# Lafayette Brown, Jr. v. Georgia Department of Revenue, Harry White

> Court of Appeals for the Eleventh Circuit · August 24, 1989 · 881 F.2d 1018

URL: https://www.frixlaw.com/law-library/cases/9479363

## Case

- **Full name:** Lafayette BROWN, Jr., Plaintiff-Appellee, v. GEORGIA DEPARTMENT OF REVENUE, Et Al., Defendants, Harry White, Et Al., Defendants-Appellants
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 24, 1989
- **Citations:** 881 F.2d 1018; 14 Fed. R. Serv. 3d 514; 1989 U.S. App. LEXIS 12594; 1989 WL 88358
- **Precedential status:** Published
- **Opinion:** Dissent by Tjoflat
- **Judges:** Tjoflat, Clark, Ryskamp
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9479363

## How later opinions describe it (automated extraction)

- finding that there was no waiver of procedural due process rights where the defendant led the plaintiff-employee to believe that he had no appeal rights
- noting that “as a matter of federal law a property interest is created whenever a public employee can only be fired ‘for cause’” and “[s]tate law determines whether a particular employee is terminable at will or only for cause”

## Opinion text

TJOFLAT, Circuit Judge,
dissenting:
I.
In September 1981, the Georgia Department of Revenue hired appellee Lafayette Brown as a Tax Field Agent. After completing his working test period in September 1982, appellee became a permanent employee under the Georgia Merit Systems Act. See Ga.Code Ann. § 45-20-1 to -15 (1982 & Supp.1988). Among other things, the Merit Systems Act provides permanent employees with procedural protections against actions that adversely affect an employee’s employment status. See id. § 45-20-8 (Supp.1988).
On Monday morning, May 7, 1984, appel-lee became seriously ill and did not report for work. From Tuesday, May 8 through Friday, May 11, appellee was in the hospital. On Wednesday, May 9, appellee telephoned his supervisor, Jacqueline Fitzgerald. Appellee testified that he stated, “Jackie, this is Lafayette. I am in Grady Hospital. I don’t know exactly how long I’m going to be here, but I will be back in touch with you, and I’ll keep you abreast *1029 on what the situation is,” and that Fitzgerald replied, “Okay.” 1 Appellee made no other attempts to contact Fitzgerald while he was hospitalized.
Because appellee did not specifically request sick leave during his conversation with Fitzgerald, her supervisors took the position that appellee had not reported to work during the week of May 7. Under the Rules and Regulations of the Georgia State Merit System, such conduct may be deemed a resignation. See Ga.Comp.R. & Regs. (State Personnel Board) r. 12.202 (1987). Accordingly, when appellee came home from the hospital, he discovered a letter informing him that he had been terminated. The letter of termination was dated May 11, 1984 and stated as follows:
Dear Mr. Brown:
At the recommendation of Mr. John Smith, Director of the Field Service Division, this is to advise that your employment is terminated effective at the close of business May 11, 1984.
This action is taken in accordance with Rule 12, Section 12.202 of the Rules and Regulations of the State Merit System— Abandonment of Position.
If you have any questions, please feel free to call me.
Sincerely,
/s/ Joyce J. Kelly
Joyce J. Kelly
Personnel Administrator
Shortly after receiving this letter, appel-lee telephoned Kelly and told her that he did not understand what was going on and why her letter said he had abandoned his position. Kelly told appellee that he would have to speak to Mr. John Smith, the Director of Field Services. When appellee contacted Smith and asked him to clarify the reason for his termination, Smith responded that he thought the letter spoke for itself; Smith did not inform appellee that he had a right to appeal his termination to the Georgia State Personnel Board. 2
On July 9, 1984, appellee sent the following letter to Reese Theus, Chief Hearing Officer of the Georgia State Personnel Board:
Dear Mr. Theus;
I was discharged from my position as Tax Agent for the Department of Revenue on May 11, 1984. This action was taken without advance warning and without a departmental review.
I have recently been informed that I’m entitled to certain review rights through the Merit System of Georgia. Based upon this information, I’m formally requesting information on my right of appeal thru [sic] the merit system.
Sincerely yours,
/s/ Lafayette Brown Jr.
Lafayette Brown Jr.
Upon receiving this letter, Theus responded on July 12, 1984 as follows:
Dear Mr. Brown:
Your letter of July 9, 1984 was received today. In the phone conversation with Mr. James, you indicated that you had been dismissed without notice of your right of appeal. However, the letter of May 11, 1984, from Ms. Kelly shows that *1030 you were separated under provisions for Abandonment of Position. This rule provides that if you are absent from your job for five consecutive work days without notice to and approval of your supervisor, you may be separated. There is no provision for appeal of separation under Rule 12.202 if the separation is done in accordance with the Rule and there is, therefore, no requirement of notice of appeal.
Your attempt to appeal this matter is now denied. I regret that I can be of no further assistance in this matter.
Sincerely,
/s/ Reese E. Theus
Reese E. Theus
State Personnel Board Executive &
Chief Hearing Officer
As a result of this correspondence, appel-lee filed suit in the United States District Court for the Northern District of Georgia on December 12, 1985, seeking injunctive relief and damages under the due process clause of the fourteenth amendment to the United States Constitution and various federal statutes. See 42 U.S.C. §§ 1983 , 1985(3), and 2000e (1982). After the district court resolved a protracted series of motions to dismiss various parties and claims, appellee’s suit was narrowed to a claim under section 1983 that the Personnel Board of the Georgia Merit System had denied him due process of law. A bench trial ensued, following which the district court found that the members of the Georgia State Personnel Board “wrongfully failed to inform and to grant [appellee] the right to appeal his termination on May 11, 1984.” Accordingly, the district court ordered the Board to afford appellee a hearing concerning his termination. This appeal followed.
II.
To establish a claim under the due process clause of the fourteenth amendment, appellee first must establish that he had a property interest in his employment with the Georgia Department of Revenue. The Supreme Court has noted that:
Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 , 92 S.Ct. 2701, 2709 , 33 L.Ed.2d 548 (1972). Having established a property interest in his employment, appellee must then prove that the state officials deprived him of that right without due process of law. Because I believe that appellee fails to meet this test, I respectfully dissent.
A.
Rule 12.202 of the Georgia State Personnel Board provides as follows:
Abandonment of Position. Any employee who is absent from duty for five (5) consecutive workdays or equivalent, without proper notification and authorization thereof, within the discretion of the appointing authority, may be deemed to have resigned voluntarily from employment.
Ga.Comp.R. & Regs. (State Personnel Board) r. 12.202 (1987). This rule allows the State promptly to terminate employees who fail to show up for work, and to fill abandoned positions quickly so as to assure the continued orderly administration of government. Because the employee’s termination is deemed a “voluntary separation” under Rule 12.202, the employee has no right to appeal the State Merit System’s decision as if it were an adverse action. See, e.g., Ga.Comp.R. & Regs. (State Personnel Board) r. 14.205 (1987) (appeal from dismissal). The employee, however, can appeal such a voluntary separation under Rule 14.211. That rule provides as follows:
Other Purported Violations of the Rules and Regulations. Unless prohibited by the provisions of Par. 14.111 [relating to claims of employment discrimination], a person who feels that there has been a violation of the rules and regulations or *1031 the Merit System law which adversely affects the person’s rights may appeal to the Board for relief under this provision if the appeal right is not covered elsewhere in these rules and regulations. The appeal must be filed within thirty (30) calendar days after the occurrence of the alleged violation.
Ga.Comp.R. & Regs. (State Personnel Board) r. 14.211 (1987) (emphasis added). Thus, the Rules did provide appellee a method by which he could have secured administrative review of his termination; appellee, however, failed to invoke this right in a timely manner. Appellee’s claim, therefore, is not that he was denied the right to appeal, but rather that he was denied a right to notice of his appellate rights. I find such a claim deficient in three respects.
In the first place, the record in this case establishes that appellee, like all employees in the Georgia Merit System, was given a copy of the rules and regulations governing his employment when he was first hired. Appellee thus had actual notice of the appellate mechanisms available to him.
But even if appellee had not received actual notice, I do not believe that appellee would have a claim under the due process clause. The Rules of the State Personnel Board are a matter of public record, published and updated at regular intervals in the Official Compilation of the Rules and Regulations of the State of Georgia. Such notice is sufficient: the due process clause does not, in itself, require that a state advise an employee of his appellate rights in a letter of termination.
Finally, I note that nothing in the Georgia Merit Systems Act gives appellee a constitutionally protected interest in such notice. That Act states as follows:
The procedure adopted for dismissing a permanent status employee from employment or otherwise adversely affecting his compensation or employment status shall include, as a minimum, that the appointing authority must provide the permanent status employee with reasons for the action and an opportunity to file an appeal and request a hearing which may be held before either the board or one of its hearing officers.
Ga.Code Ann. § 45-20-8(b) (Supp.1988). The fact that appellee’s letter of termination failed to inform him of the appellate procedures available to him in no way deprived him of this “opportunity to file an appeal” — and this was the only right he had under state law. 3
III.
The record in this case reveals that ap-pellee’s superiors acted in an altogether deplorable manner, taking advantage of ap-pellee’s illness and adopting an unnecessarily legalistic interpretation of the rules regarding what constitutes a request for sick leave. The federal courts, however, have no power to order state officials to comply with state law. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 , 104 S.Ct. 900, 911 , 79 L.Ed.2d 67 (1984). Because I find no violation of the due process right secured by the United States Constitution, I accordingly would reverse the district court’s decision ordering the Georgia State Personnel Board to grant appellee a hearing concerning his termination.
. Ms. Fitzgerald remembers the conversation differently. She testified that appellee said, “Jackie, I’m calling in. I haven't reported in two days, and I’m in Grady Hospital," and ap-pellee then hung up the phone before she had a chance to respond.
. The majority states that "the [appellee’s] un-contradicted testimony established that John Smith led him to believe he had no appeal rights.” Ante at 4030. This mischaracterizes the appellee’s testimony at trial, which was as follows:
Q. Did you talk to John Smith?
A. Briefly.
Q. Could you tell us about that conversation, what was said?
A. I just told him I couldn’t understand what was going on and why his letter saying I abandoned my position.
His comment basically was the letter speaks for itself. There is really nothing else I can say or anybody can say, and that’s it.
Q. Did Mr. Smith say anything to you about appeal rights?
A. No.
Thus, Smith did not intentionally mislead appel-lee, as the majority opinion implies, but simply failed to take the initiative to advise appellee of his appeal rights.
. Appellee has not alleged — nor do the facts demonstrate — that his superiors deliberately misled him, so as to prevent appellee from timely filing his appeal. See discussion of appellee's testimony at trial supra at note 2. Although Chief Hearing Officer Theus' letter to appellee stated that he had no right of appeal, this letter was written long after the thirty-day limitations period prescribed by Rule 14.212 had expired and thus did not prompt appellee to abandon his rights. In any case, we note that Theus' letter was not inaccurate: as of the letter’s date, appellee in fact had no right of appeal.
If appellant had been misled by his superiors, appellant might seek to estop the State from raising the thirty-day limitations period as a defense. For policy reasons, however, courts generally allow such estoppel only in the most exceptional circumstances. See, e.g., Eagle v. Sullivan, 877 F.2d 908 (11th Cir.1989).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479363. Public record. Not legal advice.