davis. Absent a protectable property interest, the Village did not violate Davis's due process rights when the Board declined to reappoint her to the position of Village Clerk. As to plaintiff Pamela Nelsen, I find that the defendant Village's motion for summary judgment is without merit because the Manual probably established a protectable property interest in continued employment. Whether the Manual established a protectable property interest as a matter of law is not properly before me and I accordingly decline to make such a finding.
The only remaining parties to this action are plaintiff Pamela Nelsen and the Village of Decatur. Further, the remaining issues to be determined are whether the plaintiff had a protectable property interest, the extent of any alleged due process violation, and damages.
THEREFORE, IT IS ORDERED:
1. The motion for summary judgment of defendants Andersen, Huffman, and Storm on the basis of absolute immunity (Filing No. 22) is granted;
2. Defendants Village, Andersen, Huffman and Storm's motion for summary judgment (Filing No. 23) is granted as to plaintiff Davis and denied as to plaintiff Nelsen; and
3. Judgment is entered against plaintiff Peggy Davis in favor of the defendant Village of Decatur.