stating that “a probationary (or nontenured) civil service 24 employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable good 25 cause”
How later courts described this case
- stating that “a probationary (or nontenured) civil service 24 employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable good 25 cause”
- stating that “a probationary (or nontenured) civil 3 service employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable 4 good cause”
- stating that, ordinarily, a permanent 1 employee is dismissible only for cause
- because "a substantive property right cannot exist exclusively by virtue of a procedural right" failure to provide probationary employee all procedures provided in state law does "not give rise to a protected property interest"
Written by the judges who cited it.
The opinion
FERGUSON, Circuit Judge,
concurring specially:
I concur but write separately because I view the case in a light different from that of the majority. My view is set forth by the following explanation:
1. Plaintiff was hired as a deputy sheriff with a one-year probationary status.
2. Less than a month later he was charged with violating California Penal Code § 134, a felony. That statute penalizes using false documents and preparing false evidence.
3. He was then terminated as an employee of the county for the stated reason of “probationary rejection.”
4. Subsequently, he was acquitted of the charges in a jury trial.
5. He brought suit against the defendants, pursuant to 42 U.S.C. § 1983 , claiming a violation of his property and liberty rights.
6. In California, a probationary employee has a liberty interest if the termination is based on charges of misconduct that stigmatize his or her reputation or seriously impair his or her opportunity to earn a living. Lubey v. City & County of San Francisco, 98 Cal.App.3d 340, 345 , 159 Cal.Rptr. 440, 443 (1979). However, plaintiff does not appeal the liberty right issue, so it is not before us in this appeal.
7. The sole issue before us is whether the district court erred in holding that the plaintiff, as a probationary employee, did not have a continued expectation of em *879 ployment and therefore held no property right in his employment.
8. State law defines what is property. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 579 , 92 S.Ct. 2701, 2710 , 33 L.Ed.2d 548 (1972).
9. In California, a probationary public employee does not have a property right in continued employment. Luby, 98 Cal.App.3d at 345 , 159 Cal.Rptr. at 443 .
10. Personnel rules create a constitutionally protected property interest only if their procedural requirements were intended to have a substantial restriction on deci-sionmaking. See Clemente v. United States, 766 F.2d 1358, 1364-65 (9th Cir. 1985).
11. The Butte County personnel rules provide that probationary employees may be terminated at will. They do not create a substantial restriction on decisionmaking as they pertain to probationary officers.
12. The county personnel rules do not give the plaintiff a property right.