Kizer v. SHELBY COUNTY GOVERNMENT

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0222p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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EDWARD KIZER; JOHN RYAN, III; DON

Plaintiffs-Appellants, --

HOWELL,

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No. 10-5161

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v.

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SHELBY COUNTY GOVERNMENT; SHELBY

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COUNTY CIVIL SERVICE MERIT BOARD; OTIS

JACKSON, Individually and in his official -

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Defendants-Appellees. -

capacity; JOE FORD, in his official capacity,

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Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 08-02570—Samuel H. Mays, Jr., District Judge.

Argued: June 3, 2011

Decided and Filed: August 17, 2011

Before: BOGGS and SILER, Circuit Judges; VAN TATENHOVE, District Judge.*

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COUNSEL

ARGUED: Alan G. Crone, CRONE & McEVOY, PLC, Memphis, Tennessee, for

Appellants. Charles W. Cavagnaro, Jr., EVANS PETREE, PC, Memphis, Tennessee,

Louis P. Britt III, FORD & HARRISON LLP, Memphis, Tennessee, for Appellees.

ON BRIEF: Alan G. Crone, CRONE & McEVOY, PLC, Memphis, Tennessee, for

Appellants. Charles W. Cavagnaro, Jr., EVANS PETREE, PC, Memphis, Tennessee,

Louis P. Britt III, Marcy N. Ingram, FORD & HARRISON LLP, Memphis, Tennessee,

for Appellees.

*

The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District

of Kentucky, sitting by designation.

1

No. 10-5161 Kizer, et al. v. Shelby County Gov’t, et al. Page 2

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OPINION

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VAN TATENHOVE, District Judge. Following their termination from appointed

positions within the Shelby County Clerk’s Office, Edward A. Kizer, John J. Ryan, III,

and Don Howell brought suit under 42 U.S.C. § 1983. They allege that they were

terminated without due process of law, in violation of the Fourteenth Amendment. The

district court granted summary judgment in favor of the County and its officials,

concluding that Kizer, Ryan, and Howell received constitutionally adequate process

prior to their termination. On appeal, the three former employees challenge that

conclusion. We agree that the County and its officials were entitled to summary

judgment, but so hold because the Appellants had no legitimate property right to their

positions and therefore nothing for the Due Process Clause to protect.

I.

In 1971, the Tennessee General Assembly enacted Chapter 110 of the Tennessee

Private Acts (the “Act”), establishing the Tennessee Civil Service Merit System for

employees of Shelby County, Tennessee.1 The Act established Defendant Shelby

County Civil Service Merit Board (the “Board”) as the body charged with determining

how each available county job should be classified under the Merit System. If the Board

determines that a position is “classified,” the Act requires that civil service protections

apply to that position. Shelby County must fill classified positions through open,

competitive evaluations after advertising the job openings for thirty days. Classified

employees are not terminable at will.

Not all positions within Shelby County Government qualify for protection under

the Act. The Board has determined that some positions are “unclassified.” Unclassified

positions are commonly known as appointed positions. Shelby County’s forty-three

1

We have adopted, in large measure, the district court’s thorough recitation of the undisputed

facts in this case.

No. 10-5161 Kizer, et al. v. Shelby County Gov’t, et al. Page 3

elected officials appoint people they choose to fill the unclassified positions.

Unclassified positions do not require prior public notice or examination before the

appointing officials may fill them. Because unclassified positions do not come within

the Act’s civil service protections, the employees in those positions are terminable at

will. Shelby County employees commonly refer to the termination of an unclassified

employee as “disappointment.” If a disappointed employee held a classified position

before his or her appointment to an unclassified post, the employee may exercise “bump-

back” rights to return to the protected civil service position following the

disappointment.

Former Shelby County General Sessions Court Clerk Chris Turner appointed

Edward Kizer Administrator of the Clerk’s Office on February 1, 2003. The Board

categorized Kizer’s position as unclassified, and Kizer did not obtain his position as

Administrator through the merit selection process. Kizer’s job responsibilities included

supervising forty-five employees; reviewing reports, including financial reports; and

resolving any problems with the Clerk’s Office that judges, lawyers, or citizens might

have. Kizer was also responsible for the day-to-day operations of the Clerk’s Office and

held weekly meetings with lower-level managers to ensure that staff productivity met

Turner’s stated goals.

John J. Ryan, III began working for the Clerk’s Office nearly thirty years ago.

Although Ryan was initially a classified employee protected by the Act, in 1987 Ryan

accepted an appointment to an unclassified position, “Manager B.” Ryan worked as

Manager B for approximately twenty-one years because successive Clerks reappointed

him. Manager B’s primary responsibility was to run the 24-hour division of the criminal

section of the Clerk’s Office. Ryan supervised three shifts of eight workers each and

was on call twenty-four hours a day to address any issues that a supervisor could not

handle. Under Turner, Ryan also managed the Clerk’s Office collections department.

In Ryan’s words, his job was to “put out fires” that might arise from disputes involving

bail-bonding companies or judges.

No. 10-5161 Kizer, et al. v. Shelby County Gov’t, et al. Page 4

Don Howell joined the General Sessions Clerk’s Office when Turner appointed

him to serve as “Manager A” in September 1996. As with Kizer’s and Ryan’s positions,

the Board categorized Manager A as an unclassified job. Howell replaced the prior

Manager A, Camille Hubbard, whom Turner terminated after his election as Clerk.

Turner had Howell examine the Clerk’s Office fee structure and make recommendations

about how the office could become self-sustaining. Howell also made budgetary

recommendations and worked with a state committee in Nashville to revive Tennessee’s

court cost statutes. If Turner had special projects, he often assigned them to Howell.

On August 8, 2008, Defendant Otis Jackson, Jr. defeated incumbent Turner in

the general election for Shelby County General Sessions Court Clerk. Four days after

his defeat, Turner, following established procedure, contacted Shelby County Human

Resources Administrator Mike Lewis. Turner asked Lewis to perform a review of

Plaintiffs’ jobs and to recommend that the Board change their categorization from

unclassified to classified. Lewis asked Timothy Green to review preliminarily the status

of Appellants’ positions. In performing his review, Green examined only the job

descriptions on file with the Clerk’s Office. Based on his review of the job descriptions,

Green preliminarily recommended, on August 14 or 15, that the Board consider

changing Ryan’s and Howell’s job categorization to classified. Green did not

recommend that Kizer’s classification change.

Lewis wrote to Turner on August 25, requesting that Turner identify either

(1) material changes in Appellants’ job responsibilities that would support their

reclassification or (2) errors the Board had made in its original categorization of the

positions as unclassified. Turner responded by letter two days later. Although he did

not answer either of the two questions Lewis posed, Turner did argue that positions in

other offices had recently been re-categorized as classified. He also asked why Lewis’s

review was taking so long.

Before assuming office on September 1, Clerk-Elect Jackson met with Shelby

County officials to obtain a list of all unclassified positions. After that meeting, Jackson

informed Kizer and Howell by letters dated August 26, that he would not reappoint them

No. 10-5161 Kizer, et al. v. Shelby County Gov’t, et al. Page 5

to their positions. Kizer and Howell both chose to retire from Shelby County

Government and receive the benefits due them for their years of service. After assuming

office, Jackson withdrew the pending request to re-categorize Appellants’ positions as

classified. Jackson then informed Ryan by letter dated September 10, that he would not

be reappointed to his position as Manager B. Ryan, exercising his bump-back rights,

returned to his prior classified position of Chief Principal Court Clerk. Ryan has since

received a promotion through the merit selection system to Community Service

Organizer.

Kizer filed suit on August 29, to contest his termination, and Ryan and Howell

later joined as Co-Plaintiffs. They alleged that the Appellees deprived them of their jobs

without due process of law through a policy of mislabeling positions as unclassified that

should have been labeled classified, thereby removing the procedural protections of the

Act. The district court partially granted Appellees’ Motion to Dismiss, dismissing

claims against former Shelby County Mayor A. C. Wharton in his individual capacity.

The court also dismissed Appellants’ claims based on alleged violations of the

Tennessee Constitution and claims for punitive damages against Shelby County, the

Board, and Wharton. In a subsequent order, the court denied Appellants’ Motion for

Class Certification.

The remaining claims at that time were the Appellants’ individual claims against

Shelby County, the Board, Joe Ford in his official capacity as Shelby County Mayor2,

and Jackson in his official capacity as General Sessions Court Clerk for dismissing

Kizer, Ryan, and Howell without due process of law. They also sought declaratory and

injunctive relief and presented a claim for punitive damages against Jackson in his

individual capacity. Both sides filed motions for summary judgment. The district court

granted summary judgment in favor of the Appellees on all of the remaining claims. The

former employees timely appealed.

2

Pursuant to Fed. R. Civ. P. 25(d), the district court substituted Joe Ford, who was appointed by

the Shelby County Commission to serve the remainder of Mayor Wharton’s term, for Wharton who

resigned that post following his election as Mayor of the City of Memphis, Tennessee.

No. 10-5161 Kizer, et al. v. Shelby County Gov’t, et al. Page 6

II.

A.

The district court granted summary judgment in favor of the Defendants-

Appellees, premising its decision on the ground that the former employees were afforded

due process prior to their termination. We review that decision de novo. See Grubb &

Ellis/Centennial, Inc. v. Gaedeke Holdings, Ltd., 401 F.3d 770, 773 (6th Cir. 2005). And

that standard requires us to ask and answer the same questions considered by the district

court: Whether “there is no genuine issue as to any material fact” and whether “the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In

addressing these questions, this court must give the Plaintiffs-Appellants, as the non-

moving party here, the benefit of all factual inferences.

B.

On appeal, Kizer, Ryan, and Howell argue that the district court erred by making

a factual determination not supported by the record before it. Specifically, they take

issue with the district court’s conclusion that minimum due process was provided

because they received a pre-termination opportunity to address the reason for the

termination but did not take the opportunity to do so. They maintain that they had no

meaningful opportunity to challenge their classification or termination.

But, in order to determine whether there was a due process violation, it is first

necessary to ask whether the former employees have demonstrated that they were

deprived of a property right. Although the district court concluded that the Due Process

Clause would apply if the Appellants were correct that under the statute they should have

been categorized as classified employees, Kizer, Ryan, and Howell failed to satisfy this

first prong–establishing that they were deprived of a property right.3

3

Of course, “[t]his court can affirm a grant of summary judgment on a ground presented to the

district court if the opposing party has had a chance to respond.” Fox v. Van Oosterum, 176 F.3d 342, 352-

53 (6th Cir. 1999) (citation omitted). See also Sigley v. City of Parma Heights, 437 F.3d 527, 536 (6th Cir.

2006); Garretson v. City of Madison Heights, 407 F.3d 789, 796 (6th Cir. 2005). Because the Appellees

raised this argument in their motion for summary judgment and the Appellants had an opportunity to

respond and did so, it can serve as an appropriate basis on which to affirm.

No. 10-5161 Kizer, et al. v. Shelby County Gov’t, et al. Page 7

The Due Process Clause of the Fourteenth Amendment prohibits the state from

depriving any person of life, liberty, or property without due process of law. U.S. Const.

amend. XIV. But, “[p]roperty interests are not created by the Constitution, ‘they are

created and their dimensions are defined by existing rules or understandings that stem

from an independent source such as state law . . . .’” Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 538 (1985) (quoting Board of Regents v. Roth, 408 U.S. 564,

577 (1972)). Where a state civil service system categorizes public employees as

classified—that is, not subject to removal at will—employees have a state-law-created,

constitutionally protectable property interest in maintaining their current employment.

Id. at 538-39. Conversely, unclassified employees have no property right in maintaining

their jobs; and the State may terminate them summarily. See id. at 538-40; Roth, 408

U.S. at 578 (no constitutionally protected property interest in reappointment to a non-

tenured position at state university); Averitt v. Cloon, 796 F.2d 195, 200 (6th Cir. 1986)

(no constitutionally protected interest in maintaining a political appointment); Corbett

v. Garland, 228 F. App’x 525, 527 (6th Cir. 2007) (“Unlike classified employees,

unclassified employees have no property right to continued employment.”) (citation

omitted)).

Here, it is undisputed that Kizer, Ryan, and Howell were all hired as unclassified

employees. From the time of the Appellants’ appointment until their termination, the

Board categorized their positions as unclassified, and therefore unprotected, under the

terms of the Act. The Board had determined that these positions were unclassified

because they involved sensitive policy-making duties as set forth in Section 9(7)(a) of

the Merit Act. And the Appellants accepted their appointments knowing this.

Consequently, as employees in unclassified positions, the Appellants have no

constitutionally protected right to a hearing on their classification because the Merit Act

does not cover them.

Nonetheless, the Appellants attempt to avoid this inevitable result by claiming

that their categorization (as unclassified employees) was incorrect under the terms of the

Act and Tennessee caselaw. They suggest that Lewis and the Board employed a “policy

No. 10-5161 Kizer, et al. v. Shelby County Gov’t, et al. Page 8

of inactivity” designed to prevent employees improperly designated as unclassified from

seeking review of their classification. This argument is unavailing.

First, it must be noted that the Appellants served in these positions for years

(Kizer for five, Ryan for twenty-one, and Howell for twelve) without making a single

request to have the status of their positions altered in any way. The record is also devoid

of any attempt by the Appellants to initiate a change in their job classification with the

Board or a supervisor. In fact, this issue came up for the first time only after Turner, the

man who appointed all three Appellants, lost the election and was on the way out of

office. At that point, he initiated a request to have eighteen of his nineteen prior

appointments recategorized to classified status.

Second, and more importantly, this court has previously rejected a similar

argument in the context of the Ohio civil service system. See Christophel v. Kukulinsky,

61 F.3d 479, 486 (6th Cir. 1995). In Christophel, the plaintiff claimed that although she

was hired as an unclassified civil servant, she should have had classified status.

Christophel alleged that her former employer, a state university, systematically labeled

employees as unclassified when they should have been given classified status. Id. The

defendants moved for summary judgment, claiming that they were entitled to qualified

immunity because they had not violated a clearly established constitutional right to due

process. Id. at 484. The district court, however, denied that motion after concluding that

genuine issues of material fact remained about whether the University had a system of

misclassifying employees. Id. According to the district court, if Christophel were

correct in her assertion that she was misclassified as an unclassified civil servant in

violation of Ohio law, the defendants would have been acting outside their discretion

regarding that classification and would not be entitled to the protection of qualified

immunity. Id.

On appeal, we rejected Christophel’s claim that because her position should have

been classified, she was entitled to the due process rights of a classified civil servant at

the time her position was abolished. Id. at 486. “Implicit in Christophel’s syllogism,”

this court noted, “is a crucial premise, i.e., that, under Ohio law, an unclassified civil

No. 10-5161 Kizer, et al. v. Shelby County Gov’t, et al. Page 9

servant’s contention that she should be placed in the classified service automatically

bestows on her the rights which accompany classified status, and automatically imposes

on the defendants the duties owed to those having classified status.” Id. (emphasis

added). Finding no support in Ohio law for Christophel’s argument, this court

emphasized the “fundamental difference” between “the attainment of a state-recognized

status, and the mere assertion of a right to that status.” Id. The Christophel court

concluded that “[u]ntil the state bestows the right or benefit, there is no property right,

and nothing for the procedural protections afforded by the Due Process Clause to

protect.” Id.

The facts of this case require the same result. The Appellants were hired as

unclassified civil servants. They were not subject to the merit selection requirements,

acceded to their status as unclassified employees, and enjoyed the benefits associated

therewith. The Appellants now claim, like Christophel did, that their positions have

been miscategorized all along. Their claim boils down to this: they were entitled to the

due process protections afforded to classified employees because they should have been

categorized as classified employees. But this amounts to nothing more than an

“asserted” right to classified status. And, just like in Christophel, this “so-called right

is no more than an inchoate claim, not yet adjudicated or otherwise acted upon.” Id.

In other words, asserting a right to a certain classification does not make it so.

If simply claiming to be entitled to classified status could trigger the due process rights

attendant to that actual classification, the distinction between classified and unclassified

employees would be meaningless. Any unclassified or appointed employee claiming

that his position was miscategorized could demand, and the County government would

be required to provide, due process to people hired or appointed as at-will employees.

Such a result defies logic and finds no support in Tennessee law. Because the

Appellants were not hired pursuant to the procedures bestowing classified status upon

an employee, they failed to show that they have a constitutionally protected property

interest in their employment. And, without a legitimate property interest, the Due

Process Clause offers no procedural protections to these former employees. It follows

No. 10-5161 Kizer, et al. v. Shelby County Gov’t, et al. Page 10

a fortiori that the Appellants’ remaining claims against Otis Jackson, Jr. were also

properly dismissed.

III.

For the reasons stated above, we affirm the district court’s grant of summary

judgment in favor of the Defendants-Appellees.