Cummings v. Housing Authority

• Court: Court of Appeals for the First Circuit
• Decided: January 22, 1993
• Docket: 92-1611
• Status: Published

Opinion

USCA1 Opinion

January 21, 1993
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 92-1611

                                  GLENN A. CUMMINGS,

                                Plaintiff, Appellant,

                                          v.

                      SOUTH PORTLAND HOUSING AUTHORITY, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                              Torruella, Circuit Judge,
                                         _____________

                            Brown,* Senior Circuit Judge,
                                    ____________________

                              and Stahl, Circuit Judge.
                                         _____________

                                _____________________

               John J. Finn for appellant.
               ____________
               Terry  A. Fralich, with whom Peter J. DeTroy III and Norman,
               _________________            ___________________     _______
          Hanson & DeTroy, were on brief for appellees.
          _______________

____________________

____________________

____________________

          *  Of the Fifth Circuit, sitting by designation.

TORRUELLA,  Circuit  Judge.   Appellant  Glenn Cummings
                                ______________

          brought suit  against appellee  South Portland  Housing Authority

          ("SPHA") for:  (1) the unconstitutional deprivation of a property

          interest in  continued employment  pursuant to  42 U.S.C.    1983

          ("  1983"); (2) breach of contract; (3) intentional  interference

          with  prospective  employment; and  (4)  negligent infliction  of

          emotional distress.   The  district court adopted  a magistrate's

          recommendation that appellant lacked a constitutionally protected

          property  interest  in  continued employment,  and  thus  granted

          summary judgment for the SPHA on the   1983 claim.   The district

          court  also   dismissed  the  three  state   law  claims  because

          supplemental  jurisdiction  was   inappropriate  once  the  court

          dismissed the only federal  claim.  The judgment dismissed  the  

          1983  claim  with  prejudice  and the  state  law  claims without

          prejudice.  Because we find that appellant had a constitutionally

          protected  property  interest  in his  continued  employment,  we

          reverse and remand  the case  to the district  court for  further

          proceedings.

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                    The SPHA  is a  municipal authority authorized  under a

          state  enabling statute.  See Maine  Housing Authorities Act, Me.
                                    ___

          Rev. Stat. Ann.  tit. 30,   4701  (West 1991).  Appellant  worked

          for the SPHA as a  department head in charge of maintenance.   On

          May 30, 1988, when the SPHA hired appellant, it informed him that

          he would have  to serve  a probationary period  during which  the

          SPHA could  fire him  at any  time.   The  SPHA further  informed

          appellant that  after the probationary  period he would  become a

permanent employee,  and that  the SPHA's personnel  policy would

          govern his employment.

                    Sometime during  appellant's first year  of employment,

          he  gave the executive director  of the SPHA  an undated, written

          letter of resignation, and told  him to use it if he  ever failed

          to  fulfill his responsibilities at the  SPHA.  On July 13, 1990,

          well after the probationary  period ended, the executive director

          presented  appellant with this letter, stating that they had come

          to a "parting of  ways."  Appellant then requested  a termination

          hearing, and the SPHA rejected that request.

                                      DISCUSSION
                                      DISCUSSION
                                      __________

          I.  Section 1983 claim
          I.  Section 1983 claim

                    The central issue  on appeal is whether appellant had a

          constitutionally protected  property  interest in  his  continued

          employment.    A public  employee has  such  an interest  when he

          reasonably expects that his employment will continue.  Perkins v.
                                                                 _______

          Board of  Directors, 686 F.2d  49, 51  (1st Cir. 1982).   An  "at
          ___________________

          will"  employment contract creates  no reasonable  expectation of

          continued employment, while an employment agreement that  permits

          termination only "for cause" does create that expectation.  Id.
                                                                      __

                    Whether an employment contract permits dismissal solely

          "for cause" is a  matter of state law.   Id. at 52.   In general,
                                                   __

          under Maine law, "a contract of employment for an indefinite time

          is terminable  at the  will of  either party."   Libby v.  Calais
                                                           _____     ______

          Regional  Hospital,  554 A.2d  1181, 1182  (Me. 1989).   However,
          __________________

          parties  may restrict  the  employer's ability  to terminate  the

-3-

employment contract  to occasions when "cause"  exists by clearly

          and expressly stating that intention.  Id.  That intention can be
                                                 __

          expressed  in an employment  manual.  Id. at  1183.  However, the
                                                __

          manual must  use  clear  and express  language  to  restrict  the

          employer's  ability to discharge employees.   Id.   Language in a
                                                        __

          manual  merely implying a "for cause" limitation will not bind an

          employer.  Id.  
                     __

                    There are two relevant sections in the employee manual.

          Section 1(a) reads:

                      Merit   System.      The  employment   of
                      ______________
                      personnel and all actions effecting (sic)
                      employees shall be based solely on merit,
                      ability (performance), and justice.

          Section 7(b) reads:

                      Dismissals.    An  employee who  provides
                      __________
                      unsatisfactory service or  who is  guilty
                      of   substantial   (sic)   violation   of
                      regulations shall be subject to dismissal
                      without prior notice.  In such cases, the
                      employee   shall  have  the  right  to  a
                      hearing  before  the Executive  Director.
                      The  employee may appeal  the decision of
                      the  Executive  Director to  the existing
                      Personnel Committee.

                    Appellee argues that the SPHA manual does not provide a

          clear  and specific  restriction  on termination  as required  by

          Libby.   Appellee apparently takes  the position that  the manual
          _____

          would have to specifically use the words  "for cause" in order to

          limit an  employer's ability to terminate  employees to occasions

          where cause exists.   However,  Maine law does  not support  that

          position.  

                    In Durepos v. Town of Van Buren, 516 A.2d 565, 566 (Me.
                       _______    _________________

-4-

1986),  the Maine  Supreme Court stated  that "[t]he  phrase 'for

          cause' . . .  refers to conduct affecting the ability and fitness

          of  the employee to  perform his  duties."   Thus, language  in a

          manual that permits dismissal based only on an employee's ability

          to do his job constitutes a "for cause" limitation.  

                    Similarly,   in  Lovejoy  v.  Grant  and  Maine  School
                                     _______      _________________________

          Administrative District No. 37, 434 A.2d 45, 50 (1981), the Maine
          ______________________________

          Supreme  Court found that Maine law provides that "certain public

          school teachers may  be discharged  only for cause."   The  court

          based its  conclusion on a statute entitling  tenured teachers to

          substantive and procedural protections from non-renewal  of their

          contracts  and a  statute  permitting the  dismissal of  unfit or

          unprofitable teachers.  Id.
                                  __

                    Against  the  backdrop  of these  precedents,  the SPHA

          employment  manual  clearly  restricts   the  SPHA's  ability  to

          terminate  employees.   It specifically  states that  all actions
                                                                ___

          affecting  employees   will  be  based  on   merit  and  ability.

          Accordingly, the SPHA manual created a constitutionally protected

          property interest in appellant's  continued employment.  Thus, we

          reverse  the   district  court's   judgment  and  remand   for  a

          determination of  whether appellant  received due process  in his

          dismissal.

          II.  State Law Claims
          II.  State Law Claims

                    Because appellant has stated a federal cause of action,

          we reverse the dismissal of the state law  claims and remand them

          to  the   district  court  to   determine  whether   supplemental

-5-

jurisdiction is appropriate.

                    Reversed and remanded.
                    _____________________

-6-