Gooley v. Conway

590 F.2d 744
Court of Appeals for the Eighth Circuit·Decided January 17, 1979·No. No. 78-1410·Published·Cited by 16 cases

Opinions

HENLEY, Circuit Judge.

Louis J. Gooley, Earl Hemphill and Steven Casey, hereinafter referred to as plaintiffs, appeal from a judgment of the United States District Court for the Eastern District of Missouri,1 dismissing a complaint filed by them against the City of St. Louis, Missouri, the Mayor of the City, and other local and federal officials concerned with the administration in St. Louis of the public employment program established by the Comprehensive Employment and Training Act of 1973 (CETA), 29 U.S.C. § 801, et seq. The three plaintiffs had been hired by. the City under the CETA program in the spring and summer of 1977; all were discharged in late July or August of that year. The complaint of the plaintiffs was and is that they were discharged without any prior notice and hearing. They contend that they had a constitutional right to such notice and hearing, or, alternatively, that they had certain job protection under the Act itself.

The suit was filed on October 20, 1977, and the complaint was amended on November 22 of that year. The local defendants •filed an answer denying that plaintiffs were entitled to any relief. Thereafter both sets of defendants filed motions to dismiss the complaint, or alternatively, for summary judgment pursuant to Fed.R. Civ.P. 56(b). Those motions were granted in May, 1978; judgment in favor of the defendants was entered, and this appeal followed.2

The district court held that plaintiffs had no constitutional right in the circumstances to pre-termination notice and hearing. As to the alternative claim of plaintiffs, the district court was of the view that the complaint, as amended, adequately set out as a Second Cause of Action a failure of the City and its officials to establish a grievance procedure for the protection of CETA employees threatened with discharge as required by applicable CETA regulations. However, the district judge considered that plaintiffs had an adequate administrative remedy by proceeding against the City by means of complaints to the Department of Labor, and that plaintiffs should be required to exhaust that remedy, which they had not done. The complaint was dismissed without prejudice.3

[746]*746For reversal, the plaintiffs again urge their constitutional claim; and they also contend that the district court erred in holding that they were required to exhaust in the Department of Labor the administrative remedies established by 29 C.F.R. §§ 98.40 et seq. Those remedies, say the plaintiffs, are inadequate to grant them any effective relief, at least within a reasonable time, and plaintiffs also contend that the administrative remedies in question are so burdensome that plaintiffs should not be required to exhaust them.

The record reflects that one of the plaintiffs was hired as a trash hauler; another was hired as a laborer in the parks owned and operated by the City; and the third was employed as a street sweeper and was supplied with a machine to use in his work. One of the plaintiffs was discharged for failure to report for work without excuse; another was fired on account of repeated absenteeism; and the plaintiff who had been hired as a street sweeper was discharged because of his alleged negligent management of his machine which caused it to sustain damage. None of the plaintiffs was discharged on account of race, religion, age, sex, color or national origin or because he had undertaken to exercise a federally protected right such as, for example, freedom of speech or freedom of association.

Each of the plaintiffs was given a written notice of termination which notice set out the reason for the discharge. However, each plaintiff was advised that he had no recourse with respect to the summary action taken by the City.

We agree with the district court that these plaintiffs in the circumstances of this case had no constitutional right to pre-termination notice and hearing. See Gooley v. Conway, 452 F.Supp. 399, 400 (E.D.Mo. 1978), and cases cited. See also the exhaustive discussion of the subject that appears in the opinion of Circuit Judge Ross sitting by designation on the district bench in Minnesota in the case of Galaway v. Lawson, 438 F.Supp. 968 (D.Minn.1976), aff’d per curiam, 565 F.2d 542 (8th Cir. 1977).

However, where a federal statute requires a state or local agency administering a federally funded program to provide grievance procedures for employees who had been or are about to be terminated, such procedures must be established and implemented. Cf. Norton v. Blaylock, 409 F.2d 772 (8th Cir. 1969), aff'g 285 F.Supp. 659 (E.D.Ark.1968).

Section 702 of the Act, as amended, 29 U.S.C. § 982, authorizes the Secretary of Labor, acting in conformity with the requirements of the Administrative Procedure Act, to promulgate rules and regulations applicable to the CETA program, and the Secretary has done so, as the district court noted.

Cities, like St. Louis, that participate in the CETA program are known as “prime sponsors,” and individuals who are employed in the programs or who seek employment therein are known as “participants.” 29 C.F.R. § 94.4(kk).

There is no question that the regulations that were in force during the period with which we are concerned required the City of St. Louis to set up grievance procedures that. would have been available to these plaintiffs. 29 C.F.R. §§ 97.329 and 98.26. And there is no question that when these men were discharged the City had not established such procedures or at least was not implementing existing procedures, if there were any.

29 C.F.R. §§ 98.40-98.49, referred to by the district court, set out procedures whereby the Secretary may compel sponsors of CETA programs to comply with their obligations; and the procedures include complaints, notices, hearings, adjudications by the Secretary or his delegate, and limited judicial review of administrative determinations adverse to sponsors. 29 C.F.R. § 98.-49.4

[747]*747In holding that the plaintiffs had failed to exhaust their administrative remedies, it appears that the trial judge may have assumed that the procedures appearing in 29 C.F.R. § 98.40 et seq.

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Gooley v. Conway
590 F.2d 744 (Eighth Circuit, 1979)